UK Citizenship and Border Control - Essay Example

?Section A, Question Effectiveness of immigration legislation depends on the politics and processes of implementation”. Discuss three key features of the Borders, Citizenship and Immigration Act 2009 and their present or future impact on UK life. Introduction The Borders, Citizenship and Immigration Act 2009 (BCIA) originally intended to provide simplicity to pre-existing immigration law (Hynes 2009, p. 12). However, among its main features, the 2009 Act functions to strengthen the control of the border, regulate and extend the time for obtaining UK citizenship and implements a new duty under the UK Borders Act 2007 to safeguard and promote the welfare of children involved in immigration, asylum, nationality and customs issues (Borders, Citizenship and Immigration Act 2009). The effectiveness of these three key features of the 2009 Act depends on politics and in some cases implementation. It is only along these lines that these three features will have an impact on present or future life in the UK. Border Control Part I of BCIA 2009 deals with the control of the UK’s borders (Border, Citizenship and Immigration Act 2009, Part I). The simplification for travellers to Britain including returning residents follows from the government’s intention to provide for a “unified border force” under the auspices of the UK Border Agency (Millington and Williams 2010, p. 597). Essentially, the unified border force enables immigration officers to also assume the role of customs officers. This means that a single agency is responsible for detecting and detecting exploitation of immigration and customs laws at the UK’s ports of entry (Vine 2010, p. 3). For this present transfer of border checks to a single agency means that daily travellers will be spared having to report to two separate check points upon entering the UK. Traditionally, travellers had to present themselves to both immigration and customs officers in order to be cleared for entry. Implementation of this particular part of the 2009 Act is automatic as it became effective once the Act received Royal assent (Borders, Citizenship and Immigration Act 2009, Section 58(1). In the future there may be human rights problems and concerns for travellers and returning residents as the UK Border Agency closely scrutinizes travellers. Moreover, the UK Border Agency works together with Law Enforcement and within the framework of the UK Counter Terrorism Strategy for the purpose of detecting and preventing entrants to the UK who may cause harm to the UK or its citizens (Grimwood 2009, p. 3). This degree of border security comes with a political climate where border security has grown in importance since the 11 September 2001 terror attacks in the US. This is evidenced by the tightened border security enlisted by Nationality, Immigration and Asylum Act 2002 and the Borders Act 2007. Both act enhanced the authority for the control of immigration. Section 21 of the 2009 Act permits the exchange of information between the UK Border Agency and other government agencies (Borders, Citizenship and Immigration Act 2009, Section 21). The degree to which the UK Border Agency is permitted to share and exchange intelligence and information on travellers with law enforcement and other agencies at home and abroad, opens up the possibility that returning residents and foreigners will be vulnerable to intense scrutiny and invasion of privacy. Contacts at home and abroad may also come under intense scrutiny and be subjected to invasion of privacy should a traveller or returning resident with whom they are connected come under investigation or suspicion by the UK Border Agency or one of its partners. There is also a risk of discrimination and racial profiling as political and public concerns over the threat of terrorism persist (Vine 2010, p. 3). Together with the transfer to the Border Agency of the intrusive strip, search and entry powers previously granted to customs (Borders, Citizenship and Immigration Act 2009, Section 26), the risk of invasion of privacy and discrimination seems ineffective methods for increasing border security. Fear of these human rights violations would put virtually all travellers on the defensive and thus make them suspect with the result that resources are wasted investigating innocent and legitimate travellers. UK Citizenship Part II of the BCIA regulates the requirements and procedures for UK citizenship and naturalization (Borders, Citizenship and Immigration Act 2009, Part II). The effectiveness of Part II of the BCIA 2009 is highly dependent on the political climate rather than implementation. This is because, although part II of the Act has not yet been implemented, even when it is implemented, the Home Secretary is at liberty to deny citizenship to anyone who qualifies or can grant citizenship to anyone who does not meet the statutory requirements (Gower 2011, p. 1). In order to determine whether or not Part II is effective it is first necessary to determine the purpose of the requirement contained in Part II of BCIA. Attention is therefore drawn to the government’s Green Paper of 2008 which set forth the necessity and purpose of Part II of the BCIA 2009. According to the 2008 Green Paper, Part II of the BCIA 2009 is intended to “strengthen our shared values and citizenship” and to recognize the fact that: The current system does not provide enough of an incentive for a migrant to progress to British Citizenship. As a result we want to encourage people with the right qualifications and commitment to take up citizenship so that they can become fully integrated into our society (Green Paper 2008, p. 6). Section 47 of the BCIA 2009 which amends Section 41 of the British Nationality Act 1981 calls into question whether this provision can effectively give expression to the Green Paper’s (2008) purpose. Section 49 requires that adults and young persons may not be granted citizenship unless and until the Home Secretary is satisfied that the applicants are of good character. Since good character is not defined, the Home Secretary’s discretion is highly subjective and quite possibly will be dictated by political concerns therefore rendering it impossible to implement effectively. Complicating matters, a young person is defined as any person over the age of 10 (Borders, Citizenship and Immigration Act 2009, Section 47(1)(5)). Under Section 1(3) of the British Nationality Act 1981 a child may only obtain citizenship if a parent has acquired citizenship or has settled in the UK while the child is a under aged. Should the Home Secretary determine that the child is not of good character, the child is without status while the parent has legal status in the UK. Therefore the requirement that a young person be of good character is ineffective for meeting the Green Paper’s purpose of encouraging shared value and citizenship. If a parent is highly qualified and of good character, it is unlikely that the parent will opt for British citizenship or settle in the UK if his or her child is denied a similar legal status. Part II of BCIA 2009 extends the time for qualifying for citizenship from 5 to eight years in the case of an adult who was “ordinarily resident” in the UK (Borders, Citizenship and Immigration Act 2009, Section 41(1)(3)(a)). In the case of a minor the period to five years for persons who have been involved in crown services, worked for an international agency to which the UK is a member or worked for a company in the in the UK (Borders, Citizenship and Immigration Act 2009, Section 41(1)(3(b)). These extensions of time are not problematic in terms of implementation and effectiveness, provided the Home Secretary approves the applications for citizenship. The activity conditions contained in the 2009 Act permitting reduction of the time served however, may be inconsistent with the general purposes expressed in the Green Paper (2008). Pursuant to Section 41(1)(4) of the 2009 Act, the time may be shortened by two years if the applicant “meets the activity condition” (Borders, Citizenship and Immigration Act 2009, Section 41(1)(4)). The activity condition is met when the applicant satisfies the Secretary of State that he or she has taken on unpaid work (Borders, Citizenship and Immigration Act 2009, Section 41(5)(a)). Such a requirement is not only inconsistent with the European Convention on Human Rights. Article 4 (2) of the Convention specifically provides that “no one shall be required to perform forced or compulsory labour” (European Convention on Human Rights, Article 4(2)). An applicant might feel compelled or forced to take on unpaid labour in order to shorten the period for qualifying for citizenship. The period is long enough to compel an applicant to seek a shorter qualification period. Therefore the condition for shortening the period is virtually compulsory. Safeguarding and Promoting the Welfare of Children The protection of unaccompanied immigrant children, asylum seeking children or refugee children was previously non-existent in the UK since the UK did registered a reservation to the United Nations Convention on the Rights of the Child 1989. This meant that this class of foreign children were not accorded the same level of treatment and protection as other UK children (O’Neill 2010, p. 187). Under Section 55 of the BCIA 2009, both the Home Office and the UK Border Agency have a duty to protect and safeguard the welfare of unaccompanied immigrant, asylum seeking and refugee children (Borders, Citizenship and Immigration Act 2009, Section 55). The duty referred to in Section 55 of the 2009 Act is not defined and provides the Secretary of State with the discretion to make the arrangements. Section 55(1) provides as follows: The secretary of State must make arrangements for ensuring that the functions mentioned in Subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom (Borders, Citizenship and Immigration Act 2009, Section 55(1)(a)) The functions are described in Section 55(2) as “any function of the Secretary of State in relation to immigration, asylum or nationality”; any “function conferred by or by virtue of the Immigration Acts on an immigration officer”; functions by customs officers or any “general customs function of the Secretary of State” (Borders, Citizenship and Immigration Act 2009, Section 55(2)(a)-(d)). The Secretary of State issued guidance pursuant to Section 55 of the 2009 Act, therefore effectively implementing Section 55. The guidance is specifically intended for the UK Border Agency and advises that the guidance does not modify the way that the agency conducts its work, but only cautions that special care and attention be given when dealing with children. In this regard, the Agency must ensure “good treatment and good interaction with children throughout the immigration and customs process”(Home Office 2009, para. 2.4, p. 14). In addition, the Agency is also instructed to pay special attention to the laws that prohibit exploiting children and facilitate trafficking and “illegal entry” (Home Affairs 2009, para 2.4, p. 14). The Agency is also required to “detect at the border any material linked to child exploitation through pornography” (Home Affairs 2009, para 2.4, p. 14). The Agency is also required to promptly refer a child to the appropriate agency for care and support in appropriate cases (Home Office 2009, para 2.5, p. 14). The Border Agency is also required to ensure that the various international Conventions including the United Nations Convention on the Rights of the Child are complied with. The Guidance notes that the reservations on the UN’s 1989 Convention were lifted and are therefore applicable to the UK (Home Office 2009). Implementation of section 55 of the 2009 Act was subject to a political influence in that the current government lifted a reservation to the UN’s 1989 Convention making it possible to effectively apply Section 55. The Secretary of State was required to take account of the 1989 Convention’s emphasis on the welfare of the child and the special provisions with respect to humanitarian services to the unaccompanied child (UN Convention on the Rights of the Child 1989, Articles 4 and 22). In the long term, this means that the UK will have to treat children who enter the country illegally with the same regard that they treat children who are legally in the UK. Question 2: Zeena’s Appeal of a Deportation Order to Egypt European Convention on Human Rights Guiraudon and Lahav (2000) inform that there are usually two method for challenging deportation orders under the European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR) 1953 (p. 169). The appeals are typically under Articles 3 and Articles 8 (Guiraudon and Lahav 2000, p. 169). In this regard, Zeena will have to decide whether or not an appeal can be substantiated on the grounds that she was or will be subjected to cruel and unusual treatment and punishment pursuant to Article 3 of the ECHR. Alternatively, Zeena can appeal on the grounds that she has been denied or will be denied the right to family life pursuant to Article 8 of the ECHR. Article 8 will not likely be of any assistance to Zeena as the European Court of Human Rights will only uphold an appeal against expulsion if the appellant has been a resident in Europe since childhood and only has tenuous ties to the country of origin (Guiraudon and Lahav 2000, p. 169). Article 8 can also be used to uphold an appeal against expulsion if the appellant has a child and has raised that child in Europe. Under those circumstances the European Court of Human Rights will not deny the appellant the right to enjoy visitation and access to the child and would therefore rule that the parent should be granted a residence permit (Lamquindaz v the UK [1993]). Since Zeena does not appear to have raised a child in Europe and has not been in Europe since she was a child, Article 8 of ECHR appears to be of no avail to her. Article 3 however appears to be more relevant to Zeena’s case. Article 3 of ECHR is typically used by asylum seekers and refugees for the purpose of reviewing administrative orders of expulsion. In Vilvarajah and Others v The UK it was held that the applicants who had been deported to Sri Lanka and were exposed to persecution had not satisfied the UK authorities that there was a real and pressing risk because the incidents giving rise to the threat had died out leaving behind only a few insignificant disturbances. Based on news reports the crisis related to Mubarak’s reign have come to an end and Egypt has returned to rebuilding its political landscape (Batty 2011). Based on the ruling in Vilvarajah, Zeena’s claim that she was previously a spokesperson for Mubarak’s government will not be sufficient to reverse the administrative orders to deport her to Egypt. This is because the crisis has passed and threats from a democratic party representative will likely be regarded as insignificant and not sufficient to give rise to a fear of persecution. The main question is the level of risk in the context of cruel and inhuman treatment and punishment within the meaning of Article 3 of the ECHR. The degree of risk would be measured against the Secretary of States own conduct. If the Secretary of State is not acting in a manner that is discriminatory or biased in any way and is acting in a manner consistent with the need to ensure that the UK’s borders are not exposed to liberal and unconditional entry, an appeal would not be allowed unless there is a significant risk of persecution (Vilvarajah and Others v The UK 1993). The need for homeland security would not automatically permit expulsion and deportation however (Chahaly v The UK 1995). However, in order to successfully challenge a deportation order the appellant must demonstrate the threat of harm is not only real, but pressing. For instance, fear that a threat may be imminent such as gender discrimination on the grounds that Zeena has been accused of having an affair will likely not suffice as real and pressing. In H. L. R. v France (1996) a Colombian drug lord who disclosed the names of co-conspirators to French authorities did not convince the European Court of Human Rights that there as a real threat of harm upon his expulsion to Colombia. Based on the interpretation and application of Articles 3 and 8, Zeena does not have a case against the deportation order. The fact that she was previously a spokeswoman for Mubarak’s government and is now receiving threatening calls from Egyptian democrats does not rise to the required fear of persecution required under an Article 3 objection. The telephone calls may in all likelihood be regarded as slight, particularly since the crisis has passed. As for the fear of gender discrimination, there is no real and pressing fear within the meaning of Article 3 and Zeena will not likely succeed on those grounds either. Convention Relating to the Status of Refugees 1951 Zeena has a stronger case for challenging the deportation order under the Convention Relating to the Status of Refugees 1951 (Refugee Convention). By virtue of Article 1 (2) of the 1951 Refugee Convention a refugee is described in the following terms: Owing to well-founded 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 a nationality and being outside the country of his habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. The question is therefore, whether or not Zeena’s fear of persecution on the basis of her previous membership in Mubarak’s government or her fear of gender discrimination as a result of her accusations of her having an illicit affair legitimately supports her position against deportation. The duty of non-refoulement under the Refugee convention measures the sovereign right to border control against the humanitarian issues relative to a legitimate refugee. The duty of non-refoulement is reflected in Article 33 of the of Refugee Convention and reads as follows: No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his (or her) life or freedom shall be threatened on account of his (or her) race, religion, nationality, membership of a particular social group or political opinion. The UNHCR (2007) in an Advisory Opinion explains that any person who fits the definition of refugee under Article 1(2) of the Refugee Convention is entitled to the non-refoulement protection. In this regard, Zeena is both a member of a political (Mubarak’s government) and social group (gender) and has a fear that she will be persecuted for that membership thus justifying her desire not to return to Egypt. However, the key question under Article 1(2) is whether or not that fear is well-founded. Only then is Zeena a refugee entitled to the duty of non-refoulement under the Refugee Convention. The exceptions to the duty of non-refoulement will only arise if refoulement will expose the refugee to a “substantial risk of torture” or “other forms of irreparable harm” (UNHCR 2007, p. 5). Guidance is drawn from customary international law and international instruments on the definition of irreparable harm and the risk of torture. In this regard, Article 3 and its interpretation by the European Court of Human Rights are applicable. As previously noted, the threat must be pressing and real. Therefore Zeena is in no better position under the Refugee Convention than she would be under the ECHR. The UNHCR’s Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity provides some support for Zeena’s appeal (LaViolette 2009). According the the UNHCR’s (2009) Guidance Note, Zeena would only have to prove two factors in order to satisfy the definition of refugee. First she would have to prove that there is a “well-founded fear of persecution” and secondly that it relates to her “membership in a particular social group” or on “account of her political opinion” (LaViolette 2009, p. 1). LaViolette (2009) cautions however, that in order to prove that there is a well-founded fear of persecution, Zeena would have to prove that Egypt is not willing to provide her with protection. The UNHCR (2002) also cautions that membership to a specific group cannot be interpreted too broadly so as to permit any class of individuals to claim a well-founded fear of persecution. The UNHCR (2000) specifically states that in order: Preserve the structure and integrity of the Convention’s definition of a refugee, a social group cannot be defined exclusively by the fact that it is targeted for persecution (para. 2, p. 1). The UNCHR (2000) further notes that an applicant may successfully be accorded refugee status if the claimant can prove that she faces the risk of persecution based on the “particular circumstances of the society” founded on “political opinion” in that her behaviour is one that the state itself is committed to suppression (para 4, p. 2). Or she may succeed if the claimant can prove that her behaviour is based on a “religious conviction opposed by the State” (UNHCR 2000, para 4, p.2). Based on the foregoing discussion, Zeena may only succeed under the Refugee Convention is she proves that the State will indorse religious opposition to the allegations that she conducted an illicit affair. However, unless Zeena can prove that Egyptian authorities are unlikely to provide her with protection she will not be able to successfully obtain refugee status and protection against expulsion or deportation. It would appear however, that since Zeena was previously a member of the Mubarak’s government and is currently receiving threats from Egyptian democrats, she may be able to prove that she will not be protected owing to her membership or previous membership in a particular political group or as member of a social group subjected to widespread gender discrimination. It is therefore very likely that Zeena, on account of her gender and political associations will meet the social and political group occlusion requirements for refugee status and protection pursuant to the Refugee Convention. The particular circumstances of society in Egypt is important. There is widespread gender discrimination and recriminations against women who are suspected of having committed adultery. Roth (2010) reports that even in the 21st century women suspected of having committed adultery have been and continue to sentenced to death by Islamic courts in Islamic states (p.8). Therefore Zeena has a well-founded fear of persecution on the grounds of a state supported religious movement to suppress adultery on the part of women. It therefore follows that based on this fact alone, Zeena will likely be able to successfully challenge the deportation to Egypt under the Refugee Convention. It is unlikely that Zeena will be able to obtain protection from this form of persecution because the Islamic Courts are state supported (Roth 2010). Moreover, as a previous member of Mubarak’s government, it is very unlikely that Zeena would receive any kind of protection against stoning even if an Islamic Court acquit her of the allegations of having an illicit affair. Under the circumstances, Zeena is advised to seek a declaration of refugee status under the Refugee Convention and to ask for the protection accorded the duty of non-refoulement pursuant to Article 33 of the Refugee Convention. It is entirely unlikely that Zeena will be able to succeed under a claim founded on Articles 3 and 8 of the ECHR 1953. Under Article 3, Zeena will have to prove that the fear of persecution is real and pressing and it is unlikely that she will be able to do this since there is no special consideration given to gender discrimination. However, based on the UNCHR’s (2002) guidelines, special consideration is given to gender discrimination. Therefore Zeena is advised to avoid an appeal on the grounds provided for under the ECHR and to appeal under the Refugee Convention instead. Her gender appears to provide refugee status in Zeena’s particular circumstances. Bibliography Batty, D. 12 February 2011. “Egypt the Day After Mubarak Quits – Live.” The Guardian Co. UK. http://www.guardian.co.uk/world/blog/2011/feb/12/egypt-day-after-mubarak-quits (Retrieved 22 July 2011). Borders, Citizenship and Immigration Act 2009. Borders Act 2007. British Nationality Act 1981. Chahaly v The UK 70/1995/576/662 Council of Europe: European Court of Human Rights, 15 November 1996. Convention Relating to the Status of Refugees 1951. European Convention on Human Rights. Gower, M. 6 January 2011. “Naturalisation as a British Citizen.” House of Commons Library, Home Affairs Section: Standard Note: SN/HA/3232, 1-17. 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