Immigration and Asylum Law - Essay Example

? Immigration and Asylum Law Introduction The law of immigration and asylum s back to the late 1950s when the international community resolved toratify a common protocol through which to perceive and protect foreign citizens. The rationale of such understanding emanated from the Rome Treaty of 1957 which established the European Economic Community.1 In its precepts, the Treaty of Rome 1957 endeavoured to ease barriers to international movement of persons, goods, capital or services across the international borders (Blake, 1999, p49). It is however important to note that not all countries subscribed to this treaty. In particular, the UK pursued legal frameworks and statutes that in essence controlled and restricted the movement of persons, goods, capital or services. Thus, the UK law antagonised the Treaty of Rome for a long time as observed by Bruycker and Carlier (2005, p417) Taking into account the intentions set forth by the Treaty of Rome, the European Economic Community sought to create conducive economic platforms through which EU nationals may freely seek employment outside their native countries. In that light, the Treaty of Rome provided the structure of understanding to harmonize the strict rules of the UK immigrations laws. On the other hand, the European Community understood the difficulties that individuals and their families may face under the domicile confines when their country of origin no longer promises to provide them protection. In other words, Noll (2000, p102) ascertain that the relationship between a citizen and his country of origin may at times turn sour and unfriendly on grounds of political, racial, religious or criminal discrimination. 1. The Treaty of Rome was elaborated by Hailbronner, K 2010, EU Immigration and Asylum Law: commentary on EU regulations and directives, Munich: Beck Publishing As a result, the treaty allows such a victim to seek protection from the international community. This concept formed the fundamental pillars of the immigration and asylum law as illustrated in Huang and Kashmiri v SSHD [2007] UKHL 11 (Rebecca, 2007, p83). In passing his judgment, Lord Bingham postulated that; “… Human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives” (p89). Considering the psychological nature of human beings, the above statement affirms that human beings often interact as they live in sociable settings.2 As such human beings develop close relationships with each other to a point of desiring uninterrupted privacy of their persons or property. In the same light, humans derive a sense of belonging from their family members including spouses, children and other close relative. Therefore, anything including removal or deportation that threatens to separate such close family ties will be deemed to interfere with the victim’s right to enjoy private or family life. This paper therefore seeks to examine the relevance of the above mentioned statement with respect to immigration and asylum law. Besides, the paper provides critical arguments and practical circumstances under which the immigration and asylum law broadens its understanding to the reasoning of Lord Bingham. To that end, the arguments herein shall add to the archives of knowledge practical applications of the immigration and asylum law beyond the corridors of justice. 2. The statement was alluded in delivering the verdict in Huang and Kashmiri v SSHD [2007] UKHL 11 as depicted by Harvey, C 2000, Seeking Asylum in the UK: problems and prospects, London: Butterworths. The concept of Immigration and Asylum According to Hayes, Humphries and Cohen (2004, p162), immigration refers to the movement of persons from one state to another for purposes of seeking employment, visitation or temporary residence. In additions, the idea translates to the entry into another country other than the country of origin regardless of the protocol followed. As such, immigration could either be legal or illegal.3 With respect to the legality of movement, nations have developed amicable structures defining the procedures and circumstances under which the immigration relations apply. Moreover, the need to have a common method of handling foreign nationals has also necessitated the instrumentation of the immigration law in line with international standards of justice, protection and interaction (Sternberg, 1993, p154). Druckman and Stern (2000, p17) posits that people who travel to other countries for reasons outlined in the immigration law are termed as immigrants. Such people may have to apply for work permits and travelling documents to allow their movements and operations within the country of immigration. It is therefore a matter of convention to accord all immigrants necessary protection and assistance to ensure that they have full access to means of livelihood, family relations, propriety of justice as well as free movement and association for the entire period of their stay.4 While the country enjoys the right of admission, it confers reasonable expectation of protection and assistance to its immigrants in return for their allegiance (Legomsky, 2005 p71). In the event that such mutuality is breached, the admitting state reserves the right to expel such individual and their persons. It is then that the concept of deportation emanates. 3. Clayton, G 2008, Immigration and Asylum Law, Oxford: Oxford University Press. 4. Harvey (n 2), p.83. Otherwise, immigrants shall continue to stay or reside thereon for the full period of the prescribed term or condition of stay. On the contrary, the international law acknowledges the sovereignty of each country in exercise of exclusive discretion to allow or deny leave of entry except where such discretion undermines Article 1 (A) 2 of the European Convention on Human Rights (Clayton, 2008, p46). From the international perspective, persons are always the weaker party in a conflict with their country. Thus, the international community expects countries to uphold the divinity of human rights and provide all assistance to any person seeking refuge. According to Article 1 (A) 2, foreign countries are supposed to admit refugees where such persons have reasonable grounds to seek protection outside their domicile states (Cornelisse, 2010, p92). Furthermore, the international community operates from the concept of mutual understanding that every human has a right to pursue his universal rights where there are reasons to believe that such rights have been threatened, denied or violated. At this juncture, the concepts of refuge and asylum are evoked so as to elucidate the fundamental dogma of immigration and asylum law. According to Simons and Ginsburgs (1994, p39), any person can seek asylum in any country of choice. However, there must be sufficient reasons to substantiate such motives notwithstanding other matters of personal dignity, race, religion, political affiliation or allegiance.5 In line with Article 3, an asylum seeker needs not to follow the prerequisite laws of entry where such procedure may further deteriorate his chances to universal rights. The asylum seeker may therefore finds his way into the country of refuge and follow the laid immigration procedures thereafter. 5. Druckman, D and Stern, C 2000, International conflict resolution after the Cold War, Washington, DC: National Academies Press. Where a person is under the umbrella of asylum, his refuge county shall owe him the duty of skill and care so as to assure his security, protection and legal advice. As such, the country may not release the refugee to his trailers since the act may contravene provisions of Article 33(1) as ruled in the case of Sen v The Netherlands [2003] 36 EHRR 81 (Hayes, Humphries & Cohen, 2004, p97). The court held that removal of immigrants should always be considered in reading with the aftermath of the hardship beyond the baseline of insurmountable obstacles as to render such removal a ‘disproportionate use of lawful immigration controls’ (Rebecca, 2007, p215). Thus, the reasonability of removal should take precedence as to give the asylum seeker sufficient protection unless otherwise the country has course for pursuing public interest or national security.6 In pursuant of Article 8 of European Convention on Human Rights, conflicts are bound to arise thereby calling for flight to safe havens on grounds of either subjective or objective fear of compromised state protection. When these problems occur, individuals may be force to leave the comfort of their families or close relative to seek asylum in foreign lands for as long as their fears remain. This was established in Assuming v SSHD 11530. The court held that fear of prosecution, where subjective or objective is sufficient to warrant pursuit of asylum status (Peers, 2011, p119). From a different viewpoint, a county may revolve to deport or remove a person from its land for reasons outlined in Section 3(5) of the Immigration Act 1971 paragraphs (a) and (b), and as read with Section 3(6) of the Act (Genova & Peutz, 2010, p173). Either way, the impact remains the same in that removal or asylum of such persons may perpetually separate them from their families as distinguished in Beoku-Betts v SSHD [2008] UKHL 39 (Great Britain Immigration Appeal Tribunal, 2006, p228). 6. Blake, N 1999, Immigration, nationality and asylum under the Human Rights Act 1998, London: Butterworths. This point elicits the debate on how prolonged and unavoidable separation from family may inhibit individuals’ ability to live full and fulfilling lives as illustrated in the case of HM (Iraq) v SSHD [2010] EWCA Civ 1322 (Id, at. p251). The court ruled that the appellant had lived with his family in the UK for considerable period of time and that his deportation would deny him family life in pursuant of Article 8 (2), European Convention on Human Rights. These events offer significant substantiation of Lord Bingham’s arguments that human beings are social animals that depends on the families for social, emotional and financial support among other things. Asylum and Family life There are three basic circumstantial facts under which a person may seek asylum in line with the Refugees Convention 1967. First and foremost, the must be reasons to believe that a person has arbitrarily been deprived of his freedom to life. Such deprivations may be executed by means of torture, inhumane treatment or breach of contractual obligation of state. The second situation may arise when a person believes that his continued stay in the state may result in arbitrary arrest and indefinite detention. Moreover, the process could be manipulated by state organs or uprising forces as to deny such persons the right to fair trial by an impartial jury as well as denied protection of family privacy. With that regard, Blake (1999) ascertained that a person may resolve to seek asylum expeditiously if he hold reasonable belief to the existence of such infringing conditions. The third conditions relates to arbitrary denial of fair treatment by the state with respect to work, justice and other human conditions as provide by the universal declaration of human rights. It is however worth noting that such deprivations herein must be of persistent nature and exceptional to the asylum seeker as distinguished in MM Zimbabwe [2009] UKAIT 00037 (Great Britain Immigration Appeal Tribunal, 2006, p162). Following the establishment of arbitrary deprivation of one’s rights, the question of family interference becomes essential for legal debate. According to Trevers (1999, p53), any act of seeking refuge, deportation or removal may impact on the welfare of family relations. In his argument, the scholar evoked the case of Razgar v SSHD [2004] UKHL 27. The court ruled that family relations must always be considered when removing, deporting or turn in an asylum on grounds of public good.7 That notwithstanding, Lord Bingham affirmed that there ought to be an element t of either private or family life. It is only then that one may argue that his removal or deportation would interfere with his ability to live a full and fulfilling life. This rationale revolved around the provisions of Article 1(A) 2 which sets forth the basis of family and private life in the Immigration and Asylum Law (Legomsky, 2005, p74). It is also modest to bear in mind that evidence of interference with family life is a valid basis of filing an appeal against deportation or removal order. Another vital point for consideration is inherent in marriage (JCWI). On one hand, the law allow an asylum seeker to pursue asylum status in companion with his spouse or family members. Conversely, international law calls for unreserved re-union of a couple if one of them have sought asylum in another state. A spouse should be allowed to access his or her refuged family member (Peers & Rogers, 2006, p819). If the refugee has been removed, the couple may appeal against such removal on the basis of interference with family life. In Sezen v The Netherlands (2006) 43 EHRR 30, it was held that a couple may challenge deportation order if there is reason to believe the removed or deported member may not enjoy family life outside the deporting state (Genova & Peutz, 2010, p113). This rationale was drawn from the Strasbourg traditions applied in Huang v SSHD [2007] UKHL 11. 7. Peers, S 2011, EU Justice and Home Affairs Law, 3rd edn, Oxford: Oxford University Press Nevertheless, the Court of Appeal distinguished that Article 8 may not be applicable where a couple can successfully join her removed partner in the country of deportation. This explanation was used to elaborate the case of Boultif v Switzerland (2001) 33 EHRR 50 (Hayes, Humphries & Cohen, 2004, p281). Family interference may also not apply where the removed person do not merit to have any family life in the first instance even if the person had private life. Bearing in mind that deportees may have children or nuclear dependants, international law recognized the need to preserve such relationship between a person and his or her children. In Ciliz v the Netherlands 29192/95 [2000] ECHR 365, the court affirmed that removal or deportation may impair the natural relationship between a person and his children (Hailbronner, 2010, p279). This is the basic course of action where children have been denied family right through deportation or removal of one of their parents. The deportee may also argue the same matter from the appellant’s side.8 Other reason to challenge removal or deportation Since the order of removal or deportation has been confirmed to pose potential interruption or breach of family life, the must be valid authority to substantiate the order. For that reason, the first question to ask is whether such removal or deportation orders were issued by the right authority. Accordingly, Section 5(1) of the Immigration Act 1971 confers exclusive powers to the Secretary of State as the bona fide authority to issue deportation or removal orders (Genova & Peutz, 2010, p96). Unless otherwise specified, no other person or office may order removal or deportation except when sovereign law authorizes the Minister of Immigration to do so. 8. Druckman and Stern (n 5), p126. If the deportee or representative may have proof that the order was not correctly authorized, the court will not deny the appellant a chance to seek legal redress. These sentiments were clarified in Carltona Ltd v Commissioner of Works 1943 2AER 560. The court implied that deportation orders may only be deemed effective if they come from the rightful authority in keeping with Section 5(1), Immigration Act 1971 (Id, at. p97). The second aspect on which to appeal removal or deportation owes to the fact that a person of an asylum status is unwilling to present himself for prosecution on grounds of reasonable fear. Therefore, attempts to deport such persons would compromise their rights to protection as required by the international law of immigration. An appellant may thus file an action to revoke the order on ground that such removal or deportation would predispose him to deprivation of their fundamental universal human rights (Sternberg, 1993, p177). The third instance was differentiated in the case of D v United Kingdom where critical state of health may necessitate the court to reconsider a removal order (Noll, 2000, p418). In similar circumstances, a deportee may appeal on grounds of substantive of failing health. If in the opinion of the court, subject to professional advice from a physician, the deportee cannot access adequate medical care that befits his fatal condition; such a deportee may be allowed to continue his stay in the deporting country.9 The last scenario revolves around domicile residence. Technically, every person has at least a country of domicile form which the person may always get permanent refuge. However, people may at times choose to seek permanent citizenship in another country. As such the person may resolve to denounce his country of origin by birth. For such reasons, the person becomes a citizen of the second country in line with the governing immigration laws in that state (Hailbronner, 2000, p148). 9. Legomsky, S 2005, Immigration and Refugee Law and Policy, 4th edn, Eagan, MN: Foundation Press. If such persons may thereafter be at loggerheads with the prevailing laws especially if the state discovers that they had sought citizenship through deceptive means, and that if these persons had been honest, they could not have been granted citizenship; the State may issue a deportation order.10 However, in the case of a denounced citizenship the deportee can claim that he does not have a domicile residence and thus he cannot be deported to a ‘foreign’ country. Under such position, the appellant may also claim that his return to the country of origin may compromise his security or his universal rights (Kanstroom, 2007, p190). Nonetheless, the appellant must prove beyond any reasonable doubt that indeed he got his citizenship in the right way through honest means except in a state of emergency. In addition, the law does not require the asylum seeker to show explicit reasons beyond the reasonable course for his decision to seek such asylum (Harvey, 2000, p137) However, he shall remain in an asylum status for as long the fear continues to exist. Deportations cannot however be barred on grounds of family interference if such orders have been issued to avert potential occurrence of crime by the said deportee. In addition, the court would not estop a deportation order if continued stay of the said deportee would threaten national security or the rights of other native even if it will affect the deportee’s family or private life (Rebecca, 2007, p106). This argument was illustrated in the case of Joseph Grant v the United Kingdom – 10606/07 [2009] ECHR 26. The court ruled that the deportation order was not disproportionate of the lawful use of immigration controls. The ruling was based on grounds that the deportee has continuously showed disregard for the criminal law by repeated incidences of violence, assault of public officers in addition to his being in possession and supplying controlled drugs (Bruycker & Carlier, 2005, p188). 10. Bruycker, P and Carlier, J 2005, Immigration and asylum law of the EU: current debates, Bruxelles: Bruylant Publishing Group The other situation when an appeal against removal order may not succeed is where the court of first instance had critically examined the case presented before it and resolved to advise for deportation or removal of such a convicted asylum seeker as in R v Bennabas [2005] EWCA Crim 2113 (Peers, 2011, p233). A similar decision would be held if the deportation order had been ruled by a court of law and subsequently adopted by the secretary of State in without any contradiction of Article 8 (2) as read with Article 44. Otherwise, all persons on asylum status shall have a chance to appeal against removal or deportation orders if there is reason to warrant contravention of Article 8 as re4ad with Article 33(1). Conclusion While asylum seekers and immigrants are accorder protection by the international laws and conventions, they may be removed or deported by the country of such asylum. However, they may appeal against such orders if the order so issued directly or by implication contravene the provision of Article 8, Article 33(1) and Article 44. Such appeals may succeed in pursuant of Section 3(5) paragraph (a) and (b), and Section 3(6) as read with Section 84 and 86 of the Nationality, Immigration and Asylum Act 2002. References Blake, N 1999, Immigration, nationality and asylum under the Human Rights Act 1998, London: Butterworths. Bridges, L, Meszaros, G & Sunkin, M 1995, Judicial review in perspective, 2nd edn, London: Cavendish Publishing. Bruycker, P & Carlier, J 2005, Immigration and asylum law of the EU: current debates, Bruxelles: Bruylant Publishing Group. Clayton, G 2008, Immigration and Asylum Law, Oxford: Oxford University Press. Cornelisse, G 2010, Immigration Detention and Human Rights: Rethinking Territorial Sovereignty, Leiden: Brill Publishing. Druckman, D & Stern, C 2000, International conflict resolution after the Cold War, Washington, DC: National Academies Press. Genova, N & Peutz, N 2010, The Deportation Regime: Sovereignty, Space, and the Freedom of Movement, Durham, NC: Duke University Press. Great Britain: Immigration Appeal Tribunal, 2006, Immigration Appeals: Selected Reports of Decisions of the House of Lords, the Court of Appeal, the Court of Session and the High Court and Selected Reported Determinations of the Immigration Appeal Tribunal and the Asylum and Immigration Tribunal. Norwich: The Stationery Office. Hailbronner, K 2000, Immigration and asylum law and policy of the European Union, Alphen: Kluwer Law International. Hailbronner, K 2010, EU immigration and asylum law: commentary on EU regulations and directives, Munich: Beck Publishing. Harvey, C 2000, Seeking Asylum in the UK: Problems and Prospects, London: Butterworths. Hayes, D, Humphries, C & Cohen, S 2004, Social Work, Immigration and Asylum: Debates, Dilemmas and Ethical Issues for Social Work and Social Care Practice, London: Jessica Kingsley Publishers. JCWI (ed), Immigration, Nationality and Refugee Law Handbook, JCWI Kanstroom, D 2007, Deportation nation: Outsiders in American History, Cambridge, MA: Harvard University Press. Legomsky, S 2005, Immigration and Refugee Law and Policy, 4th edn, Eagan, MN: Foundation Press. Mole, N 2007, Asylum and the European Convention on Human Rights, 4th edn, Strasbourg: Council of Europe Publishing. Noll, G 2000, Negotiating asylum: The EU Acquis, Extraterritorial Protection and the Common Market of Deflection, Leiden: Martinus Nijhoff Publishers. Peers, S & Rogers, N 2006, EU Immigration and Asylum Law: Text and Commentary Leiden: Martinus Nijhoff Publishers. Peers, S 2011, EU Justice and Home Affairs Law, 3rd edn, Oxford: Oxford University Press. Rebecca, P 2007, Family Life and the Law under one roof, Farnham: Ashgate Publishing Ltd. Simons, W & Ginsburgs, G 1994, The Soviet Union and International Cooperation in Legal Matters: Criminal law, Leiden: Martinus Nijhoff Publishers. Sternberg, M 1993, ‘Political Asylum and the Law of Internal Armed Conflict: Refugee Status, Human Rights and Humanitarian Law Concerns’, International Journal of Refugee Law, vol.5, n.2, pp.153-182. Trevers, M 1999, The British Immigration Courts: A Study of Law and Politics, London: The Policy Press. Read More