The policy governing immigration is to encourage the ones who want to be governed by the immigration laws and are desirable to get protection under the laws of the nation where they are seeking immigration. The policy also governs that the ones who are not desirable shall not be granted protection and they shall be prevented from further seeking any admission. The desired immigrants are the workers or family people who come under the bracket of desirable immigrants whereas the undesirable ones are the terrorists or the criminals who are not considered legal personalities[1]. Therefore, the immigration policy tries to form a balance between the desired immigrants and the undesired immigrants so that the state exercises full responsibility in ensuring that no unwanted people are given protection under their legal framework. The system has to be fair to the ones who are deserving of getting a protection. The laws are to ensure that the ones who are in the immigration detention get a fair chance to be represented and their cases heard. There are various mental issues that the immigrants face for being detained due to administrative purposes and they remain confined for a very long time. The time frame of detention seems very long and often infinite and therefore seems distressing. The Home Office has mostly taken charge of the situation and has tried to curtail the time period. The directions of the Home Office have been to ensure that the age, gender and health conditions of the detainee are kept into account.
The way the hearings are conducted need to be done in a systematic way and the judges also need to take into consideration the fact that the condition in which the detainees are kept should be conducive to the environment. A standard has been set which needs to be followed by the judges in ensuring that the immigrants who have been detained get a fair trial. The Judges need to have a uniform behavior and set a standard of behavior wherein anyone without any legal representative be allowed to be treated fairly. Though the ideal behavior is to make the detainees feel ensured and protected and also give them a representation in cases they face detention for a longer time than usual, the behavior is not followed.
Judicial review can defined as a method or process of court proceedings where the power vests with the judge to review a case and check the veracity and the lawfulness of any decision or action. The decisions are passed by the public bodies and the administration ensures that there is fairness in the process. The judge oversees the judgment and makes sure that the law passed by the authorities are in sync with the legislation. The asylum cases and immigration cases are decided by the public bodies and in matters of asylum, the public body is the Home Office. The Home Office has the power to check matters related to asylum. The process of judicial review is to challenge any decision which has already been passed and has been made. In cases, the parties are not satisfied with the decision and believe that the decision has been irrational and illegal, a judicial review can be initiated. The question is not regarding the right or wrong stance of the decision but if the right law has been applied or not. The Home Office has to act in accordance with the laws and also apply the right procedures. Therefore, the rule to follow is that once the judicial review is processed, the court will not check if the decision was right but check if the right approach was followed or not. Therefore, it is essential to check that the right law has been applied so that no detainee is devoid of any legal approach[2]. Hence, once the judicial review becomes successful, the case will be reverted back to the Home Office.[3] The Home Office will therefore also check if the court has made any error in the application of law. Therefore, once the case goes back to the Home Office, similar laws shall be made but with the help of following proper procedure. All relevant facts of the case need to be checked as well as the proper evidence needs to be applied to reach the right decision. All cases of asylum and judicial review are heard by the Upper Tribunal. Though the High Court has the authority to check and give orders, it is recently heard by the Upper Tribunal, whereas previously, most cases related to asylum were heard in the High Court. The High Court mostly deals with cases of detention where the entire process was done by using unlawful means. The Judicial Review is therefore the process applied wherein the decisions are challenged and once the High Court or the Upper Tribunal is convinced regarding the incorrect approach of law, a review is initiated.
In cases when the Home Office or the UKBA have refused any application for the purpose of clearing the entry or have granted any leave to remain, in such cases, there can be an issuance of judicial review. In cases where there is a refusal to grant an appeal in such cases, a review of the decision is initiated. If there is an instance that there is a refusal to grant an application, then that refusal can be challenged as judicial review against the Home Office. The time frame is fixed at 3 months from the day the refusal was given. The legal solution in cases of unlawful detention is seeking bail and the process is a very long and arduous process where the detainees have to undergo the grueling task of representing themselves or fighting for their right. There are many obstacles to getting bail in cases of unlawful detention and the primary hindrance is when there is no one to represent the detained. The courts need a surety and it is the duty of the court to find an appropriate surety who will make process easy but there lies certain difficulty in getting someone to stand as surety. The UK Border Agency also demands that a proper and legal address is given which shall be allowed by them but it so happens that an address found by the detained is not permissible by the UK Border Agency.
The UK Border Agency has the power to detain citizens who are not from Britain, that is, the non British citizens. This process has twofold application-one is that there shall be no unlawful entry to the United Kingdom and the next concern is that the ones who have entered unlawfully shall not be allowed to stay in the territory of United Kingdom so that they are removed. The ones not having the right to enter the jurisdiction of United Kingdom are removed. The procedure or steps that are followed by the United Kingdom in this regard are as listed as:
While granting detention a few considerations need to be taken into account and to decide is the detention needs to continue. The first step to ensure that the detention be continued with is that what are the chances that the person will be removed from that detention and also in what scale of time will the release take place. The past record of the person also needs to be checked. If there has been an instance of the person getting released, then it has to be checked if the person has ever had any history of absconding or has ever fled the law. The temporary release of bail is given as an interim mechanism and therefore, while the bail is granted, it is essential to ensure that the person has complied with the bail requirements and that the asylum seeker has not broken any law. If there is a history of the person not complying with the temporary bail requirements, the detention shall continue. The detainee can seek bail but there has to be a proper reasoning behind stating that the applicant has never tried to breach the law and has also not tried to breach any immigration law. When the detention is taken away, the best thing to analyze is if that person has any adverse effect on the public at large and if that person has any chance of harming the general public when he is let loose. If the appeal is outstanding, it is necessary to keep in mind that if a claim for judicial review has been initiated or not.
The process of detention is met by applying for bail to the immigration judge and then depending on the merit of the case, the bail shall be allowed. For applying for bail it is not mandatory that the person has to be represented but in cases of bail application, mostly the people are legally represented. The issue has been regarding the implementation of the bail cases to ensure that the bail project goes on fairly. The bail hearings in cases of immigration are documented by the Bail Observation Project which has always been very open and vocal about the unfairness that surrounds immigration cases. The judges play a very important role in ensuring that there is no bias and that the people in cases of application for bail are treated fairly. Though there are many guidelines as well as regulations as to how the hearing should go on but the essential point to be considered is that the hearing should be fair[7].
It is essential to take into consideration that the immigration judge has the right to first decide how the hearing goes and then the judge has the right to divide the application into two parts. The first part shall be to first decide the veracity, that is, how far the hearing will go[8]. The question is how the bail should be granted and then depending on that decision as to whether bill will be granted or not. After ensuring the fact that it is legitimate to grant the bail. After that, the surety has to be properly checked and then look for the right surety. After being satisfied that the surety is allowed to be given represented, the person shall be allowed to present himself in court.
To ensure that there is no travesty, the judge has to play the role of a mediator and also check that justice is ensured. For a fair hearing, it is mandatory that the bail summary was duly noted to the participants and also the details were clearly mentioned. After doing so and being satisfied that the bail summary has documented all the essential factors, the applicant will then be allowed to be given a representation. Before the hearing takes place, the legal representative along with the applicant should be given enough time where the applicant shall denote all the essential facts pertaining to the bail hearing. The sufficient time is given so that the applicant does not claim in the future that the representative did not have enough knowledge and that he was unfairly represented. The applicant can hear all the matters related to the hearing. The applicant shall also have enough right to make sure that he has made his case clearly and that all the facts have been stated by him. Why the bail should be granted is the sole discretion of the judge but the application has to be made by the parties and the legal representative and therefore it is mandatory that the parties have been given enough opportunity to make their case and also have their points heard in the court of law.
The judge plays a very important role in the entire process and therefore the judge has to mandatorily follow all the procedures in the case and also the judge has to explain the reason behind taking the decision he is taking,. The judge has to clearly mention the reason behind giving the bail and in cases when the judge is not granting the bail, he has to also give a written submission. Therefore, the onus is mostly on the judge to make sure that all the facts regarding the bail are made necessarily to the party and that the judge shall have the right to refuse that bail. Even though the judge has the sole authority to refuse bail, he shall also have the right to ensure that the party who is applying for the bail is properly represented[9]. This is keeping in mind the fairness of the law.
The right to freedom and liberty are the basic and inalienable rights that all the parties in a case are entitled to. The fundamental right is to enjoy proper liberty and no impediment to their freedom. If a person is unlawfully kept in confinement and they are unlawfully kept in the detention, the person can claim that his fundamental rights are being jeopardized.[10] This is a rule of thumb that is followed in the whole of European Union as well as the jurisdiction of the United Kingdom. The European Union as well as the territory of the United Kingdom shall have the right to make sure that the basic human rights are not hampered[11]. The established common law rules as well as the laws of the European Union make sure that no fundamental rights are violated by the law or the Courts[12]. Though it may so happen that the person is being deprived of his rights but sometimes it also happens that due to the ongoing administrative process of investigation, the liberty is hampered[13]. That is not considered a travesty because the protocol is being followed and it is through the process of administration that sometimes there is delay in the way the bail application is going on[14]. The decisions regarding ousting a person from United Kingdom is a very tough call and therefore all procedures should be followed and maintained and it is essential that the judges give all the justification that is necessary to make sure that it does not seem like an arbitrary decision[15].
The travesty of justice comes into question when the time taken to come to a conclusion takes longer than normal and also the applicant does not receive fair hearing[16]. The judges who sit at the First Tier tribunal Judge are the ones that look after the scenario and also exercise proper authority. While giving a proper order, the judge shall look into the gender, the age as well as the health of the applicant and also has to keep into account that the detention might have an adverse effect on the mental health of the person who is in abandonment[17]. Though the judge should apply uniform laws, it sometimes also happens that the applicants face unjustified behavior from one judge and sometimes one judge is fair to another applicant[18]. Therefore it cannot be uniformly said that the judge is unfair or that the judge has been partial. Without accusing the judge of unfairness, it is also essential to take into consideration other factors like the situation and the governing law at the moment[19]. The Bail Project that was received and came out giving a glaring and difficult situation where it was stated that the judge seems very testy as well as irritable. The judge has to maintain a proper decorum as well as act in terms of the regulations that specify their role. In cases when the judge does not follow, and the immigrant faces unfair and arbitrary behavior, it shall be held that the judge has violated laws. It is within the duty of the judge to check that all the evidences are collected and all proper laws have been applied. The judge has to very flexible in the application of laws and shall be very receptive of the concerns of the applicants. Having been detained in a foreign land and having to defend their identity is the least of the concerns that govern the states and that should be avoided at highest priority[20]. There shall be no delay in the justice delivery system and the suitability should be checked at highest priority. The right vests with every applicant to make sure that a review should be allowed[21]. The judge has to apply and then the Tribunal has to make sure that the judicial review is fair and that the legality of the order is tested[22].
References
Martin, David A. “Why Immigration’s Plenary Power Doctrine Endures.” Okla. L. Rev. 68 (2015): 29.
[1] Tillyer, Rob, and Richard Hartley. “The use and impact of fast-track departures: Exploring prosecutorial and judicial discretion in federal immigration cases.” Crime & Delinquency62.12 (2016): 1624-1647.
[2] Thomas, Robert. “Mapping immigration judicial review litigation: An empirical legal analysis.” Public Law 4 (2015): 652-678.
[3] Das, Alina. “Unshackling Habeas Review: Chevron Deference and Statutory Interpretation in Immigration Detention Cases.” NYUL Rev. 90 (2015): 143.
[4] Dickovick, James Tyler, and Jonathan Eastwood. Comparative Politics: Integrating Theories, Methods, and Cases. Oxford University Press, 2016.
[5] Ryo, Emily. “Detained: A study of immigration bond hearings.” Law & Society Review 50.1 (2016): 117-153.
[6] Eagly, Ingrid V., and Steven Shafer. “A national study of access to counsel in immigration court.” U. Pa. L. Rev. 164 (2015): 1.
[7] Clayton, Gina. Textbook on immigration and asylum law. Oxford University Press, 2016.
[8] Martinez, Omar, et al. “Evaluating the impact of immigration policies on health status among undocumented immigrants: a systematic review.” Journal of Immigrant and Minority Health17.3 (2015): 947-970.
[9] Koh, Jennifer Lee. “Removal in the Shadows of Immigration Court.” S. Cal. L. Rev. 90 (2016): 181.
[10] Head, Michael. Administrative law: Context and critique. 2017.
[11] Wray, Helena. Regulating marriage migration into the UK: A stranger in the home. Routledge, 2016.
[12] Ryo, Emily. “Representing Immigrants: The Role of Lawyers in Immigration Bond Hearings.” Law & Society Review 52.2 (2018): 503-531.
[13] Chacón, Jennifer M. “Immigration and the Bully Pulpit.” Harv. L. Rev. F. 130 (2016): 243.
[14] Kagan, Michael. “Immigration Law’s Looming Fourth Amendment Problem.” Geo. LJ 104 (2015): 125.
[15] Oring, Elliott. Jokes and their relations. Routledge, 2017.
[16] Woolf, Rt Hon Lord, et al. De Smith? s Judicial Review: First Supplement to the 7th edition. Sweet & Maxwell, 2014.
[17] Hutchings, Matt. “Delegation of Functions: Principles and Recent Perspectives.” Judicial Review 21.2 (2016): 93-98.
[18] Schuck, Peter. Citizens, strangers, and in-betweens: essays on immigration and citizenship. Routledge, 2018.
[19] Benson, Lenni B. “Immigration Adjudication: The Missing Rule of Law.” J. on Migration & Hum. Sec. 5 (2017): 331.
[20] Ely, John Hart. “Toward a Representation-Reinforcing Mode of Judicial Review.” Constitutionalism and Democracy. Routledge, 2017. 157-194.
[21] Valdez, Inés, Mat Coleman, and Amna Akbar. “Missing in action: practice, paralegality, and the nature of immigration enforcement.” Citizenship studies 21.5 (2017): 547-569.
[22] Martin, David A. “Why Immigration’s Plenary Power Doctrine Endures.” Okla. L. Rev. 68 (2015): 29.
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