The detention of immigrants as a last resort : a comparative legal review

Abstract

Violence, genocide and wars are some of the reasons many people flee their countries of origin in the search for some safe haven elsewhere. Leaving a life like that to be detained in the country where they seek asylum, while being treated like a criminal due to entering in an illegal way in order to exercise their right of asylum, runs contrary to the obligations set out in international law. The right to asylum is outlined both in international and EU law along with prohibiting states from penalising such individuals who have fled their country in fear of persecution, as expressed in the 1951 Refugee Convention. This thesis will analyse how, although such rights are clearly established in the law, there are exceptions on which one’s deprivation of liberty can be justified. Giving this ability to states may lead to its abuse along with easily slipping into a state of arbitrary and unlawful detention. In order for this not to happen, the decision to detain must be reasonable and satisfy the principles of proportionality and necessity. This thesis examines the conditions the detainees must face along with what is set out in law to ensure an adequate standard of living for these individuals. Nonetheless, states seem to violate these requirements, which strengthens the argument as to how the current detention policy employed in states is not a suitable measure which respects the individual or his rights. The one-size-fits-all model of detention cannot be used anymore, as not only does it breach a number of human rights, but because there is an obligation set upon states to assess and implement alternatives to detention and only resort to detention as a last a necessary measure.