Immigration and Asylum Law - Essay Example

?Running head: Immigration and Asylum Law Functions of article 3 ECHR; Provision or enforcement of standards Lecturer Functionsof article 3 ECHR; Provision or enforcement of standards No man or woman should be subjected to affliction and pain, treatment that has a barbaric and brutal innuendo rather than a compassionate and humane overtone or be subjected to a castigating measure aimed achieving a cruel objective. These are the concerns articulated in article three of the ECHR, a body that was established to foresee accurate implementation of laws pertaining human rights. Does article three of the ECHR give it the mandate to provide minimum standards and social sustainability world over? This is a question that might get so many awkward answers if a clear interpretation of the article is not given. The first question any person would ask before answering this question is whether the convention has any jurisdiction to influence laws on crime and social support in countries outside Europe. The provisions of Article one of the ECHR have been a tough nut to crack particularly because the stipulations in the article are a little confusing and to some extent ambiguous. The bone of contention in this article is usually the extra-territorial authority of the convention. Miller set to establish the boundaries of the convention authority and found out that the extra-territorial authority of the convention was in question1. She admitted that that article one of the convention doesn’t give the clear amplitude of the convention’s jurisdiction and continued to stress that the convention’s participation in the ‘war on terror’ campaign only soured the wound rather than disinfect it. In a bid to avoid the contentious issue of its jurisdiction, the convention has referred to its ties with other internationally recognized bodies such as the United Nations. For example in the Behrami v. France case and the Saramati v. France case, the ECHR where the issue of the convention’s jurisdiction was raised and the convention decided to counterattack these concerns play playing the card of its relations with the UN charter. Ryngaert examined the time where the scope of ECHR’s jurisdiction that was presented when looking at the Al-Skeini v the United Kingdom case2. The case was brought to the attention of ECHR by six Iraqi natives who had close family and social ties with some Iraqi citizens whose lives were ended by British soldiers in a town that is south of Iraq know as Basrah. The six brought the case to the ECHR in form of an appeal claiming that the UK had gone against the sentiments articulated in articles three and two of the convention as the soldiers inflicted pain and killed the Iraqis in one of their detention facilities. Articles two and three are against the brutal treatment of any individual and the separation of an individual with his or her life. However, the main concern when handling the case was not whether UK had indeed breached the stipulations of articles two or three but whether the location where these acts were committed fell under the legal jurisdiction of the ECHR. After presiding over that case an opinion that people outside ECHR’s reach who have been affected by a breach of the conventions acts could bring the perpetrators of the heinous acts into the ECHR’s immediate jurisdiction for prosecution. However, the ECHR did not confirm these allegations. The ECtHR& ECHR has the mandate to conduct its endeavours to the citizens of the 47 signatory states of the COE but doesn’t add the convention and its court can practise outside the states under the COE3. Just by looking at the jurisdiction concerns of the convention the answer to the question is already a big resounding no. But what if we turn a blind eye it the conventions issue of jurisdiction and assume the convention had the global jurisdiction. Would it have the capacity to provide the standards of criminal law and social support then? The reason for the establishment of the ECtHR under the ECHR was to ensure that those found to be going against that standards set are charge and prosecuted not to set the standards. This brought about a confusion of whether the roles of the ECtHR and the European court of justice (ECJ) overlapped other since they fall under the same jurisdiction and they have functions that are almost similar. The (ECtHR& ECHR) have jurisdiction in all the 47 countries that are under the council4. The COE, also states that the ECJ has jurisdiction in the 27 countries that have signed with the EU all of which are in the 47 states in the ECtHR& ECHR’s jurisdiction. In a bid to end the controversy of the two bodies’ jurisdictions a MOU was signed between the ECtHR& ECHR and the ECJ proposing that they should combine forces to combat the menace concerning human rights in the area5 The establishment of the ECHR was followed by the creation of several other protocols in the years that followed in a bid to provide clear guidelines and procedures that are deemed fit of which the bodies under the conventions are bound6. In the functions and guidelines of the ECHR otherwise known as its protocols, there is nowhere stated that the convention any article has the authority to provide the minimum standards for either the criminal justice system, protection of crime or social support. The fact that even the convention that sponsors article three doesn’t include in its functions the authority to regulate the standard of any aspect of law clearly overrules the idea that article three has the mandate to establish the minimum standards for crime or social support. What the convention function's state is that the ECHR’s role is to enforce the already structured standards not to create new standards or manipulate the standards that have been set. If the article three, the ECHR had the mandate to provide the minimum standard and social sustainability world over, the mandate would clearly undermine the sovereignty of the countries that not signatory states. A sovereign state should be to be in full charge of its affairs, its actuality, geographical and political boundaries and to a large extent the state should be able to consider its self and be considered by others as being whole and independent thus making decisions about the minimum standards about aspects of their law would very much undermine the sovereignty of these countries7. A sovereign state should be in control of its territory and population and should be free from any kind of political interference8. The states should also not be limited from having multi-lateral or bi-lateral relationships with other countries. Such a state can be said to have internal and external sovereignty. Dubourg and Prichard held that all these perspectives draw a vivid picture that has the argument that indeed “It is not the function of Article 3 [ECHR] to provide minimum standards9”. If article three was to provide for these standards, there would be an emphatic breach of the convention’s values and the values of other sovereign states as well. Question 2a The first submission consideration would be to establish Aggie as a person who requires humanitarian protection rather than an illegal immigrant. It is true that her entry to the UK was illegal but she wasn’t the one who initiated the immigration to the UK. This implicates that her illegal arrival to the UK does not amount to a criminal offense. (Pearson, n.d) stated that for an action to be regarded as a criminal offence it had to contain the elements of both actus reus and mens rea. Direct translation of the term mens rea gives the result “guilty mind”. This element of a criminal offence suggests that for an action to be termed as ‘criminal,’ this perpetrator had to have had a session of premeditation of the action prior to its commission. Did Aggie premeditate on illegal immigration to the UK? No. This alone already disapproves any claims that may arise concerning Aggie’s criminality due her illegal immigration to the UK. The second element of a criminal offence is actus reus which implies that after the premeditation of committing the criminal offence the perpetrator has to act in accordance to these premeditations of him or her to be referred to as a criminal. Since Aggie had no element of mens rea, the possibility of her possessing the element of actus reus are impossible. But if we were to argue on the fact that the action of her being illegally being immigrated into the UK, we would find the she still did not possess the element of actus reus because she did not consent to her unlawful immigration. It is also important to consider that Aggie’s captors were now aware of her escape and since they knew her place of residence back home, they would make sure they conduct a strict surveillance of her place of residence to make sure that if she decided to go back home, they would be waiting to take her back to business or ‘to dispose of her.’ Another important point of consideration is that if Aggie was forced to go back to Albania, there was a chance that she the Albania government might label Aggie’s abandonment of her country to be in another as treason. The penalty for treason in Albania is death. With these two ideas in mind Aggie’s state shifts from an illegal immigrant to a person who requires humanitarian fortification. The United Nations Convention Relating to the Status of Person who requires humanitarian protection s stipulated; every country should offer protection to individuals fleeing from their country due to a harsh condition in their countries of residence. For one to be termed as a person who requires humanitarian protection in the UK he or she has to show that going back to the country of origin would lead into a situation where the individual would undergo persecution and mistreatment. Regulation 5 gives the following explanation of “persecution” In the determination of whether an individual is an expatriate his risk of persecution must be: (a) Adequately grave by its character or recurrence as to comprise of an adverse defiance of an essential individual right. Or (b) An accrual of a variety of acts, including an infringement of any human right that is adequately adverse as to have an effect on a person in a comparable mode as stipulated in (a) above Aggie is also liable for protection because she fulfils the requirements of section 339 C in the reviewed Immigration set of laws which states that states: An individual shall be given humanitarian fortification in the UK if the necessary officials are contented that (i) The person is in the UK or has reached at an entry terminal in the United Kingdom; (ii)The person does not possess the qualifications of a refugee (iii) Adequate evidence has been presented for implying that the individual of interest, if taken back to the country of origin or would experience a real probability of distress severe harm and would not capable of protecting himself or herself And (iv) The person is not barred from an endowment of humanitarian fortification” The home offices come up with the argument the fact that the action that resulted to Aggie’s predicament was the fact that she was willing to illegally immigrate to Italy so as to go get a job. However, this would be countered using the elements of crime. Aggie’s might have had the element of mens rea for wanting to move to Italy to get a good job but the fact that she did not fulfil the requirements of actus reus makes their argument invalid. The fact that her premeditation wasn’t aimed at arriving at UK also adds to the invalidity of the argument. Using the UN’s statistics of the women trafficked in most of the places in the world, most of the women targeted for trafficking are either targeted due to their naivety most caused by a young age or a below average IQ. In other terms, the people targeted in these cases are not able to make a perfectly sound decision. If this was taken into account this home argument would also lose a substantial amount of ground. The decline of the living standards experienced by the victims of trafficking is usually the most the reason they get targeted10. Siddhartha quoted that Traffickers utilize citizen’s craving to leave their motherland11. Morrazzo established that with the growing need for unskilled labour the need for trafficking becomes more emphasized12. Deficiency of job opportunities also plays a significant function in the turning women into sex trafficking fatalities13. SIREN conducted a research and found out that the women and children who are trafficked suffer a great deal of physical and sexual abuse14 The second hard task would be finding enough ground to support the premise the argument that indeed the immigration of Aggie was a trafficking case. The numbers of people that are trafficked across international borders is overwhelming. Approximately 600,000 to 800,000 individuals are trafficked annually15. Halley, a women rights activist stressed that women are the most targeted gender in trafficking16. Kempadoo said that coming up with the number of trafficking all over the world is hard due to statistics limits17. Mahadeviah articulated that that as a result, researchers have grouped all sufferers of trafficking into one collection18. La cava and Nanetti established that in the mid 90s around 10000 women were trafficked in Albania19. Hazizaj and Barkley stated that Trafficking from Albania to Greece and Italy is very prevalent; in the year 2000 around 3000 children were trafficked to these areas20. The perpetrators of trafficking gain a lot from the trade hence the rise in Albania21. Mocan articulated that corruption of the police in Albania has been the biggest problem in the efforts to curb trafficking. As a result inconveniences persist in terms of operation owing to the low political will22. Ago quoted that Albania does not need more policing but effectual paraphernalia, better tuition, and leadership23. Shadow Report on the Implementation of Albania concluded that inclusion of social workers at the Albania border has been suggested as a way to help in spotting and helping of trafficking victims24. De Haas explained that due to the tight border patrol traffickers are exploring new crossing point like the Canary Islands25. Meshi said that Albania is a poor nation; hence the efforts to fund the control of trafficking should be both domestic and internationally based26. The Albanian government has made relentless but futile efforts to curb trafficking27 The collaboration of Albania and other western powers led to the establishment of a hub in Vlora, Albania which would be used to curb trafficking28 29. Most of the previous applications for asylum by women from Albania with trafficking as their base have been overruled. It would be my duty to find out why this has been the case and as a result come up with a way to avoid the same in Aggie’s case. There are many definitions of trafficking for example MacKinnon said that ordinary prostitution is also a kind of sexual trafficking30. Barnhart posed the question whether sexual deviations such as prostitution and non-consensual sex amounted to sexual trafficking31 Sanghera emphasized the need to differentiate trafficking and illegal relocation or immigration32. According to the UN trafficking is the conscription, transit and migration, accommodating or acceptance of individuals, through intimidation, compelling the individual or any other kind of compulsion, deception and trickery, exploitation of authority or exploitation of the victims’ defencelessness or vulnerability33. According to the UNHCR Trafficking Guiding Principles, which were released back in 20th May 2002, Trafficking can be broken down 'three vital and interconnected elements which are discussed below: The act: conscription, shipping, transit, hiding or reception of individuals The means: by intimidation or employing of compulsion or other kinds of coercion, kidnap, scam, dishonesty, misuse of authority or abuse of a status of defencelessness/naivety The purpose: misuse of the victim physical and emotional attributes, forced work, slavery or harvesting an individual’s organs such as kidneys liver and heart. Looking at these definitions there is no doubt that Aggie indeed went through the whole package that constitutes the ordeal of trafficking. Her naivety and ambitions were used to lure her into the trafficking and afterwards she was put into a horrible time of maltreatment and humiliation. Question 2b This would be a tricky case particularly because Aggie had already gotten a child with a British citizen. The case would be even more complicated if Aggie is married to the British citizen. The fact that she had a child with a British citizen and the fact that returning back home would lead to a hard time for Aggie would be a source of hope for being granted asylum. There would be hope particularly because in the recent past a land mark decision was made by the ECJ in the case of Zambrano v office national de l’empoi. This case gave hope to all people seeking asylum in UK and have British children. The Zambranos, who were of Columbian origin, asylum was declined and they were and a decree was made telling them to go back to Columbia. They fact that they had gotten children while in Belgium was what saved them in their appeal in the ECJ. The UK citizenship rules grants citizenship to any non-citizen married a British citizen. If aggie was married to the father of her child they chances of her getting an asylum would be good better but with challenges. But if they are not married, her child would be the only bargaining chip if she wanted to get an asylum. This would be very hard especially considering the fact that she had decided to reside in the UK illegally. The most possible outcome would be a loss and Aggie’s deportation back to Albania being ordered and the fate of Ivan however would depend on whatever Aggie and her lover Simon decide. A claim couls also be made that Aggie was still under the watch of her captors and if she contacted the authorities she would be endangering her life because they would think that she was selling them out. That would be a long shot but if well crafted and perfectly executed it could work. In any way you look at it, if Aggie did not contact the Home Office straight away and was brought to the attention of the authorities five years after she escaped from the traffickers but gets found working illegally in a takeaway restaurant, chances of her getting an asylum would be much slimmer than if she reported the authorities as soon as she escaped. Honesty of an applicant is usually one of the key qualities looked at when deciding whether to award an asylum or not. By not reporting to the authorities immediately she escaped Aggie would have failed the test on honesty making it hard for the Home Office to consider granting her an asylum. References Ago, R. 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