Home Education and Learning Immigration and Asylum Law

Immigration and Asylum Law

by admin
36 views

Question 1

The government’s immigration strategy is undoubtedly limited by its adherence to EU law and policies governing the free movement of workers within the EU. The European Convention on Human Rights, in particular, limits the methods through which the UK government may lawfully deport immigrants.[1] To begin, EU employees in the Member States enjoy the right to free movement within the EU under Article 45 of the Consolidated Version of the Treaty on the Functioning of the European Union (hereafter TFEU).[2]

            The extent to which the free movement of EU workers is permitted despite the government’s policies to reduce immigration is further complicated by EC Directive 2004/38 which replaces Regulation 1612/68.  EC Directive 2004/38 permits EU workers who immigrate to other member states to have family members and dependents move with them to the host member state.[3]  The European courts have consistently ruled that the effect of the EU’s free movement of workers policy and laws, member states are required to remove all obstacles to facilitating the objective of permitting the free movement of workers.[4]

            The decision in Singh is significant in this respect. Members states were not allowed to enforce their own national immigration rules to a foreign worker from another member state who legally exercised his or her right to free movement of workers in another member state, according to Singh. If national regulations were to be enforced, EU citizens would be unable to exercise their freedom to freely travel and work throughout the EU.[5]

Immigration and Asylum Law

            The UK’s European Communities Act 1972 as amended by the European Union Act 2008 (hereinafter EC Act) ensures that the UK cannot apply its immigration policies and laws in a way that compromises the EU’s law relative to facilitating the free movement of workers within the EU. Section 2 (1) provides that all treaty rights and obligations:

Are to be given legal effect or utilized in the UK without additional legislation must be recognized and accessible in law, and shall be enforced, authorized, and followed appropriately.[6]

            Moreover, Articles 8 and 14 of the European Convention on Human Rights 1950 (ECHR) can also impede on the UK government’s efforts to reduce immigration. Article 8 guarantees that one’s family and personal life be respected.[7]  Article 14 of the Convention states that children have the right to Convention rights and that discrimination based on nationality is prohibited.[8]  The Convention rights became a part of UK law by virtue of the Human Rights Act 1998, Section 1.[9] Moreover, Section 2 of the Human Rights Act 1998 directs UK courts to interpret national laws in a way that gives effect to Convention rights.[10]

As a result, Zhu and Chen studied the impact of Articles 8 and 14 on the UK’s immigration policy. In this instance, it was clear that a pregnant Chinese woman came to the UK with the aim of having her unborn child born in the country and obtaining the right to stay in the country for the long term. However, it was decided that a national exercising his or her right to free movement of workers inside the EU would be considered an abuse of the law only in exceptional situations. The acquisition of such rights would not be considered a violation of the law if it was done in a legal manner.[11] 

            The European Court of Human Rights may potentially jeopardize the UK’s determination to deport unlawful immigrants. Immigrants may appeal deportation orders issued by member states under Articles 8 and 9 of the ECHR, according to Guiraudon and Lahav. Article 8 pertains to the preservation of private and family life, as previously stated. Article 3 deals with protection from cruel and unusual punishment and torture. In this case, if the adult subject to a deportation order has a child in the UK or a member state who was born in the host state, Article 8 may be effective in appealing the deportation order.  By applying Article 8, the ECJ previously ruled against the execution of an expulsion order because to do so would deny the subject a right to visit and have access to the child in question and the parent should therefore be granted a permit to reside in the host state.[12]

            Article 3 of the ECHR can also be used in relation to refuges and asylum seekers who wish to challenge expulsion or deportation orders.  For instance in Vilvarajah and Others v the UK it was held that an individual to a country where they faced persecution should not be allowed if the persecution was a real and pressing issue.[13]  However, there must be a difference between persecution and prosecution.[14]  Moreover in H.L.R. v France, the ECJ upheld an expulsion order where the Colombian drug lord faced feared that he would face retaliation upon returning to Colombia for revealing the names of co-conspirators to French authorities.  However, the ECJ ruled that the fear of retaliation was not actual or real it was merely perceived.[15]  Thus, there are some exceptions to the rule against non-refoulement. However, the UK remains bound by the ECHR and cannot systematically expel refugees from the UK.

            Essentially, the UK’s commitment to the EU’s various treaties and the protection of Human Rights pursuant to its commitments to the ECHR substantially limits its ability to reduce the immigration population in the UK and to safeguard against the influx of illegal aliens. As demonstrated by the cases discussed, the UK’s obligations to the EU and the ECHR compels the UK to permit immigrants to freely enter its borders and reside there with only limited powers of expulsion and limited powers to deny an immigrant the right to reside within its borders.

Question 2

Submissions to the Home Office on Norah’s Behalf

 When the requirements of permission to enter the UK have ceased to apply, an individual’s leave to enter the UK may be renewed or modified under Section 3(3) of the Immigration Act 1971. As a result, even if Norah was given permission to enter the UK as a student but later altered her status, the Home Office has the authority to amend Norah’s terms of leave to stay in the UK. A party requesting permission to enter the UK with an established spouse in the UK may be granted indefinite leave to enter and/or stay in the UK under the Immigration Rules as modified in 2012.[16] 

Although the Immigration Rules require that the unmarried spouse and her partner have been living together as would a married couple, there are extenuating circumstances that might justify a slight variation of this rule. Norah’s fiancé is for all intents and purposes settled in the UK as he has permission to remain in the UK until 2014.  At that time he will have met the requirements for naturalization and will make the appropriate application.  Thus, although his status is not altogether settled, it will be within 2 years as he would have lived lawfully in the UK for 10 years.

The fact that Norah and her fiancé do not live together does not change the status of their relationship as they are engaged to be married.  They are not living together for religious reasons.  The European Convention on Human Rights (ECHR) may apply if the fact that Norah and her fiancé are not living together for religious reasons is used against her in her application for permission to stay in the UK.

To begin with Article 9 of the ECHR provides for freedom of religion.[17]  Article 14 prohibits discrimination on the basis of religion among other factors.[18]  Thus a law or rule of law enforced by the state that confers a benefit on the basis of action that is against the religion of another faction can be viewed as discriminatory in that the state is favouring one religion over another.  It has been held by the European Court of Human Rights that the state may not take action that favours one religion over another pursuant to Convention obligations to respect freedom of religion and to safeguard against discrimination on the grounds of religion.[19]

It has been held by that immigration issues fall under Article 8 of the ECHR.[20]  Article 8 of ECHR provides that:

Everyone has the right to privacy and respect in his or her personal and family life, as well as in his or her home and communications.[21]

Therefore, in considering the fact of Norah’s engagement to a person with settled status, requiring that the couple live together as a criterion for establishing evidence that they have made or intend to make a life together demonstrates a violation of Article 8(1) of the ECHR.  The fact that they are engaged should be sufficient for the purposes of the Immigration Rules.  Directing or disapproving of the way that they manifest their engagement is an invasion of their private and family life and arguably violates Article 9 of ECHR relative to freedom of religion.

            As for other requirements for leave to remain in the UK under the Immigration Act 1971 and the Immigration Rules 2012, it is submitted that there is no evidence that Norah does not have the means to support herself while in the UK as she is not receiving, nor has she applied for welfare or social assistance. Her choice to live apart from her fiancé until they are married further shows that she has strong moral character.  Moreover, there is no evidence that Norah has committed a criminal offense in the UK or elsewhere.

In addition, Norah does not have any connections in her country of origin. Her mother died when she was young and she has not had any contact with her father since her parents divorced.  Norah’s mother’s relatives live in the UK and Norah lives with her mother’s sister in the UK, a woman she regards as a mother.  In other words, Norah is more closely connected to the UK than she is to her country of origin. Thus, it would appear that in all the circumstances, Norah is qualified under the Immigration Act 1971 and the Immigration Rules 2012 to remain in the UK.  More especially, Norah can make a claim that denying her the right to remain in the UK is tantamount to denying her respect for her family life pursuant to Article 8 of the ECHR.

            There is also evidence that Norah is entitled to humanitarian assistance. In the event leave to remain in the UK is refused, Norah will obviously be subjected to an expulsion or deportation order.  Thus Article 3 of the ECHR may arise which prohibits torture, cruel or unusual treatment, and punishment.  Norah is a member of the MDC in London and attends meetings and rallies.[22] Prior to leaving her country of origin in Zimbabwe, Norah attended rallies and meetings and subsequently experienced some problems as supporters of Zanu-PF attacked and beat people and fired weapons into crowds killing and injuring people.  Thus, Norah has a real fear of reprisals and thus persecution upon being returned to Zimbabwe.

            Thus Norah may be entitled to refugee status or the right to seek asylum in the UK.  It was held in Vilvarajah and Others v The UK that refugee status can be applied where the applicant has a real and pressing fear of persecution upon return to their country of origin.[23]  The court did rule that where the incidents giving rise to fear have died out, however, or have been reduced to insignificant skirmishes or disturbances, the applicant may not be able to successfully claim a real and pressing risk of persecution.

            The political turmoil in Zimbabwe is well-documented and it is well known that any person who demonstrates the slightest bit of opposition to Mugabe faces brutality.[24] Thus, Norah has a good case for refugee status on the grounds that making an order denying her leave to remain in the UK would have the effect of expelling her to Zimbabwe where she faces a real and pressing risk of persecution.  Based on the ruling in Vilvarajah and Others v The UK, if the British authorities carrying out administrative orders act without discrimination and pursuant to a legitimate aim (the protection of UK borders against liberal and unrestrained entries) there can be no appeal unless there is a significant risk of persecution. 

It is submitted however, that based on Articles 8, 9 and 14 as described above, refusal to permit Norah to leave to remain in the UK would arguably be based on a discretionary power exercised in a discriminatory manner and would also represent a disrespect of Norah’s private and family life.  Even so, the fact that there is a real and pressing risk of persecution, thus Norah will be entitled to refugee status on the basis that expulsion would expose her to cruel and unusual treatment and punishment.[25]

Pursuant to Article 1(2) of the Convention Relating to the Status of Refugees 1951 (Refugee Convention), Norah is by definition a refugee. Article 1(2) of the Refugee Convention confers the status on an individual who:

Who, because of a well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group, or political opinion, is outside the country of his nationality and is unable or unwilling to seek protection from that country; or who, not having a nationality and being outside the country of his habitual residence as a result of a well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social[26]

            Thus the main question is whether or not Norah is either unwilling or unable to return to Zimbabwe as a result of a fear of persecution and fear that she will not be protected against risks of persecution.  The Home Office has documented the political situation in Zimbabwe and the fact that anyone expressing any opposition to the current regime is in danger of persecution.[27] Moreover, the Home Office records the special risk of brutality against MDC members.[28]  Thus the Home Office itself is fully aware of the circumstances that would give rise to a successful claim by Norah for refugee status.

            Having established that Norah is entitled to refugee status, Article 33 of the Refugee Convention arises. Pursuant to Article 33 of the Refugee Convention:

No Contracting State may expel or return (refouler) a refugee in any way to the borders of areas where his or her life or freedom is endangered because of race, religion, nationality, membership in a specific social group, or political opinion (Refugee Convention, Article 33).[29]

Section 33 is further buttressed by the UNCHR’s Advisory Opinion in which it is declared that any person meeting the definition of refugee pursuant to Article 1(2) of the Refugee Convention, can reasonably expect to obtain non-refoulement protection.[30]

            In determining whether or not Norah’s fear of persecution is well founded attention is directed to the Home Office’s Country of Origin Report on Zimbabwe in which it acknowledges the degree of danger to life, human rights and freedoms for all persons who openly or tacitly oppose the current regime.  In this regard, the Home Office readily admits the MDC members are particularly vulnerable to brutality from the regime and/or its agents.

            According to the UNHCR, the duty of non-refoulement arises if refoulement will expose the refugee to a “substantial risk of torture” or “other forms of irreparable harm”.[31]  Norah will only have to prove that her fear of persecution is not only well-founded, but related to her membership in a specific group or “on account of her political opinion” (LaViolette, 2009, p. 1).[32]  Norah will have to prove also that Zimbabwe is unwilling to provide her with protection against persecution.[33]  This will not be a problem for Norah as it is the government and its supporters that she fears will persecute her.  Thus she can readily satisfy the requirement that her fear of persecution is exacerbated by the fact that she cannot expect Zimbabwe to protect her in any way.

            Moreover, the Immigration Appeals Commission (IAC) considered the likelihood of Zimbabwe protecting an individual who was a member of a social group that the state and local culture sought to suppress.  The IAC ruled that in such circumstances, it is highly unlikely that Zimbabwe would protect such an individual. In fact, the IAC ruled that should such a person seek protection from the state or the police or any agency of the state it would likely make matters much worse for the individual seeking protection.[34]  It is submitted that this ruling equally applies to Norah who is a member of a political group that the government and its supporters are actively committed to suppress. 

            The UNCHR also provides that an applicant may be successful in achieving refugee status if the applicant is able to prove that she anticipated facing the risk of persecution as a result of the unique “circumstances of the society” founded on “political opinion” in that her behaviour is one that the state itself is committed to suppress.[35]  As previously noted, the Home Office has documented the fact that the current regime in Zimbabwe is committed to suppressing the voices and the visibility of all opposition to the regime and that the MDC to which Norah is attached is a special target of the current regime.[36]

            The Immigration and Asylum Tribunals have taken note of both the Home Office’s reports on risks associated with the country of origin and guidance from the various advisory opinions of the UNHRC in order to determine if an applicant is a refugee and whether or not a duty of non-refoulement exist.[37]  In LZ (homoxexuals) Zimbabwe CG the IAC ruled that pursuant to guidance submitted by the UNHRC and information provided in the Home Office’s country of origin report for Zimbabwe, indicated that lesbians were members of a group that the society and government were committed to suppressing.  Moreover, such a person could not expect to obtain government protection.  Thus the Refugee Convention applied, entitling the applicant to refugee status and all that conferring refugee status entailed.[38]

            It is therefore submitted that in all the circumstances and based on the law cited above, Norah is at the very least entitled to leave to remain within the UK.  Obviously, the Home Office has a broad discretionary power whether or not to grant Norah leave to remain in the UK or to vary the original conditions of leave to enter and remain in the UK.  It is hoped that, informed by Articles 8, 9 and 14 of the ECHR and the law and its interpretation pursuant to the Refugee Convention that the Home Office exercise its discretion accordingly.

            In other words the Home Office is asked to take into account the consequences of refusing to grant Norah leave to remain in the UK. Should the Home Office refuse to grant Norah leave to the UK in circumstances where it is obvious that she is entitled to humanitarian protection pursuant to the Refugee Convention and under customary international law, Norah will be able to file an application for a declaration that she is entitled to refugee status.  As a refugee, Norah is entitled to protection against refoulement and as such will ultimately be permitted to remain in the UK. 

            Thus, if the Home Office is not convinced that Norah is entitled to be granted leave to remain in the UK pursuant to the Immigration Act 1971 and the Immigration Rules 2012,  the Home Office might want to take into account the application of the ECHR and the Refugee Convention.  By virtue of Article 3 of the ECHR, Norah will have a strong case against refoulement on the grounds that she has a real and pressing fear of persecution should she be forced to return to Zimbabwe.  Similar principles guide the interpretation of the Refugee Convention.  Although the Home Office is not directly deporting Norah if it refuses her application for leave to remain in the UK or for a variation of the conditions with which she was permitted to enter the UK, the consequences of refusal invoke the issue of non-refoulment.  It is therefore suggested that the Home Office takes this into consideration when considering Norah’s application for leave to remain in the UK.

Bibliography
Textbooks
  • Mpofu, E. Counseling People of African Ancestry. (Cambridge, UK: Cambridge University Press, 2011).
  • Schain, M. The Politics of Immigration in France, Britain, and the United States. (New York, NY: Palgrave MacMillan, 2008).
Articles/Journals
  • Alexander, W. ‘Free Movement of Non-EC Nationals: A Review of the Case-Law of the Court of Justice.’ (1992) 3 EJIL, 53-64.
  • Guiraudon, V. and Lahav G. ‘A Reappraisal of the State Sovereignty Debate: The Case of Migration Control,’(March 2000) 33 (2) Comparative Political Studies, 163-195.
  • LaViolette, N. ‘The UNHCR’s Guidance on Refugee Claims Relating to Sexual Orientation and Gender Identity.’ (June 20, 2009) 13(10) The American Society of International Law, 1-8.
Official Papers
  • Home Office, UK Border Agency. ‘Country of Origin Information Report: Zimbabwe’.  30 September 2010.
  • UNHCR, The UN Refugee Agency. ‘Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations Under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.’ January 2007, 1-19.
  • UNHCR, The UN Refugee Agency. ‘Guidelines on International Protection: ‘Membership of a Particular Group’ Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relation to the Status of Refugees.’  HCR/GIP/02/02, 1-5.
Cases
  • Abdulaziz (1985) 7 EHRR 471.
  • Case C-200/03 Zhu and Chen [2004] ECR 1-9925.
  • C-370/90 Singh [1992] ECR 1-4265.
  • Hasan and Chaush v Bulgaria (30985/96).
  • H.L.R. v. France, 11/1996/630/813, Council of Europe: European Court of Human Rights, 22 April 1997.
  • Lamquindaz v the UK [1993] 45/236/302-306, Council of Europe: Europe Court of Human Rights 26 September 1991.
  • LZ (homoxexuals) Zimbabwe CG [2011] UKUT 00487 (IAC)).
  • Vilvarajah and Others v the UK, 1991 http://sim.law.uu.nl/sim/caselaw/Hof.nsf/1d4d0dd240bfee7ec12568490035df05/ae90cacef76befd3c1256640004c1b38?OpenDocument (Retrieved 16 April 2012).
Statutes
  • Consolidated Version of the Treaty on the Functioning of the European Union. (30 March 2010) 53 Official Journal of the European Union, C 83.
  • Convention Relating to the Status of Refugees 1951.
  • EC Directive 2004/38.
  • European Communities Act 1972 (as Amended by the European Union Act 2008).
  • European Convention on Human Rights 1950.
  • Human Rights Act 1998.
  • Immigration Act 1971.
  • Immigration Rules 2012.
  • [1] M. Schain, The Politics of Immigration in France, Britain, and the United States. (New York, NY: Palgrave MacMillan, 2008).
  • [2] Consolidated Version of the Treaty on the Functioning of the European Union. (30 March 2010) 53 Official Journal of the European Union, C 83, Article 45 (1). (Hereinafter TFEU).
  • [3] EC Directive 2004/38.
  • [4]W. Alexander, ‘Free Movement of Non-EC Nationals: A Review of the Case-Law of the Court of Justice.’ (1992) 3 EJIL, 53-64.
  • [5] C-370/90 Singh [1992] ECR 1-4265.
  • [6] European Communities Act 1972 as amended by the European Union Act 2008, s. 2(1) (hereinafter EC Act).
  • [7] European Convention on Human Rights 1950, art. 8 (Hereinafter ECHR).
  • [8] Ibid, art. 14.
  • [9] Human Rights Act 1998, s. 1.
  • [10] Ibid, s. 2.
  • [11] Case C-200/03 Zhu and Chen [2004] ECR 1-9925.
  • [12] Lamquindaz v the UK [1993] 45/236/302-306, Council of Europe: Europe Court of Human Rights 26 September 1991.
  • [13] Vilvarajah and Others v the UK, 1991
  • http://sim.law.uu.nl/sim/caselaw/Hof.nsf/1d4d0dd240bfee7ec12568490035df05/ae90cacef76befd3c1256640004c1b38?OpenDocument (Retrieved 16 April 2012).
  • [14] H.L.R. v. France, 11/1996/630/813, Council of Europe: European Court of Human Rights, 22 April 1997.
  • [15] Ibid.
  • [16]Immigration Rules, 2012.
  • [17] European Convention on Human Rights, 1950, art. 9. (Hereinafter ECHR).
  • [18] Ibid, art. 14.
  • [19] Hasan and Chaush v Bulgaria (30985/96).
  • [20]Abdulaziz (1985) 7 EHRR 471.
  • [21] ECHR art. 8(1).
  • [22] ECHR, art. 3.
  • [23] Vilvarajah and Others v the UK, 1991
  • http://sim.law.uu.nl/sim/caselaw/Hof.nsf/1d4d0dd240bfee7ec12568490035df05/ae90cacef76befd3c1256640004c1b38?OpenDocument (Retrieved 16 April 2012).
  • [24] E. Mpofu, Counseling People of African Ancestry. (Cambridge, UK: Cambridge University Press, 2011), see also Home Office, UK Border Agency. ‘Country of Origin Information Report: Zimbabwe’.  30 September 2010.
  • [25] Vilvarajah and Others v the UK, 1991
  • http://sim.law.uu.nl/sim/caselaw/Hof.nsf/1d4d0dd240bfee7ec12568490035df05/ae90cacef76befd3c1256640004c1b38?OpenDocument (Retrieved 16 April, 2012).
  • [26] Convention Relating to the Status of Refugees 1951, art. 1(2) (Hereinafter Refugee Convention).
  • [27] Home Office, UK Border Agency. ‘Country of Origin Information Report: Zimbabwe’.  30 September,2010.
  • [28] Ibid.
  • [29] Refugee Convention, art. 33.
  • [30] UNHCR, The UN Refugee Agency. ‘Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations Under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.’ January 2007, 1-19.
  • [31] Ibid, 5.
  • [32] N. LaViolette, ‘The UNHCR’s Guidance on Refugee Claims Relating to Sexual Orientation and Gender Identity.’ (June 20, 2009) 13(10) The American Society of International Law, 1-8, 1.
  • [33] Ibid.
  • [34] LZ (homosexuals) Zimbabwe CG [2011] UKUT 00487 (IAC).
  • [35] UNHCR, The UN Refugee Agency. ‘Guidelines on International Protection: ‘Membership of a Particular Group’ Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relation to the Status of Refugees.’  HCR/GIP/02/02, 1-5, Para 4, p.2.
  • [36] Home Office, UK Border Agency. ‘Country of Origin Information Report: Zimbabwe’.  30 September,2010.
  • [37] LZ (homosexuals) Zimbabwe CG [2011] UKUT 00487 (IAC).
  • [38] Ibid.

Related Posts

Leave a Comment