A. STANDAR DS FOR ASSESSI NG WH E T H E R DE T E N T ION IS ARBIT R ARY
A.1 Legitimate Purpose
The test of ‘legitimate purpose’ ensures that detention is
resorted to only in the presence of a justifiable object. For an
object to be legitimate, it ought to be reasonable and factually
plausible. The legitimate purposes cited by states may include
but are not limited to ‘removal’, ‘public order’, and ‘public
health’.170 The UN Working Group on Arbitrary Detention
prescribes that deportation (or removal) is valid as a legitimate
purpose only in exceptional circumstances when the nexus
between deprivation of liberty and deportation is close and
proximate.171
This international practice finds resonance in regional
legal frameworks. For instance, although the Council of Europe
authorises detention for removal under Article 5(1)(f) of the
ECHR, courts have interpreted this authorisation restrictively. It
only applies to persons who have not been determined to be
stateless, since detention of stateless persons cannot possibly
serve the purpose of securing deportation.172 According to an EU
directive, detention is no longer legitimately justified when a
reasonable prospect of removal ceases to exist.173 At the same
time, purposes such as national security have been regarded as
illegitimate for justifying detention of stateless persons.174
In India, the White Paper on the Foreigners’ Issue drafted
by the Government of Assam is an official statement which
represents the rationale behind detention of precarious citizens
170 UNHCR ‘Detention Guidelines: Guidelines on the Applicable Criteria and Standards Relating to The
Detention of Asylum-Seekers and Alternatives to Detention’ (2012) <https://www.unhcr.org/
publications/legal/505b10ee9/unhcr-detention-guidelines.html> accessed 24 June 2020 (UNHCR
Detention Guidelines). See also The Equal Rights Trust, ‘Guidelines to Protect Stateless Persons from
Arbitrary Detention’ (2012) <https://www.equalrightstrust.org/ertdocumentbank/guidelines%20
complete.pdf> accessed 27 June 2020 (ERT Guidelines).
171 UNHRC ‘Report of the Working Group on Arbitrary Detention to the 13th session of the Human Rights
Council’ (18 January 2010) A/HRC/13/30. See also FKGA v Australia Comm no 2094/2011 (UN Human
Rights Committee, 20 August 2013), para 9(3).
172
Okonkwo v Austria App no 35117/97 (ECtHR, 22 May 2001).
173 Parliament and Council Directive 2008/115/EC of 16 December 2008 on common standards and
procedures in Member States for returning illegally staying third-country nationals [2008] OJ
L348/98.
174
Amie and Others v Bulgaria App no 58149/08 (ECtHR, 12 February 2013).
chapter ii • detention
105
SECTION I.A.1
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