Complying with what? Problematising the notion of non-compliance in the UK immigration detention

Guest post by Patrycja Pinkowska. Patrycja is a PhD candidate in Human Geography at the University of Exeter. She is on Twitter @PEPinkowska.This is the sixth instalment of Border Criminologies’ themed series on ‘Exploring the everyday of immigration detention’, organised by  Annika Lindberg and Laura Rezzonico.

The notion of non-compliance with immigration policy and enforcement has been a recurring theme ever since I began my research on immigration detention. It regularly came up both in my review of government policy and through ethnographic work with men detained in the Verne immigration removal centre. In this blog post, I question the use of the concept as mainly the intentional manifestation of personal agency and instead show how at times, in the messy landscape of immigration detention it can be instead another tool of domination.

In the government’s narrative, non-compliance is regularly invoked to justify prolonged detention of migrants in the UK, despite assurances that detention is used for the shortest possible period. As Immigration Minister Brandon Lewis argued recently, ‘the government has no plans to introduce a fixed time limit on immigration detention as this would only encourage detainees to refuse to cooperate with immigration and asylum processes.’ Such framing of non-compliance stems form earlier comments by then Immigration Minister James Brokenshire, who argued in 2015: ‘it would be totally unacceptable to reward foreign criminals and illegitimate migrants who refuse to comply with immigration law by requiring their release, even when removal was imminent, simply because a blanket time limit had been reached.’

In 2017, as if to mirror its growing importance in the government’s narrative, non-compliance for the first time featured in the background section of the National Statistics. It was listed as one of the reasons why someone may be held in immigration detention, a reason ‘outside the control of the Home Office’. This framing suggests that migrants are responsible for their own prolonged detention as they notoriously choose non-compliance as a strategy to resist removal or deportation. Jonathan Xavier Inda, writing in the US context on the tactics that are deployed to govern immigration, observes how those framings can shift responsibility towards migrants ‘as autonomous individuals, responsible for their own fate, invested with personal agency and thus with a purely personal responsibility for their status and actions’.

I do not wish to deny the personal agency of my research participants. I want to question however, whether in the context of UK detention, non-compliance is always migrant’s choice, always an autonomous act of resistance.

Academics writing about immigration detention, such as Alexandra Hall, Mary Bosworth, or Sarah Hughes, have explored migrants’ agency and possibilities of resistance. Interpretations of what constitutes resistance in detention vary, but for some, non-compliance is considered the ultimate act of resistance. As Antje Ellermann argues, unlike in authoritarian regimes where violence and deceit are still routinely used in detention, western democratic states are vulnerable when it comes to migrants’ strategies of non-compliance. Matthew Gibney identifies non-compliance as one of the reasons for what he calls a widening ‘deportation gap’ across European countries. Similarly, Giuseppe Campesi, writing on resistance in Italian detention centres, goes as far as to proclaim migrants’ ‘undeportability’ because of non-compliance tactics. Through non-compliance he argues, migrants enact an ‘extraordinary ability to resist and undermine the deportation machine’.

Non-compliance was regularly discussed by my research participants from the Verne immigration detention centre. It was not, however, framed in the language of resistance but often spoken about with confusion, a sense of hurt and injustice. Those detained men were often learning about their alleged non-cooperative behaviour during bail hearings or from their monthly progress reports issued by the Home Office. I was often asked to explain ‘what does it mean I am not complying?’ or ‘not complying with what?’ Some detainees asked me to accompany them to their bail hearings to help them make sense of those accusations. They were disheartened to see their actions repeatedly interpreted as deliberate and deceitful while major errors and wrongdoing on the side of the authorities were easily dismissed as just innocent mistakes.

During observations at the Asylum and Immigration Tribunal in Newport, where the Verne detainees’ bail hearings were held, I was able to observe how the accusation of non-compliance can become another tool used by the Home Office to prolong detention. The fact that only around 50 percent of detainees were able to secure legal representation during bail hearings meant that many such accusations remained unchallenged. During interviews detainees told me, for example, that during their time in detention, the Home Office had never requested their assistance in gathering documentation for removal. They were never visited by the Home Office or embassy representatives, no arrangements were ever made for their return and yet, during bail hearings, they were told that due to non-compliance they could not be released. One man I visited told me that he was accused of non-compliance and that an allegation of him refusing to board a plane was given by the Home Office as a reason to oppose bail. ‘But I was never taken to the airport’ he despaired, ‘I was never even there!’ Those who grew up in the UK explained that it was often impossible to comply since detailed memories of places, or family connections in countries left behind long ago were simply beyond their reach.

At one of the bail hearings I observed, an accusation of non-compliance was made against a man who refused to be moved from the Verne to another detention centre in the middle of the night. His solicitor intervened challenging the Home Office’s interpretation of events. ‘This is not true’ he argued. Woken up in the middle of the night and told to pack up and prepare for travel, the man ‘just asked if he could speak to his lawyer, and the officer should have reached the phone and allow him to speak to me. It is only natural that he wanted to understand what is happening.’

Night transfers are notoriously criticised by HM Inspectorate of Prisons and by the Independent Monitoring Board as unnecessarily stressful, yet they remain a common practice. The solicitor was not disputing the fact that his client refused to be moved in the middle of the night. He argued, however, that it was not an act of disobedience, but one dictated by fear and arguably justified lack of trust towards the authorities.

Non-compliance is not just limited to those who are detained under immigration powers. Once the men leave detention, they are required to report to local police or to the Home Office directly, usually once a week at a specified time. Any record of missed reporting events in the past is inevitably classified as non-compliance, even if it can be explained by the lack of accurate guidance from the Home Office, or dire living condition and destitution people face outside detention centres. Some of my research participants, after their release from detention, claimed that they were not told about the reporting requirement. I was not able to reliably establish whether the information was never passed to them at all, or just not explained properly in a way they could understand. However, if it were not for the proactive and caring work by detention visitors and NGO advisers, those men released from detention would have no chance to comply.

Since September 2004 the Secretary of State has the power to prosecute those who, without reasonable excuse, fail to comply with the re-documentation process. This means those in detention have an obligation to assist in gathering documents that would enable their removal, for example by contacting embassies of their countries of origin and asking for travel documents. The offence is punishable by up to two years in prison and/or a fine. The HM Inspectorate of Prisons and the Independent Chief Inspector of Borders and Immigration noted in their report on the effectiveness of casework in detention: ‘Many detention reviews accused detainees of failing to cooperate, and, if this was the case, prosecution for non-compliance should have been considered’. This is why the inspectors were surprised to find that in the financial year 2009/10, only six people were charged in England and Wales and in the following year, 2010/11, only eight were found guilty. Bail for Immigration Detainees (BID) recorded prosecutions for non-compliance between 2011- 2013 and found that in 2011, only one person was prosecuted but found not guilty. In 2012, six out of eight were found guilty and in 2013 two out of four. Those numbers stand in a stark contrast to the official narrative and the frequency of non-compliance accusations I witnessed.

Non-compliance may be difficult to prove, but it seems to be liberally thrown as an accusation to achieve particular goals. Given the accused often have no way of defending themselves, this practice is deeply concerning and contributes to feelings of injustice and mistrust. Moreover, this practice can hardly be squared with the notion of detention being a non-punitive, and a purely administrative, measure. When the language of government implies that releasing migrants from detention would be a reward, it is hard not to interpret their prolonged deprivation of liberty as a punishment. Aside from its impact on individual cases, the narrative of non-compliance is also doing a significant discursive work. It reinforces the vision that migrants themselves are to be blamed for their prolonged detention, thus, silencing the discussion around the role of detention and the potential for its reform.

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How to cite this blog post (Harvard style)

Pinkowska, P. (2017) Complying with what? Problematising the notion of non-compliance in the UK immigration detention. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2017/12/complying-what (Accessed [date]).