How to Claim an Asylum - Essay Example

? Advise on the process that will apply to Mr Kibi’s claim for asylum. Foremost of all, it would be wise to first define what an asylum applicant/seeker is since this will be Mr. Kibi’s status if he claims for one. Based on the UN Convention on the Status of Refugee in 1951, an asylum applicant/seeker is an individual who claimed refugee status. The Convention further states that a refugee is someone who is fearful of persecution from his country of origin for varying reasons, i.e., political opinion, race, nationality, religion and membership to a social group, is someone who is not in his own country and is someone who is not willing to gain protection from said country of origin due to fear. A refugee becomes one, if his status as an asylum seeker has been upgraded to refugee after being granted asylum.1 In the pursuit of Mr. Kibi to apply for asylum, several pertinent circumstances in his situation should be given attention. Firstly, he arrived in the United Kingdom in June 2009 on a false passport and has been residing and working in the country illegally. Secondly, he did not immediately apply for asylum, claiming that he is not aware of the existence of such process and for fear of being deported back to Eritrea. Thirdly, in his pursuit to leave Eritrea, he has been to several countries including Italy, where he did not claim for asylum due to bad experiences and slow processing of claims. Now, he is applying for asylum in the United Kingdom based on the grounds that he is fearful of his life upon return to Eritrea where he became critical of its government and for deserting his military service. The fact that Mr. Kibi arrived in the country under falsified papers, he is already legally liable. Under the Identity Cards Act f 2006, particularly Section 25(1), it is an offense for an individual to have an identity document, e.g., passport, that he knowingly obtained improperly with the intention of using as registrable information of himself. Thus, Mr. Kibi’s presentation upon his entry to UK of the false passport is an illegal act. This offense makes it harder for him to gain asylum pursuant to the Refugee Convention’s Article 31(1). Under s. 31 of the 1999 Immigration and Asylum Act however, Mr. Kibi still has a defence he can use to gain asylum in UK despite his falsification offense. Section 31 (3) (aa) of the said Asylum Act was amended as a form of defence in cases where there is an offence under s. 25(1) of 2006’s Identity Cards Act.2 This defence may apply to individuals who committed said offense in UK if they can prove that they came in the country because their freedom and their lives are threatened, as defined by the Refugee Convention, if said individual presented himself to UK’s authorities immediately and if good cause was proven for his illegal presence in the country. In cases where in the asylum seeker stopped in another country before entering UK, it is necessary that he showed good cause for not claiming asylum or protection in that country under the Refugee Convention. 3 Given the abovementioned laws and the situation Mr. Kibi has been in, it is wise to first analyse the defence to use under the 1999 Act. His circumstances are indeed grounds for asylum. He can be declared refugee for his fear of being persecuted in Eritrea for reason of his political opinion. As such, his entry in UK using falsified documents can be justified. As Article 31(1) of the 1999 Act states, penalties may not be imposed on a refugee’s illegal entry or presence if their life is threatened in their territory of origin.4 However, certain provisions in this particular Article may run against the actual situation of Mr. Kibi. Firstly, under this article, it is stated that penalties may not be imposed, provided the refugee presented himself to the authorities without delay. This is not the case with Mr. Kibi. It took more than a year before he claimed for asylum. It is therefore necessary to prove that he did it for a very good cause and with an acceptable reason. Likewise, as a subsection of this Article, the refugee who has been in a different country aside from UK should be able to show that he could not have been provided Convention protection in the said country.5 This again is the case with Mr. Kibi. He had been to other countries before arriving in the United Kingdom, one of which is Italy. He could have claimed asylum there but did not for certain reasons, i.e., he had bad experiences there and the processing of claims is slow. With a good immigration lawyer to assist Mr. Kibi however, there is a good chance of claiming asylum in UK. His circumstances are strong grounds for asylum and the provisions of the law that may serve as weakness in his case can still be remedied by citing several similar cases also of the same nature and situation. In summation, the case of Mr. Kibi opens him to charges under the Identity Cards Act 2006, particularly s. 25(1), for using a fake passport in entering and thereafter staying in the country. This fact will be exposed once he claims for asylum. However, Mr. Kibi is entitled to a good defense and protection with the use of the Immigration and Asylum Act of 1999, particularly s. 31. What is even favorable to Mr. Kibi’s case is that the burden of proof of disproving his allegations and situation lies on the prosecution.6 As such, it is imperative that Mr. Kibi’s advisers or lawyers make clear all defense parameters, e.g., possible difficulties and limitations, in order for Mr. Kibi to gain an well-informed option of whether or not to pursue his claim for asylum and to be ready with possible consequences. Statistics show that in 2002, of the 84,130 asylum applications in UK, only 10% were granted asylum and given refugee status. There were however over 20,000 not given the refugee status but allowed exceptional leave. The rest were refused asylum.7 It is therefore apparent that though asylum is indeed granted, a big percentage of applicants are denied of it. This fact would at least give Mr. Kibi a clear view of the possibilities if he pursues his claim. Despite of all the possible hurdles however, it would be a good advice to Mr. Kibi to proceed with an asylum claim. He should however arm himself with a good immigration lawyer to assist him. If the above hindrances are overcome by Mr. Kibi legally, he would have a great chance of getting asylum in UK given his circumstances in Eritrea. Applying relevant case law, advise as to whether Mr. Kibi has a Convention reason. Mr. Kibi has in fact two Convention reasons that he can use to make strong his claim for asylum. He can make use of both the Refugee Convention and the European Convention on Human Rights. Both contained provisions that would protect him and help him gain asylum in UK despite some mitigating circumstances that could prove to be contrary to his actual situation such as those already mentioned. His case can further be strengthened with the citation of several case laws that granted asylum to individuals with similar circumstances. The number of case laws with parallel situation abounds and some of these will be mentioned hereunder for possible usage in Mr. Kibi’s case. With regard to the Refugee Convention, the case law on Regina v. Uxbridge Magistrates Court ex parte Adimi8 may become a basis for Mr. Kibi’s defense on his offense under the Identity Cards Act 1006, i.e., entry in UK using a fake passport. This case law provided immunity, refugee status and asylum to the claimant despite using fake registrable documents by making use of the Asylum Act of 1999’s Article 31. Under this case law, the use of false documents and the act of illegal entry is attributable to the genuine desire of the asylum seeker to gain it whether in the UK or any other country that offers it. Given this situation, Article 31 may be applied. The same case law similarly touched on the claimant’s arrival in different countries before proceeding to UK where he applied for asylum. It was decided in this case that refugees have their choice on where to claim asylum and the judgment should be focused more on his length of stay in the third country. In Mr. Kibi’s case, his stay in Italy may be decided to be not long enough and favor may be in his way. Other similar cases that can be considered of Refugee Convention reason are R. v MMH [2008] EWCA Crim 3117, Regina v Asfaw [2008] 1 AC 1061, R v Makuwa [2006] EWCA Crim 175, R v Abdalla Mohamed, R v. MMH, [2008] EWCA Crim 3117, etc. As regards the European Convention on Human Rights (ECHR), several case laws may also be used in the claim of Mr. Kibi. These cases involve circumstances similar to his and the said Convention may be used in his favor for his protection and eventual asylum grant. The landmark case of Rantsev v. Cyprus and Russia9 may be a case about human trafficking but it is similar to that of Mr. Kibi’s in the sense that it touched greatly on the European Convention on Human Rights violation, particularly those of Articles 2 and 3. Another case law, i.e., M.S.S. v. Belgium and Greece,10 is one that put focus on the violation of Article 3 of the ECHR. Another case law with the same focus Jabari v Turkey11, where a tribunal with an institutionally independent appeal presided over the case where members are made up retired legal professionals and judges with unofficial and part time functions. Finally, a more comparable case law is that of Secretary for Security v Sakthevel Prabakar12 which also touched on the convention against torture. It is the Secretary’s role not to deport an asylum seeker in his country of origin if that person proves that he will be subjected to torture. Under this case, an appropriate fairness standard was applied by the Secretary to figure out if the seeker’s claim is well-founded. A careful and thorough look into the preceding case laws would indicate the strong case Mr. Kibi may have for claiming asylum in the United Kingdom. There are several circumstances that could be detrimental to his case but a good immigration lawyer can compensate for those and remedies may be presented to get the odds in Mr. Kibi’s favor. No case in the courtroom can be guaranteed by any lawyer but given the situation of Mr. Kibi, considering the existing judgments and decisions on case laws and weighing the existing immigration and asylum laws being implemented in UK, it would be a wise advice for Mr. Kibi to proceed with a claim for asylum. To further strengthen the asylum claim of Mr. Kibi, a focus on two Articles of the ECHR will be made in the succeeding topic and how this can be applied to his own situation. Articles 2 and 3 of the ECHR are used by Mr. Kibi as two of the grounds for his claim for asylum in UK. How this can be applied to his case will be detailed hereunder. Advise on the merits of a possible claim on the grounds of a breach of the applicant’s human rights. Mr. Kibi claims for asylum in UK for fear of lie more than anything else. Given his defection from the military in Eritrea and his open criticisms of its government, he not only faces possible torture upon his return to his country of origin but death itself. This is why part of his basis for applying for asylum is the breach of his human rights as spelled out under Articles 2 and 3 of the European Convention on Human Rights.13 Under the ECHR, any individual could claim to be allowed to stay in the UK if their removal would constitute a violation of their human rights and said individual will never be expected to voluntarily return to his country. In cases where an individual performs an immigration decision made by public authority as provided in s.82(2) of the 2002 Nationality, Immigration and Asylum Act, said individual can allege that concerned authority violated his human rights. This denotes that the said authority made an unlawful act that is not compatible with the individual’s Convention rights. The Human Rights Act of 1998, particularly s. 6(1), covers this act.14 Another provision of the ECHR that is applicable to Mr. Kibi’s case pertains to foreign cases. A foreign case pertains to the circumstance that should a person is forced to leave the United Kingdom, his Convention rights upon arrival in his territory of origin will be breached. Under this provision, the emphasis is that the rights will be violated not in UK but in the applicant’s country, a non-UK territory. Instances that may be included under this is the probable suffering from degradation and inhuman treatment as defined in ECHR’s Article 3, restriction of the individual’s freedom of expression under Article 10, unjust trial under Article 6 and illegal detention under Article 5.15 Mr. Kibi’s situation and circumstances as was related in detail can very well be strong grounds for an asylum claim in UK. Most of the articles of the ECHR may become applicable to his case more particularly, and most importantly, Articles 2 and 3. ECHR’s Article 2(1) emphasizes that the law shall protect each one’s right to life. It further states that nobody shall be intentionally deprived of life except for the carrying out of a court sentence following conviction in a criminal case. There are some exceptions to this Article, as regards the individual’s right to life, but they hardly apply to Mr. Kibi’s case. Eritrea, Mr. Kibi’s country, has been in civil war for over 30 years. His desertion of the military is considered an act of disloyalty and his open criticism of its government makes it dangerous for him to go back. He could very well be subjected to death for his actions. In case said death may be applied to him upon his return via the death penalty after court proceedings, then Mr. Kibi would still be able to apply Article 2 of the ECHR as a breach to his right to life and even include the Article’s Protocol 13 which pertains to the death penalty. Both are considered by the Humanitarian Protection to be a harm to its very purpose. The Immigration Rules, i.e., paragraph 339C, defines “serious harm” as those that include execution, death penalty and unjust killing.16 Mr. Kibi can very well claim that upon his return to Eritrea, his past actions can be subject to litigation that may result into a death sentence. As he himself declared, his defection from the military and criticisms towards the government is considered disloyalty which Eritrea’s government punishes harshly. If Mr. Kibi and his lawyer manage to convince the courts of his honesty and genuine fear for life, he would likely be granted asylum on the ground of humanitarian protection or human rights. It is very important that substantial grounds for belief are established that there is indeed a risk for prosecution and death sentencing. Otherwise, Mr. Kibi’s case may become unsuccessful. Another ground for Mr. Kibi’s claim is Article 3 of the ECHR which states that no individual must be subjected to torture or any punishment or treatment that can be considered degrading or inhuman. Unlike the other rights included in the ECHR, this one is an absolute right. It is applicable in times of emergency or war and is not dependent on competing interests. This provision of the law led to a high threshold due mainly to its absolute nature. As such, the expected suffering should be severe and should involve intense mental and physical harm. If this is established by Mr. Kibi, he has a strong case. Given the present situation in Eritrea where civil war lingered for 30 years and democracy is nowhere to be found, tortures and inhuman treatment of individuals considered to be enemies of the state abounds. It would not be difficult for Mr. Kibi to prove his fears by simply citing several similar cases of such tortures in his country. Another advantage of ECHR’s Article 3 is that regardless of Mr. Kibi’s conduct in his country, whether criminal or otherwise, which led to his possible torture upon return, he would still enjoy the obligation of UK to protect a person of his human rights. However, said conduct can affect the type of leave that may be granted to him. Conclusion Mr. Kibi has a good case for an asylum claim given his circumstances in life. However, his situation does not come without any hitches. There are several hurdles in the case that should be polished and strongly defended and proven to ensure foolproof approval of his asylum. What is important in his case however is that his life is in peril if he returns to Eritrea, As such should be protected by the existing ECHR laws. It is up to him and his lawyer how this could be proven without any question. Once done, there is no reason for the UK court not to grant his asylum. Total Words: 3000. Bibliography Asylum Statistics: United Kingdom 2002. The annual Home Office Statistical Bulletins Asylum Statistics. www.homeoffice.gov.uk European Convention on Human Rights http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=880339&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 http://www.bailii.org/ew/cases/EWCA/Crim/2010/2400.html Identity Cards Act 2006 Immigration and Asylum Act 1999 Jabari v Turkey (App 40035/98, 11/07/00), 9 BHRC 1 R v Makuwa [2006] EWCA Crim 175 Rantsev v. Cyprus and Russia, App. No. 25965/04 (Eur. Ct. H.R. 2010), Refugee Convention of 1951 Regina v. Uxbridge Magistrates Court ex parte Adimi [2001] QB 667  Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, CFA Read More