The Law’s Approach to Detention of Asylum Seekers: Help or Hindrance?
Dallal E. Stevens
University of Warwick - School of Law
September 13, 2010
The Theory and Practice of Immigration Detention Workshop, University of Oxford, May 21, 2010
Warwick School of Law Research Paper No. 2010/21
As is well-known, there is a tension at the heart of international law in relation to the detention of non-nationals. On the one hand, human rights law seems to provide a framework in which the protection of ‘human dignity’ is paramount and rights are accorded every human being qua human being. On the other hand, the law has permitted serious inroads into the notions of absolute freedom and equality through such concepts as reasonableness, proportionality and legitimacy. Westphalian sovereignty continues to wield significant power in the migration context, with few institutions willing or able to threaten its domain. Taking as a case-study the detention of asylum seekers in the UK, this paper will explore whether there is any evidence that members of the judiciary may now be prepared to challenge the traditional interpretation of detention - either through human rights or common law presumptions - with a view to reasserting the moral imperative of freedom over the state’s desire to control inward migration, or whether a re-evaluation of the practice of detention of non-nationals is impossible within the current state-centric, pro-citizen, and security-conscious environment in which we live.
Number of Pages in PDF File: 14
Keywords: Asylum, detention, human rights, sovereignty, liberty, rule of law
JEL Classification: J7, J78, K1
Date posted: September 13, 2010