Bureaucracies Under Judicial Control? Relational Discretion in the Implementation of Immigration Detention in Swiss Cantons

Abstract

Based on interviews with bureaucrats and judges in several Swiss cantons, this article analyzes how bureaucrats decide to order immigration detention and how the judicial review shapes their decisions. The authors argue that discretionary decision-making regarding immigration detention is structured by the web of relationships in which decision-makers are embedded and affected by the practices of other street-level actors. The varying cantonal configurations result in heterogenous bureaucratic practices that affect the profiles and numbers of persons being detained. In particular, differences in judges’ interpretation of legal principles, as well as in their expectations, strongly affect bureaucratic decisions.

Legitimising exclusion through criminalisation: an ethnography of immigration detention in Switzerland

“…Applied to the field of immigration detention, this perspective can shed light on immigration officers' use of discretion in deciding to order detention (Campesi and Fabini 2020;Miaz and Achermann 2021b). The work of administrative courts in charge of detention orders' judicial control has also been investigated in research that shows how courts differ in their assessment of the risk of absconding, the 'dangerousness' of individuals or in the interpretations of the legal principle of proportionality (Campesi and Fabini 2020;Miaz and Achermann 2021a;Ryo 2016a). Likewise, this focus can also usefully explore the role of detention staff and the myriad of small and sometimes trivial decisions they have to make in their daily work with detainees, for example concerning the use of physical force and coercion (Hall 2012).…”

“…A second rationale is named 'legalist-rigorist' and refers to a strict implementation of detention -which can become quasi-systematic -whenever the criteria for ordering it are filled. Criteria such as proportionality and risk of absconding, however, need a thorough assessment in which migration officials try to anticipate judicial control (Miaz and Achermann 2021a). The third rationale is a financial one, referring both to the cost of immigration detention and to the cost of the nonenforcement of removals, which in the case of Dublin transfers can even trigger a financial sanction imposed by the State Secretariat for Migration.…”

“…Such rationales combine in various ways in the practices of migration officers working for different cantons (Miaz and Achermann 2021b). However, Miaz and Achermann (2021a) call for an understanding of the work of migration decision-makers as occurring within a web of relations composed by a diversity of state and non-state actors, including police corps stopping and arresting individuals. In particular, they argue that judicial control exerted by cantonal administrative courts strongly affects the work of officials deciding upon detention in that they need to find legal justifications and anticipate the courts' decisions to avoid being reprimanded by them.…”

“…In this sense, it also operates an indirect disciplinary effect on the bureaucrats who issue detention orders, as they know that an independent lawyer might examine their decisions. Although this control is primarily provided by courts in charge of the judicial review of detention orders, exerting an effect on migration officers who try to anticipate their decisions (Miaz and Achermann 2021a), civil society organisations have a much more critical view than judicial actors, who usually confirm the detention order. In this sense, the KAZ operates a disciplinary function not only over migration offices, but also over judicial authorities that are formally entrusted with the role of reviewing the legality of orders of detention.…”

“…We have seen how immigration detention, despite being defined and rationalised as a practice of migration enforcement, assumes informal functions related to crime control such as incapacitation and crime prevention (Campesi and Fabini 2020;Leerkes and Broeders 2013). The administrative detention of criminal offenders to facilitate the enforcement of their removal is a formal or informal priority of several cantons (Miaz and Achermann 2021a). This was made explicit during the Spring of 2020, in the midst of the outbreak of the COVID-19 pandemic.…”