Faculty of law blogs / UNIVERSITY OF OXFORD

Can Covid-19 End Immigration Detention?



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Post by Katie Welsford and Michael Flynn. Katie and Michael work at the Global Detention Project https://www.globaldetentionproject.org/.

As the Covid-19 pandemic rapidly spread across the globe, some authorities quickly realised the challenges the disease posed in prisons, where social distancing can be effectively impossible and other safeguards are severely lacking. In Iran, the government ordered the temporary release of 85,000 inmates in mid-March; in April the Turkish government passed a law allowing tens of thousands of prisoners to be released; in Morocco King Mohammed VI pardoned 5,654 prisoners and ordered their release to avoid contagion. Other countries —including, notoriously, El Salvador—failed to take precautions in their prisons and flouted concerns over the spread of disease, leading to widespread outrage. In some cases, as in Egypt, where advocates demanded the release of political prisoners in the face of the pandemic, public pressure appears to have spurred a handful of releases. 

In many of these countries, however, there has been a stark contrast in the responses to prisoners and immigration detainees. In Tunisia, for instance, President Kais Saied announced in late March that 1,420 prisoners would be released from the country’s penitentiary facilities. However, no similar steps have been proposed to safeguard immigration detainees, significant numbers of whom are held in facilities that are shielded from scrutiny and oversight. Civil society organisations have demanded their release, and detained migrants and asylum seekers have launched hunger strikes to protest the lack of protective measures in place, but no detainees have been released to date. Reports instead indicate that migrants and asylum seekers in Tunisia have continued to be arrested and detained, and some subject to forced pushbacks.

The Tunisian case is particularly notable. Although the country has long been secretive about its detention system, reports from former detainees and Tunisian researchers have highlighted particularly grim conditions: detainees held without charge, significant overcrowding, mistreatment, insufficient access to medical care, a lack of cleaning supplies, and poor sanitary conditions. As one former detainee held in the notorious El Ouardia Detention Centre reported following his detention in February this year, “There are only two bathrooms between some 60+ detainees, several toilets do not work and [detainees] only get one piece of soap issued once a fortnight between three to four people.” 

The Tunisian case is far from unique. The GDP has observed similar differences in numerous countries—including in Europe (the United Kingdom), the Caribbean (Trinidad and Tobago), and Asia (Thailand). Arguably, an important lesson we should take from this divide is the inherent cruelty of a system that is not designed to eventually re-introduce people back into society, but rather to permanently remove them. The Covid-19 crisis has also underscored another important aspect of migration-related detention: That detainees in immigration custody often do not enjoy the same rights as people who are prosecuted for committing crimes. This fact was already widely known among experts and rights advocates. But the Covid-19 crisis provides a tragic opportunity to impress this dreadful reality on a larger audience. 

In a 25 March plea to governments to protect prisoners during the pandemic, UN High Commissioner for Human Rights Michelle Bachelet emphasised the similar vulnerabilities faced by inmates and immigration detainees, saying: “Covid-19 has begun to strike prisons, jails and immigration detention centres. In many countries, detention facilities are overcrowded, in some cases dangerously so. People are often held in unhygienic conditions and health services are inadequate or even non-existent.” 

Added to this is the simple fact that most borders remain closed and air travel curtailed, effectively removing the possibility of carrying out deportations. The rationales and legal justifications for many detention orders have thus been erased. 

All of which begs the question: Why are immigration detainees in countries across the globe still confined even as authorities downsize their prison populations?

Important legal norms require that immigration detention be used as a last resort and for the minimum time necessary to complete administrative procedures; however, the practice has become increasingly routinised in the immigration systems of arguably most countries in the world. The GDP has documented more than 2,300 detention centres worldwide, and information on practices in nearly 100 countries. Yet, despite the proliferation of detention, facilities are often shielded from public scrutiny, which increases the vulnerability of detainees to abuses. Striving to improve greater transparency surrounding detention has thus long been a core facet of our work: we seek out detailed, systematic information about who is being deprived of their liberty, where they are locked up, and the conditions they face in detention—information that helps us to hold governments to account and ensure better and wider understandings of the situation non-citizens face around the world.  

Today, as Covid-19 continues to fundamentally reshape societies, this work seems more important than ever. While there have been some positive examples—including Spain’s early decision to release detainees because of the impossibility of deporting them, Zambia’s release of all immigration detainees, and Portugal’s decision to extend residency to all undocumented migrants during the pandemic—other countries have reacted by joining a race to the bottom. In Malaysia, which does not recognise refugees, thousands of migrant workers have been targeted in raids in a purported effort to protect citizens from Covid-19. In Bosnia and Herzegovina the Security Minister claims that refugees pose too great an economic strain and has called for their immediate deportation. In the United States, officials have capitalised on the crisis to implement a long-sought “wish list” of extreme anti-immigration measures, misleadingly arguing: “This is not about immigration. What’s transpiring right now is purely about infectious disease and public health.”

The realisation that the Covid-19 pandemic threatens the health and wellbeing of migrants and refugees across the globe spurred the GDP to launch its Covid-19 Immigration Detention Platform, a tool for reporting the evolving situation of people in detention and other border control situations. We also see this as an opportunity to focus our collective attention on a system whose injustices appear all the more glaring in the harsh light of this disease. 

Since launching the platform, we have worked closely with a large, informal network of local partner organisations, which the GDP has built up during its more than a decade of work. Together, we have submitted information requests to government agencies; analysed decrees, statements, and court rulings; reviewed NGO documentation; and monitored local, regional, and international news outlets in order to develop an overview of the conditions faced, and actions taken (or not taken). 

Importantly, the GDP’s Covid-19 platform is not intended to be just a mere reporting initiative. We seek to make an impact on policy by putting countries on notice that their treatment of detainees is being scrutinised and to build a firm documentary base for holding states accountable. We are also making an effort to collect examples of good practices. One day, when this crisis has passed, perhaps some societies will look back and realise that immigration detention wasn’t so important after all. If it was possible to release migrants and asylum seekers from detention during the pandemic, why lock them back up afterwards?

To help facilitate the Global Immigration Detention Platform, the GDP has set up a brief online survey addressing key questions. It is available in several languages (English, French, Spanish, Russian, and Chinese (Arabic coming soon)): https://tinyurl.com/yb9c6n3w

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How to cite this blog post (Harvard style) 

Welsford, K and Flynn M (2020). Can Covid-19 End Immigration Detention?. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2020/05/can-covid-19-end [date]


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