Challenging Immigration Detention
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Challenging Immigration Detention

Academics, Activists and Policy-makers

Edited by Michael J. Flynn and Matthew B. Flynn

Immigration detention is an important global phenomenon increasingly practiced by states across the world in which human rights violations are commonplace. Challenging Immigration Detention introduces readers to various disciplines that have addressed immigration detention in recent years and how these experts have sought to challenge underlying causes and justifications for detention regimes. Contributors provide an overview of the key issues addressed in their disciplines, discuss key points of contention, and seek out linkages and interactions with experts from other fields.
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Chapter 4: Whither presumption of liberty? Constitutional law and immigration detention

Daniel Wilsher


The protection of individual liberty against arbitrary detention by the state is one of the foundations of liberal jurisprudence. In common law countries like the United Kingdom, however, lengthy immigration detention on a large scale has become normal and has largely been held to be constitutional. Once judges accepted that the migration power entails a power to detain pending expulsion, courts in these countries have found it difficult to draw clear boundaries around detention. This has allowed governments to extensively expand detention facilities. By contrast, constitutions in continental Europe have viewed immigration detention as a heterodox exercise of police power requiring greater judicial control and legislative time limits.

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