This event will bring together scholars to discuss the European Court of Human Rights’ case law on immigration detention. Speakers will explore critical doctrinal insights, strategic litigation approaches, and guidance for judicial practice.
Many scholars have critiqued the ECtHR caselaw on immigration detention for failing to vindicate the right to liberty adequately and placing refugees and other vulnerable migrants at risk of arbitrary detention. The speakers will present their academic arguments, drawing on their academic writings, and suggest litigation strategies for those contesting immigration detention, and provide guidance for judges seeking to vindicate the rule of law and fundamental rights.
Contribution by Bas Schotel and Ingo Venzke: “The Pre-Removal Detention of Immigrants: A Return to Ordinary Meaning”.
The EU Return Directive demands that immigrant detention be as short as possible, but, by logical implication, this also means that detention can be as long as necessary. What concerns the maximum length of detention, the Return Directive is remarkably generous: Immigrants can be detained for a period of up to eighteen months—a deprivation of liberty that is otherwise justified only as punishment for serious crimes. The practice of such long-term detention, now burgeoning, is highly questionable for moral, practical, and—our focus—legal reasons.
The European Convention of Human Rights (ECHR) provides the relevant yardstick. While discussions on the legality of immigrant detention have focused on requirements of necessity, we shift attention towards the surprisingly absent question of maximum duration. Our analysis delves into the drafting context of the ECHR to reveal that it only authorises the pre-removal detention of immigrants for markedly short periods. Picking up the interpretative canon of the regime, we note that meanings can of course change, but we argue that it is a legal mistake to consider that long-term detention is now sanctioned by the Convention.
Contribution by Cathryn Costello in based on her range of works examining the legal limits and workings of immigration detention.
Her first contribution on the theme was ‘Human Rights & the Elusive Universal Subject: Immigration Detention under International Human Rights and EU Law’ (which argued that immigration detention should be subject to stricter limits in IHRL. Her 2015 Current Legal Problems lecture ‘Immigration Detention: The Grounds Beneath our Feet’, questioned the prevailing tendency to portray immigration detention as a ‘necessary adjunct’ of the state’s power to control immigration. Critiquing this characterization, she argued that the law failed to require proper legal grounds for immigration detention. A ground is a particular form of legal reason, which both explains and justifies the official action in question. By examining the question of grounds, this article elucidates the manner in which immigration law itself produces reasons to detain, and by doing so creates detainable subjects, migrants. Basic liberty-protective principles and practices developed in other areas of law are notably absent. This state of affairs is not inevitable, and legal alternatives are within reach.
Later, in ‘EU Law and the Detainability of Asylum-Seekers’ (co-author Minos Mouzourakis) the authors illustrated that EU law both created detainability, as well as limiting it. Costello has also researched the working of immigration detention and it’s alternatives in her report, co-authored with Esra Kaytaz Building Empirical Research into Alternatives to Detention: Perceptions of Asylum-Seekers and Refugees in Toronto and Geneva, UN High Commissioner for Refugees (UNHCR), June 2013). Her latest contribution is a book chapter, with Angela Sherwood and Isabelle Lemay, explaining the problematic role of the IOM (International Organisation for Migration) in legitimating, enabling, and latterly seeking to constrain immigration detention by states, and questioning the assumed legality of its practices.
This event is hosted by the Centre for Fundamental Rightsin collaboration with (B)OrderS: Centre for the Legal Study of Borders, Migration and Displacement at Queen Mary University.
Prior registration is required. Registered attendees will receive the dial-in details prior to the event. Please register here.
Speakers
Cathryn Costello is a Visiting Professor at the Hertie School. She is a Full Professor of Global Refugee and Migration Law at the Sutherland School of Law, University College Dublin. She was formerly Professor of Fundamental Rights and Co-Director of the Centre for Fundamental Rights at the Hertie School (2020 – 2023). She is a leading scholar of international and European refugee and migration law and also explores the relationship between migration and labour law in her work.
Bas Schotel is an assistant professor at the Faculty of Law, University of Amsterdam. He publishes on the rule of law and migration policies from a legal theory perspective.
Ingo Venzke is Professor for International Law and Social Justice at the University of Amsterdam where he acts as the Law Faculty’s Vice-Dean for Research. Until 2025 he directed the Amsterdam Center for International Law (ACIL) and led the collaborative research project on Sustainable Global Economic Law (SGEL). Ingo was Editor-in-Chief of the Leiden Journal of International Law (2015-2024) and held several Visiting Professorships and Fellowships.
Chair
Violeta Moreno-Lax is the inaugural Wübben Foundation Professor of International Law and the Director of the Hertie School’s Centre for Fundamental Rights. Before joining the Hertie School, she was a Full Professor of Law at Queen Mary University of London, where she served as founding Director of the (B)OrderS Centre for the Legal Study of Borders, Migration, and Displacement.