Leiden Law Blog

Detained migrants and access to law

Detained migrants and access to law

States rely heavily on the detention and return of detected undocumented migrants to their countries of origin. This is often criticised as being harsh and ineffective. Yet, governments consider migration policy without final sanctions to be a toothless tiger. As administrative pre-expulsion detention can have a major impact upon detainees and their families, access to legal support is of paramount importance. International studies have often observed that irregular migrants who face return are confronted with a lack of access to legal counsel. This is highly undesirable. Competent legal counsel can improve both irregular migrants’ and governments’ awareness of their respective legal rights and duties. This is crucial for the migrants concerned. It may also prevent states from mechanical deportation decision-making and migrants from fighting immigration cases that they have no chance of winning. In the Netherlands detained irregular migrants usually do have access to a lawyer. Yet, earlier studies have raised concerns about the quality of legal support.

In one of the detention centres of the Netherlands, in Zeist, a low-threshold Legal Services Counter has been established to help detainees with legal problems in addition to what their lawyer does. The Dutch Legal Aid Board (Raad voor Rechtsbijstand) asked us (Anke van der Hoeven, Fayola Antonius, Anneke Koning and me) to assess how detainees perceive this service. The report has just been published (in Dutch).  We indeed find that all detainees in Zeist that we have spoken to have access to a lawyer, which is a positive finding compared to what we read about in many other countries. But despite attempts to inform them, many of the detainees were not aware of the additional possibilities via this first-line in house service. When individuals arrive at the centre they are informed about the services it offers, but detainees are often confused by the situation. In this state of mind it is difficult for them to distinguish between the different professionals and volunteers they meet. And some of them seem to have lost good faith altogether.

When they do find their way to the Legal Services Counter,  this is not always for immigration law issues. As detainees have often lived in the country and sometimes have family members there as well, they have a wide variety of needs for support across all legal domains. This demonstrates the need for these services. Yet, those migrants who did turn to the Legal Counter were not always happy with the services. Some were disappointed that they were not able to get out of their frustrating situation. Others had more concrete complaints about the process or outcomes and sometimes also helpful suggestions for improvement. With the results of the study, both the detention centre and the LAB want to address the issues in order to improve services and raise awareness of the availability of these services.

For me, two findings stood out. First, many detained migrants still have hope of being able to stay in the Netherlands and if (para) legal professionals cannot help them to achieve this, they get disappointed and sometimes angry. Access to law is a good thing, but it cannot take away the huge impact of migration control and detention policies on migrants’ lives. Secondly, detention centres are inhabited by a wide variety of people with a wide variety of life stories and dreams which are seldom heard.  We can go even further: given the remote places where detention facilities are usually located, detainees are no longer visible. Dreams are scattered in nowhere land. Besides trying to improve access to law, it is time to put more serious effort into exploring alternatives to detention.  

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