Immigration Law and Humanitarian Protection of Sexual Orientation - Research Paper Example

 Introduction In order to be able to advise Mr Tarapshi with regard to his claim for asylum it is necessary to examine the law in relation to asylum seekers. This will involve consideration of the Convention Relating to the Status of Refugees 1951 which was amended by the 1967 Protocol, as well as examining the changes wrought by the EC Refugee Qualification Directive 2004/83. Through examining legislation and case law it should then be possible to advise on the success of an application for asylum. Convention relating to the Status of Refugees The above Convention was drafted in 1951 aimed at addressing the problem with regard to the legal status of refugees. Although the Convention was adopted in 1951, it did not come fully into force until 1954 when the Convention was fully ratified. The purpose of the Convention is to set minimum standards for the treatment of refugees, and to ensure that each application is considered on its merits. One of the fundamental guarantees provided by the Convention is that a refugee will not be forced, against their will, to return to their country of origin if they are afraid of being persecuted if they return. Section 1A of the Convention defines a refugee as any person who (1) has been considered a refugee under the arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organisation (2) As a result of events occurring before 1 January 1951 and owing to wellfounded 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 any 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. The Convention itself does not define behaviour that might be regarded as persecution, although Article 31 and Article 33 of the convention does recognise that a threat to the life of freedom of the applicant should be considered as grounds for not returning the refugee to their country of origin1. 1967 Protocol The above Protocol purportedly amends the 1951 Convention. This is in fact a fallacy. The aim of the Protocol was to persuade States that did not wish to become a party to the treaty established by the 1951 Convention, to apply the provisions of the treaty without having to become a party to it. Under the Protocol States can opt to ratify the Convention or merely accede to the terms of the Protocol by ensuring that Articles 2 to 34 of the Convention are applied to persons seeking refuge in that country. Certain countries such as the USA have still only acceded to the requirement up to August 2008, whilst some other countries such as Turkey have not acceded to the Protocol nor become party to the Convention. Council Directive 2004/83 According to the wording of the Directive the main purpose is To ensure Member States apply common criteria for the identification of persons genuinely in need of international protection, and on the other hand, to ensure that a minimum level of benefits is available for these persons in all Member States2. From the middle of 2004 the UNHCR published Guidelines on International Protection, which specifically mentioned the issue of gender- related persecution. Many of these guidelines had already been incorporated into the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status 1979. Article 4 of the Directive explains the responsibility of each Member State to assess the facts and circumstances of each applicant seeking asylum. Under this section Member States are instructed to assess each application on an individual basis, taking into account (d) the applicant’s activities since leaving the country of origin were engaged in for the sole or main purpose of creating necessary conditions for applying for international protections, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; and (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship. Paragraph (4) of Article 4 goes on to state that The fact that an applicant has already been subject to persecution or serious harm or direct threats of such persecution or such harm, is a serious indication of the applicant’s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. Under Article 5 paragraph (3) an applicant can be refused refugee status if the Member State can prove that the risk of persecution is based on circumstances which the applicant has created by his own decision since leaving the country of origin3. To try to assist Member States in defining persecution Article 9 of the Directive discusses acts that could be regarded as persecution4, whilst Article 10 discusses reasons why the applicant might be subjected to persecution. Although Art 9 does not specifically mention harassment, such actions by others might ‘constitute a serious violation of basic human rights,’ which would mean that returning the individual into that environment would be a breach of the Directive. Paragraph 2 (a) highlights persecution as acts of physical or mental violence, including acts of sexual violence. It is possible that the harassment suffered by the applicant in the above situation could be regarded as mental violence. Failing that the applicant might be able to rely on subsection (f) which relates specifically to acts of a gender-specific nature, although in general terms, this section has typically been used in relation to violence based on the specific gender of the victim rather then their sexual orientation5. Article 10 of the Directive lists reasons why a person might be persecuted and includes those who might suffer persecution as a direct result of their sexual orientation6. Within the UK, this Directive has been transposed into the Refugee or Person in need of International Protection (Qualification) Regulations 2006. Refusal of refugee status can occur under paragraph 339 of the Immigration Rules if it is possible to relocate the applicant to a different part of their country of origin, where they are unlikely to be persecuted. Immigration Rules Traditionally immigration has been governed by the Immigration Act 1971. The purpose of the 1971 Act was to address the legal status of aliens and Commonwealth citizens in relation to deportation and immigration rights. The Act was specifically designed to protect the rights of those that were already in the UK, whilst at the same time implementing rules aimed at limiting the entry of future applicants. This was achieved by drawing a distinction between patrials, who are not subjected to immigration controls, and non-patrials who are. In 1994 the House of Commons report HC 395 had the effect of altering the Immigration Rules. One of the intended purposes of these amendments was to assist those claiming asylum on the grounds of persecution. This was in part implemented into Rule 334 which guarantees an applicant will be granted asylum if he matches the definition contained within the 1951 Convention. Under Rule 334 an applicant is entitled to be granted asylum if such refusal would result in him being required to go (whether immediately or after the time limited by any existing leave to enter or remain) in breach of the Geneva Convention, to a country in which his life or freedom would be threatened on account of his race, religion, nationality, political opinion or membership of a particular social group. Membership of a particular social group Having considered the various ways regulations that might assist an applicant in making a claim for asylum based on persecution, it is necessary to examine case law in this area in order to determine the chances of success. In 2006 the case of J v Secretary of State for the Home Department7 the court was asked to consider whether to allow the applicant to appeal against the refusal of his claim for asylum. The applicant, who was homosexual, had applied for asylum on the basis that he would be persecuted for being a member of a particular social group8, if he were made to return to his home country. At the initial hearing the tribunal accepted that practising homosexuality in Iran could lead to him being prosecuted9, however, they felt that this was only likely if the applicant was not discreet about his sexuality in Iran. The appeal was allowed in this case, on the basis that the tribunal had been wrong to refuse his application by stating that he could avoid persecution by modifying his behaviour by not openly displaying his sexual orientation10. In reaching their decision as to whether homosexuals should be defined as a particular social group, the appeal tribunal made reference to the case of Shah v Islam [1999]11 in which Lord Steyn is quoted as saying In some countries homosexuals are subjected to severe punishments including the death sentence. In Re GJ [1998] 1 NLR 387 the New Zealand Refugee Status Authority faced this question… the Refugee Status Authority concluded…that depending on the evidence homosexuals are capable of constituting a particular social group within the meaning of Article 1A (2). From this the court concluded that practising homosexuals in Iran would constitute ‘a particular social group’. Attempts have been made to determine whether homosexuality should be regarded as a ‘particular social group’ in several other cases. This was analysed in the case of Golchin v SSHD12 the Immigration Appeal Tribunal came to the conclusion that homosexuals do not form a social group. In reaching their decision the tribunal stated ‘we think that there is a close approximation of social group to minority group as the term is used in the Convention. Both terms, we think, require characteristics of an historical and cultural nature which homosexuals as a class cannot claim.’ As a result of this determination the tribunal concluded that homosexuals could not be regarded as a ‘particular social group’. UN Handbook on Procedures and Criteria for Determining Refugee Status 1979 To assist in defining particular social groups the UNCHR Handbook has attempted to offer ways in which such groups might be defined13. Paragraph 77 of the Handbook states ‘a particular social group normally comprises of persons of similar background, habits or social status.’ In Otchere & the UNHCR v SSHD14 the UNCHR stated ‘in the opinion of the UNCHR, therefore, based on our interpretation of the refugee definition and on existing state practice, the lesbians and gay men who can show that they have a well-founded fear of persecution due to their sexual orientation fall within the refugee definition found in the 1951 Convention and 1967 Protocol Relating to the Status of Refugees’. One of the leading cases that has helped to structure the definition of ‘particular social groups’, was the case of Fornah v SSHD [2005]15. Although this case was not concerned with the status of homosexuals, it highlighted the failings in the defining og ‘particular social groups’. In this case there were 2 appellants, the first who was claiming protection due to her membership of her husband’s family, and the second appellant was a 15 year old girl claiming refugee status on the grounds that she would be subjected to female genital mutilation if she was made to return to her home country. In both cases the Secretary of State agreed that they were entitled to protection under Art 3 of the ECHR but refused their application for asylum. Although the appellant was given permission to appeal the appeal was dismissed on the grounds that membership of a ‘particular social group’ could not be solely defined by referring to the persecution of its members. The tribunal stated that female genital mutilation was a traditional element of the culture of Sierra Leonean society, and that therefore subjecting the girl to this could not be regarded as persecution. Right of asylum In determining whether there is a right to asylum it is necessary to consider cases such as R v SSHD ex p Deniz Mersin [2000]16 in which the IAT held that the applicant had a right to be granted refugee status, until there was such a change in his status that no longer prevented him from returning to his country of origin. By contrast in T v SSHD [1996]17 the court held that the Convention did not place an obligation on the decision maker to weigh the threat of persecution against the gravity of the crime, when deciding whether to refuse an application for refugee status. Burden of proof In Manhoran [1998]18, which was cited in Karankaran v Secretary of State for the Home Department [2000] 3 All ER 449, the IAT stated ‘we believe that the burden of proof remains on the appellant to show that a return to Colombo is unreasonable in the sense that it is unduly harsh. Secondly, the standard of proof in our view is the ordinary civil standard of a balance of probabilities. The lower standard developed in the Tribunal case of Kaja [1995] Imm AR 1 of a reasonable likelihood relates to the fear of persecution and whether that fear is well-founded19. It is accepted by all that the appellant in this case will not be persecuted in Colombo.’ This demonstrates they way in which the courts have struggled to define when an applicant should be granted asylum, based on interpreting whether the feared persecution is well-founded. Conclusion From all of the above it would seem feasible to conclude that Mr Tarapshi might be able to succeed in his claim for asylum if he can show that his sexual orientation makes him a member of a ‘particular social group’. He would have to demonstrate that is fear of persecution was well- founded. Given that he was the victim of harassment due to his homosexuality, and the fact that the police refused to assist when this harassment was reported, there is a strong possibility that asylum would be granted. Under regulation 3 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006, protection can either be granted if the applicant is a refugee or a person eligible for humanitarian protection. Under the 2006 regulation a person eligible for humanitarian protection" has been defined as a person who is eligible for a grant of humanitarian protection under the immigration rules20. Such protection can result in a grant of limited leave for up to 5 years and can be granted to anyone who might face the death penalty, be unlawfully killed, be tortured or subjected to inhuman or degrading treatment, or suffer punishment through deliberate ill treatment if they were to be returned to their home country21. This means that Mr Tarapshi might qualify for humanitarian protection if is application for asylum is rejected, although it is unlikely that the harassment complained of would be sufficient to warrant such protection. Bibliography Clayton, G, Textbook on Immigration and Asylum Law, 3rd Ed, 2008, Oxford University Press Evans, J M, Immigration Act 1971, The Modern Law Review, Vol. 35, No. 5 (Sep., 1972), pp. 508-524 Guidelines on International Protection: Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees HCR/GIP/02/01 7 May 2002 Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees HCR/IP/4/Eng/REV.1 Reedited, Geneva, January 1992, UNHCR 1979 Harvey, C, 'The Right to Seek Asylum in the EU' (2004) 1 EHRLR 17 Storey, H, 'Implications of Incorporation of the ECHR in the Immigration and Asylum Context: Some Challenges for Judicial Decision-Making' (1998) 4 EHRLR 452 Peers, S, 'Justice and Home Affairs: Decision-Making after Amsterdam' (2000) 25 European Law Review 183 http://www.bia.homeoffice.gov.uk/sitecontent/documents/policyandlaw/asylumpolicyinstructions/apis/genderissueintheasylum.pdf?view=Binary Read More