Part VI Refugee Rights and Realities, Ch.52 The Right to Liberty

Subject(s):

Detention — Right to liberty of movement — Asylum — Refugees

Often arbitrary, the use of immigration detention as a border control measure may impede not only the right to liberty, but also an individual’s right to seek asylum, arguably a principle of customary international law, and may expose them to the risk of 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. This chapter considers how and why immigration detention has become such an intractable problem, international standards notwithstanding. The chapter focuses on the right to liberty, first situating the use of immigration detention in global and historical context. It then provides an overview of key aspects of the international legal architecture. Recognizing that other socio-political dynamics shape State practice, the chapter then considers the role of criminalizing and securitizing discourses that are used to rationalize (and even normalize) immigration detention. It suggests that these discourses are crucial to contemporary understandings of, and justifications for, the use and extraterritorial procurement of immigration detention as a border control measure. It argues that paying attention to the history and context of immigration detention and how it is rationalized will reveal more about what law is and does and the mischiefs of which it is capable than doctrinal analysis can do alone. Finally, it suggests the Global Compact on Migration to be a useful lens through which future research might usefully tackle the problem of immigration detention.