The UK Asylum Law and Immigration Rules for Migrant Workers - Assignment Example

Explain, with Reference to Decided Cases, Statutes and the Immigration Rules, the Following Concepts in Asylum Law: (A) "Well Founded Fear of Persecution" and (B) "Internal Flight Concept" (A) "Well Founded Fear of Persecution" As a signatory to international treaties that relate to the status of refugees, UK immigration and asylum law is subject to the provisions of the international treaties it has acceded to. (Clayton 2006) The right to refugee status or the right to claim asylum in the UK is based inter alia on provisions from the Convention Relating to the Status of Refugees 1951, the European Convention on Human Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms 1950. (Article 18) According to Article 1A(2) of the Convention Relating to the Status of Refugees (Refugee Convention), a refugee is one who: ". 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 former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it." In the House of Lords decision in Islam (A.P.) v. Secretary of State for the Home Department and Regina v. Immigration Appeal Tribunal and Another Ex Parte Shah (A.P.) [1999] 2 W.L.R. 1015 (Conjoined Appeals), Lord Steyn set out a four point criteria that one claiming refugee or asylum status must meet. He opined that under Article 1A(2) of the Refugee Convention, an asylum seeker must be able to prove that, firstly he/she has a well founded fear of persecution; secondly, that the reason for persecution is as a result of race, religion, nationality, membership of a particular social group, or political opinion; thirdly, that he/she is not within the country of his/her nationality; and fourthly, that he/she is either unable or unwilling to lay claim to protection from his/her country of nationality due to the fear of persecution. Consequently, having a well founded fear of persecution alone would not suffice for any claim to asylum if the other three ingredients set out by Lord Steyn in the above stated case are missing. Another decided case that buttresses the argument set out in Lord Steyn opinion is Januzi v. Secretary of State for the Home Department and Others [2006] UKHL 5. In Januzi Lord Bingham held that the use of the provision "owing to a well-founded fear of being persecuted " in Article 1A(2) of the Refugee Convention constitutes a causative condition upon which all the other conditions for claiming a refugee status hinge on. Thus a person claiming refugee status can claim to be persecuted because of his/her race, religion, nationality, membership of a particular social group, or political opinion, but if this fear is not a well-founded one, the claim to refugee status would be denied. In the Islam and Regina cases (cited above) for instance, two Pakistani women - Islam and Shah - had left their native country of Pakistan to the UK and were seeking asylum due to fear of persecution because of being part of a particular social group. Both of them had been physically abused by their husbands and had been accused of infidelity, a crime that carried the penalty of being flogged publicly or being stoned to death under Shariah Law. The two women had also received threats from neighbours after they fled from their husbands' homes and sort refuge with family members. In establishing whether the Islam and Shah had a claim to asylum due to a well founded fear of persecution, Lord Steyn quoted from an Amnesty International Report on the human rights abuses of women in Pakistan. The report stated inter alia that: ". . . several Pakistani laws explicitly discriminate against women. In some cases they allow only the evidence of men to be heard, not of women. In particular, the Evidence Act and the Zina Ordinance, one of four Hudood Ordinances promulgated in 1979, have eroded women's rights and denied them equal protection by the law. Women are also disadvantaged generally in the criminal justice system because of their position in society. () Women are particularly liable to be punished under the Zina Ordinance which deals with extra-marital sexual intercourse Offences under this law attract different punishments according to the evidence on which the conviction is based. In cases where the most severe (hadd) punishments may be imposed, the evidence of women is not admissible." (Amnesty International, 1995, pp.4-5) In ascertaining the veracity of the claim to a refugee status by Islam and Shah due to a claim of well-founded fear of being persecuted, Lord Steyn held that the findings of Amnesty International on the state of women in Pakistan were "findings of fact and unchallenged evidence" that was relevant to the specific situation of the two Pakistani Women. Consequently, a case of well-founded fear of being persecuted could be made. However, as has been stated earlier, a case of well-founded fear of persecution alone does not suffice for a claim to refugee status, as other conditions (discussed above) must be based on the causative condition of well-founded fear of persecution. In the Islam and Regina cases, their argument for having a well-founded fear of persecution was based on their status as women in Pakistan. Hence they claimed a fear of persecution because of their social group. This argument was rejected by the Court of Appeal who had argued that a social group must be cohesive and homogeneous and must have interdependence or cooperation. The House of Lords however rejected the restrictive reasoning of the Court of Appeal and held that a social group could be one having shared characteristics like sex, colour, kinship ties, or shared past experiences. It must be noted however that there are derogations that make it impossible for certain categories of persons to seek refugee status under the provisions of the Refugee Convention. Article 1E for instance provides that a person is ineligible for asylum if he is: " recognised by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of nationality of that country." Under Article 1F(a), a person who has committed a crime against peace, a war crime, or a crime against humanity is not illegible to claim refugee status under the provisions of the refugee convention. Also, Article 1F(b) provides that a person who has committed a serious non-political crime outside the country where refuge has been sought is not illegible to claim refugee status if the crime was committed before being admitted into the country of refuge. Furthermore, being guilty of acts that are contrary to the purposes and principles of the United Nations disallows a person from claiming refugee status under the provisions of Article 1F(c) of the Refugee Convention. In the UK, under Section 54(1)(a) and (b), "acts of committing, preparing or instigating terrorism (whether or not the acts amount to an actual or inchoate offence), and acts of encouraging or inducing others to commit, prepare or instigate terrorism (whether or not the acts amount to an actual or inchoate offence)" are interpreted as falling under Article 1F(c) of the Refugee Convention. As such claimants of asylum who fall under this category are not illegible for refugee status. (B) "Internal Flight Concept" The internal flight concept, also known as 'internal protection', 'relocation', 'flight alternative', or 'internal relocation' relates to the principle of refusing refugee status to an asylum seeker on the grounds that he/she could reasonably have relocated to a another part of his/her country of nationality where there would not be a well-founded fear of persecution. However, the fact that an asylum seeker may have been able to seek refuge in another part of his/her home country where a fear of persecution does not arise in itself does dot give rise to a refusal of refugee status. According to Section 91 of the UNHCR Handbook (1979) (quoted in Lewis, 2007 p.12): "The fear of being persecuted need not always extend to the whole of the refugee's country of nationality. Thus in ethnic clashes or in cases of grave disturbances involving civil war conditions, persecution of a specific ethnic or national group may occur in only one part of the country. In such situations, a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so." However, a finding that one seeking refugee status in another country (say the UK) could have relocated to another part of his/her home country where there would not be a fear of persecution, undermines a claim to refugee status based on a well-founded fear of persecution. In other words, since it would be reasonable for the asylum seeker to avoid persecution by relocating to another part of his/her home country where the threat or fear of persecution does not arise, his/her fear of persecution is not well-founded, and as such would not be defensible under the provisions of the Refugee Convention. In R (on the application of Robinson -v- Secretary of State for the Home Department [1997] 4 All ER 210, the Court of Appeal established some basic principles in dealing with the issue of internal flight or internal relocation. The Court in the above case held that, firstly, a consideration of internal relocation was central to the subject of whether one who seeks asylum should be treated as a refugee. Secondly, it is within the purview of an Adjudicator or the Immigration Appeals Tribunal's jurisdiction to decide the issue of internal relocation when arriving at a decision on appeal. Thirdly, a decision-maker must consider all the circumstances of a specific case before arriving at a conclusion on internal relocation. The central issue for consideration in such circumstances is to consider whether a decision in favour of internal relocation would be unduly harsh on the asylum seeker. In the House of Lords Decision in Januzi v. Secretary of State for the Home Department and Others [2006] UKHL 5 the issue of internal relocation was extensively considered four conjoined appeals. Januzi was an Albanian who lived in the Serb dominated part of Kosovo. In the UK, he sort refugee status for fear of persecution in his home country. His application was denied because the Secretary of State for the Home Department concluded that he could relocate to an Albanian dominated region of Kosovo where he would not suffer a fear of persecution. Hamid, Gaafar and Mohammed on the other hand were black Sudanese from Darfur in Sudan who had fled persecution from marauding Arab bands who had the support and patronage of the Sudanese government. They applied for refugee status in the UK and their application and subsequent appeals were turned down because it was held they could have relocated to Khartoum where they would not have a fear of persecution. Based on this argument, it was concluded that they did not have a well-founded fear of persecution and as such could not claim refugee status under the Refugee Convention which is duly recognised by the immigration rules in the UK. The issue for consideration by the House of Lords in Januzi was "whether a person can reasonably be expected to relocate when the level of civil, political and socio-economic human rights in the place of relocation is poor." (Januzi v. Secretary of State for the Home Department and Others [2006] UKHL 5, para.8) Various authorities and human rights Conventions were analysed in deciding the Januzi case. Lord Bingham for instance quoted the UNHCR Guidelines of July 2003 (para 7 I(b)): which states that: "National authorities are presumed to act throughout the country. If they are the feared persecutors, there is a presumption in principle that an internal flight or relocation alternative is not available." (para.21) It was however held that there can be no absolute rule in determining cases of internal relocation and that the " decision-maker, taking account of all relevant circumstances pertaining to the claimant and his country of origin, must decide whether it is reasonable to expect the claimant to relocate or whether it would be unduly harsh to expect him to do so (per Lord Bingham, para.21) Based on the above considerations, Januzi's appeal failed while the appeals of Hamid, Gaafar and Mohammed were successful. QUESTION 2 (a.) Werner Anderson is a Danish National who is presently living in Copenhagen with his wife and two children aged 7 and 12. He intends to come to the United Kingdom in search of work. He has been offered work at the 'Danish' Restaurant in Aston. If he accepts this position, Werner must work for 20 hours each week, and in return he will receive board and lodgings and 150 a week in wages. Advise Werner whether the British Immigration authorities will permit him to come to the United Kingdom to work at the 'Danish' Restaurant. By virtue of the fact that Werner Anderson is a Danish national, he is also an EU citizen. Article 2 of the Treaty on European Union (TEU) introduces the right of citizenship of the EU for all nationals of Member States of the EU. (Clayton, 2004) This right is established in Article 17(1) EC. As an EU citizen, Werner Anderson enjoys the right of free movement within the EU, the right to seek employment in any part of the EU and right not to be discriminated against based on their nationality. (Clayton, 2004) The right to free movement in the EU is enshrined in Article 2 TEU and Articles 3(1)(c), 14(2), and 18(1) EC, while the right to seek employment in any part of the EU is provided for in Article 39 EC. To make the enjoyment of these rights practicable, there are also provisions against discrimination against citizens of the EU based on their nationality and this is provided for under Articles 12 and 39 EC. (Craig and De Brca, 2003; Barnard, 2004; Clayton, 2004) Article 12 EC states in relevant parts that: "Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited." Also Council Directive 68/360 abolishes restrictions on entry clearance for EU nationals. As such production of an identity card or a passport at the point of entry in the UK (i.e. without any requirements for a formal application for leave to enter or remain in the UK) will suffice for an EU national. (Clayton, 2004) This position is supported by Case C-321/87 Commission v Belgium [1989] ECR 997. In this case the ECJ held that nothing forbids Belgian law from allowing checks of permits to enter Belgian territory at points of entry. However, once an European Community national produces an identity document or a passport and confirmation of employment, he/she must be granted resident permit in accordance with the provisions of Article 4 of Directive 68/360. Consequently, Werner Anderson cannot be prevented from coming into the UK to take up the job that he has been offered by the Danish restaurant in Aston. (b.) If Werner is permitted to work in the United Kingdom, will he be permitted to bring his Russian wife Olga and his two children Werner, also seeks your advice as to whether his mother and father in law who are currently residing in Moscow, may also join his family in the United Kingdom. Werner's EU nationality automatically extends to his wife (if she has taken Danish Citizenship) and children and as such his Russian wife and his two children would be treated in the same way as Werner. Even is the absence of Danish citizenship for Werner's wife, since Werner is coming into the UK as a worker, he has a right of establishment which entitles him to bring his wife and children with him to live in the UK. (Clayton, 2006) Werner's wife has a derivative right to take residence in the UK based on her husband's right to work in the UK. As was confirmed in Case 267/83 Diatta v Land Berlin [1985] ECR 567, a spouse who is a third country national (as is Werner's Russian wife) has a right to stay and work in the country where his/her EU national wife or husbands is working. This derivative right ceases to exist only when there is a divorce and where no children were born to the couple while they were married. (Clayton, 2004) With regards to Werner's mother and father in law who are residing in Russia, again Werner's status as an EU national with a right of establishment in the UK entitles him to bring into the UK the parents of his spouse even though they are not EU nationals. Werner's mother and father in law would however have to apply for entry clearance in order to join Werner and his family in the UK. They would need a family residence permit to come to the UK. Consequently their rights of entry into the UK are more restrictive. References Amnesty International Report (1995) 'Women in Pakistan Disadvantaged and Denied Their Rights', http://asiapacific.amnesty.org/library/pdf/ASA330231995ENGLISH/$File/ASA3302395.pdf (accessed on 30/07/08) Barnard, C. (2004). The Substantive Law of the EU, (1st ed.) Oxford: Oxford University Press Clayton, G. (2004). Textbook on Immigration and Asylum Law, Oxford: Oxford University Press Craig, P. and De Brca, G. (2003) EU Law Text, Cases, and Materials, (2nd ed.) New York: Oxford University Press, Lewis, J. (2007). Immigration and Asylum Law, Bench Book, Court of Appeal Civil Division, http://www.hmcourts-service.gov.uk/cms/files/Bench_Book_SEPTEMBER_2007.pdf (accessed on 30/07/08) Read More