Immigration Detention and the Rule of Law
Immigration detention remains a widely used tool of immigration management and border control across many countries and regions. Its impact on the human rights and wellbeing of migrants' is well documented. Legislative and policy developments in various countries and regions, including the United Kingdom (e.g., UK Illegal Migration Act; EU Immigration Pact) have had the direct effect of broadening the use of immigration detention and have raised further questions regarding rule of law compliance.
In 2013, BIICL published a series of 25 safeguarding principles on immigration detention. The principles were intended to give protection to the many migrants facing deprivation(s) of their liberty at the hands of the State exercising immigration powers. Those principles were highly influential, used by NGOs, legal representatives, and others to inform legislative debates and court proceedings.
Significant developments have since taken place in detention practices as well as legislation, policy and judicial determinations. The UK has seen swift and highly influential legislative and policy changes whilst privatisation and externalisation of detention are increasingly mainstream. More recent practices, including the use of Bibby Stockholm and Wethersfield airfield to detain migrants, have raised further questions around adherence to the rule of law standards.
This project (2024 - 2025) will update the 2013 safeguarding principles by reference to recent instruments and decisions (including judicial decisions) at the international, regional, and domestic levels. It will also undertake an assessment of current practice against the principles (and related checklist). In doing so, the project seeks an approach that upholds the rule of law and better safeguards the rights of migrants. The following questions will be addressed:
- What new challenges to detained migrants' human rights have arisen in the last decade that should be included in the updated principles?
- What RoL safeguards have emerged from legislative, judicial, policy, and other developments in the last decade?
- How can these be best articulated to provide effective support to those challenging violations occurring in the context of detention?
- Do existing detention practices meet basic RoL safeguards? If so, how? If not, how can adherence to RoL in this context be enhanced?
By providing an easy-to-use, concise articulation of the range of applicable standards at the international, regional, and domestic levels, we anticipate that this project will bring about enhanced adherence to the rule of law in the area of immigration detention by providing those involved (judges, policy makers, lawyers, activists) with the tools to promote rule of law compliance, challenge violations and thereby ensure respect for migrants' human rights. In addition to the updated principles a checklist will be produced to help facilitate the application of the principles.
Project Team: Dr Jean-Pierre Gauci, Dr Julinda Beqiraj, Dr Justine Stefanelli, Lydia Kim, John Trajer and Victoria Wyndham.
The project is funded by the Nuffield Foundation and is supported by an Advisory Panel composed of: Prof Elspeth Guild; Alex Goodman KC, Idel Hanley (Medical Justice).
