Human rights violations, detention conditions and the invisible nature of women in European immigration detention: a legal realist account.

Abstract

Purpose: The purpose of this paper was to conduct a legal realist assessment of women's situation in European immigration detention which focuses on relevant international and European human rights instruments applicable to conditions and health rights in detention settings, academic literature and relevant European Court of Human Rights (ECtHR) jurisprudence since 2010.

Design/methodology/approach: In spite of the United Nations human rights frameworks and European Union (EU) standards, conditions in European immigration detention settings continue to pose a health risk to those detained. Migrant health rights when detained are intertwined with the right not to be subjected to arbitrary detention, detention in conditions compatible for respect for human dignity and right to medical assistance. Migrant women are particularly vulnerable requiring special consideration (pregnant and lactating women; single women travelling alone or with children; adolescent girls; early-married children, including with newborn infants) in immigration detention settings.

Findings: The situation of women in immigration detention is patchy in EU policy, academic literature and ECtHR jurisprudence. Where referred to, they are at best confined to their positionality as pregnant women or as mothers, with their unique gendered health needs ill-resourced. ECtHR jurisprudence is largely from male applicants. Where women are applicants, cases centre on dire conditions of detention, extreme vulnerability of children accompanying their mother and arbitrary or unlawful detention of these women (with child).

Originality/value: Concerns have been raised by the European Parliament around immigration detention of women including those travelling with their children. There is a continued failure to maintain minimum and equivalent standards of care for women in European immigration detention settings.