Three Case Studies on Migration-Related Detention

Abstract

The European Union (EU) has recently adopted a series of legal and policy instruments and actions to strengthen protections from various forms of arbitrary asylum- and return-related detention. Further measures are planned, including those with potentially binding legal effects for EU Member States. Such laws and measures—intended to protect asylum seekers and other migrants from arbitrary deprivation of their liberty—involve rather abstract and ambiguous concepts that leave broad margins for legal interpretation and, consequently, a high degree of flexibility and discretionary powers to EU Member States. Therefore, the actual meaning and impact of these provisions is difficult to grasp. This research critically examines the latest jurisprudence of the Court of Justice of the European Union (CJEU or Court) on the (alleged) incidents and practices of arbitrary detention of migrants in EU Member States. It analyses how the supreme judicial authority of the EU construes the concept of ‘arbitrariness’ of deprivation of liberty of person and related notions, such as ‘necessity’ and ‘proportionality’, within the context of EU migration governance and the functioning Common European Asylum System. This analysis can give a preview of where the EU legislator and Court may be heading in terms of their quest for a more humane, dignified, and fair treatment in restricting migrants’ liberty. It also yields some valuable insights into the ways in and extent to which the interpretations and decisions of the CJEU uphold the prohibition of arbitrary deprivation of liberty of migrants and uniform international human rights norms—including those enshrined in the EU Charter of Fundamental Rights—that EU Member States are bound by when depriving migrants of their personal liberty.