‘Driven by Western states’ desire to control the influx of migrants, the management and regulation of immigration are central challenges of today’s policy making. As a result, public authorities increasingly turn to the private sector to purchase services for many day-to-day operations, including the detention of non-nationals. This has led to a private industry around migration which has seen an exponential growth in the last decades. However, this has raised several concerns regarding a variety of human rights issues common across jurisdictions, in Europe and beyond.
Despite the pervasive nature and broad acceptance of private involvement in immigration detention, few scientific contributions have explored the legal framework within which it takes place. The present research focuses on what legal standards apply ex ante to this outsourcing process. We explore what human rights concerns arise specifically from the delegation of immigration detention to private actors, what limits and rules are set upon it under international human rights and EU law, and how those rules function in practice. We combine legal analysis with social science methods, studying normative standards and then analyzing their application through case-studies.
This work offers a novel contribution by showing that many safeguards on delegation of immigration detention can be inferred from UN, ECHR and EU law, which - if applied correctly - address effectively many of the concerns that arise from the outsourcing to private actors. While it is obvious that the delegating state must retain some control over the contractors, through our in-depth analysis of norms flowing from international and EU law, we can define the concrete extent of this notion. The outcome of this analysis is a list of standards applying to different aspects of private involvement: the choice of a provider guided by human rights considerations in the procurement procedures, contractual arrangements, requirements to be applied to selection and training of private staff, as well as effective monitoring and oversight. By analyzing the existing legal framework, we show that – contrary to what is sometimes assumed – standards on delegation do exist, and this practice does not take place in a legal vacuum. Although international and EU law leave some flexibility to states to take “make it or buy it” decisions in line with their priorities and resources, this does not go without safeguards.
By performing three case studies we investigate whether the strict observance of the above-mentioned standards is sufficient to address human rights concerns, or whether the standards themselves are insufficient for the purpose. Among the main findings of this analysis is the fact that some of the standards are under-used, or not applied strictly enough on the ground. For example, even when independent monitoring systems are in place, their recommendations are often not implemented. Furthermore, we also show how some standards, in the way they are designed at present time, contain gaps which hinder their effectiveness