Bureaucracies Under Judicial Control? Relational Discretion in the Implementation of Immigration Detention in Swiss Cantons

AuthorJonathan Miaz,Christin Achermann
DOI10.1177/00953997211038000
Published date01 April 2022
Date01 April 2022
Subject MatterArticles
https://doi.org/10.1177/00953997211038000
Administration & Society
2022, Vol. 54(4) 629 –659
© The Author(s) 2021
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DOI: 10.1177/00953997211038000
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Article
Bureaucracies Under
Judicial Control?
Relational Discretion in
the Implementation of
Immigration Detention
in Swiss Cantons
Jonathan Miaz1 and Christin Achermann2
Abstract
Based on interviews with bureaucrats and judges in several Swiss cantons,
this article analyzes how bureaucrats decide to order immigration detention
and how the judicial review shapes their decisions. The authors argue that
discretionary decision-making regarding immigration detention is structured
by the web of relationships in which decision-makers are embedded and
affected by the practices of other street-level actors. The varying cantonal
configurations result in heterogenous bureaucratic practices that affect the
profiles and numbers of persons being detained. In particular, differences
in judges’ interpretation of legal principles, as well as in their expectations,
strongly affect bureaucratic decisions.
Keywords
immigration detention, street-level bureaucracy, courts, discretion, legal
decision-making, judicial review, federalism, Switzerland
1University of Lausanne, Switzerland
2University of Neuchâtel, Switzerland
Corresponding Author:
Jonathan Miaz, Centre of Comparative, European and International Law, Faculty of Law,
Criminal Justice and Public Administration, University of Lausanne, UNIL Chamberonne,
Internef 317, 1015 Lausanne, Switzerland.
Email: jonathan.miaz@unil.ch
1038000AAS0010.1177/00953997211038000Administration & SocietyMiaz and Achermann
research-article2021
630 Administration & Society 54(4)
Introduction
The detention of noncitizens and asylum seekers for reasons of immigration
law enforcement is a coercive measure that is widely used by states to control
irregular migration and to facilitate the enforcement of deportations
(Bosworth & Turnbull, 2015). Despite the increasing body of literature on
immigration detention, we still know very little about how immigration
judges or bureaucrats make their decisions to detain noncitizens pending
their deportation (Ryo, 2016, p. 117). While immigration detention is manda-
tory in certain countries,1 the existing studies on European countries high-
lighted that these decisions to detain involve significant discretion (Campesi
& Fabini, 2019; Vallbé et al., 2019; Weber, 2003) and that multiple discre-
tionary powers of several actors are involved in such decision-making
(Hiemstra, 2019; Pratt, 1999). Hence, detention decisions are influenced by
the practices of other street-level actors who intervene in the “networked
policing” of internal borders (Mutsaers, 2014), including judges involved
with judicial review (Hertogh & Halliday, 2004).
This article studies the case of immigration detention decision-making in
Switzerland. In this country, according to the Foreign Nationals and
Integration Act (FNIA), immigration detention is a coercive measure aimed
at facilitating the enforcement of removal of noncitizens who are not allowed
to stay on the national territory. Immigration detention is implemented at the
cantonal level2 by bureaucrats of the cantonal Migration Services. Decisions
to detain are discretionary and are judicially reviewed by a judge in a lower
court or a state court. Based on in-depth interviews with cantonal immigra-
tion bureaucrats and judges in several Swiss cantons, this article analyzes
how bureaucrats decide to order administrative detention and how the judi-
cial review influences their decisions. In doing so, this article provides new
insights not only into the understanding of immigration detention in practice
but also into administrative decision-making and the role of the judiciary in
shaping bureaucratic practices.
Street-level policy implementation is a crucial level of policymaking
(Infantino, 2019a) because of the discretion street-level bureaucrats (SLBs)
have in enforcing rules and policies (Evans & Hupe, 2020; Lipsky, 2010;
Portillo, 2012). Discretion is a classical issue of street-level bureaucracy
research (Portillo & Rudes, 2014) and of sociolegal studies (Hawkins, 1992).
These bodies of literature challenged the conventional juridical views of dis-
cretion, which focus on rules and assume a dichotomy between law and dis-
cretion (Tata, 2007). They offer alternatives by substituting the question
regarding the formal definition of and limits to discretion by focusing on how
bureaucrats and judges use discretion in practice (Mascini, 2020, p. 127), and

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