Complying with What? Non-Compliance in the UK Immigration Detention
The notion of non-compliance with immigration policy and enforcement is a recurring theme, which regularly comes up both in reviewing government policy and through ethnographic work with men detained in the Verne immigration removal center. Non-compliance is not always the intentional manifestation of personal agency. Instead, in the messy landscape of UK immigration detention it can be another tool of domination.
In the government’s narrative, non-compliance is regularly invoked to justify prolonged detention of migrants in the UK – despite assurances that detention is used for the shortest possible period. As Immigration Minister Brandon Lewis argued recently, “the government has no plans to introduce a fixed time limit on immigration detention as this would only encourage detainees to refuse to cooperate with immigration and asylum processes.” Such framing of non-compliance stems from earlier comments by then Immigration Minister James Brokenshire, who argued in 2015: “It would be totally unacceptable to reward foreign criminals and illegitimate migrants who refuse to comply with immigration law by requiring their release, even when removal was imminent, simply because a blanket time limit had been reached.”
In 2017, as if to mirror its growing importance in the government’s narrative, non-compliance for the first time featured in the background section of the National Statistics. It was listed as one of the reasons why someone may be held in immigration detention, a reason “outside the control of the Home Office”. This framing suggests that migrants are responsible for their own prolonged detention as they notoriously choose non-compliance as a strategy to resist removal or deportation. Without denying the personal agency of migrants, it is important to question, however, whether in the context of UK detention, non-compliance is always the migrant’s choice, always an autonomous act of resistance.
The external walls of the Verne Immigration Removal Center (Photo: Patrycja Pinkowska).
Migrants from the Verne immigration detention center regularly brought up the topic of non-compliance. It was not, however, framed in the language of resistance but often spoken about with confusion – a sense of hurt and injustice. Those detained men were often learning about their alleged non-cooperative behavior during bail hearings or from their monthly progress reports issued by the Home Office. They asked for an explanation of the term: “What does it mean I am not complying?’ or ‘not complying with what?” Some detainees asked to be accompanied to their bail hearings to help them make sense of those accusations. They were disheartened to see their actions repeatedly interpreted as deliberate and deceitful while major errors and wrongdoing on the side of the authorities were easily dismissed as just innocent mistakes.
During observations at the Asylum and Immigration Tribunal in Newport, where the Verne detainees’ bail hearings were held, it was evident that, at times, the accusation of non-compliance became another tool used by the Home Office to prolong detention. The fact that only around 50 percent of detainees were able to secure legal representation during bail hearings meant that many such accusations remained unchallenged. Detainees told, for example, how during their time in detention, the Home Office had never requested their assistance in gathering documentation for removal. They were never visited by the Home Office or embassy representatives, no arrangements were ever made for their return and yet, during bail hearings, they were told that due to non-compliance they could not be released. One particularly significant example is a detainee who told that he was accused of non-compliance and that an allegation of him refusing to board a plane was given by the Home Office as a reason to oppose bail. “But I was never taken to the airport”, he despaired, “I was never even there!”
At one of the bail hearings, an accusation of non-compliance was made against a man who refused to be moved from the Verne to another detention center in the middle of the night. His solicitor intervened challenging the Home Office’s interpretation of events. “This is not true”, he argued. Woken up in the middle of the night and told to pack up and prepare for travel, the man “just asked if he could speak to his lawyer, and the officer should have reached the phone and allow him to speak to me. It is only natural that he wanted to understand what is happening.” Night transfers are notoriously criticized by HM Inspectorate of Prisons and by the Independent Monitoring Board as unnecessarily stressful, yet they remain a common practice.
Since September 2004, the Secretary of State has had the power to prosecute those who, without reasonable excuse, fail to comply with the re-documentation process. This means detainees have an obligation to assist in gathering documents that would enable their removal, for example by contacting embassies of their countries of origin and asking for travel documents. The HM Inspectorate of Prisons and the Independent Chief Inspector of Borders and Immigration noted in their report on the effectiveness of casework in detention: “Many detention reviews accused detainees of failing to cooperate, and, if this was the case, prosecution for non-compliance should have been considered.” This is why the inspectors were surprised to find that in the financial year 2009/10, only six people were charged in England and Wales and in the following year, 2010/11, only eight were found guilty. Bail for Immigration Detainees (BID) recorded prosecutions for non-compliance between 2011–2013 and found that in 2011, only one person was prosecuted but found not guilty. In 2012, six out of eight were found guilty and in 2013 two out of four. Those numbers stand in a stark contrast to the official narrative and the frequency of non-compliance accusations.
Non-compliance may be difficult to prove, but it seems to be liberally thrown as an accusation to achieve particular goals. Given the accused often have no way of defending themselves, this practice is deeply concerning and contributes to feelings of injustice and mistrust. Moreover, it can hardly be squared with the notion of detention being a non-punitive and a purely administrative measure. When the language of government implies that releasing migrants from detention would be a reward, it is hard not to interpret their prolonged deprivation of liberty as a punishment. Aside from its impact on individual cases, the narrative of non-compliance also reinforces the vision that migrants themselves are to be blamed for their prolonged detention, thus, silencing the discussion around the role of detention and the potential for its reform.
Patrycja Pinkowska
PhD candidate in Human Geography at the University of Exeter
@PEPinkowska
This is a shortened version of a post of Border Criminologies’ themed series on “Exploring the Everyday of Immigration Detention” organized by Annika Lindberg, University of Bern, and Laura Rezzonico, University of Neuchatel and nccr – on the move. It was originally published on 7 December 2017. The series brings together insights on the everyday of immigration detention, which has become a normalized part of the deportation regime and is one of many instruments used by states to discipline, control and deport “undesirable” migrants from their territory.
