Issues covered include the use of videolink, the roles of interpreters, judges and HOPOs, legal representation, and accommodation
The Bail Observation Project, which opposes the use of detention for immigration enforcement purposes, last week published an interesting new report examining immigration bail hearings at Taylor House.
You can read the 38-page report here.
For the report, twelve law students watched 55 hearings on 24 days over a six-month period at Taylor House.
The use of videolink receives particular attention in the report, with the Bail Observation Project noting: "In immigration bail hearings the use of virtual links has become the new norm for applicants, used in 51 of the 55 hearings we observed."
The report finds that the use of videolink effectively diminishes an applicant's already relatively limited participation in immigration hearings even further.
Bail Observation Project stated: "It may be possible, in theory, to conduct a fair hearing using videolink. For example if the technology is advanced enough, and the connection good enough, to fully transmit the whole hearing, along with an accurate representation of the applicant's demeanour to the tribunal. Yet the hearings that our group observed, and hearings observed of other anecdotal studies, show that the use of videolink puts the applicant at a disadvantage. Such disadvantages, in our view, are too large to be outweighed by the reduced cost."
The report also looks at the role of interpreters and finds the use of videolink again causes problems: "In several hearings, the issues with the interpreter tied in closely with issues related to the videolink, contributing to a tense and heated environment. There was a hearing where the applicant (appearing via videolink) was unable to hear the interpreter well, which made communication more tense."
Overall, interpreters were present for less than half of the cases observed: "Of the 55 hearings considered for this report, interpreters were present for 22. In a few cases, the absence of an interpreter led to severe consequences. In two cases, the hearing went ahead when there was no interpreter present even when one was needed. In one hearing, the absence of the interpreter led to the withdrawal. In hearings that did not have an interpreter, the applicant struggled to express themselves on their own in six hearings observed (13%). In half of these hearings, they struggled significantly. In two hearings the applicant did not speak at all."
On the subject of legal representation, ten of the cases observed were unrepresented and the Bail Observation Project found that being unrepresented creates an inherent bias in the courtroom. In half of the unrepresented hearings observed, the applicant was advised to withdraw their application. Of the remaining five that proceeded, bail was granted in just two.
When observing hearings which had legal representation, the Bail Observation Project noted: "Our data does not show any meaningful trends on the quality of representation. Most representatives were very good, and we saw little discrepancy between solicitors and barristers. However some hearings stood out as having particularly bad representation."
The role of the judge and the Home Office Presenting Officer is also considered in the report.
Bail Observation Project says it observed a variety of judicial attitudes: "some judges seemed pro-detention and some seemed pro-granting bail."
In 74.4% of the hearings observed, Bail Observation Project observers considered the judge to be "impartial", though in 7% of hearings, observers did not. In over 80% of hearings, observers felt that the judge gave clear reasons for granting or refusing bail, while in 54% of hearings, observers considered the decision of the judge seemed "fair and balanced". In 31% of hearings, observers felt the decision did not seem fair and balanced.
The report also found multiple issues surrounding accommodation, with several hearings observed where bail would have been granted but for lack of an address.
"One of the most important findings is that immigration judges are highly unlikely to give bail if the applicant does not have a bail address, even if removal is not imminent and there is no risk of absconding. The general sentiment is summed up by one of the judge's statements - 'This is a court of law, I will not release a man to be homeless'," the report states.
In conclusion, the Bail Observation Project report recommends:
"As it is currently being used, videolink technology does not allow for a fair hearing. We ask that videolink is discontinued, since an applicant ought to be present at their own hearing. At the very least, courtrooms should be designed for videolink, paying attention to sound and the positionality of an interpreter, and technological support must be on hand to assist with problems.
"We ask that in a videolink context, interpreters be provided in the detention centre, to allow for simultaneous interpretation of the entire hearing.
"We ask for an expansion of legal aid in the immigration context such that all applicants are able to secure representation.
"We ask for a humane conversation around those in detention, so that those dealing with cases will always treat them with respect, not with an attitude of getting the case done fast so they can get home."