Immigration detention is the phenomenon of depriving non-nationals of their liberty for violating immigration law. Governments utilize immigration detention because, although national borders are firmly drawn in the text of international law and in political rhetoric, most actual borders are not readily defensible against unauthorised migration. After creating an enduring and impactful international legal regime for identifying and protecting refugees in the post-war period, the international community turned its attention away from managing migration, and has never effectively addressed the cross-border movement of low-income workers, smuggled, and trafficked people. The result is a high level of irregular migration. An estimated 15-20 percent of the 215-plus million migrants on earth have no legal right to be present in the countries where they reside. Enforcement solutions to irregular migration are generally impracticable because of the socio-economic integration unauthorised migrants have in their countries of residence. However, irregular migration is an issue of popular concern, causing governments to seek enforcement methods that will satisfy the public.
Governments increasingly choose detention of migrants as one of these methods; it serves as a tangible proxy for the fences and guards that anti-immigration advocates demand, and its inefficiency and inhumanity as a policy choice is easier for governments to conceal. Playing out “the intrinsic contradiction between the principle of national sovereignty and international human rights,” domestic legal regimes that are otherwise more protective of administrative detainees and prisoners offer fewer protections to immigration detainees. One unofficial estimate places the worldwide number of immigration detainees at the hundreds of thousands, and various sources argue that immigration detention is expanding. In response, international human rights standards limiting and conditioning its use have increased. This chapter describes these recent trends and summarizes international law relating to this troubled area of policy. Although international law either neglects or explicitly excludes some fundamental issues, it does include important protections for immigration detainees.
Available at: http://works.bepress.com/beth_lyon/26/