“Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”[1]
Introduction:
In this era in which human rights and civil liberties are seen as simply an identification of individuals, the topic of detained migrants and their rights has come to the forefront. This has arisen largely because of the cases of human rights abuses that have been perpetrated in the last few years. An increase in refugee resettlement has arisen in recent years, in which the reluctant destination countries had to arrest them as they attempted to cross over illegally. You cannot immediately claim that the crossing-over was carried out unlawfully. This always had to be achieved by tourists, refugees, and asylum seekers because they desired a better quality of life in the new country or were in any way oppressed in their home countries. One must also grasp their plight. Nevertheless, all of these individuals are arrested and abuses of human rights are perpetrated against them. Without some claim to legal redress, they are sometimes detained.[2]
The rules and regulations on immigration include certain options to qualify for legal residency from within a country or to request deportation relief. The criteria for qualifying for such benefits and relief can be stringent, and immigration authorities often follow unnecessarily rigid versions of the requirements. International human rights extend, irrespective of immigrant status, to all human beings. Everybody, whether resident or migrant, whether registered or unidentified, embraces universal human rights, such as the right to life, liberty, and welfare of people, the right to freedom from slavery or torture, the right to fair protection of the law, and the right to freedom from discrimination, the right to freedom from arbitrary arrest and detention, the right to presumption of innocence and freedom of speech, religion, and language.[3]
Laws regarding the Right to Counsel for Detained Migrants
The governments are expected in Canada and Israel to remind arrested migrants of their right to legal representation, as well as the right to counsel is considered a fundamental concept in France, Germany, and Sweden. It’s down to the migrant or asylum claimant in most countries to employ a lawyer; the government has no duty to offer legal assistance to a citizen who has arrived in the country without a proper visa and who is subject to deportation.
The United Kingdom continues to be the only country where legal representation is given free of charge to all refugees in custody by the government’s legal aid department. Those migrants who are unable to afford an attorney at their own expense in France can seek financial assistance. The availability of government-paid legal help in certain countries relies on the particular circumstances. In Sweden, regardless of their needs, the government has a duty to provide legal aid to minors and any other refugees.
In Germany, if the court determines it appropriate, a legal representative can be named by the court. No country was established where the legislation would prohibit a migrant from being helped by voluntary lawyers or legal aid groups sponsored by means other than the national budget. No country was established where the legislation would prohibit a migrant from being helped by voluntary lawyers or legal aid groups sponsored by means other than the national budget.[4]
Australia
All who enter or reside in Australia without a valid visa are deemed “illegal non-citizens” under the Migration Act 1958 and must be detained under the mandatory detention program of the government. The length of such imprisonment has no time limit, and arrested persons have little right to question the lawfulness of their detention in court. An unconditional right to legal representation is not enacted in immigration law or common law; if a detained person does not afford one, there is no provision for a lawyer to be given at a public cost. Based on the location and qualification of the arrested person, legal assistance for people in immigration custody can be available via state government-funded legal aid services, non-government agencies, or neighborhood legal centers. Many that come in the country with no proper visa no longer apply for an immigration consultation and application assistance service provided by the federal government.[5]
Canada
In Canada, the right to representation is granted legally by section 10(b) of the Canadian Charter of Rights and Freedoms where an arrest or incarceration is included in an immigration sense. Section 10(b) states that everybody has the right “to retain and instruct counsel without delay and to be informed of that right” upon arrest or incarceration. The detainees get the right, whether they fit, to be served by lawyers at their expense or to request legal assistance. If a detainee has been arrested, the citizen may want to exercise the right to representation, and the officer must provide a fair opportunity for the arresting officer to exercise the right, taking into consideration any physical disabilities.[6]
France
Since at least 1976, the right to a lawyer has been recognized in France as a constitutional rule. The European Convention on Human Rights, which is valid in France, also enshrines the right to legal assistance. French law also states that, for that particular reason, a person who does not have the means to pay an attorney may seek financial assistance. The Code of Entry and Residence of Foreigners and the Right of Asylum are the key provisions of French immigration rules, including the rights of arrested migrants. This Code further specifies that an immigrant who is arrested in expectation of his/her expulsion from French territories has the right to a lawyer and must be told in a language that he/she can comprehend of this right. Besides, the article of the same Code specifies that an immigrant forced to leave French territories has a maximum of thirty days to appeal the order and is entitled to legal assistance in doing so.[7]
United Kingdom
Immigrants arrested in the United Kingdom have the right to legal representation, and the United Kingdom’s Legal Assistance Service, an administrative agency funded by the Ministry of Justice, also delivers this council free of charge. Legal clinics are held on a routine basis at Immigrant Removal Facilities and an inmate is eligible for thirty minutes of free professional legal counsel. The UK is also detaining refugees in the UK in prisons. They reportedly had less access to government-subsidized legal counsel and representation than those housed at UK Immigration Deportation Centres, and the Legal Aid Agency gave legal advice to just twenty-two percent of these people. Before 2015, in order to speed up some visa proceedings, the UK had a fast-track system in place. As a result of a decision of the Court of Appeal that noted it sometimes resulted in refugees not being able to access legal representation, this practice was abolished.[8]
Universal Representation
There are many treaties and conventions in place which state that all people are equal under the eyes of the law and deserve to have equal protection provided by the law. European Convention on Human Rights (ECHR), International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW), Universal Declaration of Human Rights (UDHR) are just some to name a few.
To enter the host country, arrested refugees and asylum seekers must go through a lot. Because of the terrible conditions in their native countries or due to oppression, they may leave. Searching for better lives is just normal for them. They could even be forced to leave without enough planning and in a panic. They do not have the ability to coordinate papers and materials. In the account of all that, they are held because of insufficient paperwork and other factors when these persons enter the host countries.
For a migrant who has lost too much and does not even know the language of the host country, the immigration law system of many nations is complicated and frustrating. His desire for a prosecutor to handle the dynamics of the legal system is warranted under certain circumstances. It is valid that unregulated immigration can lead to problems and questions about national security. The least a state should do, though, is allow these arrested migrants the right to be heard and to be able to explain their acts and justify themselves. This is one of the constitutional and fundamental rights that an individual, i.e., the right to legal assistance and to be heard, ought to have.
Universal representation means that legal advice and other types of legal representation are open to all persons. The right to legal counsel should not be limited to criminal immigration cases, but may also extend to countries where those proceedings are constitutional in nature. In the immigration policy, a universal representation system should be enforced such that refugees are tried in accordance with the ideals of natural justice and due process. The uniform scheme of representation means that all arrested migrants are represented by lawyers and are entitled to counsel. The fundamental form of representation, the right to be heard and to put one’s case before the court, shall follow. A basic and fundamental privilege intrinsic to all human beings should be legal help.
Universal representation means that in court the consumer still shows. Attorneys assist the clients detained to keep records of the proceedings and deadlines for their scheduled court appearances, which without an advocate is very difficult. Universal representation also assists in the growth of the economy. This leads to cost savings for municipalities and the economy as a whole. As immigrants win deportation lawsuits, by holding jobs and raising tax income for the government, they are indicted into the workforce and receive employment permits in the formal economy.[9]
Conclusion
Fifty years ago, the landmark decision of Gideon v. Wainwright[10] forced the American state courts to provide representation for defendants who were unable to pay attorneys in felony trials. Yet those who are arrested usually do not have attorneys because, unlike criminal law, immigration law does not include a right to representation. Immigrant prisoners are permitted to retain attorneys, but before they get an opportunity to find support, they do not afford advice or are shuffled through the system more frequently than not. Kids, the mentally ill, victims of human slavery, migrants, survivors of torture, and lawful permanent residents are among the prisoners not given representation.[11] Dozens who can stand up in court give up after putting in detention centers for months, that should not be the case. The right to counsel is part of humanity’s civil and fundamental justice, and any alien should be able to be heard in his deportation hearings in order to explain his or her conditions and purposes. For refugees who arrive with dreams in their hearts and have experienced horrific hardships, the right to a fair hearing and to be heard is paramount for looking for better futures. Many states’ legislation, regulations, and procedures do not offer basic rights for migrants, and current protections continue to be weakened as states intensify the regulation and processing of migration. While migration continues to expand and develop, so too will the challenges facing migrants as they struggle to obtain access to the rights they are entitled to.
A need for immigrant representation is well known, especially in the case of asylum, where returning to the native country of a claimant can mean abuse or even death. As national, state, and local officials continually concentrate on financing representation for indigent refugees, a comprehensive model of refugee representation that requires cooperation across various fields should be embraced by policymakers. This holistic approach has been successfully put into practice by law school hospitals, as well as several non-profit groups and other organizations. But only a small number of refugee seekers are served by these services. To maintain optimal, interdisciplinary representation for all asylum seekers, increased funding is required.[12]
Refrences:
[1]Universal Declaration of Human Rights (UDHR),1948, § 2.
[2] Rachit Garg, Right to counsel for the detained MIGRANTS: a global approach, iPleaders, (Jan 2021), https://blog.ipleaders.in/right-to-counsel-for-the-detained-migrants-a-global-approach/.
[3] The Rights of Migrants in the United States, The Advocates for Human Rights, (2012), https://www.theadvocatesforhumanrights.org/uploads/migrant_rights_fact_sheet.pdf
[4] Law Library of Congress Global Legal Research Directorate staff, Right to Counsel for Detained Migrants (Jan 2021), https://www.loc.gov/law/help/right-to-counsel/detained-migrants.php.
[5] Ibid.
[6] Ibid.
[7] Ibid.
[8] Ibid.
[9] Garg, supra.
[10] Gideon v. Wainwright, 372 U.S. 335 (1963)
[11] Ian Urbina & Catherine Rentz, Immigrant Detainees and the Right to Counsel The New York Times (Jan 2021), https://www.nytimes.com/2013/03/31/sunday-review/immigrant-detainees-and-the-right-to-counsel.html.
[12] Sabrineh Ardalan, Access to justice for asylum seekers: Developing an effective model of holistic asylum representation,48, U. Mich. JL Reform,1001,1038, (2014), https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1141&context=mjlr
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