In the framework of the “Alternatives to detention: towards an effective and humane management of migration” project,carried out in collaboration with Progetto Diritti, the Italian Coalition for Civil Liberties and Rights (Coalizione Italiana per le Libertà e i Diritti civili, CILD) is conducting a series of interviews with experts in the field.
After having spoken with Mr. Jerome Phelps about the ineffectiveness of immigration detention, we turned to Giuseppe Campesi, Professor of the Aldo Moro University of Bari, legal expert and founding member of the Observatory on migrants’ administrative detention and asylum seekers’ reception in Puglia. Professor Campesi provided us with an overview of the development of immigration detention in Italy over the years, its main issues, opportunities in the current context, and possible alternatives.
Since they first opened in 1998, immigration detention centres in Italy have had a rather complex history. In your opinion, which have been the most significant changes in the Italian approach to immigration detention?
The history of immigration detention in Italy can be divided into four main phases: institutionalisation (1998-2010), stabilisation (2011-2012), crisis (2013-2014) and reinvention (2015 onwards).
Immigration detention was established in Italy during the institutionalisation phase through a process known as “policy transfer”, i.e. the transfer of a political instrument from countries in which it has been in use for a while to countries in which it still does not exist. 1998 was a crucial year for Italy as it had recently been admitted to the free movement area. One of the admission requirements of the latter was strengthening the measures to fight against irregular immigration – Schengen acquis instruments included, in fact, pre-removal detention. This led to Italy adopting this practice, albeit it with reluctance.
By adopting the practice, Italy, gave into EU pressure, despite the fact that pre-removal detention clashed with the Italian constitutional framework. It was immediately condemned as a scandal. The Italian Government employed an approach, similar to that used in France, that was more rights-based than others – especially with regards to time limits (the maximum detention period at the beginning was of 30 days). The Italian detention system, however, soon began to expand. New centres were opened and the maximum detention period first rose to 60 days with the Bossi-Fini law in 2002 and then to 180 days with the so-called “security decree” of 2009. It was a period of great expansion. By 2010, there were 13 detention centres, 1,700 beds in these facilities and very long detention periods. It was in this context that Italy was getting ready to adopt the notorious Returns Directive, which had been approved already in 2008.
In 2011, Italy finally transposed the Directive in a rather peculiar national context. Once again it was a Berlusconi Government, but this time we were in the midst of the economic crisis and the hostility towards migrants was growing. The Government began directing the population’s resentment towards migrants and exploiting the potential of the Return Directive, which turned out to be an ambivalent tool. On the one hand, it introduced a series of safeguards to effectively improve administrative detention models in the less “rights-oriented” countries. On the other hand, it offered the possibility of making the detention system even more draconian by increasing the maximum detention period to 18 months, an exorbitant length in comparison to the standards and rules of countries such as France, Spain and Italy itself. By 2012, the Italian system was fully established and stabilised: there were over 10 functioning centres, almost 2,000 beds and a maximum detention period of 18 months. It was the peak of the expansion of administrative detention in the country.
In 2013 a complex period of crisis for immigration detention began. Not only did the political colour of the Government – and hence its approach to the issue – change, the general structural framework also changed. Since the economic crisis, Italy had entered a phase of “migration counter-transition” as it became a country that was no longer attractive to migrants. The number of arrivals for work and family reunification purposes fell, as well as that of irregular migrants. Immigration detention as a central tool for managing the return of irregular migrants thus began to be perceived as less urgent and it gradually abandoned political debates. In its place, detention conditions and the respect of migrants’ fundamental rights became more relevant issues in the public eye. In October 2013, after the shipwreck tragedy off the coasts of Lampedusa, the Italian Government launched Mare Nostrum, a major at-sea rescue operation, which had no precedent in the history of European migration policies in terms of deployed resources.
It was a period of protests (e.g. the so-called “protest of the sewn-shut mouths” in the former Ponte Galeria Identification and Expulsion centre, current pre-removal centre of Rome) and a period in which the idea of immigration detention as an inhuman solution emerged in the public debate. The idea of closing down immigration detention centres surfaced as well. Although the Government decided that Italy could not deprive itself of this instrument, also due to European obligations, there was an overall disinvestment in immigration detention. With a reform introduced in November 2014, the Government halved maximum detention periods bringing them down to 90 days, and closed several centres (only 5 remained open), due to unsustainable costs as well. Given the difficulty of managing these facilities, the Government began to question them from a cost-benefit perspective. It became apparent that in large detention centres, such as those of Rome and Bari, it was difficult to maintain order – the numerous riots caused frequent damages, even forcing some of them to close.
With the so-called “refugee crisis” of 2015, the scenario changed and Italy found itself again under pressure from EU partners. The European Commission called for the increase of maximum detention periods and for the reestablishment of pre-2013 detention capacity levels. With the goal of strengthening reception systems, the Commission set two key objectives: i) to limit secondary movements of irregular migrants arriving on Italian and Greek coasts, and ii) to implement an effective return policy for all rejected applicants for international protection. Italy was, hence, persuaded to reactivate many of the centres that had been closed and to open up new ones (e.g. the pre-removal detention centre of Palazzo San Gervasio in Potenza). The Italian Government was also asked to transform the very first reception centres (the so-called hotspots) into containment facilities, in which it would be possible to enforce strict control over those arriving by sea. Unlike Greece, Italy never adopted this policy of mass detention upon arrival. In line the Commission’s instructions, however, the Italian Government began reinventing the national administrative detention system first with Minister Minniti, then with Minister Salvini and finally with the current Minister Lamorgese. Starting from 2015, the maximum detention period and the reasons to detain asylum seekers were gradually increased. The idea to create detention areas in hotspots for those who would not be identified immediately or who would refuse to be photographed was also introduced – a process that, if finalised, could have led to the co-optation of the first reception system into a detention system. There was hence a return to investing in administrative detention.
Currently, there are 7 active facilities and the maximum detention period is 180 days, with the exception of asylum seekers that are considered dangerous or at risk of absconding, who can be held in detention for up to 12 months.
It is quite difficult to retrieve information on pre-removal detention centres given the lack of transparency that plagues these facilities. Could you please tell us your experience of visiting these centres in Bari and Brindisi?
At the end of 2011, after the fall of the Berlusconi Government, which had limited civil society access to these facilities, the new Minister of the Interior Cancellieri opened pre-removal centres to journalists and scholars. Numerous reports and investigations on the subject, in fact, date back to this period. What emerges from them is a paradox: living conditions in administrative detention are way worse than those in prisons. Prisons are notoriously more crowded, they detain more people and they only have a few square meters available per person. Yet, the climate of tension and discomfort perceived is much greater in immigration detention centres, which are more complex to manage for various reasons.
First of all, we must consider certain structural elements. The penitentiary system is better governable: it is based on a set of better defined rules, rights and duties and it employs professionals who are specifically trained to work in this type of context. In immigration detention centres, the situation is completely different. Local prefectures entrust these facilities to cooperatives or organisations that often have no experience in managing detention facilities. They are often organisations that also experience a strong contradiction between their charitable and humanitarian vocation and the need to manage places of coercion and compression of rights. Furthermore, the control of public order in these centres is entrusted to the police and not to a specialised policy body trained specifically to manage people in detention, as in prisons. State police, with the support of other forces (i.e. military and Carabienieri) are faced with a situation for which they are not prepared and their approach is similar to that of managing the public order during mass demonstrations, limiting their interventions to when the situation deteriorates. Relations with and between detainees are not governed. These people are basically left to themselves.
There is also a problem of psychological perception. Migrants are deprived of their personal freedom for administrative reasons without actually having violated criminal law. They perceive this form of deprivation of personal freedom as a form of injustice. Generally, they do not understand the reason of their detention order and see it as an undeserved punishment, as it is not linked with any violation of criminal law. It is a legal paradox to deprive someone of his/her liberty with a measure which is very similar to a punitive measure, but which is taken outside the institutional context of criminal justice. This legal paradox causes tension and conflict in the facilities. The situation of migrants who leave prison and are transferred in a pre-removal centres is particularly problematic, as they do not accept the extension of their imprisonment. They have already served their sentence for the crime they committed and perceive administrative detention as an unjustified and incomprehensible affliction. It renders this group particularly contentious and subject to the greatest discomfort (e.g. acts of self-harm and violence against buildings or other prisoners).
The “Detention of migrant dangerousness” is a very interesting concept that you and Professor Fabini discussed in an article you co-authored in 2017. Could you tell us something about it?
This article was the result of wider research carried out in collaboration with various universities (led by Prof. Rigo of the University of Roma Tre) that focused on the activities of the Justices of Peace, namely the authorities that validate or extend detention orders. Through the analysis of the reasons behind these decisions, we noticed a tendency to use immigration detention on a selective basis. Our research showed that the objective pursued by the police and the Justices of the Peace was not to expel all irregular migrants present on the territory (both because it is impracticable and because there is an economic need for the presence of irregular migrants), but to manage irregularity. It appeared that police and Justices of the Peace resorted to the tools offered by return policies (i.e. detention and expulsion) to neutralise, for a certain period of time, groups of irregular migrants described or perceived as dangerous in a given territorial context. These instruments were hence used separately from the actual possibility of expelling someone – more than migration policy instruments, they seemed to be social defence instruments.
The concept of ‘social defence’ has a very specific history in criminological theory and penal doctrine. In short, it refers to the idea that authorities in charge of social control can limit the freedom of someone based on the presumption that the individual is dangerous because he/she is involved in criminal activities. Definitive proof is not necessary and suspicion is sufficient. However, this is not the case in the criminal system, where the adoption of social defence measures requires some degree of evidence. Differently, our immigration law allows for someone to be deprived of their personal freedom without having to bring particularly strong evidence of their dangerousness. To neutralise the alleged dangerousness of a particular person, authorities can take social defence measures by exploiting the irregularity of his/her legal status with the idea of removing him/her from the environment in which his/her presence is considered problematic. From this point of view, administrative detention appeared to be a substitute for the social defence measures provided for by the criminal system at low cost of investigative resources.
The research was carried out on the basis of data from 2015-2016, a period during which there were only a few open detention centres. At the time, the instructions were probably to adopt a selective approach to immigration detention and use it as a tool to neutralise migrants, who were considered particularly dangerous. While presenting the famous Minniti Decree in 2017, the Minister announced that pre-removal centres would be different from the previous Identification and Expulsion centres in that they would be used to detain migrants who could constitute a danger to national security and public order. Salvini’s approach to the matter was different. If he had remained in office, we would probably have moved from a selective detention policy to a mass detention policy, where the first reception centres would have become huge places of detention. The argument that immigration detention was employed as an instrument of social defence against some irregular migrants (not to expel, but to neutralise them) is hence only valid for a certain period of the history of administrative detention in Italy. Perhaps it would be less effective to explain the approach of a minister like Salvini.
During the health emergency, the number detainees in pre-removal centres considerably decreased (from 425 on 12 March 2020 to 178 to 31 May 2020) without any consequences for the public order – how can this become a precedent?
It should become a precedent given the absolute ineffectiveness of administrative detention for the purpose of repatriation. There are many less afflictive, more efficient, cost-effective and humane alternatives to make sure that a person does not abscond while waiting for the execution of an expulsion order taken against him/her.
The problem is that, in Italy, there has been no investment on alternatives to immigration detention. Although they are provided for in the Return Directive and in our legislation, very little has been and is being done. Scholars and activists argue that this is because the employment of an afflictive measure, such as immigration detention, is both effective on the perception of social protection and symbolically relevant. The Government uses it to convey to the public the message that it is working to control irregular immigration and to symbolically reaffirm the state’s ability to control it. Even when the idea of eliminating immigration detention centres emerges, very rational cost-benefit arguments are countered with the claim that the state must control irregular immigration and that these facilities have a powerful symbolic charge. They represent the authority of the state and symbolise a re-bordering phenomenon, i.e. the reaffirmation of the state’s authority and its ability to control its borders. Therefore, although the ineffectiveness of administrative detention is more than evident, one of the main reasons that renders it impossible to give up is its symbolic importance.
In Italy’s current political and social context, what are possible non-coercive alternatives to immigration detention?
Years of research on migration policies have shown that the more restrictive the migration policy of a country of destination is, the fewer are the possibilities for legal migration and the more difficult it will be for the country to implement an effective return policy. Restrictive border control policies have, in fact, a negative impact on return policies. This is because migrants, who see their migration project (even if irregular) fall through, will resist repatriation attempts until they see the possibility of a second chance in the more or less near future and under different conditions.
In an extremely restrictive context, as Italy (where the adoption of expulsion measures is followed by very long re-entry bans, which can go up to 5-10 years), migrants that are subject to an expulsion order will never cooperate. They will cling with every force to their migratory project and resist all attempts of expulsions. In addition, countries of origin have little incentives to cooperate since remittances from immigrants clearly constitute a very significant part of their gross domestic product – there is no form of cooperation that European countries can offer that is comparable, in terms of incentives and weight, to remittances. Therefore, third countries’ cooperation on return policies will always be little to non-existent.
Opening up to legal migration and eliminating certain restrictive return measures (e.g. re-entry bans) might seem detrimental to repatriation policies as they would diminish the coercive capacity and the deterrent effect of these same policies. Paradoxically, however, these measures would make repatriation more effective since they would allow for a better cooperation with the recipients of expulsion orders. A return policy based on the use of coercive instruments, such as detention or restrictive alternatives, is bound to fail insofar as migrants are not offered any alternative or possibility. It discourages migrants from cooperating and it strengthens their resistance, which is sometimes manifested through particularly violent and desperate gestures of those in detention. Therefore, the only way for an effective return policy is to seek and stimulate migrants’ cooperation.
The attempt to involve migrants in a voluntary return process, through the adoption of non-coercive alternatives to detention, is one of the ways forward. However, this practice must be part of a broader macro-policy framework and a more liberal migration policy. Within the current restrictive migration policy framework, even these instruments would not be very effective. Only if someone has “metabolised” the failure of his/her migration project can repatriation support plans work. Differently, when a person does not see prospects for him/herself in the country of origin, the only alternative is to offer him/her the possibility to try entry again in some other way. When someone is forcibly expelled with a long re-entry ban, it takes away all his/her hope and makes it difficult for that person to cooperate. Overall, we can say that the more “porous” the borders are, the more effective the return policy is – vice versa, the more sealed the borders are, the more complicated it is to implement an effective return policy.
Cover photo via “Turin CIE Report Chronicle of a Two Years Long Academic Research” by Manuel Coser.
