Cycles of judicial and executive power in irregular migration

Comparative Migration Studies. 2017;5(1):1-18 DOI 10.1186/s40878-017-0059-x


Journal Homepage

Journal Title: Comparative Migration Studies

ISSN: 2214-594X (Online)

Publisher: SpringerOpen

Society/Institution: IMISCOE (International Migration, Integration and Social Cohesion)

LCC Subject Category: Social Sciences: Communities. Classes. Races: Urban groups. The city. Urban sociology: City population. Including children in cities, immigration

Country of publisher: Netherlands

Language of fulltext: English

Full-text formats available: PDF, HTML



Marinella Marmo (Flinders Law, College of Business Government and Law, Flinders University)
Maria Giannacopoulos (Flinders Law, College of Business Government and Law, Flinders University)


Double blind peer review

Editorial Board

Instructions for authors

Time From Submission to Publication: 13 weeks


Abstract | Full Text

Abstract This article argues that power struggles between judiciaries and executives are fuelled by tensions of securitisation, border control and human rights over the issue of irregular migration. The article juxtaposes three paradigm court cases to render the argument concrete, focusing on two Australian High Court decisions (M70 v Minister for Immigration and Citizenship and CPCF v. Minister for Immigration and Border Protection & Anor) and one decision from the European Court of Human Rights (Hirsi Jamaa and Others v. Italy). An examination of these cases reveals each step of this cycle: the executive attempts to produce a buffer to avoid or minimise migrants’ protections and judicial review, yet such manoeuvring is countered by the judges. Following this, new steps of the cycle occur: governments display disappointment to courts’ interventions in an effort to discredit the exercise of judicial power while the judiciaries maintain the focus on the rule of law. And so the cycle continues. The key argument of this paper rests on the paradox resulting from the executive’s attempts to curb judicial intervention, because such attempts actually empower judiciaries. Comparing different jurisdictions highlights how this cyclical power struggle is a defining element between these two arms of power across distinct legal-geographical boundaries. By tracing this development in Australia and in Europe, this article demonstrates that the argument has global significance.