Delays help assert national sovereignty and only a culture change will lead to fairness

The United States Court House in Philadelphia, Pennsylvania, where the Immigration Court for the city sits. Creative Commons Attribution-NonCommercial 4.0 International License

AMERICAN and British governments using a “labyrinth” of complex procedures to restrict the rights of refugees and immigrants will continue to worsen until public attitudes change, a lecture has heard.

The United States in particular uses everything from underfunding courts and remote and isolated detention of children and families to assert national sovereignty over individual rights, said Professor Jill Family.¹

The director of the Law and Government Institute at Widener University, who testified for the US Senate in March,² told an audience at the University of Glasgow’s School of Law³ that procedure has become a barrier to fair hearings.

Citing what she called a “delay rationale” – that immigrants appeal decisions against them just to delay being deported – Prof Family said it is about a vision “where the nation holds all the power and individual rights are not as important”.

Despite both the UK and US marking the 800th anniversary of the Magna Carta and a notion of a fair process for all, this is not present in immigration cases.

She said: “Formal changes to the law are not enough. That even if the US Supreme Court declared that individual rights matter more in the US, that efforts to create procedural barriers for immigrants will continue until we have some sort of cultural shift, some sort of re-imagination of the role of the nation’s power versus individual rights.

“Of course delay is involved when someone seeks judicial review. The whole point is that there’s a chance for people to catch their breath and a chance for another adjudicatory body to review, to see if there’s been any errors below.

“It seemed wrong to place the blame on individuals and their attorneys for seeking access to justice. I think that the argument that the delay inherent in court review is a justification for cutting back on court access is really linked to a conception of immigration sovereignty that places the will of the nation above all else.”

Prof Family pointed to examples such as some attempts by President Barack Obama to address some parts of the immigration system. That in turn has led to even more court cases and added to further confusion and delays, which now reaching an average of more than 600 days for immigration decisions.

But while there has also been record removals from the US in recent years, there has been no corresponding funding for immigration judges facing a backlog of more than 400,000 cases.

She added: “I think there should be grave concern when a procedural system itself becomes a barrier to fair administration of the law.”

The lecture was part of Refugee Festival Scotland⁴ which has included public debates, music, theatre and other events about the contribution of refugees and immigrants and the challenges against them.

[Tweet “”Procedural fairness should not be an accident of place of birth””]Prof Family started and concluded her talk by pointing to her own privilege of being born in the US, giving her automatic citizenship.

She said: “I was born in the right place at the right time. Because of my place of birth, the substantive immigration law was on my side in the United States.

“I never had to rely on the substance of US immigration law to be legal. And that is a lucky thing, because US immigration law is a labyrinth of technical provisions that are sometimes generous but just as often are extremely harsh. 

“Not only did I not have to rely on the substance of immigration law but also neither I nor my parents had to figure out the procedure of US immigration law. No-one had to figure out what forms to file, where to file them, how to challenge a denial, whether anyone would be detained during the process, whether there would be a fair hearing, the proper order of steps to take and any fees to pay.

“It’s my hope that someday it won’t matter anymore that an immigration case is an immigration case and that procedural fairness will be available to all. Because I believe that procedural fairness should not be an accident of place of birth.”