UK Immigration and Asylum Law - Coursework Example

Running Head: UK-IMMIGRATION AND ASYLUM LAW UK-Immigration and Asylum law Name Institution Lecturer UK-Immigration and Asylum law Introduction The definition of the status of a refugee as Harvey defines it is limited if applied in the current context as it recognizes a refugee as a person who as a result of fear has moved out of his country and is unwilling or not in a position to seek protection from his government or one who is outside his habitual residence, does not have a nationality and is unwilling or fears to return to the country. This person has well founded fears of being persecuted as a result of political opinion, discrimination for being in a given group, religion or from a given nationality. Such a person can move to another country if the government of his country does not provide the required protection1. The human rights include protection from discrimination, freedom from diction and arrest and freedom from torture2. There are two types of fear experienced by a person who is seeking for asylum. Subjective fear is the belief that what the applicant of asylum states is likely to happen incase he returns back to the home country. In the case of Gash and in Assuming v SSHD case, this kind of fear is defined as the belief that there is a likelihood of what the appellant states happening incase he goes back to his country3. Justification as to whether discretionary leave, humanitarian protection or asylum should be granted is guided by OGN (Operational guidance notes). The Case of Mr. Rahman Mr. Rahman cannot be sent back to his mother country where persecution is awaiting him. This is in accordance to Article 33(1) in the convection of 1951 that sought to define the status of a refugee. This article indicates that a person seeking to enjoy asylum cannot be returned or expelled from the country in which he is seeking protection4. In the case of Mr. Rahman, he fears being mistreated due to a political opinion that he was among the gang that was fighting against the government. According to the case of Gomez, this qualifies as a political opinion since the gang is aimed at taking power from the current government. According to Lord Bingham, the government of UK is obligated not to return Mr. Rahman to his country where he will face torture5. This is also in accordance to the United Nation Convection Against and Other Cruel, Inhuman and Degrading Treatment or punishment. Mr. Rahman’s grounds for believing that he will face torture or mistreatment are substantial since his case involves the government. Removing Mr. Rahman from UK to Iran will definitely violate his right to respect of family and private life and will deprive him of the union he has with his spouse Sophie and the expected child. According to the refugee law, Mr. Rahman cannot be deported back to Iran for persecution and has a right to apply for asylum. When seeking for asylum, Mr. Rahman should be accompanied by his spouse Sophie who is now pregnant. This will give her the opportunity to indicate her fears on relocation to Iran which is a strict Muslim country (Thomas. More. Chambers, 2007). During this time, he will be given an IS96 which is a letter indicating that he has been temporarily allowed to stay in the UK as his case is being sorted6. Mr. Rahman has taken one year to apply for asylum in the UK after his arrival in the country. The implication of this is that he might not be granted governmental assistance with necessities such as shelter and food. Mr. Rahman can however be removed from UK if he commits a crime in UK even though he has established family ties with Sophie. In the first steps of the application of Asylum, the appellant will be granted a case owner who will be responsible for informing him on his stay in UK as an asylum as well as follow his case to the end. Since he has a right to legal representation, I would advise him to seek for it. Mr. Rahman has to attend an interview where he should exhaust all information regarding his application for asylum. I would therefore advise him to carry any recorded or written evidence on the incidence of the killing of the minister e.g. a newspaper implicating him as a one of the suspects in the murder case. However, he should be careful to avoid giving contradictory information (Brady, 2007). During the interview, I would advise Mr. Rahman to request for the interview to be tape recorded so that he would listen to it later and determine if he forgot to give any information. In case this is so, he should inform his legal representative who would in turn forward the information within a span of not more than five days. Keeping in touch with the authority is very important and reporting for every interview arranged. Failure to do this or to return any forms given may result to denial of asylum. The status is granted after screening and the asylum interview is done. If not, Mr. Rahman can appeal for it. According to Article 2 of human rights, Mr. Rahman is entitled to protection from the fate that is before him. However, there is need for the law to search and find prove that he is not a threat to other people and the claim is true. Mr. Rahman is entitle security and liberty like any other citizen in the country7. The UK government cannot easily accept his argument and give him asylum on request as the genuineness of his case requires a thorough search. The crime for which Mr. Rahman is accused of is a serious crime and the government must take precaution to protect her citizens. Mr. Rahman cannot be judged on the status of his citizenship or the association of people from his country with criminal offences as provided in Article (8) (Brady, 2007). According to this article, his private life has to be respected. However, this can be obliged for purpose of ensuring National security. The law cannot protect and respect the right of one individual at the cost of other citizens. Human rights are universal and not only limited to those people living in UK8. This means that though not a citizen of the country, Mr. Rahman should enjoy these rights. His threat may not be torture but detention for quite along time without trial and he is also protected from this by the human rights and hence can seek assistance in UK courts9. Mr. Rahman can argue his stay in the country on the basis of family cohesion thus seeking for a means to be close to his wife and child. According to the immigration rule, the welfare of the child is given the priority and such a need would be considered as a primary one. In this case, Mr. |Rahman can seek the asylum on the basis of maintaining family ties with his child who is to be born by Sophie her spouse. The delay in application of the asylum becomes second to meeting the need of the child who requires both parents in bringing him up (Hathaway, 2007). Though Mr. Rahman can move back to his country with the wife and the child, the spouse is not willing to stay in Iran at any cost. This acts in favour of Mr. Rahman who fears that his life will be in danger on return to his country. According to Article (8), Mr. Rahman has a right to establish relationships with other people and his relationship with Sophie is thus allowed. The fact that he has not acquired asylum does not prevent him from relating with others. As for Sophie, she has a right to protection of private life. She has been in the UK since she was born and has developed social ties in the country and therefore has a right to remain there. The delay in applying for the asylum will act in the benefit of Mr. Rahman since the assessment of the existent of family is assessed during the hearing as clarified in UKAIT 000400 which is in accordance to article eight (UKAIT0041, 2009). For his claims to be considered, he must prove that his deportation would interfere with his right to privacy and family life. He must show that the interference with his family will have grave consequences on the basis that Sophie is not a Muslim yet Iran is a strict Muslim country. This is in accordance to paragraph 21 of Storey SIJ. Sophie will experience cultural difficulties since she is a British woman who is used to a liberalized western culture (UKAIT004, 2009). Adopting a lifestyle in a strict Islamic country would thus prove difficult to her. As a matter of fact, Sophie has no intentions of moving to Iran. This also means that she is not willing to adopt the Islamic culture. Acquiring asylum is the only means for Mr. Rahman’s to legalize his stay in the country. If he argues that there is no possibility of him first going back to Iran and coming back to seek for clearance of entry due to the fact that his life is at stake, Mr. Rahman is likely to win the case and be granted asylum. The family will not be in a position to enjoy life while abroad if Mr. Rahman leaves them. The wife not only requires her spouse during the pregnancy but also requires him to provide for the family after giving birth. In R (Razgar) v SSHD(2004)UKHL 2710r the Court of Appeal11 earlier examined the consequences of return to a third country. The question before the Court in each one was whether, if removed, there was a substantial risk that the claimants would suffer a breach of their rights under Article 3 and/or 8. (Thomas. More. Chambers, 2007). Mr. Rahman can argue his case to be exceptional since if asylum is not granted, his life is threatened, a factor that will breach his fundamental right as provided by article (8). Though the convection does not coffer any right for families or individual to choose where they want to stay, it can grant Rahman a right to stay in the UK to support his family. The argument in this case would be Iran is not a conducive place for Mr. Rahman to work and support his family due to the pending case in Court. Respect for human beings being dependant on each other especially where there are family ties overrides other ideas. The child to be born by Sophie is helpless and has to depend on the emotional and financial support from his/her parents. Mr. Rahman can thus argue his case on the basis of his family’s dependence on him and the possibility of acquiring a job in UK. Point Based System In order to demonstrate the extent to which the UK Government manages migration I am going to be critically evaluating employer sponsorship. The number of people moving to UK has been increasing on a daily basis since the year 1996. This has resulted to immigration being considered as a public issue. To manage immigration in a more effective way, the government has had to redefine and introduce new policies. This resulted to the point based system which took effect in 2008. Immigration in UK is needed as UK enjoys great fiscal benefits, increases economic growth and this also provides labour force in areas where UK citizens are not willing to work12. Employers have been engaged in immigration management by the introduced system which has five tiers. Tier 1 It covers workers that are highly skilled and was incorporated on June 29th 2008. It was split into four sub tiers which have their respective requirements. Tier 1(General) It applies to potential migrants who are highly skilled and looking for a job or self employment in the UK. Applicants of this tier score points for attributes such as age, prospective or previous salary and qualifications. Applicants should have more than 75 points on primary attributes, 10 points for proper command of the English language and 10 points for having sufficient funds to maintain them in the UK. TIER1(Post-study work) This covers students who successfully completed post graduate degree in a UK institution; these students can then apply for permission to work in UK without a work permit for two years (Home Office, 2006). Investor (Tier 1) This sub category is for immigrants who wish to invest more than £1000000 in UK. This clause in the system has attracted so many investors to the UK since they want to take advantage of the opportunity provided by the point based system. TIER2 This part of the system covers skilled workers with job offers from UK based employers. It was put into operation in November 2008 and replaced work permit provisions for employment. Tier 2 requires the UK employer to be registered as a licensed sponsor with UK border agency sponsor (Home Office, 2006). It has 4 main categories these are: general minister of, intra company transfer (ICT) religion, sports and creative workers, it also has 3 sub categories which are: established staff, Graduate trainee and skills transfer. A sponsor license has replaced the working permit for the non-EU workers in UK. This requires that the employer who has workers who are no-EU migrants to apply for the license from the UKBA (UK Border Agency). The online management system allows sponsors who have been accepted to issue each of their migrant workers with a sponsorship certificate hence enabling them to seek for entry clearance. Since the employers are involved incase the migrant worker commits a crime, they ensure proper documentation of all record of the workers including valid contacts in UK and country of origin, visa status and passport copies. Any misconduct by the migrant employee is reported to the UKBA.UKBA gives unplanned visits to the premises of the sponsor with the aim of rating their compliance with these procedures. Incase the sponsor fails to comply with the procedures; his/her license may be revoked and will automatically be rated “B”. There are penalties for those sponsors who allow migrant workers to work in UK illegally. The fine for having illegal workers is £10,000 and above for every illegal worker and can lead to imprisonment of those who willingly employ illegal workers13. To avoid penalties that are detrimental to the business, the employer should keep the records for the migrant’s specified documents14. Evaluation The administrative burden and severe penalties for non compliance of sponsors can mean that even the most comprehensive Human Resource departments are struggling with the mounting duties it needs to comply with. With no proper guidance or test cases to guide them, sponsors are likely to fail as the UKBA guidance notes are up to 80 pages long. Reading this is a costly process for most organizations. The guidance also does not provide for every eventuality. Complying with the new system is expensive costing up to 17 million Subsequently, it is not surprising that 88% of employers have not applied for a sponsorship license and over half of human resource departments surveyed by Pricewaterhousecoopers were still concerned about their internal procedures, with 60% thinking they had insufficient information to provide the UKBA with. The UKBA expected 20,000 applications for sponsorship licenses, and so far the number as been as little as 3,300. By increasing the burden onto employers the Government has inadvertently increased the risk of discrimination on grounds of race, colour and nationality. Many employers are inadvertently or deliberately discriminating against sections of the workforce as a risk-avoidance strategy which is contrary to the Race Relations Act 1976. This is highlighted in the recent EAT case Osborne Clarke Services v Purohit UKEAT/0305/0815 as an Indian national, who was a member of a racial group identified as a non-EEA national and was entitled to bring a claim for discrimination in accordance with the authority of Orphanos v Queen Mary College [1985] 1 AC 761 16. The Employment Tribunal’s decision in this case was upheld; that a failure to consider applications from non-EEA nationals on the basis of them obtaining a work permit (would be sponsorship today) amounted to indirect discrimination on the grounds of nationality under section 11(1) (b) of the Race Relations Act. In their defence Osborne Clarke argued that section 49 of the UKBA guidance requires employers to satisfy the resident labour market test and prove why the job could not be undertaken by an EEA national, even if extra training was provided for. Ms Weir on behalf of OC attacked the Tribunal’s decision. In general she submitted that the issue for the Tribunal was whether OC had established on the balance of probabilities that the policy was justifiable irrespective of the Respondent’s colour, race, nationality or ethnic or national origins, under section 1(1)(b) Race Relations Act17. In determining this issue the Tribunal were required to balance the discriminatory effects of the policy on the Respondent against the reasonable needs of OC and to assess whether OC had objectively demonstrated the policy was reasonably necessary, as in Hampson v Department of Education [1989] ICR 17918. She submitted that in formulating this policy OC was not required to: “have regard to some hypothetical or utopian situation which does not correspond with the reality, even though the reality may well be regrettable”19. Sponsorship not only raises issues of discrimination but also encourages debate on its practicality, and efficiency. The whole sponsorship management system is managed online, as part of the Home Office’s aim to have a simple streamlined system. However, there is no manual backup in case of an IT fault, and if this does happens the responsibility falls on the IT providers who are subjected to hefty fines. This can be seen as another way in which the Government is shifting responsibility and accountability on to someone else, as opposed to developing a contingency option. The UKBA has recognized that the online system is far from its necessary standard and has ensured a more advanced system for late 2009. Legislation Race Relations Act 1976 Immigration, Asylum and Nationality Act 2006, ss15-25 Civil Penalties for Employers Code of Practice 2008 s19 Cases Osborne Clarke Services v Purohit UKEAT/0305/08 Bibliography: David Rhys Jones; Sally Verity Smith.( July 2004).Medical Evidence in Asylum and Human Rights Appeals, International Journal of Refugee Law 16(381). http://www.liberty -human-rights.org.uk/press/press-releases-2004/ullah-asylum.shtml Devine,L.(2007) ‘Is the New Highly Skilled Migrant Programme ‘’Fit for Purpose”? If no, the Government’s Proposed Points Based Immigration System is Fundamentally Flawed’. IANL ,pp.90-108. Devine,L. (6 April 2006). ‘In Practice: Immigration’ .LS Gaz, 25. Clayton,G.(2008). Immigration and Asylum Law’ .(3rd ed). Oxford: University Press. Clayton,G. (2004). Textbook on Immigration and Asylum Law. Oxford University press. Clarke,S.(2009). ‘Immigration Control and Work Permits For Foreign Entertainers and Workers in Film and Television - New UK Points Based System’ (2009) Ent. L.R. 20(3),pp. 103-105. Laura Devine,L.(28 February 2008). ‘Legal Update: Immigration’. LS Gaz, pp.23. Nixon,J.2006).(2006). ‘What's the point?’ 156 NLJ 577. Mc Crudden and Chambers.(1994). Individual Rights and British Law., Clarendon Press. Whitty. N, T Murphy and S. Livingstone .(2001). Civil Liberties Law: The Human Rights Act ERA.Butterworths. Brady, H. (2007). EU migration policy: an A-Z. London: Centre for European reform briefing p12. Hathaway, J. (2007). International refugee law: the Michigan guidelines on the internal protection alternative. Michigan: UNHCR p23. Home Office, (2006). A point-based system: making migration work for Britain. Norwich: Crown copyright p45. Immigration, asylum and nationality act, (2006). C. 13 http://www.opsi.gov.uk/acts/acts2006/pdf/ukpga_20060013_en.pdf Thomas. More. Chambers, (22nd May, 2007). Delay and Article 8 issues: an update. London: 7 Lincoln’s Inn Fields p6. UKAIT0041, Somali (19 May, 2009). Asylum and immigration tribunal: the immigrants act. London: Procession house p8. http://www.liberty-human-rights.org.uk/press/press-releases-2004/ullah- asylum.shtml Internet Sources www.publications.parliament.uk/pa/Id200708/Idselect/Ideconaf/82/82.pdf www.bia.homeoffice.gov.uk/workingintheUK www.bia.homeoffice.gov.uk/employers www.ukba.homeoffice.gov.uk/sitecontent/documents/employersandsponsors/preventingillegalworking www.ukba.homeoffice.gov.uk/aboutus/workingwithus/indbodies/mac/ www.lexisnexis.com www.bia.homeoffice.gov.uk/employers/preventingillegalworking/penaltiesemployers www.westlaw.com www.hrmagazine.co.uk/news/887312/Employment-Appeal-Tribunal-ruling-employers-liable-racial-discrimination/ http://www.hrmagazine.co.uk/news/857423/Penalty-time-immigration-law-shake-up/ www.statutelaw.gov.uk http://www.bailii.org/uk/cases/UKEAT/2009/0305_08_0902.html http://www.amnesty.org.uk/news_details.asp?NewsID=16114 http://www.amnesty.org/en/library/info/EUR58/016/2005 http://travel.state.gov/travel/cis_pa_tw/cis/cis_1057.html http://www.hrw.org/english/docs/2007/11/23/uzbeki17406.htm http://www.lawtel.com http://www.opsi.gov.uk/acts/acts2002 http://goliath.ecnext.com/coms2/gi_0199-4423920/Welfare-of-Uzbekistan-asylum-seekers.html http://www.publications.parliament.uk/pa/ld199899/ldjudgmt/jd990325/islam01.htm Read More