when is immigration detention arbitrary?

by Stephen Phillips*

States are under international obligations to ensure that all deprivations of liberty are consistent with international human rights law. The majority of the provisions in the international human rights law instruments that deal with the deprivation of an individual’s liberty contain the term ‘arbitrary’, yet there is no clear definition of what arbitrariness entails. There is a need for more focussed approaches to how arbitrariness is established in international human rights law in the immigration detention context.

The differing, and at times haphazard, approaches of the various international supervisory bodies to the concept of arbitrariness make it difficult to clearly state what arbitrariness is in the immigration context. Arbitrariness is defined differently by different supervisory bodies in different cases, and in different contexts. Given the relative lack of clarity around the term ‘arbitrariness’, and in order to better facilitate understandings of what arbitrariness entails, this article proposes a framework through which to approach the concept of arbitrariness in the context of immigration detention. The framework outlines three key areas that should be considered when examining the deprivation of liberty of immigrants: first, a series of overarching considerations that shape the manner in which detention is – and should be – used; second, the particular context in which the detention takes place; and third, the particular factors pertaining to the case in question.

Overarching considerations

The first step in understanding arbitrary deprivation of liberty in cases of immigration detention is to be cognisant of a series of overarching considerations that shape the way in which individual deprivations of liberty are examined and understood. The first of these is the dominance of discourses around national security and the way in which such discourses are coupled with notions of territorial sovereignty and the recognised right of States to control entry into their national territories. This right of States has consistently been made explicit by the European Court of Human Rights (ECtHR) in a series of judgements. A key problem is that, following the jurisprudence of the ECtHR, the purpose of the detention is paramount, for “as long as the detention is considered to serve a legitimate public interest it cannot be considered as arbitrary.”1 This ongoing tension between state sovereignty and individual rights appears set to continue.

The apparent counter balances to this sovereign right of States are the concepts of proportionality and necessity. Despite the ECtHR’s dismissal of the relevance of proportionality and necessity in Saadi v. the United Kingdom, the jurisprudence of the United Nations Human Rights Committee suggests that these two concepts remain central in situations of deprivation of liberty. It is not enough that a detention serves a political purpose, for if it fails the tests of proportionality and necessity it cannot be justifiable. Indeed, some argue that in cases concerning asylum seekers there is no legal justification for detention outside of exceptional circumstances such as a threat to national security or public order. Nevertheless, States continue to detain migrants without regard to proportionality and necessity. Closely linked to the ideas of proportionality and necessity, the notions of fairness, justice and predictability are also central to understandings of arbitrariness, and must be kept in mind in any examination of the extent to which a particular detention is or is not arbitrary.

The context of the detention

The context in which immigration detention is most commonly employed is that of State attempts to control unauthorised entry and to facilitate expulsion. Writing specifically about the detention of asylum seekers, Hailbronner cites various State justifications for detention, including: the need to control illegal entry or stay; the verification of an individual’s nationality or identity where travel or identity documents are absent; lack of cooperation with immigration authorities by asylum seekers; asylum seekers filing an asylum application following an order to leave or an expulsion order; asylum seekers filing a follow-up asylum application; the need to fast-track manifestly unfounded or abusive claims; and the danger of asylum seekers absconding during the processing of their claims.2

Cartoon by Judy Horacek

Also in the asylum context, the UNCHR provides a more limited set of circumstances in which detention is justified, stating that, where necessary, detention may be resorted to in order to verify identity; to determine the elements on which the claim for refugee status or asylum is based; in cases where asylum seekers have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead the authorities of the State in which they wish to claim asylum; or to protect national security and public order.3

Further muddying the waters is that situations of immigration detention are subject to various explanations by States, even where the circumstances of the particular deprivation of liberty are rather similar. In the context of such reasoning by States, the UN Working Group on Arbitrary Detention proposes that “strict legal limitations must be observed and judicial safeguards be provided for”, and that State reasons for detention of immigrants “must be clearly defined and exhaustively enumerated in legislation”.4

In the context of deportation proceedings, according to the ECtHR, detention can only be justified for as long as proceedings are in progress, and “if such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5(1)(f)”.5 For the Court, such detention need not “be reasonably considered necessary, for example to prevent the individual from committing an offence or fleeing”, as detention “will be justified as long as deportation or extradition proceedings are in progress” and “prosecuted with due diligence”.6 Detention to facilitate deportation is “defended by governments on the grounds that deportation without detention would be almost impossible and that, since those detained are subject to removal, it is not in fact arbitrary”.7 Irrespective of State claims to the contrary, detention of those awaiting deportation must be both proportionate and necessary – that the detainee in question is subject to removal is not sufficient justification. As regards detention pending extradition, the ECtHR has noted that such detention must not exceed a reasonable time.

Particular factors pertaining to the case in question

The final consideration is the individual circumstances of the particular case. In some cases the key considerations may be linked to whether the detention was undertaken in line with a procedure proscribed by law and that the law was of sufficient quality, and in other cases factors such as the length of time spent in detention, the conditions of detention or the extent to which the State attempted to engage alternatives to detention may be relevant to a finding of arbitrariness.

There are no hard and fast rules or guidelines for what particular factors will lead to a finding of arbitrariness in any given case. Nevertheless, in keeping with the notions of justice and fairness, it is crucial that blanket ‘one size fits all’ approaches are avoided so as to ensure that every individual deprived of his or her liberty has the particular circumstances of their case examined with the diligence that it deserves. It should not be enough that a State is acting in pursuit of a broader policy of immigration control or that generalised notions of national security are being invoked – the proportionality and necessity of each and every instance of detention should be scrutinised. A system that allows for the detention of immigrants solely on the basis of their status as immigrants is one that runs the risk of isolating and alienating potentially highly vulnerable individuals, and further risks causing significant harm to these individuals through the continuation of unjust practices. Each individual’s case is unique, and should be treated as such.

1 Hailbronner, K. (2007) ‘Detention of Asylum Seekers’, European Journal of Migration and Law, 9(2), p. 169.
2 Ibid., p. 164.
3 United Nations High Commissioner for Refugees (UNHCR), ‘Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers’, February 1999, p. 1.
4 United Nations Human Rights Council, Report of the Working Group on Arbitrary Detention, 18 January 2010, UN Doc. A/HRC/13/30, para. 59.
5 Chahal v. the United Kingdom [GC], Application No. 22414/93, European Court of Human Rights, Judgment of 15 November 1996, Reports 1996-V, para. 112.
6 Abdolkhani and Karimnia v Turkey, Application No. 30471/08, European Court of Human Rights, Judgment of 22 September 2009, para. 129.
7 Schuster, L. (2005) ‘A Sledgehammer to Crack a Nut: Deportation, Detention and Dispersal in Europe’, in Social Policy and Administration, 39 (6), 606-621, p. 612.

Stephen Phillips is Associate Editor of Human Rights & Democracy. An abridged version of this article appears in issue 44 (September 2013) of Forced Migration Review.

Readers are encouraged to quote, reproduce and share this content for educational, non-profit purposes, provided the source is acknowledged. The views expressed in this post are those of the author and do not necessarily reflect the views of the HR&D team.


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