The US justice department is currently in the process of setting quotas for immigration judges in an attempt to speed up the processing of immigration cases. Below Lawyer Monthly benefits from expert insight from Jamie Kerr Specialist, Immigration Partner at Thorntons.
Judges will need to clear at least 700 cases a year in order to receive a "satisfactory" performance rating.
The aim of these controversial new quotas is to limit the amount of time judges spend on each case. The obvious impact that this will have is that cases will need to be rushed through the system with judges keen to ensure they meet their key performance indicators and processing targets.
Arbitrary quotas are rarely a good idea, especially when it comes to rationing the time judges have to deal with complex issues relating to fundamental human rights. Immigration and asylum law is a key area where the Executive branch of government has extensive and far reaching powers that allows drastic interference in the private and family lives of citizens. As long as the executive has such powers, an independent judiciary should exist to oversee the use of such powers and have the time and resources necessary to make decisions that are clear and correct.
The types of cases that immigration judges hear can be complex – both factually complex as well as legally complex. Asylum cases will often require hours of testimony delving deep into buried memories of torture, war and persecution. Hearings can involve vulnerable people such unaccompanied children, victims of human trafficking, those mental health trauma, and those living in fear of being returned to inhumane conditions and brutal and repressive treatment.
Given the life changing decisions made by immigration judges, arbitrary quotas should be placed on how many cases they need to rush through in any given day or week. Justice cannot be time limited. Where time is required to come to the right decision, then time should be available. Where adjournments are required for further expert or medical evidence to arrive or be obtained, then it should be for the judge to determine what is right, just and equitable in relation to the facts and circumstances of the particular case before them. Good case management from the judiciary does not require them to be measured on how quickly they can dispense justice.
The US plans to impose tight quotas on the judges who hear them are ill thought out – likely by civil servants with little or no understanding of the practical challenges of working in immigration appeal and court work. Imposing quotas will simply have the effect of undermining confidence in the judicial system and will ultimately shake confidence in the rule of law that should underpin western societies.
Those appealing through the system will become less confident that they are receiving fair decisions and the number of appeals will increase as more lawyers appeal against decisions where natural justice is denied as a result of a focus by a target driven judiciary on fast justice or firm justice instead of fair justice.
If there is a backlog of immigration appeals, then the answer is not to make existing judges work harder or faster. The answer is to invest in the judicial system. Whist investment in a creaking and antiquated court and judicial system might not be as popular with voters as investment in schools and hospitals, it is necessary if we are to preserve the rights that we cherish and seek to uphold.
It is also worth bearing in mind that it is not solely foreigners that find themselves in immigration and asylum courts. It is those home nationals who have partners and family members, friends or employees who are subject to immigration controls. When we realise that any one of us or a close friend or relative could at some point be reliant upon an immigration judge, we will understand that it is more important for the judge to be watching us give evidence rather than watching the clock.
