Judicial Review of Immigration Detention in the UK, US and EU: From Principles to Practice

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Justine N Stefanelli (American Society of International Law)

Judicial Review of Immigration Detention in the UK, US and EU

From Principles to Practice

Justine N Stefanelli (American Society of International Law)

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English

Hart Publishing
23 January 2020

Immigration law

Immigration detention is considered by many states to be a necessary tool in the execution of immigration policy. Despite the apparently

key role it plays in immigration enforcement, the law on immigration detention is often vague, especially in relation to determining the circumstances under which prolonged detention remains lawful. As a result, the courts are frequently called upon to adjudicate these matters, with scant legal tools at their disposal. Though there have been some significant judgments on the legality of detention at the constitutional level, the extent to which these judgments have had an impact at the lower end of the judiciary is unclear. Indeed, it is the lower courts which are tasked with judging the legality of detention through habeas corpus or judicial review proceedings.

This book examines the way this has occurred in the lower courts of two jurisdictions, the UK and the US, and contrasts this practice not only in those jurisdictions, but with judgments rendered by the Court of Justice of the European Union, a constitutional court at the other end of the judicial spectrum whose judgments are applied by courts and tribunals in the EU Member States. Although these three jurisdictions use similar tests to evaluate the legality of detention, case outcomes significantly differ. Many factors contribute to this divergence, but key among them is the role that fundamental rights protection plays in each jurisdiction. Through a forensic evaluation of 191 judgments, this book compares the laws on detention in the UK, US and EU, and makes recommendations to these jurisdictions for improvement.

By: Justine N Stefanelli (American Society of International Law)
Imprint: Hart Publishing
Country of Publication: United Kingdom
Dimensions: Height: 234mm, Width: 156mm,
Weight: 528g
ISBN: 9781509930456
ISBN 10: 1509930450
Pages: 248
Publication Date: 23 January 2020
Audience: College/higher education , Professional and scholarly , Primary , Undergraduate
Format: Hardback
Publisher's Status: Active

1. Introduction I. The Detention Machine II. Immigration Detention in Literature III. Issues Explored IV. Approach of this Book V. Structure of the Book 2. Liberty and the Historic Context of Immigration Detention I. Introduction II. The United Kingdom III. The United States IV. The European Union V. Conclusion 3. Current Legal Frameworks I. Introduction II. Origins of the Modern Systems III. Detention Authorities IV. Grounds for Detention V. Non-statutory Guidance on Detention Decision-Making VI. Additional Detention Provisions in the Return Directive VII. Conclusion 4. Judicial Intervention into Detention I. Introduction II. Courts and Judges III. Judicial Review Proceedings IV. Legal Representation and Access to Justice for Detainees V. Modern Judicial Review of Detention VI. Conclusion 5. Balancing Factors I. Introduction II. Case Basics III. The Legality Tests IV. Likelihood of Removal and Due Diligence V. Assessing Risk VI. Detainee Non-co-operation VII. Pursuit of Legal Remedies against Removal or Deportation VIII. Conclusion 6. Using the Law I. Introduction II. The Doctrine of Precedent III. Fundamental Rights IV. Impact of Detention Time Limits on Judicial Decision-Making V. Quality of Law VI. Conclusion 7. The Business of Judging I. Introduction II. Judges as Fact-Finders, Reviewers or Law-Makers III. The Role of Deference IV. Conclusion 8. Conclusion I. Introduction II. Detention: An Origin Story III. Accounting for Outcomes IV. Moving Forward

Justine N Stefanelli is Director of Publications and Research at the American Society of International Law in Washington DC.