Immigration Law Case Analysis - Report Example

Immigration Law Introduction Sheila was arrested in Dover for disorderly conduct. She was in a drunken Additionally, it was discovered that she had an illegal immigrant status. Sheila is seeking asylum in the U.K though she already has a Ukrainian passport. She had been working in Macedonia for 5 years before entering the European Union illegally through Greece. Sheila’s husband is undergoing medical treatment in the European Union. She also has a brother who lives in Italy who is seeking asylum. Her brother helped her enter Western Europe through traffickers. Sheila prefers to live in Italy, and she can speak fluent Italian. Immigration authorities based in the U.K found some Euros in Sheila’s bag. They also found a used ferry tickets that indicated that she had traveled from Calais to Dover in the name of another person. Sheila also had a French visa that expired 5 months ago on her Ukrainian passport. Sheila seeks advice on the legal framework under the Dublin Regulation in order to appeal against her removal from the United Kingdom. The appeal should also be based on the Human Right Act 1998. Research Diary The research was carried out based on qualitative research methods. A qualitative research method is a strategic method of inquiry that seeks to collect in-depth information in order to facilitate in-depth understanding of a topic. This is a method that is used to investigate the decision making methods used by humans. Conventionally, qualitative research approach is used to produce information on a case study. Materials for this study were located using different research approaches. These include pragmatic qualitative studies, which involve the use of eclectic approaches. Information will also be collected using foundational research, which analyzes a topic and examines the foundations of the topic. Foundational research can be used to develop knowledge or change knowledge base according to emerging information or situations. Legal Framework for Appealing Against Removal from the U.K Freedom from arbitrary imprisonment and arrest is one of the fundamental human rights in the U.K. This freedom is legally enforceable based on the Human Rights Act 1998. However, an increasing number of asylum seekers are facing imprisonment. People like Sheila have been arrested and detained waiting deportation. Immigration officials detain these people by exercising their powers, which are conferred in the Acts of Parliament 1971-2002.1 These officers also act based on elaborate non-statutory manuals. Sheila and most of the asylum seekers do not know whether their detention is legal or illegal. As a result, they are faced with challenges in mounting an effective appeal or challenge before a court. It is important to give legal advice to Sheila because she does not know the U.K legislation. She also does not know the practices and operational guidelines of immigration officers. Legal advice is sought in this case because of the importance of prompt access to specialist legal advice.2 Additionally, Sheila faces language challenges, inadequate access to communication means and the non-availability of standard information. During the process of the appeal, it is essential to ensure that Sheila is not moved from her detention center. The first thing to understand is that the U.K government has made it difficult for genuine asylum seekers to enter the U.K based on Visa regimes or juxtaposed controls. This has led to a decline in the number of asylum seekers and applicants. Additionally, the Asylum Act and Nationality Immigration Act have curtailed the rights of appeal.3 These acts have cut off government based support for people who fail to apply for asylum at their points of entry. In this case, Sheila did not apply for asylum at her point of entry. She was arrested in the U.K as an illegal immigrant. Therefore, she should not expect government support during the appeal process. These measures disadvantage the asylum applicant. Statutory Framework for Bail and Detention People entering the U.K can only be detained based on the statutory powers to detain. The U.K’s Immigration Act 1971 has the most statutory powers to detain. The Asylum, Immigration and Nationality Act 2002 extend these powers.4 This Act gives the State Secretary in the Home Office the powers to detain people. In case an individual is detained in the absence of statutory powers to detain, the detention is considered unlawful. Sheila’s arrest was lawful because the immigration officers acted on behalf of the State Immigration Officer. Legal Framework under the Dublin Regulation and Human Rights Act 1998 The Dublin regulation is an integration of previous Dublin Conventions. The regulations outline the importance of establishing workable and clear methods for the responsibilities of member states during the examination of an asylum applicant. Article 5 presents criteria, which are hierarchically applied with Article 6, 7, and 8 to give priority to the protection of unaccompanied minors and family reunification. Article 9 of the regulations determines allocation in the state, which allowed the permanence or entry of the asylum-seeker. Article 10 of the regulations establishes the responsibilities of the country through which the applicant entered or stayed illegally. According to Article 10, the responsible Member State is the state in which Sheila initiated her first application for asylum. In this case, the responsible state is the U.K.5 In addition to these binding criteria, Article 3 gives member states full discretion with regards to filing substantial assessments of the claim. The state is not responsible based on other criteria. Article 15 gives member states the power to intervene on humanitarian grounds. When receiving applications for asylum, states under the Dublin Regulations are required to determine whether it is their responsibility to deal with the case.6 In case it is not their responsibility to deal with the case, the state is required to request other member states to take charge of the application. The reception of the application should be followed by substantial assessment of the asylum-seeker and application.7 Therefore, the U.K immigration officers should conduct substantial assessments of Sheila because they are responsible for this case. Procedures and Qualification Directives The Qualification and Procedures Directives apply after a substantial assessment has been done of the asylum-seeker, application and claim. This assessment should be performed by national authorities. The Procedures Directive provides minimum harmonization to the process of withdrawing or granting refugee status. This gives the member state an opportunity to maintain favorable positions. Chapter two of the Dublin Regulations provides guarantees to the asylum seeker.8 The member state is required to respect these guarantees. It is vital to note that they are not considered as rights but guarantees. They include the guarantee for effective admission to the procedure, requirement for examination, right to remain within the member state during the examination process, right to personal interviews, and right to legal representation and legal assistance. Though the guarantees are listed in the regulations, they allow member states to derogate asylum-seekers prerogatives.9 As a result, member states prefer safe third countries. In this case, they send asylum seekers to another country without conducting substantial assessment to the claims. This may harm the effective protection of the asylum seeker. The Qualification Directive plays a crucial role in assigning responsibilities to member states of the Dublin Regulations. The directive emphasizes on the responsibilities of the member states during the examination of asylum applications.10 The directive requires the member state handling the application to provide international protection to the asylum-seeker by giving the asylum-seeker subsidiary protection, or refugee status. Therefore, when an applicant fulfills the requirements outlined in chapter two and three, the applicant has a right to asylum, which is granted by the Community law.11 This cannot be challenged, or made ineffective by national procedural laws. This also includes the express duty to avoid risks of refoulement. Reception Conditions Directive Equally relevant to the legal advice is the reception conditions directive. This directive seeks to ensure that the asylum-seeker receives a dignified standard of living while in the country that is processing the asylum-application. The asylum-seeker should be given dignified standards of life as long as they remain in this country.12 This directive addresses the requirement to provide documentation, information and education to asylum-seekers. With regards to housing, the directive gives discretion to the country. This means that the country can impose detention because of public order or legal reasons.13 However, in case the country provides housing, the standards must comply with the conditions of the reception under Article 14. Right to Asylum under the Dublin Regulation The right to asylum can be given to asylum-seekers who have fulfilled the criteria outlined in the European Laws or other international treaties. This right includes international protection by being granted refugee status. It can also be granted through subsidiary protection. The ECHR and Geneva Conventions do not grant asylum. However, the Community Law or Dublin Regulation defends the right to asylum.14 The regulations constitute the entitlement to asylum to people who need protection. This can only be given when an individual fulfills the obligations outlined in the Qualification Directive. Asylum entails secondary rights, which are given in accordance to the directive. The Charter of Fundamental Rights, established in Article 18, is important during the interpretation and comprehension of the content of the Community Law with regards to the right to asylum. The article states that the right to asylum is guaranteed with respect to the rules of the Geneva Convention and the protocols of 28th July 1951 and 31st January 1967 respectively. These are related to the status of refugee, and they must be in accordance to the Treaties establishing the European Union.15 Though the Charter is not applicable in cases where individuals seek fundamental rights, it is instrumental in the interpretation of Community laws and legislation. The Charter is useful during the determination of the scope, content and meaning of asylum. Therefore, the Qualification Directive needs to be considered. The directive is important because it pursues the objectives of developing fundamental rights to the asylum-seeker. It follows the values of Community law. Scope of Protection In most of the cases, asylum-seekers face challenges in the determination of the scope of the referred principles and their implications. It is vital for anybody who applies for asylum to read the requirements for the right to asylum. Additionally, the asylum-seeker must fulfill all the requirements in the Qualification Directive. The member state must make substantial assessments into the case and grant asylum accordingly. The Dublin Regulation prohibits member states from expelling people to third countries or transferring them to other member state. Article 18 does not impose an obligation to grant asylum.16 However, it emphasizes on the guarantee to asylum according to the European Community treaty and the Geneva Convention. The Qualification Directives must be applied in harmony with the Procedures Directives. The two directives are applicable to the asylum applicant. The Procedures Directive allows member states to use the safe third country option or derogation. The use of this option is allowed as a practice of international law.17 Though the U.K can transfer the applicant to a third country, the transfer should not affect the asylum application or the rights to asylum. The member state that is sending the asylum seeker must ensure that rights of the asylum seeker are protected. Article 6 of the Procedures Directive state that the responsible member state has an obligation to ensure that asylum-seekers have the opportunity to apply, or appeal a decision. This requirement applies to illegal immigrants who have arrived from countries delegated as third countries. Article 16 of this instrument also imposes obligations for responsible member countries to complete their examinations for the application for asylum. This denotes the need to grant access to this procedure. The United Kingdom has a responsibility of protecting the rights of the asylum seeker based on the Human Rights Act 1998.18 The act prevents public officers or public authority from acting in a manner that will contravene Convention rights. The act also covers the functions of courts. The interpretation of this act requires the domestic court to take into account the jurisprudence of the European Court of Human Rights (ECHR).19 In case a public officer has violated the claimant’s Convention rights, the act requires the court to empower the applicant with its powers. This means that an asylum seeker can appeal against the Home Office. Conclusion The success of Sheila’s appeal is dependent on the legal advice that she receives. Therefore it is vital to consider the Human Rights Act 1998 and the Dublin Regulation because they have legal implications in immigration law. An asylum-seeker has the right under the Human Rights Act 1998 to appeal against any legal decision against their asylum application. In order for asylum seekers to be considered for asylum, they must meet all the requirements stipulated in the Procedures and Qualification Directives. 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