Nationality, Immigration, and Asylum Law - Case Study Example

Huang v. Secretary of for the Home Department and Kashmiri v. Secretary of for the Home Department (Nationality, Immigration and AsylumLaw) 1 Introduction Nowadays the issues regarding the nationality, immigration, and resorting the asylum has gained international importance than ever. The issue is a most happening subject matter of the recent news. Before we analyze the issues and significance of these cases we shall undermine the meaning and scope of the three terms closely related to these cases, Nationality, Immigration and asylum. Nationality Nationality is a relationship between a person and their state of origin, culture, association, affiliation and/or loyalty. The law of nationality is related to two terms jus soli and jus sanguinis i.e nationality is established at birth by a childs place of birth or bloodline. Nationality may also be acquired later in life through naturalization. Under UK law the legal sense of nationality attributed to the meaning of citizenship.The residents of a country generally possess the right of abode in the territory of the country whose legal documents they hold. This, however, is dependent upon the constitution of the named land, and there are exceptions, particularly among more economically stable nations. Immigration Immigration implies long-term permanent or forced indefinite residence, often eventual citizenship by the immigrants: tourists and short-term visitors are not considered immigrants. Asylum Asylum law is considered to be the part of international humanitarian law rather than immigration law. The two basic principles of refugee law are, firstly a refugee should not be returned to persecution and secondly that the state must provide an asylum applicant with a procedure to make their claim. Domestic legislation has an important role in asylum law; both in terms of making the international conventions part of our domestic law, and in terms of setting out national procedures and enforcement mechanisms. The asylum law can now be found in international conventions and agreements, such as the 1951 UN Refugee Convention and its 1967 Protocol, and the 1950 European Convention on Human Rights. Now shall go through the facts, scopes, major issues, and the relevancy of the conjoined cases of Huang v. Secretary of State for the Home Department and Kashmiri v. Secretary of State for the Home Department with the application of nationality, immigration and asylum Law. 2 Huang v. Secretary of State for the Home Department and Kashmiri v. Secretary of State for the Home Department This together heard appeals raised a common question on the decision-making role or function of appellate immigration authorities while deciding appeals, on Convention grounds, against refusal of leave to enter or remain, under section 65 of the Immigration and Asylum Act 1999 and Part III of Schedule 4 to that Act. Facts Mrs Huang is a Chinese citizen born on 29 March 1942. Her husband,from whom she is separated, daughter, son-in-law and two grandsons are British citizens living in this country. Mr Kashmiri is an Iranian citizen born on 4 July 1981. His parents and two siblings came to this country in 2000 and were in due course granted indefinite leave to remain as refugees, but Mr Kashmiris claim to asylum has been refused. Mrs Huang appears before the House as a respondent in an appeal by the Secretary of State and Mr Kashmiri as an appellant in an appeal against the Secretary of State. Neither of the applicants qualifies for the grant of leave to remain in this country under the Immigration Rules and administrative directions currently promulgated. Both claim that the refusal of leave to remain is unlawful because incompatible with their Convention right to respect for their family life guaranteed by sections 2, 3 and 6 of and article 8 in Schedule 1 to the Human Rights Act 1998. Issues 1. Immigration control and human rights The main issues raised from this case were the violation of human rights and also the right to live with family. This is a landmark decision concerning the protection afforded by an individuals Article 8 right to respect for private and family life in immigration cases. The judgment represents a departure from the Court of Appeals decision which said that it is only in exceptional cases that the immigration claim should be successful on the basis of asserting the applicants article 8 rights. In doing so the court reasserted the position of Strasbourg jurisprudence at the heart of such immigration appeals. In R (European Roma Rights Centre) v Immigration Officer at Prague Airport (United Nations High Commissioner for Refugees Intervening),(1) the power to admit, exclude and expel aliens was among the earliest and most widely recognized powers of the sovereign state. But as per ------------------------------------------------------------------------------------------------------------ 1. R (European Roma Rights Centre) v Immigration Officer at Prague Airport (United Nations High Commissioner for Refugees Intervening) [2004] UKHL 55, [2005] 2 AC 1, para 11, 2 1951 Geneva Convention and the 1967 Protocol, to which some 140 states are now party, states bound themselves to grant asylum to foreign nationals entitled to recognition as refugees. Subsequently, In Abdulaziz, Cabales and Balkandali v United Kingdom (2), it was held that matters of immigration control lay outside the scope of article 8 so that no complaint based on the application of immigration control could succeed under that article, either alone or in conjunction with a claim of discrimination under article 14. That argument was rejected (3 and the applicability of article 8 to immigration control has since been accepted. In the Human Rights Act 1998 Parliament not only enabled but required the Convention rights set out in Schedule 1 to the Act, including article 8, to be given effect as a matter of domestic law in this country. It did so as per section 3, by requiring courts or tribunals determining a question which had arisen in connection with a Convention right to take into account any relevant Strasbourg jurisprudence, by requiring legislation, to be read compatibly with Convention rights and, as per section 6, by declaring it unlawful for a public authority to act in a way incompatible with a Convention right. Thus immigration officers, the appellate immigration authority and the courts, as public authorities (section 6(3)), act unlawfully if they do not act compatibly with a persons Convention right under article 8.These are the issues raised and views taken by the judges in the lower court. Appeal In Edore v Secretary of State for the Home Department (4), the Court of Appeal, ruled that "in cases like the present where the essential facts are not in doubt or dispute, the adjudicators task on a human rights appeal under section 65 is to determine whether the decision under appeal ,was properly one within the decision-makers discretion, ie, was a decision which could reasonably be regarded as proportionate and as striking a fair balance between the competing interests in play. If it was, then the adjudicator cannot characterize it as a decision not in accordance with the law and so, even if he personally would have preferred the balance to have been struck differently ie, in the appellants favour, he cannot substitute his preference for the decision in fact taken." In proceedings under the Human Rights Act, the court would have to scrutinize the policy and any justification advanced for it to see whether there was sufficient ------------------------------------------------------------------------------------------------------------ 2. Abdulaziz, Cabales and Balkandali v United Kingdom ((1985) 7 EHRR 471, 493, para 57, 3. Human Rights Act 1988 (pp 494-495, paras 59-60) 4. Edore v Secretary of State for the Home Department [2003] EWCA Civ 716, [2003] 1 WLR 2979, para 20 3 justification for the discriminatory treatment. On contrary, the appellate immigration authority, deciding an appeal under section 65, is not reviewing the decision of another decision-maker. It is deciding whether or not it is unlawful to refuse leave to enter or remain, and it is doing so on the basis of up to date facts. The House of Lords then considered the way in which that such an appeal should be carried out in Article 8 cases where the applicant is denied leave to enter or remain under the Rules, but where they assert that the 8(2) justification is insufficient. They concluded that the starting point must be an examination of up to date facts. The appeal authority then carries out the "ordinary judicial function" of weighing up the considerations on each side and in particular the justification under 8(2) and general considerations such as the need for a workable, robust, predictable immigration control which discourages fraud, criminality and so on. In doing so, there is no assumption that the immigration policy itself strikes the right balance between the state and the individuals interests. Counsel for the Secretary of State put forward the case of Kay v Lambeth London Borough Council (5), in which the House of Lords considered the Article 8 right to respect for the home in situations of public authority repossessions. In that case, they considered that in most challenges to such decisions, the courts would assume that domestic law struck the proper balance required between society and the individual. Similarly, it was argued, the Immigration Rules had the "imprimatur" of democratic approval and should therefore be taken to achieve the correct balance. In deciding that the appeals are strictly based on compatibility with Article 8.The House of Lords re-affirmed Strasbourg jurisprudence as the guide to drawing the line between the applicants rights and the states need for effective immigration control. he ultimate question in Article 8 appeals is whether, where family life cannot reasonably be expected to by enjoyed elsewhere, refusal of leave to enter or remain prejudices the applicant sufficiently seriously to amount to a breach of the core values which Article 8 protects. If so, the authority must uphold the appeal and the decision was unlawful. The Court of Appeal had gone further than the House of Lords and ruled that in determining this question of proportionality, deference should be given to the Secretary of States Rules and even though those Rules might still violate article 8, it would only be in exceptional cases that the right to reside in the United Kingdom could be claimed on Article 8 reasons. In an article 8 case, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, where the family life cannot reasonably be expected to be enjoyed elsewhere, taking full account of those factors weighing in favour of refusal, prejudices the applicants family life in a sufficiently serious manner to amount to a breach of the fundamental rights protected by article 8. If it does, the refusal ------------------------------------------------------------------------------------------------------------ 5. Kay v Lambeth London Borough Council [2006] UKHL 10 4 is unlawful and should be reversed. It is not necessary for the appellate authority to additionally apply the test of whether or not the case is an exceptional one. In the instant cases, the Secretary of States appeal in Mrs Huangs case was dismissed and Mr Kashmiris appeal allowed. In the wake of this much conversed case, many news papers, journals, and publications tried ti critically evaluate this case in number of ways. Here is given the some review of two Medias. “ The Times” (6) laid down the view that the authority, as enjoined by section 2 of the 1998 Act, had to take account of the Strasbourg jurisprudence on the meaning and effect of article 8 and it was performance of the ordinary judicial task of weighing up competing considerations and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice. That was how any rational judicial decision-maker was likely to proceed. Human beings were social animals, dependent on others; their family, or extended family, was the group on which many people most heavily depended. There came a point at which, for some, prolonged and unavoidable separation from that group seriously inhibited their ability to live full and fulfilling lives. The ultimate question for the authority was whether the refusal of leave, in circumstances where the life of the family could not reasonably be enjoyed elsewhere, taking full account of all considerations in favour of the refusal, prejudiced the applicant’s family life sufficiently seriously to amount to breach of the right protected by article 8. By referring the original Tribunals had mis-directed themselves, the UK Indymedia(7) reported that he immigration appellate authority must have regard to the valuable Strasbourg jurisprudence under Article 8. The main importance of the case law is in illuminating the core value which article 8 exists to protect, namely that the family or extended family is the group upon which many people most heavily depend, socially, emotionally and financially. For some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives. Among the relevant factors are: age, health, vulnerability of the applicant; closeness of ties and family history, dependence, emotional support and cultural traditions. Conclusion After the battle of words the case Huang v. Secretary of State for the Home Department and Kashmiri v. Secretary of State for the Home Department attained a ultimate decision. But it is up to the laws of the country that it should ensure those people are not entitled to asylum i.e. those who are not entitled to benefit from the provisions of the 1951 Convention are dealt with swiftly, while genuine refugees get more help. Moreover there should be improvements to the help given to genuine refugees. ------------------------------------------------------------------------------------------------------------ 6. The Times, Role of family rights in immigration appeals, March 22, 2007 7. UK Indymedia Home Office frivolous attitude to Article 8 the right to family life 12-04-2007 Bibliography Books And authors 1. Dallal Stevens, UK Asylum Law and Policy Publisher: Sweet & Maxwell 31/12/2003 ISBN: 9780421763500 2. dca, Dept. for constitutional affairs A Guide to the Human Rights Act 1998: Third Edition Oct.2006 3. John Roe QC, David Hoffman, Human Rights In UK: An introduction to the Human Rights Act 1998, 978-0-582-47323-2, 2003 4. Nicholas Blake QC; Raza Husain, Immigration, Asylum and Human Rights Blackstone Press 4/26/2003 ISBN10: 184174140X ISBN13: 9781841741406 Statutes 5. Human Rights Act 1998, sections 2, 3 and 6 of and article 8 in Schedule 1 6. Immigration and Asylum Act 1999, section 65 Part III of Schedule 4 Journals and Publications 7. European Convention on Human Rights1950 8. House of Lords, Report on judgments in Huang v. Secretary of State for the Home Department and Kashmiri v. Secretary of State for the Home Department, Session 2006-2007 ,19th Report 9. Report of UN Refugee Convention 1951 10. The Times, Times Newspapers Ltd, Role of family rights in immigration appeals, March 22, 2007 11. UK Indymedia, Home Office frivolous attitude to Article 8 the right to family life 12-04-2007 12. UN Refugee Convention Protocol 1967 Table of cases 1. Abdulaziz, Cabales and Balkandali v United Kingdom ((1985) 7 EHRR 471, 493, para 57, 2. Edore v Secretary of State for the Home Department [2003] EWCA Civ 716, [2003] 1 WLR 2979, para 20 3. Kay v Lambeth London Borough Council [2006] UKHL 10 Read More