Asylum Seeker in the UK - Assignment Example

?Immigration and Asylum Problem Question: Mr Bakare Sanko’s Status as an Asylum Seeker in the UK Introduction The success of Mr. Bakare Sanko’s application for asylum will depend on whether or not he can legitimately claim refugee status or asylum in the UK. The strength of these claims will be determined by reference to the question of whether or not Sanko has a real fear of persecution in the event he is forcibly returned to the Democratic Republic of the Congo (DCR). In addition, Sanko claims the protection of the right to life, the right against torture and cruel and inhumane treatment and punishment as well as the protection of his family and private life in support of his application for asylum and for enforcement of the right against refoulement. In advising Sanko on the merits of his application for asylum each of these issues are considered. Fear of Persecution The first important step in considering Sanko’s application for asylum is determining whether or not Sanko can legitimately claim refugee status. According to Article 1(2) of the Convention Relating to the Status of Refugees 1951, refugee status is justifiable when: Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.1 Based on Article 1(2) of the Refugee Convention, the main issue is whether or not Sanko’s fear of persecution is well-founded and whether or not Sanko reasonably fears that he will not be accorded protection against the perceived probability of persecution. Based on the facts of the case for discussion, Sanko fears that given that his car was stolen and used in a political murder, there are fears that his imputed political connections makes him vulnerable to execution, unlawful killing and torture or inhuman or degrading treatment or punishment in the DRC. If indeed these fears are real, Sanko then has a claim for refugee status under Article 1(2) of the Refugee Convention on the grounds of political opinion. In order to determine whether or not Sanko’s fears are well-founded the Home Office Border Agency report on the DRC is instructive. According to the Home office’s report on the DRC, up to 2012, there have been significant reports of political murders and human rights abuses in the DRC and there is no sign of these incidents tapering off any time soon. It also appears that civilian lives and human rights are endangered by the ruling political party, the opposition, the military and law enforcement.2 In MM (UDPS members – Risk on return) Democratic Republic of Congo CG the appellant appealed against a decision by the Home Office to refuse the appellant’s application for asylum and leave to enter the UK. The Immigration Appeals Tribunal noted that although it continues to accept that “low level members/sympathisers of” of the opposition “will not be at real risk on return to the DRC in the current climate,” however, it was too soon in the political transition to establish a blanket rule.3 The tribunal therefore stated that: The risk category to those having or being perceived to have a military or political profile in opposition to the government is one that fluctuates in accordance with the political situation.4 Sanko’s political association is not revealed. However, his political profile is one in which he is perceived as opposed to the government. This conclusion can be drawn from the fact that his car was used in murder of a government minister by rebels fighting the government. The fact that Sanko learned that his car was used in the murder of the government minister is evidence that Sanko can be and very probably has been identified as the killer and will be persecuted as opposed to prosecuted. Regardless the main concern at this point is the extent to which civilians manifesting the slightest bit of opposition to the regime are treated particularly since the controversial election results in 2011.5 Moreover, the US Department of State reports that up to 2012, the latest information released to the public, indicates that civilians in police custody are murdered “summarily”.6 In addition there are reports of arbitrary arrest and detention, particularly in respect of “perceived opponents and critics of the government”.7 There is also a systematic denial of fair and public trials and political prisoners are common occurrences.8 Therefore based on the latest reports on the DRC, the mere perception that Sanko is anti-government alone puts him in real danger of persecution. Moreover, the mere fact that he may be placed in custody on suspicion of murder, whether unfounded or not puts him in real danger of unlawful killing, cruel and unusual treatment and punishment and denial of the right to a fair and public trial. It therefore follows that at this time the risk of persecution is at an all-time high at this point in time regardless of whether or not Sanko is a low-level sympathesiser. It can therefore be concluded that Sanko is indeed confronting a real risk of persecution should he be returned to the DCR. Now that it has been established that Sanko has a real fear of persecution Article 33 of the Refugee Convention arises. Article 33 of the Convention provides that: No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his (or her) life or freedom shall be threatened on account of his (or her) race, religion, nationality, membership of a particular social group or political opinion.9 In addition to Article 33, the United Nation’s Commissioner on Human Rights (UNCHR) submitted an Advisory Opinion stated that once it has been established that an individual has refugee status under Article 1(2) of the Refugee Convention, that individual is entitled to protection from refoulement.10 Protection from refoulement will arise when the refugee is in danger of being exposed to “torture” or will suffer “irreparable harm”.11 The various risks of torture and the risk of irreparable harm have been well-documented by the Home Office and the US Department of State. Indeed both governmental agencies have established that a returning refugee, particularly a political refugee is in grave danger of human rights violations and unlawful killing both of which amount to torture and irreparable harm. The UNCHR states that upon applying for refugee status, the status will be conferred where the applicant can substantiate the claim that he or she apprehends persecution for reasons and circumstances that the government should contain and control but fails to do so.12 In fact, not only is the government of the DRC responsible for, but fails to suppress the current human rights violations and crimes against its citizens, the government is either directly or indirectly responsible for those crimes and human rights violations. It therefore follows based on the UNCHR’s advisory opinion and the guidelines and the Home Office’s Country of Origin Report, together with all the circumstances, the UK has a duty under international law to confer refugee status on Sanko and to protect him from refoulement. The Immigration and Asylum Tribunals have all taken account of the Home Office’s and the UNCHR’s opinions and guidelines in determining whether or not to confer refugee status on asylum seekers and whether or not to protect such applicants from refoulement.13 Since Sanko is the perceived member of a political group that the government is determined to silence and is probably a suspect of a political murder against one of the government’s members, it is virtually a given that Sanko cannot expect to be accorded government protection upon return to the DRC. At this point, Sanko is a candidate entitled to refugee status and protection and humanitarian assistance pursuant to international law and domestic law.14 Domestic law will be discussed in greater detail below. Articles 2, 3, and 8 of the European Convention on Human Rights 1950 It has already been established that international law and international human rights places significant constraints on the government’s freedom to regulate who enters or who remains within its borders in relation to asylum seekers and refugees.15 Sanko also relies on national laws by virtue of the European Convention on Human Rights 1950 (ECHR). In this regard, Articles 2, 3, and 8 of the ECHR have been implemented in the UK’s domestic law pursuant to the Human Rights Act 1998.16 Article 2 Article 2 of the ECHR protects and guarantees the right to life with limited exceptions. Live may only be deprived in instances of lawful authority including in self-defence or “in order to effect a lawful arrest or to prevent escape of a person lawfully detained” or “in action taken for the purpose of quelling a riot or insurrection.”17 Sanko faces the deprivation of life by the state upon a conviction of murder. More significantly, Sanko faces the deprivation of life by torture or pursuant to unlawful arrest and detention and on the grounds simply that he is perceived to be in opposition to the current political regime. These fears are real and have been documented in the preceding section of this paper. In general an applicant for asylum or a challenge to an expulsion order cannot legitimately claim the right to life if the threat to life is pursuant to capital punishment.18 The claim however can be made if the country of origin is a signatory to the ECHR’s Protocol on the abolition of the death penalty.19 It has been held that it is a breach of Article 2 to deport or extradite or otherwise exile an individual to a state who is a party to the Protocols on the death penalty if that person faces a real risk of capital punishment.20 The Right to Life claim under Article 2 of the ECHR is not generally raised under asylum and immigration claims. These claims are typically treated as Article 3 claims.21 For example in H.L.R. v France, the applicant claimed that his life was in danger should he be forced to return to Colombia. The court however considered his claim pursuant to Article 3 of the ECHR.22 Similarly in D v the UK the claim was deemed to be a legitimate Article 2 claim but the court proceeded under Article 3.23 Therefore the merits of Sanko’s Article 2 claim will be considered together with his Article 3 claim. Article 3 Article 3 of the ECHR provides that: No one shall be subjected to torture or to inhuman or degrading treatment or punishment.24 There are no exceptions to the right against torture or inhuman or degrading treatment or punishment. Therefore the protection of Article 3 is absolute and unconditional. As previously stated the risk of torture or to inhuman or degrading treatment or punishment in the DRC is well-documented and the Home Office is well aware of the risk as it is documented in its Country of Origin Reports on the DRC. Cruel and unusual or degrading treatment claims under Article 3 of the ECHR must relate to pressing risks of such treatment. For example if it is shown that the circumstances and facts given rise to a fear of cruel and degrading punishment and treatment have tapered off the claimant’s Article 3 claim will not succeed.25 However, this does not appear to be the case with Sanko’s situation in the DRC. In fact, the latest reports referred to in the previous section prepared by the Home Office and the US Department of State show that the situation in the DRC is getting worse as opposed to getting better. In this regard, the risk of being subjected to unusual or degrading punishment and treatment is escalating. However, once the Secretary of state is acting indiscriminately and pursuant to a need to protect the UK’s borders, the claimant will only succeed if the risk of cruel and degrading punishment and/or treatment is very real and substantial.26 The risk most be pressing. For example a Colombian drug lord who feared that he might be put to death if returned to Colombia because he had submitted the names of drug dealers did not satisfy the court that his fear of cruel and unusual treatment and punishment was pressing enough to warrant protection of Article 3 against deportation or extradition.27 Based on this ruling Sanko may not be able to successfully claim Article 3 protection since there is no evidence that anyone is after him. He merely left because he feared he might be the subject of suspicion and given the volatile situation in the DCR he feared what might happen to him if he came under suspicion. While his fears may be legitimate and reasonable, it is unlikely that the court might agree that his fear of cruel and unusual treatment and punishment is pressing. However, given the documented situation in the DCR, the court might take a different view. Although it may be argued that the cruelty of Colombian drug lords are well known, Sanko’s situation is quite different because it is reprisals and retaliation from the government that he fears. The Colombian citizen seeking refugee status on the basis of drug lords retaliating against them cannot legitimately claim that the Colombian government does not provide them with an effective remedy or with protection. The reality is, the Colombian citizen is no safer from drug lords abroad than he may be at home. Article 8 Article 8 of the ECHR provides that: Everyone has the right to respect for his private and family life, his home and his correspondence.28 However, unlike Article 3, but like Article 2, Article 8 is not an absolute right since there are limited exceptions. Article 8(2) of the ECHR provides that: There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.29 Thus the UK can deprive an individual of his or her right to privacy in the event it is proven that such deprivation or denial is done pursuant to legitimate aims. In Vilvarajah and Others v The UK protection of a state’s border was determined to be a legitimate aim necessary in a democratic society.30 However it was held in Chahaly v The UK 1995 that homeland security does not automatically justify refoulement or deportation.31 It was also held however, that regardless of whether or not a person enters the UK legally or not, once that person is found in the UK that person is entitled to the protection of human rights under the ECHR.32 In this regards, the exceptions to Article 8 apply equally to illegal immigrants as they do to all persons within the UK. It therefore makes no difference that Sanko entered the UK illegally. The fact remains that he was in the UK from April to September when he submitted an application for asylum. Thus, both the rights and exceptions accorded under the ECHR apply to him. The right to privacy is also not always a viable option for immigrants in general. Generally, Article 8 is of no avail to illegal immigrants or immigrants seeking to challenge an expulsion order or seeking leave to remain in the UK unless the applicant has a child in the UK or has been in the UK since early childhood or has a wife or partner settled in the UK. The point is, the immigrant must be able to prove that his family life and connections are in the UK and not with the country of origin in order to have a legitimate claim under Article 8 of the ECHR.33 In the case of a child born in and living in the UK, the applicant may have a legitimate claim under Article 8 of the ECHR and should be granted a residence permit to enjoy reasonable access and visitation with the child.34 Sanko does not have a child in the UK although his partner Rose is pregnant. However, she is six months pregnant and Sanko has only been in the UK for five months. It is therefore scientifically impossible for the unborn child to be Sanko’s. However, if he marries her or the child will be a child of the marriage and will be his legally. If Sanko is domiciled in the UK at the time of the marriage, the child will be legitimated by the marriage.35 Sanko’s claim pursuant to Article 8 of the ECHR may be made on the ground that he is living with or intends to make a life with an individual who is settled in the UK. Under the Immigration Rules 2012, an applicant seeking leave to enter the UK may be granted leave to enter if that individual is married to or has a partner who is settled in the UK.36 Obviously, the Immigration Rules are intended to ensure that it is consistent with Article 8 of the ECHR and the expectations that individuals preserve the integrity of their private and family lives. On the facts of the case for discussion, it is not clear what Sanko and Rose’s relationships are. It is however known that Rose has always lived in the UK and has no desire to move elsewhere. If in fact, Rose and Sanko live together and have plans to always live together and raise Rose’s child, Sanko’s Article 8 claim will likely succeed. Although the Immigration Rules 2012 apply to individuals who are seeking leave to enter the UK, Sanko is technically seeking leave to enter the UK. It was held in Vilvarajah and Others v. The United Kingdom, that when an individual is illegally in the UK the immigration and asylum authorities are entitled to treat that individual’s application as an application to enter the UK as opposed to an application to remain in the UK.37 It therefore follows that Sanko is at liberty to apply for leave to enter the UK as refugee and that refusal to grant leave to enter the UK is a violation of his right to privacy and his family life pursuant to Article 8 of the ECHR. Although he may apply on the grounds that he is technically outside of the UK for the purpose of the Immigration Rules, Sanko is actually in the UK and thus entitled to the protection accorded him pursuant to the ECHR. Conclusion There are some doubts as to whether Sanko’s claims under Articles 2, 3, and 8 of the ECHR will succeed. It appears that Article 3 provides the strongest grounds for success since, Article 3 provides an absolute right to protection against cruelty. However, as argued it is not altogether clear whether or not the courts will accept that Sanko’s fears of cruel and unusual punishment and treatment are pressing enough to warrant non-refoulement or refugee status or to grant him asylum. However, it is much more certain that Sanko will succeed on the basis of the Refugee Convention under international law. It is therefore advised that Sanko proceed with his application for asylum under the Refugee Convention. Bibliography Alla Raidl v Austria Application No. 25342/94 Judgment 4 November 1995. British Nationality Act 1981. Chahaly v The UK 70/1995/576/662 Council of Europe: European Court of Human Rights, 15 November 1996. Convention Relating to the Status of Refugees 1951. D v the UK Application 30240/96 Judgment 2 May 1997. European Convention on Human Rights 1950. Guiraudon, V. and Lahav, G. (March 2000) “A Reappraisal of the State Sovereignty Debate: The Case of Migration Control,” Comparative Political Studies, Vol. 33(2): 163-195. H.L.R v France Application No. 24573/94 Judgment 29 April 1997. Home Office, UK Border Agency. (9 March 2012). “The Democratic Republic of Congo: Country of Origin Information (COI) Report.” COI Service. http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/coi/drc/report-0312.pdf?view=Binary (Retrieved 7 January, 2013). Human Rights Act 1998. Immigration Rules 2012. 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). MM (UDPS members – Risk on return) Democratic Republic of Congo CG [2007] UKAIT 00023. Mole, N. (November 2007). Asylum and the European Convention on Human Rights. Council of Europe Publications. Soerign v. the UK, Application No. 14039/88 Judgment 7 July 1989. UNHCR., The UN Refugee Agency. (January 2007). “Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations Under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.” 1-19. UNHCR, The UN Refugee Agency. (2002). “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. US Department of State. (2012). Country Reports on Human Rights Practices for 2011, Congo, Democratic Republic of the.” http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?dynamic_load_id=186183#wrapper (Retrieved 7 January, 2013). Vilvarajah and Others v. The United Kingdom, 45/1990/236/302-306 , Council of Europe: European Court of Human Rights, 26 September 1991. Read More