The History Of Immigration Law European Essay

Published Date: 02 Nov 2017

C3253947

Immigration

Article 1, on the Convention of refugees contains the definition of a refugee. For legal purposes this definition contains four elements: (i) are outside the country of origin, (ii) a well-founded fear of persecution; (iii) because of race, religion, nationality, membership of a particular social group or political opinion (iv) the protection of the country of origin cannot or will invoke. Further, the aforementioned also applies to a stateless person these are defined as (a person who is not considered as a national by any State under the operation of its law) [1] . The following work will attempt to define these and apply the relevant law in relation to the United Kingdom (UK).

In examining (i), this is referred to as the alienage requirement and is strictly linked to the national sovereignty of states, a notion which signifies the right of a state to exercise full and unlimited jurisdiction within its own borders. However, other states have a duty not to interfere with the inner workings of other states. It is essential in accordance with the definition that an applicant for refugee status is outside their national borders. This element also encompasses refugee sur place. These are individuals who did not flee their nation in order to avoid persecution, but who are already outside their national boarders before the prospect of persecution began. However, if a person has dual nationality they shall not be deemed a refugee until they have availed themselves for protection to one of the other country’s to which they are a citizen [2] . However, once it is established that an applicant is beyond their national boarders, it must then be looked at who is behind the persecution.

The sources may stem from government or State itself. Even, certain Legislation may discriminate or persecute people on grounds of their sexuality or gender. State bodies, like the police or armed forces, may be acting under government orders and enforcing harassing rules. Further, persecution may originate from the State if it fails to take steps to protect its citizens from officials who abuse their power. Persecution can also take place by citizens themselves; these are known as non-state actors which will be discussed later. With the source of the persecution established persecution its self needs defining.

There is no definition of ‘Persecution’ in the Geneva Convention on refugees. The United Nation High Commission for Refugees (UNHCR) Handbook suggests that "it will involve a threat to life or liberty; it could extend to other threats. In agreement with the UNHCR Handbook and on the underpinning of relevant case law it may be established that while a threat of deprivation of life or physical freedom permanently amounts to a well-founded fear of persecution, other discriminations of human rights can constitute persecution within the meaning of The Refugee Convention article 1 A(2). Furthermore, GOODWIN-GILL has argued that "less overt measures, such as the imposition of serious economic disadvantage, denial of access to employment, to the professions, or to education, or other restrictions on the freedoms traditionally guaranteed in a democratic society' can give rise to persecution as well [3] .

The fear of any persecution must be present [4] ; yet, past persecution will be a good indicator as to whether a person may have a current well-founded fear of persecution. The Immigration Rules para 339K provides "that the fact that a person has already been subject to persecution, or to direct threats of such persecution, will be regarded as a serious indication of the person’s well-founded fear of persecution, unless there are good reasons to consider that such persecution will not be repeated". Nonetheless, no history of persecution is not determinative of any future risks. However, it is down to the applicant to show a fear of persecution.

Nonetheless, difficulties may be apparent in obtaining evidence to supports the credibility of applicant’s testimony because of current affairs within their Country of Origin. In fact, it is a fair assumption that a person fleeing persecution may leave behind documentation. However paragraph (196) of the UNHCR hand book states "if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt". Although this statement puts the burden of proof on the person claiming refugee status, this is in stark contrast to the large majority of British Law. The British legal system presumes innocence until proven guilty. Here it seems to be in an ideological way guilty until proven innocent.

With it been impossible to predict the future the House of Lords in Sivakumaran [1988] ruled there must be a reasonable degree of likelihood of persecution. In essence this has meant that the standard of proof required is one that is lower than the normal civil standard, as it is assessed on "a reasonable chance" or a "serious possibility" of persecution. Karanakaran [2000] fails to state a particular standard of proof; instead it promotes "positive" approach to evidence counting that which may be uncertain. Yet, as previously mentioned the Burden falls on the claimant.

When assessing a claim the Home Office will apply a Subjective test and an Objective one. Yet, a person may fear persecution; however, a claim may be rejected if there is very little likelihood of that persecution ever coming to fruition [5] . Yet, the pivotal point of any claim is the testimony of the claimant. The Home Office will ask the question does the claimant have a genuine fear of persecution (the subjective element). Yet, in-turn the Home Office may exam evidence of the current state affairs within that country to debunk any claim of persecution, (the Objective element).

At times the claimant may have within their possession documents to support their claim. This may include things such as Newspaper clipping, Political party membership cards and arrest warrants. If a claimant can produce evidence of injuries and scarring, this will be assessed by an expert and should it be found to be contestant with the testimony this evidence will also be given due consideration [6] . Yet the persecution must fit into one of the Five ground mentioned earlier.

The persecution must be associated with race, religion, nationality, membership of a particular social group or political opinion. These Convention grounds are generally constructed broadly, especially the concept of membership of a particular social group.

A social group' refers to persons who fits to a group characterised by a shared and habitual features, such as background, sex, colour or social standing. The UNHCR has defines these as "A particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society". The characteristic will often be innate, unalterable, or which is otherwise essential to individuality. This interpretation was adopted in Secretary of State v. K [2006] UKHL 46 by the House of Lords.

To establish persecution on grounds of political opinion, the applicant must show more then they hold opinions which there government opposes. It needs to be proven that a state government does tolerate their opinions, and that they are aware that they hold them. However, a claimant that has committed a criminal offences regarding political opposition, cannot base a claim on fear of his country’s normal judicial treatment. However, a claim can be based even if a claimant has no political views opposed by their government, but there government believe they have [7] .

The concept of race includes, colour, descent, or membership of a particular ethnic group. The fact that a claimant belongs to a certain racial group is not normally enough to prove a claim.

Qualification Regulations 2006 reg 6(1)(b) states the concept of religion as holding of theistic, non-theistic and atheistic beliefs. Further, it states the participation in, or abstention from, formal worship in private or in public, either alone or in community with others; other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief. Yet a person can suffer persecution even if it is a family member under duress.

Attacks upon an applicant’s close family can amount to persecution of the applicant, even though; there was no direct threat towards the applicant. The test set for is to ask "what may reasonable happen to one may amount to persecution for the other". Further, no claimant is expected to take reasonable measures to avoid persecution if they return home. Yet, as mentioned at times the persecution can come from non-state actors.

The question which will then be asked is did the state of origins government fail to protect the individual or group [8] . It was deemed this was an essential element, and the claimant had to show a fear of persecution which consisted of acts of violence against which the State was unable or unwilling to provide protection Yet, a factor to be implemented into the decision making process was that any state was not expected to accomplish widespread protection against random and isolated incidents [9] . The Qualification Regulations 2006, now states that, the sufficiency of State protection is to be measured not by the existence of a real risk of an abuse of human rights but by the availability of a system for the protection of the citizen and a reasonable willingness to operate that system [10] . However if an individual may be able to apply for family members to join them.

Those who arrive in the UK to pursue a claim of asylum may also make an application on behalf of their dependants. However, it is known that families become separated if an applicant has fled their home nation in heist. If a successful application is made and an individual is granted refugee status of given humanitarian protection the family reunion programme permits them to be reunited with absent family members. Though, this is limited to your family component at the time of fleeing. The Immigration Rules state that it is only a spouse, either married or not same sex partner and any siblings under the age of eighteen. However, an exception to this rule may be made on the grounds of compassion.

There are times in which the convention definition of a refugee ceases to apply. These are found in Article 1c of the Convention of Refugees. Included are if an individual re-avails himself to the protection of the country of origin. Voluntarily reacquires nationality or becomes a national of another state.

However, there are also times when The United Kingdom can refuse point blank to afford protection. Before implementation a firm reasoning for considering if a claimant has committed an offence under Article 1F. Though, it is the Secretary of State who is under a burden of proof to prove such matters. Clause states:

a) he has committed a crime against peace, a war crime, or a crime against humanity,

Clause A is a none problematic region in which the jurisprudence has been uncontaminated. Evidently there is extensive international law regarding war crimes against humanity. In the UK Article (1f)a is dealt with in a constricting manor and more than a simple affiliation with an organisation which may have carried out the offence is required. Within the UK it would be examined as to the role in which a person embarked upon whilst affiliated to an organisation. This provides a balanced set of results in persons claiming refugee status, i.e, if an individual joined such an organisation due to a well-founded fear form persecution. However, an adolescent soldier maybe the basis of a Refugee claim as there are documented reports of such young soldiers committing war crimes.

Article 1 provisions set out in the Convention on the Rights of the Child provide that: "all actions concerning children... the best interests of the child shall be a primary consideration". Furthermore it is further stated that to "ensure the child such protection and care as is necessary for his or her well-being". The rights laid out in the Convention of the Rights of the Child are utilised U.N.H.C.R. and applied into its own efforts by using Convention as directorial doctrines. It is believed that this methodology is the precise method, further; these provisions under the Refugee Convention should be construed as far as conceivable to stay within the guideline contained in the Convention on the Rights of the Child.

However, a problematic instantaneously arises, in regard to the minimum age of a person criminally liable in regards to war crimes and crime against humanity. There no notable information contained within the Convention on the Rights of the Child, in respect of age stipulation. Article 40 contains the only notable facility when dealing with such matters, on the conduct in disciplinary undertakings, the appropriate provisions which affirms that a State party to the Convention will have sought to find a minimum age beneath which a child shall be recognised to not have the capability of infringing criminal law. Within the UK the age seems to be ten years of age this is affirmed in The European Courts of Human Rights. This could possibly have a detrimental effect on a child aged eleven years who has been groomed for the duration of their short life to be a mercenary.

b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

Clause b) seems to discuss ‘grave non-political offences’ including those cruel in nature, even when undertaken a supposedly political objective. In referral to the criminal offences having been committed externally to the country of protection prior to his admittance for refugee status shall be deemed to any period prior to and including the date of issuing the residence permit which would be in indication that a grant of refugee status was accepted.

c) he has been guilty of acts contrary to the purposes and principles of the United Nations.9

Any acts of terrorism by an active member of an organisation in order to promote its objectives shall create a straightforward submission of Article 1F(c). There must be serious motives for making an allowance for him being guilty of offences in conflict with the principles set out by the United Nations. However, when military action and acts of terror in pursuit of its own political gains and are taken against the Armed Forces of the ruling body, an individual may affiliate with such a society due to the agreements with its policies. Lastly, it is not officially essential that the aforementioned serious prejudiced or other detrimental activities originate from the (central, regional or local) establishments of the state of origin itself; Acts of persecution by parties simply known as non-state actors, and carried out by paramilitaries, death squads and or secret police can also be classed as committing such offences.

No crime will be committed by the United Kingdom if it were to return an applicant to a safe country which is obligated under the Geneva Convention on refugees to grant protection. Generally the principal followed is that an applicant should seek protection in their first port of call. Under EC Council Regulation 343/2003 or the Dublin Convention, the UK is within its rights to return an applicant to other EU Member State which has responsibility under the Geneva Convention on refugees. Yet, the applicant can remain in the UK until the State receiving has accepted its responsibility under the Regulation or the Dublin Convention. An assumption will then be made by the Home Office that the receiving State will consider the claim. The Home Office may refuse these claims ‘without substantive consideration’, that is without looking at other aspects of the claimant’s case, such as whether he fears persecution in his home country.

The Immigration Rules para 339Q(i), allows the Secretary of State to issues UK Residence Permit, valid for five years. When these five years are up an application can be made for settlement. However, this status may be cancelled or revoked. However, different laws thought the EU regarding this and other areas often brought about confusion.

The EU measure of the Qualification Directive was established and brought about to ensure harmonisation (effect an approximation or co-ordination of different legal provision or systems by eliminating major differences and creating minimum requirements or standards when EU countries where considering refugee claims). The intention of this harmonisation is to bring equality throughout a substantive claim and the procedures with an overall intention of creating common criteria throughout the whole process of a refugee application. It should be noted that any decided case law will come from the country of origin in addition to any ruling made in Luxembourg. Further, it should be remembered that any rulings made in Luxemburg will have direct effect in the UK courts and EU law takes Precedent.

However, Directive 2004/83/EC is only effective in determination of a person claiming refugee status from third-country nationals or stateless persons. Furthermore, Directive 2004/83/EC states member states may afford more favourable measures when assessing protection as Directive 2004/83/EC purpose is just to set the minimum standard. In a nutshell what Directive 2004/83/EC main purpose is to set the narrowest interpretation of RC 1915 that any state can offer.

The European Union's minimum standards definition of refugee is found in Art 2 (c) of Directive No, 2004/83/EC. This definition is essentially a reproduction of the United Nations 1951 example. Nonetheless, a person whom has fled a worn torn country is afforded protection under article 2 (e) and 15 of the same Directive. Since 9 October 2006 the UK has had to consider claims for refugee status in accordance with EU minimum standards, set out in Directive 2004/83/EC. The Qualification Directive was implemented into UK law though changes to the immigration rules and he Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (RQR 2006).

It is further recommended by the UNHCR Handbook para 136 "people who have suffered under atrocious forms of persecution should not be expected to repatriate, thus establishing a general humanitarian principle outside the exact terms of RC 1951 that past treatment may sometimes be so severe that enforced return of the asylum-seeker who has suffered such treatment would be inhumane".

Under article 31 RC 1951 no state is allowed to impose punishments on refugees for entering illegally. This is simply because a refugee fleeing a country out of desperation may hold on their person false documentation such as a Passport or Identity documents. In 1999 there was an attempted prosecution in the Magistrates’ Court which failed. The claimant had made an asylum claim in a reasonably time and gave good cause for his illegal entry [11] . However, the exclusion on penalties will only apply if a claimant has travelled straight from their homeland and reported to the authorities straight away.

The vast bulk of claims for humanitarian protection will arise from Asylum claims. Though, an individual might claim to be in need of protection but they are not seeking Asylum and they have not engaged the UK government duties under Article 1a they may be able to claim on humanitarian grounds. However, the requirements are found in the Immigration Rules para 339C these state, they must be in the UK or arrived at a port of entry, they do not qualify as a refugee and substantial grounds established, concerned, if return to own nation they will face a real risk of serious harm and they are unwilling to avail themself to the protection of that country. A person fitting the above definition will be granted humanitarian protection. It should be noted that the standard of proof required in such a claim is a reasonable degree of likelihood or a real risk.

Before the implementation of the IAA 1999, Asylum Seeker could claim income support and housing benefit at a reduced rate. Moreover, before this complete abolishment, consecutive legislation has diminished entitlements under the welfare system. However, the Home Office still provides support though the National Asylum Support Service. They will try to provide housing by contacting local authorities or Private landlords. However, some monies can be obtained if the Claimant is classed as destitute [12] 

It is this writers opinion that the Boarders of the UK are more likely to be relaxed in times of war, where it is likely that large numbers of people are going to be displaced and seeking protection these seems a little bizarre that when one or two individual who are in true fear of their lives and their only wish is to remove themselves from that position that through no fault of their own find themselves in, wishing only to claim the same result, many questions need be answered before admission.

A further point is that seem the Geneva Convention is far outdated in the area surrounding Juvenile soldiers. Many countries throughout the world exploit children for their own gain; these are often children that are orphaned or kidnapped then groomed to perform terrible tasks, of which they know no different. The Convention needs to be changed to make provision for Children that fit into the category laid down in Article 1F (A) of the convention.

It seems that the legislation cannot provide clarity or adequate protection to those who were over the age of 10 year old when committing what could classed as war crime which could hinder their application, moreover, if it transpires that a child of 11 years of age did commit such an act how long will this stigma be attached.

When looking into histories past and contrasting it today it does beg the question it all depends on value, not of life. This was evident after World War Two, Von Brown an engineer who committed acts of terrorism with his V1 & V2 rockets fired indiscriminately at the civilian population of London. He was also a member of the SS whom were responsible numerous war crimes. Yet, when seeking protection from the Russian Army his knowledge of Rocket technology seemingly out wade any war Crimes he had committed. Basically, the American welcomed him with open arms and an open cheque book.

Therefore this writer believes that the rules and players may have changed but the game remains the same. Moreover, for many years manly though press stories a well-founded fear is of cultural differences and being prevalent. Within the UK this fear is so great that it treats its own, namely the Gurkha Regiment terribly after years of loyal service, and until resonantly they to found themselves as being classed as a burden on the British economy. Just think what if all the Gurkha’s had the knowledge create endless fusion; I suspect it would be quite a different story then.

Biblography

http://www.law.qmul.ac.uk/docs/events/pgconf/75225.pdf

http://www.ukba.homeoffice.gov.uk/visas-immigration/partners-families/family-reunion/

http://www2.ohchr.org/english/law/refugees.htm

http://www.refugee.org.nz/Reference/Sydney04.html

http://www.legislation.gov.uk/ukpga/2002/41/contents

http://www.legislation.gov.uk/ukpga/2002/41/section/49

http://www.legislation.gov.uk/ukpga/2002/41/section/18

http://www.legislation.gov.uk/ukpga/2002/41/section/48

http://www.legislation.gov.uk/ukpga/2002/41/section/22

http://www2.ohchr.org/english/law/refugees.htm