Migrant detention, the practice of holding migrants in custody under immigration control, while they wait for permission to enter or before they are deported from the country, is perhaps one among the most contentious issues in the global migration regime. This is addressed by the Objective 13 of the Global Compact for Migration (GCM)- “ Use migration detention only as a measure of last resort and work towards alternatives.” A panel discussion on the same was jointly organized by Global Research Forum on Diaspora and Transnationalism (GRFDT), Migrant Forum in Asia (MFA), Cross-Regional Center for Refugees and Migrants (CCRM) and Civil Society Action Committee (CSAC), on 24 November 2020. The session was moderated by Mr. William Gois, Regional Coordinator, Migrant Forum in Asia, who initiated the session with a compelling question, “When will we reach that stage when we know that children should never, under any circumstances, be detained?”
Terminating Child Immigrant Detention
Ms. Verena Knaus, Global Chief, Migration and Displacement, UNICEF, affirmed the question of immigrant detention to be contentious and potentially derailing during the discussions preceding the New York Declaration and during the drafting of the GCM. Finding a meeting ground between states with legally confirmed positions that assert migrant detention to be an effective practice in regulation of migrants, and the stakeholders from international organisations and CSOs who accused migration detention of being an unacceptable and unnecessary practice which violates the rights of migrants, proved to be an arduous task. Detention of children further complicated the issue due to the infringement of children’s rights and its impact on their physical and mental wellbeing and psychosocial development.
Ms. Knaus highlighted three measures that can, and must be adopted, to persuade the states to accept alternatives to migrant detention and put a stop to detaining of children. The first task at hand shall be to change public perceptions and demands towards migrant detention in a way that “completely delegitimises child immigrant detention for states that are self-respecting.” Bringing the public on board shall force the states to accept the dehumanising reality of child migrant detention. The second step shall be to convince the states of the effectiveness of a whole different system of managing migration, that doesn’t involve detentions and protects children. The final step shall be to take up an offensive stance. The alternatives that respect the rights of children and their families throughout the migration procedure has been advocated enough and now is the time to implement them.
“Pilots are no longer enough… we need to physically and financially crowd out the detention industry… and make it (child immigrant detention) unacceptable and unnecessary for any state going forward”: Ms. Verena Knaus
Government’s Bluff on Implementation of Objective 13
Ms. Silvia Gómez, Global Advocacy Coordinator, International Detention Coalition, highlighted that instead of using migrant detention as the last resort, as prescribed by the GCM Objective 13, most governments continue to use detention of migrants as the first resort.
“There is inherent wrongness in the fact that some human beings are looked upon as less deserving of certain rights”: Ms. Silvia Gómez
Ms. Gómez stated that the disagreements regarding migration detention had emerged as a highly political issue during the negotiation of the GCM, and the Objective 13 was the best compromise possible at that moment. It served as a stepping stone, encouraging policy solutions based on human rights and people centred approaches as alternatives to immigrant detention, ensuring that primary right to liberty is secured no matter the status of migrants. Ms. Gómez agreed that the primary challenge is to ensure that the states bring these alternatives to life in lieu of false promises.
The recalcitrance exhibited by governments was highlighted by Mr. Dato’ Sri M. Ramachelvam, Advocate & Solicitor of the High Court of Malaya, Malaysia, who brought to discussion the perspectives from Malaysia. Mr. Ramachelvam stated the unfortunate fact that despite Objective 13 requiring member states to review and revise legal procedures regarding migrant detention, immigrant detention continues to be the first resort by the Malaysian government. In the wake of pandemic, there was a crackdown of undocumented migrants in Malaysia. The arrested undocumented migrants were kept in jail, denied bail or any kind of legal assistance, and deported back to their home country. The misdemeanour of the state towards migrants have added fuel to the rising xenophobia and racism in the country as well.
“There needs to be a transformation in thinking of policy makers, government and leaders, and civil society, to push for alternatives to migrant detention”: Mr. Dato’ Sri M Ramachelvam
Deplorable Migrant Detention Mechanisms in the United States
The United States is one of the countries that has not yet adopted the Global Compact for Migration. Rev. Deborah Lee, Executive Director, Interfaith Movement for Human Integrity, shared insights regarding migrant detention practices in the United States. Rev. Lee analysed the manifestation of this issue in two contexts- along racial lines, and militarised framework adopted by the government in addressing social problems.
The present racial inequality and xenophobia can be traced back to 400-year long history of slavery in the United States, which led to a mentality that the United States is a country for the whites alone, which has led to a cultural system that views migrants with hostility. Rev. Lee identified the militaristic solution adopted to all social problems by the US government to be a major part of the problem. After the 9/11 attacks, migration was shifted to come under the prerogative of the Homeland Security, a highly militarised set up which benefits private contractors. There was a spike in the detention of immigrants. In 1995, an average of 5000 migrants were detained in a day/night, but today, the number has skyrocketed to 50,000, with no regard for elderly, disabled or children. 81% of these detained migrants are held in private facilities.
“There is a huge economic infrastructure that underpins the migration enforcement system in the United States, which I fear is also being exported to other countries”: Rev. Deborah Lee
As long as there are public investments that provide alternatives to communities that sustain on prison economy alone, a real change is hard to come by, Rev. Lee commented.
Quest for Effective Solutions
Mr. Michael Flynn, Executive Director of the Global Detention Project, Switzerland, asserted the search for effective alternatives to immigrant detention within the framework of the GCM and promoting its implementation to be a daunting challenge. According to Mr. Flynn, there are two different concepts at play regarding ATD (Alternative to Detention) measures for migrants. One is the common framework adopted by UN Network on Migration, the GCM, and organisations like IOM, which frame ATDs around “anything that can lead to less detention”. The other is the concrete legal frameworks , like the European Union guidelines, which detail the roles ATDs are supposed to play, that are manifested in the legislations of both member states as well as the European Court of Justice, which quotes that, “An alternative measure to detention can only be envisaged if the reason which justifies the detention of the person remains valid.” The measures based on necessity proportionality approach have both pros and cons. Mr. Flynn illustrated this with the example of Spain.
In Spain, there is a very strict constitutional guarantee which states that if one can’t achieve the goal of detention within 60 days, the arrested person has to be released. When COVID-19 struck the country and the borders closed down, the detained migrants were liberated. But the freedom came with a price as they were released not to any formal ATDs, and hence lacked legal assistance.
Thus, it is pertinent to design and implement formalised ATD procedures, while at the same time ensuring that the instrumentalization of ATDs do not occur in a way that can be harmful to the migrants.
“When alternatives to incarceration were implemented, (it was believed that) they would be promoted with the idea that prison systems would diminish as a result. But what happened was net widening effect- more people under more onerous procedures… and net widening of surveillance powers of state” Mr. Michael Flynn
Necessity proportionality calculus undermines legitimacy of migrant detention, and this is where we should focus our attention on, Mr. Flynn concluded.
The panel discussion on migrant detention was highly insightful. The panellists agreed that a way to assure the effectiveness of alternatives to immigrant detention is through enabling dialogue between the governments and the stakeholders. Legal adoption of ADT measures and their implementation shall entail a systematic change in the migration governance network, and realising this objective becomes ever more urgent in the new reality brought forth by the pandemic, the panellists concluded.
Manjima Anjana, a human rights enthusiast and staunch feminist, is an undergraduate Political Science Hons. student at Miranda House, University of Delhi. Her areas of interest include Human Rights, Criminology and Justice and Media Studies. To define is to limit. Can be reached on Twitter at @manjima_a