Daniel Wilsher, Immigration Detention: Law, History, Politics, Cambridge: Cambridge University Press, 2012, 420 pp, hb £65.00.
| Published date | 01 May 2013 |
| Date | 01 May 2013 |
| DOI | http://doi.org/10.1111/1468-2230.12019_3 |
REVIEWS
Daniel Wilsher,Immigration Detention: Law, History, Politics, Cambridge:
Cambridge University Press, 2012, 420 pp, hb £65.00.
This book is a sustained and significant contribution to the development of
immigration detention as a field of legal study in its own right. In politics and
academia, discussion of immigration detention is often subsumed into abstract
questions about immigration control, authorisation (to enter and to remain), and
‘membership’ of the polity. These abstract questions are of relevance to immi-
gration detention. But a focus on them can lead to the neglect of pressing
questions about how border control should be enforced and the appropriate
constraints upon that enforcement. Wilsher’s book is a welcome corrective to
such neglect. His focus is on the administration of border controls. He argues
that, in discussing immigration detention, we need to ‘move away from our
concentration on ends (who shall we allow to be members?), and look instead at
means (what actions can legitimately be taken to uphold our membership rules?)’
(303).
The book is centred on the United States and the United Kingdom, with the
latter constituting the book’s centre of gravity. International law (as relevant to
the United Kingdom) and European Union law are both prominent, with a
chapter apiece in a book of seven chapters. The egregious denial of basic rights
that has characterised Australia’s system of mandatory detention and the relative
leniency of French immigration detention leads to both countries being refer-
enced and discussed in some detail.
The first two chapters are on the history and domestic case law of immigration
detention. The United States and United Kingdom are selected for providing
early ‘recognisably modern systems of immigration control’ and for the material
they provide on the interaction between legal thinking and political practice (8).
Wilsher’s historical account conveys well the flux and change in the assumptions
informing immigration detention over the last 120 or so years.
The first chapter addresses the period from the late 19th century to the Second
World War. The backdrop, namely the emergence of the plenary power doc-
trine in the United States and the slow demise of Victorian liberalism with its
assumption of free movement, is familiar. However, the focus of the historical
account he gives, on the impact of these changes on the law and practice of
immigration detention is less so, and the account provided is informative and
engaging. A theme of interest is that extensive use was made of release and
supervision options in much of the period. His historical account is one of how
we have got to where we are, recording the first sightings both of various
features of contemporary detention regimes and of justifications for their limi-
tation. For example, the [US] Immigration Act 1893 is noted as the ‘first time
that any legislature had dictated that detention must be used as a mode of
procedure in administering the immigration laws’ (15); and the Californian case
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© 2013 The Authors. The Modern Law Review © 2013 The Modern Law Review Limited. (2013) 76(3) MLR 639–648
Published by Blackwell Publishing, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
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