Punitive policies aimed at those deemed alien means that resources that were formerly allocated to social care, anti-discrimination and integration can be transferred into policing, punishment, warehousing and banishment.
In July 2016, snap protests erupted across Australia after ABC broadcast video footage of officials using teargas, spit-hoods and restraints on children, many Aboriginal, held in juvenile detention centres in the Northern Territories. A few weeks later, another scandal was to rock the nation, this time involving the treatment of asylum seekers within Australia’s outsourced immigration system. The Nauru files, leaked to the press from a source inside the immigration regime, documented over 2,000 incidents of sexual abuse, self-harm and child abuse, as well as the appalling living conditions at the Nauru detention centre, Papua New Guinea, children being vastly over-represented in the cases reported.
You do not have to cross the globe to find such treatment: the same violence has been structured into the private security–dominated systems that Europe has created for refugees and now, by extension, ‘enemy aliens’. States, governing at a distance, no longer have a monopoly on force; that, too, has been outsourced. In A Suitable Enemy, I described the creation of a separate quasi-penal system for asylum seekers in the context of the new non-colour-coded racism, which treats desperate people as though they were enemies to be corralled into detention centres and, if released, quarantined within an alternative welfare system. But since the book’s publication in 2009, the figure of the foreign criminal has emerged in populist folklore as another archetypal cultural bogeyman. Most often dark-skinned, and always racialised, he is predatory and hyper-sexualised or, particularly if she is a Roma, a destitute ‘scrounger’. The essentialised and culturally determined deviant nature of the foreign criminal is used to justify the deportation drive against migrants and asylum seekers, the foreign poor and other ‘troublesome elements’.
And so it is that ever more categories of people find themselves singled out for deportation, despite having previously enjoyed residence rights. At one end of the spectrum are those convicted of administrative offences relating to immigration, or a number of new criminal offences, such as ‘obliging children to beg’ (a measure aimed at legitimising the deportation of ‘indigenous’ EU nationals like the Roma). At the other end are dual nationals and naturalised citizens stripped of their nationality, made vulnerable to deportation and torture when they come under suspicion of terror offences, like Ali Aarrass. But in between are ‘virtual nationals’, burdened by an existential precariousness that can end in banishment. These are young people, including refugees, who have spent their formative years in Europe (they may even have been born there), but, following a criminal conviction, are marked out as no-hopers to be expelled. Ejected like so much waste, they are transported to a country they have few (or no) connections with, given that they have grown up and been socialised in Europe. In many European countries, it is the norm now that a prison sentence of more than one year renders you deportable.
There is now not only a separate detention regime for asylum seekers and immigration offenders, but also special prison regimes for foreign-national offenders – both underpinned by the introduction of separate principles for foreigners within the legal system. Today, foreign prisoners make up over 30 per cent of the prison population in ten member-states, including Norway, Spain, Belgium and Italy, and over 50 per cent in five, including Austria and small countries with high foreign populations, such as Andorra and Monaco. Thus, a subpopulation of ‘deportable subjects’ resides within Europe’s prison systems. It is the deportation order, not the nature of the offence, that marks prisoners out as permanently dangerous and ‘high-risk’; thus, any attempt by the individual to ‘reform’ seldom makes a difference to their fate.
Double Punishment and Enemy Penology
As ‘penal power’ is afforded a ‘central role in the governance of global migration’, criminal justice systems are recalibrated around the xeno-racist policy of ‘double punishment’ (prison followed by the secondary punishment of deportation). In the past, legal challenges to double punishment in the European Court of Human Rights were treated with care – and politicians acted with caution. It was only in 2003 that Nicolas Sarkozy, as France’s interior minister, approved a reform to the penal code to abolish double punishment, on the grounds that ‘someone who has spent his childhood in France or has founded a family here should not be subjected to a second penalty’. But by the mid 2000s, as social policy was reshaped around assimilationist (as opposed to integrationist) principles, and cultural–religious explanations for economic and social marginalisation became dominant, politicians sought to contest elections on the issue of ‘foreigner crime’. This did not just win them votes; it enabled them to challenge previous legal rulings against double punishment, particularly in cases involving young people.
Acting tactically, and bowing to what is termed ‘penal populism’, politicians of both left and right ensured that resources were directed towards strengthening the infrastructure for the warehousing, disposal and disappearance (by deportation) of surplus ‘offending’ populations. In the process, the principle of prison as rehabilitation was jettisoned, for the prisoner of migrant origin at least. In true neoliberal fashion, access to packages designed to educate, train and rehabilitate are limited – in preparation for a final abandonment of these prisoners. If prisoners are to be deported at the end of a sentence, prison no longer needs to offer a ‘second chance’.
Of course, the law has long held out the possibility of deportation for serious offences; that is not contested. But deportation, even for serious offences, was discretionary (as opposed to automatic) in most of Europe until the first decade of the twenty-first century, and judges would weigh up the justice of deportation against other factors (age, length of residence, family and other ties, compassionate circumstances), using legal principles of proportionality. Now the balance has shifted firmly in favour of deportation for an ever-increasing number of less serious offences, such as criminal damage, low-level drug offences, fights and minor assaults, and non-domestic burglary – offences common among adolescent boys.
In the Netherlands, for instance, a law introduced in 2002 allows for the deportation of foreign residents who have been sentenced to one month in prison or one month’s community work. (Youngsters whose origins lie in Morocco or the Dutch Caribbean are particularly hard hit.) And new categories of deportable subjects have been created, such as ‘prohibited immigrants’ in Cyprus, or those with ‘special immigration status’ in the UK, who live in limbo, temporarily protected from deportation by international law but ultimately liable to expulsion.
In their study of foreign national prisoners in British prisons and immigration removal centres, Turnbull and Hasselberg show that, once you are branded a deportee and therefore unworthy of rehabilitation, you inevitably end up incarcerated in discriminatory prison systems designed to warehouse you prior to deportation. Foreign nationals in the UK have fewer rights than other prisoners, experiencing segregation and more restrictive prison conditions, an inability to access legal rights, longer sentences (including an extra indeterminate period of administrative detention pending deportation); they are, as a consequence, more vulnerable to suicide and self-harm. The Legal Action Group pointed out in its handbook Foreign National Prisoners: Law and Practice that such discrimination violates ‘the cardinal principle of the rule of law, equality before the law, prohibiting differentiation between immigrants and British nationals in areas irrelevant to expulsion’.
And as with so many government initiatives built on racial exclusion, legal theorists and criminologists have emerged to sugar-coat the policy with constitutional and political theory. Foremost among these is the Hamburg-based criminologist Günther Jakobs, who has developed what Susanne Krasmann has described as an ‘enemy penology’ – one which has distinct echoes of the work of Carl Schmitt. In 1985, Jakobs identified the need to develop a separate ‘criminal law for enemies’ (Feindstrafrecht). Notorious delinquents, since they were incorrigible, had ‘forfeited their status as citizens’, and should be denied normal legal guarantees and be combated and excluded, since they represented a fundamental threat to society. His work was based on the idea of a fundamental divide between citizens (subject to the rule of law) and non-citizens (not legal subjects, and therefore non-persons in the eyes of the law). It was subsequently taken up by Otto Depenheuer, chair of constitutional law and legal philosophy at the University of Cologne, but this time in terms of the debate about torture in the context of the fight against Islamic terrorism. In Selbstbehauptung des Rechtstaates (‘Self-Assertion of the Rule of Law’), Depenheuer claimed that whoever opposed the state and its legal system was an ‘enemy hors de la loi’ (an outlaw). When it was published in 2007, former interior minister and current finance minister Wolfgang Schäuble recommended it as an inspiration and his own bedtime reading.
Jakobs’s and Depenheuer’s dichotomies – citizens versus non-citizens, enemies versus friends – are increasingly being institutionalised within law, social policy, policing and data collection. They are inherent within racial profiling, both on the streets and in the way information is stored on criminal databases. For example, the Skåne police’s Kringresande (‘itinerants’) database, finally deemed unlawful in 2013, comprised a genealogical tree tracing the social and family relations of over 4,029 Roma in Sweden (some of whom had actually died), around 1,000 of whom were children, some as young as two years old. (In June 2016, eight adults and three children whose personal details had been stored in the database were awarded damages for ethnic discrimination in an action brought by Civil Rights Defenders.) Taken as a whole, what we have witnessed across Europe, over at least the last two decades, has been the foregrounding within immigration policies of principles of surveillance and punishment. The less punitive strands of immigration policy, such as civil rights, family reunification and integration, are increasingly only available to the chosen (highly skilled and wealthy) few.
It is not just that there is a two-tier system; it reflects and indeed reinforces the idea that there are effectively now two sets of people: (bad) aliens and (good) immigrants. Stitched into immigration law, in ways that are largely invisible, is ‘aliens’ law’, which invokes a ‘hostile environment’ forcing undocumented (bad) migrants to live at the margins of society, completely without rights. In the UK in 2013, the Home Office (under then home secretary Theresa May) officially announced its intention to create such a ‘hostile environment’ for irregular immigrants, sending out vans across London with an advertising board, illustrated with an image of handcuffs, stating ‘In the UK illegally? Go home or face arrest.’ In 2016, unauthorised working was made a criminal offence, and provisions introduced to confiscate wages as ‘proceeds of crime’. Private landlords have been recruited as immigration officers, and the Driver and Vehicle Licensing Agency and banks must check immigration status before issuing driving licences and opening bank accounts.
The parameters of policies aimed at ‘aliens’ are set in the stone of social control. Immigrants can enjoy pathways to citizenship; but aliens, at every identity check or internal control, carry the border within them. Historically, aliens’ laws have reduced residency to a gesture of clemency, a temporary order of hospitality, rescindable at any point. The alternative history has been one of the integration of migrants through immigration policy, whereby they can access social rights, including social care for troubled youngsters at risk of marginality and crime. But now, switching the approach to treat juveniles from a migrant background as aliens ensures that those who ‘fall through the net’ and commit crimes will never be allowed to integrate. Punitive policies aimed at those deemed alien means that resources that were formerly allocated to social care, anti-discrimination and integration can be transferred into immigration enforcement, punishment, warehousing and banishment.