Down that Wrong Road: Discretion in Decisions to Detain Asylum Seekers Arriving at UK Ports (original) (raw)

No Right to Liberty: The Detention of Asylum Seekers for Administrative Convenience

European Journal of Migration and Law, 2008

This article critically examines the recent decision of the Grand Chamber of the EctHR in Saadi v UK 2008. The decision endorses short-term detention of asylum seekers on the basis of administrative convenience, specifically ruling out a requirement of necessity. The decision is examined in the light of international law on the detention of asylum seekers and the requirements of proportionality and lack of arbitrariness. It is anticipated that the use of routine detention will increase across Europe and that asylum seekers will be lumped together with other migrants in policies aimed at further restricting access to the European club. This presents a serious threat to the international right to seek and enjoy asylum provided in Article 14 of the Universal Declaration of Human Rights.

The detention of asylum seekers in the UK

Punishment & Society, 2005

Media and political representations of asylum seekers and refugees have been infused with language denoting images of ‘danger’, ‘criminality’ and ‘risk’. Despite attempts to provide for those seeking asylum in the UK, those in need have frequently been stigmatized and criminalized. Policies and practices, intended to respond to those fleeing economic hardship or political persecution, have been guided by such depictions. This article illustrates the use of detention as a mechanism for purportedly securing the containment and removal of ‘illegals’. While the use of detention may be seen as an attempt to deter ‘undeserving’ asylum seekers from seeking sanctuary in the UK, this article argues that this practice is, in effect, a fundamentally punitive method to assuage public fears concerning supposed ‘risk’ and potential dangers to ‘security’.

'Expanding Penal Power with Migrant Prisons'. The Purpose and Rationale of Immigration Detention in the UK

This literature review argues that the purpose of immigration detention is in disarray, and is manipulated by the state to assert penal power. The paper offers a brief discussion on the legalities of immigration detention. Following this is an assessment of whether detention is administrative or punitive. Finally the paper examines further notions of power, citizenship, and sovereignty in relation to immigration detention. It is concluded that immigration detention in the UK, through its punitive undertones, represents an expansion of penal power that protects sovereignty and reproduces citizenship.

Migration Control and Detention of Migrants and Asylum Seekers – Motivations, Rationale and Challenges

Detention of migrants in Europe has become an increasingly common measure to deal with the growing number of people crossing EU borders seeking asylum. Detention is presented as a rational response to the need for 'border control' despite the growing international and European jurisprudence and campaigns calling for a more careful and restrained approach to its use. Especially in some of the EU member states, the disparity between international legal standards and the almost automatic use of detention of an irregular migrant or asylum seeker is a cause for attention. The article first offers an overview of the relevant legal standards for detention of migrants and complements this with relevant data about its practical use. Drawing on previous work in this area, the author suggests that there are various complementary motivations for the use of detention of migrants. As only the practical motive can be the one to justify detention formally and legally, the article offers an analysis of rationality of the use of detention vis-à-vis the known alternatives. The predominance of different kinds of alternatives in the EU to detention is also explored. The article concludes with the suggestion that to fulfil all state motivations for the use of detention, the introduction of a range of alternatives complemented with the change of discourse may in fact be a rational move for states.

The detention of asylum seekers as a crime of obedience

2005

This article deals with discretionary decisions made by British immigration officers about whether to detain asylum seekers. It takes as its point of departure the remarkable variety of views and practices reported by front line decision-makers interviewed at British ports (Weber and Gelsthorpe 2000; Weber and Landman 2002). The discussion begins by drawing historical parallels between the pre-Holocaust era and the present day hostility towards asylum seekers, which forms the wider context for official decision-making. It notes the failure of structural analyses to account for individual differences in rule-following and draws on theoretical perspectives developed by American social psychologists Kelman and Hamilton (1989) to explore the individual dynamics of conformity and dissent. In the concluding section, theoretical connections are made between the idea of discretionary detention as a crime of obedience, and contemporary discussion about state crime and governmentality. The underlying message of this article is as much a normative as an analytical one. While recognizing the practical limitations of individual conscience, the discussion ends, as it begins, by celebrating the emancipatory potential of dissent in the face of populist policies that sanction harm against targeted groups.

Legal silo's and Indifference: the wrongful prosecution of refugees and asylum-seekers in the UK

International Journal of Migration and Border Studies, 2022

This paper explores the situation in the United Kingdom where the government has consistently prosecuted and convicted asylum-seekers who have entered the country in contravention of its obligations under Art. 31 (1) of the 1951 Refugee Convention. This paper looks at the history of these prosecutions by examining how the United Kingdom's Criminal Justice System (CJS) and the UK's Asylum and Immigration System has handled these cases. At the center of the CJS lies the Criminal Cases Review Commission (CCRC), which reviews wrongful convictions, and Criminal Court of Appeal, which has the power to quash wrongful convictions. The paper concludes that there are three major reasons why asylum seekers continue to be prosecuted and convicted: (a) only a 'patchwork' of protections exists to protect asylum-seekers from prosecution; (b) all state/legal institutions operate in policy silos and fail to communicate with one another, and (c) legal institutions are indifferent to and deeply hostile towards asylum-seekers.

Beyond Saadi v UK: Why the Unnecessary Detention of Asylum Seekers is Inadmissible under EU Law (HR & ILD 2011)

In the context of the current negotiations of the ‘asylum package’ and considering the existing regulation on the administrative detention of asylum seekers in EU law, this contribution aims to identify the legal difficulties that would ensue from the provisions of the recast Reception Conditions Directive, the revised Dublin Regulation and the proposed Procedures Directive, if they were adopted as they presently stand. Having regard to the different human rights instruments that have an impact on the interpretation of the right to liberty under EU law, the final purpose is to determine the meaning of ‘necessity’ within the EU legal order, thus identifying the parameters within which asylum detention may take place in the EU. The fundamental argument advanced here is that the EU Charter of Fundamental Rights must be interpreted not only in light of the European Convention on Human Rights, but also in terms of the autonomous requirements of EU law and the ‘international obligations common to the Member States’ that the Charter ‘reaffirms’. Therefore, both when implementing current secondary law and when revising the regime applicable to asylum detention, regard must be had not only to the precarious standard endorsed by the European Court of Human Rights in Saadi v UK, but also to the proportionality criteria contained in both general principles of EU law and other instruments of human rights and refugee protection to which the Member States are parties. It is maintained that compliance of EU detention rules with a strict principle of proportionality – including a necessity requirement – is mandatory pursuant to Article 6 EUCFR.