Locked in Limbo: Administrative Detention of Asylum Seekers in Sweden and the Diverging Perspectives of the Strasbourg Court and the Human Rights Committee

Abstract: Due to the large influx of persons seeking refuge within European states in recent years, measures which control the entry, residence and expulsion of aliens have increased both in use and intensity. An example of such a measure is the detention of asylum seekers for administrative reasons. The purpose of this paper was therefore to focus on the Swedish practice concerning the administrative detention of asylum seekers with a view to deportation. In conducting an assessment of Swedish domestic law, case-law and institutional practice, it was concluded that administrative detention is resorted to routinely with the ambiguous reasoning that there is a risk that the alien absconds or keeps in hiding. Reasoning specific to the individual cases or reasons why alternative non-custodial measures are not sufficient are largely absent. Choosing to focus on two bodies to which Sweden has human rights obligations – ECHR and ICCPR – the following discussion concerned how the Strasbourg Court and the Human Rights Committee interpret the issue of the limitation on the right to liberty of asylum seekers. There, it was concluded that while the Committee insists upon a stringent application of the necessity and proportionality tests to each individual case, the Strasbourg Court prioritises the right of sovereign states to control the entry, residence and expulsion of aliens within their borders. These divergent perspectives and inconsistency in interpretations lead to confusion regarding the level of protection that should be provided to asylum seekers concerning administrative detention. Thus, two theories from two scholars were chosen to theorize upon the findings of the paper: 1) the possibility to provide Courts with an alternative approach through strategic argumentation which they could embark upon in their judgments, and 2) the possibility of resorting to political progress when credible legal argumentation is no longer a viable solution.