Asylum and Immigration Law - Essay Example

?Asylum and Immigration Law Question The ment that is to be evaluated is the ment that the “function of Article 3 [ECHR] to provide minimum standards for criminal justice, protection from crime, and social support throughout the world.” Article 3 of the ECHR states that no one person is to be subjected to torture or to inhuman or degrading treatment or punishment (van Dijk & van Hoof, 1990). Article 3 states that both mental and physical ill-treatment are prohibited (Harris et al., 1995). Both private and public treatment are considered under this Article as well (Ireland v. United Kingdom, Judgment of 18 January 1978). In Greek Case (1969) 12 YB 1, the court asserted that the three prohibitions of Article 3 are related to one another - torture is inhuman and degrading, degrading behavior is torture, and so forth. The ECHR decided in the case of Soering v. United Kingdom, 161 Eur. Ct. H.R. (1989) that this provision meant that individuals cannot be extradited if they are threatened with torture or inhuman or degrading treatment in the requesting country. In this case, Jens Soring fought extradition from Europe to the United States because he would face capital charges in the United States, and Article 3 of the ECHR forbids extradition for this reason. While the European Court of Human Rights decided that transferring a person who would face the death penalty would not violate the Article 3 of the ECHR, if a prisoner or a person would be transferred to a country where he or she faced torture or inhuman or degrading treatment or punishment, then this would violate Article 3 of the ECHR (Collyer, 2005). Lilich (1991) states that this judgment was significant because extraditing states must consider the ill-treatment of other states when considering whether to send an individual to that third state. The ill-treatment may be beyond the control of the state, and the state may give no assurances that the person would not be subjected to ill-treatment. This decision, according to Lilich (1991) also obligates signatory states to not extradite to other states that would subject the person to ill treatment, and even non-signatory states would not be able to do so. Directly after this case was decided, the ECHR decided several other cases. One such case was Cruz Varas et al. v. Sweden, 46/1990/237/307. In this case, Hector Cruz fled from Chile to Sweden to seek asylum, which was rejected. The court there stated that Mr. Cruz’ extradition did not violate Article 3, in part because the situation in Chile was improving. Another case was Vilvarajah et al. v. United Kingdom, 46/1990/237/307 , Council of Europe: European Court of Human Rights, 20 March 1991. In this case the petitioner was attempting to ensure that he did not have to return to Sri Lanka. The court in that case found that there was only a possibility of ill treatment, therefore there was not a breach of Article 3. In Vivayanathan & Pusparajah v. France, 75/1991/327/399-400 , Council of Europe: European Court of Human Rights, 26 June 1992, the court decided that there was not yet an expulsion order for the petitioners, who were trying to fight being expelled from France into Sri Lanka. Therefore, they could not decide upon the erits of the case. Tomasi v. France (Series A, No. 241-A, Application No. 12580/87), European Court of Human Rights (1993), found for the applicant, who was abused in custody. Allweldt (1993), states that the prohibition on expulsion of individuals to countries hinges on whether or not there is a real risk that the person would be subject to torture or inhuman or degrading treatment. Allweldt (1993) states that the risk that the person faces does not have to be a high probability, just that it exists. There also must be a substantial grounds for the belief that the person would be subjected to torture or inhuman treatment in the receiving country. Addo & Grief (1998), states that Article 3 is brief because it sets out normative standards, and that each country is free to adopt these normative standards and flesh them out through state practice. That said, there are some absolute rights, asserts Gewirth (1982). The absolute rights are those which, in a conflict of rights situation, have a superior respect claim in any case. Addo & Grief (1998) state that the right to be free from torture would be such an absolute right. What these cases say about whether or not Article 3 imposes minimum standards for criminal justice systems is that it does not impose these minimum standards. In these cases, that were cited, and were decided after the landmark Soering case, the courts found against the applicant if the applicant was trying to fight expulsion. While one of these cases was decided upon procedural grounds, the other two were decided substantively, and the courts essentially decided to give the receiving countries the benefit of the doubt. This would imply that European courts, when deciding expulsion cases under Article 3 are reluctant to impose minimum standards upon other countries. If the European Courts were to interpret Article 3 as imposing minimum standards, then they would decide for the petitioner in these cases, to send a message to other countries that these countries need to reform their criminal system. This is not the message being sent. Although there is the concept of absolute rights, which would imply that other countries would have to reform their system to where prison detainees are not subjected to torture and inhuman and degrading treatment, because the right to be free from this is a right that trumps all others, this concept of absolute rights is not being practiced by the European Courts. The European Courts know that Article 3 is not prescriptive, and other countries are free to adopt the Article as they wish, so they are reluctant to interfere. Therefore, these decisions imply that the quote is correct – the function of Article 3 is not to impose minimum standards for criminal justice systems around the world. Question 2a The argument on behalf of Aggie is essentially that against expulsion, which means that her claim would fall under Article 3 of the ECHR. Trafficking would be considered to be degrading because it would “arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance” (Allweldt, p. 364). As Merrills (1990) notes, courts are likely to decide to protect human rights, even if there are potential inconsistencies in the law. And, as noted above, just because Aggie does not fear the government, but, rather, fears private individuals, does not defeat her claim against expulsion – as noted above, both private and public treatment are considered under this Article as well (Ireland v. United Kingdom, Judgment of 18 January 1978). While an argument that Aggie should not be forcibly expelled because she would be subjected to degradation is one argument, another argument is that Aggie might be deserved of the status of a refugee or asylum seeker. If she returns to Albania, she has a chance of being violated, so this is a reason for her to seek refuge in the UK (Davenport et al., 2003). Since she is seeking asylum in another country, other than her home country, she would be considered to be a refugee (Castles, 2003). The government may give her the status of an asylum seeker until she is granted the more permanent status of refugee (Adelman, 2001). The Home Office needs to examine the country of origin to determine how the country handles trafficking concerns. Boswell (2003) states that the EU, under its immigration and asylum policy, seeks cooperation from other countries that tend to have high numbers of forced migrants, asking that these other countries strengthen their border controls, illegal entry, migrant smuggling and trafficking laws. Therefore, the report of the UK Border Agency would be relevant in this regard (UK Border Agency). According to this report, Albania has a trafficking problem – the report states that the Albanian law prohibits trafficking, but that there still is widespread trafficking occurring, mainly of women and children, from and within the country. Victims who were trafficked were trafficked into sexual exploitation and forced labor – this includes both forced begging and agricultural work. The report states that the government has been slow to implement a national action plan that would provide services to trafficking victims. The government only provides limited services to trafficking victims, and does not provide financial assistance to four non-governmental shelters. The report states that the Government of Albania does not comply in full with even the minimum standards for trafficking elimination. The report states that Albania has been a hub for traffickers, as it is in close proximity with many countries, especially Greece and Italy and other Western European countries. Other problems that contribute to the trafficking problem are the fact that there is a severe economic disparity, corruption, inadequate bordern control, and lack of opportunities for young people in the country. This is especially true for women. The poverty in the country has made the people desperate, hopeless and vulnerable. Therefore, women and girls are more likely to fall prey to the lure and deception of the traffickers. The report talks about the corruption that has hampered the government’s ability to prosecute traffickers, and that there has thus far been no prosecutions of trafficking-related corruption and complicity. The Supreme Court overturned the convictions of two trafficker cases in 2009, which has led many to believe that the high court in Albania is not impartial. Victims often refuse to testify against their traffickers because of fear of reprisal, and the police often offer no protection to these victims. The General Prosecutor’s office does not routinely request witness protection for trafficking victims. Moreover, the report goes on to say that there are issues when victims of trafficking are forced to return to Albania, as the UK government is trying to force Aggie to return to Albania. This is that these victims do not have state protection or security options, and they must rely upon family integration. There is also a stigma attached to these women – there is a social shame that causes familial discomfort. This might make Aggie returning home to her family to be more complicated. The society in Albania, according to this report, is such that women like Aggie would be considered a criminal and a whore. The relevant case that was obtained through the UK Judiciary Country Guideline determinations is a case involving a woman who, like Aggie, is claiming asylum in the UK because she feared being trafficked. Her appeal was dismissed, although the opinion of the court did note that trafficking in humans was a problem in Albania. The appellant in this case was abducted by a trafficking group. However, the court reasoned that, because the appellant in this particular case was not sold into the trafficking ring by her own family, there was little chance that the family would force her to be re-trafficked if she returned to her homeland. The court also did not find any evidence that the group would pursue her. That said, the court did say that the group might have pursued her if she was bought. This is a distinction between this case and Aggie’s case, and this is why the court should rule in Aggie’s favour – the court in the UK Judiciary Country Guideline case implied that if a trafficked woman is bought, that the woman is more likely to be pursued by her traffickers if she is not allowed asylum. Since Aggie was bought, then it stands to reason that she is in danger if she were not granted asylum. Therefore, her asylum request should be granted. The argument that the Home Office will make is that migrants, such as Aggie, pose a problem because immigrants and migrants tend to put a burden on the country’s welfare system (Dwyer,2005). Moreover, the host country, the UK, may not be able to absorb migrants and immigrants, because there is a lack of jobs in the country, and, therefore, Aggie, and others who want to migrate and immigrate to the UK, would be competing with citizens for these jobs (Portes & Borocz, 1989). This might mean that the wages in the UK would be lower, if they were to loosen their standards on allowing new entrants into the country (Massey, et al., 2001). While immigrants into a country is one way to solve a labor demand problem (Rystad, 1992), this theory would hold during times when countries are not in a recession. Since the UK has been suffering from a shortage of jobs available, to have immigrants and migrants in the country driving down the wages and taking the few jobs there are available, this would cause a great deal of stress for the country and the citizens of the country (Castles, 2003). Therefore, all claims that come before the Home Office need to be examined carefully to ascertain if the individual should be granted refugee or asylum status. In Aggie’s case, the Home Office might also use some of the information that is available in the case that was obtained through the UK Judiciary Country Guidelines regarding the girl who was trafficked from Albania, and was seeking asylum from the UK. In this report, it was noted that, while Albania does have a problem with trafficking, the country has made sincere efforts to combat the problem, and that the problem has become less over time. For instance, it reports that the Anti-Slavery International Report states that the number of trafficking victims has fallen over time because of the aggressive government policy, including a stricter policing of the coast between Italy and Albania. The court also concluded that there is a sufficiency of protection against trafficking in Albania. They further found that victims of trafficking are often stigmatised by society. However, this stigmatisation is not enough to rise to the level of being considered to be persecuted, which is necessary to show that there is a breach of Article 3. Furthermore, the court stated that since the appellant in that case was 28 years old at the time that she sought asylum, she was not likely to be re-trafficked. This is because traffickers are targeting a much younger age group. However, the Home Office is once again directed to the fact that Aggie was actually bought by the traffickers, and the court in the case above implies that this might mean that Aggie would be in danger of being re-trafficked. And, even though there is a problem with a lack of jobs and income for the UK population, this should not be the defining consideration. Aggie has a real risk of being persecuted and degraded if she returns to her home country, because of status as a bought trafficked girl. Because of this, according to the cases that have been decided regarding Article 3, if there is a real risk of experiencing degradation, torture, or inhuman treatment, her application for asylum should be granted. Question 2b If Aggie did not contact the authorities straight away, but was only discovered five years after she had escaped the traffickers and was working illegally in a restaurant, then this would have made a difference. This is because she would not be seeking asylum. Rather, she would be only brought to the attention of the authorities because she was caught working illegally. One must seek asylum in order to be entitled to asylum (Castles, 2003). If she sought asylum upon being found illegally working, then her claims would probably be examined in a different light, considering that she got away from her traffickers, and had been living peacefully without their threats for the previous five years. The court which examines these claims might reasonably conclude that Aggie is not in danger of being retrafficked because he traffickers apparently were not overly concern about her if they had not found her for five years. And, at this time, five years in the future, Aggie would not be of the age group that is of interest to the traffickers. The court in the case cited above states that traffickers are interested in younger girls, and the fact that the appellant in that case was 28 years old was one of the definitive reasons why the court decided to deny her application for asylum. Therefore, for these reasons, there would be less basis for granting an asylum request to Aggie if she did not contact the authorities straight away, but only asked for asylum five years after being trafficked and being found out by the authorities working illegally in a restaurant. Therefore, the analysis on whether she could stay in the country would not turn on immigration law so much as it would on other concerns, such as her one year old child that she has with the British citizen named Simon. In this case, instead of looking at Article 3 for guidance on why Aggie should stay, the court can look at Article 8. Article 8, according to Thym, would govern this case, because Article 8 states that states cannot interfere with family life. With immigrants have children who are born in the host country, this essentially would be a violation of Article 8, because it would be the state interfering with family life. The courts have identified forcible expulsion as a possible violation of Article 8, and the courts need to balance the need for family unity and the maintenance of public order. The guiding case for this situation would be Rodrigues da Silva & Hoogkamer v. the Netherland EdtHR, No. 50435/99. In the Rodrigues case, the petition was an illegal immigrant who was involved in a relationship with a citizen of The Netherlands. There were children born of the relationship, and, when the relationship dissolved, the mother and the parents of the father alternated custody of the child. The Netherlands regularized her illegal stay because of the existence of the child. The court found that because the mother is caring for the baby, this was sufficient to grant the mother protection under Article 8 of the ECHR. The separation of the mother from the child would infringe upon her rights under Article 8. However, the court also cited the so-called Boutif criteria. One of the Boutif criteria is that if the family life was begun when both the mother and the father were aware that either the mother or the father was an illegal immigrant, therefore knew from the outset that expulsion would be a danger, then it is only in exceptional circumstances that expelling the non-national family member would be a violation of the Article 8. In this case, there would be two different arguments – the argument on the part of the father, and the argument on the part of the mother. The father, Simon, may rightfully argue that expelling Aggie with the child, assuming that Aggie is allowed to take the child to Albania, is infringing upon his family rights and his right to raise his family without state interference. He can argue a violation of Article 8. If, however, the state states that the child must stay in the UK, Aggie would have the argument. Her argument would be the same, that expelling her would interfere with her family life. And, she might be able to get around the Boutif criteria that states that, in cases where one of the parties is an illegal, and is aware that this is the case, that states may not accord Article 8 status on these families except in exeptional circumstances. She could claim that her she has an exceptional circumstance in that she was trafficked, and raise her Article 3 claim to strengthen her Article 8 claim. In combining these two claims, Aggie might have a better chance of staying in the country then if she did not have an Article 3 claim and only wanted to rely on her Article 8 claim. References 1. Adelman, H. (2001) “From Refugees and Forced Migration: The UNHCR and Human Security.” Available at: http://pi.library.yorku.ca/dspace/bitstream/handle/10315/6726/refugeestoforcedmigration.pdf 2. 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France (Series A, No. 241-A, Application No. 12580/87), European Court of Human Rights (1993). 24. UK Border Agency. Available at: http://www.ukba.homeoffice.gov.uk/ policyandlaw/guidance/coi/http://www.ukba.homeoffice.gov.uk/policyandlaw/guidance/coi/ 25. UK Country Guideline Determinations. Available at: http://www.judiciary.gov.uk/Resources/JCO/Documents/Tribunals/tribs-country- guideline-determinations-21122012.pdf 26. Van Dijk, P. & van Hoof, G. (1990) Theory and Practice of the European Convention on Human Rights (2 Ed.). London: Routledge. 27. Vijayanathan and Pusparajah v. France, 75/1991/327/399-400 , Council of Europe: European Court of Human Rights, 26 June 1992 28. Vilvarajah et al. v. United Kingdom, 46/1990/237/307 , Council of Europe: European Court of Human Rights, 20 March 1991. Read More