In a fascinating working paper, Michael Flynn tackles the question that is at the heart of much of modern immigration law enforcement throughout the world: why do governments rely so heavily on detention. Michael Flynn, How and Why Immigration Detention Crossed the Globe (April 2014). In an important twist on the still small body of research on immigration detention, however, he turns his attention to destination countries’ use of detention sites outside their territorial boundaries.
The founder of the Geneva-based Global Detention Project, Flynn is a longtime observer of immigration law enforcement and his writings consistently display an impressive command of immigration detention. This article is no exception.
Rather than focus on how many migrants various countries detain, Flynn hones in on why countries use detention as a means of enforcing immigration law in the first place. He places much of the blame on the wealthy countries that migrants are trying to reach—so-called destination countries. These countries, he argues, don’t just use immigration detention themselves, as I frequently chronicle on crImmigration.com and in my academic articles; they export immigration detention policies too.
The United States, for example, inaugurated the use of offshore detention in the late 1800s when it used Ellis Island as the country’s first detention site. Id. at 5. Flynn could have added the United States’ notorious reliance on Angel Island in San Francisco Bay where many Chinese migrants were held during the twentieth century, or, as Stephanie Silverman has described, the United Kingdom’s use of the Isle of Man during World War I.
In the modern era, the United States has led the way detaining migrants outside its territorial boundaries. Before Guantánamo Bay, Cuba became famous as the holding area for “enemy combatants,” it was used as “one of the world’s first offshore immigration detention facilities.” Id. at 6. Even today it is still using to house migrants. For a time during the early 1980s the United States Coast Guard even forced Haitian migrants to remain on Coast Guard ships while their asylum claims were processed. Courts allowed these procedures to go on, Flynn writes, and, perhaps not surprisingly, only a handful of claims were granted. Id. at 6-7.
The United States has continued using offshore immigration law enforcement practices, including detention, since then. One of the most interesting examples he provided occurred in 2002 when a U.S. Navy vessel intercepted an Ecuadorian ship off the coast of Guatemala and towed it to México. The 270 or so migrants onboard were quickly deported and the five alleged smugglers were questioned by INS officials, advised of their rights under the U.S. Constitution, and then “deported” to the United States. As an immigration official told Flynn at the time, “Mexico would be the country that deported [the crew], and if they choose to deport them by way of the United States, where the plane has a layover, what can we do about it?” Id. at 13.
Despite my own special concern with the United States, it’s not the only country that uses offshore immigration detention. Indeed, that’s Flynn’s point. Australia’s “Pacific Solution,” through which it funds detention sites on the island nations of Papua New Guinea and Nauru, has been widely covered—and widely criticized. Problems at these locations were made vividly clear earlier this year when locals killed one asylum seeker held at the Papua New Guinea facility after significant unrest at the site. Id. at 18-19.
Meanwhile, the European Union has helped fund immigration detention sites outside the EU and made unauthorized entry into the EU more difficult, thus forcing onto countries through which migrants would normally simply pass through—so-called transit countries—the difficult job of dealing with these migrants. Id. at 20-21. Spain went so far as to aid Mauritania’s opening of its detention center through its international development agency. Id. at 22.
Flynn notes that this trend isn’t coincidental. The United States pioneered offshore immigration detention, only to influence Australia and the EU. Australian legislative records, he explains, “reveal that officials in that country specifically cited the case of Guantanamo when proposing the ‘Pacific Solution’.” Id. at 15. The EU, in turn, has been influenced by the United States and Australia. Id. at 23.
And all have pressured or enticed poorer countries to go along with their plans. The EU’s fortification of its external border has forced countries that neighbor it to shoulder more of the costs associated with migrants stuck in a place they don’t want to be, for example. Efforts to shut down a traditional transit route through Morocco, meanwhile, pushed more migration into West Africa. At other times, wealthy countries have simply dangled financial assistance to poorer countries if they go along with detention plans. Like Spain, Italy helped Tunisia build a detention facility. Id. at 24.
To be sure, some poorer, transit countries have been willing participants. During the waning days of his rule, former Libyan dictator Muammar Gaddafi, as Flynn reminds us, played to European fears of dark-skinned migrants when he warned that, without him, Libya could not stop the millions of black Africans trying to get into Europe. “Europe,” he reportedly said, “might no longer be European.” Id. at 26.
Whether willing or not, many transit countries simply don’t have the resources—sometimes even the interest—to accommodate migrants. The U.S. Catholic Conference of Bishops, Flynn writes, “issued a scathing press release decrying U.S. [migrant] interdiction activities” in Central America after its representatives visited a prison in Honduras in which migrants detained as part of a U.S.-led initiative were housed under what the religious group described as “substandard conditions.” Id. at 12. Recent violence in Papua New Guinea suggests that locals sometimes fear or despise detainees. At other times, destination countries rely on governments such as Gaddafi’s with little regard to basic human dignity.
These incidents ought to lead to skepticism about the West’s attempts to push immigration detention offshore. Conditions, as Flynn expertly describes, have often proven to be rudimentary at best and deadly at worst. In addition, access by advocates and researchers is much more difficult when migrants are held thousands of miles away in a different country. Sometimes this is a result of distance alone. Other times it’s a result of a directive from destination countries, as when the “Papuan foreign ministry…admitted that the Australian government had asked for all access to the refugees be refused on the excuse that their identity had to be protected.” Reporters Without Borders, Papua-New Guinea: 2003 Annual Report (May 2, 2003).
For all the problems that plague immigration detention within the United States and other destination countries, off-shore detention raises additional concerns. Flynn’s work sheds needed light on what’s happening throughout the world and for that all of us who study immigration detention are indebted.
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