Analysis of Immigration and Asylum Act 2004 - Case Study Example

Immigration and Asylum Law Part A The UK is by far known to take care of asylum seekers. As compared to other countries in Europe, UK has much more flexible rules to accommodate asylum seekers and to protect them. However, in its own sphere, the laws are complex and keep changing frequently. UK has its first legislation regarding immigration in the 1962 Commonwealth Immigration Act which restricted the flow of passage into the UK from other parts of the Commonwealth. There have been several statutes since then including the Immigration Act 1971 (which is the main statutory source of modern immigration law), Race Relations Act 1976, Human Rights Act 1998 and British Nationality Act 1981. As with all statutes, the process of refinement and adjustment is continuous the most recent of which is the Immigration and Asylum (Treatment of Claimants) Act 2004. Claiming as a victim of persecution as a result of fighting for the rights of a tribe belonging to northern Uganda, Frank (rather an odd name for an Ugandan) is now battling for asylum in the United Kingdom. His case, however, is complicated with the fact that he has HIV, entered the United Kingdom thru Belgium and that he has relatives (a sister and a brother) already residing in the UK. According to the 1951 United Nations Convention on Refugees to which the UK is a signatory, an asylum-seeker is someone of any age who has fled his or her home country to find a safe place elsewhere. Anyone with the claim of persecution is entitled to seek an asylum but the contention is that the applicant must be able to demonstrate a well-founded fear of persecution in their country of origin for reasons of political opinion, religion, ethnicity, race/ nationality, or membership of a particular social group and that he is unable to obtain any protection or assistance from their own national authorities. Since April 2003, a person who does not qualify for refugee status may instead be appeal under Humanitarian Protection grounds. This criterion is a leave to remain granted to a person who would, if removed, face in the country of return a serious risk to life or person arising from a death penalty, unlawful killing, or torture or inhuman or degrading treatment or punishment. This is to comply with Article 2 or the right to life and Article 3 or the 1950 European Convention on Human Rights, especially Article 2, the right to life and Article 3, the prohibition on torture and inhuman or degrading treatment and is codified in the 1998 Human Rights Act. The burden of evidence still lies in the asylum seeker unless there is obvious and publicized threat to the person. After the 30th of August 2005 amendment to the Immigration and Asylum act, the permission for people to stay due to Humanitarian Protection grounds have been extended for 5 years instead of the previous 3 years leave. However, during this period the leave is subject to review and if ever it was found that the asylum seeker purposely deceived the Home Office (the agency dedicated to these issues) and that the persecution did not exist, the leave is revoked. Leaves may also be subject to review because the genuine persecution no longer exists. If Frank does not succeed in pursuing asylum due to persecution, he may resort to family reunion reasons especially that he already has siblings in the United Kingdom. However, the statures existing in the UK provides no automatic right to family reunion until a person has refugee status. Only under compelling compassionate circumstances other than refugee status will applications be considered such as the imminent death of a lone parent working in the UK. Only the immediate family ( spouse and dependent children under the age of 18) can apply for entry clearance to join their spouse/parent in the UK once the refugee status has been granted. Certain documents will be needed such as Birth and Marriage certificates. If this unavailable or is deemed questionable, a DNA test could be conducted with the discretion of the British Embassy. Frank has to provide a compelling reason to convince authorities that he must reunite with his sister or brother. The remaining question now is whether Frank can use his being HIV positive as grounds for seeking a leave We are now faced with two other questions. First, can being HIV-positive or having been diagnosed with AIDS be a barrier to entering the UK Second, where a person is already in the UK, can being HIV-positive or diagnosed with AIDS be a reason which justifies continuing to remain in the UK when that individual would otherwise be required to leave Neither the legislation nor the Immigration Rules specifically mention HIV. The UK has not adopted a ban on persons with HIV entering the United Kingdom, unlike a small number of other countries The principle that applies is that the fact that someone is HIV-positive or has AIDS is not in itself a basis for refusing application. However, there may be cases where a person has no other grounds to remain in the UK, but wishes to seek discretionary leave to remain on the basis that they will not receive adequate medical treatment in their home country. Such applications may be bolstered again by reference to the European Convention on Human Rights, article 3 of which provides that "no one shall be subjected to torture or to inhuman or degrading treatment or punishment". In the case of D v United Kingdom (1997) 24 EHRR 423, the European Court of Human Rights held that it would be a breach of article 3 for the UK government to deport a prisoner, very close to death as the result of AIDS, to his home country of St Kitts where care would be inadequate and he would be at a real risk of dying under most distressing circumstances. However, in 2005, the House of Lords confirmed that the decision in D will be applied only in very exceptional circumstances. In N v Secretary of State for the Home Department [2005] UKHL 31, N, a Ugandan citizen entered the UK claiming asylum. She was diagnosed as being HIV-positive while in the UK. This resembles our case fo Frank. Her claim for asylum was unsuccessful, and she claimed that to return her to Uganda would violate her rights under article 3 of the European Convention. The court rejected this argument, holding that article 3 would not be violated solely on the basis that the medical facilities in the country to which a person was to be sent did not match those in the country which that person was to be removed from. Following the decision in N, current Home Office guidelines state that "where the claimant would be in no worse position than the majority of people in his country of origin who suffer from the same condition, then a grant of Discretionary Leave would not normally be appropriate as it would not be an exceptional case." (Immigration Directorate Instructions, chapter 1, section 8, part 3.4.) It is important, therefore, that if an application for discretionary leave is to be made, that care is taken to prepare a full and detailed case explaining the relevant circumstances. 2. 'Even where the appellant is unlikely to re-offend, the judicial authorities may be prepared to uphold a deportation on the basis that it may serve as an example and deter others.' The basic contention in Clayton's statement is that there exists a relationship between immigration and crime. During the 1990s, when immigration rates were high and crime rates were high and rising, observers posited a link between immigration and crime and several significant pieces of federal legislation were enacted to increase criminal penalties for noncitizens. Economic theories tend to support the concern about a link between immigration and crime. The economic model of crime by Gary Becker (1968), for example, posits that those who have poor labor market outcomes, and thus low opportunity costs from giving up activities in the legal sector, will be more likely to engage in criminal activity. Many studies, such such as that George Borjas (1985), have documented immigrants' poor labor market outcomes, in part because of the low skills that many immigrants bring with them and in part because migration forces the loss of other elements of human capital (e.g., language, social networks) that enable individuals to make full use of their skills. A one-dimensional model of skills would lead one to expect that a population with poor labor market outcomes would also have poor outcomes in other arenas - crime, health, family life, etc. - that society values. The implementation of deportations even when there is sufficient evidence that the offense is not likely to committed rests on the notion that it will serve as deterrence for other immigrants. However, many studies such as that of Butcher and Piehl's (2005) "Why are Immigrants' Incarceration Rates So Low Evidence on Selective Immigration, Deterrence, and Deportation" have revealed that this policy is not actually the best choice for preventing crime commission of immigrants. Although the subjects of this study states that the fear of deportation does deter them from violating the terms of their stay and committing crimes, it is the institutions and its mechanism present in the country they migrated that would determine their propensity to commit crime. If, for example, the immigration office would be as inconsiderate as not accepting their appeal for extension of their stay even in the face of obvious threat, then they would be pushed to providing fake documents. If the country visibly discriminates them from the native population inspite of their earnest effort to comply, they can only resort to committing crime. There is a tendency to argue against deportation even when the appellant is unlikely to re-offend by citing humanitarian considerations and second chances. However, with the current evidence, we have come to know that the failings can be more attributed to the existing social institutions rather than the errors of the immigrants. In any case, the rule of law carries with it the notion that human rights is universal and discrimination based on race or erroneous assumptions have no placed in the legal world. Reference: Becker, G. (1968). "Crime and Punishment: An Economic Approach". The Journal of Political Economy 76: 169-217. Borjas, G. (1985). "Assimilation, Changes in Cohort Quality, and the Earnings of Immigrants,"Journal of Labor Economics, October 1985, pp. 463-489. Butcher, K. and Piehl, A. (2005). Why are Immigrants' Incarceration Rates so Low Evidence on Selective Immigration, Deterrence, and Deportation. November 2005 FRB Chicago Working Paper No. 2005-19 JCIF - Joint Council for the Welfare of Immigrants. (2007). UK Immigration and Asylum Laws. Retrieved May 21, 2007 from http://www.jcwi.org.uk/policy/uklaw/uklaw.html Read More