The Challenge of Asylum Detention to Refugee Protection

Detention poses a specific challenge to refugee protection; detained asylum-seekers risk not being able to file and meaningfully pursue their claim and benefit only from restrained social and economic rights. They pay a steep human cost. Courts, the legislature, and the United Nations High Commissioner for Refugees have made efforts to rationalise its use, with the aim to render it a truly exceptional measure of last resort. However, challenges remain and there are pitfalls in asylum detention regulation. One major challenge is non-implementation of legal guarantees in practice and insufficient control by the judge. This can nullify legal guarantees, especially in a highly sophisticated framework like European Union law, where individualisation and the necessity and proportionality requirements, are the elements that rationalise otherwise broadly phrased detention grounds. The misuse of alternatives to detention that have been established to rationalise the use of asylum detention is another, as they may paradoxically be used to enhance control over asylum-seekers instead. Finally, migration management imperatives pose distinct challenges to refugee protection, where asylum detention is used arbitrarily as a means to their end.