The NCADC blog is pleased to welcome three guest posts from Molly Haglund, who has just completed a Masters Degree in Human Rights Practice at the Universities of Roehampton, Gothenburg and Tromsø.  They are edited excerpts from her thesis entitled Punished for Persecution: An Analysis of the Criminalization of the Asylum Seeker in the United Kingdom.

The three posts examine the issues of (1) The Criminalization of asylum seekers, (2) A Tradition of Deterrence and (3) Why Criminalize the Asylum Seeker?

Read Molly’s previous two posts, on the criminalisation of asylum seekers; and a tradition of deterrence.  Today’s post – the final post from Molly in this series – asks why the state criminalises the asylum seeker.

Why criminalise the asylum seeker?

While the contemporary ease with which goods, individuals, and ideas may traverse the globe has greatly augmented international interdependencies through both social and economic exchange, this seemingly shrinking planet has simultaneously posed a threat to the sovereignty of nation states.

The state mechanisms and social processes that have contributed to what David Garland deems a “culture of control” within the UK and the US have been influenced in no small part by the challenges presented to state governments in an increasingly globalized world. He argues, “The risky, insecure character of today’s social and economic relations is the social surface that gives rise to our newly emphatic, overreaching concern with control and to the urgency with which we segregate, fortify, and exclude” (Garland 2001: 194).

With the fate of the free market dictated by “free-floating global economic forces,” state governments have essentially been made, in the words of Zygmunt Bauman, a “collateral casualty of economic progress” (Bauman 2004: 90). Incapable of shielding nations from the insecurities and consequences resulting from unregulated neo-liberal capitalism, the purpose and legitimacy of state governments have been called into question. The urgent need of governments to assert the legitimacy of nation states has been fundamental in the criminalization of migrants and the security context within which they have come to be framed. In the words of James Banks, “The ability to dictate population movement across its borders may be considered one of the few elements of sovereignty that Britain maintains…asylum and immigration policies may be seen as a renationalizing antidote to the denationalizing effects of globalization” (Banks 2008: 46).

Foucault states in Discipline and Punish that, “harsh punishments have been used as public displays of a ruler’s power, designed to reaffirm the force of law and reactivate the myth of sovereignty” (Foucault 1977 cited in Banks 2008: 48). Just as British state sovereignty was established by way of severe sentencing in the past, this dissertation maintains that exclusion on the premise of security serves a similar function for modern day Great Britain. This exclusion is made easier by the criminalization of the asylum seeker and of the foreigner in general.

The use of exclusion naturally implies a hierarchy of individuals—those awarded full rights within the polity, those who have only certain restricted entitlements and, finally, those who are denied inclusion altogether. It is in the creation of this hierarchy that the UK is able, like other developed nation states, to assert its alleged primacy in the eyes of its citizens. The criminalization of the asylum seeker, in addition to the security framework within which the migrant is framed, act as one of the means by which these gradations of worth are created.

The direct exclusion of the asylum seeker by way of containment strategies, confinement in detention centres, and policies that provide little alternative to destitution, as well as the public’s perceived criminalization through the media’s depiction of the asylum seeker as deviant, contribute to the idea that certain individuals have a deserved entitlement to specific rights while others simply do not. This feeds the idea that the British government has a responsibility to allocate these rights appropriately and fuels the demand by UK citizens for the state to do just this.

Matthew Gibney (2001: 10)  aptly explains this hierarchical function:

In order to win the support of those that they have striven to rule, elites have looked for ways of convincing reluctant, divided and diverse peoples that they have an interest in consenting to their rule…State leaders often do not have the interests and needs of their citizens at heart. And even when they do, there will always be neglected and disenchanted sections of their populations who, quite justifiably, feel that their interests do not receive the attention they deserve. How, then, can a state make this claim credible? At a very minimum, any state must convince a substantial section of its citizenry that even if their interests are not particularly high in the state’s calculations, they are at least more important than those of foreigners.

In this way, the exclusion of the asylum seeker (and the lot of deterrence policies used against him or her) finds justification in the eyes of the people. With the great help of political rhetoric and the tabloid press, citizens have come to view asylum seekers as a competitive threat to the economic, social, and political goods that they enjoy or to which they aspire (Gibney 2001). Citizens come to believe that they will unfairly “miss out” if asylum seekers are granted protection by a “soft touch” Britain. The criminalization process, therefore, aids the UK government in its assertion of state legitimacy.

The moral panic that surrounded asylum seekers in the run up to the 2001 general election made a group of individuals who had previously received minor attention a glaringly important issue in need of urgent attention—the remnants of which can still be found in the surveys and polls of present day. Despite an emphasis on behalf of the public for increased control of illegal migration, the inherent difficulties in calculating the number of individuals residing in the UK without permission make demonstrating the state’s effectiveness at solving the problem extremely difficult. Asylum statistics, on the other hand, are more readily available and the number of refugee claimants detained, denied protection, and removed to their countries may be more easily calculated and demonstrated in monthly figures. The British government, therefore, can publicly use these statistics as a means of showing their effectiveness in addressing the issue, as well as support for continued use of exclusionary deterrence policies in asserting state legitimacy. “Ironically, then, the institution of asylum, while established to serve humanitarian goals, has become, in early twenty-first-century Britain, a justification for boosting the coercive powers of the state” (Gibney 2008: 167).

Apart from the serious violation of human rights through the use of deterrence policies, perhaps even more disconcerting is the fact that—in the face of international legal obligations to the asylum seeker—the UK government has chosen to illegally deny desperately needed protection in the name of meeting citizen’s demands. The amount of money poured into the UK’s extensive detention estate attests to the preference given meeting often hysterical public demands over the legitimate requirements of human rights obligations enshrined in international conventions to which the United Kingdom is a signatory.

Despite the millions of pounds in taxpayer money wasted as a result of unnecessary incarceration and unlawful-detention lawsuit payouts, the UK continues to generously exercise its use of detention. In this way, the asylum seeker becomes the immigration victim of a state grappling for control. Much like Tony Blair’s reaction to public pressure prior to his re-election in 2001, in the pursuit of political power, politicians continually put the rights of excluded individuals second to the their political aspirations. “One is tempted to say that were there no immigrants knocking at the doors, they would have to be invented…Indeed, they provide governments with an ideal ‘deviant other’, a most welcome target for the ‘carefully selected campaign issues’” (Bauman 2004: 56). Rather than fulfilling the UK’s legal and moral obligation to refugees, the criminalization of the asylum seeker and the pursuit of deterrence policies take precedence over the potentially detrimental impact on one’s political reputation in doing the right thing. “The principle of electoral democracy is thus deeply implicated in the rise and maintenance of restrictive asylum policies” (Gibney 2001: 17).

The social distance between the asylum seeker and the public naturally makes alternatives to the overpowering voices of politicians and the popular press difficult to counter, however, it is common experience that the appearance of things tends to be very different from their reality. The late Cardinal Basil Hume, former Archbishop of Westminster and President of the organization Shelter, once said: “It seems to me that the reception given to those applying for asylum is an illuminating indicator of the state of a society’s moral health” (Shelter 2001: 3).

The deterrence policies enacted and continually expanded by the United Kingdom find their support in its people. To redress this serious problem, a closer look at the situation of those arriving at British shores is desperately needed. If the issue were to be examined objectively, one would find—as this research has—that the vast majority of asylum seekers are not advantageous cheats seeking to steal jobs, benefits, or housing, or dangerous criminals who deserve to be locked up but, rather, individuals who are quite unfairly punished for their own persecution.