The Right to Liberty

Abstract

The quintessential predicament of refugees, asylum seekers, and stateless persons in search of international protection is that they are often forced to arrive at, or enter, a territory without prior authorisation or without otherwise complying with immigration formalities. In a growing number of states, it is a predicament that heightens their vulnerability to immigration detention. Often arbitrary, the use of immigration detention as a border control measure may impede an individual’s right to seek asylum, arguably a principle of customary international law, and may expose her to the risk of refoulement, including ‘constructive refoulement’. As such, alongside the catalogue of human rights issues to which the practice commonly gives rise, immigration detention can jeopardize some of international refugee law’s most fundamental principles; indeed, in some instances this is arguably its very purpose.

This chapter explores how immigration detention has become such an intractable problem, international standards notwithstanding. It recognizes that while non-compliant state practice does not as a matter of law dilute those standards, in effect it undermines them through a collective, if disparate, inclination towards non-compliance and a (sometimes wilful) retreat behind sovereignty’s ‘corporate’ veil.

The chapter situates the use of immigration detention in global and historical context. It provides an overview of key aspects of the international legal framework. It then considers two factors — criminalization and securitization — that shape state practice and are crucial to contemporary understandings of and justifications for immigration detention. Finally, it suggests the Global Compact on Migration as a lens through which future research might usefully tackle the problem of immigration detention. Show more