Faculty of law blogs / UNIVERSITY OF OXFORD

Active Neglect: The New Tool for the 'Externalisation' of Refugee Protection



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6 Minutes

Guest post by Claire Loughnan. Claire lectures in Criminology at the University of Melbourne, Australia and researches the carceral expansion accompanying immigration detention and the institutional practices accompanying and enabling it. This research is co-funded by the European Union under the Erasmus+ Programme Jean Monnet Activities (599660 EPP-1-2018-1-AU-EPPJMO-Network).

Over the last twenty years, nation states, many of which are signatory to the Refugee Convention, have utilised increasingly punitive strategies in response to refugee movement for protection, rather than devote their resources to refugee protection and resettlement. This has included the use of immigration removal centres and offshore detention centres, boat turn backs and refusals to rescue stranded asylum seekers at sea.

Many of these measures have externalised the responsibility of signatory states, including by locating this responsibility with refugees themselves. In their 2014 analysis of Australian  policies targeting unauthorised refugee movement, Leanne Weber and Sharon Pickering identified two  examples which effectively shifted responsibility to refugees for their own movement, and for the harms arising from deterrent state policies. These have comprised pre-emptive border control measures: rather than using physical and legal measures, the authors argued that border security aims are achieved by manipulating the intentions of refugees through what they have termed 'thought policing'.  Media campaigns, for example, warned of the supposed dangers of living in Australia and of refugees being refused resettlement if they arrived in Australia without prior authorisation.  Similarly, the authors identified practices which sought to influence the repatriation decisions of those already present in a signatory country, either irregularly or while awaiting a visa. For those undocumented, the authors argued that 'access to work and essential public services is so constrained that unlawful non-citizens' are driven to report 'voluntarily' to authorities' and to 'volunteer for repatriation.' Both policy approaches sought to manufacture a ‘choice' which conformed with government border protection objectives while minimising the appearance of government intervention in that supposed choice. Some of these trends attest to the structurally embedded border described by Leanne Weber but also point to more disturbing elements, notwithstanding evidence of resistance to these forms of control.

However, the management of intent is now being executed in more harmful ways and with deeper implications than commonly assumed, both within and at/outside the border. Although it continues to be exacted through the removal of government support services for asylum seekers and refugees in Australia awaiting finalisation of their visa applications, we also see the erosion of hope and wellbeing amongst refugees and asylum seekers, through promises of resettlement elsewhere not being met, and  the refusal, or meagre provision of medical care for those in offshore and onshore detention. 

Housing at the former centre at Lombrom, Manus Island

These trends comprise what I term 'active neglect'. Neglect suggests the absence of doing anything, or simply the absence of care. In this sense, neglect is imbued with passivity even while it refers to a failure to care for something/someone for whom we have responsibility. The implication is that the state holds no responsibility for the suffering which emanates from neglect; services are merely withdrawn. However, this failure is more adequately described as an active practice: states intend to produce suffering. The charge of criminal intent has recently  been applied to the actions of nation states, and their governments, in a June 2019 submission to the International Criminal Court by Omer Shatz and Juan Branco. The authors claimed that criminal liability for harms should be borne by the European Union and its member states, as an outcome of a 'pre-meditated' policy of deterrence, including deportations and ignoring requests for assistance at sea.

We might point to other examples of this, including the Hungarian government 'systematically denying food to failed asylum seekers' while they remain detained in transit zones. Similarly, policies dedicated to producing a hostile environment for illegalised migrants in the UK and the emptying of refugees from reception centres in Italy under the Salvini decree are indicative of intentional neglect. This has left many families and individuals made homeless, forced to live on the streets or seek shelter with charitable organisations while humanitarian protections are withdrawn.

Migrants in Horgos, at the Serbian-Hungarian border

In offshore processing centres operated by Australia (but for which Australia denies responsibility) orders by the Nauruan government for the forced removal of medical services and organisations like Médecins Sans Frontières have had especially severe consequences on the mental health of those detained. In 2018 the Australian government announced cuts to medical services for those in the Manus Island detention centre, leaving refugees and asylum seekers without medical care for broken limbs, mental illness, infections and other illnesses. The contract with health provider International Health and Medical Services (IHMS)  for services at  Manus Island and Port Moresby was not renewed after it expired in April 2018. In April 2019, the Australian Government commenced cuts to supports for those awaiting resettlement and processing who are living within Australia, to amount to $A80 million. This affects access to services for newly arrived refugees, many of whom are now seeking emergency housing and food, sleeping rough and unable to access medicine and other basic supports.

For those in need of medical care, neglect has arguably also been achieved in the Australian case through patterns of endless delays, where refugees and asylum seekers wait for services without a guarantee of anything being delivered. The proposed medical evacuation of refugees from Australian offshore processing centres to access urgent medical care under the Medevac Legislation exemplifies this pattern: until recently it has resulted in minimal evacuations, with frustrations at incomprehensible delays to evacuate and treat critically ill refugees at Manus Island detention centre. While there have been some promising outcomes of the Medevac Bill, with a number of refugees evacuated for medical care, there are concerns about the future of this legislation with the Coalition Government keen to repeal the bill. Refugees at Nauru describe the wait in accessing medical care through Medevac as like a slow death, with hopes dashed by continual delays and bureaucratic obstacles. As Akuol Garang has commented in a recent blog post, Australia has a 'long history of obstructing medical transfers' and it is likely that many will not receive the treatment they require.

 Writing from Manus Island, Kurdish scholar and writer Behrouz Boochani describes this as an 'implicit violence'. Attempts by refugees to get medical care reveal how it works:

Ultimately, a sick refugee can do nothing other than endlessly search for his name on waiting lists for treatment. But no one ever receives medical care. Over time, the rules and regulations of the system wear down the prisoners’ mental health, producing psychological torture.

It is also ironic that evacuation is often necessary as an effect of the conditions, and delayed and indefinite 'processing' in offshore detention sites, evidenced by the high rates of mental illness associated with places which are concretely experienced as punishment.This is also evident in onshore detention sites.

In theory, refugees should be able to access the health services they require and the support they need to live within the community. Current policies in many states signal growing departures from this principle, even though such effective support was emphasised by the 1950 United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons. In many cases, these services are rarely delivered until it is too late, as the preventable death of refugee Hamid Khazei at Manus Island showed. The effect is one of a slow death (or removal/departure). The gradual yet unremitting effect of these policies renders them hard to discern as violence. At Manus Island, Behrouz Boochani has observed that 'the system in these prisons has been created so that incarcerated refugees experience an unbearable amount of pressure, reach the point of hopelessness, and finally decide to return to their country of origin.' In his study of Norwegian responses to 'unruly' inhabitants such as irregular migrants, Johansen  describes this as a  'funnel of exclusion': refugees and illegalised migrants are forced through the 'funnel' to a narrow end point where their only 'choice' is to leave. The indirect character of this form of expulsion is the most potent element of such policies. Not only does it potentially relieve government of having to commit extensive resources to keep unwanted refugees and migrants out, it shifts the responsibility for that expulsion on the body of the refugees themselves. Where geographies have been increasingly utilised to control movement (and to punish) it is the geography of the body, the placement of the body and the imposition of suffering on the body which effectively comprise the border. The body is thus the new vanishing point where biopolitical and sovereign powers converge as  Alison Mountz has shown.

Operation Moonbird

Scott Veitch's tracing of legal practices of irresponsibility provides insights into the mechanisms facilitating the avoidance of legal and political accountability for harm resulting from punitive responses to refugee movement. For example, we could argue that the 'voluntary departures' of refugees and asylum seekers on bridging visas are the culmination of a set of social practices that 'allow irresponsibility to proliferate through forms of 'responsibility transference'. This results in the disavowal and dispersal of obligations rather than their acknowledgement. Funnels of exclusion, intent management and the practice of active neglect are crucial mechanisms in contemporary border protection, joining the list of externalisation policies like interception at sea, boat pushbacks, and offshore detention. However, they introduce a new element. By locating responsibility for removal (or death) on the body of the refugee, we are seeing the internalisation of externalisation policies. Non- citizens not only  'cooperate in their own exclusion': they produce it, as the outcome of intentional policies of active neglect. Yet active neglect seeks not only to sanitise violence, but to invisibilise it.

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How to cite this blog post (Harvard style) 

Loughnan, C. (2019) Active Neglect: The New Tool for the 'Externalisation' of Refugee Protection. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2019/07/active-neglect (Accessed [date])

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