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Vol 24 No 12 Dec 19/Jan 20

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Cover of Merkin and Flannery on the Arbitration Act 1996

Merkin and Flannery on the Arbitration Act 1996

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

ISBN13: 9781509930456
To be Published: January 2020
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £75.00

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 law on detention in the UK, US and EU, and makes recommendations to these jurisdictions for improvement.

Judicial Review, Immigration, Asylum, Refugee and Nationality Law
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