Pressured into a Preference to Leave? A Study on the “Specific” Deterrent Effects and Perceived Legitimacy of Immigration Detention

By Leerkes, Arjen; Kox, Mieke | Law & Society Review, December 1, 2017 | Go to article overview

Pressured into a Preference to Leave? A Study on the “Specific” Deterrent Effects and Perceived Legitimacy of Immigration Detention


Leerkes, Arjen, Kox, Mieke, Law & Society Review


Immigration detention is an administrative measure to ensure that migrants cannot abscond while preparations for deportation are being made (see Cornelisse 2010; Wilsher 2012). Two main types exist: (1) preadmission detention at the border, involving foreigners not admitted to the state's territory, and (2) preexpulsion detention of foreigners whose stay in the territory is, has, or is likely to become unauthorized. Although formally not a punishment, governments do use immigration detention to deter unwanted immigrants from the territory (Campesi 2015, DeBono 2013; Hasselberg 2014; Kalhan 2010; Leerkes and Broeders 2010; Mainwaring 2012; Martin 2012; Pickering and Weber 2014). That claim rests on three main observations: (1) barring exceptions, detention occurs under regimes resembling criminal imprisonment; (2) immigration detainees tend to experience the detention as a kind of punishment, and (3) various policy makers have publicly stated that immigration detention is meant to pressure detainees into leaving. For example, in the Netherlands, the country on which the present analysis focuses, a former Minister of Immigration and Asylum argued that the purpose of immigration detention is to "incite to departure" ("prikkelen tot vertrek") (Parliamentary Documents II 2010/11, 19 637, no. 1396).

It is illegal under international law to use immigration detention to deter future asylum seekers or to dissuade those who have commenced their claims from pursuing them (United Nations High Commissioner for Refugees 1999; see also Mainwaring 2012). It is less clear whether states can use it as a means to coerce rejected asylum seekers and other deportable migrants into a willingness to leave. Various nongovernmental organizations believe not, and have criticized the lengthy maximum duration of immigration detention as well as the prison-like conditions under which immigration detention is carried out (see for example Amnesty International 2009; Jesuit Refugee Service-Europe 2010). Social scientists, too, have pointed at the harmful effects of immigration law more generally for the well-being and social incorporation of those with weaker legal statuses (see Menjivar and Abrego 2012). We agree that immigration detention should, in accordance with international and national laws, only be used as a last resort in order to prevent the risk of absconding, and should be carried out under conditions adjusted to the administrative nature of the detention.

In addition to the legal-normative question of what uses of immigration detention are permissible and acceptable, there is also the empirical-theoretical question of whether and how immigration detention affects migration preferences, and, if so, whether its influences are a result of deterrence, or whether other mechanisms, such as the perceived (il)legitimacy of the detention, (also) play a role. The central question of this contribution is: How, and to what extent, does immigration detention-under conditions found in the Netherlands in 2011-affect the willingness of detainees to leave the territory of the detaining state, and are eventual changes in detainees' migration preferences produced by deterrence? The analysis is based on unique data that was initially gathered in cooperation with the International Organization of Migration (IOM) (Kox 2011). Semistructured face-to-face interviews were conducted with 81 immigrants who were being held in pre-expulsion detention in 2011, and information was obtained about the administrative outcome of their detention. In this article, we analyze detainees' attitudes as they were expressed during detention. Elsewhere, we analyzed the relationship between detainee attitudes and detention outcomes (Leerkes and Kox 2016), but some results are also reported here. Post-deportation attitudinal changes lie outside the scope of the study. The data were fully reanalyzed after the cooperation with IOM had ended.

It is conceivable that immigration detention indeed causes forms of deterrence that, in some ways, resemble what would be called "specific deterrence" in the context of criminal imprisonment. …

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