The Socio-Economic Rights of Asylum - Essay Example

?IMMIGRATION LAW Immigration Law Research Diary The research conducted was qualitative and secondary sources were used. In answering Question A, several books, case laws, and journals relating to asylum and immigration were consulted. Most of these books and journals were located in the University library. Some of the journals were accessed on reputable and credible online library, specifically, Ashford and Proquest Online Libraries. These sources provided information on how article 3 does not dictate a minimum standard of social support. Also, they helped provide information in regard to the socio-economic rights of asylum as interpreted by the UK courts. Question A. Over the years, conflicts of all dimensions have plagued several countries across the world; persecution, violence, and war have been taking places in some parts of the world on account of political opinion, religion, race, and nationality among others accounts. As a result, citizens of the affected countries often tend to run away from their countries and seek refuge in foreign countries that they deem to be safe and where their human rights will not be violated nor their lives threatened. This reality has prompted international organizations like the United Nations, regional integrations like the European Union, and nations have to establish conventions, treaties, statutory instruments, and domestic legislation relating to refugees and asylum seeking.1 An asylum seeker has been defined as a person who has flied from their country of origin and has applied for protection in a foreign country as a refugee.2 Such a person claims to be a refugee but those claims are yet to be validated by relevant national, regional, or international authorities. So, the definition of the term “asylum- seeker” is hinged on the definition of the term “refugee”. The United Nations Convention relating to the Refugees Status as amended by the Refugee Convention (1967 Protocol) defines a refugee as a person who is in a foreign country and is unwilling or unable to return to his or her country of origin because of well- founded fear of violence or/and persecution for reasons of their social group, race, nationality, political opinion, and religion.3 However, until such claims by such a person is evaluated and validated by relevant authorities in the country he or she is seeking asylum, the person will be considered as an “asylum seeker”. European Convention on Human Rights 1950 is one of the main international and European treaties or agreements that relates to refugees and asylum seekers. The Convention aims at protecting fundamental freedoms and upholding human rights in Europe. The European Court of Human Rights (ECHR) is established under the Convention, its main purpose being to protect individuals regardless of their nationality from violations of their human rights. Individuals who feel that their human rights have been violated by a member state under the Convention are free to initiate legal proceedings against a member state in that court.4 However, many people and institutions agree that Article 3 of the Convention does not dictate a minimum standard of social support for those in need or even an automatic welfare obligation towards asylum seekers. It is no doubt that the asylum seekers are in dire need of social support; actually, the very sense of asylum seeking. Social support to asylum seekers is important in making them feel that they are cared for and have a sense of belonging even in a foreign country. Social support resources to asylum seekers include but not limited to the following: companionship so as to create a sense of belonging; emotional support; informational support in terms of advice regarding “live” in those particular countries, as well as financial support to ensure that they can attain the basic level of sustenance.5 Article 3 of the Convention is very general and tends to cover the general aspects of asylum seekers. As such, the minimum standard of social support for those in need or even an automatic welfare obligation towards asylum seekers has not been dictated. Consequently, the scope of the article with regard to the socio-economic rights of asylum seekers as interpreted by the United Kingdom (UK) courts is very limited. Article 3 states “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”6 As can be seen, the article simply provides for prohibition of torture and degrading or inhuman punishment or treatment. The article does not have supporting provisions that dictates the minimum standard of social support. Besides, the article has not provided for the limitations or exceptions to this right. It is agreeable that lack of social support to asylum seekers will amount to degrading and inhuman treatment, and ultimately results to violation of the very human rights that the Convention seeks to protect individuals from. The scope of article 3 of the Convention has been explored in a number of cases that have brought out numerous points regarding the article. According to Reidy, social support aspect has been brought out in the article in the following ways: the infringement of article 3 occur when there is a failure to take specific action, which basically amounts to negligence; failure to provide sufficient standard of care; or, deliberate infliction of mistreatment.7 In the case of Tekin v. Turkey, European Court of Human Rights ruled that all ill-treatments that are not torture, that is, they do not have adequate purpose or intensity can be classified as degrading and inhuman. Lack of social support or actions that amounts to deliberate disregarding of the welfare and safety of the asylum seekers, and consequently causing them suffering and anguish amounts to inhuman treatment within the Convention’s article 3, as decided in the case of Selcuk and Asker v. Turkey. Along with that, is the ruling by ECHR (the court) in the case of Ireland v the United Kingdom that degrading treatment within the meaning of the article is that which debase and humiliates the individual concerned, and as a result the his or her personality is adversely affected in ways incompatible with article 3.8 Since article 3 does not dictate minimum standard of social support to those in need or even an automatic welfare obligation towards asylum seekers, there is a very high possibility that most of them have inadequate and below minimum standard of social support thus causing them suffering and anguish. Inadequate or lack of social support resources to asylum seekers such as companionship, emotional support, and financial support means that they barely attain the basic level of sustenance. As such, the objectives of article 3 of the Convention are not met.9 As has been noted, the scope of article 3 of ECHR 1950 with regards to the socio-economic rights of asylum seekers is limited, thus limiting its interpretation by the courts of the member states. In particular, the United Kingdom courts are limited in their interpretation because in as much as the article 3 has provided wide latitude for interpretation, it has not dictated the minimum standard on key aspects such as social support. It has been argued that the greatest challenge in interpretation of the article not only in the United Kingdom courts, but also in other member states court is the classification of the human rights in the European Convention on Human Rights as either absolute or conditional rights. In the case of the United Kingdom, its domestic law- the Human Right Act 1998 incorporates the two types of rights.10 UK courts interpret the article based on both the Convention and its domestic laws relating to asylum seekers and refugees. There is a common ground on the view that the UK does not have explicit acknowledgement of socio-economic rights. Lack of explicit recognition of these rights by the UK law has made the interpretation of the article more limited. As a result, the asylum seekers in the UK have been greatly disadvantaged as their socio- economic rights have not been explicitly and comprehensively guaranteed. Actually, compared to other EU member states, asylum seekers in the UK are considered as among the most “destitute”.11 Socio-economic rights of asylum seekers in the UK have been greatly trimmed through a number of regulations that have withdrawn certain benefits from them. In some cases, the courts have taken note of this situation and have sought to help in enhancing socio-economic rights of the asylum seekers in the country. For example, in the case of R v Secretary of State for Social Security ex parte Joint Council for the Welfare of Immigrants, the court observed that asylum seekers could not work and therefore denying them basic socio-economic entitlements would make their lives so destitute, a situation that no civilized nation (like the UK) could tolerate. The court went further and argued that socio-economic rights is essential in exercising the “right to life” that is not only entrenched in the Convention, but also in the domestic law- the Human Rights Act 1998.12 As such, socio- economic right should not be treated as a distinct compartment of rights, but rather a joint right. This position held by the court in this case was informed by the fact that “human dignity” as a fundamental principle is recognized by the UK law, and therefore, duties may arise for public authorities to offer help to persons who would be left destitute without such assistance. The value of security, respect, and dignity has achieved constitutional status and forms a major principle of constitution in UK law.13 While interpreting article 3 of the Convention in regard to the socio-economic rights of asylum seekers, the UK courts refer to the value of “human dignity” as evidenced in several cases involving asylum seekers. The Court of Appeal in the case of R (Q and Others) v Secretary of State for the Home Department, held that withdrawing financial support from asylum seekers will not only make them destitute but will also violate article 3 of the Convention. Nonetheless, the concept of “dignity” has limitations that make it not to be too influential principle of constitution. This is because the rights that it represent is not well encapsulated, both on socio-economic and political level. This limitation is manifest in the case of Mathews v Ministry of Defence where the court held that the exact limits of “dignity” is debatable and uncertain as socio-economic rights cannot be traced in the article 3 of the Convention. Therefore, identification of socio-economic rights using “dignity” in the court of law is inadequate. This is because if this ambiguous notion is used in protecting socio-economic rights of the asylum seekers, then the concept would be used to protect aspects that are not within the “scope” of socio-economic right.14 Legal enforcement of socio-economic rights for asylum seekers in the UK under the scope of article 3 of the Convention is through indirect protection of socio-economic rights and substantive legal enforcement of socio-economic entitlements. Indirect protection of socio-economic rights is under the principles of judicial review, as noted in R v North and East Devon Health Authority ex parte Coughlan. It should be noted that in an event that political rights recognized under the HRA or common law and social economic concern intersect, there is a high possibility of legal enforcement being tilted in favour of socio-economic entitlement. However, as noted in the case of R v Gloucestershire County Council ex parte Barry, courts are sometime reluctant to allocate resources on socio-economic entitlement as the concept of “need” may sometime be relative. In addition, several cases have shown that sufficient level that is sufficient to raise an issue of socio-economic destitution under article 3 of the Convention is intrinsically vague. In the case of R (S) v Secretary of State for the Home Department, the court rejected that the degree of socio-economic destitution required in order to raise a concern under article 3 is certain.15 Also, legal enforcement of socio-economic rights for asylum seekers in the UK under the scope of article 3 of the Convention is through substantive legal enforcement. However, this system has proved to be problematic. This system considers whether the subject matter of the claim in the case falls under the Convention rights. This consideration often results to difference in treatment where the treatment given to the claimant is not proportional and reasonable and therefore cannot be justified. However, recent cases in the UK suggest that the judiciary is moving towards correcting the anomalies in the substantive legal enforcement of socio-economic rights asylum seekers by incorporating both the domestic laws (HRA 1998) and article 3 of the Convention. Besides, direct approaches to legal enforcement of socio-economic rights by incorporating these rights explicitly to HRA 1998.16 Bibliography Einarsen, T, 1990, “The European Convention on Human Rights and the Notion of an Implied Right to de facto Asylum”, International Journal Refugee Law, 2(3): 361-389 Fell, P and Hayes, D, (2007), What are they doing here? A critical guide to asylum and immigration, Birmingham: Venture Press. Ghai, Y and Cottrell, J, 2004, Economic, Social and Cultural Rights in Practice: The Role of Judges in Implementing Economic, Social and Cultural Rights, Commonwealth Secretariat. Harvey, C, 2000, “Dissident Voices: Refugees, Human Rights and Asylum in Europe” Social Legal Studies, Vol. 9, no. 3 367-396 Oliver, D, 1997, “The Underlying Values of Public and Private Law”, The Province of Administrative Law, Chapter 11. Oxford Higher Education, 2010, Foster: Q & A Human Rights and Civil Liberties, Oxford University Press. Riedel, E. H, (2007), Social security as a human right drafting a general comment on article 9 ICESCR - some challengers. Berlin: Springer. Reidy, A, 2003, A guide to the implementation of Article 3 of the European Convention on Human Rights, Human rights handbooks, No. 6 Smart, K. and Fullegar, S, 2008, The Destitution Tally: an indication of the extent of destitution among asylum seekers and refugees. London: Asylum Support Programme Inter-Agency Partnership. B. Research Diary The research conducted was qualitative and secondary sources were used. In answering Question B, several books, a case law, and a journal relating to asylum, immigration, and deportation were consulted. Most of these books were located in the University library. The only journal used was accessed on a reputable and credible online library, specifically, Ashford Online Library. These sources provided information on how UK law and European agreements address the aspect of deportation. Specifically, they provided information deportation on the grounds of “public interest”. Besides, these sources provided information on how to assess the strength of James challenge against his deportation order, and make an informed recommendation. Question B. Facts James was born in Myanmar on 1 May 1994, and was granted asylum with family on arrival in the United Kingdom, when he was 10.Between 2010 and 2011, there were 3 criminal offences on James record including shop lifting, vehicle taking and possession of drugs but none resulted in custodial sentence, James has had mental health problems and his parents complain that he has been exploited by his gang. Following his involvement in looting of a shop during the August 2011 London Riots, he faces a deportation order to Myanmar in "public interest". Deportation from the UK In general terms, the term “deportation” refers to the removal of a non-citizen (on specified grounds) from a foreign country. The process of deportation is usually based on national and international legal provisions.17 In the United Kingdom, this process is covered under the immigration law Part 13, as well as under articles 3 and 8 of the European Convention on Human Rights and several UK case laws. The immigration law in the UK provides for issuance of deportation order against a non-citizen or a foreign national. A deportation order in the UK sanctions removal of the identified individual from the UK and authorizes that he or she be held in custody until the time of his or her removal from the country. Besides, the order sanctions that the foreign national in question is not eligible to return to the United Kingdom for the period that the order is in force. Such a sanction takes primacy over visa or any other leave to remain or enter in the UK that the particular foreign national might have obtained before. It is important to point out that a UK citizen cannot be liable for deportation, but any other person who has indefinite leave or limited leave to remain in the UK is liable for deportation if there are grounds to do so.18 For a deportation order to be made, the immigration department should have found a sufficient ground to do so. This is because lack of sufficient grounds to deport a foreign national is illegal under both the national and international law. So, what are the circumstances under which a non-citizen would be liable to deportation? According to UK’s Immigration Law Part 13, the following circumstances would make a non-citizen liable to deportation: where the individual is the child under 18 or civil partner or spouse of a person that the deportation order has been made against; where the court makes a recommendation on deportation in a case of an individual who is 17 years or above and has been convicted to imprisonment; and, where the Secretary of State views it necessary to deport an individual for public good.19 Majorly, deportation of foreign nationals from the UK occurs to people who have: failed to observe properly the conditions that the UK authorities had attached to their leave; got into the UK by deception or illegally; extended beyond the period stipulated in their visas. It is clear that the deportation order of James to Myanmar is based on the fact that the Secretary of State has deemed it fit to deport him on the grounds that his deportation would be conducive to the public good. This basis is informed by the view that he James failed to properly observe the conditions that had been attached to his leave. This is evidenced by his involvement in looting of a shop during the August 2011 London Riots. James should be aware that even though the deportation order made against him may contain restrictions including detention prior to being deported, he has a right to appeal against the deportation order. Also, since they were granted asylum with family members on arrival to the United Kingdom, his family may also be liable to deportation. However, in certain circumstances they may avoid deportation. As has been noted, deportation of family members only relates to child under 18 years or civil partner or spouse of the person who the deportation order has been issued against. Since none of these circumstances apply to James’ family members, possibility of their deportation is very remote. Also, it may not apply to them if they live apart or all of them have qualified to live in the United Kingdom. However, the possibility of the deportation of James’ family members may arise if they are dependent on him. Strength Assessment of James Challenge of His Deportation As has been noted, the European Convention on Human Rights, the UK common law, as well as the Human Rights Act provides that James be accorded fair trial regarding his deportation orders and right to appeal against the order.20 In the light of this, it is important to assess the strength of James challenge of his deportation order and thereafter make a recommendation on whether he has a strong challenge or not. The immigration law is very categorical that one of the circumstances that can lead to deportation of a foreign national is if the Secretary of State has deemed it fit to deport him on the grounds that his deportation would be conducive to the public interest. This is the provision that has been applied in making deportation orders for James. This ground is usually applied to exclude or deport individuals from the UK if their presence in the country is deemed to be non-conducive to public interest. It should be noted that this provision also applies to non-citizens who indefinite or temporary leave to remain in the United Kingdom (deportation), as well as to those who are yet to enter the United Kingdom (exclusions).21 The law requires that this provision be invoked by the Secretary of State while acting reasonably, proportionately, and consistently in regard to upholding important United Kingdom values. In an event that the Home Secretary is applying this provision for exclusion purposes, the affected individual has no right to appeal. Conversely, when he or she is applying for deportation purposes, the right to appeal is provided for. These powers (for public interest) are exercised by the government against those foreign nationals who are considered to present a direct threat to: the rule of law or public order in the UK; good relations of the UK with foreign countries; and, national security.22 The Secretary of State has exercised these powers against James after considering that he is a direct threat to the rule of law or public order in the country, as well as being direct threat to the national security. Law abiding citizens agree that the August 2011 London Riots were uncalled for and were a threat not only to the rule of law and public order, but also to the national security. All those who were involved in the looting were committing offence and were liable to be charged in a court of law.23 To James and other foreign nationals, such involvement should have been unthinkable because they are individuals who have been offered a refuge in a foreign country; their stay in the country is not given and can be reversed at any time when the government deems fit. In as much as the ECHR Convention and domestic laws accord them fundamental rights, any activity that pose direct threat to the UK’s rule of law and public order, as well as national security imply that all the rights should be disregarded and they be expelled from the country. This is because the rule of law, public order, and national security interests of any particular country supersedes any individual’s interests (both the citizens and non- citizens).24 For citizens, such acts amounts to imprisonment or any other punitive action, while for the non-citizens the best option is always deportation. Defence As it is now, James challenge against his deportation order is very weak and he might not succeed in his appeal. This situation has been compounded not just by the direct threat that the August 2011 London Riots posed to the UK’s rule of law, public order and national security, but also by the fact that James has previous criminal record although none of them amounted to custodial sentence. His record shows that he had engaged in 3 criminal offences between 2010 and 2011 including vehicle taking, possession of drugs, and shop lifting. However, all is not lost for James in his challenge against his deportation order, as there is a possibility of the defence mounting a good challenge against the deportation order. The first basis of defence can be to argue that James has had mental health problems and as his parents put it; his gang has exploited his condition by getting him involved in the criminal offences. This argument can be strengthened by engaging the services of specialists to ascertain its veracity; the services of psychiatrists should be engaged in confirming whether he has mental health problems. If it is confirmed that indeed he suffers from mental health problems, a strong challenge can be mounted against his deportation order. Here, it can be argued that his actions are not deliberate and cannot therefore amount to criminal offences. Secondly, it can be argued that he should not be deported so that his parents can attend to him while undergoing treatment for the mental health problems. Deportation of James while in the mental condition that he is in will amount to violation of article 3 of the Convention that protect individuals against inhuman and degrading treatment.25 The government can be accused of inhuman and degrading treatment that not only causes anguish and suffering to James but also to his family. Since his deportation does not amount to deportation of his family members, it will be considered unfair and wrong to deport a person who is “mentally ill”, thus keeping him away from people who can care for him; this amounts to infringement of article 3 of the Convention is it results to deliberate imposition of mistreatment, as well as failing to ensure that an individual obtains sufficient standard of care.26 A broad body of case law has shown that deportation of an individual can amount to violation of article 3 of the Convention. In the case of Soering v. the United Kingdom judgment, the court ruled that deportation of an individual should not be seen to amount to violation of article 3 of the Convention. This case also took note of the fact that the person facing deportation may be subjected to inhuman and degraded treatment in the receiving country. It is nearly incontestable that James may be exposed to the same risks that prompted him and his family to leave Myanmar and seek asylum in the UK.27 In addition, if it is confirmed that he has mental health problems, there is no guarantee that he will receive sufficient standard of care in his country of origin because his close family members may be left in the UK, or health services there may not guarantee adequate and appropriate treatment like in the UK. In both cases, it is clear that deportation of James may expose him to inhuman and degrading treatment. Such exposure and the actual ill-treatment (if it happens) would be a direct consequence of deportation.28 Recommendation In the light of the above, it is evidently clear that the Home Secretary has sufficient grounds to deport James to Myanmar. Public interest forms the main ground for deportation order against James. However, as it can be seen James can successfully challenge his deportation orders and be allowed to continue living in the United Kingdom. His challenge will be on two main grounds: status of his mental health and the possible violation of article 3 of the Convention that may be a direct consequence of the deportation. Therefore, James should go ahead and challenge his deportation order. Bibliography Bloch, A, 2002, The Migration and Settlement of Refugees in Britain, Palgrave Macmillan. Geddes, A, 2002, The Politics of Migration and Immigration in Europe, Sage. Gill, G, 1996, The Refugee in International Law, Clarendon. Hayter, T, 2004, Open Borders: The Case against Immigration Controls, University of Michigan Jacobson, D, 1996, Rights Across Borders: Immigration and Decline of Citizenship, John Hopkins. MacDonald, I and Webber, F, 2010, Macdonald's Immigration Law and Practice, Butterworths. Morris, P et al., 2005, Blackstone's Guide to the Asylum and Immigration Act 2004, Oxford: Oxford University Press. Reidy, A, 2003, A guide to the implementation of Article 3 of the European Convention on Human Rights, Human rights handbooks, No. 6, p. 9 Read More