The Unlawful Detention of Unauthorised Aliens Under the European System for the Protection of Human Rights

Posted: 2 Apr 2011

See all articles by Ian Bryan

Ian Bryan

Lancaster University

Peter Langford

Edge Hill University

Date Written: March 31, 2011

Abstract

This article evaluates the protections against ‘arbitrary’ and ‘unlawful’ detention afforded to non-nationals on having entered the territory of a State party to the European Convention on Human Rights (ECHR). Focusing on Article 5 ECHR and the various permissible exceptions therein, the article examines leading decisions of the European Court of Human Rights (ECtHR) and, in so doing, illuminates and explores tensions arising from the juncture at which Contracting States’ capacity to detain entry-seeking non-nationals, without criminal charge or trial, intersects with the requisites of Article 5(1)(f ) ECHR, as construed by the ECtHR. It argues that the ECtHR’s interpretative standpoint regarding the ‘lawful’ administrative detention of ‘unauthorised’ non-nationals gives disproportionate preference to Contracting States’ interest in managing migration flows. It also argues that in consequence States’ obligations in international human rights law, the strictures of Article 5 ECHR and the credibility of the Strasbourg Court itself are enfeebled.

Keywords: Administrative Detention, Arbitrariness, Interpretative Position, Lawfulness, Non-Nationals, Right to Liberty and Security of the Person, State Sovereignty

Suggested Citation

Bryan, Ian and Langford, Peter, The Unlawful Detention of Unauthorised Aliens Under the European System for the Protection of Human Rights (March 31, 2011). Nordic Journal of International Law, Vol. 80, No. 2, 2011. Available at SSRN: https://ssrn.com/abstract=1800142

Ian Bryan (Contact Author)

Lancaster University ( email )

Lancaster LA1 4YX
United Kingdom

Peter Langford

Edge Hill University ( email )

St. Helens Road
Ormskirk, Lancashire L39 4QP
United Kingdom

Register to save articles to
your library

Register

Paper statistics

Abstract Views
914
PlumX Metrics