By Elizabeth Hannah

Immigration detention is a central feature of the United States’ immigration system. Noncitizens facing removal are detained in staggering numbers throughout the removal process, from the initiation of legal proceedings to the issuance of a final removal order. Moreover, as the U.S. government’s reliance upon immigration detention has grown, the Supreme Court has systematically stripped noncitizens of important substantive and procedural protections. This is especially true in the post-removal-order context, where a series of recent decisions have placed more people than ever at risk of prolonged detention without a bond hearing. Three cases in particular—Johnson v. Guzman Chavez (2021), Johnson v. Arteaga-Martinez (2022), and Garland v. Aleman Gonzalez (2022)—have increased the likelihood that noncitizens subject to post-removal-order detention will remain incarcerated for months or years, even if they have pending claims for relief. This Note describes each of these three cases and explains how, together, they severely undermine the rights of noncitizens with final removal orders. This Note further argues that people facing post-removal-order detention should be entitled to rigorous due process protections. Even though detention constitutes a clear deprivation of liberty, the Supreme Court has held that six months of post-removal-order detention is “presumptively reasonable.” This Note criticizes that premise and asserts that no period of immigration detention is presumptively reasonable. In other words, even if the Court had decided Guzman Chavez, Arteaga-Martinez, and Aleman Gonzalez in favor of the noncitizen plaintiffs, the existing framework would still be insufficient to protect immigrants in post-removal-order detention from experiencing protracted and unnecessary trauma. This Note therefore posits that, at minimum, immigrants with final removal orders should receive a bond hearing before an immigration judge at the close of the 90-day mandatory detention period. While more radical solutions like detention abolition are ultimately in order, a 90-day bond hearing requirement would at least provide noncitizens facing post-removal-order detention a meaningful opportunity to secure release from custody.

Arizona Law Review, 2023. 36p.

By Melanie Gower, Georgina Sturge 

The Home Secretary has a duty to make a deportation order in respect of nonBritish or Irish citizens who have been convicted of an offence in the UK and sentenced to at least 12 months’ imprisonment, unless certain exceptions apply. He also has discretionary powers to deport non-British citizens if he considers it to be “conducive to the public good”. Deportation of foreign national offenders is a longstanding government priority. The Home Office considers for deportation all foreign nationals convicted of a crime in the UK and given a prison sentence. Foreign national offenders can be removed from the country before the end of their prison sentence by way of a prisoner transfer agreement, or through the Early Removal Scheme or Tariff-Expired Removal Scheme. They can receive money to help them to resettle in their home country through the Facilitated Return Scheme. As of the end of June 2023, there were at least 10,321 foreign nationals in prison in England and Wales, out of a total prison population of 85,851. Over half of foreign prisoners were European and, overall, the most common nationalities were Albanian, Polish, Romanian, Irish, and Jamaican. There were 11,769 foreign national offenders subject to deportation action living in the community, as of 30 September 2022.

A report of an inspection by the Chief Inspector of Borders and Immigration published in June 2023 was critical of the Home Office’s handling of foreign national offender cases. It found that the Early Removal Scheme and the Facilitated Return Scheme were not being administered effectively. The Government says it has made good progress removing foreign national offenders from prisons and the community, pointing to a 19% increase in overall foreign national offender returns in the 12-month period to September 2023 (3,577 people). Up until that point, the number of foreign national offenders returned on an annual basis had been falling since 2016, when 6,437 individuals were returned. 

London: UK Parliament, The House of Commons Library , 2024. 11p

By United Nations Task Force on Children Deprived of Liberty

IMMIGRATION DETENTION, IS NEVER IN THE BEST INTERESTS OF THE CHILD AND CONSTITUTES A CHILD RIGHTS VIOLATION.

It is a form of violence that impacts a country’s capacity to achieve the 2030 Agenda for Sustainable Development, especially targets 10.7 and 16.2.4,5 All children, regardless of their legal or migratory status or that of their families, have the right to be cared for and protected from violence, abuse and exploitation. At least 77 countries have laws and policies that allow children to be detained based on their legal or migratory status, and at least 330,000 children globally per year are deprived of their liberty based on their (or their parents’) legal or migratory status.6 Lack of accurate data means this is likely to be a significant under-estimate. While many countries have committed to end child immigration detention, the reality is that even in some countries where legislation does not support immigration detention, it continues to remain in use.7 In 2022, the United Nations Task Force on Children Deprived of Liberty8,9 under the leadership of the UN Special Representative of the Secretary-General on Violence Against Children, made a joint pledge10 at the International Migration Review Forum (IMRF):

1. To conduct evidence-based advocacy and to mobilize all key stakeholders at all levels to scale up child rights-based protective solutions to end the detention of children in the context of migration.

2. To support Member States to harmonize their national legal frameworks with international human rights standards to explicitly prohibit detention of children based on their migration status or that of their families.

3. To involve and amplify the voices of migrant children in determining their best interests in all issues concerning children in legislation, policies, practices, including those related to integration, return and family reunification; as well as access to services, to justice and to remedies for violations of their rights.

4. To support data collection and the dissemination of promising practices on child rights-based protective solutions as alternative measures to end the detention of children in the context of migration.
   This advocacy brief provides an overview of promising practices and lessons learned to end child immigration detention and sets out a range of policy actions needed to scale up efforts to end this form of violence

New York: UNICEF, 2024. 15p.

By Eleonora Celoria, and Marta Gionco

This briefing presents noteworthy practices at the national and European Union (EU) level related to safeguarding the rights of people in immigration detention and ultimately ending detention for migration purposes, by focusing on a wide range of actors spanning from civil society to national governments. It focuses on three advocacy objectives: 1. raising the visibility of detention and its harms, 2. ending the detention of children in the context of migration, and 3. implementing community-based solutions that can ultimately prevent and contribute to ending detention. The first chapter of the briefing explores civil society efforts aimed at unveiling what happens in immigration detention centres as well as the harmful impact of immigration detention itself. Ensuring that people in detention speak to the outside world and giving NGOs access to detention centres have been identified as the most important tools in this regard. It is also contended that further research, as well as litigation and advocacy, related to the right to communicate is needed. NGOs in the Netherlands and the UK have set up hotline systems to establish contact with individuals in detention, most of whom do not have access to their mobile phones. In Italy, strategic litigation has challenged the state’s denial to grant NGOs access to detention facilities. Both activities – phone communication and civil society visits - can be seen as part of a wider advocacy strategy to end immigrant detention, as exemplified by the work of civil society coalitions and organisations in Belgium, Italy and the United Kingdom, among others. The second chapter focuses on immigration detention of children, a practice which is never in the child’s best interests and should always be forbidden. While EU law still allows for immigration detention of children, there have been developments at the political and legislative levels in Germany, Belgium, France and Greece aiming at restricting the situations in which children could be detained for immigration purposes. The cases of Ireland, Italy and Spain are also explored, as these states do not generally detain children (whether they are unaccompanied or with their families). Overall, to comply with international standards and to put an end to child detention in the migration context, further efforts are needed at both the EU and national levels. The final chapter focuses on community-based solutions to prevent or end immigration detention. This section focuses in particular on the advantages of providing support through case management, which is a structured social work approach which empowers individuals to work towards case resolution (i.e., any temporary or permanent migration outcome, such as a visa, regularization scheme, re-migration or voluntary return). This section explores case studies from Belgium, Bulgaria, Poland, the UK and Italy, where case management projects are run by civil society originations, in cooperation with local (Belgium) or national (Bulgaria, Poland, UK) governments. Although each national experience is unique, the independent evaluation of these projects showed that they have some features in common: high levels of compliance of the people involved with the project, the limited numbers of migrants who have access to case management in comparison to the number of undocumented migrants, and the fact that these projects need to be accompanied by a general policy shift towards the implementation of non-coercive solutions in migration management. To conclude, this briefing analyses the practices of two countries, Ecuador and Uruguay, which are among the few states in the world that never applied or no longer resort to immigration detention.

Brussels, Belgium : PICUM – Platform for International Cooperation on Undocumented Migrants, 2024. 28p.

By Harvard Immigration and Refugee Clinical Program

The United States maintains the world’s largest immigration detention system, detaining tens of thousands of people in a network of facilities, including those managed by private prison corporations, county jails, U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), and the Office of Refugee Resettlement (ORR). At the time of writing, ICE is detaining over 35,000 people, including long-term residents of the United States, people seeking asylum, and survivors of trafficking or torture. Instead of finding refuge, these people are held in ICE custody for extended periods, enduring inhuman conditions such as solitary confinement (dubbed “segregation” by ICE), where they are isolated in small cells with minimal contact with others for days, weeks, or even years. In many instances, such conditions would meet the definition of torture, or cruel, inhuman, or degrading treatment under international human rights law. Solitary confinement causes a range of adverse health effects, including post-traumatic stress disorder (PTSD), self-harm, and suicide risks. Prolonged confinement can lead to lasting brain damage, hallucinations, confusion, disrupted sleep, and reduced cognitive function. These effects persist beyond the confinement period, often resulting in enduring psychological and physical disabilities, especially for people with preexisting medical and mental health conditions or other vulnerabilities. In recognition of this well-documented harm, ICE issued a directive in 2013 to limit the use of solitary confinement in its facilities, especially for people with vulnerabilities. A 2015 memorandum further protected transgender people, emphasizing solitary confinement as a last resort. In 2022, ICE reinforced reporting requirements for people with mental health conditions in solitary confinement, highlighting the need for strict oversight. Despite these directives, however, government audits and whistleblowers alike have repeatedly revealed stark failures in oversight. This report – a joint effort by Physicians for Human Rights (PHR), Harvard Law School’s Immigration and Refugee Clinical Program (HIRCP), and researchers at Harvard Medical School (HMS) – provides a detailed overview of how solitary confinement is being used by ICE across detention facilities in the United States, and its failure to adhere to its own policies, guidance, and directives. It is based on a comprehensive examination of data gathered from ICE and other agencies, including through Freedom of Information Act (FOIA) requests, first filed in 2017, and partly acquired after subsequent litigation. It is further enriched by interviews with 26 people who were formerly held in immigration facilities and experienced solitary confinement over the last 10 years. Executive Summary The study reveals that immigration detention facilities fail to comply with ICE guidelines and directives regarding solitary confinement. Despite significant documented issues, including whistleblower alarms and supposed monitoring and oversight measures, there has been negligible progress. The report highlights a significant discrepancy between the 2020 campaign promise of U.S. President Joseph Biden to end solitary confinement and the ongoing practices observed in ICE detention. Over the last decade, the use of solitary confinement has persisted, and worse, the recent trend under the current administration reflects an increase in frequency and duration. Data from solitary confinement use in 2023 – though likely an underestimation as this report explains – demonstrates a marked increase in the instances of solitary confinement. This report exposes a continuing trend of ICE using solitary confinement for punitive purposes rather than as a last resort – in violation of its own directives. Many of the people interviewed were placed in solitary confinement for minor disciplinary infractions or as a form of retaliation for participating in hunger strikes or for submitting complaints. Many reported inadequate access to medical care, including mental health care, during their solitary confinement, which they said led to the exacerbation of existing conditions or the development of new ones, including symptoms consistent with depression, anxiety, and PTSD. The conditions in solitary confinement were described as dehumanizing, with people experiencing harsh living conditions, limited access to communication and recreation, and verbal abuse or harassment from facility staff. etc.....

New York: Physicians for Human Rights, 2024.  50p.

By Mary Bosworth

On any given day nearly 3000 foreign national citizens are detained under immigration powers in UK detention centers alone. Around the world immigrants are routinely detained in similar conditions. The institutions charged with immigrant detention are volatile and contested sites. They are also places about which we know very little. What is their goal? How do they operate? How are they justified

Inside Immigration Detention lifts the lid on the hidden world of migrant detention, presenting the first national study of life in British immigration removal centers. Offering more than just a description of life behind bars of those men and women awaiting deportation, it uses staff and detainee testimonies to revisit key assumptions about state power and the legacies of colonialism under conditions of globalization.

Based on fieldwork conducted in six immigration removal centers (IRCs) between 2009 and 2012, it draws together a large amount of empirical data including: detainee surveys and interviews, staff interviews, observation, and detailed field notes. From this, the book explores how immigration removal centers identify their inhabitants as strangers, constructing them as unfamiliar, ambiguous and uncertain. In this endeavor, the establishments are greatly assisted by their resemblance to prisons and by familiar racialized narratives about foreigners and nationality.

However, as staff and detainee testimonies reveal, in their interactions and day-to-day life women and men find many points of commonality. Such recognition of one another reveals the goal and effect of detention to be incomplete. Denial requires effort. In order to minimize the effort it must expend, the state 'governs at distance', via the contract. It also splits itself in two, deploying some immigration staff onsite, while keeping the actual decision-makers (the caseworkers) elsewhere, sequestered from the potentially destabilizing effects of facing up to those whom they wish to remove. Such distancing, while bureaucratically effective, contributes to the uncertainty of daily life in detention, and is often the source of considerable criticism and unease. Denial and familiarity are embodied and localized activities, whose pains and contradictions are inherent in concrete relationships.

Oxford, UK: Oxford University Press, 2014. 283p.

By Galina Cornelisse

Practices of immigration detention in Europe are largely resistant to conventional forms of legal correction. By rethinking the notion of territorial sovereignty in modern constitutionalism, this book puts forward a solution to the problem of legally permissive immigration detention.

Leiden: Martinus Nijhoff Publishers, 2010. 403p.

Edited by Maria João Guia, Robert Koulish, Valsamis Mitsilegas

This book offers a brand new point of view on immigration detention, pursuing a multidisciplinary approach and presenting new reflections by internationally respected experts from academic and institutional backgrounds. It offers an in-depth perspective on the immigration framework, together with the evolution of European and international political decisions on the management of immigration. Readers will be introduced to new international decisions on the protection of human rights, together with international measures concerning the detention of immigrants.

In recent years, International Law and European Law have converged to develop measures for combatting irregular immigration. Some of them include the criminalization of illegally entering a member state or illegally remaining there after legally entering. Though migration has become a great challenge for policymakers, legislators and society as a whole, we must never forget that migrants should enjoy the same human rights and legal protection as everyone else.

Cham: Springer, 2016. 293p.

By Brynn O'Brien

Australia sends asylum seekers to offshore camps where they are detained indefinitely and subjected to well documented abuses, in violation of their human rights.

The Australian Government outsources the operations at the camps, and Spanish company Ferrovial has responsibility for the system’s largest operational contracts, through its wholly-owned subsidiary, Broadspectrum. Investors in Ferrovial, including the Norwegian Pension Fund, are exposed to the significant risks of association with human rights abuse.

Canberra: Australia Institute, 2016. 29p.

By Nina Rabin

Young people in immigrant families are often characterized as a separate population in debates over immigration reform, with distinctive claims and interests as compared to their parents. Bifurcating the undocumented population between children and parents over-simplifies how immigration enforcement impacts families. This article challenges the dichotomy between children and parents by studying how young people who are not direct enforcement targets are nevertheless impacted by immigration enforcement policies, regardless of their own immigration status. These impacts, which I call “secondary immigration enforcement,” often manifest as family separations. To render secondary immigration enforcement visible, I studied 38 young people in Arizona who are living on their own – without either biological parent – at least in part because of immigration enforcement policies. Drawing on in-depth interviews and self-assessments of psycho-social functioning, I describe what secondary immigration enforcement looks like and how it operates. I illustrate that deportation statistics alone fail to capture the extent of immigration enforcement because they do not encompass the complex impacts of secondary enforcement. In addition to the acute disruptions caused by deportations of family members, the young people in the study also experienced family separation as a result of immigration enforcement’s interaction with three other key factors: family dysfunction, extreme poverty, and educational aspirations.

Tucson: The University of Arizona, James E. Rogers College of Law, 2017. 37p.

By Dan Godshaw.

Young arrivers to the UK come from a wide variety of backgrounds and situations. Many are fleeing persecution or conflict; many have suffered the breakdown of their families through a range of circumstances. Many, by the time they are adults, have known no other home and are, to all intents and purposes, British. All are people asking for our help. They should find protection, fairness and clarity in our immigration system and in statutory support systems. Instead, far too many people are failed by the systems at many different points. This report, written with a focus on first-hand testimonies, explores the realities young arrivers face, with particular regard to immigration detention. We make a number of recommendations for changes that we believe are needed, with actions required from government, from local authorities, and from support services

Crawley, UK: Gatwick Detainees Welfare Group, 2017. 56p.