This article has been written by Ishaan Banerjee, from Vivekananda Institute of Professional Studies, affiliated to Guru Gobind Singh Indraprastha University. This article explores whether the right to counsel for detained migrants has to be universal and if it should be extended to deportation and immigration proceedings where they are of a civil nature through the lens of international law. Before doing so, it analyses the difference between migrants, asylum seekers and refugees.
Table of Contents
The issue of the detained migrants and their rights has taken centre stage in this era where human rights and civil liberties are viewed as essentially being an identity of people. This has primarily occurred due to the excesses of human rights violations that have been committed in the past many years. Past years have seen a surge in refugee migrations, wherein, the unwilling recipient countries have had to detain them when they tried to illegally cross over. One cannot promptly say that the crossing-over had been done illegally. Often, the migrants, refugees and asylum seekers had to do this because they wanted a better life in the host country or they were being persecuted in their home countries in some way. One must understand their plight as well. However, many of these people are detained and human rights violations are committed to them. They are often detained without any access to legal recourse. This article shall examine the debate of whether the right to counsel for detained migrants should be universal. This article shall not only evaluate this debate through the perspective of migrants but also from the perspective of asylum seekers.
Difference between migrants, refugees and asylum seekers
Migrants are those people that migrate to other countries because of poor conditions in their home countries and they may be looking to improve the quality of their lives. Their movement can be forced or voluntary. There are other categories of migrants too, such as those who move to other places within a nation, either because they have been forced to, or voluntarily, for better opportunities.
It often happens that migrants may migrate for better economic, social or educational opportunities. It is a complex process, wherein, the migrants may have these things in mind, but the primary reason for their displacement is a natural disaster or a poor economy, etc. Also, the mindset and the motives of these migrants may change during this journey. Therefore, classifying some people as economic migrants, or even asylum seekers for that matter, does not always give the true picture as to all the reasons for which he or she has migrated.
Article 1 of the Convention Relating to the Status of Refugees,1951 gives the definition of a refugee. It defines a refugee as someone who is unwilling or is unable to return to their home country due to a well-founded fear of being persecuted on the grounds of:
- Membership of a particular social group
- Or having a particular political opinion
Refugees are thus displaced due to persecution, rather than for economic reasons or better opportunities. They are governed directly by international law, more specifically the Refugee Convention.
Asylum seekers are those people who claim to be refugees but whose claims have not been evaluated yet. Their applications are said to be still left pending. Thus, a person will be an asylum seeker as long as his application is pending. Asylum seekers migrate for the same reasons as a refugee. Therefore, not all asylum seekers are designated as refugees, but all refugees were once asylum seekers. Host countries have the primary responsibility for determining whether asylum seekers could be designated as refugees, but if they are unwilling or are unable to ascertain this, then the United Nations and other international and refugee organisations can step in.
Why migrants and asylum seekers should have the right to counsel
Universal Declaration of Human Rights
The Preamble of the Universal Declaration of Human Rights (UDHR) states that the foundation and roots of justice, peace and freedom can be found in the rights vested in all human beings. The Preamble lays down that the purpose of the UDHR is to protect people’s basic and fundamental rights through the rule of law.
If we examine Article 6, we see that it states that every person has a right to recognition everywhere as a person before the law. Therefore, going by the wording of Article 6, every person, whether he be a president or a terrorist or a detained migrant, shall be given recognition before the law anywhere in the world. This means that he shall be liable to be tried by the law and they shall hold status in law, wherein they shall hold the rights under the law.
Article 16 of the International Covenant on Civil and Political Rights (ICCPR) also endorses the same idea as Article 6 of the UDHR. Similarly, Article 24 of the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families (ICRMW) extends this right to migrant workers and every member of their families.
Article 7 of the UDHR states that all are equal before the law and entitled to equal protection before the law. All persons shall be treated equally before the law. Therefore, detained migrants and asylum seekers have to be treated equally before the law and should be entitled to equal protection of the law. Another aspect that arises is with respect to Article 9 of the UDHR. Article 9 states that no person shall be subjected to arbitrary arrest, detention or exile. What if a migrant is detained through arbitrary procedures and rules? If a counsel is not offered to such a person, then this would be a grave miscarriage of justice, which is the central objective of the UDHR.
Article 10 states that everyone is entitled to a full and fair public hearing by an independent and impartial tribunal to determine his rights and obligations and to hear any criminal charge that has been registered by him. Deportation proceedings have varied natures in various countries. In some countries like the United States, deportation proceedings are civil in nature while in countries like India, it is of a criminal nature. This matters because if deportation proceedings are criminal in nature, then Article 10 can be applied which would grant the migrant a full and fair public hearing by an unbiased tribunal to hear the criminal charge against him. One must note that the wording of Article 10 does not specify that the charges should be a civil one, thus, it puts the migrants entering into those nations where deportation proceedings are of a civil nature, in danger of not being given access to a fair trial.
The UDHR forms a majority of the principles of international law and is not a treaty that has been ratified by any nation. Thus, it is not legally binding in itself. However, this has been debated since many nations have invoked the UDHR for a long time, it has become a binding part of customary international law. The general consensus, however, is that it is non-binding. To give these rights legal force, treaties have been formed for these rights. The UDHR just serves as a base for determining the basic and fundamental rights that are available to humans.
International Covenant on Civil and Political Rights
Article 2 (a) of the ICCPR states that any person whose rights or freedoms, as recognized in the ICCPR, have been violated shall have access to an effective remedy, even if the violation has been committed by State officials.
Article 26 states that all persons are equal before the law and have equal protection of the law.
Article 14.3 (d) states that to determine any criminal charge against any person, that person shall be given the freedom to defend himself in person or through legal assistance of his own choosing. He has the right to be tried in his own presence. He has the right to be informed of his right to legal assistance and if he does not have the means to pay for it, then legal assistance must be given to him or the payment should be done by the government. Here again, this Article would apply where deportation proceedings are criminal in nature. However, the UN human rights committee has stated that Article 14 extends beyond criminal proceedings, in order to determine the rights and obligations in civil proceedings as well. Thus, a counsel could be offered to immigrants if they are unable to get one themselves.
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families
Article 16 (7)(c) of the ICRMW states that migrant workers and their family members, when arrested, detained, or our committed to prison, then these persons shall be informed of their rights derived through the relevant treaties and shall have the right to meet State officials and to make arrangements with them for his legal representation.
Article 83 states that each State party to the Convention has to undertake that:
- Any person, whose rights and freedoms are recognised and are violated shall have an effective remedy, even if such actions violating the rights and freedoms are committed by persons acting in an official capacity.
- Any person seeking a remedy can get his claim reviewed by the competent judicial bodies or any other competent authority provided for by the State’s legal system, and develop the possibilities of judicial remedy.
- These remedies can be enforced by the authorities
Through these provisions, a detained migrant should be allowed access to legal recourse and representation.
International Covenant on Economic, Social and Cultural Rights
Article 2(3)(b) states that persons whose rights and freedoms as recognised by the Convention which has been violated, shall have an effective remedy and these rights shall be determined by competent judicial bodies.
Article 14(3)(d) states that the person should be tried in his presence and has the right to defend himself in person or through legal assistance of his own. If he does not have money to pay for legal assistance, it should be provided to him, in cases where the interests of justice are required, without payment. However, this provision extends to criminal charges.
United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems
The United Nations Principles and Guidelines allow for the right to a counsel for someone charged on a criminal offence. Although the Principles and Guidelines talk about criminal charges, the Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, has encouraged the extension of the right to counsel for any ‘judicial or extrajudicial procedure aimed at determining rights and obligations’.
European Convention on Human Rights
Article 6 of the ECHR talks about the right to a fair trial. It is clearly specified in the wording of Article 6(1), that the right to a full and fair hearing shall be given in the determination of any civil rights and obligations and criminal charges against him. Article 6(3)(c) states that in respect of criminal charges, the person shall have the right to defend himself through legal assistance of his own choosing and if he cannot get legal assistance due to no means for payment, then the assistance has to be given free.
Need for universal representation
After observing the above treaties and conventions, we see that all of them expressly talk about how the right to counsel is being applied to criminal charges. However, it should apply to civil proceedings universally as well. It has been stated by the UN and its bodies that the right to counsel should extend to civil proceedings as well.
In countries like the US, immigration proceedings have been classified to be civil in nature. Even the language of the above-mentioned treaties/conventions refer to criminal charges.
Detained migrants and asylum seekers have to go through a lot to reach the host country. They may flee because of poor conditions in their home countries or because of persecution. It is only natural for them to seek better lives. Thay may also be forced to flee in a hurry and without adequate preparation. They may not have the time to arrange documentation and supplies. On top of that, when these people reach the host nations, they are detained due to inadequate documentation and other reasons. The immigration law system of many nations is complex and confusing for a migrant who has suffered so much and may not even know the language of the host nation. In such circumstances, his need for a lawyer to navigate the complexities of the court system is justified. In such a situation, where the migrants have already endured so much, a sympathetic approach is needed by the host nations. It is true that unchecked immigration may lead to national security issues and concerns. But the least a State can do is give an opportunity to these detained migrants to be heard and to be able to defend their actions and justify themselves. This is one of the basic and fundamental rights that a human should have, that is, the right to legal representation and to be heard. The United Nations should implement treaties and conventions that explicitly talk about the right to counsel being extended to civil proceedings as well. Then, in countries like the US, the right to counsel shall be extended to immigration proceedings and migrants shall have legal assistance.
Universal representation entails that all people have access to legal counsel and other forms of legal representation. Right to legal representation should not be confined to deportation proceedings that are criminal in nature, rather it must apply to nations where these proceedings are civil in nature as well.
Taking an example of the US, deportation proceedings in that country are civil in nature and respondent migrants are not entirely given the right to an attorney of one’s choosing under the Sixth Amendment of the US Constitution. Instead, they have a statutory right to counsel, but it cannot be obtained at the government’s expense. This makes it very difficult for migrants to get competent legal assistance since they do not have money to pay for it. International law treaties and conventions advocate for legal aid for all, including those who do not have the means to pay for it. In the US, law school clinics, pro-bono work of law firms, human rights organizations, etc try to find attorneys for legal representation. But, even by doing so, they cover a very small part of the detained migrant group.
According to the Vera Institute, immigrants face many challenges in obtaining legal representation. Around 70 per cent of detained migrants have to make do without legal representation in the US. It was only in 2013 that an appointed counsel programme for indigent migrants was introduced. Before that, representation rates were even worse. Detention centres are often located far from the courts and major cities. Attorneys have to go long distances to meet with their clients. These clients are trapped in detention, with restricted access to the internet and telephones. They need a large amount of evidence like birth records, hospital records, supporting affidavits, etc. This kind of evidence is hard to get when trapped in detention with limited access to even your attorney.
Combined with this, the US administration has introduced laws that have expanded the scope of who can be detained and eliminated the right of some immigrants to make their case before judges. All these administrative restrictions combined with the hardships that detained immigrants have to face makes the need for universal representation stronger.
What does the universal representation system entail in the context of immigration proceedings
The universal representation system entails that every detained migrant shall be represented by counsel and shall have the right to counsel. The universal representation system shall follow the principle of audi alteram partem,that is, the right to be heard and to present one’s case before the judge. Legal aid should be a fundamental and basic right inherent to all human beings. According to the UDHR’s Preamble, justice comes from the rights vested in all human beings. This has to be protected by the rule of law. If immigrants are arbitrarily detained and not given a chance to explain their stand, it would be a breach of the rule of law and thus an affront to rights of humans and justice.
Every person facing an imminent threat of deportation should be provided with a counsel and where resources are limited, the representation for such immigrants should be given a priority basis. It should be provided in every case of immigration, whether the case looks strong or weak.
It has also been found that detained migrants are up to 10.5 times more likely to succeed if they are represented than if they go unrepresented. It has also been found that they have won in cases when represented where the outcomes were initially predicted and likely to not be in favour of the immigrants.
Universal representation ensures that the client always appears in court. Attorneys help the detained clients to keep track of the orders and dates for their upcoming court hearings, something which is very difficult without an attorney.
Universal representation also helps in the development of the economy. It helps in cost-saving for communities and the economy at large. When immigrants win deportation cases, they get indicted into the workforce and obtain work authorization in the formal economy by holding jobs and generating tax revenue for the government. A report by the Center for Popular Democracy projected that immigrant clients who win their cases would retain their jobs, thus reducing unnecessary turnover costs for employers. Representation also reduces the financial costs that the government spends on the detention of immigrants.
We observe that international law treaties mentioned above provide for the right to counsel in the case of criminal charges but it has been held by the UN and its associated organizations that it should also apply to the determination of civil rights and obligations. The right to counsel is a part of the fundamental and basic rights of humankind and every immigrant should have the right to be heard in his own deportation proceedings to justify his situations and reasons. This article advocates for the implementation of a universal representation system in the immigration system so that immigrants are tried according to the principles of natural justice and due process. The right to a fair trial and to be heard, that is, audi alteram partem is paramount for immigrants who come with hopes in their eyes and having endured terrible difficulties, to search for better futures.
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