in fulfilment of the requirements of the PhD Degree in Social and Political Sciences (“Docteur en Sciences politiques et sociales”)

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Autonomising immigration policy

Emergence, organisation, and power of immigration detention in Belgium

Thesis submitted by Andrew CROSBY

in fulfilment of the requirements of the PhD Degree in Social and Political Sciences (“Docteur en Sciences politiques et sociales”)

Academic year 2018-2019

Supervisor: Professor Andrea REA GERME

Thesis jury:

Dirk JACOBS (Université libre de Bruxelles, Chair)

Christian OLSSON (Université libre de Bruxelles, Secretary)

Chowra MAKAREMI (Ecole des hautes études en sciences sociales) Fabienne BRION (Université catholique de Louvain)

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Autonomising migration policy

Emergence, organisation, and power of immigration detention in Belgium

Andrew Crosby

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Per Mamma

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Acknowledgements

This thesis would not have been possible without the various funds that financed my research: the FNRS-FRS, the Wiener-Anspach and the Van Buuren foundations of the ULB, as well as the Mahaim-Waxmeller foundation of the Royal Academy of Belgium. These funds provided me with the financial means to conduct my research in full liberty, covered travel expenses and, most of all, bestowed me with a certain degree of legitimacy, which opened doors and created opportunities. I also would like to thank the labour movement without which there would not have been a welfare system, which has supported me once my scholarship ended.

I would never have been able to conduct research in the closed centres without having been introduced to the general-advisor of the immigration office in charge of the centres. I am very grateful for this to Julie Lejeune, Deborah Weinberg and Antoinette Dutilleux of the federal migration centre (Myria). Though I cannot thank them personally for reasons of confidentiality, I also would like to thank all the people at the immigration office and the staff of the centres for making the fieldwork possible and for accepting, willy-nilly, to be observed and studied. Similarly, I would like to thank all the detainees I met, who shared their stories and views on immigration, detention, and many other things, especially when they knew that it would not help change their situation. A special thanks to Dirk Lagast and all the anonymous interviewees who made it possible to learn about the closed centres and prepare my fieldwork. Thank you also to Frank Caestecker for sending me the statistical data he gathered in the archives of the sûreté. Merci à toute une série de personnes qui ont contribué au développement de mes connaissances sur les centres fermés : Nicole Mayer, Mathieu Bietlot, Francesca Spinelli, Ginou et Matina. Merci aussi aux camarades de l’éphémère

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« Migrations et Luttes Sociales ». Merci aussi à Patrick et Maral pour s’arrêter dans mon bureau lors de leurs passages, me rendant ainsi le contact humain, duquel la rédaction souvent nous éloigne !

A special thank you goes to the people who contributed in material ways to my research.

Thanks to Alfonso Sacco and Koen Hens for their hospitality. Thanks to all the people who helped transcribe interviews and proofread chapters of (earlier versions of) the thesis. Special mentions go to Aurélien, Pierre Rebuffat, Gil “patap”, Léa, Djordje, Federica, Sybille, Daniel, Aurore, Julia, Rob, Elisielle, Sam “Tomat”, Alicia, my cousins Anna, Seonaid and Neil Crosby, and, of course, my Dad, Scott Crosby, who for many years now has been inflicted the joy of proofreading every single piece of literature I wrote!

Thank you to the members of the jury some of whom have followed my work for a couple of years now. Un remerciement particulier à Andrea Rea, mon promoteur, pour tous ces bons conseils, toujours trop nombreux pour s’en souvenir, aussi quand d’une rencontre à l’autre ils étaient parfois contradictoires .

Merci à tous mes collègues du GERME, et à tous mes amis. In particolare gli amici del Faro: il vostro richiamo è più forte di quello del mare e delle granite!

A special thought goes out to those who passed but who would have been proud to see me finish my doctorate: Grandpa Bill, Granny Margaret, Nonna Graziella e Nonno Marcello, e tutti gli zii e le zie.

As I was finishing this thesis, towards the end of December 2018, we discovered my Dad had pancreatic cancer. I would like to express my gratitude to all the friends who were in the front-line to help me absorb the shock: Heikel and Maïté, Thomas “morse”, Eva, Johanna, Tho, Winald, Alexander, Pierre, Cristovao, Lode (voor de coördinatie op afstand), Billie, Domien; and family friends who have been there for us, supported and encouraged us: Enrico, Jonathan and Sabine, Jean-Louis, “Nonna” Vera e Pippo, Morten, Mariadele, Tina, Stephen and Mercedes, Burkhart, Alistair, and many more. I am also very grateful to my family:

cousins, uncles and aunts, all of whom stood by us, and still do every day, no matter how far!

Un pensiero in particolare per Flavietta, la mia nipotina, perché a tua insaputa mi hai insegnato cos’è l’amore incondizionale! Sei stata, e sarai sempre, fonte di gioia che mi aiuta nei momenti difficili e colora quelli belli. Rafaël, perché la tua venuta ci da nuove speranze, forze e tanta gioia! Francesca, perché anche se da piccolo mi legavi al termosifone, ti voglio un sacco bene – e anche per i nipotini ovviamente!

Dad, thank you for all the discussions we’ve had over the years and for having corrected most of the chapters of the thesis despite your condition. Most importantly, I am grateful for

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your determination and serenity, which are a source of admiration, courage and strength for us all. Adversity has brought us closer together to face the most challenging fight ever. As I write these lines you still have to undergo a serious operation. I hope our efforts and love will make you strong and help you recover quickly! I love you, thank you for everything! Mamma, la lista di ringraziamenti che ti meriti è troppo lunga. In particolare, grazie per la tua forza, il tuo coraggio e per tutto l’amore che non ti sono mai mancati e che sono stati fondamentali! Se mancano le parole è solo perché non possono descrivere l’amore e la gratitudine nei tuoi confronti. Ti voglio un bene incredibile e ti abbraccio forte forte!

For setting the example on how to face adversity, I dedicate this thesis to my parents.

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List of figures and graphs

Figure 2.1: location of the closed centres in Belgium. ... 61

Graph 3.1: number of circular instructions concerning surveillance, passports and expulsion, 1830-1852. ... 86

Graph 3.2: expulsions by royal decree and administrative decision, 1861-1914. ... 90

Graph 3.3: expulsions (administrative + royal decree) broken down to motive of expulsion, 1919-1939. ... 95

Graph 3.4: the number of staff employed at the IO at the end of each year, 1989-2013. ... 113

Graph 3.5: variations of the nominal price of wheat (annual averages) and the number of totality of expulsions, 1835-1872. ... 118

Graph 3.6: variations of the constant price of pig iron and the totality of expulsions, 1873- 1914 ... 120

Graph 3.7: variations of the number of unemployed people, net migration and expulsions, 1920-1939. ... 123

Graph 4.1: evolution of number of detainees in the centres and expulsions from the centres (2000-2016). ... 153

Graph 4.2: evolution of the daily average of detainees in Vottem and Merksplas, and of the staff of the centres, 1999-2013 ... 153

Graph 4.3: voluntary and forced effective returns, 1997-2016. ... 174

Graph 4.4: voluntary and forced effective returns in %, 1997-2016. ... 175

Figure 5.1: satellite view of the centre of Merksplas. Source: Google maps. ... 179

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Figure 5.2: sketch of mess hall in block I. ... 182

Figure 5.3: sketch of common room in block I. ... 186

Figure 5.4: satellite view of 127 bis in Steenokkerzeel. Source: Google maps. ... 188

Figure 5.5: sketch of the “SA”. ... 190

Figure 5.6: satellite view of the centre in Vottem. Source: Google maps. ... 194

Figure 5.7: sketch of a normal wing (right side) in Vottem. ... 195

Figure 5.8: sketch of normal room in Vottem. ... 199

Figure 5.9: sketch of room in the secure wing in Vottem. ... 199

Figure 5.10: sketch of mess hall and common room of a normal wing in Vottem. ... 200

Graph 7.1: percentage of ex-prisoners compared to the total detained population per year in the centres of Vottem and Merksplas. ... 282

Graph 7.2: annual number of ex-prisoners in the centres of Vottem and Merksplas. ... 283

Figure 8.1: organisational chart of the centres ... 345

Figure A.1: organisational chart of the IO. ... 415

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List of abbreviations

ASB Annuaire statistique de la Belgique/ Annuaire statistique de la Belgique et du Congo belge

CCF Commission centres fermés

CECLR Centre pour l’égalité des chances et de lutte contre le racisme (now Myria) CEOFR Centre for equal opportunities and for the fight against racism (CECLR, now

Myria)

CIM Centrum voor illegalen Merksplas CIV Centre pour illégaux Vottem

CPT European Committee for the Prevention of Torture and Inhuman or Degrading Treatment of Punishment of the Council of Europe

DII Directives on interventions and interactions

EU European Union

EZA Extra Zorg en Aandacht

FC Statistical data provided by Frank Caestecker GCCC General Coordination and Control of the Centres GCF Gesloten centra/centres fermés (detainee database)

IO Immigration office (translation of office des étrangers and dienst vreemdelingenzaken)

MAT/MAS Medical Advice Status/Medical Advice Transport

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Myria The federal migration centre PdE Police des étrangers (now IO)

RC 127 bis Repatriëringscentrum 127 bis (Steenokkerzeel) SAA Security-assistant attendant

SAC Security-assistant coordinator SC Security collaborator

SJB Statistique Judiciaire de la Belgique SP Sûreté publique (now IO)

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Preso con l’ultimo invito di un progetto Che si presenta nel nome della verità You know falling in illusion Catturati nel sonno della nostra età Un messaggio ripete che il mio posto è qui Mostra tutti i vantaggi e le comodità Rag-doll dimmi se ci sei anche tu In un lago di sangue detto libertà Brucia ancora che prima o poi ritornerò Conservo di nascosto sempre lo stesso smalto Non temere zeta reticoli on my mind Aspetterò il momento per un migliore slancio Neri quei giorni che passano senza di te Quasi convinto che in fondo sia meglio così Allentare la presa per merito di Chi mi consola ed esorta alla rinuncia Ma la pelle rigetta quel sorriso che Trapiantato da bocche riverenti No, lo sai non funziona su di me Ostinato a ripetere tra i denti Brucia ancora che prima o poi ritornerò Conservo di nascosto sempre lo stesso smalto Non temere zeta reticoli on my mind Aspetterò il momento per un migliore slancio Meganoidi, Zeta Reticoli

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Introduction

1. What are closed centres?

In this thesis I analyse the genesis, evolutions and daily organisation of the “closed centres” in Belgium. Closed centres are immigration detention centres run by the Immigration Office (IO), which is an administration of the ministry of the interior. At the time of writing there are five closed centres in Belgium. I have conducted fieldwork in three of these centres, which are the focus of this thesis: the centre pour illégaux de Vottem (CIV) near Liège, the repatriëringscentrum 127bis, in Steenokkerzeel (next to the international airport near Brussels) and the centrum voor illegalen Merksplas (CIM), in the province of Antwerp and near to the Dutch border.

The closed centres detain foreigners who do not or no longer have the right to stay in Belgium. They may have been stopped at an entry point of the territory because they lacked the required documents or means of subsistence, because their travel purpose was not deemed credible, or because they did not meet other specific requirements. The detainees may also have been in Belgium for quite some time, sometimes even several years and may have known periods during which they had a residence permit and periods during which they did not; they may have worked both in declared as well as undeclared jobs; they may have been to school in Belgium, have family and a have developed strong social and local ties; they may even have Belgian children or relatives. Others still may have applied for asylum, but have had their case rejected or they may have passed through another member state of the European Union and are thus sent back to that country according to the Dublin regulation.

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Some have lost their residence permit for misdemeanours or crimes they committed; etc.

There is no single criterion other than the absence of a right to stay in the country that determines why one becomes eligible for detention in the eyes of the administration. Though detention is a deprivation of the right to liberty, the absence of a valid residence permit is not a crime, but an administrative contravention. If criminalising the absence of a valid residence permit is not forbidden by EU-law and the case-law of the Court of Justice of the EU (CJEU), member states are nonetheless not allowed to criminally sanction the simple fact of irregular presence on the territory as this would delay the execution of removal measures. In other words, irregular presence can only be criminalised as an aggravating factor and never be criminalised by itself.¹ In Belgium, this leads to a longer prison sentence, which is sat out in a penitentiary, not in a closed centre. Consequently, foreigners detained in the closed centres are not detained for any other reason than the absence of valid residence permit.

Furthermore, not all foreigners without a valid residence permit and who are known by the authorities are detained. There are at least two reasons for this. The first is that the number of places in the centres is limited. There are approximately 600 places at the time of writing and the government has approved an expansion of the detention estate to reach approximately 1100 places by 2021. In contrast, every year the IO delivers several tens of thousands of orders to leave the territory to third-country nationals and other several thousands to residing foreigners for various reasons. In 2017, for example, the IO delivered 19,351 orders to leave the territory to foreigners without valid residence permits who were intercepted in the streets during police controls, and delivered another 3983 orders to foreigners who resided legally in the country, including EU-nationals, to which one must add all the orders delivered to asylum seekers and foreigners who applied for regularisation but whose claims have been rejected. In total this amounts to 45,601² orders to leave the territory, of which in 7105 cases the foreigners involved were detained in 2017.³ The second reason is that foreigners are not detained when issued their first order to leave the territory unless they represent a threat to public order or national security. Instead they are given a period of time to leave the country independently or through assisted voluntary return. Only when caught again after this period of time does the IO consider them eligible for detention because then it can officially claim that the risk of absconding, as defined in the return directive, is real. Technically speaking this rule also applies to asylum seekers for whom Belgium is not responsible to analyse their case.

1 For a review of the case-law of the CJEU see Crosby 2014.

2 Data received by e-mail from the statistical department of the IO on 12 November 2018.

3 Sources: Office des étrangers 2018.

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However, regularly they are sent immediately to the 127bis in Steenokkerzeel.

Lastly, of the 12,494 effectively removed foreigners in 2017, 5516 left the country independently or through assisted voluntary return. This amounts to 44.15% of all effective removals. In 2013 and 2014 this percentage reached respectively 51.36% and 50.72%.¹ These numbers illustrate the government’s repeated adage that return is carried out “voluntarily if possible, coercively if necessary”², by which it means that foreigners always receive the chance to avoid coercive measures. Although in the light of all these numbers immigration detention represents but a marginal fraction of the government’s expulsion policy, it nonetheless is considered to play a fundamental role in the fight against “illegal” immigration and to be the backbone of a credible migration policy. Without the threat of potential detention, it is argued, people would not consider respecting the order to leave the territory, but would simply go underground. This reasoning underlies the recently approved expansion of the detention estate of the closed centres, which would increase the chances of being detained and thus compel more foreigners to leave when so ordered.

Prima facie this reasoning seems logical and sound. Immigration detention, a permitted exception to the right to liberty according to the European Convention on Human Rights (ECHR), is used only to enforce a democratically enacted law and not to punish. As such, migration policies in Belgium have always been presented as humane, because they are considered fair even when they seem harsh. In other words, it is considered always to be proportionate according to the desired ends. Similarly, the daily detention policy with all its rules and regulations is said to be humane because it imposes only the strictly necessary minimum of coercive measures to manage the population of the centres, detainees and staff alike, in a way that the rights of all are respected. Above that, contrary to the standard case- law of the European Court of Human Rights (ECtHR)³, detainees are considered to play a fundamental role in the length of time they are detained. If they cooperate with removal procedures, it is argued that they will be able to leave the centre rapidly, while longer periods of detention are imputed to their lack of cooperation. In other words, the authorities do not consider it a fully-fledged detention, because detainees are considered to be allowed to leave anytime provided it is to their country of origin – or any other country where they have a residence permit.

Nonetheless, the policy of detention is problematic and has often led to well-founded

1 Myria 2016; Office des étrangers 2016; 2017.

2 See the governmental declaration of 14 October 2014, Doc. Chamber, n° 0020/001, 14 October 2014, p. 11, 172.

3 For a review of the case-law of the ECtHR see Crosby 2012.

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criticism and even condemnations before the ECtHR. Consequently, over the years the government and administration have had to tackle these problems. As such, the emphasis on the humane aspect of detention and the administration’s efforts to humanise it as much as possible indicate that the sound and logical reasoning does not always reflect just and fair policies or their implementation. Nevertheless, the efforts of humanisation illustrate the government’s and the administration’s commitment to the improvement of detention conditions, the treatment of detainees and the implementation of a humane detention policy.

However, if the detention policy in Belgium has evolved over the years, detention in general, especially when it is not surrounded by the same legal safeguards available in criminal law, keeps raising many issues as testified by the fact that immigration detention centres all over Europe are included in the CPT’s monitoring activities and by the development of the case-law of both European courts on the issue of detention and expulsion.

It is no surprise, then, that human rights issues have always been central in the research on immigration detention.

In Belgium, writing about detention started first at the margins of the legal profession as commentaries on case-law on detention.¹ The question of detention has also triggered legal scholars to analyse the state’s right to detain foreigners. Often based on case-law analysis or the evolutions of the legislative measures, this literature has primarily looked at the tension between international human rights instruments and the sovereign right of states to enact immigration policies, of which detention is part.² Over the years NGOs all over Europe have accessed detention centres and have thus been able to observe first-hand what happens in detention and gather testimonies of detainees.³ Though the data they collect and analyse is different than that of legal scholars, they share a same normative positioning. Taking the international and domestic legal framework as a starting point, both analyse the tensions between sovereign power and human rights. Where there are conflicting legal norms, they analyse which ones have priority over the others. As such, despite the different data and methods of collecting it, both have the ambition to analyse the normative legal framework of detention.

These approaches, however, are not capable of explaining and understanding what happens in the centres, why it happens or what the rationality of detention is altogether.

1 See: Bernard 1994; De Valkeneer and Winants 1992; Denys 2000; Declerq 1988; Kefer 1989; Vanheule 1993;

Vanheule 1995; Sarolea 1996.

2 See: Chétail 2007; Teitgen-Colly 2007; Cornelisse 2010; Wilsher 2012; Crosby 2012; 2014.

3 See: Rodier 2002 for France. For Belgium see: Aide aux personnes déplacés et al. 2006; Caritas international et al. 2016; CECLR 2004, 2008; CGKR 2005; and for Europe in general, the website of Migreurop, http://www.migreurop.org.

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Furthermore, case-law analyses and normative positioning have the defect of only looking at the very specific problems of violation of rights rather than looking at the continuity between legal practices, liminal practices and illegal practices and fail to explain their recurrence. A sociological approach that focuses on the organisational aspects of detention is therefore necessary to understand the recurrence of human rights issues despite the good will of workers and of the administration.

2. Scope of the study

According to Mary Bosworth, detainees, staff and even academics often compare immigration detention to prison or to camps in attempts to make sense of this institution that imitates the penitentiary, but does not have its vocation. Consequently, she argues that the development of a new vocabulary is required to truly analyse and understand immigration detention.¹ According to Bosworth a reason that explains this lack of vocabulary is the fact that most of the academic debate on immigration detention has developed independently from direct observations and sustained engagement with the experiences of the people in detention, whether staff or detainees.² One of the main reasons for this is that access to detention sites is not easily granted for research purposes, such that much of the academic literature is based on what, in the field of prison sociology, Manuela Cunha³ has qualified as “quasi-ethnography”, that is, on-site research that is not entirely independent of institutional filters. Many researchers have indeed conducted such fieldwork in immigration detention as members of organisations such as the Red Cross⁴, monitoring NGOs that offer legal services⁵ or psycho- medical assistance⁶ for detainees, or were simply given limited access to the premises⁷. Furthermore, often scholars who have obtained access to detention sites have only focused on a specific group of the detention population, studying either the experiences of detainees⁸ or of staff⁹. The internal structure of daily routine and practices has generally not been the

1 Bosworth 2013, p. 162.

2 Bosworth 2014, p. 52.

3 Cunha 2014, p. 225.

4 E.g. Lemaire 2017.

5 E.g. Makaremi 2009a; Fischer 2009a; Darley 2009a.

6 E.g. Fili 2013.

7 E.g. Cleveland and Rousseau 2013; Kronick et al. 2017.

8 E.g. Khosravi 2009; Breuls 2017.

9 E.g. Hall 2012; Rezzonico 2017a; 2017b.

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central focus of research.¹ Those who have, have only looked at how practices and routines were structured, without looking at why they were so, that is, at how immigration detention evolved to what it is today.²

In this thesis I attempt to combine the different approaches mentioned above by looking both at how the daily organisation is structured as well as by looking at its birth and evolutions to understand why it is structured in one way rather than another. The scope of this thesis, then, is to contribute to our general understanding of immigration detention and of humanisation through the case-study of the Belgian closed centres. In fact, humanisation, a term relating to a type of institutional reform, is inextricably linked to the rationality of the spaces of detention subjected to it. As such, understanding either contributes to understanding the other.

In the institutional literature – i.e. the literature on prison, psychiatric hospitals and immigration detention – humanisation has been treated in different ways. Often, humanisation is presented in terms of policy reforms to improve the legal position of the detainee. In most (post-)industrial, Western countries, the humanisation of psychiatry has led to

“deinstitutionalisation” and “transinstitutionalisation”,³ while in prison and immigration detention humanisation is considered to have led to increasingly important role of the rule of law, in particular of the rights of detainees.⁴ Reform has also been analysed with scepticism as to its capacity to actually guarantee the rights of detainees. In the following paragraphs I briefly review these different approaches, developed primarily in the prison literature, to then look at how they have been applied to immigration detention.

In the Francophone prison sociology, following the analyses of Antoinette Chauvenet, Françoise Orlic and Georges Benguigui⁵, authors speak of the “detotalisation” of total institutions.⁶ Treating prison, psychiatric hospitals and immigration detention centres as Goffmanian total institutions⁷ sealed off from society, they consider the reforms of the past decades as the “opening” of these institutions through which “external” actors such as social assistants, psychologists, lawyers, NGOs, etc. have “entered” the institution. As such they argue that the rule of law, and in particular the human rights of detainees, have entered the

1 Though see Hall 2012; Gill 2016.

2 Though see Makaremi 2009a; Darley 2009a; Fischer 2009.

3 Fakhoury and Priebe 2007; Primeau et al. 2013.

4 Cunha 2014, p. 221-222; Fernandez et al. 2015, p. 375; Darley et al. 2013, p.11-12; Darley and Lancelevée 2016, p. 8.

5 Chauvenet et al. 1994, p. 71.

6 Rostaing 2001, p. 137-153; Fernandez et al. 2015, p. 375; Darley et al. 2013, p.11-12; Darley and Lancelevée 2016, p. 8.

7 Goffman 1991.

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institution, play an ever increasing role, and have thus contributed to “detotalise” its “total power”. Similarly, in prison criminology authors speak of the “normalisation” of prison.¹ From this perspective, prison reform is considered to contribute to the improvement of public services such that the prison can be considered a “normal” institution among others.

Normalisation challenges the long-held idea of less eligibility according to which prison conditions should be bad so as to deter people from committing criminal acts. In other words, humanisation intends to reduce the gaps between “inside” and “outside”.

Such perspectives are heavily influenced by the classical prison literature in which the prison is considered to be a society of itself with its own rules and culture.² Consequently, speaking of “detotalisation” or “normalisation”, authors seek to analyse the “tensions” and

“contradictions” that arise from the “entry” of “external” principles into the “internal”

structure of the institution. As such Chauvenet et al. consider the work of the prison guard to be fraught with contradictory missions. On the one hand, they have an internal mission of public order, which requires the use of discretionary power to obtain the necessary cooperation of prisoners, while on the other their work is legally circumscribed by external, strict legal norms to avoid abuses.³ From this perspective, more recently scholars have analysed how the entry of non-custodial workers in the institutional landscape has led to new contradictory missions and tensions. On the one hand, scholars have studied the tensions between custodial and non-custodial staff and how this affected the practices of both⁴; on the other, this has led scholars to define the new mission of these institutions as one at the intersection of penal power, social work and medical care.⁵ The modern “detotalised”

institution, in fact, no longer simply exerts disciplinary or total power, but also cares about the physical and mental health of its population as a gauge of its commitment to the rights of detainees.

In a criminological literature that is predominantly Anglophone, prison reform has also been analysed in a more empirical way. The theoretical underpinning here is that, as argued by James Jacobs, the prison is not separated from society, but evolves with it. As such Jacobs does not see the entry of rights and procedural safeguards as the “entry” of “external”

principles, but simply as society’s evolutions reflected in the prison. Instead of speaking of

1 See Cunha 2014 p. 221-222.

2 Clemmer 1958 [1940]; Sykes 1958; Goffman 1991.

3 Chauvenet et al., chapter 4 “La logique bureaucratique et la logique du maintien de l’ordre, une contradiction fondamentale”, pp. 63-76.

4 E.g. Young 2016; Irwin 2008.

5 Darley et al. 2013; Darley and Lancelevée 2016.

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“detotalisation”, he speaks of the “managerialisation” of prison.¹ Though from this perspective no particular attention is paid to the forms of power that operate in prison, managerialism is nonetheless considered to serve several strategic aims: the obtention of compliance by providing a good service, including the possibility to formulate grievances concerning the regime; the protection of the institution from scandal and litigation through the observance of externally imposed rules and standards; and lastly the regain of control over officers by limiting their scope for discretion and insisting on increased accountability and the execution of formal procedures.² In general, it is argued that the prison force has become less brutal and that preference is given to forms of soft-power whereby the quality of the staff- detainee relations is of primordial importance.³ In this literature, then, the focus has been much more on the actual impact of reform, among which the privatisation of prison in Anglo- Saxon countries, on service delivery.⁴

The rationality of prisons has also been analysed in terms of forms of power and class struggle. Marxist scholars have argued that to each type of productive system corresponds a form of punishment.⁵ Consequently, penal reform, among which humanisation of prison, corresponds to changes in productive structure. The prison is considered to strengthen the domination of the ruling classes by regulating the population of the poor.⁶ From a similar perspective, Michel Foucault has illustrated how the mental asylum and the prison, respectively contributed in creating the figure of the insane and of the delinquent.⁷ Foucault sees in the recurrent criticism of the failure of the prison to rehabilitate prisoners, the success of constructing and presenting delinquency as an autonomous social phenomenon, which is mostly associated to particular “illegalisms” of certain layers of the working class.⁸ As such, the prison and penal reform are instruments of power. Consequently, instead of treating prison reform as a failure, he considers it to be the mechanism through which the prison reproduces and consolidates its legitimacy.⁹

Foucault’s analysis of prison reform as a mechanism of institutional reproduction has also influenced the “detotalisation” literature in which the entry of the rule of law and of non- custodial staff are seen as increasing the legitimacy of detention on the one hand, but, on the

1 Jacobs 1977, chapter 4 “Emergence of a Professional Administration”, pp. 73-104.

2 Sparks et al.1996, p. 58.

3 Crewe 2011.

4 Harding 2001; Liebling 2006; Crewe et al. 2015.

5 Rusche 1978 [1933]; Rusche and Kirchheimer 1968.

6 Melossi and Pavarini 1977; Garland 1985; Wacquant 2004.

7 Foucault 1972; 1975.

8 Foucault 2015, p.150.

9 Foucault 1975, p. 271-272.

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other, are also considered as having led to new practices that have increased the cooperation of detainees. Consequently, “detotalisation” is considered instrumental in the maintenance of order such that the social work, care and security become indistinct.¹ In other words, this literature has looked at the relations of power between the institution and the detainees.

Though the literature on “managerialism” has not explicitly theorised or emphasised power relations in prison, it has shed light on the political and even ideological functions of prison reform. Next to the political-economic arguments on reduction of state expenditure, for example, the privatisation of prisons has been considered to be an effective way of increasing managerial control by reducing the strength of trade unions.² As shown by Alison Liebling, prison reform in England and Wales has shifted the power basis of the prison from prisoners and trade-unions to management. She argues that the prison officers association lost most of its already weak power, since it agreed with cost and staff reductions with which it never would have agreed in the past. Similarly, whereas previously prisoners constituted an informal network of power with which the prison administration negotiated to maintain the peace, reform has led to the silencing of prisoners’ voices by breaking their solidarity through mechanisms that focus on their individual responsibility.³

These different analyses of institutional rationality and institutional reform have their equivalents in the literature on immigration detention. From a Marxist perspective, immigration detention is considered to contribute to the “industrial reserve army” by maintaining foreign labour power in a precarious socio-economic position such as to make it more malleable for the necessities of production.⁴ Arjen Leerkes and Dennis Broeders, instead, argue that the “irrationality” of detention becomes intelligible if we consider it to serve a plurality of scopes such as deterrence of irregular residence, managing a pauperised population of irregular migrants and to manage popular anxiety on illegal immigration.⁵ From a genealogical perspective other authors have argued that immigration detention belongs to that family of “camps” intended to regulate and manage excess population and see ties of filiation between immigration detention, prison, war camps, refugee camps, etc.⁶

Reform, and in particular “humanitarian” reform, has been considered to have contributed to the legitimacy of immigration detention. Chowra Makaremi, for example, argues that the systematic reconfigurations of the rights of foreigners and of the administration should not be

1 Darley et al. 2013; Darley and Lancelevée 2016; Lancelevée 2016.

2 Moyle 1995; Harding 2001

3 Liebling 2006, p. 426-427. See also Bosworth 2007 on the responsibilisation of the individual prisoner.

4 De Genova 2002; De Giorgi 2006; 2010; Bietlot 2005.

5 Leerkes and Broeders 2010.

6 Bernardot 2008; Clochard et al. 2004.

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considered as a setback for the prerogatives of the state, but rather as a series of adjustments through which the state negotiates new possibilities to legitimately exercise its police powers.¹ Nicolas Fischer, instead, has looked at the relations of power that follow from such reforms by analysing the relations of power between humanitarian actors (NGOs, doctors) in charge of social, legal and medical assistance of detainees and the police in charge of security in French detention centres. Here, order in the centre as well as the respect of the rights of detainees is presented as resulting from the negotiations between these opposing forces.²

In general, the relations of power in immigration detention have been analysed only between institutional actors and detainees or “humanitarian” actors. Alexandra Hall, for example, has shown how the custodial staff in immigration detention exercised a constant disciplinary power by observing and interpreting every move of detainees.³ Makaremi has shown how biopower was exercised at the detention centre of the Charles de Gaulle airport, where the body of the detainee is exhausted to induce the detainee to accept and comply with the expulsion measure.⁴ Mathilde Darley, instead, has shown how detainees are not merely victims of detention, but how they manage to turn detention into a moment where they collect trustworthy information on routes to follow and places to go from fellow inmates, such that detention no longer becomes an end-point of the migratory process, but transforms into a place where they readjust their projects.⁵ Lastly, Louise Tassin has shown how the privileges granted to detainees in the optic of humanisation have been instrumental in increasing the control of the police over detainees.⁶

Important as these contributions are, they have two important limitations which I wish to overcome in this thesis. First of all, they have treated institutional actors as well as humanitarian actors and detainees as homogenous blocs. As such no one has looked at the relations of power within these blocs, for example by looking at hierarchical relations in the organisation of detention. Yet, as shown in the prison criminology discussed above, reform has not only increased the legitimacy of the institution, it has also changed the position of prison guards and prisoners, thus altering the relations of power within the organisational structure of the prison. The organisational perspective I adopt in this thesis should help overcome this first limitation. Secondly, as in the prison literature, no study has integrated the different analyses discussed above. Integrating the organisational perspective with a

1 Makaremi 2009a, p. 190.

2 Fischer 2009a ; 2009c.

3 Hall 2012, chapter 2 “Visual Practice and the Secure Regime”, pp. 27-52.

4 Makaremi 2009b.

5 Darley 2009b.

6 Tassin 2014.

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Bourdieusean analysis of symbolic power in this thesis, I combine these different approaches such that I can account for the way the daily routines and practices are structured, for the relations of power within the closed centres, as well as for the rationality of the closed centres in general and how the process of humanisation has affected these different aspects.

3. Theoretical approach

To develop an analysis that accounts for the way actors structure the visible side of the policy and how their actions are at the same time structured by it, I articulate Michael Lipsky’s theory of street-level bureaucracy and the strategic analysis of Michel Crozier and Erhard Friedberg with Pierre Bourdieu’s field theory. All have in common an interest for the actors and their practices, but emphasise different aspects. As shown by Lipsky, street-level bureaucrats have to be considered policy-makers because the way they put public policy into practice, is what the citizen experiences as public policy. What is more, putting public policy into practice, these street-level bureaucrats have to interpret the policy applicable to each single case they face, while dealing with a set of constraints that often hamper their work. In other words, to differing degrees the implementation of the public policy is left to their discretion.¹

The theories of Crozier and Friedberg², and of Bourdieu, instead, enable us to objectify the practices of street-level bureaucrats by looking at the underlying structure of power relations between actors. In fact, from the legislative process, passing through the practical and organisational constraints faced by the street-level workers to the service delivery experienced by the citizen, the policy outcome is always the result of power relations. Put differently, the genesis and implementation of the policy is a social construction, which is structured by the power struggles between actors, groups of actors, institutions, etc., all of whom have particular interests in the way the policy is conceived and implemented and consequently apply different strategies to achieve their goals.

Lastly, Bourdieu’s approach enables us to combine the synchronic analysis of these power relations with the diachronic one. The diachronic analysis is important to understand the accumulation of power of certain actors, and thus to account for its differential distribution, which in turn enables us to understand the relative stability of these relations of

1 Lipsky 1980, p. 13-14.

2 Crozier and Friedberg 1981.

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power, of institutions, of the policy process and of how change occurred and might occur.

Following Bourdieu¹, I consider the relations of power to be struggles for symbolic power to define, in this case, how the policy should be and how the IO and the closed centres should be run. Objectifying the practices of actors by replacing them within relations of power is necessary to avoid reifying certain concepts to explain regularity and differentiation despite the “discretion” or “freedom” of actors.

From this perspective I replace the practices of actors in three specific fields. The first is the field of power of state bureaucracies, which I refer to as the “inter-bureaucratic field”. In this field the institutionalisation of the IO and its forerunners (the sûreté publique (SP) and the police des étrangers (PdE)) is at stake. From a historical perspective I look at how this particular bureaucracy was made, how it accumulated the pertinent forms of capital to become an autonomous institution endowed with a certain volume of state capital that enables it to regulate the specific field of immigration policy. The second field is precisely that of policy- making. Here, the IO competes with other actors to define what movement is to be considered legitimate and what not. The last field is the IO itself. In fact, zooming into the IO we equally find struggles to define the orientation of the bureaucratic work and of the bureaucracy itself.

I have called this field the “bureaucratic field”. The IO can further be divided into smaller, integrated fields constituted by the closed centres in which, again, the different actors compete to have their view of the organisation recognised as legitimate. This field I call the

“organisational field”.

The identification of the different fields and actors at different times requires different methods of data collection. To enable a diachronic analysis of the field of immigration policy I have adopted a socio-historic approach². In particular I have looked at the parliamentary works and normative texts that shaped immigration policy between 1835, when the first law on expulsions was adopted, and 1993 when the detention of foreigners was institutionalised.

These documents illustrate the different positions of political actors on the issue. However, since these documents hardly cover the whole field, I have also looked into the published collection of circular instructions with regard to the field. Through these instructions we have access to the position and strategies of other actors such as the administration of the SP.

Lastly, I have tried to establish the relations the field had with the economic field to measure the degree of autonomy of the field. These three sets of data all shed a different light on the actors, their discourses and practices through time. The comparison between these findings

1 Bourdieu 1971a; 1971b; 1991; 1993; 2000; 2001; 2013; 2014.

2 Noiriel 2006.

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enables the reconstitution of the positions of the different actors and their evolutions through time, so as to reconstitute the field and its rules as they were and see how this gave rise to the institution of contemporary immigration detention.

Understanding the initial emergence of the centres with their specific rules enables me to understand the problems, stakes, opportunities and threats faced by the actors in the different fields, how this led to change and shaped the centres as we know them today. Understanding the stakes at play and how they structured change, contributes to our understanding of the rationality of the centres. This brings me to combine the diachronic and the synchronic analysis of the closed centres for which I have collected data through preparatory interviews with former members of staff, ethnographic fieldwork in three closed centres (which included extensive participatory observations, interviews with staff and detainees) and through document analysis. Here, I consider the IO to be a specific bureaucratic field within which each centre forms a smaller organisational field, each of which has its specific history and evolutions. Against this background, I look at the daily practices of staff and compare them between centres. This helps me understand why each centre, with its particular history, functions the way it does today, while the comparison between the centres enables me to understand the overall underlying structure.

In short, by adopting a field perspective I am able to reconstitute the emergence of the closed centres as the result of important changes in the field of immigration policy-making by looking at the positions and actions of the different actors. This brings me to my research questions and outline of the chapters.

4. Hypotheses, research questions and outline of the chapters

Considering how the question of human rights and dehumanisation are central in the literature on detention, and considering how the official detention policy of the Belgian government is that of a “humane” detention, the preliminary question of the thesis, that is, the question that set my research and curiosity in motion, is: how do we explain that even in Belgium, where so much effort has been put in humanising detention, during my fieldwork detainees still felt treated unfairly, unjustly and in some cases even “treated like animals”? Put differently, how do we explain that in Belgium, where detainee-staff relationships were often

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cordial, detention conditions were relatively good by international standards and certainly superior compared to the camps at external borders of the EU and beyond, the complaints of detainees were similar to those of detainees in these camps? I will not treat this question frontally as I consider it to be symptomatic rather than causal. It is this curiosity, however, that triggered my questioning and that I argue has to be answered by looking at the dynamics of the different fields in which detention is situated.

Following the theoretical framework briefly sketched above, the main hypothesis of this thesis is that the creation of the closed centres in Belgium contributed to the autonomisation of the migration policy-making field by contributing to the hegemonic position of the IO in this field. From this main hypothesis derives a second one according to which the evolutions of the centres, in particular the process commonly and officially referred to as

“humanisation”, have to be considered as further processes of autonomisation of the policy- making field as they contribute to the consolidation of the dominant position of the IO. In fact, within the centres humanisation contributed to a reversal of the relations of power.

Where once security staff were dominant, which was considered problematic both inside as outside the centres, now social staff and management are, which is considered to be a better guarantee against arbitrariness. With this reversal of power relations, the regime of the centres changed, and thus also the conditions of detention. However, this process of humanisation has not emancipated detainees, who throughout the process have occupied the same position in the social structure as well as in the structure of the organisational field.

Against this background, the first research questions relate to the emergence and evolutions of the immigration policy-making field. How did a firstly unorganised social space in which the presence of foreigners was problematised emerge and which actors participated in this space? How did this space become structured to form a field and how did it evolve to give rise to the institutionalisation of contemporary immigration detention? Looking at immigration detention as an organised bureaucratic sub-space of the IO, how did the organisational field stabilise and which actors structured the field and in what way? Turning to contemporary practices, how is the organisational field of the centres structured today and how does this affect the implementation of the policy of detention? In particular, having looked into the emergence, stabilisation, changes and current structure of the field, what does this tell us about humanisation (and consequently about dehumanisation)?

The chapters are organised in such a way as to follow the emergence and evolutions of the Belgium immigration policy. I start by discussing the theoretical framework that guides my analysis and which explains the use of certain concepts. I discuss the merits of the street-

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level approach and argue that its limits can be bridged by articulating it with Bourdieusean field theory. I then present the central tenets of field theory and how they can further fine-tune some aspects of organisational theory. In fact, if field theory has been used to analyse policy- making, it has not (often) been used to analyse how organisations, such as detention centres, work. Thus, I briefly compare both theories to show their compatibility and complementarity.

If the focus of my analysis lies on the practices of the various actors, in this chapter I discuss the necessity to historically and socially situate these practices to understand the differential distribution of power and the different positions of actors in the different social spaces. In particular I discuss the principle of autonomisation that is central to understand my hypothesis.

If chapter 1 enables the reader to understand how I analyse the emergence and evolutions of the Belgian immigration policy that led to detention, in chapter 2 I discuss the steps I took to enter the centres to conduct my fieldwork, how I collected the different kinds of data and why they can be juxtaposed in one and the same thesis. It also already gives an impression of the social relations in the IO and the centres as my fieldwork had to be negotiated and my presence in the centres became a source of stress for different people spread over the hierarchical line of the IO. Having discussed issues of theory and method, I then turn to the substance of the thesis.

In chapter 3 I give a historical account of the evolutions of the immigration policy- making field from the Belgian independence in 1830 up to the institutionalisation of the closed centres in 1993. In particular, I analyse the position the bureaucracy in charge of immigration occupied in the relations of power to define what kind of movement is legitimate and what not. I look at three different configurations of these relations through time to illustrate how the structure of relations changed, how power was distributed and accumulated, and how this yielded corresponding policies. In the first configuration (1830-1914) the SP occupies a dominated position in the inter-bureaucratic field, but since immigration is not considered to be an important issue, it occupies a dominant position in the policy-making field. In the second configuration (1930-1974), immigration becomes important in economic terms. Other actors enter the policy-making field and manage to occupy a dominant position, which resulted in the policies of active recruitment of foreign labour force and, during moments of high employment, even to neglect the orthodoxy established and defended by the SP/PdE. In the last configuration (1986-1993) I analyse how the IO managed to use the European intergovernmental forums to sideline its domestic competitors in the policy-making field, enabling it to set the agenda and have its views recognised and implemented. The

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creation of the closed centres emerges as part of this strategy of Europeanisation.

In chapter 4 I look at how the regime of the centres evolved over the years. I divide the history of the centres into three periods, which correspond to different configurations of power within the organisational and bureaucratic field. The first period (1988-2000) saw the birth of the closed centres. It is characterised by a relative lack of central organisation and coordination of the bureaucratic field resulting in diverging local practices. Most importantly, however, is the fact that the security teams were in control of the centres, resulting in systematic excesses and abuses of power. Soon central management of the IO, as well as the management of the centres, tried to regain control to limit the excesses as much as possible.

This led to tensions between the security teams on the one hand and the different levels of management on the other. As the IO developed in the second half of the 1990s, so did the unit that had been created to coordinate and control the centres, ushering in a second period (2000- 2005) in which management slowly regained control over its staff. The objective relations within the IO changed, relegating security staff to a less powerful position. In particular, the IO changed recruitment strategies, started providing training, hired extra educators and started slowly standardising practices. In this second period a second tension, which corresponds to this change in recruitment strategies, was added to the first: that between security staff and educators. This second tension reflects the fact that the hegemonic position of security staff was challenged. In the third and final period (2005-present), the centres recognised that violence was endogenous and therefore that they had to adapt the way they worked and approached detainees. The emphasis was put on situational and social measures to avoid the opportunities for violence and increase the legitimacy of the rules and staff. The changes in this last period correspond to the restructuring of the objective relations of the organisational field in which slowly social staff grew more legitimate.

Having looked at the evolutions of the regimes in the centres and how the question of violence was central, in chapter 5 I turn to the daily reproduction of order in the centres. In particular I ask what explained the difference in order in the different centres. I then describe and compare the routines and practices in the different centres that are intended to compel the detainee to comply. If all the centres have similar routines, which they apply in very similar ways, these routines can only explain how order was kept up to a certain level. Above that, the classical routines intended to maintain order, such as admission procedures, disciplinary sanctions and the privilege system, were regularly softened by the under-enforcement of the rules for the sake of good staff-detainee relations and also to maintain order. The comparison between the centres reveals that what ultimately made the difference in peace and quiet in the

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centres was the strategic use of the available space. The centres of Vottem and Merksplas, which managed to use the available space in such a way as to reduce the pressure on the wings, by spreading detainees over a larger area, were calmer than the centre 127 bis in Steenokkerzeel where this use of space had not been made possible.

Against this background, in chapter 6 I ask what the impact of humanisation was if the daily routines were still of a classic disciplinary and carceral nature. Put differently, what changes did the process of humanisation produce? To understand this I argue that it is fundamental to know what the primary task of the centres is. Like prisons and other total institutions, this appears to be the maintenance of order. Thus, I turn to the prison literature and discuss the evolution of approaches to order in prison, which correspond to the evolutions in the centres discussed in chapter 4. The different approaches to order correspond to the organisational structures as they evolved through time. Thus, the disciplinary approach corresponds to the foundational basis of confinement, based on surveillance and punishment.

Contemporary prison sociology further distinguishes social and situational approaches. In a social approach changes are introduced to increase the legitimacy of the rules and of staff so that prisoners will feel less inclined to disobey and more inclined to comply. Situational approaches intervene in the structure of opportunity for deviance. Historically, these last two approaches developed in reaction to the classic disciplinary one, which was typical of total institutions, and, as discussed above, have been classified as “managerialism” in the Anglophone literature¹ and as “detotalisation” in the Francophone one².

On the basis of my observations I add a fourth approach, which I call biographical.

Following this approach staff collect biographical data on the detainee, and in particular data that contains potential elements of risk so as to act preventively. Compared to the other approaches in which the object of observation is the relation between the behaviour of the detainee and the rule, in biographical approach it is the detainee as a subject (henceforth, the detainee-subject) that is observed and who as a subject might be a risk for the organisation.

Thus, the gaze is turned to the person. Not only is the gaze no longer impersonal, but it results in tailor-fitted measures. Some detainees are put under special regimes, which materially modify their “privileges” and rights, even if they have not deviated from the rule. In other words, the biographical gaze produces exceptions to the rule for some detainees, who are considered a(t) risk, to maintain the rules for the rest.

The biographical approach does not supplant the other approaches, but colonises an area

1 Jacobs 1977, chapter 4 “Emergence of a Professional Administration”, pp. 73-104; Sparks et al. 1996, p. 58.

2 Chauvenet et al. 1994, p. 71; Rostaing 2001, p. 137-153; Darley and Lancelevée 2016; Darley et al., 2013.

in fulfilment of the requirements of the PhD Degree in Social and Political Sciences (“Docteur en Sciences politiques et sociales”)

Autonomising immigration policy

Emergence, organisation, and power of immigration detention in Belgium

Thesis submitted by Andrew CROSBY

in fulfilment of the requirements of the PhD Degree in Social and Political Sciences (“Docteur en Sciences politiques et sociales”)

Academic year 2018-2019

Supervisor: Professor Andrea REA GERME

Thesis jury:

Autonomising migration policy

Emergence, organisation, and power of immigration detention in Belgium

Andrew Crosby

Acknowledgements

Contents

List of figures and graphs

List of abbreviations

Introduction

1. What are closed centres?

2. Scope of the study

3. Theoretical approach

4. Hypotheses, research questions and outline of the chapters