14. Detention

This chapter focuses on the issue of immigration detention. The deprivation of liberty is one of the most serious infringements of fundamental human rights. In immigration law, individuals lose their liberty through the exercise of a statutory discretion by the Home Office or immigration officers. The chapter considers the statutory powers and executive guidelines, together with human rights and common law rules. The use of detention is an increasingly common phenomenon in the asylum process, and the key role of immigration bail is examined. The former use of indefinite detention for foreign terrorist suspects is discussed at the end of the chapter.

Conclusion

Although the Supreme Court limited detention for non-citizens in the first decade of the twenty-first century (Zadvydas [2000] and Martinez [2005]), its most recent decisions indicate that under certain circumstances non-citizens can be held indefinitely behind bars with no possibility of even a bond hearing. In practice, non-citizens deemed excludable from the United States are like the forever prisoners of Guantanamo, exposed to massive state power with few constitutional protections. Khalid Qassim is one of the forty Guantanamo detainees held for more than eighteen years to date with no charges and no trial. Although Guantanamo prisoners are not voluntary immigrants, they share with immigrants a lack of protection by the US Constitution and a vulnerability to indefinite detention. Immigrant detention today is part of a carceral landscape in the United States that includes more than 2 million citizens behind bars.

Dawn of Immigrant Incarceration

In the mid-1880s, scores of Chinese migrants were sentenced to six months hard labor at McNeil Island prison off the coast of Washington. After serving their sentences, these Chinese remained in prison when Canada refused to accept them back. The indefinite detention of the Chinese was the first time the government was faced with the contradiction between the still emerging immigration law and the demands of justice. This episode also reveals that the standard narrative that immigration was not criminalized until 1929 is wrong. Further investigation into this prison’s population from 1880 to 1940 uncovered a world of immigrant incarceration, largely based on drug and alcohol offenses. The early history of McNeil Island prison is evidence that the criminalization of immigrants and migration began long before our present era of mass immigrant detention.

Crisis Lawyering in a Lawless Space

This chapter tells the story of the initial legal intervention by a small bold group of radical lawyers at the Center for Constitutional Rights (CCR) and elsewhere to challenge the George W. Bush administration’s policy of indefinite detention and torture in Guantánamo in the immediate aftermath of September 11. That initial legal challenge was undertaken on pure principle but seemed initially futile given the president’s war on terror posturing and categorical denial of the applicability of law. Yet in part through CCR’s mobilization of hundreds of other lawyers and human rights advocates, just six years later there developed a legal and political consensus that the prison should be closed. While recognizing the courage and creativity of crisis lawyering during a historic period, this chapter underscores that the authoritarian legal architecture in Guantánamo, like all forms of repressive state power, is resilient and can render claims of rights by the disfavored unenforceable.

Health professionals confront the intentional harms of indefinite immigration detention: an Australian overview, evaluation of alternative responses and proposed strategy

Purpose Indefinite immigration detention causes well-documented harms to mental health, and international condemnation and resistance leave it undisrupted. Health care is non-independent from immigration control, compromising clinical ethics. Attempts to establish protected, independent clinical review and subvert the system via advocacy and political engagement have had limited success. The purpose of this study is to examine the following: how indefinite detention for deterrence (exemplified by Australia) injures asylum-seekers; how international legal authorities confirm Australia’s cruel, inhuman and degrading treatment; how detention compromises health-care ethics and hurts health professionals; to weigh arguments for and against boycotting immigration detention; and to discover how health professionals might address these harms, achieving significant change. Design/methodology/approach Secondary data analyses and ethical argumentation were employed. Findings Australian Governments fully understand and accept policy-based injuries. They purposefully dispense cruel, inhuman and degrading treatment and intend suffering that causes measurable harms for arriving asylum-seekers exercising their right under Australian law. Health professionals are ethically conflicted, not wanting to abandon patients yet constrained. Indefinite detention prevents them from alleviating sufferings and invites collusion, potentially strengthening harms; thwarts scientific inquiry and evidence-based interventions; and endangers their health whether they resist, leave or remain. Governments have primary responsibility for detained asylum-seekers’ health care. Health professional organisations should negotiate the minimum requirements for their members’ participation to ensure independence, and prevent conflicts of interest and inadvertent collaboration with and enabling systemic harms. Originality/value Australia’s aggressive approach may become normalised, without its illegality being determined. Health professional colleges uniting over conditions of participation would foreground ethics and pressure governments internationally over this contagious and inexcusable policy.