Immigration Law

Questions: 1. A critical analysis on European Union convention of human right 1950.2. Discuss the relation between European Union Convention of human right 1950 and Immigration Act, 2014. 3. Asylum application For Burain Answers: 1. European Union convention of human right 1950 Introduction: Article 8 of theEuropean Convention on Human Rightsdeclared a right to respect for a persons private and family life, subject to certain limitations according to the law. Right to private life and family life is a basic right of any individual. Sometime state law acts in contravention with the International laws. The Immigration Laws are somehow in contravention with Art 8 of the convention. So this kind of contradiction between laws makes various complicacies. Though the new Immigration Act, 2014 included the provisions which matches the provisions of Art 8 of European Union convention of human right 1950. A critical analysis: Theright to private lifemeans personal independence. This right give the power to take own decision about own life without states interference (Harris, O'Boyle and Warbrick, 1995). This right helps a person to expand personality and to set up associations with others. The right to private life includes the physical and mental reliability of a person, sex life, sexual category, individual data, status, names and photographs (Echr-online.info, 2015). The concept offamily lifeincludes the legally recognized ties among the persons who are connected by blood or marriage (Harris, O'Boyle and Warbrick, 1995). Generally we can give main focus on the relation between husband and wife or parents and children or between the siblings. But the relation with grandparents or grandchild or relation with uncle or aunt can also be included. Theright to respect for correspondenceunder article 8 gives emphasis on the right to free and continuous communication. Although the term correspondence might be referred to letters only, but article 8 intent to include the protection to communication through the telephone, parcels, telexes or fax (Echr-online.info, 2015). But the rights are not unlimited they are also subject to some restriction according to law. The term in accordance with law mentioned under article 8 of this convention includes some criteria for examination. They are accessibility of law; that law should be foreseeable and the interference must be necessary for the society. Accessibility of law under this purview means that interference to a right under article 8 has to be openly accessible. Citizens have to be able to find information regarding their rights which may be hampered. The law must be foreseen means the language of law must be unambiguous. It must be understood by public. Different case studies make indicate a clear overview about the applicability of Article 8 of European Union convention of human right 1950 (Curtice, 2010). In Smith and Grady v United Kingdom (Smith and Grady v United Kingdom, [1999]) case it was happen that Smith; the petitioner was an employee of the Royal Air Force. In 1994, a lady called the air force authority and alleged that Smith was a lesbian. She also alleged that smith sexually harassed other callers. The authority questioned smith and she admits the fact. The service police asked her to submit details of her sexual life, forced her to disclose the names of her partners and questioned about her HIV status and other particulars. After few months the authority discharged her from the service. The British government accepted that there was an interference with the right to a private life prescribed under Article 8 of European Union convention of human right 1950 (Mowbray, 2007). The court decided the case in the question whe ther such interference was justified or not. The court accepted the fact that the British Government had not give proper evidence and heavy reasons for the investigation of the applicants sexual orientation therefore decided that there was an infringement of the right to a private life described in Article 8 of the European Convention of human right 1950 (WEHMEIER and Press, 2015). In another leading case i.e. Silver and others v. The United Kingdom, (silver and others v. the United Kingdom, [1980]) similar type of matters are decided. In this case the petitioners were prisoners. They alleged that the prison authority intercepted of their letters. They sent letters to their advocates, family members, broadcasting organisation, newspapers, reporters etc. Generally interception of mail violates the right of private life in addition to the right to freedom of expression, but if that act was necessary or not, that was the determining question for this case. Later it was found by the court that some letters contains threats of violence. But court also added that a mere addressing of the mail to reporters or advocate or, human rights authorities, or that the letters discussed abuse in prison could not be measured as necessary (Mowbray, 2007). In a case of Birmingham City Council v. Clue (Birmingham City Council v. Clue, [2010]) it was happened that the woman and his daughter who were the native of Jamaica entered UK as a visitor for 6 months. The object was to visit some relative there. She remained there and also had 3 children of her British partner. She remained there until the relationship was broke down with her partner (Bailii.org, 2015). After that she applied for indefinite leave for herself and her children under Article 8 of European Convention on human rights. During the pendency of the application she applied for financial assistance from Birmingham city council (Bailii.org, 2015). But the council suspended it on the ground that she was unlawfully resides in United Kingdom. It was held that the refusal by Birmingham City Council to supply financial support and accommodation while the immigration request was pending resulted in a infringement of article 8 of the European Convention of Human Rights. Proper inves tigation should be made by the authority before the taking any decision. Illegal immigrants have restricted chance to obtain employment and are hardly ever permitted to public assistance if they are jobless (Bell, 2014). 2. Relation betweenEuropean Union Convention of human right 1950 and Immigration Act, 2014 Section 19 of theImmigration Act 2014uplift some issues which questions about the roles of courts in accordance with human-rights (Elliott, 2014). Section 19 of the 2014 Act introduced a set of new provisions into theNationality, Immigration and Asylum Act 2002 in which courts deal with cases of deportation which are resisted on the ground that the provisions are in contravention to Article 8 of theEuropean Convention on Human Rights (Cvetic, 1987). After several problems the question raises that whether the new Act require UK courts to decide cases in accordance with Art. 8. Definition of a refugee: The definition of a refugee under the 1951 CSR (or the Geneva Convention) under Article 1 was in this manner that refugee is a person who has fear of being harassed for the reason of nationality, religion, caste, creed or political activity. For this reason he is unwilling to return to his home country. Economic migrates are different from refugee. Definition of asylum seeker in UK law: The NIAA, 2002 defines Asylum seeker. A person considered to be an asylum seeker if his age is 18 years or more, he is presents the United Kingdom, the want for asylum has been made by him at a place selected by the Secretary of State, the Secretary of State has recorded the claim. Claim must show that the removal of that person must violate UKs responsibility under the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its protocol, or Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms settled by the Council of Europe. Thus, the 1951 Convention and the European Convention on Human Rights remain the foundation of UK Asylum laws. EU Qualifications Directive: Even if a person is not allowed to the protection under the Refugee Convention or Article 3 of the ECHR, he can pursue the claim under the broader Qualification Directive. On 9 October 2006, fundamental changes to the Immigration Rules were introduced, which start an extraordinary detail the criteria for granting asylum or humanitarian protection in the UK. The new Rules are based on Council Directive 2004/83/EC (the 'Qualification Directive' which is inserted in domestic law by the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (SI 2525/2006). The new provisions in Immigration Act, 2014: Previously section 19 of Immigration Act leads frustration to the Government of UK. The main issue was relating to the deportation of foreign criminals. The new provision in 2014 Act indented to indicate this problem. The provision of Public interest is the area of attraction. The Government can take decision regarding the deportation if it involves the question of public interest. The new legislation claims that it is in the public interest that there should be an efficient system of immigration management, along with that its better that the immigrants can speak English and they must be financially independent. The Act says that importance should be preserved to private life and relationships that is established by an individual at a time when that individual is in the United Kingdom without authorization. The new provisions are more rigid in relation to foreign criminals. The public interest must be taken into consideration in case of deportation. The more serious offence involves more question of public person. The Act creates a difference between the persons who are sentence for 4 years and more and person who gets the sentence less than 4 years. There are two exceptions for the deportation of criminals whose punishment is less than 4 years. Firstly, the individual has been lawfully resident in the United Kingdom for maximum span of his life. Along with that he is socially and culturally incorporated towards the nation, and there would be very prominent obstacles to his incorporation into the country to which he is going to be deported. Secondly, the individual has a authentic relationship with a qualifying partner, with a qualifying child, parents and the deportation affects the partner or child very cruelly. Non- Refoulement: The foundation of international refugee is the principle of non-refoulement. This is measured as a very important right under international human rights law. The duty of non-refoulement (Art 33 of CSR 1951) directs States not to return refugee to areas where his or her life would be at danger. The convention is the concept of non-refoulement i.e. the prohibition of remove a refugee and compels to return to a country where his life or freedom would be in danger on account of his race, religion, nationality, membership of a particular social group or political opinion. Conclusion: The harmonization between state and international law is very much necessary. Otherwise people will suffer the problem. UKs new law, The Immigration Act, 2014 somehow lesser the controversy with Art.8 of the convention. Now the prime point to determine before deportation is public interest. . Right to private life and family life is given importance by the immigrations laws. 3. Asylum application for Burian To Office in charge Asylum Screening Unit of United Kingdom Croydon, United Kingdom Application for asylum Dear officer, I represent Burain, a citizen of Ukraine who lived in Sebastopol till 2013. He is an eligible and deserving candidate for asylum under section Article 3 of EU convention on human right 1950, article 33 of convention on the statue of Refugees 1951 and Article 15(c) of the EU Refugee Qualification Directive 2004. On this behalf I submit this memorandum and other supplement document in support of his application of asylum. Factual Summary: Burain is a Ukraine National who lived in Sebastopol till 2013. He lived there with his family. In 2014 February; Russia started to send troops of military apparatus towardsUkraine. Russian backed rebel have expelled him from his village. He is homeless now. He feared that he will face danger of his life because he is ethnic Ukraine who at first confidentially supported Crimean independence from Ukraine. His brother and family supported pro Ukraine. But now they are missing. He is now fears that he may be targeted next because of the political view of this brother and family. For this above mention cause Burain seeks asylum in United Kingdom. Condition of Ukraine: Started from Crimean crisis, the military with unclear authorization intended to take control over the territory of Crimea.Putin originally denied the whole activity of Russia but afterward admitted it that Russian troops were influential in Crimea Now for the militant attacks in Ukraine disturb the life of the citizen and it also became dangerous for the people there. Applicable Laws Article 3 of EU convention on human right 1950 provides the prohibition of torture to the human being (Greer, 2006). In a famous case called Bamber Case it was happened that he was a UK prisoner and won an appeal to the European Court of Human Rights. He was sentenced for whole life without parole. The court said that it was a contravention to the Article 3 of European Convention of Human Rights 1950. UK government is now forced to review the sentence. Convention on the statue of Refugees 1951: According to the definition from of convention on the statue of Refugees 1951a refugee as is individual who due to fear of being victimized on the ground of race, faith, nationality, association of a social group or for observing a particular political opinion is unable or, is unwilling to return to his native place. This Article has a unique feature. It talks about the principle of non- refoulement. This protects the refugees right of protection against forceful return. This Article states that no state can expel or sent bact a refugee whose life is in danger at his own country or territory. The cause can be political or can be social or any other reason (Clayton, 2004). It is extensively established that the prohibition of forcible return is division of customary international law. It implies that the States that are not a party to the Refugee Convention, 1951, also obey the principle of non-refoulement. Therefore, it is clear that the States are also compelled under the Convention as well as customary international law to maintain the principle ofnon-refoulement. Whenever, this principle is in danger, UNHCR can take action by intervening with proper authorities, and if it thinks essential, can inform the public (Simeon, 2013). Asylum law in the UK: After Germany, United Kingdom is the most favorite target for asylum seekers. Asylum laws are considered to be the part of immigration law but it can be differentiate in other aspects. Refugee laws are mainly derived from the international laws but applicable domestically. Mainly it comes from United Nation CSR1951, amended in 1967. UK ratified this. Along with this several provisions of the European Human Rights Convention on Human Rights are relevant and have been the foundation for the European Court restructuring immigration decisions of State parties. The 1993 and 1996 Asylum and Immigration Acts marked as first open acknowledgment of the obligations of UK under Geneva Conventions. R (European Roma Rights Centre) v Immigration Officer at Prague Airport[2004]UKHL 55is a asylum case of UK relating to Article 33 of theConvention Relating to the Status of Refugees. The fact of the case is that Romas are the people who are the in more and more time refused to enter to the United Kingdom under the British rule and policy relating to immigration. If state officials determined that the passengers would seek asylum after they arrived, they immediately refused the entry. The ERRC brought this action against this kind of action alleging that it is a direct discrimination to a cluster of asylum seekers. Roma experience discrimination at their territory. The claimants argued that the Government, represented by Greenwood QC, was violating its international duties. TheCourt of Appeal could not find any discrimination. The House of Lords held the procedure was naturally and methodically biased and contrary tosection 1(1)(a) Race Relation Act, 1976.Roma were intentionally quest ioned because the officers had knowledge that generally all Czech asylum seekers were Roma. So, they were treated less sympathetically on racial grounds that are a direct contravention of domestic and international law. The main question raised in this occasion is that when there is single law then why a particular race will be treated less favorably. The ground discrimination was race. So this motive is totally void. The main object of legislation is to promote each persons equal right. There should not be any discrimination is the ground of race, sex, colour, creed etc. when the legislation itself is a non discriminatory one then it is unlawful on the part of the officials. But after different opinion of the judges the appeal was failed. The majority of the panel thought that there was no international law that is essentially required the Roma to be permitted into the country prior to they give application for asylum. The failure of the State to provide adequate protection to an a sylum seeker was an essential part to constitute maltreatment under Art.1A (2) Geneva Convention on the Status of Refugees 1951. EU Refugee Qualification Directive 2004 This Article also protects the right of the refugees. This Article talks about the condition of serious harm to a human being. According to this Article serious harm consist of death penalty of execution; secondly it includes inhumane and dangerous torture or punishment of the applicant from a country of origin (Vrachnas, 2005). Finally it includes serious and personal threats to a citizens life for the reason of random violence and attack in the country (Clayton, 2005). HJ (Iran) and HT (Cameroon) vSecretary of State for the Home Department In this case it was determined by theSupreme Court of the United Kingdomrelating to two individual who are the native ofIranandCameroon. They claimedasylumin theUnited Kingdomfor their homosexuality as the ground. The persons appeal was rejected previously on the ground that they could not face harassment in their own nation if they would hide their sexuality. Interventions were prepared by theEquality and Human Rights Commissionand theUnited Nations High Commissioner for Refugees. Both of this Gay man of Iran and Cameroon arrived at UK but arrested by the police for using false passport. After that they claim asylum. It was held that the individual could not be likely to hide their sexual desire and that it was erroneous to apply prudence test in this situation. Both the cases then sent for reconsideration according to the recommendation given in judgment. Asylum in the United Kingdom is maintained by theUK Border Agency but they refused asylum in both cases. The Court of Appeal observed that theAsylum and Immigration Tribunalwas permitted to locate that HJ was likely to bear the requirement for prudence on his depart to Iran, so there was no case of asylum. The Court observed that HT also unable to prove the requirement for asylum. The Court held that on this basis both of them are entitled to return to their native country of origin. Grounds for application: Burains family believes in a particular political opinion so he can in danger if he returns to the country of origin. So he wants protection under article 33 of convention on the statue of Refugees 1951. There is an improved dependence on the ECHR in asylum cases. It can be stated that there is a risk the to the asylum seeker that they can be subjected to inhuman treatment which contrary to Article 3 and or his right to respect for his private and family life, his home will be violated which is contrary to Article 8 if he is returned to his country of origin . This is applicable to this case also. Burain is entitled to get asylum because he is entitled under Article 15(c) of the EU Refugee Qualification Directive 2004 Conclusion: After discussing all this matters it is proved that under Article 3 of EU convention on human right 1950, article 33 of convention on the statue of Refugees 1951 and Article 15(c) of the EU Refugee Qualification Directive 2004 Burain is entitled to claim asylum in UK because UK is a state party to all this conventions. For all this above mentioned cause and discussion, Burain respectfully requests to this authority for asylum. 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