Abstract
This contribution argues that immigration detention’s distinctly territorial logic needs to be fully accounted for in any attempt to understand the contemporary use of this instrument. As such, penal approaches to the study of detention policies need to be complemented and informed by constitutional and transnational legal scholarship, not only so that we can fully grasp the distinctiveness of immigration detention but also in order to be able to formulate adequate legal responses to this measure. This chapter substantiates these claims by taking a look at the case law of both the European Court of Human Rights (ECtHR) and the Court of Justice of the EU (CJEU) concerning the detention of irregular migrants.
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Notes
- 1.
On the “New Penology” in general, see Feeley and Simon (1992).
- 2.
Communication from the Commission to the European Parliament and the Council, 4th Annual Report on Immigration and Asylum (2012) COM(2013) 422 final.
- 3.
Article 63 paragraph 3 under b EC Treaty, now Article 79 paragraph 1 under c TFEU.
- 4.
Commission Staff Working Document on the fulfillment of the 29 measures for reinforcing the protection of the external borders and combating illegal immigration adopted at the Justice and Home Affairs Council Meeting, held in Brussels on 25 and 26 February 2010, SEC(2010) 1480 final.
- 5.
Note that there are some exceptions to this obligation in 6 (2)–(5).
- 6.
In these cases, return decisions will be coupled with an entry ban, a decision prohibiting entry and stay in the territory of the Member States during a specified period, generally not longer than 5 years (Article 11 and Article 1).
- 7.
- 8.
Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers; and Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status. See paras. 40–48 of the judgment.
- 9.
See, amongst others, Case-60/00, Carpenter; Case C-459/99, MRAX; Case C-503/03, Commission v. Spain; Case C-127/08, Metock; and Case C-578/08, Chakroun. See also Case C-43/09, Zambrano.
- 10.
I thank Marie-Benedicte Dembour for pointing out this last aspect to me during an interesting discussion at the VU in June 2013.
- 11.
Paraphrasing the words of Simon (1998, p. 597).
References
Arendt H (1976) The origins of totalitarianism. Harcourt Brace and Company, San Diego
Bauman Z (1998) Globalization: the human consequences. Columbia University Press, New York
Bauman Z (2000) Social issues of law and order. British J Criminol 40:205–221
Cornelisse G (2010) A new articulation of human rights, or why the European Court of Human Rights should think beyond Westphalian sovereignty. In: Dembour K (ed) Are human rights for migrants? Critical reflections on the status of irregular migrants in Europe and the United States. Routledge, Abingdon
Council of the European Union, Presidency Conclusions of the Brussels European Council, 4 and 5 November 2004, 8 December 2004.
Düvell F (2004) Illegal immigration: what to do about it. Working Paper Working Group Migration-Mobility-Minorities-Membership. EUI/RSCAS, Florence
Easton S, Piper C (2008) Sentencing and punishment: the quest for justice. Oxford University Press, Oxford
Feeley M, Simon J (1992) The new penology: notes on the emerging strategy of corrections and its implications. Criminology 30:449–474
Foucault M (1967) Madness and civilization: a history of insanity in the age of reason. Tavistock Publications, London
Greer S (2004) ‘Balancing’ and the European Court of Human Rights: a contribution to the Habermas-Alexy debate. Cambridge Law J 63:412–434
Hindess B (2000) Citizenship in the international management of populations. Am Behav Sci 43:1486–1497
Leerkes A, Broeders A (2010) A case of mixed motives? Formal and informal functions of administrative immigration detention. Br J Criminol 50:830–850
Malkki LH (1995) Refugees and exiles: from “Refugee Studies” to the national order of things. Annu Rev Anthropol 24:495–523
Malloch MS, Stanley E (2005) The detention of asylum seekers in the UK: representing risk, managing the dangerous. Punishment Soc 53:53–71
McHarg A (1999) Reconciling human rights and the public interest: conceptual problems and doctrinal uncertainty in the jurisprudence of the European Court of Human Rights. Mod Law Rev 62:671–696
Miller TA (2003) Citizenship & severity: recent immigration reforms and the new penology. Georget Immigr Law J 17:611–666
Miller TA (2005) Blurring the boundaries between immigration and crime control after September 11th. Boston Coll Third World Law J 25:81–124
Schuster L (2005) A sledgehammer to crack a nut: deportation, detention and dispersal in Europe. Soc Policy Adm 39:600–621
Schuster L, Welch M (2005) Detention of asylum seekers in the US, UK, France, Germany, and Italy: a critical view of the globalizing culture of control. Crim Justice 5:331–355
Simon J (1998) Refugees in a carceral age: the rebirth of immigration prisons in the United States. Public Cult 10:577–607
Walters W (2002) Deportation, expulsion, and the international police of aliens. Citizenship Stud 6:256–292
Welch M (2000) The role of the immigration and naturalization service in the prison industrial complex. Soc Justice 27:73–88
Welch M (2002) Detained: immigration law and the expanding I.N.S. jail complex. Temple University Press, Philadelphia
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Cornelisse, G. (2016). Immigration Detention: An Instrument in the Fight Against Illegal Immigration or a Tool for Its Management?. In: Guia, M., Koulish, R., Mitsilegas, V. (eds) Immigration Detention, Risk and Human Rights. Springer, Cham. https://doi.org/10.1007/978-3-319-24690-1_5
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