Features of 2009 Borders, Citizenship and Immigration Act and 1998 Challenging the Human Rights Act - Essay Example

? IMMIGRATION LAW: FEATURES OF THE BORDERS, CITIZENSHIP AND IMMIGRATION ACT OF 2009 AND CHALLENGING THE HUMAN RIGHTS ACT OF 1998 By Donna Purcell Order 561551 Subject: Law Instructor University City, State Date Introduction How will the Borders, Citizenship and Immigration Act of 2009 effect present life and future life within the United Kingdom? On January 15, 2009 Parliament published the Borders, Citizenship and Immigration Bill which “introduced a radical new approach to British citizenship that will require all migrants to speak English and obey the law if they want to gain citizenship and stay permanently in Britain.” (Christine- Lee 2009). The aim was also to speed up the process of becoming a citizen for those persons who make a major contribution to their community by being active citizens. It was not until July 2009 that the bill was granted Royal Assent, which shows that the UK was making major changes in how it controls its borders, manages immigration, and how one can obtain citizenship. The Human Rights Act of 1998 was expanded in October 2000 to include rights under the European Convention on Human Rights (ECHR). This expansion has extended the basis, which an individual can be allowed to remain in the UK for protection and humanitarian reasons. There have also been major changes in the prevention of being removed from the UK if the removal would result in a very serious intervention in their family or private life. (Cole & Yousaf 2011). The following information gives reference to key features of the Borders, Citizenship and Immigration Act of 2009 and its impact on life in the UK both now and in the future. The information has been obtained through use of the internet through referencing specific information concerning the Borders, Citizenship and Immigration Act of 2009. Key features of the act and how it will effect life in the United Kingdom both now and the future were major contributors of internet exploration. Section A: Effectiveness of Immigration Immigration officers and police constables sustain the right to arrest without warrant anyone who they feel has committed an immigration offence. In fact, it is a criminal offence to withhold information from an immigration officer or to lie and give false information or documents. There is no “right of silence” and the responsibility lies with the individual to prove that he or she qualifies for the status under the law. (Your Rights 2010). The law allows for the investigation and detention of anyone suspected of breaking the law. This creates a tendency to frequently question black people about their immigration status when confronted with police even when there is no other reason for suspicion. There are Codes of Practice under the Police and Criminal Evidence Act of 1984 that do not apply to the immigration officers, however, they have agreed to follow the codes voluntarily. (Your Rights 2010). Immigrants that knowlingly remain longer than allowed by immigration officers or the Home Office without permission become known as “overstayers” and is considered a criminal offence. (Your Rights 2010). It does not matter whether they have overstayed for many years or a few days; they can be arrested and required to appear before the Magistrates’ Court. A fine can be imposed, a prison sentence required or it can be recommended that the person be deported. (Your Rights 2011). Persons who are not British citizens or Commonwealth citizens with the “right of abode”, or Irish citizens who lived here before January 1, 1973 and have lived here since can be deported by a court if they are convicted of any crime which has a penalty of imprisonment. The court can stipulate this even if the person has previously been allowed to stay in Britain permanently. There are special conditions that apply if the person is an EEA national or a family member of a national. However, these persons are automatically granted a “right of appeal” when sentenced. This is only a recommendation and is not binding; however, it is up to the Home Office as to whether the recommendation is carried out. If the court does not specifically request release from detention, the person will be held while the Home Office makes a decision. (Your Rights 2010). The Home Office can administer removal of anyone for entering illegally, overstaying, breaking other conditions, or obtaining leave to enter by deception. There is no partiality shown unless human rights violations are brought up during the application process. (Your Rights 2010). Voluntary departure can be applicable for in-patient treatment in mental hospitals under Section 90 of the Mental Health Act of 1983. However, if it is deemed in the patients’ best interest to remove him, he can be removed to his country of origin. There is no definition given for this procedure and there are no legal written safeguards against this removal if necessary. The Home Office can also deport anyone if his or her presence is “not conducive to the public good.” (Your Rights 2010). This is a vague statement, but can include people who are convicted of a criminal offence even though the court did not recommend deportation. It can also include persons who marry for convenience. Right to immigration appeal is evident for everyone, but if the Home Secretary decides your presence is non-conducive on the grounds of national security, the appeal will be referred to the Special Immigration Appeals Commission (SIAC) When all appeal attempts have been exhausted the Home Secretary can execute a deportation order and the individual can be sent out of the country. “While the order is in force, they cannot return here.” (Your Rights 2010). They do have the right to apply for the order to be revoked in their own country or to the Home Office. These orders are not normally revoked until three years have elapsed. If the order is revoked, the person still is not entitled to return. They must apply to return and then only if they satisfy the immigration rules. (Your Right 2010). Anyone can be treated as an illegal entrant because they entered without being questioned by immigration officers or under the pretence of misleading immigration officers by false information or non-disclosure of information. If it is deemed that they should not have been allowed entry they can be deported. (Your Rights 2010). Key Features of Borders, Citizenship and Immigration Act 2009 Immigration laws are a matter of constant and rapid change through primary legislation as well as delegated legislation and also immigration rules. Unfortunately, these rules have not been updated since 1994. Since that time there have been many changes, however, some of these statutory changes have not been put into force. This makes it very confusing to establish a time line as to when these statues were in force at any given time when a controversy arises. Phil Woolas states, “I am determined that Britain’s border remains one of the strongest in the world. This Act is an important part of ensuring it stays that way.” (Christine-Lee 2009). One key feature of the Borders, Citizenship and Immigration Act of 2009 was to strengthen the border by “combining revenue and customs functions into the UK Border Agency which will enable its officers to exercise their immigration powers to tackle illegal immigration and the smuggling of drugs and weapons.” (Christine-Lee 2009). This includes powers to control all persons arriving in the UK from other parts of the major travel areas such as the UK, the Channel Islands, the Isle of Man, and the Republic of Ireland. This will also include restrictions on studying in the UK, which will put stricter controls on persons who want to make a contribution to the community. “Migration only works if it brings benefits, and these measures will ensure that only those migrants that make a positive impact on their local community will be able to stay in the UK,” stated Phil Woolas, the Border and Immigration Minister. (Christine-Lee 2009) Another key feature under the new system is full access to benefits and social housing to be reserved for citizens and permanent residents. If you are not a citizen you will not be given full access to benefits. This does give a new duty on the UK Border Agency to safeguard the welfare of children. (Asylum and Immigration Law 2009). This removes the historical cut-off point for children of British mothers born before 1961 to become British themselves. It also allows the military serving overseas in the armed forces to register their children as British. Phil Woolas states, “We are clear that newcomers should speak English, work hard, and earn the right to stay here – and only get British citizenship once they have proved their commitment to the country.” (Christine-Lee 2009). A third key feature of the Borders, Citizenship and Immigration Act of 2009 is to control further foreign nations who commit serious offences. These persons already face deportation but they will have to earn citizenship. Persons sent to prison may face removal and those committing minor offences will have to wait until their conviction sentences are carried out before they can become citizens. (Christine-Lee 2009). With this provision and the new points-based system it will ensure that only the persons that the country needs may come, stay, and become citizens. With all of these features, it will allow the government to control immigration and contribute to the future population projections. These have been the biggest changes in the last generation along with a high tech system for counting people in and out of the country and the distribution of identity cards for foreign nationals. (Christine-Lee 2009). Since the UK Border Agency was created in 2008, they have already stopped 30,000 individual attempts by illegal migrants to enter Britain through France and Belgium. Dangerous weapons such as firearms, stun guns and knives have been curtailed from reaching the streets. The Border Agency has seized over 379 million pounds worth of illegal drugs and 923 million pounds worth of cigarettes; which is a tax loss of 174 million pounds. (Christine-Lee 2009). This greatly contributes to the present and future outlook on these changes and the impact on UK life. These changes will also “ensure that migrants who want to become British citizens earn the right to stay by speaking English, paying taxes and obeying the law.” (Christine-Lee 2009). It will speed up the citizenship process by allowing those that contribute to the community to become active citizens. It will allow benefits and social housing to be reserved for citizens and permanent residents. This endeavor could take up to ten years to complete. (Christine-Lee 2009). Phil Woolas added, “This new Act ensures that those who want to stay earn the right to do so, learn to speak English and play by the rules. Those that don’t will not be allowed to become citizens, making our system both firmer and fairer.” (Christine-Lee 2009). This will allow for greater control over the number of persons who want to settle permanently and allow more flexibility to raise and lower the number according to the needs of the United Kingdom. This has a direct effect on the future of immigration laws both now and at least a decade into the future of the United Kingdom There is an ongoing framework to simplify the existing immigration processes. It is sometimes hard for the applicants to understand how they can stay in the United Kingdom legally; therefore, a team is working towards replacing all of the existing immigration Acts with new and clearly explained Acts. Phil Woolas also adds, “I want to go further and within the next few weeks we will publish a consultation to examine how the current point based system for economic migrants, which has proved to be an effective and powerful tool for controlling migration, could be applied to citizenship.” (Christine-Lee 2009). Immigration law is the starting point. The future of the United Kingdom lies in the execution and simplification of those laws. Section B: Analyzing Provisions of the ECHR and the Human Rights Act of 1998 Mambara is an unsuccessful Zimbabwean asylum claimant who is challenging a removal order under the Human Rights Act of 1998. He has been in the United Kingdom since 2002. He married Jennie, who is also a Zimbabwean asylum seeker in 2003, and the couple has a child. In 2005, he was detained on suspicion of violent conduct during anti-war protests but was not charged. Mambara is suffering from a congenital heart defect for which he is being treated in the UK. Therefore, he argues that he has no family in Zimbabwe to take care of his health as he also suffers from autism. Mambara also argues that he was threatened by Mugabe in Zimbabwe in 2002 because of his political statements and faces a threat if returned. When applying the Human Rights Act of 1998 and the relevant provisions of the ECHR toward the law we will look at Mambara’s chances at succeeding before the UK tribunals and staying within the borders of the United Kingdom. First of all it appears that Mambara entered the United Kingdom to obtain asylum, and it is unclear as to his status upon entering the country. Was he entering to obtain gainful employment, was he considered a skilled worker or did he enter and marry to obtain asylum? Since he is considered unsuccessful at asylum, we will assume he is not a skilled worker. These are questions that have not been answered in the stated scenario. Most of the immigration rules require an individual to be financially self-sufficient either from their own resources, their family or sometimes a sponsor who is based within the UK. (Asylum and Immigration Law1988). There is a restriction placed on any person attempting to enter the UK having access to public funds or a sponsor having access to public funds as a result of a person entering the UK. However, if a sponsor is receiving funds it doesn’t automatically prohibit the individual entering from gaining entry. It has to be shown that by entering the country it does not place an increased financial burden on the state. If he was considered a refugee and not considered a skilled worker under 1 and 2 of the points-based system, his family would be expected to support themselves without access to benefits. (Asylum and Immigration Law 1988). A refugee is defined by the 1951 UN convention on the Status of Refugees and the 1967 “Protocol as being a person who has a well-founded fear of persecution for reasons of their race, religion, nationality or for membership of a particular social group or political opinion.” (Asylum and Immigration Law 1988). Under this definition Mambara could be considered a refugee, however, we don’t know for sure. Since Mambara claims that Mugabe has threatened him in his own country of Zimbabwa, he may be eligible for protection of the Refugee Convention under ECHR Article 3. This provision provides that no person is to be subjected to torture or inhuman or degrading treatment or punishment. If he is successful in this claim he may be granted either humanitarian protection or discretionary leave. It is also noted in Mambara’s situation that while in the United Kingdom he was detained on suspicion of violent conduct during anti-war protests, however, he was not charged. Under Provision 1.138 regarding Credibility, emphasis is placed on events from the past up until the present. Mambara needs to prove that he is worthy of remaining within the United Kingdom and can contribute to his community as an active citizen. (Christine Lee 2009). Even though Mambara was not prosecuted in the violent conduct, it remains against his credibility as following the rules of immigration and can be a subject for deportation. We also do not know if he applied for asylum in a safe country en route or if he failed to make a claim for asylum until a negative immigration decision was presented. (Asylum and Immigration Law 2008). Mambara can claim humanitarian protection for inhuman treatment if returned to his home country. He can also claim humanitarian protection due to his congenital heart defect and the fact that he suffers from autism. Article 8 of the ECHR prevents someone from being removed from the United Kingdom if their removal would result in serious and unjustified complications in their family or private life. This would fall under the humanitarian protection articles as well. Since Mambara now has a wife and child, he may be protected under these articles. This along with his medical claims for congenital heart defect and suffering from autism he may be eligible for remaining within the UK to receive medical treatment. A person who wants to stay within the United Kingdom and claims a medical condition must produce a medical certificate to the Medical Inspector. The immigration officer will give the person a notice requiring him to report to the Medical Officer of Environmental Health for further examination and any necessary treatment. The Medical Inspector will make recommendations in his case. This applies for both entry and deportation from the country. In Mambara’s case we do not know if he claimed a medical clearance when he entered the United Kingdom. We also do not know if he was entering in order to obtain medications or medical treatment. Case Law of EM and Others vs. Secretary of State In the case of EM and Others vs. Secretary of State for the Home Department in March 2011, four nationals of Zimbabwe who all feared persecution upon arrival at the airport in Zimbabwe and their home areas of residence filed claims for differing levels of political activism against ZANU-PF in Zimbabwe and the United Kingdom. (Refugee Case Law 2011). It was a very complicated and complex case with eleven different rulings in the final decision. The four claimed that returning to their rural areas of living within Zimbabwe would subject them to risk of having to demonstrate loyalty to the ZANU-PF. However, since the four were living in differing areas of Zimbabwe and could not prove that they would face significant danger they could not be entitled to international protection. It was further indicated that a return to Zimbabwe and relocating to another area within the country would be seen as discrimination within another area where the returnee is Shona. EM also claimed it was indicated that those persons who had been teachers were required to be placed in an enhanced or heightened risk state when exposed to the ZANU-PF. Therefore, the court chose to assess the persons on an individual basis. In this case the tribunal allowed the appeals of one applicant and dismissed the appeals of the other three on asylum and human rights grounds. The Upper Tribunal indicated that they would have allowed the appeal on Article 8 ECHR grounds if she had not already been granted humanitarian protection by the Secretary of State. (Refugee Caselaw 2011). Another Caselaw Example RA (AP) vs. Secretary of State for the Home Department in the United Kingdom on April 19, 2011 in the Outer House Court. The country of origin was Pakistan. The claim was for a mentally unwell national of Pakistan that feared persecution from the “Sipah-e-Sahaba Pakistan” (SSP) organization. The applicant is requesting an appeal in this case. The court allows the judicial review and reduced the original decision and the court applies a ratio of AH Sudan (2008) 1 AC 678, which includes health as a factor relevant to reasonable internal relocation. (Refugee Caselaw 2011). Mambara’s Coarse of Action Article 8 of the ECHR deals with the right to respect for family life. Caselaw establishes specific specifications for the “family life.” Therefore, in each case a determination must be made in the relationships within the “family life.” The Court of Appeal in Singh (2004) EWCA Civ 1075 stated that, “The existence or non-existence of family life for the purposes of Article 8 is essentially a question of fact depending on the real existence in practice of close personal ties.” (Home Office 2010). Therefore, Article 8 specifies the husband/wife or civil partners are “a lawful and genuine marriage or civil partnership and will normally constitute family life. (Home Office 2010). Each of the parties intends to live permanently with the other as his or her spouse or civil partner and the marriage or civil partnership is subsisting.” (Home Office 2010). There is a five stage process which must be considered with implied family life claims. The second stage consists of consideration for health or other welfare issues, which would make return unreasonable. In Mambara’s case it would be reasonable to expect the family/spouse/civil partner to leave the UK with the claimant. Since Mambara has no relatives to take care of him in his home country and if he were to be deported it would violate Article 8 under the ECHR and interfere with his family life and his well being regarding his medical condition. This seems to be the best coarse of action in Mambara’s claim. In the referenced caselaw samples, medical conditions seem to take precedence. While he does claim that the Mugabe has threatened him in his home country, he would have to prove the threat exists in areas other than just his home region. The case laws in this text support non-family life intervention and medical claims against inhumane treatment under Article 8 of the Human Rights Act of 1998. (Home Office 2010). Facts about Asylum What exactly do asylum seekers expect? Most do not come to the United Kingdom hoping to claim benefits; in fact, most do not know anything about benefits when they arrive. Most of these people are ignorant of receiving financial support. Most are living in poverty and have very poor health and hunger. If they do receive state support, it is as little as 5 pounds a day. They cannot choose where they live as the allowance paid to them forces them to live in “hard to let properties” where others do not want to live. (Refugee Council 2011). Most asylum seekers are law-abiding people, and fear the police to avoid being picked up and put in detention or deported. There are distinctions made between International and National law for refugees, asylum seekers, legal and illegal migrants, minority citizens, travelers and others. The distinction between these gets lost sometimes in the media and causes misinformation to leak out. It is noted that immigrants make a large contribution to the UK through the public purse. Many jobs have been created in Leicester by Ugandan Asian refugees since 1972. (Refugee Council 2011). The children of asylum seekers make major contributions to the schools across the country which enables successful meshing into local communities. Asylum seekers are just looking for a safe place or haven. The claims are never bogus or illegal. International law dictates that anyone has the right to apply for asylum in any country that has signed the 1951 Convention. They can also remain there until the authorities have made a decision on their claim. (Refugee Council 2011). Many asylum seekers retain the hope to return home at some time in the future if things improve within their country. It has saved millions of lives; therefore, no country has ever withdrawn it. The Britain’s asylum system is very strict, and it is very difficult to get asylum. Many people are rejected for asylum because the decision process is so stringent. In 2009 alone 28 percent of requests were overturned. In the year 2005 most of the people who requested asylum who were recognized as refugees were only allowed to stay in the United Kingdom for five years. They can, however, have their cases reviewed at the end of that time. It makes it very difficult to plan for their future in the UK. They also detain around 1,000 children-seeking asylum each year. (Refugee Council 2011). Poor countries house most of the world’s refugees, not the United Kingdom. Only 2 percent of the world’s refugees call the United Kingdom home. This number is out of 16 million worldwide. A little over half a million refugees have fled from Sudan to other countries, however, only 265 applied for asylum in the United Kingdom in 2008. It is a fact that 80 percent of the world’s refugees are now living in developing countries. It’s astounding that Africa and Asia host three quarters of the world’s refugees. Europe takes care of a minimal 14 percent. (Refugee Council 2011). Whether a refugee is granted asylum or not depends on the country where they apply. (Refugee Council 2011). Summary In the Introduction we have discussed the Borders, Citizenship and Immigration Act of 2009 and the need for migrants to speak English and obey the laws if they want to become a citizen or permanent resident of Britain. We also touched upon the Human Rights Act of 1998 and how it has been expanded to include rights under the ECHR. Section A discusses the effectiveness of immigration and some of the key features of the Borders, Citizenship and Immigration Act of 2009. These key features are discussed in detail along with how they effect the United Kingdom both now and in the future. . Section B analyzes the provision of the ECHR and the Human Rights Act of 1998 and addresses Mambara’s situation along with his family regarding deportation. We have sited a case law reference that shows how stringent the decision making process can be. We reached the final conclusion that Mambara’s claim against deportation would best be handled with the medical and family humanitarian protection claim. We concluded with a few facts about asylum and what the effects are on the asylum seekers along with statistics of countries that handle the world’s refugee population. It is concluded that Britain is one of the most stringent countries to obtain asylum, however, with the new changes it has become one of the better counties to turn to in time of need. References Articles of the European Convention on Human Rights. August 2010. Viewed 13 August 2011. http://ukba.homeoffice.gov.uk/. Asylum and Immigration Law. “Chapter 1.” 2011. Viewed 11 August 2011. http://lag.org.uk/. Borders, Citizenship & Immigration Act 2009. 29 July 2009. Viewed 11 August 2011. http://christine-lee.co.uk/. Case Details. “University of Michigan Law School, Refugee Case Site.” 14 March 2011. Viewed 11 August 2011. http://refugeecaselaw.org// Cole & Yousaf. “Asylum & Human Rights.” 2011. Viewed 11 August 2011. http://coleyousaf.co.uk/. Human Rights Act 1998. 1998. Viewed 13 August 2011. http://legislation.gov.uk/. Refugee Council Online. “The facts about asylum.” 2011. Viewed 22 August 2011. http://refugeecouncil.org.uk/. Your Rights. “The Liberty Guide to Human Rights.” 13 May 2010. Viewed 11 August 2011. http://yourrights.org.uk/. Read More