VULNERABILITY IN IMMIGRATION DETENTION – ARE SOME MORE VULNERABLE THAN OTHERS?

Stephen Phillips

Immigration detention is a common measure used by states to control the movements of various migrants, including asylum seekers. It involves depriving people of their liberty for such a period of time as is deemed necessary by a state in order, for example, to facilitate deportation and removal, to investigate visa violations, or unauthorised entry to a country. In the case of asylum seekers, a group that has been recognised as particularly vulnerable, at least in the European context, detention has been argued to be an unnecessarily punitive element of attempts by states to manage unwanted migration flows. Opponents of the widespread use of immigration detention of asylum seekers also show that alternatives to detention exist and are feasible options for states in their efforts to regulate and manage migration to their territories. 

For instance, the plight of children in immigration detention has deservedly received widespread attention, including a 2014 inquiry by the Australian Human Rights Commission that condemned the detention of children, finding that “prolonged detention is having profoundly negative impacts on the mental and emotional health and development of children”. This inquiry was a follow-up on an inquiry from 2004 that identified many of the same concerns. At the time of the report’s release in December 2014 the number of children in detention in Australia had already dropped to 400 (from 2,000 in July 2013). There are now less than five children in closed immigration detention in Australia. The success of this sustained advocacy by a range of actors shows that detention practices can indeed be modified and changed, and that detention of particularly vulnerable individuals as a first resort does not need to be a matter of policy, nor of choice, for a migration system to function effectively.

What does it actually mean to be vulnerable?

Vulnerability is a term that is thrown around regularly in policy and practice circles, often with the assumption that its meaning is clear and known. But there is no clear, universally accepted definition of what vulnerability is or what being vulnerable implies or entails. Vulnerable persons are often assumed to be people such as children, pregnant women, the elderly, people with disabilities, or the very poor. The vulnerability of these groups is not contested. However, some argue that, “this perspective ignores the universality and constancy of vulnerability” insofar as vulnerability can be explained as being inherent to the human condition and common to all persons.

This approach suggests that we are all vulnerable, which seems at odds with common legal, political and social understandings of vulnerability and categorisations of groups of vulnerable persons. Adopting this approach would lead to the conclusion that all people in immigration detention are vulnerable, including asylum seekers, as their vulnerability is linked to their human condition. The idea that all persons are inherently vulnerable is not immediately helpful, as it fails to provide many people with the tools to navigate complex immigration systems and the barriers, such as immigration detention, that these systems may present. There must then be other factors at play that determine asylum seekers’ particular experiences of and responses to immigration detention, and the impact that this detention may have.

Asylum seekers in immigration detention as a particularly vulnerable group

The emerging idea of asylum seekers as comprising a particularly vulnerable group gained wider attention following a 2011 judgement of the European Court of Human Rights concerning the transfer of an Afghan asylum seeker from Belgium to Greece. The Court held that asylum seekers are a “particularly underprivileged and vulnerable population group in need of special protection”, and that in the case of the applicant’s detention his “distress was accentuated by the vulnerability inherent in his situation as an asylum seeker”.

Based on this assessment by the European Court, asylum seekers are a particularly vulnerable group. They may thus need to be afforded special treatment in situations where their experience of a situation is likely to be worsened by their particular vulnerability. The use of detention on asylum seekers overlaps with their already vulnerable situation as asylum seekers, and may lead to unforeseen harm that goes beyond that experienced by other groups in detention.

Vulnerability as access to services

The lack of a definition becomes problematic when it becomes necessary to demonstrate one’s vulnerability in order to access various assistance programs or services, or indeed to make a claim for one’s need for special consideration or protection. In many cases of immigration detention of asylum seekers it is an individual’s very lack of perceived vulnerability that makes that individual detainable. If a person is more easily detainable they are also more easily isolated and made invisible, removed from communities in both a social and physical sense. A lack of perceived vulnerability may also impact on whether an individual is considered for less restrictive forms of detention, such as residence determination community placements, commonly known as ‘community detention’. Those subject to community detention live in the community, and while they must meet reporting requirements, observe a curfew and do not have permission to work, they do enjoy increased accessed to support services compared to those in closed detention.

Vulnerability as access to services - in practice

Men, women and children in detention may all be vulnerable insofar as all humans are vulnerable, but their prospects of being detained and their likelihood of remaining detained are linked to perceptions of a lack of vulnerability.

The most recent immigration detention statistics from Australia show that of the 1,345 people held in immigration detention facilities 1,251 were men, 89 were women, and less than five were children. Of this population, all of the 173 persons detained in the remote offshore facility on Christmas Island were men, and of those in the Regional Processing Centre on Nauru 158 were men, 19 were women, and 12 were children. Of the 386 people living in the community under residence determination, persons who would perhaps otherwise be detained were it not for this community option, 103 were men, 107 were women, and 176 were children. These numbers show that men are overwhelmingly more present in the immigration detention population than in community housing.

How vulnerability is understood and used in the political, social and legal spheres will continue to change and be debated, so in the short term it is important to maintain a grounding in something that is concrete and useful. In many cases a person who does not seem to be obviously or typically vulnerable is made more vulnerable through their exclusion from useful and necessary support services, or is held in closed detention when other less restrictive options are available to those whose vulnerability is more easily accepted. Moving forward, we need to rethink both what it means to be vulnerable and the impact that being seen (or not seen) as vulnerable can have.

Stephen Phillips is a PhD researcher at the Institute for Human Rights at Åbo Akademi University, Finland. His research focuses on state responses to forced migration and the role of human rights law. He has previously worked in social work and policy roles with community-based asylum seekers in Australia and with victims of forced displacement in Colombia.