Immigration Detention: An Instrument in the Fight Against Illegal Immigration or a Tool for Its Management?

  • Galina CornelisseEmail author


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.


Court of Justice of the EU EU law European Court of Human Rights Immigration detention Territoriality 


  1. Arendt H (1976) The origins of totalitarianism. Harcourt Brace and Company, San DiegoGoogle Scholar
  2. Bauman Z (1998) Globalization: the human consequences. Columbia University Press, New YorkGoogle Scholar
  3. Bauman Z (2000) Social issues of law and order. British J Criminol 40:205–221CrossRefGoogle Scholar
  4. 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, AbingdonGoogle Scholar
  5. Council of the European Union, Presidency Conclusions of the Brussels European Council, 4 and 5 November 2004, 8 December 2004.Google Scholar
  6. Düvell F (2004) Illegal immigration: what to do about it. Working Paper Working Group Migration-Mobility-Minorities-Membership. EUI/RSCAS, FlorenceGoogle Scholar
  7. Easton S, Piper C (2008) Sentencing and punishment: the quest for justice. Oxford University Press, OxfordGoogle Scholar
  8. Feeley M, Simon J (1992) The new penology: notes on the emerging strategy of corrections and its implications. Criminology 30:449–474CrossRefGoogle Scholar
  9. Foucault M (1967) Madness and civilization: a history of insanity in the age of reason. Tavistock Publications, LondonGoogle Scholar
  10. Greer S (2004) ‘Balancing’ and the European Court of Human Rights: a contribution to the Habermas-Alexy debate. Cambridge Law J 63:412–434CrossRefGoogle Scholar
  11. Hindess B (2000) Citizenship in the international management of populations. Am Behav Sci 43:1486–1497CrossRefGoogle Scholar
  12. Leerkes A, Broeders A (2010) A case of mixed motives? Formal and informal functions of administrative immigration detention. Br J Criminol 50:830–850CrossRefGoogle Scholar
  13. Malkki LH (1995) Refugees and exiles: from “Refugee Studies” to the national order of things. Annu Rev Anthropol 24:495–523CrossRefGoogle Scholar
  14. Malloch MS, Stanley E (2005) The detention of asylum seekers in the UK: representing risk, managing the dangerous. Punishment Soc 53:53–71CrossRefGoogle Scholar
  15. 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 62:671–696CrossRefGoogle Scholar
  16. Miller TA (2003) Citizenship & severity: recent immigration reforms and the new penology. Georget Immigr Law J 17:611–666Google Scholar
  17. Miller TA (2005) Blurring the boundaries between immigration and crime control after September 11th. Boston Coll Third World Law J 25:81–124Google Scholar
  18. Schuster L (2005) A sledgehammer to crack a nut: deportation, detention and dispersal in Europe. Soc Policy Adm 39:600–621CrossRefGoogle Scholar
  19. 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 5:331–355Google Scholar
  20. Simon J (1998) Refugees in a carceral age: the rebirth of immigration prisons in the United States. Public Cult 10:577–607CrossRefGoogle Scholar
  21. Walters W (2002) Deportation, expulsion, and the international police of aliens. Citizenship Stud 6:256–292CrossRefGoogle Scholar
  22. Welch M (2000) The role of the immigration and naturalization service in the prison industrial complex. Soc Justice 27:73–88Google Scholar
  23. Welch M (2002) Detained: immigration law and the expanding I.N.S. jail complex. Temple University Press, PhiladelphiaGoogle Scholar

Copyright information

© Springer International Publishing Switzerland 2016

Authors and Affiliations

  1. 1.Department of Transnational Legal studies, Faculty of LawFree UniversityAmsterdamThe Netherlands

Personalised recommendations