Introduction: the new detention as politics or as law?

The last thirty years have revealed a distinct politics of immigration detention which was not apparent in earlier periods of migration control. As we have seen, although restrictions on migration have been long standing, the scale and duration of detention was previously limited. Apart from during wartime or national security scares, in practice, detainees were not held for long periods and there was little impetus to construct large permanent detention spaces. Whilst deportation and exclusion policy were debated, detention rarely attracted serious concerns. This has now all changed. Modern practices tell us much about the politics of migration in contemporary societies. Detention reveals itself to be of a highly political nature, having arisen largely outside the realm of precise moral and legal reasoning. This politicization of detention has been expressed in arbitrary practices that cut across liberal principles of the rule of law, equality and respect for individual liberty.

This will lead us to assess the intimate and dialectical relationship between law and politics. The treatment of migrants is an important test of the extent to which political actors within modern democracies have been willing and able to consistently pursue non-liberal methods. It has long been clear that contemporary immigration politics inhabits an uncertain and shifting space between liberal and non-liberal ideas. The liberal tradition finds expression in the legal values of respect for individual autonomy and reason. Expression of such ideas would see detainees being treated according to precise legal standards, for example, as criminal suspects or prisoners of war. Such standards reflect well-established legal and moral principles over pure political calculation. By contrast, where mainly political factors determine how persons are detained there are few legal standards on view. We may consider such immigrants as ‘emergency detainees’ or ‘unwanted persons’. The same may be said where detainees are held in special zones, deliberately created by the political branch to exist outside the reach of the law.