Immigration and Asylum Law - Research Paper Example

Immigration and Asylum Question 1 From the facts alleged by Mr. Rahman and the laws which apply to the grant of asylum in UK, Mr. Rahman’s application for asylum will most likely fail considering that the facts of the case do not clearly establish an objective likelihood to support a well-founded fear of being persecuted in Iran on account of his race, religion, political opinion or membership in a particular social group. Neither do the facts show that all the other humanitarian grounds under the European Convention on Human Rights (ECHR) will be flagrantly violated to the extent of their being nullified or denied in Iran. Applying for asylum in UK means seeking acceptance by it as a refugee (Refugee Council 2008 1), a term defined under the 1951 Convention Relating to the Status of Refugees. The Convention’s definition of the term is imperative in the present context to find out whether Mr. Rahman comes within the ambit of the term and therefore, qualified to seek asylum. Thus, the Convention originally defined the term ‘refugee’ as one who, because of the events that occurred prior to January 1, 1951, was presently outside his own country and cannot or will not return to that country to seek its protection due to a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; 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” (§ A[2], Article 1 1951 Convention Relating to the Status of Refugees). The 1951 Convention definition was subsequently expanded by the General Assembly Resolution 2198 or Protocol Relating to the Status of Refugees to include persons who find themselves in similar situation after January 1, 1951 as a response to new events in the international scene that have resulted in refugee situations. The 1951 Convention and its subsequent expansion by the 1967 Protocol remain to be the chief ground of obtaining asylum not only in the UK but in the rest of the western world (Shah 8). In applying for asylum, Mr. Rahman invoked humanitarian grounds under the provisions of the European Convention on Human Right, particularly ss. 2, 3 and 8. At present, Convention rights had all been imported and incorporated into domestic law under the Human Rights Act of 1998. Article 2 provides that a person’s right to life is sacred and cannot be deprived from him/her unless used as a defence against unlawful violence of that person or as a consequence of apprehending a person who committed, has committed or is committing an unlawful act or to prevent that person’s escape or as an incident in the suppression of a “riot or insurrection.” Article 3, on the other hand, prohibits torture and other inhuman form of punishment whilst Article 8 is a prohibition against public authority to disturb a person’s right to his/her privacy and family life unless lawfully done for the “national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others” (European Convention on Human Rights). Mr. Rahman contended that his reason for seeking asylum in UK is his fear that he will be unduly imputed with the murder of a government minister in Iran because his car was used by identified rebels in the latter’s killing. The 1951 Convention Relating to the Status of Refugees specifically qualified any such fear as one that must be “well-founded fear” of persecution. Mr. Rahman’s claim of fear does not agree with the Convention’s description of well-founded fear simply because it is not based on objective grounds but solely assumed and anticipated ground. This is not to say that subjective fear does not matter because the applicant must illustrate that his/her subjective fears are genuine but the fear must be accompanied by an objective aspect – an objective component that “requires credible and specific evidence that would support a reasonable fear of persecution” (Weissbrodt & de la Vega 75). More importantly, the persecution must be based on any one of the following grounds: race, religion, nationality, political opinion or membership in any social group (Weissbrodt & de la Vega 75). Mr. Rahman’s fear of persecution does not fall in any of the aforesaid but rather on the fear that he will be mistaken to be a member of one of the rebels who killed the Iranian government official. In the case of R v Secretary of State for the Home Department ex parte Sivakumar [2003] UKHL 14, the ground of well-founded fear for persecution was a similar issue with that of Mr. Rahman’s. In that case, the applicant, a Sri Lankan, was also a victim, along with his brother-in-law, of an imputed crime when a rebel group dispossessed them of their lorry to perpetuate a crime against the government. When the lorry was traced back to them, the applicant was forced to admit he was a Tamil Tiger rebel and was regularly subjected to various kinds of torture until he was able to bribe his way out of the detention camp. The torture began again and took place for several days several years after when an informer falsely pointed to him as a Tamil Tiger until he was set free after offering a bribe. He set out to escape and went to Colombo but because of lack of proper identification, he was once again detained, accused of being a Tamil Tiger and was subjected to torture. After bribing himself out, he fled, entered the UK and applied for asylum. The special adjudicator handling his case, ruled that although there was reason to believe his accounts of torture in his homeland, the tortures were product of mere suspicions of membership in a rebel group and complicity in a crime against the government, which were not political in nature and therefore, not within the ambit of Convention protection. On appeal to the House of Lords, the decision was rejected and the appeal granted. The HL held that the special adjudicator failed to appreciate the “cumulative effect” of all the important aspects of the case such as the fact that the applicant was a Tamil and that most Tamil who were subjected to torture were suspected of being rebels and members of the Tamil Tigers, and the most crucial element of all is that there were actual and repeated instances of torture inflicted on the applicant. The fundamental difference between the Sivakumar case and the present one is that, albeit the property of both were forcibly taken from them and used to perpetuate a crime against the government, the claims of tortures and persecution in the former were real, while they were merely anticipated or assumed in the latter. The present case therefore lacks some objective basis that could justify his application as a refugee under the 1951 Convention or under Article 3 of the Convention rights. Articles 2 and 8 of the Convention rights, also invoked by Mr. Rahman additionally, have also been employed in the past by those seeking a refugee status in UK although the ECHR does not directly give protection to refugees. It could, for example, be raised to impress upon the courts that an applicant’s family life could be placed in potential ruins if the applicant is shipped back to his country of origin and leave his family behind UK (Fenwick & Davis 2004 263-264). However, the impact of the article on asylum cases, unlike Article 3, is of limited application. This is because it has been established, and a principle acknowledged by no less than the court in Strasbourg, that a state is possessed with the inherent right to regulate and control the entry of non-nationals into its jurisdiction. Cases such as Boultif v Switzerland [2001] 33 EHRR 1179, Bensaid v United Kingdom [2001] 33 EHRR 205 and Vilvarajah v United Kingdom [1991] 14 EHRR 248 all abided by the aforesaid principle subject to treaties that were entered into by the states. The significance given to Article 3 of the ECHR in asylum cases stems from the fact that the provision of torture is akin to that of the definition of refugee under the 1951 Convention. The role of other ECHR provisions, such as Articles 8 and 2 invoked by Mr. Rahman, in asylum cases was extensively dealt with in the recent case of R v. Special Adjudicator ex parte Ullah [2004] UKHL 26. The significance of that case to the present case is that it tackled ECHR provisions, in general, other than Article 3 vis-à-vis asylum applications and refugee status. In this consolidated cases of Ullah, a Pakistani, and Do, a Vietnam citizen, both of which were practicing religions that were not the dominant religions in their countries of origin, the HL tackled the issue of whether the lower courts were right in dismissing their applications for asylum although it is clear that the their respective countries of origin clearly do not respect their rights under Article 9 of the ECHR on religious freedom on the ground that their cases fall short of the requirements under Article 3. Technically, the HL ruled that provisions of the ECHR other than Article 3 can be engaged where it is apparent that the country of origin of the applicants will breach such provisions but there must be a showing that such provisions would be flagrantly violated by such countries. The flagrant violation of such rights will determine if “the right will be completely denied or nullified in the destination country” (R v. Special Adjudicator ex parte Ullah [2004] UKHL 26). Applying the principle stated in the Ullah case to the present case, Mr. Rahman’s invocation of Article 2 can only be engaged in his asylum application if there will be a flagrant violation of his right to life in Iran to the extent that it will be completely denied or nullified there. Similarly, Article 8 on the right to his private and family life can only be engaged if it will be flagrantly violated by his return to Iran. It would seem that a deliberation of the aforesaid question will reveal negative answers. The new perspective on Iranian human rights today is that it is not as severe as it was before or even as compared against some of its neighbors. The implication of this is that Mr. Rahman’s return to Iran will not result in the complete denial or nullification of his right to life. On the other hand, the issue of Article 8 can only be engaged if his return to Iran will flagrantly deny or nullify his right to a family life. A family life between two unmarried couple, however, can be breached only if it is established that it is stable or of sufficient substance (UKBA 2009 7). Since Mr. Rahman’s relationship with Sophie was formed in less than a year, it cannot be established by him that his relationship with her it is stable or of sufficient substance. In addition, it took Mr. Rahman almost a year to apply for refugee status. The implication of this is that the government would not be able to assist him with accommodation and living expenses. Question 2 “The introduction of the point based system has provided applicants with a greater opportunity to work or study in the United Kingdom." Discuss the accuracy of the above statement with reference to recent case law and policy developments. Although, the points-based system (PBS) of immigration recently introduced into the UK seeks, on the surface, to attract more immigrants into the country, it would be inaccurate to sweepingly conclude that it potentially provides greater opportunity for applicants to work and study domestically. This is because the PBS is a highly selective system that targets and favours only certain type of immigrants: either the highly skilled workers with high earning potential or the entrepreneur with the right amount of capital tucked in their pockets. This in itself automatically precludes applicants who are highly skilled in areas which are not considered priority or not up for grabs for foreign nationals or who have not reached the salary scale prescribed in the PBS in their state of origin, those who are considered low skilled according to the PBS and are coming outside from the EU, and those who do not possess the capital prescribed by the PBS for entrepreneurs. In addition, the PBS might also disqualify student applicants without official financial support from the UK or any other government or from an international scholarship agency. Many academics are also objecting to the PBS imposition on educators to monitor foreign students to see if the latter are following the rule on classroom studies and ‘on-the-job’ training ratio, citing that the government are forcing them to act as immigration officers and endangering the supposed-to-be fiduciary relationship between teachers and students. According to them, this aspect of the law might turn away potential foreign students from UK universities and schools (Kelly 2008). The UK has, in most of its history, always been opened to immigration. Its immigration system history is not only a reflection of its historic past as a supranational state but it has made use of immigration, from time to time, to relieve the UK economy from the doldrums of slow and sluggish growth. In the past, it allowed free movement of people into its borders from states that had once occupied colonial status with it, even with the passage of laws that control and regulate immigration beginning 1905 with the Aliens Act, the Aliens Restriction Act of 1914 and the Aliens Orders in 1920 and 1953. UK immigration in the past was characteristically loose and especially accommodating to immigrants from other countries that fought for and with it in the two world wars (Hardill 68). In the mid-20th century, it was UK which initiated the entry of more immigrants into the country because of labour shortages allowing Polish, Italian, West Indies work-seekers into its borders. The influx of immigration, however, bore racial violence and prejudice, forcing the government to tighten immigration policies through the passage of Commonwealth Immigration Act of 1962, a ‘racist’ law which set quotas on immigration Fig.1 Growth in Real GDP per Head from New Commonwealth countries but did not on immigration applicants from old English countries and Ireland, the Commonwealth Immigrants Act of 1968 and the Immigration Act of 1971, which created the offence of illegal entry. By that time, immigration was highly restricted but low fertility levels and a diminishing and aging population had once again resorted to encouraging immigration in the 1990s (Hardill 2001 67-68). Today, there is consensus again among immigration officials that immigrants could help jack up the country’s economy as proven by the GDP per capita growth comparative statistics in the period covering 1997 to 2007 (Fig. 1), which the government has attributed to the immigration boom in that period. This is precisely the reason why the government has introduced the PBS in UK immigration: to put in place an immigration law that would selectively allow entry into the country of immigrants that are not only highly qualified but are also potentially high earners or have their own capital hoping that they could raise the country’s GDP per capita growth to higher grounds (Secretary of State for Home Department 2008 5-6). To a certain extent, there is some truth to the premise that the PBS of the present immigration law has the potential of allowing more opportunities for applicants to work and study in UK because of the simplification of the immigration processes and protocol. Previous to the introduction of the present PBS, UK immigration was regulated by the Immigration Rules which extends to immigration activities like visits, study, work, family reunion and asylum, and deportation. The Rules, however, have undergone so many amendments and changes through the years that affected its seamlessness and clarity, allowing room for special considerations outside and on top of the more than 80 routes by which non-EEA nationals may enter the country prescribed by the Rules. The bottom line is that the previous immigration system is, to say the least, fuzzy and highly susceptible to subjectivity on the part of immigration officers abroad, in ports and at the home office. Decisions are often inconsistent and sometimes incorrect. There is also wider room for inefficiency as illustrated in the two-stage process in getting work permits where an employer may successfully obtain work permit for a particular immigrant worker but the latter may himself/herself be denied entry clearance. This is because the two stages are underpinned by two separate criteria. In effect, the complex system of the old immigration rules presented a hindrance to the opportunities of immigration applicants to work and study locally because its complexity may present a daunting front that discouraged potential applicants or it turns away applicants because of the inconsistency and unfairness of the system (Home Office 2006 7). References: Convention for the Protection of Human Rights and Fundamental Freedoms as Amended by Protocol No. 11. Hardill, I. & Graham, D. & Kofman, E. (2001). Human Geography of the UK: An Introduction Routledge. Home Office. (March 2006). A Points-Bases System: Making Migration Work for Britain http://webcache.googleusercontent.com/search?q=cache%3AP-mZI5Wg8lcJ%3Awww.homeoffice.gov.uk%2Fdocuments%2Fcommand-points-based-migration%3Fview%3DBinary+points-based+system+in+UK+immigration&hl=en&gl=ph. Human Rights Act of 1998. Kelly, C. (12 December 2008). Points Based Tier 4 for Students to be Phased In Next Year Immigration Matters http://www.immigrationmatters.co.uk/points-based-tier-4-for-students-to-be-phased-in-next-year.html. Shah, P. (2000). Refugees, Race and the Legal Concept of Asylum in Britain Routledge Cavendish. R v Secretary of State for the Home Department ex parte Sivakumar [2003] UKHL 14. Refugee Council. Applying for Asylum. October 2008. http://languages.refugeecouncil.org.uk/pdf/English/Applying_for_asylum-English.pdf. R v. Special Adjudicator ex parte Ullah [2004] UKHL 26. Secretary of State for Home Department (June 2008). The Economic Impact of Immigration London: The Stationary Office. http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeconaf/82/82.pdf. UKBA. (November 2009). Article 8 of the European Convention on Human Rights. http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/asylumpolicyinstructions/apis/article8echr?view=BinaryFenwick, H. & Davis, H. (2004). Civil Liberties and Human Rights, 3rd Edition, Routledge Cavendish. UNCHR. 1951 United Nations Convention Relating to the Status of Refugees. Read More