debate. During the Cedars inspection differing family
detention practices were found in the north and south of
the country — that is far more families based in the north
of the country went through the family returns process
and were detained. This was considered by some local
immigration staff to be a result simply of different
practices by immigration teams responsible for deciding
who would be detained. It is not clear if this is the whole
explanation as no particular research into this had been
done. But on the face of it, there was a level of
arbitrariness that would not be acceptable in the criminal
justice context. There would be justifiable outrage if it
was found that for similar offences courts in the south of
the UK were imprisoning people at a far higher rate than
those in the north. In fact, the perception of
inconsistency in the imprisonment of people from
different ethnic backgrounds has been enough to trigger
institutional self examination, debate and ongoing
research36. Progress may have been slow, but it is taken
seriously because it is accepted without question that
discrimination in the conviction, imprisonment or
treatment of those involved in the criminal justice system
is wrong in principle, and undermines justice. Such
discrimination also reflects on the nature of our society. I
have argued elsewhere that the way that the criminal
justice system is perceived reflects considerably on
perceptions of the fairness of our society37. Similarly, if
immigration control is seen as arbitrary, then it reflects
poorly on a society that is ostensibly committed to justice
and equality. It is disturbing therefore that a common
view from detainees is that their treatment within the
immigration system is not moral or just. While some
prisoners dispute their guilt, most can at least understand
and in many cases accept the punishment given to those
who are guilty. In the immigration context, even if
detainees accept they have transgressed immigration
laws, the penalties are rarely seen as proportionate.
These can include indefinite detention while having
limited access to legal advice or judicial oversight. As one
detainee has put it:
What sort of law is this? You get three month
sentence and end up in prison for 3 years. [I] ran from a
war situation and now in a prison. [I] feel confused and
disappointed.38
Concluding thoughts
Concerns about the vulnerability of children in the
immigration system have, with the caveats discussed
above, led to important and positive changes in the way
that they and their parents are treated. This does not
mean that the overall impact of immigration control on
children is not damaging. The conditions of detention
may have improved, but other parts of the ‘family
returns’ process are less well documented or
understood. Both supporters and critics of family
detention could now usefully focus efforts on the other
elements of immigration control, to ensure a process
that minimises the negative impact on children. Too little
is currently known about the lead up to detention and,
importantly, what happens after removal. There may be
political and legal arguments for taking little interest in
what happens to children once they are removed from
the country. But there is no convincing moral reason
why safeguarding duties should be seen as dispatched
once a child is out of sight. More communication and
work with receiving countries to help prepare detainees
for their return, perhaps through encouraging reception
centres based on the Cedars model, could be a way of
ensuring a more humane and caring international
approach.
It is also important that other parts of the detention
estate learn from Cedars. In particular, its open design
and welfare orientation, and the ability to have effective
immigration controls based on short periods of
detention. It has been recognised that the open ended
approach to child detention is not acceptable. It is
difficult to see why this conclusion cannot also apply to
adults. The way that different agencies collaborate and
ameliorate the detention experience is also impressive. It
is possible only because a non-governmental
organisation has a powerful and influential role in the
centre, and is given due deference by the other
agencies.
The new approach to immigration control for
children reveals fundamental issues of equity in the
overall approach to detention, and can help to sharpen
thinking about what the different approach means for
immigration detention in general. This should drive
forward both practical improvements and conceptual
thinking about what detention is for and how it should
be used. This will become more important as time goes
on. The wider challenge — for governments as well as
for the agencies implementing policy — is to work out
how exclusionary national policies are reconciled with
the realities of a world that is likely to see more people
moving across international boundaries, whether by
choice or necessity.
36.
37.
38.
Bowling, B. and Phillips, C. (2002) Race, Crime and Justice. Longman; Bhui, H.S. (2009) Race and Criminal Justice. Sage Publishers.
Bhui (2009), p.2, see note 36.
Unpublished quotation collected during research for HMIP and ICIBI (2012) report; see note 32.
28
Prison Service Journal
Issue 205
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