Detention and immigration: Practices, crimmigration, and norms

Detention and immigration: Practices, crimmigration, and norms Abstract A great deal has been written in the past years about the process of institutionally integrating international migration into security frameworks that employ and induce control, policing, and defence—i.e. the securitization of migration. The objective of this article is to complement these studies by focusing on the processes that contribute to the continuity of a securitized understanding of international migration. I suggest that the practice of detaining migrants in detention centres plays an important role in how the securitization of migration gets perpetuated as the dominant lens through which the international movement of people is understood. In studying the securitization of migration in Canada since the 1990s, I examine three processes: (1) that a mimetic process from criminal law to immigration law was instrumental in linking migration and security; (2) that practices and norms, especially the adjudication norms, were simultaneously at play in casting security as the dominant lens through which international migration is understood; and (3) that the practices of detaining migrants in centres resembling carceral facilities has helped to ‘lock in’ an understanding of migration as a security issue. 1. Introduction As Gallya Lavav, Anthony Messina and Joseph Vasquez (2014) have pointed out in a recent issue of Migration Studies, a great deal has been written in contemporary political studies about the process of institutionally integrating international migration into security frameworks that employ and induce control, policing, and defence—i.e. what scholars refer to as the securitization of migration (Bourbeau 2011; Chebel d’Appollonia 2012; Messina 2014). Much of the literature has focused on who are the main investigators of the securitization (e.g. politicians, media, security professionals, far-rights movements) or on what are the consequences of the securitization of migration (e.g. for the migrants and/or the host society) (Hampshire 2011; Tsoukala 2011; Zuberi and Taylor 2017). At the same time, several scholars have underscored the interconnection between the securitization of migration and human rights considerations, and the negative consequences for migrants of the securitization of migration (Givens et al. 2008; Karyotis and Patrikios 2010; Koser 2011; Luedtke 2011; White 2011). Despite being significant contributions to the literature, these studies are relatively silent on the process by which the securitization of migration gets solidified and reproduced over time. This is not an oversight; they are asking a different set of questions. As such, the objective of this article is to complement these studies by focusing on the processes that contribute to the continuity of a securitized understanding of international migration. I suggest that the practice of detaining migrants in detention centres plays an important role in how the securitization of migration gets perpetuated as the dominant lens through which the international movement of people is understood. For the purpose of this article I concur with the largely accepted definition of practices as ‘socially meaningful patterns of action, which, in being performed more or less competently, simultaneously embody, act out, and possible reify background knowledge and discourse in and on the material world’ (Adler and Pouliot 2011: 4).1 In studying the securitization of migration in Canada since the 1990s, I examine three mechanisms: (1) that a mimetic process from criminal law to immigration law was instrumental in linking migration and security; (2) that practices and norms, especially the adjudication norms, were simultaneously at play in casting security as the dominant lens through which international migration is understood; and (3) that the practices of detaining migrants in centres resembling carceral facilities has helped to ‘lock in’ an understanding of migration as a security issue in Canada. This article is divided into two main sections. Section 2 introduces the reader to the importance of mimesis, contiguity, and lockability in our study of the securitization of migration. This detour is important in explaining why detaining migrants in detention centres is crucial but also why it will likely be a growing feature of migration policies in several liberal democracies. Section 3 illustrates the preceding set of arguments through an analysis of migrant detention centres in Canada. 2. Mimesis, contiguity, and lockability In the next few pages, I identify three mechanisms through which the practices of detaining migrants in detention centres partake in the securitization of migration, namely mimesis, contiguity, and lockability. Practices of detaining migrants participate in and arise from mimesis.2 Individuals, societies, and organizations model their practices on others’ practices, especially when facing uncertainty. This is not to say that a society blindly copies others’ practices. This is not mirrored imitation. Rather, mimesis refers to a much deeper mechanism than imitation as it implicates importing patterns and logics and internalising them to make them one’s own. Agents tailor other practices to their own particular context, culture, and historical-political conditions. Yet, mimesis is not synonymous with cloning. As mimesis often expresses itself in scalar terms, asymmetrical mimesis exists. The mimesis of practices expresses itself across societies. Faced with new situations or critical junctures that necessitate decision-making, societies will try to determine how other societies have responded to similar concerns. These societies may then use that established response as inspiration for their own decision-making. Mimesis can also take place across issues within a society. Indeed, practices initially developed in one area (e.g. the fight against crime) can be applied in another area (e.g. immigration). The second mechanism is contiguity, which is often contrasted with continuum, subsumption, and sequentiality. One of the first philosophers to have explored these issues is Aristotle, who emphasizes the need to define the terms ‘in contact’, ‘in succession’, ‘contiguous’, and ‘continuous’. For Aristotle things are ‘continuous if their extremities are one, in contact if their extremities are together, and in succession if there is nothing of their own kind intermediate between them’ (Aristotle 1980: VI 1, 231a). As such, continuum refers to degrees of the same entity/concept as in thin and thick rationality, or thin and thick security (Ferejohn 1991; Waldron 2006). Thus understood, it makes very little sense to think about the relationship between practices, discourses, and norms in continuous terms. Practices, discourses and norms are not degrees of a same entity represented on a continuum. Subsumption refers to the argument that practices are ontologically prior to all other social actions, whether these actions are rationality-based (i.e. this is the ‘rational’ thing to do) or norm-based (i.e. this is the good thing to do). For Emanuel Adler and Vincent Pouliot (2011: 10) ‘practices are the ontological entity that cut across paradigms under different names but with a related substance’. The problem with a subsumption type of argument is that practices, rationality, and norms are not necessarily competing logics; practice is not the element constituting all aspects of our social world, but an element of it (Autesserre 2014; McNamara 2015). Sequentiality between practices and norms is another possibility: a practice initiates a social process while normative commitment legitimizes the decision. Alternatively, we might pursue the opposite approach and propose that discourses are prior to and more telling than ‘behind the scenes’ and after-the-fact practices. However, asking questions for which logic has primacy locks the scholarship into a sequential analysis. Arguing for the sequentiality between these ideas requires that a scholar be able to hold constant throughout his or her investigation several distinct components of the ongoing and complex processes of world politics. The social world we live in is a world of feedback in which the feasibility of postulating such a clear demarcation is under fire. I posit that the question we really need to ask is not ‘Which logic comes first?’, but rather ‘How do norms that relate to migration and practices of detaining migrants reinforce each other?’ Building on the aforementioned distinction and on Aristotle’s concept of haptomenon (often translated as contiguum), the philosopher Gottfried W. Leibniz has been one of the most explicit advocates of thinking about contiguity. For Leibniz, ‘contiguous things are those between which there is no distance’ (Leibniz 1672: A iii, 4, 19). Entities are discrete and their boundaries are distinct, but the distance between them is nil; they are in contact. In Pacidius to Philalethes: A First Philosophy of Motion—a dialogue written at the end of Leibniz’s second trip to England—one of Leibniz’s interlocutors, Theophilus, remarks: ‘I remember that Aristotle, too, distinguishes the contiguous from the continuous in such way that those things are continuous whose extrema are one, and contiguous whose extrema are together’ (Leibniz 1672: 149). A contiguity relationship emphasizes distinctiveness, connectedness, interrelations, and proximity. A focus on contiguity understands the relationship between practices and norms as complementary and permits research on their simultaneity and their multi-directionality. The third mechanism is lockability. I argue that we need to focus on critical junctures and path dependence to make sense, in empirical terms, of continuity of the practices of detaining migrants in detention centres. Commonly defined as ‘choice points that put countries (or other units) onto paths of development that track certain outcomes—as opposed to others—and that cannot be easily broken or reversed’ (Mahoney 2001: 7),3 critical junctures helps us to visualize the Y-junctures in which agents/societies are sometimes found and to trace the paths that agents/societies follow from the junctures. It is the combination between repetitiveness, critical junctures, and the ensuing path-dependent lockability that ensures continuity. Combining these helps us to make sense of (a) why change from one path to another appears difficult (one must either go back to the Y node or jump onto another path; Y-junctures multiply with the passage of time), (b) how societies come to accept their current path as the commonsensical one, expressing little hope or intention of changing to another path, and (c) how a given path gets established as part of a society’s collective identity—as a defining feature of what that society is about—and, ultimately how a particular understanding of an issue is eventually ‘locked in’. 3. Detention and migration in Canada Passionate debates about the link between immigration and security concerns have taken place in Canada over the past few decades. The issue of securitized migration, especially the importance of migrant detention centres, has thus received extensive analysis (Bloch and Schuster 2005, Bosworth 2014, Cornelisse 2010, Doty 2017, Hiemstra 2016, Jacobson and Durden 2014, Mountz et al. 2013, Walters 2002, Wilsher 2011, Wong 2015). Swathes of literature have focused their attention of the migration-security-citizenship triangle in a post-Cold War era, underscoring the roles of political agents, media agents, and public opinion (Bourbeau 2013b, Bradimore and Bauder 2011, Hier and Greenberg 2002). Studies about the relationship between securitised migration and identity have flourished in the recent past, as has the role and importance of non-governmental organisations and advocates in contesting an understanding of migration through security lens (Bloemraad 2006, Bourbeau 2013a, Cleveland et al. 2013, Mountz 2010, Pratt 2005). The legal aspects and the consequences of the linking migration and security are well studied; scholars have underscored its impact on the rights of the migrants as well as on the Canadian legal system in general (Crépeau and Nakache 2006, Dauvergne 2008). Migration was first listed as a security concern in an official Foreign Affairs Department’s document in the early 1990s. Whereas the previous official document, Competitiveness and Security: Directions for Canada’s International Relations, published in 1985, was silent on the issue of migration, the document Foreign Policy Themes and Priorities, issued in 1991, lists migration as a security concern (DEA 1985, 1991). The inclusion of migration in the realm of security was made with caution: Canada needed to address transnational security threats such as irregular migration, drug trafficking and terrorism, the document declares. This position was reiterated in the 1994 White Paper on Defense and in 1995 Canada in the World (DND 1994; DFAIT 1995). In the same lineage, the Canadian government has revised its immigration laws several times from the late 1980s to the early 1990s. In January 1989, Bills C-55 and C-84 came into effect, revising the refugee determination system, allowing Canadian authorities to exclude a refugee claimant from the process if they had passed through a ‘safe third country’, increasing the penalties for smuggling refugees and levying heavy fines for transporting undocumented aliens. In 1992, Bill C-86 came into effect, introducing revisions, mostly restrictive, to the refugee determination system. In 1995, Bill C-44 introduces the provision of ‘danger to the public’ into the Immigration Act by which an individual loses the right to appeal the removal order if the Minister of Citizenship and Immigration is of the opinion that the individual constitutes a ‘danger to the public’.4 At the same time, several political agents have repeatedly presented migration as a security concern for Canada. For example, Foreign Affairs Minister Barbara McDougall declared as early as 1991 that in the coming months and years ‘Canada will be more aggressive and active in tackling transnational threats to security such as […] irregular migration’ (McDougall 1991). This position was reiterated on several occasions, including in 1992 when she stated that ‘mass movement of populations … have changed forever the way our immigration officers work. The work they do is crucial to the well-being and long-term security of all Canadians’ (McDougall 1992). Alongside this institutional, legal, and discursive social construction of migration as a security issue, the practice of detaining migrants in detention centres emerged as a powerful tool. There are three reasons why immigration officers may order the detention of a migrant (or a permanent resident): because the individual is (1) deemed a security threat or a danger to the public, (2) unlikely to appear for examination, hearing or removal (flight risk), or (3) presenting identification documents that do not satisfy the officer.5 Canadian detention centres, officially called Immigration Holding Centres, are run as medium-security prisons: razor wires top the fences, personal effects are confiscated on arrival, security guards and surveillance cameras are omnipresent, men and women are held in separate wings, regular searches with metal detectors are carried out, wake-up times are regulated by inflexible rules, solitary confinements rooms are used for troubled (or suicidal) detainees, detainees are handcuffed during transportation, and hospitalized detainees are generally chained to their hospital beds (Pratt 2005; Cleveland et al. 2012). Detaining migrants in medium-security prisons is illustrative of mimesis across issues. Practices developed in the area of criminal law (imprisonment) were transposed to an issue that falls under the scope of administrative law (immigration). This mimetic process is telling since criminal and immigration law have historically been quite separate. Yet an increasing number of scholars have labelled several Western governments’ practices of eliding criminal law and immigration law as crimmigration (Stumpf 2006; Legomsky 2007; Zedner 2009; Bosworth 2014). This is not simply a banal and circumstantial imitation of criminal practices by immigration law. The logics and practices of criminal law have been internalized into immigration law. Relying on measures commonly associated with criminal law enforcement for immigration law infractions, detaining migrants in centres that are run as medium-security prisons, blurring the distinctions between legal and illegal migrants, and tilting public opinion to view immigration as occurring mostly through informal and criminal channels (when, in fact, the opposite is true) are all vectors of mimesis. As Stephen Legomsky remarks, rather than speaking of the importation of the criminal justice model into the immigration/civil justice model, a more ‘fitting observation would be that immigration law has been absorbing the theories, methods, perceptions, and priorities of the criminal enforcement’ (Legomsky 2007: 682, emphasis added). In the same lineage a leading scholar of Canadian refugee law, Catherine Dauvergne, has recently spoken about criminalization within refugee law. Dauvergne argues that the premise of the criminality of asylum seekers, which was once almost non-existent in refugee law, has now ‘penetrated the doctrine of refugee law itself’ (Dauvergne 2013: 77). The linkage of refugee to criminal, once highly contested, has become the normal state of affairs or the commonsensical way to think about asylum seekers. Refugee law ‘increasingly presumes guilt’, she concludes and deplores (Dauvergne 2013: 82). In part to facilitate and ease the security practices of detaining migrants arriving by boats on Canada’s shores the government of Canada passed in 2012 Bill C-31, an act amending the Immigration and Refugee Protection Act of 2002 (CIC 2002). Among other things, Bill C-31 gives the Minister of Public Safety discretionary power to order the arrival in Canada of a group of persons to be designated as an ‘irregular arrival’. A migrant who is part of an ‘irregular arrival’ automatically becomes a ‘designated foreign national’ and Bill C-31 specifies that detention of a ‘designated foreign national’ is mandatory for those who are 16 years of age or older.6 Under Bill C-31 detention continues if the Minister is of the opinion that the identity of the ‘designated foreign national’ has not been established.7 This opened the door to prolonged detention as, even if the identity of a migrant has been established, it might not be to the satisfaction of the Minister. It is also important to note that immigration detention is not formally a punishment; it does not require a criminal conviction. In fact, it is precisely because detention is not for a criminal purpose but for an immigration purpose that the Federal Court of Canada has found indefinite detention constitutionally valid and thus possible (Dauvergne 2008). As paradoxical as it may sound, imprisoning migrants in detention centres is a non-punitive practice made possible through administrative and executive power. The detention of migrants, exemplifying ‘crimmigration’, is a repetitive course of action geared by convenience and perceived efficiency in delivering outcomes (Aliverti 2012). Even though the detention is not punitive, the practice of imprisoning migrants in detention centres powerfully suggests that asylum seekers are criminals from whom it is the responsibility of the Canadian government to protect its citizens. It thus legitimizes, crystallizes, and ensures a high degree of continuity in thinking about migration through the lens of security. Yet, while criminal enforcement practices have been internalized into immigration law, other fundamental elements of the criminal justice model have resolutely remained within the realm of criminal law. Chief among them are the adjudication norms. Well-recognized and rather strict procedural safeguards of criminal law serve important purposes in the criminal justice system, including fair procedures, a substantive proportion between the crime and the punishment, and the availability of judicial review. Since the consequences of criminal convictions are potentially severe, these norms have been built into Canada’s criminal laws to ensure, among other things, that compromising personal liberty is a last resort. This relies on the principle that, as the maxim says, it is better to acquit 10 guilty persons than to convict one innocent person. Severing the criminal enforcement model from the corresponding adjudication norms exposes the migrants to harsh consequences without the necessary procedural safeguards. For example, mandatory detention for ‘designated foreign nationals’ not only compromises the personal liberty of these individuals but is also orchestrated and administrated without the norms and procedural safeguards commonly found in most liberal democracies (Wilsher 2011). Another example is the practice of deportation of asylum seekers. Deportation is not legally recognized as a punishment but can nonetheless arguably be considered one of the harsher consequences for asylum seekers and a cruel and disproportionate penalty. Deporting asylum seekers is often an executive decision and not a formal judiciary one that took place in a court of law with all the associated procedural safeguards and norms (Bloch and Schuster 2005; Legomsky 2007; Kanstroom 2012). What this situation illustrates is the ineffectiveness of the subsumption and the ontological priority approach to the relationship between practices and norms. The ontological priority argument is not well equipped to explain why so many criminal procedures and accustomed set of actions failed to be transposed to the realm of immigration justice. If we hold that practices inform all social actions, then how can we account for partial mimesis? Practices and norms (in this case, the non-transfer of adjudication norms) were essential in the construction of international migration as a security concern for Canada. I contend that, by accepting the contiguity of practices and norms (rather than perceiving them as hierarchically ordered), we can arrive at a more fruitful understanding. What is crucial is to underscore the complex and multifaceted relationship between practices and norms. Focusing exclusively on a single logic (e.g. either the logic of practicality or the logic of appropriateness) yields an incomplete snapshot of the process of understanding migration as a security issue in Canada. Practices, norms, and discourses are carried out side-by-side, to greater and lesser degrees, in the legal, institutional, political, discursive, ‘practical’ and social construction of international migration as a security concern. The provision of ‘designated foreign nationals’ had another important consequence. Although there is no durational limit to the detention of immigrants in Canada, it has created a distinct regime of detention for the review of the reasons for continued detention. The new regime significantly differs from existing detention review regimes for permanent residents, foreign nationals, and persons named in security certificates—i.e. every other asylum seeker and migrant. While the existing detention review regime provides that the reasons for continued detention be subjected to a mandatory review by the Immigration Division within two days of the start of detention, at least once during the seven days following the two-day review, and at least once during every 30-day period thereafter,8 the new regime stipulates that the reasons for continued detention of a ‘designated foreign nationals’ be subjected to a mandatory review within 14 days of the start of detention and every six months following the conclusion of the previous review—and the review may not be conducted before the six months have expired. This situation supports, rather than detracts from, my argument that practices and norms (and even discourses) should be understood as contiguous, and not as continuous or hierarchical. The creation of these two regimes of review for continued detention arose simultaneously with the institutionalization of detention practices and the neglect of adjudication norms; together, these factors played a role in casting security as the dominant lens through which international migration is understood. In addition, part of the reasons why the practices of detaining migrants in detention centres plays an important role in how the securitization of migration gets perpetuated as the dominant lens through which the international movement of people is understood is that it ensures that an understanding of migration as a security issue is ‘locked in’ as the established and commonsensical way to ‘deal with’ migration. Consider the so-called ‘Chinese summer’ exogenous shock. During the late summer/early fall of 1999, Canadian authorities intercepted four decrepit boats off Canada’s western shores over the course of 11 weeks. Crammed into the stinking boats were 599 Chinese asylum seekers and would-be immigrants. The ‘passengers’ were packed so tightly that they could barely sit down. After several days at sea, dehydration and malnourishment were rampant. This event resulted in a groundswell of emotion across the country, provoked significant media coverage for a few months, and prompted debate over state sovereignty, the government’s capacity to control its borders, citizenship, collective identity, and the nation’s failing immigration and refugee policies. The event of the ‘Chinese summer’ could have easily induced bold and inflammatory rhetoric by key political agents to the effect that these incidents were threatening Canada’s security and social cohesion. In fact, justifying the detention of asylum seekers and would-be immigrants in terms of a ‘much-needed’ security practice no longer seems necessary. After all, the institutional, legal, and discursive foundations of an understanding of migration as a security issue were already in place from the early 1990s. There was no need to seek to justify the rationale behind detaining migrants—i.e. migration has to be securitized—since the securitizing process had been initiated and created long ago. The need was to sediment the securitization of migration up to a point where a key component of the securitizing process would be seen as commonsensical. A policy that would have appeared extraordinary or exceptional a decade or two before was now hardly debated in the public arena and only slightly so in Parliament. Instead of attempting to discursively defend and legitimize the detention of migrants, security practices were quietly put into place to deal with the exogenous shock of the ‘Chinese summer’. Canadian authorities transformed parts of the Department of National Defense’s military base of Esquimalt near Victoria into an improvised detention centre. All the passengers of the crumbling boats—465 men and women and 134 children—were sent to the military base and detained within a barbed wire protected detention centre, which was permanently watched over by guard dogs, police/military officers, and camera surveillance. While the majority of the children were released into the care of British Columbia’s Ministry of Children and Family Development9 , the majority of the adults were transferred into a prison in Prince George, a small city about a 12 hours’ drive north of Vancouver (a location presumably chosen for rendering advocacy and legal services challenging, and for escaping media scrutiny). Whereas refugee claim hearings generally take place in chambers of the nearest Immigration and Refugee Board office, the hearings for these individuals were held in provisional tribunals established within the prison. Needless to say, this was a powerful symbol of the extent to which migration is securitized. While we observe a debate between the Minister of Foreign Affairs and the Minister of Citizenship and Immigration to inscribe meaning to the event (Axworthy 1999, 2000; Caplan 1999a, b), the sedimentation of security practices was already well underway. In other words, despite the discursive dispute to define Canada’s reaction to the event (i.e. whether this case exemplifies the need to adopt a human security approach or the need to send a clear message to the abusers of the immigration system), the security practice of detaining migrants was being implemented and reinforced. The security practice of detaining migrants upon their arrival did crystallize the perception that migration and refugee movements needed to be treated as a security concern for Canada. Such an understanding of the movement of people would prove to be difficult to dislodge. For one, the prevalence and acceptability of detaining migrants in correctional facilities as a security practice gained new heights in the early 2000s. The detention of migrants to manage refugee and migration flows saw an increase of more than 100% between 1996 and 2003; the number of migrant-detainees rose from 6,400 in 1996 to more than 13,400 in 2003 (CIC 2004). In addition, this practice became the commonsensical course of action for Canada when faced with the arrival of a boatload of asylum seekers and would-be immigrants. For example, on 13 August 2010, the MV Sun Sea, a rusty Thai-flagged cargo ship, was intercepted off the coast of British Columbia by the Canadian authorities and then docked at the Canadian Forces Base Esquimalt, Canada’s Pacific Coast naval base. Jam-packed into the ramshackle boat were 492 Sri Lankan asylum seekers—380 men, 63 women, and 49 children, including six unaccompanied children. This was the first case since the ‘Chinese summer’ of a large contingent of migrants attempting to enter Canada by ship10—all of them were immediately detained. The men were put in a high-security prison, the women without children in another prison, and the mothers, with their children, in a youth custody facility. The adults without children were detained for about six months while the children and their mothers were detained for up to seven months (Cleveland et al. 2012). Two confidential memoranda released under the Canadian Access to Information Act indicate the extent to which this practice was not a spontaneous reaction to an isolated event but rather a systematic, pre-programmed, and self-regulated course of action. The first memorandum is the Canadian Border Services Agency (CBSA) operational plan for how to deal with the event (CBSA 2010a). The plan details the roles of partner agencies and departments at four ‘stages’: at sea, upon arrival, post-arrival, and final dispositions, leaving little doubt that Canadian authorities had been planning for such an event for quite some time. In addition, the memorandum reveals that two dry-run exercises had been completed prior to the arrival of the MV Sun Sea. The operational plan, which involved high-level Canadian authorities (including the Cabinet Committee on Foreign Affairs and Security, a Deputy Minister Ad Hoc Committee, and the Assistant Deputy Minister National Security Committee) lists ‘detentions’ as CBSA’s role upon arrival alongside other routine actions such as ‘rummage vessel’, ‘collect evidence’, and make ‘admissibility determinations’ (CBSA 2010a: 6). The second memorandum is a directive from the CBSA National Headquarters to the Pacific Region bureau ‘concerning the detention reviews in the case of the Sun Sea migrants’. The memorandum not only reminds the Pacific Region bureau that the government policy is to continue to argue for detention in cases where the migrants have not provided identity documents but also—and more importantly in the context of this study—instructs the regional bureau that in cases where ‘identity is established to the satisfaction of the CBSA, the CBSA is to argue for detention on any other applicable ground’. The memorandum acknowledges that in ‘some cases, there may be no evidence to sustain an argument for detention’. Yet, the Pacific Region bureau should know that they have the ‘support of senior management within the CBSA’ in making these arguments (CBSA 2010b: 1–2). What these confidential memoranda make clear is that detaining migrants has come to be seen as a security practice available to the authorities in their aim of controlling migration. This security practice is embedded in the state’s regulations and operational plans and, as such, fully participates in the social construction of international migration as a security issue in Canada. The establishment of this practice, which succeeded in helping to generate a sense of insecurity, fear, and danger to which migrant detention was the preferred solution, was essential in ensuring a gradual intensification of mechanisms of security in Canada. The practice of detaining migrants in prison has become accepted and embedded in the process of securitizing migration in Canada to such an extent that it has become invisible. Partly through the ‘Chinese summer’ and the ‘MV Sun Sea’ events, an understanding of international migration as a security issue has been ‘locked in’ in Canada. Recent litigation on long-term detention practices in Canada also illustrates that detention practices have become commonsensical, nearly unquestionable, in the immigration law domain. The case of Kashif Ali, an immigration detainee who has been locked up in maximum-security jail for more than seven years, springs to mind. While the average length of detention is about three weeks, Ali’s case has been dragging for years. Although neither charged nor convicted of a crime, a recent report compares Ali’s treatment to the treatment of inmates awaiting trial or serving a criminal sentence. Ali is not alone. In the summer of 2017, the newspaper Toronto Star published a special investigation into immigration detention in Canada in which at least one similar case was discussed—Ebrahim Toure has been detained for more than four and a half years. These might be idiosyncratic cases of long-term detention. But what is interesting in the context of this article is the exchange between the judge and the government’s lawyer about the acceptable length of detention; it illustrates the extent to which the practice of detaining migrants has become embedded and nearly unquestionable. Superior Court Justice Ian Nordheimer asked a simple but profound question to the government lawyers while examining Ali’s case: How long is too long? Justice Nordheimer summarized the issue succinctly: Either the government thinks it is entitled to detain an immigrant detainee indefinitely or there is a time-limit, maybe a constitutional time-limit. Pressured to respond, the government’s lawyer said that ‘the position that we’re taking is we haven’t reached [the point where detention is indefinite] yet’. This has not satisfied the Judge, who added: ‘If it’s not seven [years], is it 15? 20?’ concluding that it ‘seems to be the government’s position’ that they could detain an immigration detainee ‘literally for the rest of their natural life’ (Kennedy 2017c, b, a). This is a concern shared by the United Nations’ Human Rights Committee, a body comprised of 17 independent international law experts from around the world that monitors implementation of the UN’s International Covenant on Civil and Political Rights by its State parties; in its 2015 report the Committee heavily criticized the Canadian government for its position on the (acceptable) length of immigrant detention. The Committee reported that they were concerned that individuals who enter Canada irregularly ‘may be detained for an unlimited period of time’ and ‘that individuals who are nationals of Designated Countries of Origin are denied an appeal hearing against a rejected refugee claim before the Refugee Appeal Division and are only allowed judicial review before the Federal Court’ (UN 2015: 4–5). The UN’s Committee has called on Canada to ‘ensure that detention is used as a measure of last resort’ and to set ‘a reasonable time limit for detention’ (UN 2015: 5). All in all, evidence suggests that linking migration and security through practices, through norms and through discourses, takes place contiguously, and that the progression from non-securitized migration to securitized migration is not conceptually linear. Rather than observing a sequence from norms to practices (or vice versa), a subsumption of one concept by another, or a continuum of practices and norms, my study reveals that norms and practices occur in juxtaposition, multi-directionally. The emphasis on mimesis, contiguity, and lockability I pursue in this analysis offers a thorough account of the production, reproduction, and endurance of the linkage between migration and security in Canada. The mimesis mechanism highlights the process by which practices developed in one area (criminal law) were applied and, more importantly, internalized in another area (administrative law). The contiguity mechanism underscores that practices, norms, and discourses may co-exist simultaneously. Finally, the lockability mechanism of practices offers an important insight into why, in post-Cold War Canada, it has become difficult to think about international migration as a non-securitized concern. 4. Conclusion This article offers an insightful answer to the question of ‘What is the role of the practices of detaining migrants in the securitization of migration?’ I propose that a focus on practices, mimesis, contiguity, and lockability help us account for this dramatic process of the securitization of international migration. The practice of detaining migrants in detention centres offers a particular view into the global securitization of international migration, not because of its size in comparison to general patterns of incarceration in Canada, nor the ratio of those detained versus the volume of international migration, but because it illustrates a new form of state’s policies to control the movement of people (Fitzgerald et al. 2014, Hollifield et al. 2014, Messina 2014, Peters 2015) and it underscores the commonsensical, taken-for-granted, and routinized features of the securitization of migration. There is very little consensus in the scholarship on migrant detention centres, and this article has opened up a space for understanding this question. Pulling the pieces together, the article untangles the theoretical and empirical aspects of detaining migrants in detention centres. By thinking about the securitization of migration in terms of mimesis, contiguity, and lockability we allow for coexistence and complementarity between the reproduction and transformation processes, and hence open up the possibility of strengthening our understanding of the origin, role, and consequence of the practices of detaining migrants in the securitization of migration. Notes 1. This definition is contested, see among others Hansen (2006), Reckwitz (2002), Ringmar (2014), Schatzki (2001), Bourbeau (2017). 2. Mimesis has been studied from various angles and disciplines, from developmental psychology (Gergely et al. 2002), to economics (Schlag 1998), to evolutionary biology (Dawkins 2006) and anthropology (Girard 1986). 3. See also Capoccia (2015), Fioretos (2011), Mahoney and Thelen (2010). 4. Paragraph 46.01(1)(e), Section 35, Clause 49 of Bill C-44 (1995). 5. Section 55 of the Immigration and Refugee Protection Act 6. Section 20.1(1) and Section 20.1(2) of Clause 10, and Section 56(2) of Clause 24 of Bill C-31 (2012). 7. Section 58(1)(e), Clause 26 of Bill C-31 (2012). 8. Section 57.1(1) and 57.1(2) of the IRPA (2002). For cases of security certificates, the existing detention review regime provides that the reasons for continued detention be subjected to a mandatory review by a Federal Court judge within 48 hours of the start of detention and a mandatory review by a Federal Court judge a least once in the six months following the 48-hour review and subsequently once every six months, section 82.1(1), 82.1(2) and 82.1(3) of IRPA. 9. It should be mentioned that after the release of the majority of the children to the Ministry of Children and Family Development, a small group of about 20 boys remained in detention. Even though the Ministry sought their release, Citizenship and Immigration Canada argued for continuing detention (in total about seven months) on the basis that the boys were suspected of having participated in the smuggling operation. They were eventually released to the Ministry. 10. Except for the Ocean Lady, a decrepit vessel with 76 men from Sri Lanka on board seized on 17 October 2009 by Canadian security officials. All migrants were immediately detained. Acknowledgements I have benefited from discussions I had with colleagues at the Department of Politics and International Studies at the University of Cambridge, and participants at the International Migration Institute 2016 Annual Conference at the University of Oxford, the European Workshop in International Studies-Cardiff, and the British International Studies Association. I also thanks the anonymous reviewers and the editors for their helpful suggestions. Conflict of interest statement. None declared. 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( 2009 ) Security . London : Routledge . Zuberi D. , Taylor A. ( 2017 ) ‘Securing the Urban Core: Policing Poverty and Migration in the Neoliberal City’, in Bourbeau P. (ed.) Handbook on Migration and Security , pp. 144 – 60 . Cheltenham, UK : Edward Elgar Press . Google Scholar CrossRef Search ADS © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Migration Studies Oxford University Press

Detention and immigration: Practices, crimmigration, and norms

Migration Studies , Volume Advance Article – Jan 3, 2018

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Abstract

Abstract A great deal has been written in the past years about the process of institutionally integrating international migration into security frameworks that employ and induce control, policing, and defence—i.e. the securitization of migration. The objective of this article is to complement these studies by focusing on the processes that contribute to the continuity of a securitized understanding of international migration. I suggest that the practice of detaining migrants in detention centres plays an important role in how the securitization of migration gets perpetuated as the dominant lens through which the international movement of people is understood. In studying the securitization of migration in Canada since the 1990s, I examine three processes: (1) that a mimetic process from criminal law to immigration law was instrumental in linking migration and security; (2) that practices and norms, especially the adjudication norms, were simultaneously at play in casting security as the dominant lens through which international migration is understood; and (3) that the practices of detaining migrants in centres resembling carceral facilities has helped to ‘lock in’ an understanding of migration as a security issue. 1. Introduction As Gallya Lavav, Anthony Messina and Joseph Vasquez (2014) have pointed out in a recent issue of Migration Studies, a great deal has been written in contemporary political studies about the process of institutionally integrating international migration into security frameworks that employ and induce control, policing, and defence—i.e. what scholars refer to as the securitization of migration (Bourbeau 2011; Chebel d’Appollonia 2012; Messina 2014). Much of the literature has focused on who are the main investigators of the securitization (e.g. politicians, media, security professionals, far-rights movements) or on what are the consequences of the securitization of migration (e.g. for the migrants and/or the host society) (Hampshire 2011; Tsoukala 2011; Zuberi and Taylor 2017). At the same time, several scholars have underscored the interconnection between the securitization of migration and human rights considerations, and the negative consequences for migrants of the securitization of migration (Givens et al. 2008; Karyotis and Patrikios 2010; Koser 2011; Luedtke 2011; White 2011). Despite being significant contributions to the literature, these studies are relatively silent on the process by which the securitization of migration gets solidified and reproduced over time. This is not an oversight; they are asking a different set of questions. As such, the objective of this article is to complement these studies by focusing on the processes that contribute to the continuity of a securitized understanding of international migration. I suggest that the practice of detaining migrants in detention centres plays an important role in how the securitization of migration gets perpetuated as the dominant lens through which the international movement of people is understood. For the purpose of this article I concur with the largely accepted definition of practices as ‘socially meaningful patterns of action, which, in being performed more or less competently, simultaneously embody, act out, and possible reify background knowledge and discourse in and on the material world’ (Adler and Pouliot 2011: 4).1 In studying the securitization of migration in Canada since the 1990s, I examine three mechanisms: (1) that a mimetic process from criminal law to immigration law was instrumental in linking migration and security; (2) that practices and norms, especially the adjudication norms, were simultaneously at play in casting security as the dominant lens through which international migration is understood; and (3) that the practices of detaining migrants in centres resembling carceral facilities has helped to ‘lock in’ an understanding of migration as a security issue in Canada. This article is divided into two main sections. Section 2 introduces the reader to the importance of mimesis, contiguity, and lockability in our study of the securitization of migration. This detour is important in explaining why detaining migrants in detention centres is crucial but also why it will likely be a growing feature of migration policies in several liberal democracies. Section 3 illustrates the preceding set of arguments through an analysis of migrant detention centres in Canada. 2. Mimesis, contiguity, and lockability In the next few pages, I identify three mechanisms through which the practices of detaining migrants in detention centres partake in the securitization of migration, namely mimesis, contiguity, and lockability. Practices of detaining migrants participate in and arise from mimesis.2 Individuals, societies, and organizations model their practices on others’ practices, especially when facing uncertainty. This is not to say that a society blindly copies others’ practices. This is not mirrored imitation. Rather, mimesis refers to a much deeper mechanism than imitation as it implicates importing patterns and logics and internalising them to make them one’s own. Agents tailor other practices to their own particular context, culture, and historical-political conditions. Yet, mimesis is not synonymous with cloning. As mimesis often expresses itself in scalar terms, asymmetrical mimesis exists. The mimesis of practices expresses itself across societies. Faced with new situations or critical junctures that necessitate decision-making, societies will try to determine how other societies have responded to similar concerns. These societies may then use that established response as inspiration for their own decision-making. Mimesis can also take place across issues within a society. Indeed, practices initially developed in one area (e.g. the fight against crime) can be applied in another area (e.g. immigration). The second mechanism is contiguity, which is often contrasted with continuum, subsumption, and sequentiality. One of the first philosophers to have explored these issues is Aristotle, who emphasizes the need to define the terms ‘in contact’, ‘in succession’, ‘contiguous’, and ‘continuous’. For Aristotle things are ‘continuous if their extremities are one, in contact if their extremities are together, and in succession if there is nothing of their own kind intermediate between them’ (Aristotle 1980: VI 1, 231a). As such, continuum refers to degrees of the same entity/concept as in thin and thick rationality, or thin and thick security (Ferejohn 1991; Waldron 2006). Thus understood, it makes very little sense to think about the relationship between practices, discourses, and norms in continuous terms. Practices, discourses and norms are not degrees of a same entity represented on a continuum. Subsumption refers to the argument that practices are ontologically prior to all other social actions, whether these actions are rationality-based (i.e. this is the ‘rational’ thing to do) or norm-based (i.e. this is the good thing to do). For Emanuel Adler and Vincent Pouliot (2011: 10) ‘practices are the ontological entity that cut across paradigms under different names but with a related substance’. The problem with a subsumption type of argument is that practices, rationality, and norms are not necessarily competing logics; practice is not the element constituting all aspects of our social world, but an element of it (Autesserre 2014; McNamara 2015). Sequentiality between practices and norms is another possibility: a practice initiates a social process while normative commitment legitimizes the decision. Alternatively, we might pursue the opposite approach and propose that discourses are prior to and more telling than ‘behind the scenes’ and after-the-fact practices. However, asking questions for which logic has primacy locks the scholarship into a sequential analysis. Arguing for the sequentiality between these ideas requires that a scholar be able to hold constant throughout his or her investigation several distinct components of the ongoing and complex processes of world politics. The social world we live in is a world of feedback in which the feasibility of postulating such a clear demarcation is under fire. I posit that the question we really need to ask is not ‘Which logic comes first?’, but rather ‘How do norms that relate to migration and practices of detaining migrants reinforce each other?’ Building on the aforementioned distinction and on Aristotle’s concept of haptomenon (often translated as contiguum), the philosopher Gottfried W. Leibniz has been one of the most explicit advocates of thinking about contiguity. For Leibniz, ‘contiguous things are those between which there is no distance’ (Leibniz 1672: A iii, 4, 19). Entities are discrete and their boundaries are distinct, but the distance between them is nil; they are in contact. In Pacidius to Philalethes: A First Philosophy of Motion—a dialogue written at the end of Leibniz’s second trip to England—one of Leibniz’s interlocutors, Theophilus, remarks: ‘I remember that Aristotle, too, distinguishes the contiguous from the continuous in such way that those things are continuous whose extrema are one, and contiguous whose extrema are together’ (Leibniz 1672: 149). A contiguity relationship emphasizes distinctiveness, connectedness, interrelations, and proximity. A focus on contiguity understands the relationship between practices and norms as complementary and permits research on their simultaneity and their multi-directionality. The third mechanism is lockability. I argue that we need to focus on critical junctures and path dependence to make sense, in empirical terms, of continuity of the practices of detaining migrants in detention centres. Commonly defined as ‘choice points that put countries (or other units) onto paths of development that track certain outcomes—as opposed to others—and that cannot be easily broken or reversed’ (Mahoney 2001: 7),3 critical junctures helps us to visualize the Y-junctures in which agents/societies are sometimes found and to trace the paths that agents/societies follow from the junctures. It is the combination between repetitiveness, critical junctures, and the ensuing path-dependent lockability that ensures continuity. Combining these helps us to make sense of (a) why change from one path to another appears difficult (one must either go back to the Y node or jump onto another path; Y-junctures multiply with the passage of time), (b) how societies come to accept their current path as the commonsensical one, expressing little hope or intention of changing to another path, and (c) how a given path gets established as part of a society’s collective identity—as a defining feature of what that society is about—and, ultimately how a particular understanding of an issue is eventually ‘locked in’. 3. Detention and migration in Canada Passionate debates about the link between immigration and security concerns have taken place in Canada over the past few decades. The issue of securitized migration, especially the importance of migrant detention centres, has thus received extensive analysis (Bloch and Schuster 2005, Bosworth 2014, Cornelisse 2010, Doty 2017, Hiemstra 2016, Jacobson and Durden 2014, Mountz et al. 2013, Walters 2002, Wilsher 2011, Wong 2015). Swathes of literature have focused their attention of the migration-security-citizenship triangle in a post-Cold War era, underscoring the roles of political agents, media agents, and public opinion (Bourbeau 2013b, Bradimore and Bauder 2011, Hier and Greenberg 2002). Studies about the relationship between securitised migration and identity have flourished in the recent past, as has the role and importance of non-governmental organisations and advocates in contesting an understanding of migration through security lens (Bloemraad 2006, Bourbeau 2013a, Cleveland et al. 2013, Mountz 2010, Pratt 2005). The legal aspects and the consequences of the linking migration and security are well studied; scholars have underscored its impact on the rights of the migrants as well as on the Canadian legal system in general (Crépeau and Nakache 2006, Dauvergne 2008). Migration was first listed as a security concern in an official Foreign Affairs Department’s document in the early 1990s. Whereas the previous official document, Competitiveness and Security: Directions for Canada’s International Relations, published in 1985, was silent on the issue of migration, the document Foreign Policy Themes and Priorities, issued in 1991, lists migration as a security concern (DEA 1985, 1991). The inclusion of migration in the realm of security was made with caution: Canada needed to address transnational security threats such as irregular migration, drug trafficking and terrorism, the document declares. This position was reiterated in the 1994 White Paper on Defense and in 1995 Canada in the World (DND 1994; DFAIT 1995). In the same lineage, the Canadian government has revised its immigration laws several times from the late 1980s to the early 1990s. In January 1989, Bills C-55 and C-84 came into effect, revising the refugee determination system, allowing Canadian authorities to exclude a refugee claimant from the process if they had passed through a ‘safe third country’, increasing the penalties for smuggling refugees and levying heavy fines for transporting undocumented aliens. In 1992, Bill C-86 came into effect, introducing revisions, mostly restrictive, to the refugee determination system. In 1995, Bill C-44 introduces the provision of ‘danger to the public’ into the Immigration Act by which an individual loses the right to appeal the removal order if the Minister of Citizenship and Immigration is of the opinion that the individual constitutes a ‘danger to the public’.4 At the same time, several political agents have repeatedly presented migration as a security concern for Canada. For example, Foreign Affairs Minister Barbara McDougall declared as early as 1991 that in the coming months and years ‘Canada will be more aggressive and active in tackling transnational threats to security such as […] irregular migration’ (McDougall 1991). This position was reiterated on several occasions, including in 1992 when she stated that ‘mass movement of populations … have changed forever the way our immigration officers work. The work they do is crucial to the well-being and long-term security of all Canadians’ (McDougall 1992). Alongside this institutional, legal, and discursive social construction of migration as a security issue, the practice of detaining migrants in detention centres emerged as a powerful tool. There are three reasons why immigration officers may order the detention of a migrant (or a permanent resident): because the individual is (1) deemed a security threat or a danger to the public, (2) unlikely to appear for examination, hearing or removal (flight risk), or (3) presenting identification documents that do not satisfy the officer.5 Canadian detention centres, officially called Immigration Holding Centres, are run as medium-security prisons: razor wires top the fences, personal effects are confiscated on arrival, security guards and surveillance cameras are omnipresent, men and women are held in separate wings, regular searches with metal detectors are carried out, wake-up times are regulated by inflexible rules, solitary confinements rooms are used for troubled (or suicidal) detainees, detainees are handcuffed during transportation, and hospitalized detainees are generally chained to their hospital beds (Pratt 2005; Cleveland et al. 2012). Detaining migrants in medium-security prisons is illustrative of mimesis across issues. Practices developed in the area of criminal law (imprisonment) were transposed to an issue that falls under the scope of administrative law (immigration). This mimetic process is telling since criminal and immigration law have historically been quite separate. Yet an increasing number of scholars have labelled several Western governments’ practices of eliding criminal law and immigration law as crimmigration (Stumpf 2006; Legomsky 2007; Zedner 2009; Bosworth 2014). This is not simply a banal and circumstantial imitation of criminal practices by immigration law. The logics and practices of criminal law have been internalized into immigration law. Relying on measures commonly associated with criminal law enforcement for immigration law infractions, detaining migrants in centres that are run as medium-security prisons, blurring the distinctions between legal and illegal migrants, and tilting public opinion to view immigration as occurring mostly through informal and criminal channels (when, in fact, the opposite is true) are all vectors of mimesis. As Stephen Legomsky remarks, rather than speaking of the importation of the criminal justice model into the immigration/civil justice model, a more ‘fitting observation would be that immigration law has been absorbing the theories, methods, perceptions, and priorities of the criminal enforcement’ (Legomsky 2007: 682, emphasis added). In the same lineage a leading scholar of Canadian refugee law, Catherine Dauvergne, has recently spoken about criminalization within refugee law. Dauvergne argues that the premise of the criminality of asylum seekers, which was once almost non-existent in refugee law, has now ‘penetrated the doctrine of refugee law itself’ (Dauvergne 2013: 77). The linkage of refugee to criminal, once highly contested, has become the normal state of affairs or the commonsensical way to think about asylum seekers. Refugee law ‘increasingly presumes guilt’, she concludes and deplores (Dauvergne 2013: 82). In part to facilitate and ease the security practices of detaining migrants arriving by boats on Canada’s shores the government of Canada passed in 2012 Bill C-31, an act amending the Immigration and Refugee Protection Act of 2002 (CIC 2002). Among other things, Bill C-31 gives the Minister of Public Safety discretionary power to order the arrival in Canada of a group of persons to be designated as an ‘irregular arrival’. A migrant who is part of an ‘irregular arrival’ automatically becomes a ‘designated foreign national’ and Bill C-31 specifies that detention of a ‘designated foreign national’ is mandatory for those who are 16 years of age or older.6 Under Bill C-31 detention continues if the Minister is of the opinion that the identity of the ‘designated foreign national’ has not been established.7 This opened the door to prolonged detention as, even if the identity of a migrant has been established, it might not be to the satisfaction of the Minister. It is also important to note that immigration detention is not formally a punishment; it does not require a criminal conviction. In fact, it is precisely because detention is not for a criminal purpose but for an immigration purpose that the Federal Court of Canada has found indefinite detention constitutionally valid and thus possible (Dauvergne 2008). As paradoxical as it may sound, imprisoning migrants in detention centres is a non-punitive practice made possible through administrative and executive power. The detention of migrants, exemplifying ‘crimmigration’, is a repetitive course of action geared by convenience and perceived efficiency in delivering outcomes (Aliverti 2012). Even though the detention is not punitive, the practice of imprisoning migrants in detention centres powerfully suggests that asylum seekers are criminals from whom it is the responsibility of the Canadian government to protect its citizens. It thus legitimizes, crystallizes, and ensures a high degree of continuity in thinking about migration through the lens of security. Yet, while criminal enforcement practices have been internalized into immigration law, other fundamental elements of the criminal justice model have resolutely remained within the realm of criminal law. Chief among them are the adjudication norms. Well-recognized and rather strict procedural safeguards of criminal law serve important purposes in the criminal justice system, including fair procedures, a substantive proportion between the crime and the punishment, and the availability of judicial review. Since the consequences of criminal convictions are potentially severe, these norms have been built into Canada’s criminal laws to ensure, among other things, that compromising personal liberty is a last resort. This relies on the principle that, as the maxim says, it is better to acquit 10 guilty persons than to convict one innocent person. Severing the criminal enforcement model from the corresponding adjudication norms exposes the migrants to harsh consequences without the necessary procedural safeguards. For example, mandatory detention for ‘designated foreign nationals’ not only compromises the personal liberty of these individuals but is also orchestrated and administrated without the norms and procedural safeguards commonly found in most liberal democracies (Wilsher 2011). Another example is the practice of deportation of asylum seekers. Deportation is not legally recognized as a punishment but can nonetheless arguably be considered one of the harsher consequences for asylum seekers and a cruel and disproportionate penalty. Deporting asylum seekers is often an executive decision and not a formal judiciary one that took place in a court of law with all the associated procedural safeguards and norms (Bloch and Schuster 2005; Legomsky 2007; Kanstroom 2012). What this situation illustrates is the ineffectiveness of the subsumption and the ontological priority approach to the relationship between practices and norms. The ontological priority argument is not well equipped to explain why so many criminal procedures and accustomed set of actions failed to be transposed to the realm of immigration justice. If we hold that practices inform all social actions, then how can we account for partial mimesis? Practices and norms (in this case, the non-transfer of adjudication norms) were essential in the construction of international migration as a security concern for Canada. I contend that, by accepting the contiguity of practices and norms (rather than perceiving them as hierarchically ordered), we can arrive at a more fruitful understanding. What is crucial is to underscore the complex and multifaceted relationship between practices and norms. Focusing exclusively on a single logic (e.g. either the logic of practicality or the logic of appropriateness) yields an incomplete snapshot of the process of understanding migration as a security issue in Canada. Practices, norms, and discourses are carried out side-by-side, to greater and lesser degrees, in the legal, institutional, political, discursive, ‘practical’ and social construction of international migration as a security concern. The provision of ‘designated foreign nationals’ had another important consequence. Although there is no durational limit to the detention of immigrants in Canada, it has created a distinct regime of detention for the review of the reasons for continued detention. The new regime significantly differs from existing detention review regimes for permanent residents, foreign nationals, and persons named in security certificates—i.e. every other asylum seeker and migrant. While the existing detention review regime provides that the reasons for continued detention be subjected to a mandatory review by the Immigration Division within two days of the start of detention, at least once during the seven days following the two-day review, and at least once during every 30-day period thereafter,8 the new regime stipulates that the reasons for continued detention of a ‘designated foreign nationals’ be subjected to a mandatory review within 14 days of the start of detention and every six months following the conclusion of the previous review—and the review may not be conducted before the six months have expired. This situation supports, rather than detracts from, my argument that practices and norms (and even discourses) should be understood as contiguous, and not as continuous or hierarchical. The creation of these two regimes of review for continued detention arose simultaneously with the institutionalization of detention practices and the neglect of adjudication norms; together, these factors played a role in casting security as the dominant lens through which international migration is understood. In addition, part of the reasons why the practices of detaining migrants in detention centres plays an important role in how the securitization of migration gets perpetuated as the dominant lens through which the international movement of people is understood is that it ensures that an understanding of migration as a security issue is ‘locked in’ as the established and commonsensical way to ‘deal with’ migration. Consider the so-called ‘Chinese summer’ exogenous shock. During the late summer/early fall of 1999, Canadian authorities intercepted four decrepit boats off Canada’s western shores over the course of 11 weeks. Crammed into the stinking boats were 599 Chinese asylum seekers and would-be immigrants. The ‘passengers’ were packed so tightly that they could barely sit down. After several days at sea, dehydration and malnourishment were rampant. This event resulted in a groundswell of emotion across the country, provoked significant media coverage for a few months, and prompted debate over state sovereignty, the government’s capacity to control its borders, citizenship, collective identity, and the nation’s failing immigration and refugee policies. The event of the ‘Chinese summer’ could have easily induced bold and inflammatory rhetoric by key political agents to the effect that these incidents were threatening Canada’s security and social cohesion. In fact, justifying the detention of asylum seekers and would-be immigrants in terms of a ‘much-needed’ security practice no longer seems necessary. After all, the institutional, legal, and discursive foundations of an understanding of migration as a security issue were already in place from the early 1990s. There was no need to seek to justify the rationale behind detaining migrants—i.e. migration has to be securitized—since the securitizing process had been initiated and created long ago. The need was to sediment the securitization of migration up to a point where a key component of the securitizing process would be seen as commonsensical. A policy that would have appeared extraordinary or exceptional a decade or two before was now hardly debated in the public arena and only slightly so in Parliament. Instead of attempting to discursively defend and legitimize the detention of migrants, security practices were quietly put into place to deal with the exogenous shock of the ‘Chinese summer’. Canadian authorities transformed parts of the Department of National Defense’s military base of Esquimalt near Victoria into an improvised detention centre. All the passengers of the crumbling boats—465 men and women and 134 children—were sent to the military base and detained within a barbed wire protected detention centre, which was permanently watched over by guard dogs, police/military officers, and camera surveillance. While the majority of the children were released into the care of British Columbia’s Ministry of Children and Family Development9 , the majority of the adults were transferred into a prison in Prince George, a small city about a 12 hours’ drive north of Vancouver (a location presumably chosen for rendering advocacy and legal services challenging, and for escaping media scrutiny). Whereas refugee claim hearings generally take place in chambers of the nearest Immigration and Refugee Board office, the hearings for these individuals were held in provisional tribunals established within the prison. Needless to say, this was a powerful symbol of the extent to which migration is securitized. While we observe a debate between the Minister of Foreign Affairs and the Minister of Citizenship and Immigration to inscribe meaning to the event (Axworthy 1999, 2000; Caplan 1999a, b), the sedimentation of security practices was already well underway. In other words, despite the discursive dispute to define Canada’s reaction to the event (i.e. whether this case exemplifies the need to adopt a human security approach or the need to send a clear message to the abusers of the immigration system), the security practice of detaining migrants was being implemented and reinforced. The security practice of detaining migrants upon their arrival did crystallize the perception that migration and refugee movements needed to be treated as a security concern for Canada. Such an understanding of the movement of people would prove to be difficult to dislodge. For one, the prevalence and acceptability of detaining migrants in correctional facilities as a security practice gained new heights in the early 2000s. The detention of migrants to manage refugee and migration flows saw an increase of more than 100% between 1996 and 2003; the number of migrant-detainees rose from 6,400 in 1996 to more than 13,400 in 2003 (CIC 2004). In addition, this practice became the commonsensical course of action for Canada when faced with the arrival of a boatload of asylum seekers and would-be immigrants. For example, on 13 August 2010, the MV Sun Sea, a rusty Thai-flagged cargo ship, was intercepted off the coast of British Columbia by the Canadian authorities and then docked at the Canadian Forces Base Esquimalt, Canada’s Pacific Coast naval base. Jam-packed into the ramshackle boat were 492 Sri Lankan asylum seekers—380 men, 63 women, and 49 children, including six unaccompanied children. This was the first case since the ‘Chinese summer’ of a large contingent of migrants attempting to enter Canada by ship10—all of them were immediately detained. The men were put in a high-security prison, the women without children in another prison, and the mothers, with their children, in a youth custody facility. The adults without children were detained for about six months while the children and their mothers were detained for up to seven months (Cleveland et al. 2012). Two confidential memoranda released under the Canadian Access to Information Act indicate the extent to which this practice was not a spontaneous reaction to an isolated event but rather a systematic, pre-programmed, and self-regulated course of action. The first memorandum is the Canadian Border Services Agency (CBSA) operational plan for how to deal with the event (CBSA 2010a). The plan details the roles of partner agencies and departments at four ‘stages’: at sea, upon arrival, post-arrival, and final dispositions, leaving little doubt that Canadian authorities had been planning for such an event for quite some time. In addition, the memorandum reveals that two dry-run exercises had been completed prior to the arrival of the MV Sun Sea. The operational plan, which involved high-level Canadian authorities (including the Cabinet Committee on Foreign Affairs and Security, a Deputy Minister Ad Hoc Committee, and the Assistant Deputy Minister National Security Committee) lists ‘detentions’ as CBSA’s role upon arrival alongside other routine actions such as ‘rummage vessel’, ‘collect evidence’, and make ‘admissibility determinations’ (CBSA 2010a: 6). The second memorandum is a directive from the CBSA National Headquarters to the Pacific Region bureau ‘concerning the detention reviews in the case of the Sun Sea migrants’. The memorandum not only reminds the Pacific Region bureau that the government policy is to continue to argue for detention in cases where the migrants have not provided identity documents but also—and more importantly in the context of this study—instructs the regional bureau that in cases where ‘identity is established to the satisfaction of the CBSA, the CBSA is to argue for detention on any other applicable ground’. The memorandum acknowledges that in ‘some cases, there may be no evidence to sustain an argument for detention’. Yet, the Pacific Region bureau should know that they have the ‘support of senior management within the CBSA’ in making these arguments (CBSA 2010b: 1–2). What these confidential memoranda make clear is that detaining migrants has come to be seen as a security practice available to the authorities in their aim of controlling migration. This security practice is embedded in the state’s regulations and operational plans and, as such, fully participates in the social construction of international migration as a security issue in Canada. The establishment of this practice, which succeeded in helping to generate a sense of insecurity, fear, and danger to which migrant detention was the preferred solution, was essential in ensuring a gradual intensification of mechanisms of security in Canada. The practice of detaining migrants in prison has become accepted and embedded in the process of securitizing migration in Canada to such an extent that it has become invisible. Partly through the ‘Chinese summer’ and the ‘MV Sun Sea’ events, an understanding of international migration as a security issue has been ‘locked in’ in Canada. Recent litigation on long-term detention practices in Canada also illustrates that detention practices have become commonsensical, nearly unquestionable, in the immigration law domain. The case of Kashif Ali, an immigration detainee who has been locked up in maximum-security jail for more than seven years, springs to mind. While the average length of detention is about three weeks, Ali’s case has been dragging for years. Although neither charged nor convicted of a crime, a recent report compares Ali’s treatment to the treatment of inmates awaiting trial or serving a criminal sentence. Ali is not alone. In the summer of 2017, the newspaper Toronto Star published a special investigation into immigration detention in Canada in which at least one similar case was discussed—Ebrahim Toure has been detained for more than four and a half years. These might be idiosyncratic cases of long-term detention. But what is interesting in the context of this article is the exchange between the judge and the government’s lawyer about the acceptable length of detention; it illustrates the extent to which the practice of detaining migrants has become embedded and nearly unquestionable. Superior Court Justice Ian Nordheimer asked a simple but profound question to the government lawyers while examining Ali’s case: How long is too long? Justice Nordheimer summarized the issue succinctly: Either the government thinks it is entitled to detain an immigrant detainee indefinitely or there is a time-limit, maybe a constitutional time-limit. Pressured to respond, the government’s lawyer said that ‘the position that we’re taking is we haven’t reached [the point where detention is indefinite] yet’. This has not satisfied the Judge, who added: ‘If it’s not seven [years], is it 15? 20?’ concluding that it ‘seems to be the government’s position’ that they could detain an immigration detainee ‘literally for the rest of their natural life’ (Kennedy 2017c, b, a). This is a concern shared by the United Nations’ Human Rights Committee, a body comprised of 17 independent international law experts from around the world that monitors implementation of the UN’s International Covenant on Civil and Political Rights by its State parties; in its 2015 report the Committee heavily criticized the Canadian government for its position on the (acceptable) length of immigrant detention. The Committee reported that they were concerned that individuals who enter Canada irregularly ‘may be detained for an unlimited period of time’ and ‘that individuals who are nationals of Designated Countries of Origin are denied an appeal hearing against a rejected refugee claim before the Refugee Appeal Division and are only allowed judicial review before the Federal Court’ (UN 2015: 4–5). The UN’s Committee has called on Canada to ‘ensure that detention is used as a measure of last resort’ and to set ‘a reasonable time limit for detention’ (UN 2015: 5). All in all, evidence suggests that linking migration and security through practices, through norms and through discourses, takes place contiguously, and that the progression from non-securitized migration to securitized migration is not conceptually linear. Rather than observing a sequence from norms to practices (or vice versa), a subsumption of one concept by another, or a continuum of practices and norms, my study reveals that norms and practices occur in juxtaposition, multi-directionally. The emphasis on mimesis, contiguity, and lockability I pursue in this analysis offers a thorough account of the production, reproduction, and endurance of the linkage between migration and security in Canada. The mimesis mechanism highlights the process by which practices developed in one area (criminal law) were applied and, more importantly, internalized in another area (administrative law). The contiguity mechanism underscores that practices, norms, and discourses may co-exist simultaneously. Finally, the lockability mechanism of practices offers an important insight into why, in post-Cold War Canada, it has become difficult to think about international migration as a non-securitized concern. 4. Conclusion This article offers an insightful answer to the question of ‘What is the role of the practices of detaining migrants in the securitization of migration?’ I propose that a focus on practices, mimesis, contiguity, and lockability help us account for this dramatic process of the securitization of international migration. The practice of detaining migrants in detention centres offers a particular view into the global securitization of international migration, not because of its size in comparison to general patterns of incarceration in Canada, nor the ratio of those detained versus the volume of international migration, but because it illustrates a new form of state’s policies to control the movement of people (Fitzgerald et al. 2014, Hollifield et al. 2014, Messina 2014, Peters 2015) and it underscores the commonsensical, taken-for-granted, and routinized features of the securitization of migration. There is very little consensus in the scholarship on migrant detention centres, and this article has opened up a space for understanding this question. Pulling the pieces together, the article untangles the theoretical and empirical aspects of detaining migrants in detention centres. By thinking about the securitization of migration in terms of mimesis, contiguity, and lockability we allow for coexistence and complementarity between the reproduction and transformation processes, and hence open up the possibility of strengthening our understanding of the origin, role, and consequence of the practices of detaining migrants in the securitization of migration. Notes 1. This definition is contested, see among others Hansen (2006), Reckwitz (2002), Ringmar (2014), Schatzki (2001), Bourbeau (2017). 2. Mimesis has been studied from various angles and disciplines, from developmental psychology (Gergely et al. 2002), to economics (Schlag 1998), to evolutionary biology (Dawkins 2006) and anthropology (Girard 1986). 3. See also Capoccia (2015), Fioretos (2011), Mahoney and Thelen (2010). 4. Paragraph 46.01(1)(e), Section 35, Clause 49 of Bill C-44 (1995). 5. Section 55 of the Immigration and Refugee Protection Act 6. Section 20.1(1) and Section 20.1(2) of Clause 10, and Section 56(2) of Clause 24 of Bill C-31 (2012). 7. Section 58(1)(e), Clause 26 of Bill C-31 (2012). 8. Section 57.1(1) and 57.1(2) of the IRPA (2002). For cases of security certificates, the existing detention review regime provides that the reasons for continued detention be subjected to a mandatory review by a Federal Court judge within 48 hours of the start of detention and a mandatory review by a Federal Court judge a least once in the six months following the 48-hour review and subsequently once every six months, section 82.1(1), 82.1(2) and 82.1(3) of IRPA. 9. It should be mentioned that after the release of the majority of the children to the Ministry of Children and Family Development, a small group of about 20 boys remained in detention. Even though the Ministry sought their release, Citizenship and Immigration Canada argued for continuing detention (in total about seven months) on the basis that the boys were suspected of having participated in the smuggling operation. They were eventually released to the Ministry. 10. Except for the Ocean Lady, a decrepit vessel with 76 men from Sri Lanka on board seized on 17 October 2009 by Canadian security officials. All migrants were immediately detained. Acknowledgements I have benefited from discussions I had with colleagues at the Department of Politics and International Studies at the University of Cambridge, and participants at the International Migration Institute 2016 Annual Conference at the University of Oxford, the European Workshop in International Studies-Cardiff, and the British International Studies Association. I also thanks the anonymous reviewers and the editors for their helpful suggestions. Conflict of interest statement. None declared. 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Migration StudiesOxford University Press

Published: Jan 3, 2018

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