The Law’s Approach to Detention of Asylum Seekers: Help or Hindrance?

Abstract

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.