The Immigration Law: Asylum and Immigration - Assignment Example

Immigration Law Name Institution Course Date Q 1: 1997 Words In this case, the question to consider is in line with assessing whether Rosemary’s fear of persecution by Boko Haram is well founded and what might happen if she returns to Nigeria. Her claim would be concluded with considerations of whether she can live in Nigeria without attracting any adverse consequences. UK regards the 1951 UN Convention related to Status of Refugees. Article 1A (2) defines the well founded fear of persecution due to reasons related to race, nationality, religion, political opinion and membership to a particular social group. Refugee Qualification Directive 2004 sets the minimum standards for qualification of refugees. In addition, Refugee Qualification Regulations 2006 refer to Article 1(A) of Geneva Convention for a refugee. It further establishes that, a refugee or eligibility for humanitarian protection, serious harm or persecution can be committed by a State, a party controlling a State of substantial part of the State or non-state actor. The reasons for persecution in accordance to RQR 2006 that lead to decision of whether someone is a refugee include the concept of race considering colour, membership to an ethnic group or descent; concept of religion like holding theistic or atheistic beliefs, participation or abstention from worship in public or private, individually or with other community members. Social group constitute common characteristics and political opinion including a thought or belief held by a person. Objective fear of persecution is conceptualized where characteristics like racial, national, religious, and political and social that are possessed by a person are what the actor of persecution attribute to a person. In Gomez v Secretary of State for the Home Department [2000] case, it can be seen that, the Convention affords protection for the right to openly express a political opinion and a right to live as a homosexual. What the Convention emphasizes on is the characteristics or statuses that an individual cannot change as they are closely linked to a person identity or expression of the person’s fundamental rights. In addition, a person who is obliged to conceal his/her political beliefs to avoid persecution of suffering has a strong case for protection under the Convention1. The general report about Boko Haram most serious attacks reveals nothing related to a specific person. Their assaults including killings, bombings throughout the country are directed to the government and ethnic, regional and religious affiliation. Though the violence that is extended by Boko Haram is well established, their targets are non-Muslim communities in Northern Nigeria and government-affiliated organizations and personnel2. Internal relocation as recognized in para 91 of Qualification Directive can also be used since Rosemary have ‘internal flight alternative’ as in Nigeria; there are other areas that are safe from Boko Haram’s assaults. There are countries that pose a great threat to its citizens due to internal wrangles like Afghan Syria and Iraq. The procedure was applied in determining Mekie Elgafaji, Noor Elgafaji v Staatssecretaris van Justitie [2009] case. When the risk posed by internal conflict is serious, it lessens the need for an applicant to show individual risk. Not all general conflicts can put individuals in a country of conflict at a risk hence the matter of degree is considered3. Rosemary claim is intriguing since her wish to seek for refugee status does not fall under the clear definition of refugee based on persecution. Her movement to Heathorow blur the distinction between a refugee who claims threats in the context of her belief and particularly religious belief or a way of life that is fundamental to her identity causing her to avoid persecution. Her case does not perfectly fit the category of a person who seek asylum on objective reasons of fear of persecution but based on subject reasoning. The likelihood to succeed under the Convention is minimal as her claim does not show any distinction between threats and humanitarian concern. Joshua The case looks at Joshua claim that he was tortured by members of Boko Haram when he was arrested and fears to return back to Nigeria. RQR 2006 establishes five reasons that establish persecution. The concept of nationality includes membership of a group with cultural, linguistic or ethnic identity, a common geographical or political origin or relation to a population of any other State. A social group concept involves members that share innate characteristic, beliefs or fundamental identity and possibility of being forced to renounce such identity. The concept of race considering colour, membership to an ethnic group or descent; concept of religion like holding theistic or atheistic beliefs, participation or abstention from worship in public or private, individually or with other community members. Social group constitute common characteristics and political opinion including a thought or belief held by a person. Claims are ruled out following the five concept criteria. Article 1 D, 1 E and 1 F of Geneva Convention offers a scope to exclude a person as a refugee. Where a person has committed a serious non-political crime even with allegedly political objective or if a person have committed a crime outside the country where refuge is sought prior to admission, the person cannot be categorized as a refugee. Art 33 (2) excludes such a person from protection. Article 33 also sets the obligations that should be ensured to protect the community of the host country. The process is established by screening whether the person has committed an offense in UK and sentenced to a two years imprisonment or outside UK where the Secretary of State’s certifies similar offences and imprisonment duration4. S77 NIAA 2002 has set strict provisions that prescribe what particular serious crime constitutes. The Secretary of State clarified that Art 33.2 of Refugee Convention applied to EN in line with domestic legislation5. According to Para 334 HC 395 (iv) the Home Office must satisfy that the person seeking asylum has never been convicted of a particular serious crime and that such person does not constitute a danger to UK community. Looking closely to the judicial precedent of EN (Serbia) v Secretary of State for the Home Department & Anor [2009] insisted that Art 14.4 of Qualification Directive need to be interpreted according to Art 22.2 of Refugee Convention. The provision applied requires that an individual to have been convicted of serious crime by final judgment and constitute a danger to a community. EN, a Serbian national was convicted with three counts of burglary and a count of possession of offensive weapon. The procedure followed to qualify as a refugee is based on Art 1A (2) of UN Convention 1951. Someone qualifies owing well-founded fear of persecution for reasons connected to race, religion, political opinion, nationality or membership of a social group. Immigration Rules para 327 defines an asylum as someone who have requested for UK to consider them as refugee. There is also a criteria followed to establish a right to asylum. Persecution requires a level of state involvement like in R v. Secretary of State for Home Department ex parte Jeyakumaran [1994] imm AR 45. An objective or subjective test establishes a genuine or ‘well-founded fear’ as in Mustafar Gilgham v. IAT [1995]6. The burden and standard of proof in establishing ‘well-founded fear’ is left to an applicant as Secretary of State looks at facts and substantial risk of persecution just as in R v. Secretary of State for the Home Department, ex p Sivakumaran [1988]7. Credibility must be established as anxious asylum seeker may have inconsistent reasons with omissions. Joshua claims that he is fleeing persecution since he is opposed to the country’s government and that there is fear of warrant of arrest after return has no reasonable grounds. The regarded danger of his security has more to do with his past crimes since he has been convicted by judgement of particular crimes. Violation of s 2 and s 8 for illegal immigrant and working in Leeds is tantamount to illegal entry and use of a false passport just like in Vxbridge Magistrates' Court, exparte Aditni [1999] where the asylum seeker was declared unlawful for using false passports. This will lead to instant deportation as Joshua claim for protection does not have any objective grounds. Shehu and Musa The grant of protection under Qualification Directive gives prominence to issue that threat the security of a person due to relationship between the person and the government, threatening groups or a high risky situation in the country. These are referred to as the main five conventions that set objective grounds to offer protection for asylum seekers. However, application for protection on humanitarian grounds is recognized in 339c HC. While it is possible for Qualification Directive to provide protection for certain people who do not fit exactly into RC 1951 definition of refugee, prominence is given where realm fear of harm are established in case the person is returned to their country. Subsidiary protection applies to persons as defined by Art 2(e) of Qualification Directive. Such serious harms including execution or death, torture, degraded treatment, punishment or threat of internal armed conflict are however not clear on this case. In Javad Nasseri v Secretary of State for the Home Department [2007] EWHC 1548 (Admin) showed the need for application of consistent approach to declaration of incompatibility. It is the responsibility of the government to take steps and adopt an open and transparent policy. The claim for settlement was overturned on appeal due to incompatibility8. Their claim that they have fled Northern Nigeria because there is a danger of starvation can be considered under humanitarian protection. An application on humanitarian protection requires an applicant to show that she/he does not have sufficient protection from the danger and that no reasonable internal relocation is available similar to what a refugee has to do. That means that their intentions to settle will not succeed. Adebayo and the family The Convention for protection realizes the right of a person to express a religious belief. Any threat that faces a person on such a fundamental belief begets protection if on return the person would face adverse consequences were they to hold on the similar beliefs. RC 1951 considers the fear of persecution only in one area in a country of origin and the areas that are safe from harm. In consideration of internal flight alternative, para 91 of UNHCR acknowledges that in such situations, if under all circumstances it would not be reasonable to expect a person to seek refuge to another area within the country, a person cannot be excluded from attaining a refugee status. Physical dangers, travelling problems, hardship, and lack of basic civil, socioeconomic and political rights have been considered as some important aspects necessitating consideration. In Karanakaran (Nalliah) v Secretary of State for the Home Department [2000] case, Nalliah a Sri Lanka born seeking refuge in England was dismissed9. It is arguable that Boko Haram assaults in Northern Nigeria have largely targeted non-Muslim and particularly those who claims to be Christians. Adebayo’s reluctant to remain in the region claim may not match with Asylum Policy Instructions and RC 1951 para 339C HC 395 that stipulate that the grounds that necessitate granting of protection need to show that a person faces serious risk. It is established that a move to Lagos would offer the family safety from Boko Haram and thus there is an available internal relocation alternative. Q 2: 1920 words Uzoma Right to live in UK Part 8 of Immigration Act 1998 deals with family members particularly parents, grandparents or dependent relatives with a person present or who have settled in UK. There are requirements that such a person have to meet before seeking an indefinite leave for entering and remaining in UK. The person must be related to a person who have settled in UK either; a divorced, single, widowed or separated parent or grandparent aged 65 and over years. A parent or grandparent under 65 years living outside UK can be considered but only when living in most exceptional compassionate circumstance. Other issues have to be considered including whether the person is financially wholly dependent on a relative present in UK and the person can be accommodated adequately with dependants in an accommodation a sponsor occupies or owns exclusively and will be maintained adequately without recourse to the public funds. The person must establish that they do not have other close relatives in the country for financial support and seeks leave to enter UK in this capacity. Uzoma has two close relatives from who he can claim to be sponsors including his son Igwe and his grandson Chichi who is a British citizen by birth. That qualifies the criteria for a close relative who lives in UK and he can claim sponsorship under any of them depending on consideration of criterion for accommodation and financial support. Immigration Act 1948 allowed those countries under Commonwealth to establish their distinct legislation for its citizens. That eliminated the previous common citizenship status shared by British colonies. Immigration Act 1962 introduced a concept of patriality where only British subjects with strong links to British have the right to live or work in UK. That excluded all Asians and African states formerly ruled by Britain like Nigeria that gained independence in October 1960. How Igwe became a British Citizen There are a number of ways in which a person can apply for British citizenship and there are requirements to be met and one can apply in several ways depending on their current citizenship. One way to attain British citizenship is through naturalization where a person over 18 years has lived in UK for five years or three years if married to a partner, a British citizen. The person can apply for naturalisation also if a husband, civil partner or wife is in designated service outside UK. This is a less complex way as the provisions are set out. So in either case; the three or five years residency, a person have to be in UK three or five years prior to application in Home Office, not to be absent for 9 and 15 months during the years respectively. The person must not have breached any immigration laws in those years of residency10. The second way to become a British citizen is through registration that often applies to children under the age of 18 years who are not naturalised. S 3 of British Nationality Act 1981 provides directions for acquisition by registration for minors11. This particularly happen to those children born when their parents lived in UK with a limited leave but subsequently obtained an indefinite leave. Therefore, it is most likely that Igwe became a British citizen by naturalisation through a five year residency after arriving in UK in 1977. That applies in accordance to s 4 of British Nationality Act 1981 of acquisition by registration. S 6(1) and (2) sets the requirements for acquisition by naturalisation. A person of full age and capacity is granted a certificate of naturalisation by Secretary of State12. The Right to Visit As a visitor, everyone can apply to come for short visit but those who come from EU countries can visit often. Anyone who lives abroad with close family in UK can be allowed to come to UK. The issue of whether a person is working, young or retired does not matter. Coming to UK as a family visitor is constituted under immigration category as a general visitor. However, the person must show that they are visiting a spouse, father, son or other closely related relatives. In addition, the person a person is visiting must be a British citizen and settled in UK. The person must show that during the visit they do not intend to extend the period through successive visits, take a paid or unpaid employment or sell goods and services to the public. The person must show that they are over 18 years, do not intend to settle in UK for more than 6 months, intend to leave UK at the end of the visit, have enough money for accommodation without help from public funds or working. Else, the dependants who support must have enough resources to support and offer accommodate the relatives or a friend13. The person must confirm that they can meet the cost for return. Under these requirements, Uzoma can have a right to abide in UK and visit his son and grandson. Uzoma will get the right to visit since he is past the age of working and will in no way participate in work. What he has to confirm before he get to UK is whether the relatives are in a position to support his needs for accommodation, food and medical expenses and particularly so because he is old and he might be in need of health attention. Eze Adams Students can apply for Tier 4 outside UK. The student is needed to provide a self assessment form and show an evidence of having maintenance fees. There are other documents needed and particularly the education documents. For the students to assess their programs there are qualifications listed and the students must submit an evidence of such in application. Students are expected to submit the result papers and a letter of confirmation from the schools but on top of that, English Language Test is required to be included in the application. The evidence of English language is confirmed by proving that the person passed the ELT. Original certificates like the IELTS or TOEFL are submitted as a proof that the student is able to use specific ELT in line with Tier 4 application. Eze Adams entry clearance should simply follow the general criteria as she is confirmed to have met the requirements of application and proves so with the necessary documents. Following para 320 of hc 395, there are grounds where entry clearance the UK is refused. If a person arriving in UK fails to furnish the Immigration Officer with required information for deciding whether the person can enter. However, in this case, the grounds which the Immigration Officer claims are not specific in accordance to paragraph 32014. There are a number of concerns that the family should ensure since there are consequences that follow where the Immigration Officer is not satisfied due to unavailability of enough information to clear entry. That involves personal and institutional consequences. Apart from the Immigration Officer cancelling Eze’s visa, the college where Eze has applied might see its licence revoked if Eze is confirmed not to be a genuine students. One of the most obvious things that the Immigration Officer has to confirm is Eze’s capacity to hear and speak in English since that is what he will require in his studies. As much as Eze has the necessary documents, it might intrigue the Immigration Officer whether the documents are real. Chichi’s Intervention Following the Immigration Officer dissatisfaction about Eze’s ability to speak English, Chichi can convince the senior immigration officer since there is a certificate that confirms that Eze has reached the level needed as Common European Framework in reference for language learning. Eze English is good but he was not able to understand the officer. At this point, Chichi need to argue that the fact that the Immigration officer uses a strong Scots dialect might have been a reason Eze would not understand him. A dialect can be a barrier to a person to whom English is a Second Language. Chichi can intervene and convince the officer to allow Eze to proceed on such grounds. The college can also intervene as it has already established a contract with Eze through their offer which was accepted. In other words, since there are no critical reasons that would necessitate the officer to cancel Eze’s visa as established in para 320, 321 and 322 of hc 395, the exertion that he cannot hear or speak English can be easily confirmed by assigning him another immigration officer with another dialect that matches Eze’s and therefore proof that he understands English. Eze work as a carer A student that applies for a Tier 4 outside UK need to show an evidence of enough money to pay for the tuition fees and evidence of maintenance funds amounting to £1000 per month. There is guidance on who can work during studies. Only students studying at LSE on a full time degree program and having student immigration permission are allowed to work as they take their studies. The condition to work is marked on the passport. The consequences of getting wrong on issues to do withy work are extremely serious. If a student works without a permission to work, they can only do so for those employments that are not covered by the rules like freelance. However, engaging in employment is committing a criminal offense and if one is found, they can be taken to court, sentenced to six months imprisonment, fined up to £5,000 or be liable to be removed or deported. A person would also face an automatic refusal of application or return to UK from 1 to 10 years. If Eze is found to breach the rules such consequences can follow and all these should be considered since Eze has applied to private college and such mode of study does not allow him to work15. Chichi and Eze marriage Though cousins’ marriage is not culturally allowed in UK, they realize that it is possible in other cultures and a genuine relationship is allowed in UK. Clear guidance help in clearance after the migration officer focus on some factual matters. The couple must provide evidence of long-term relationship. The couples are co-habiting or share financial responsibilities. Since those factors can be established for Chichi and Eze, they need to apply a visa under the category of partners and families. Chichi is a British by birth and that will make it easy for her to marry Eze, a civil partner16. Uzoma cannot settle in UK not correct since it is established that he has family members to look after him. In his application, it was indicated that he has substantial income from his cocoa farm which means that he is not at all financially dependent on his son and granddaughter. He cannot apply for indefinite leave to remain or permission to settle permanently17. Bibliography 2011 Human Rights Reports: Nigeria. May 24, 2012. http://www.state.gov/j/drl/rls/hrrpt/2011/af/186229.htm (accessed Nov 3, 2013). Honohan, Iseult. "Citizenship attribution in a new country of immigration: Ireland." Journal of Ethnic and Migration Studies 36, no. 5 (2010): 811-827. Luedtke, Adam. "Uncovering European Union immigration legislation: policy dynamics and outcomes." International Migration 49, no. 2 (2011): 7. Statement of changes in immigration rules 23 May 1994 < http://www.official-documents.gov.uk/document/hc9394/hc03/0395/0395.pdf n> UK Border Agency. Partners and Families. UK Border Agency. Transferring your immigration status to a biometric residence permit (BRP) < http://www.ukba.homeoffice.gov.uk/visas-immigration/while-in-uk/transfer-visa-to-passport/ > Working during your studies (15 Oct 2013). Retrieved from < http://www.lse.ac.uk/intranet/students/ISIS/currentStudents/WorkingduringStudies.aspx> Read More