Immigration Law: Policies, Detention, and Judicial Review

Running head: IMMIGRATION LAW
Immigration law
Name of the Student
Name of the University
Author Note

1IMMIGRATION LAW
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 personalities1. 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
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.

2IMMIGRATION LAW
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 approach2. 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
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.

3IMMIGRATION LAW
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.