Leiden Law Blog

Human rights in a risk society: legitimizing a restrictive immigration policy?

Human rights in a risk society: legitimizing a restrictive immigration policy?

During the Leiden Summer Course ‘Governing Crime & Migration’, several interesting dilemmas related to border control in the broadest sense were discussed. A recurring theme was the difficult balance between humanitarian intentions and the enforcement of a restrictive immigration policy. In this blog I will further explore this dilemma by looking at the influence of human rights on return policies. The evolution of the forced return of families without a residence permit in Belgium will be used as an example to demonstrate how human rights protection, although important, can contribute to the legitimisation of a restrictive immigration policy.

Human rights

The idea of human rights is relatively new, although 17th century Enlightenment philosophers had already formulated the idea of natural rights. For example in the social contract theory of Locke, life, liberty and estate are considered unalienable rights that have to be guaranteed and defended by the nation state. In practice, however, these rights were not universal at all, but tied to a narrow definition of citizenship (see Smith). The philosophical underpinnings of Locke’s theory, for instance, were incorporated in the United States Declaration of Independence (1776):

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

However, the existence of slavery in the U.S. throughout the first half of the 19th century – the opposite of equality – already demonstrates that even within the U.S. not everyone was entitled to these proclaimed unalienable rights.

It was not until after World War II that the conception of human rights as universal rights, unrelated to citizenship, gained ground. On an international level, different legal frameworks were established, but the European Convention on Human Rights turned out to be the most powerful as every individual can sue a contracting state in the European Court of Human Rights (ECtHR). The Court in turn will take a binding ruling. From the 1990s onwards, the cases involving non-nationals who successfully challenged violations of the Convention before the ECtHR has risen, although Guiraudon correctly observes that the Court did (and does) not forbid states from regulating the entry and stay of foreigners.

Human rights as a risky business?

At the same time that human rights are being put on the agenda of the different nation states when dealing with immigration issues, discourses about (irregular) immigrants are taking a risk-oriented direction. Indeed, in the contemporary risk society immigration is framed by politicians and the media as a potential threat, especially by blurring the boundaries between immigration on the one hand and crime and terrorism on the other.

One could ask how human rights issues are dealt with in this risk society. An interesting point of view in this regard is formulated by Whitty. He states that the growing importance of human rights is approached from a risk perspective as well. By focusing on the penitentiary setting, he demonstrates how human rights are often perceived by governments as significant organisational (legal or reputational) risks that need to be managed. I think that a similar observation can be made with regard to human rights issues related to immigration control. I will illustrate this by using the evolution of the detention of families without a residence permit in Belgium as an example, although I’m convinced that similar examples can be found.

Family units in Belgium: deporting families in a humane way

Until 2008, accompanied undocumented children (and their parents) were placed in closed immigration detention centres. In 2006, Belgium was already convicted by the ECtHR for the detention of a five year old unaccompanied minor, Tabitha, in a closed detention centre. Although, at first, the Belgian government argued that the ruling was only related to the detention of unaccompanied minors, in 2010 and 2011 other convictions followed as this time the detention of accompanied minors in closed detention centres was successfully challenged before the ECtHR.

The government already anticipated these convictions and stopped locking up children in closed detention. In 2008, a search for alternatives to the detention of undocumented families was started as different pilot projects were launched. One alternative involved a notification requirement: the families needed to show up at certain time intervals. However, only 10% of the families actually fulfilled this requirement. Eventually, the alternative was rejected because of the low compliance rates that the pilot project could deliver, as (too) few families left the country. Yet, another alternative was deemed appropriate. The placement of families in family units, i.e. open houses where the families are personally supported by a ‘return coach’, turned out to be successful. 80% of the families in the family units complied with the order to leave the territory.

The search for alternatives thus was dealt with in a managerial way: the effectiveness of the removal of undocumented families was a crucial factor, while at the same time human rights violations – perceived as potential risks to the effectuation of the immigration policy – needed to be minimised as much as possible. Most families without a residence permit that are brought to a family unit are leaving the territory, while the family units are in accordance with the European Convention on Human Rights and are even considered a good practice by NGOs.

This example makes clear how human rights influence immigration related issues: human rights violations need to be prevented, but only in a way that is in accordance with the main goal of the immigration policy, i.e. making irregular immigrants leave the territory. Challenging the deportation of irregular immigrants in an era of restrictive immigration policies through human rights claims therefore seems difficult. Although the abolition of the detention of children in closed detention centres is surely a positive evolution, the use of an alternative that is in accordance with human rights standards may, at the same time, legitimise the current restrictive immigration policy. However, it remains questionable if a forced return is always in the best interest of the child.

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