In the twenty-first century, Kafka’s Joseph K has taken on the trappings of a migrant woman as she tries and fails to make sense of an impenetrable, gratuitously unjust, foreign law. Everything seems to be arranged to ensure the maximum degree of befuddlement, to shrink to an absolute minimum the asylum seeker’s pathway to and through her own mind. Communication from the UK Border Agency’s Criminal Casework Directorate, to which many of these women are referred, is almost uniformly in English. Access to interpreters is minimal to non-existent, and notification of a hearing is rarely given far enough in advance to allow time for preparation (twenty minutes with a barrister is typical). Women who have been trafficked, and whose papers and passports are confiscated by the traffickers, find themselves arrested on arrival for false or missing documentation, or for fraud. The sentence for false documentation is twelve months’ imprisonment, which also happens to be the period after which deportation is automatic, which means that they may just as well have been turned around at the port of entry and sent directly back home. The Cambridge report records the story of one victim of trafficking who was sentenced to two consecutive periods of twelve months for using a false document with intent and making a false statement for the purpose of marriage. Although eventually a Conclusive Grounds decision was made confirming her victim status, two weeks before her release date she received a letter from the UKBA stating that she was ‘considered to have committed a particularly serious crime and to constitute a danger to the community in the United Kingdom’ and would not be granted asylum (on appeal her sentence was reduced, which meant she was not automatically deported).24
‘Serious crime’, ‘a danger to the community’; as if such women were the agents of their own abuse, and then, in a senseless twist, a threat to the presumed-to-be law-abiding citizens of the UK. At any given moment the number of victims is likely to exceed the numbers of convicted traffickers in UK prisons (a statement to that effect with reference to Scottish prisons was made in the House of Lords in 2014).25 Most of the traffickers get off scot-free. In the UK and US prison systems, women are already being incarcerated at an ever-increasing rate – since 1978 the number of women and girls locked up in the US has been growing at double the rate of men and boys.26 Most often, the prison sentences are being handed down for low-level non-violent offences, despite repeated recommendations to the contrary by official bodies, such as the Corston report commissioned in 2006 after the deaths of six women at Styal prison, and published the following year.27 This is especially true of foreign nationals. Figures released in 2010 for example showed a twenty-seven per cent growth in the female prison population in the UK, but the growth in the number of foreign nationals was forty-nine per cent.28 There isn’t the slightest evidence that this increase reflects the increasing seriousness of the offences. A 2007 report from the Prison Service Women and Young People’s Group for dealing with foreign national offenders described ‘the low rate of violent offences as particularly noteworthy’.29 Instead women seeking asylum are immediately treated as culpable, even when, as in the case of trafficking, it is their handler who has committed the crime. ‘Why did they not try and arrest the man who had stolen my passport? Why did they do nothing about it?’ asked a woman asylum seeker from Iran, handcuffed at the airport and taken to a police station holding cell.30 She had been trafficked after her father had just managed to get her out on temporary release from a notorious prison where she had been held in solitary confinement, abused and subject to daily threats of rape.
Yet what is expected – indeed legally required – of these women, if they are to have the faintest chance of being granted entry, is the fullest co-operation with every aspect of a system rigged in advance to oppress and exclude them. When a migrant is referred as a potential victim of trafficking, there follows a mandatory forty-five-day period of ‘reflection and recovery’ (as if recovery from trauma is something that can be mandated in forty-five days). After this time, a decision to prosecute will be taken if the evidence – mostly hard, often impossible, to establish – is conclusive. Leave to remain may then be extended to one year if the victim has agreed to assist the police in their criminal investigation.31 ‘Reflection’ in this case clearly has nothing to do with the idea of freedom or the capacity for independent thought. During a performance organised by Women for Refugee Women at the South Bank in June 2019 as part of UK Refugee Week, one of the women refugees, caught in the net of the system, apologised: ‘I’m sorry I’m thinking too much.’ Another simply asked, ‘What will happen to my mind?’32
No one, including visitors (rare) or investigators (even rarer), is spared. ‘We will do as we are told,’ the writer Ali Smith intones to herself as she makes her way through the four security checks to the cell of the detainee she has been given permission to meet as part of the project of Refugee Tales.33 When one trafficked woman refused to respond under questioning (presumably in English with no legal support), the UKBA, as the designated Competent Authority (CA) on behalf of the National Referral Mechanism (NRM) for potential victims of trafficking, used her failure to do so as evidence that her claim to have been trafficked most likely was false.34 Even as I write them, the acronyms are enough to drive anyone insane (CA for ‘Competent Authority’ presumably not intended as a cruel tautology or a joke). ‘What you’ve told me today’, one investigator observed to a woman arrested for cannabis production, ‘does not make a great deal of sense.’ She was refusing to disclose the names of the people who had trafficked her into the UK.35 But it is common knowledge that to name names puts the one trafficked, together with their entire family – whether accompanying them to the UK or back in their originating country – at mortal risk: ‘If you tell, pool of blood.’36
Somewhere there always seems to be an assumption that the asylum seeker is never acting under duress (she is a criminal manipulator, not someone who might have been manipulated herself). One trafficked woman was asked if she had wanted to come to the UK, and when she replied that yes, she had, was told that she therefore must have come ‘willingly’, so no trafficking can have been involved.37 Another had been given a false passport when she was thrown onto the streets after being held and made to work as a prostitute for seven years. Despite the fact that she did not even know it was a fraud case, the judge concluded that she had ‘knowingly’ used a false document and imprisoned her for six months (when he commented that he presumed she was also guilty of illegal entry, he had to be reminded that this was not one of the indictments in the case).38 Another woman had been invited to join an acquaintance on a holiday with friends who were arrested on the return journey and found in possession of cocaine. Even though she was not caught in possession of any drugs herself, she was charged with being ‘knowingly’ concerned in their importation and received a fifteen-year sentence.39 ‘Willingly’, ‘knowingly’ – the law moves in on the foreign plaintiff on the grounds that they acted with volition, knowledge, awareness, consent, under conditions which mostly make such states of being and mind impossible. As a consequence, many of these women are advised to plead guilty so as to reduce their sentence and avoid the twelve months which bring automatic deportation.
‘Knowingly’ might in any case give us pause. One of the hardest things in law is to prove that the defendant’s actions pass the test of intent needed for a criminal charge. As we have seen, this indeed was the key, legally undecidable, issue in the Oscar Pistorius case. Lawyers involved in asylum cases, on the other hand, seem to have no compunction in attributing intent and foreknowledge with remarkable ease, despite the utter tenuousness of the evidence and the drastic legal and human consequences which follow. We might note the gulf which separates this process – or lack of due process – from the way the law treats those in power. Thus Robert Mueller’s investigation into Trump’s possible collusion with Russian interference in the 2016 election tied itself in knots when concluding that there was a lack of strong enough evidence to prove beyond a reasonable doubt that Trump and his team had acted ‘with
general knowledge of the illegality of their conduct’ (not that acting without such knowledge in this case would have made things a lot better).40
What image of the mental life of the vulnerable and underprivileged is being pieced together with such ugly dedication out of the debris of their lives? And if, from outside the penitentiary and detention centre, we go along with these assumptions or fail to question them, what psychic damage are we being asked at once to ignore and be complicit with? On the far side of will and knowledge are experiences which the mind cannot bear to countenance, which throttle the voice and muddle the tongue. But the last thing you will find in this system is the barest tolerance for an asylum seeker who might be so traumatised as to be confused in their narration of events. The minutest inconsistency between one version of their story and the next will disqualify their case. One woman whose case was included in the Cambridge report stated at first that she had been separated from her companion before she was raped; subsequently she said that it was after the rape that he was taken to a different place. The refusal letter, seizing the moment, jumping – again – to the wrong conclusion, stated that her conflicting accounts made it ‘difficult to accept that this is a true account of a real event’.41
And yet blurred recollection can be a sign of authenticity, of the heart and mind faltering as it attempts to retrieve, and also push away, a truth which it cannot tolerate. In this context, the perfectly honed story is the one not to be trusted (in one episode of the 1970s US TV series Perry Mason, the detective nailed the child culprit because of the impeccable word-to-word precision with which the young boy repeated three times under questioning his fabricated account of the crime). In the world of asylum, you will look in vain for the faintest sign of sympathetic treatment when, as is often the case, the one seeking asylum cannot even begin to speak. Many of those held start having nightmares and flashbacks as detention, alongside their earlier experiences, comes to be lived as a trauma in itself. But the idea that silence might not derive from a deliberate withholding of evidence, might instead be an expression of trauma, which has become a truism of our times, seems not to be on the radar of this reality. Before the law, trauma is a troublemaker, like a stubborn, wilful child.
Before the law, or outside it? ‘How’, asks Herd, ‘is the institution of the removal centre legal? Or rather, since, in conventional terms, it plainly offends legal principles, what relation does such a site have to the law?’42 There are for the most part no legal, let alone human, grounds to justify these policies or for the legal decisions of disqualification, imprisonment or deportation that are made. ‘Who decides what happens to someone crossing the border?’ asks Madeleine Schwartz in her investigation of US detention centres (not one of the lawyers she spoke to could point to any written rules laying down why a migrant should face deportation, arrest or custody).43 Today, migration has become a tipping point for the law’s relationship to itself. The more this system turns asylum seekers, who are after all among the most vulnerable people in the world, into criminals, the more the law flounders, as it runs the risk of exposing the criminality of the state. ‘Criminalisation by the state’, Michael Grewcock writes with reference to equally dire migration policies in Australia, ‘is integral to legitimising criminal activity by the state.’44 Mopping up the migrant population, hoarding them into detention centres, the prisons and the courts – in Australia onto the notorious island camps of Nauru and Manus, where migrants are more or less caged – a government sweeps its own stables. Of course, criminal activity is integral to capitalist economies, whose increasing neoliberal ruthlessness is one of the key drivers of migration in our time. ‘Behind the sublimated cloak of legality’, observes Marxist geographer David Harvey, ‘lie overt violence and outright theft.’45
Political philosopher Howard Caygill goes so far as to argue that violence at the borders of the modern nation state has been the chief means by which modernity has contained and denied the violence of its own civility: ‘The possibility of feats of extravagant and unrestrained violence at and beyond the border [have historically] contrasted with the constraints of rational management of violence within the borders of the nation states’ (what he calls ‘the scission of civility and the violence which sustains it’).46 To invoke Arendt again, the border is the place where the ideal of progress, to which the so-called civilised nations make their appeal, is placed under the severest strain. To put it simply, violence at the border serves a purpose, as indeed does the shock it provokes. It obscures the violence of colonial expansion and of the internal social arrangements of modern nations which fight to preserve the privilege of the few against the many. ‘The rational management of violence within the nation state’, Caygill continues, ‘was only possible when potential and actual violence had been displaced to the border.’47
We should therefore recognise violence against migrants at the border not as the exception, but the rule. This too can be traced back in time. Christian moral freedom, Caygill observes after Hegel, could ‘only become certain of itself and its inner spiritual possessions by means of the violent subjugation of the infidel at the borders of Christendom’.48 ‘Become certain’ is crucial: what is being secured by these policies is the futile attempt of unjust regimes to justify themselves. And who, exactly, decides what we are allowed to understand as violence? – one of the questions with which this book began. As Judith Butler has long maintained, the exercise of such decisions is in itself a form of violence.49 Binding migrants into the legal process with no hope of exit (other than prison or return) obfuscates the violence of the state. It is the perfect way to distract the rest of us from the corpses lying on the shore.
One thing seems clear. For a migrant to be successfully criminalised, it must be that, at each stage of their perilous journey, they acted with full knowledge of consequences, even when these were unknowable in advance and therefore beyond the bounds of their consent. Which amounts to saying that, contrary to the living testimony of any and every refugee, they only wished the worst for themselves. The system is as crazy as its own claim to reason is intemperate. Nestled within its perverse logic, we can see the traces of a central feminist demand – that women should determine their own destiny – which the system twists and turns against itself: ‘You knew what you were doing. You asked for what you got. You are dispensable.’
Across the contemporary terrain of crime and punishment, women are either being assigned punishing forms of human agency or being deprived of agency altogether. In British prisons, a relatively new ethos of ‘responsibilisation’ (sic) is ostensibly intended to give women a greater sense of control over their lives. But it also serves to make women – as opposed to inequality, poverty or domestic violence – wholly accountable for what are most often petty, low-level, non-violent ‘survival’ crimes, crimes for which most, if not all, of them should never have been incarcerated in the first place. These inmates have way more in common with women struggling with their daily lives outside the prison walls than with the often violent criminals inside them (in the past few years, the number of UK women recorded as homeless on entering prison has increased by seventy-one per cent).50 At the other pole, an increased focus on trafficking, which in a just world should secure a woman’s right to asylum, makes alleviating women’s lives conditional on their being ‘rescued’.
According to a similar logic, the surest way to get a woman acquitted of, say, killing an abusive partner is ‘diminished responsibility’, which robs women of any notion that they may have had rational motives for their act, that, provoked beyond endurance, they acted with due consideration, under duress or in self-defence. ‘We are still a long way from recognising the retaliation of an abused woman,’ writes journalist Sophie Elmhirst on the case of Farieissia Martin, who stabbed her violent partner to death after years of abuse, ‘as a desperate bid to escape, rather than an act of murderous insanity.’ In 2019 Martin won the right to appeal against her conviction of murder, on the grounds that years of abuse had led t
o post-traumatic stress disorder which substantially impaired her ability to exert self-control.51 In the words of feminist criminologist Hilary Allen, this has the dubious advantage of rendering such women, and by implication all women, ‘harmless’, never the fully conscious agents of their own deeds: ‘What is potentially oppressive to women – criminal or otherwise,’ she writes, ‘is for the frailties and disadvantages that do tend to characterise their position in society to be treated as exhaustive of their condition as social or legal subjects.’52 How are these women to be thought about? What perverse, normative ethical agenda trails their ongoing mistreatment by the state? Either women are handed the keys to mental freedom only to find themselves stranded and accused with no moral or legal recourse to justice, or they are turned into subjects with no control over their own lives. As if there were no middle position, and no get-out clause. Women are always guilty, either of having too much human agency, or not enough.
* * *
In the UK, most of the cases I have described so far are the logical outcome of Theresa May’s call for a ‘hostile environment’ for so-called illegal migrants which she issued as Home Secretary in 2012.53 The instruction was then translated into government policy in the Immigration Acts of 2014 and 2016. Despite widespread objections and protest – including a call by Tory rebels in June 2020 for a twenty-eight-day limit on detention – it is still in place as I write.54 Glyn Williams, architect of the policy as head of the Home Office department of migration at the time, was made a Knight Commander of the Order of the Bath in the June 2019 Honours list. If anything, for May, the policy would seem to have been a visible source of pride. The nastier things get, the more it could be seen to be fulfilling her brief. Under May’s guardianship, the safe haven has turned into an inferno. What she doubtless did not intend was that the brutishness of her own policy would rip the cover from the civility of the state, thereby undermining the cherished distinctions between civilised countries and the rest of the world on which the whole of today’s Western migration policy relies and without which it becomes meaningless. How hostile can the UK be towards migrants in flight before it begins not just to criminalise those seeking safety, but to tarnish and incriminate itself? Put more simply, for the refugee, the host country – not that anyone is exactly being ‘hosted’ – was meant to be a ‘better place’.
On Violence and On Violence Against Women Page 32