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

• DOI: http://doi.org/10.1111/lasr.12297
• Date: 01 December 2017
• Published date: 01 December 2017

Pressured into a Preference to Leave? A Study on

the “Specific” Deterrent Effects and Perceived

Legitimacy of Immigration Detention

Arjen Leerkes Mieke Kox

Immigration detention is formally not a punishment, but governments do use

it to deter illegal residence. This study examines whether and how immigration

detention affects detainees’ decision-making processes regarding departure,

thereby possibly resulting in de facto “spec ific deterrence.” Semistructured face-

to-face interviews were conducted in the Netherlands with 81 immigration

detainees, and their case files were examined. Evidence is found for a limited,

selective deterrence effect at the level of detainee’s attitudes: most respondents

considered immigration detention a painful and di stressing experience, but

only a minority—mostly labor migrants without family ties in the Netherlands—

developed a preference to return to their country of citizenship in hopes of end-

ing their exposure, including repeated exposure, to the detention. In line with

defiance theory, we find that eventual deterrent effects mostly occurred among

detainees who also attributed some measure of legitimacy to their detention.

Among some detainees, the detention experience resulted in a preference to

migrate to a neighboring European country.

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) pre-

expulsion 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

We thank Joanne van der Leun, Dean Wilson, Mary Bosworth, and Daniela De Bono

for their valuable feedback during this project. Please direct all correspondence to Arjen

Leerkes, Erasmus University Rotterdam, T15-36, Postbus 1738, 3000 DR Rotterdam, the

Netherlands; email: leerkes@fsw.eur.nl

This is an open access article under the terms of the Creative Commons Attribution-

NonCommercial-NoDerivs License, which permits use and distribution in any medium,

provided the original work is properly cited, the use is non-commercial and no

modifications or adaptations are made.

Law & Society Review, Volume 51, Number 4 (2017)

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C2017 The Authors Law & Society Review published by Wiley Periodicals,

Inc. on behalf of Law and Society Association

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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 pres-

sure 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 immigra-

tion 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 deten-

tion 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 Main-

waring 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 organiza-

tions believe not, and have criticized the lengthy maximum dura-

tion of immigration detention as well as the prison-like conditions

under which immigration detention is carried out (see for exam-

ple 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 Menj

ıvar

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 adminis-

trative 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 immigra-

tion detention affects migration preferences, and, if so, whether its

influences are a result of deterrence, or whether other mecha-

nisms, 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 detain-

ees to leave the territory of the detaining state, and are eventual

changes in detainees’ migration preferences produced by deter-

rence? The analysis is based on unique data that was initially gath-

ered in cooperation with the International Organization of

Migration (IOM) (Kox 2011). Semistructured face-to-face inter-

views 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

896 Leerkes & Kox

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 imprison-

ment.

1

Here, the wish to prevent additional detention—either

continued or repeated detention—possibly produces “law-abiding

behavior” among those who have actually been detained. Three

varieties of such deterrence potentially exist. First, detainees may

be pressured into cooperating with the deportation procedure by

giving up their claims to legal status or by disclosing their nation-

ality and/or identity. The detaining state has an interest in identi-

fying and documenting (undocumented) detainees, as no country

of origin accepts undocumented returnees (Broeders 2007;

Ellermann 2008). Second, those who are released because of a

failed deportation procedure may try to leave the country on

their own so as to prevent repeated detention. Third, deportees

may refrain from re-immigrating in order to prevent repeated

detention. This study focuses on the first and second variety of

specific deterrence, so understood.

There is only fragmentary and contradictory evidence about

whether and how immigration detention impacts detainees’

migration preferences and behavior. To our knowledge, the pre-

sent study is unique in addressing these questions on the basis of

a substantial number of interviews conducted in detention cen-

ters. Hasselberg (2014: 481) conducted ethnographic research

among 18 foreign-national offenders who were facing deporta-

tion from the United Kingdom, but had been granted bail from

immigration detention. Most respondents indeed perceived the

detention as being designed to pressure them into leaving, and

some of them—especially those who had been detained repeat-

edly—felt that the detention “‘break[s] one down’ to the point of

agreeing to deportation.” Kalhan (2010), too, mentions in passing

that for the United States, there is a deterrent effect in the sense

that detainees may give up their claims to legal status and comply

with deportation in order to end the detention. Mainwaring

(2012), however, argues that economic hardship and political

1

Immigration detention may also produce what would be called “general deterrence”

in case of criminal imprisonment. Here, the fear of detention possibly controls the behavior

of migrants who have not actually experienced the detention center, but who risk being

detained. For example, rejected asylum seekers may decide to leave the state’s territory

“voluntarily,”because they wish to evade pre-e xpulsion detention.

Pressured into a Preference to Leave? 897