Immigration Legislation in the EU - Essay Example

SECTION A) Question 3 The European Convention on Human Rights 1950 is more effective in protecting asylum seekers than the Convention on the Status of Refugees 1951. Compare the substantive, procedural and enforcement aspects of the two treaties through a discussion of the relevant case law under the European Convention. Immigration has become an increasingly debated topic within the UK and it is submitted at the outset that the media obfuscation of reality and acting as scaremonger has further compounded rational debate in this area. This is further perpetuated by the media focus on national security and the terror threat post 9/11, which is increasingly shaping the Government’s immigration law and policy de facto. However, the blurring of the distinction between the need to legislate for immigration on the one hand and protection from terrorism on the other is further perpetuated by the patchwork of piecemeal immigration legislation in the UK, which is further compounded by the legal rights of asylum seekers. On the other side of the legal spectrum, the implementation of the Human Rights Act in 1998 (HRA) enshrines the fundamental rights and freedoms of the European Convention on Human Rights into UK law. From an immigration policy perspective, the most important rights relied on in immigration cases have been the Article 5 right, which prohibits detention without trial and the right not to be subjected to degrading treatment under Article 3. Additionally, Article 14 guarantees rights under the ECHR. On the one hand, these fundamental freedoms are essential to the function of the UK as a democracy. On the other hand, the reliance on the ECHR rights through the HRA 1998 arguably undermines immigration rules and legislation, which enables the UK immigration system to be exploited1. However, it is precisely this paradox within the law that enables the changing Governmental policy from circumventing both entrenched immigration and asylum rules and human rights protection on grounds of “national security”2. This is particularly evidenced by the implementation of the controversial Anti-Terrorism, Crime and Security Act 2003 (ACTSA), which permits derogation from the ECHR. The contradictory nature of UK immigration policy and compliance with human rights highlights the inherent flaw in enacting knee jerk legislative responses to socio-economic issues. This further highlighted by the dichotomy in protection afforded by the European Convention on Human Rights (ECHR) 1950 and the Convention on the Status of Refugees 1951 (Convention) to asylum seekers. The focus of this analysis is to critically evaluate whether the ECHR affords better protection to asylum seekers with reference to relevant case law under both treaties. If we firstly consider the Convention, Harvey posits that the “definition of refugee status contained in the 1951 Convention, widely adopted by states was drafted in a specific historical context. It is a limited conception of the refugee which is at variance with the reality of modern force migration.3” To this end Harvey’s observation highlights the point that the Convention is inherently limited in being a product of its historical context and fails to adequately address the needs of applicants claiming asylum. This is further supported by the definition of “refugee” under Article 1A4 of the Convention, which provides that a refugee is a person, who: “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside his country or nationality and is unable, or owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside his country of 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 former habitual residence is unable or owing to such fear, unwilling to return to it”5. To this end, the UN Convention definition clearly mirrors the historical context surrounding its implementation, which was born from the scars of the Second World War6. Accordingly, Clayton argues that that the Convention definition is inherently dependent on the assumption of loyalty between citizen and state7. However, the immigration and terrorism issue has rendered such claims difficult in practice, which is further evidenced by the recent Government legislation geared towards combating the war on terror. Additionally, a central criticism of the Convention protection for asylum has been the interpretation of “fear”8. For example, the Convention handbook paragraphs 37-50 clearly state that subjective and objective fear are both necessary under the Convention9 and in the case of A & D v SSHD10 it was asserted that the subjective test is the consideration of the victim’s own experience of fear11. Moreover, the guidance on the subjective element suggests that subjective fear may give rise to scope for taking account individual circumstances of the individual12. However, Hathaway comments that the use of the term “fear “was intended to emphasise the forward looking nature of the refugee claim and not to determine refugee status by a subjective assessment of the claimant’s state of mind13. However, the problem has been the implementation of this and interpretation of fear. For example, Chan v Minister for Immigration14 involved an asylum claim for a Chinese national who had fathered two children in violation of the one child policy. However it was asserted that “the appellant did not have a subjective fear of forced sterilisation.15” As a result, the applicant’s claim for asylum failed under the Convention. Additionally, the approach to asylum under the Convention is further compounded by the definition of refugee, which has arguably been misused in terms of the social reality to cover economic migrants and environmental refugees16. Additionally, problems have occurred in practice in relation to the obfuscation between definition of an asylum seeker and illegal immigrants, which is further compounded by the lack of effective enforcement measures to ensure compliance with the Convention principles. Under Article 14 of the Universal Declaration of Human Rights, everyone has the right to seek and enjoy asylum17. Additionally, article 13 of the 1951 Convention states that countries should not impose penalties on individuals coming directly from a territory where their life or freedom is threatened on account of their illegal entry into the country18. However, as highlighted above, the protection of these rights are dependent on falling within the refugee definition, which is inherently flawed due to effectively being a retrospective protection triggered by the Holocaust19. To this end, Clayton posits that the objective of the refugee definition effectively resulted in two essential rights; namely non-discrimination and free expression20. Moreover, the core concept of refugee definition is the protection against the infliction of harm on the basis of differences in personal status or characteristics21. Persecution only gives rise to refugee status if it is for reasons of race, religion, nationality, particular social group or political opinion. However, ambiguity remains regarding the issue of “race” under the Convention whereas the ECHR provides the fundamental right to manifest one’s religion or beliefs22, thereby supporting the argument that the ECHR affords stronger protection to those seeking asylum. Nevertheless the position isn’t perfect as the Article 9 right permits member states to derogate from the right, which therefore create a degree of overlap regarding uncertainty regarding race under both treaties. Additionally, the reference to “a particular social group” under the Convention has further created uncertainty and fuelled litigation under the 1951 Convention23. For example, in the US Board of Immigration Appeals in the case of Acosta24 they adopted the ejusdem generic approach in interpreting the 1951 Convention and commented that “the shared characteristics might be an innate one such as sex, colour, or kinship ties, or in some circumstances it might be a shared experience such as former military leadership or land ownership”25. Conversely, the Court of Appeal has held that gender is not a Convention reason and Lord Hoffman presiding in the Shah and Islam case26 commented that it was anomalous that gender was not a Convention reason for refugee protection, which contrasts with the position under the ECHR. This has led to perverse results in practice. For example, in the case of R v SSHD27 a claimant sought asylum on grounds that rape was common in the locality however failed on grounds of women not coming within the definition of “a social group”. Moreover, the burden of proof in cases under the Convention is on the appellant as determined in Dhaka v Shamin Box28 however Clayton comments that in practice the standard of proof is higher than the balance of probabilities29. Another problem is that under the Convention, groups that are solely collocated by the common factor of their persecution are not included in the definition of social group, on grounds that this could lead to floodgate claims30. However, Clayton argues that the inherent problem in defining a group without reference to persecution supports the proposition that the group must exist independently of the persecution and groups such as women stoned to death for adultery or women subject to domestic violence31. With regard to political persecution, in the case of Radivojevic and Lazarevic32 the Court of Appeal held that in the event of conflict, the applicants must demonstrate that they object to the condemned action on principle in order to obtain asylum under the Convention33. However, there is clearly scope for contention and arguably requires a case by case approach, which perpetuates legal uncertainty in application of the Convention. Accordingly, the definition of “refugee” under the 1951 Convention arguably highlights its inherent limitations in practice when addressing asylum claims. Alternatively, it has been posited that the shortfalls of the Convention support the proposition that the ECHR provides better protection in asylum claims, particular with regard to the rights under Article 3. Additionally, the leading decision in Chahal v UK34 highlights the European Courts’ propensity towards protection of the Article 3 right where deportation to an end destination may face violation of human rights35. Firstly, Article 1 of the ECHR provides that every member state shall secure the rights and freedoms defined in Part One of the Convention to everyone within their jurisdiction36. This in turn raises jurisdictional issues as to whether a member state can be responsible for actual or anticipated violations of human rights committed by other countries in its own jurisdiction, and in particular whether an individual who is facing expulsion can bring proceedings against the expelling state in respect of violations which are to take place37. In the case of Soering v United Kingdom38, the European Court held that a decision of a member state to extradite a person might engage the responsibility of that state under the ECHR where there are substantial grounds for believing that if extradited such a person will be subject to breaches of Article 339. In Soering, the Court further held that whilst the risk of death penalty in the US did not breach ECHR rights per se, the circumstances making up the death penalty in the facts of the case as they impacted the applicant along with the “Death Row” concept, constituted a serious risk that extradition would constitute a breach of Article 340. Moreover, whilst the Court accepted that it was not normal to address potential future decisions, it was felt necessary to depart from that rule in order to ensure the preservation of Article 3 as an absolute right, which further bolsters the argument that the ECHR protects the right to asylum more comprehensively than the Convention. Indeed, the Soering principle was also considered in the case of Amerkrane v United Kingdom41 where the applicant had been extradited back to Morocco by the Gibraltan Authorities and executed for deserting the Air force. In this case, Commission had to secure compensation and reiterated the liability of states for deporting individuals to end destinations with a significant risk of infringement of Article 3. The Soering principle was affirmed in the case of HLR v France42 where it was held that the principle applied even where the risk of ill treatment comes from private individuals. The relevant test is whether there is a real risk of violation of Article 3. Additionally, the Court highlighted that the protection from ill treatment under Article 3 is absolute and the activities of the person are immaterial, which distinctly contrasts with the judicial interpretation of the 1951 Convention in asylum cases. For example, in Chahal v United Kingdom43 the applicant had indefinite leave to stay in the UK and visited Punjab and been subjected to torture by the Punjabi police. On return to the UK, the Home Department believed the applicant was involved in intimidation and terrorism and deported him. The European Court however held that despite assurances from the Indian Government, the evidence indicated that the applicant remained a target and if the deportation was allowed he would suffer violation of rights under Article 3. As such, the applicant was given the right to stay and the Court reiterated that the Article 3 right cannot be derogated from to address immigration policies44. Indeed, the European Court has been proactive in extending the Soering principle beyond deliberate acts of torture and has applied it to the subjection of individuals to intolerable and unlawful prison conditions45. For example, in the case of Hilal v United Kingdom46 it was held that there had been a violation of Article 3 where the applicant had been subjected to the risk of harsh and life threatening prison conditions in Tanzania. Controversially, in D v United Kingdom47, the court extended the principles beyond Soering in situations where the member state would not even be in breach of an ECHR right. However, in Bensaid v UK48, it was held that this decision was exceptional and should be limited to its facts. Moreover, in the case of N v Secretary of State for the Home Department49, the House of Lords held that deportation of asylum seeker suffering from AIDS/HIV to Uganda was not in breach of article 3 even though they had minimal access to medical treatment. In addressing the decision in D, the House of Lords argued that it dependent on the critical extent of the medical condition and compelling humanitarian grounds50. However, whilst European Court approach to Article 3 has clearly informed domestic law with de facto strengthened position in an asylum claim, the extent of such protection is inherently dependent on national enforcement. If we specifically consider the UK perspective, the Human Rights Act 1998 (HRA) incorporated the European Convention on Human Rights (ECHR) into UK law and the preamble to the HRA states that its purpose is to “give further effect to rights and freedoms guaranteed under the European Convention on Human Rights”. For the first time, the UK implemented a piece of legislation akin to a constitutional Bill of Rights, protecting essential human rights and freedoms51. Moreover, whilst the HRA does not in fact implement any Bill of Rights as such, section 3(1) does impose a positive obligation on judicial authorities to interpret all legislation “in away which is compatible with the Convention rights”. Accordingly, the HRA “has had the effect of incorporating the European Convention on Human rights into our law giving individuals rights which can be directly enforced in the UK courts52”. From an immigration policy perspective, the implementation of the HRA 1998 would suggest that the enforceability of controls under the Asylum and Immigration Act 1996 (the Act) must be applied in a manner that is not in breach of the guaranteed rights and fundamental freedoms under the ECHR, which further supports the proposition that ECHR better protects rights of individuals seeking asylum than the 1951 Convention. Whilst such a curtail on executive power may be hailed by some as a triumph for human rights, there is clearly an inherent tension with national autonomy on implementing laws pertaining to immigration policy. On the other hand, decisions under the Act are made by the Secretary of State, whose decisions are arguably outside the ambit of the HRA, which further highlights the inherent paradox of implementing parallel systems of human rights and an efficient immigration system, which is a matter of national policy. Additionally, as decisions under the Act and the Asylum and Immigration Appeals Act 1993 are made by the Secretary of State applying provisions made by Parliament53this arguably creates a lacuna in the protection of ECHR rights. The HRA as drafted only permits the judiciary to make declarations of incompatibility in respect of Acts of Parliament. It cannot reverse legislation and can certainly not declare decisions made by the Secretary of State in immigration matters invalid. Moreover, the grounds for judicial review of Special Immigration Appeals are severely limited54, which would indicate that the impact of the HRA simply pays lip service to the ECHR rights as far as immigration policy is concerned. This lacuna in the enforcement of ECHR rights is effectively a compromise to circumvent this obvious constitutional problem of Parliamentary sovereignty. Now, the HRA imposes a statutory requirement that all legislation “must” be read and given accordingly with Convention Rights, so far as possible55. As such, the new interpretative positive obligation provides one of the most essential components to protect human rights from being abused56. Section 3 applies to both primary and secondary legislation and legislation whenever enacted”. However, as regards immigration policy, this clearly creates a paradox particularly depending on the nature of the Convention right being relied on. For example, Article 3 of the ECHR provides that “no-one shall be subjected to torture or to inhuman or degrading treatment or punishment”. Crucially, this is an absolute right, without any qualification therefore if the treatment is inhuman it cannot defend on proportionality grounds57. In the case of Pretty v UK58 the application concerned an appeal against the decision of the removal of a man to St Kitts whose wife was in the latter stages of suffering from motor neurone disease. On appeal it was held that intense mental suffering could substantiate a claim on grounds of being humiliating or debasing under Article 3. Moreover, there is nothing in the rules under the Asylum and Immigration Appeals Act to force the Secretary of State to allow an applicant to see reasons for refusal of their application, which is problematic from the HRA perspective in guaranteeing the right to a fair trial. However, from a practical perspective whilst the decision in Pretty was undoubtedly meritorious on the facts of the case, it begs question as to whether it is appropriate for immigration rules to be challenged by ad hoc applications of ECHR rights through the backdoor. Not only does this perpetuate legal uncertainty, it is further undermined by the sporadic nature of decisions acknowledging breaches of the ECHR. This further undermines the efficacy of the HRA as a “fundamental” piece of legislation in human rights in the UK. Whilst, the thresholds under the HRA are high and necessary to avoid floodgate claims, decisions in the case of Pretty are rare, which arguably swings the pendulum too far in the opposite direction. For example, in the case of R (in the application of N) v Secretary of State for the Home Department59 the applicant failed in their Article 3 application notwithstanding a clear link between their treatment during the detention and deportation process and suicidal tendencies. Conversely, in Keenan v UK60 it was sufficient to demonstrate the conduct caused “significant stress…. And feelings of anxiety”61. Whilst this case addressed death in police custody, the judicial rationale clearly has ramifications for immigration appeals and asylum claims. Indeed, the Third Report of the Joint Committee on Human Rights62argue that the decision in Keenan “affirms the principle of proportionality, which requires that measures which interfere with the right to respect for private life, personal autonomy, and physical integrity, must be confined to those necessary to achieve the legitimate aim”63. To this end, the application by the Secretary of State of the immigration rules under the Act and the Asylum and Immigration Appeals Act 1996 potentially interfere with the right to private life, thereby lending decisions amenable to challenge at European Court level under the ECHR64. However, not only are such decisions often determined on an ad hoc basis, the length and cost of such proceedings arguably encroaches on matters of national policy and undermines certainty in the application of immigration policy. Moreover, it creates a dichotomy between national level enforcement of the ECHR and European level as UK national courts are limited to making declarations of incompatibility65 The significance of the HRA under section 6(1) is that it is unlawful for public authorities to act in a manner incompatible with the ECHR. However, “public authority does not include a person exercising functions in connection with proceedings in Parliament.66 .” Therefore theoretically the Secretary of State can act outside HRA making immigration decisions. However, the courts are a public authority and must interpret legislation in accordance with HRA, which arguably implies such an obligation on the Secretary of State. However this is clearly dependent on courts making a declaration and is often only used as a last resort. This is only for primary legislation however and if the decision is made under delegated legislation it must be compatible with ECHR rights whatever the circumstances67. As such, the authority on which the Secretary of State makes immigration decisions is entirely derived from the immigration rules and not primary legislation68, which thereby strengthens the significance of ECHR compliance in immigration decisions. This effectively creates a discrepancy in protection of human rights in immigration policy depending on whether the legislation is primary or delegated. Accordingly, whilst the European Court decisions clearly support the proposition that the rights of asylum seekers are better protected under the ECHR than the 1951 Convention, the central problem is consistent enforcement at national level. At most, the judiciary can determine whether rights have been breached, however the national immigration and asylum legislation further creates a lacuna in the “absolute” nature of the Article 3 right by offering a wide margin of appreciation. SECTION B: Question 5: The factual scenario indicates that Kavima originally comes from Morocco and has been through various territories in reaching the UK. This in turn raises the issue as to the rights of Kavima to claim asylum and the appropriate territory in which to make such a claim. As such, if Kavima does not come within the definition of a refugee under the 1951 Convention, the Human Rights Act 1998 (HRA) will be of paramount importance, in particular the rights under Article 3 of the ECHR and Article 2(1), which guarantees the right to life. Firstly, the “Convention determining the State responsible for examining applications for asylum in Member States of the European Communities69” (the Dublin Convention) and the Dublin II Regulation70will be vital to determining jurisdiction of any potential claim for asylum. The Dublin Convention and the Dublin II Regulation provide that where an asylum seeker travels through a country or a number of countries as Kavima has done in the current scenario; the Convention determines which member state should consider their application for asylum as opposed to making multiple asylum claims through the EU71. The 1997 Dublin Convention was regarded as being flawed as Article 3(5) of the Convention permitted states to remove asylum seekers to potentially unsafe non-EU third countries, with no process for challenge, which highlighted the flaws of the previous Convention72. Accordingly, the Dublin II Regulation modifies this position and provides for two systems, namely DubliNet and EURODAC. Moreover, the European Commission highlights that “its creation was called for by the Dublin II Regulation establishing criteria and mechanisms for determining the member state responsible for examining an asylum application lodged by a third country national, which replaces the Dublin Convention73”. Therefore, under the Dublin II Regulation, the UK can only return Kavima to a safe country that has an obligation to provide him with asylum and which can be expected to comply with the requirements of the 1951 Convention. On this basis, the rule enables the UK to deport Kavima to France on grounds that his unlawful entry into the UK was as a result of entry through another Member State. Whilst Kavima appears to have arrived from Morocco, which is a non-EU country, as he has come through Spain and Germany, which are both EU states, he may be deported to either. Additionally, as he has family in Belgium, this may potentially entitle the UK to deport him to Belgium under the Dublin Convention. Therefore, whilst there are two unused tickets from Calais to Dover and a forged French passport which could have been administered anywhere, there is no further evidence that Kavima went through France and he speaks French as this is widely spoken in Morocco. Therefore, France may not be the appropriate jurisdiction under the Dublin Convention. Therefore, under the Dublin Convention it would appear that whilst Kavima may not be deported to France, however potentially to Belgium, Spain or Germany. In order for Kavima to be removed to any of these territories, the Secretary of State will have to certify that either of the territories has accepted that it is the responsible state in relation to Kavima’s claim for asylum74. Furthermore, the Secretary of State has to certify that in his opinion that Kavima is not a national of the member state and the certificate to remove has not been set aside on appeal. If these conditions are fulfilled, Kavima’s asylum claim in the UK can be set aside without any further substantive consideration of his asylum claim75. However, it is important to note that the Home Office will not remove the asylum seeker unless the state receiving them has accepted responsibility76. Under Schedule 3 of Asylum and Immigration Act 2004, Spain, Germany and Belgium are considered safe third countries, however under the Dublin II Regulation, if there is any likelihood that Kavima may be deported back to Morocco from either Spain, Belgium or Germany and subjected to infringement of the Article 3 right, then Kavima will not be deported. Moreover, Article 7 of Dublin II further provides that “where an asylum seeker has a family member, who has been allowed to reside as a refugee in a Member State, that Member State shall be responsible for examining the application for asylum, provided that the persons concerned so desire”. As such, in light of the fact that Kavima’s brother is seeking asylum in Belgium, this would suggest a presumption towards deportation to Belgium for consideration of Kavima’s application. Additionally, if Kavima’s family have refugee status in the UK, then the UK will have relevant and appropriate jurisdiction to consider his claim and Article 8 would render the UK the responsible country. Alternatively, the fact that Kavima has family in the UK will strengthen his rights to seek asylum in the UK under the Article 8 right of the ECHR as enforced by the HRA. Alternatively, Articles 10 and 18 of the Dublin Convention will be applicable. Firstly, under Article 18, the ferry tickets from Morocco to Spain will provide circumstantial evidence that Kavima crossed the border. If this constitutes sufficient evidence, Spain may be responsible for examining the asylum application under the Dublin Convention and the Dublin II Regulation. Alternatively, if no state can be identified as responsible from these criteria in the Dublin Convention, the first member state in which Kavima makes the application will be responsible, which will presumably be the UK in the current scenario. Indeed, Kavima could request that the UK address the application on grounds of family ties and if these matters are not properly considered, judicial review may be available. Ultimately, the decision to move to safe country is discretionary and can be challenged on human rights grounds77. Indeed, Kavima may challenge deportation under the ECHR on grounds of the principle in the case of Soering v United Kingdom78, where the European Court held that a decision of a member state to extradite a person might engage the responsibility of that state under the ECHR where there are substantial grounds for believing that if extradited such a person will be subject to breaches of Article 379. Moreover, section 65 of the Immigration Act 1999 gives asylum seekers the right to challenge any decision relating to their entitlement to enter or remain in the UK on the grounds that the decision breached their human rights. In summary, the circumstances indicate that Kavima may have been in France, however Belgium, Spain and Germany are likely to the most appropriate states with jurisdiction to hear Kavima’s asylum claim under the Dublin Convention and the Dublin Regulation II. The fact that Kavima’s brother is currently seeking asylum in Belgium will create a presumption in favour of Belgium as the appropriate state under the Dublin Convention. Alternatively, the fact that Kavima has family in the UK will strengthen his position to seek asylum here. Additionally, if it can be established that deportation to any of the member states applicable would risk Kavima’s deportation to Morocco with a cogent risk of ECHR infringements (particularly Article 3), this will strengthen his position to oppose deportation and seek asylum in the UK. BIBLIOGRAPHY A Bradley., (2006). Constitutional and Administrative Law. 14th Edition Longman. A. Carroll., (2007). Constitutional and Administrative Law. 4th edition, Pearson Education Harlow S. Cohen (2001). Immigration controls, the family and the welfare state: a handbook of law. Jessica Kingsley Publishers. C. F. Doebbler (2004) International Human Rights Law: Cases and Materials. CDP Publishing. G. Clayton (2008) Immigration and Asylum law. 3rd Edition Oxford University Press. C. Harvey (2004). Seeking Asylum in the UK: Problems and Prospects. Cambridge University Press D. Hoffman & John Rowe (2006). Human Rights in the UK: An introduction to the Human Rights Act 1998. Loveland., (2006). Constitutional, Administrative Law and Human Rights. 4th Edition Oxford University Press Weatherhill, (2005). Cases and Materials on EU Law. 7th Edition Oxford University Press. Legislation & Websites Asylum and Immigration Appeals Act 1993 Asylum and Immigration Act 1996 Human Rights Act 1998 Immigration and Asylum Act 1999 Anti-Terrorism, Crime and Security Act 2003 Asylum and Immigration Act 2004 Convention on the Status of Refugees 1951 at www.unchr.org/1951RefugeeConvention European Convention on Human Rights 1950 available in full at www.hri.org Dublin Convention 97/C 254/01 Dublin Regulation II Council Regulation (EC) No. 343/2003 www.opsi.gov.uk Read More