Strengths And Weaknesses Of An Asylum Claim: A Case Study (70 Characters)

In the given case study, Vinnie belongs to Zimbabwe and came to United Kingdom as student on September to study journalism in the University of Birmingham. Vinnie has always been interested in politics and  had been interested in it from a very young age so when he came to the United Kingdom he started showing interest in the MDC- T, which is a political party. Vinnie had always been a supporter of MDC – T. Very soon, Vinnie became an MDC activist and started posting aggressive posts regarding the ruling Zanu-FP party of Robert Mugabe. In the year 2016, Vinnie received a phone call from his father asking him to return home as the CIO agents had come to their home calling Vinnie a traitor as he criticized the government and spoke about overthrowing him. Vinnie was scared from this activity and he thought for applying for asylum. Vinnie feared going home and he wanted to apply for master’s course in the United Kingdom. Vinnie was very unsure as to what he should be doing about his stay. Based on the facts above, the issue that had to be decided here is the strengths and weaknesses of a claim for asylum.

According to the definition contained in the 1951 Convention, a refugee is a person who fears persecution in their home country because of which they seek asylum in some other country. The dateline of 1951 was a result of the wish of the Government at the time when the Convention came into existence. The dateline was set to limit the obligations of a refugee. However, with the passage of time, there was a need to establish the provisions of 1951 Conventions. Thus, a new protocol relating to the status of Refugees was made applicable. The Convention of 1951 contains three types of provisions relating to a refugee:

First, is the basic definition of a refugee, that is who is to be called a refugee or not. Second is the provision related to the legal status of a refugee, this includes the rights and duties of a refugee. Nevertheless, the provisions do not have any influence on the determination of the status of a refugee. Lastly, the provisions relating to the implementation of the laws from an administrative standpoint applicable to any given situation or to any refugee can be dealt here. Thus, in the case study the definition of the term refugee as provided in the 1951 Convention is applicable to Vinnie, as he fears persecution in his home country.

Legal Provisions and Definition of a Refugee

Based on the Country of Origin and Policy Note; Zimbabwe Opposition to the Government Jan 2017, the Amnesty International Annual report on Zimbabwe 2016/17 and the Human Rights Watch report Zimbabwe 2016 it can be said that the chances of persecution of Vinnie in his home country is very high. In the country guidance of the year 2011, it has been stated that there is less politically motivated violence in Zimbabwe as compared to the situation in RN. This was specially related to the fact wherein a person who returned from the United Kingdom having no proper MDC profile would face the real risk of demonstrating loyalty to ZANU PF. However, on the contrary if the person is linked with any kind of MDC activities and if he returns to Zimbabwe, then he would face real risk of persecution from the ZANU PF. The asylum seekers may have to show adverse attention to the ZANU PF. Likewise, if we take into consideration the Human Rights Watch Report of 2016, then also it may be held that Vinnie has high chances of facing persecution. The reason behind this is that people who have criticized Mugabe or his government in any way, including the defenders of human rights have been harassed and threatened arbitrarily. There has been very little scope for justice of human rights in Zimbabwe. The Amnesty International Annual 2016 also published a report wherein the Ministry of Media, Information and Broadcasting Services, threatened a private owned media if the reported about the factional strife within the ZANU PF. Thus, based on the evidences above it may said that there are higher chances of Vinnie to face persecution

In the case of EM and others (Returnees) Zimbabwe CG [2011], the Court held that it is now safe for asylum seekers to return to Zimbabwe as the country has now become safe to return. In the given case, an application was launched with the Court of Appeal. The appeal was allowed in relation to Zimbabweans staying in the United Kingdom whose previous application was disapproved can now return to Zimbabwe peacefully. The Court of Appeal has assured about approval of claim of the issue however, the chance of persecution remains high. This can be regarded as a weakness for Vinnie for applying asylum. It can therefore be held that in the case of Vinnie there are higher chances for his application being approved for asylum in the United Kingdom.

Likelihood of Persecution in Zimbabwe

Nevertheless, it has been noted that people who stay at Britain and have gone there in fear of persecution had to return, as there is a loophole in the current asylum policy system. As per the Home Office, people have been sent back to Malawi first and from there they have gone to Zimbabwe as the opponents of Robert Mugabe regime have acquired Malawian passports as to way to make their exit from Zimbabwe easier. Some people are so desperate that they obtain documents fraudulently so that they may escape from Zimbabwe. Based on the analysis above and after assessing the case of Vinnie, it may be held that there is a likelihood that his application for asylum may be approved by the Immigration Department of the United Kingdom.

Under the 1951 Geneva Convention Relating to the Status of Refugees, any person who wishes to seek asylum in the UK, must establish the following grounds. Firstly, he must prove that he has the fear of being persecuted in his home country on the ground of race, religion, political opinion or membership of any specific social group. Secondly, they are unwilling or are unable to seek protection from their home country. Thirdly, a person must establish the fact that he has suffered terrible harm in the past and there are chances of being inflicted with harm in the future as well from his or her home country. Fourthly, a person may apply for asylum in UK if the government considers that it would be a violation of the ECHR if such person is removed from the country. Lastly, under Article 8 of the Convention states right to respect for family life and private life, therefore in order to comply with the Articles, the country may grant asylum appeal on humanitarian ground.

Therefore, in order to seek asylum in UK, Vinnie must establish the fact that he has the fear of being persecuted in Zimbabwe on the ground of hid political opinion and membership of a particular social group. There are chance of being tortured in the future if he returns to Zimbabwe.

Vinnie applied for his asylum in the year 2016. He was interviewed by the Home Office however his application for asylum was rejected as the department believes that his political profile is not of such a situation where in the Zimbabwean authorities shall be attracted to. Vinnie has a right to appeal and he wishes the Home Office to consider the issue based on the documentary evidence under the Refugee Convention and the European Convention on Human Rights [ECHR].

Case Study of EM and Others (Returnees) Zimbabwe CG [2011]

For a refugee, lack of documents to prove identity can become a source of inconvenience. In almost all countries, it is very essential that a person is able to prove his identity and that his stay in the given country is lawful. Refugees who leave their country to seek asylum in fear of persecution in their home country need to produce many documents so that their application for asylum is approved. Vinnie needs to provide his travel and passport documents, registration certificate of police, documents of identification such as birth cards or any additional information that may help his application being approved. Additionally, Vinnie will also need to prove that he is currently residing in UK and an address proof for the same shall be needed. Vinnie shall also need to produce his bank statement, book of housing benefit, tax notice of council and house hold bill.

If the above-mentioned documents are furnished duly then an interview is fixed with the Home Office. In the interview, Vinnie should clearly explain why he fears persecution in Zimbabwe and why he is afraid of going back to his country. With the help of Refugee Convention and the European Convention on Human Rights [ECHR], additional documents such as examples of persecution in the past for similar case can be produced to the Home Office so that his stay may get extended.

The practice of states for granting asylum is very traditional. The idea of political asylum is the basic right that was first expressed in Article 14 of the Universal Declaration of Human Rights. The idea came from the concept when people feared Nazi persecution and fled to some other country during the World War 2.

The Convention of 1951 is related to the status of refugees and the criteria has been broadened as per which states would allow asylum for not just those people fearing persecution on political grounds but also those having fear of being persecuted for reasons related to particular social group, age, sex color or nationality. Thus, it may be held that the Refugee Convention broadened the scope of accepting asylum applications falling under the given criteria. This can be assessed as the strength of human right application as they allow the asylum application because applicants fear risk of persecution.

However, the Refugee Convention granting broad range of rights recognized by the States is silent on the position of those people who have applied for protection. When such protection is not present, the provisions of the ECHR and the Human Rights Act, 1998 has been used to provide protection to the rights of people seeking asylum 

Requirements for Establishing Grounds for Asylum in the UK

Since the beginning of 1990, asylum seekers in the United Kingdom have been made an instrument of endless restrictions on their basic rights. This mainly includes when Home Office rejects application of asylum and there is no right to appeal against its decision. In the given case as well, one of the major issues that Vinnie had faced was his rejection of asylum application by the Home Office. In such cases, it has happened that human rights agents have pitched in to help people seeking asylum in the United Kingdom. One of the biggest problems that asylum seekers have faced is non-applicability of Article 6 of the ECHR that asylum decisions is not a civil right within the meaning of Article 6. This was held in Grand Chamber in Maaouia v. France  and can also become a weakness in case human right application for asylum.

It was for this reason that fast track procedures were created to appeal for the rights of asylum seekers. According to Schedule 2 of the Immigration Act, 1971 the Home Secretary has the power to detain for a limited period. The limitation is on foreign nationals entering United Kingdom.  The Home Secretary used the power in the year 1999 wherein it detained large number of people seeking asylum. In limited number of cases, the Home Secretary may use the power of detention. It is in such cases where people take help of Human Rights activists so that they may help them in getting their application approved. This provides an additional ground for protection especially when it is related to removal of asylum seekers. Even though the given asylum seeker does not seek to qualify for the status of refugee, the Human Right Act allows the courts to restrict removal of asylum seekers return to their given country especially when there is a chance of “Real risk” in his home country. Thus, in the given case study as well. Vinnie will be able to continue his stay in United Kingdom even if he does not qualify to the position of a refugee. The reason behind supporting this is that return of refugees to their original country would increase their chance of persecution. The United Kingdom aims to balance the genuine claims against the non-genuine ones.  

Based on the above discussion it may be held that there is a likelihood that Vinnie’s application of asylum on the grounds of human rights will be accepted and approved and his stay in the United Kingdom can be extended. Vinnie may prefer an appeal based on Article 2, 3, 5, 6, 8 of the Human rights Act. Article 2 states that public authorities must protect life of the people seeking their protection. Therefore, Vinnie is entitled to be safeguarded by the UK public authorities. Under Article 3 the court shall take into consideration the fact that whether the circumstance is such that Vinnie is receiving inhuman treatment. Article 5 entitles every citizen the right to move around freely and must not be locked in any room or building or arrested or detained. Article 6 of the Act entitles citizens the right to a fair hearing and right to receive reasons for a decision made by the Tribunal. Article 8 of the act entitles Vinnie the right to a private and family life. It is for him to decide how to share his confidential information about his personal life or have unlimited and confidential communication with others.

Challenges Faced by Refugees and Asylum Seekers

In UK, if someone has applied for asylum and is waiting for the decision is called an asylum seeker whereas who has received a positive decision regarding the asylum claim is called a refugee. Any person who seeks protection from the country may reside in the country until his claim for asylum is decided by the court.

In the given case, Vinnie is seeking protection from the UK government as he has a well-found fear of being persecuted on the ground of political opinion or the membership of a particular social group. Vinnie may also apply to remain in UK if it is established that it would amount to an infringement of the rights laid down in the 1950 European Convention on Human Rights (ECHR) if the claim for asylum is not granted.

Further, additional submissions may be made to the Home Office after an asylum claim or human rights application has been refused. The additional claim is termed as fresh claim. The basis of such claim should be evidence of the changed situation since the asylum appeals was made or any change in the circumstances of the country. Such evidence must be new matter that has not been submitted before the Home office. The fresh claim must be indispensible to the case and it must justify the reasons for which the person is seeking the asylum right or to remain in the country on humanitarian ground.

In this case, Vinnie may submit a fresh claim before the Home office stating the change in the circumstances and how much he adores his children and that Nyasha has prevented him from meeting the children without obtaining court order. If the Home office is satisfied that the fresh claim establishes that he needs to be protected  he shall be granted refugee status or other leave based on the human rights otherwise the Home Office shall deny him to grant immigration status and he shall have to leave the country.

Article 8 of the Human Right Act entitles every citizen the right to a private and family life. This article may be advantageous for Vinnie as it states that every citizen must respect the private and confidential information of others. It is advantageous, as he does not have to disclose the fact that Nyasha has broken up with him and his seeing another person and that she is preventing him from meeting the children. On the other hand, it also weakens the appeal on the ground that if he does not obtain a court order he would not be able to see his children. Further, having a child who is less than 18 years and is not in a position to move out of the country is one of the grounds to remain in the UK. Therefore, if he is unable to disclose the same, he would neither be able to see his children nor be able to remain in the country.   

Conclusion

Under the Refugee Convention and the Immigration Rules, leaves are granted for a specific period to the refugees who have a well-established fear of being persecuted for the reasons laid down in the Refugee Convention. Vinnie shall be granted a limited leave for a period of 5 years. The objective of granting such leave is to safeguard the refugees who genuinely require protection, thus, complying with the Refugee Convention and the EU legislative provisions regarding protecting and granting limited leaves to the refugees. Article 24(1) of the Council Directive 2004/83/EC of the EU legislation states that immediately after asylum is granted Vinnie shall be granted a residential permit for a period of 3 years subject to the condition that the refugee is not a threat to the public or it the national security.

Further, under paragraph 339 Q of Part 11 of the Immigration Rules outlines the conditions to be fulfilled by the refugees in order to obtain residence permit and a limited leave for 5 years. It states that Vinnie shall not only be granted an initial period of 5 years limited leave but they shall also have a 5-year route to settlement, especially, those who persists to be safeguarded.

In the given scenario, where Vinnie engaged in an intense agreement and injures an UKIP supporter, an intention to deport notice was issued to him by the Home Officer. A refugee status may be revoked after asylum is granted, if it is established that the refugee is a threat to the community or national security owing to the commission of a serious offense. Under such circumstances, the Secretary of state shall revoke the humanitarian protection or refugee status according to Article 1F of the Convention. In the given scenario, since Vinnie has committed an offence he is eligible to be deported from the country under article 1 F of the Convention. When a decision of deportation is taken, a notice for the same is issued to the concerned person acknowledging him of the decision and his right to prefer an appeal. Vinnie shall not be granted the refugee leave to remain in the country.

While Vinnie is under a refugee status, he shall be treated favorably with respect to acquisition of movable and immovable property and other rights relating to the immovable or movable property. He shall be entitled to the right to engage in wage-earning employment. however, in case any restrictive measure is implemented to safeguard the country;s labour market, the refugees shall be exempted only if he has spouse possessing nationality of the country of residence or one or or children possessing the nationality of the country residence. Here, Vinnie has a child with Nyasha who possesses the nationality of the country of residence. Therefore, he shall be entitled to employmen or to engage in self employment under article 17 and 18 of the Refugee convention. Article 20 entitles Vinnie to the right to rationing system of the country as the nationals.

Section 362 of the Immigration Rules defines the Deportation orders, which mandates the concerned person to depart from the country and is authorized to be detained until removal. A person who has been issued a notice of intention deport, may prefer an appeal against the notice within 5 working days from the date of receipt of the deportation notice. The appeal must be filed before the First Tier Tribunal and the Immigration Judge shall decide whether the deportation of the concerned person is in accordance of the statute. A person who has been issued deportation notice can challenge the deportation on the following grounds:

• that he has a parental relationship with a child who is above 18 years of age and resides in UK;
• the child is a British Citizen;
• it is not reasonable for the child to leave UK;
• there is no other family member to who is capable of taking care of the child;
• the person has a genuine relationship with a partner who resides in UK and is a British Citizen, settled in UK or in UK with human protection or refugee leave.

Vinnie may argue on the ground that he shares a parental relationship with a child who is above 18 years is true as he has a child named Tendai with Nyasha and he also looks upon Nyash’a Daughter Melody as his own daughter. Tendai is a newborn baby and is a resident of UK but is not a British Citizen.  It is not reasonable for the child to leave UK.

However, Nyasha is a refugee and is settled in UK but she does not share a subsisting relationship with Vinnie and have asked him to obtain court permission in order to see his child. Further, Vinnie cannot challenge his deportation on the ground that there is no one to take care of the child, as Tendai was being taken care of by his mother Nyasha.

Therefore, the Immigration judge shall taken into consideration the statutory provisions relating to the deportation of Vinnie in order to decide whether his deportation is not against the country’s obligation of protecting human rights.

Deportation refers to the enforceable departure of anon-citizen from a particular country. Enforceable departures may be categorized as voluntary departures, deportations and administrative removals. The Deportation of a person signifies removal of a person and his children from the country on the grounds that if the State Secretary considers removal of such person favorable or conducive to the public good. The court may also deport such person if he is convicted of a criminal offence and has been subject to imprisonment.

Administrative Removals or removals refer to the cases where the non-citizens either have entered the country illegally or deceptively or have violated the conditions of their leave to reside in UK and have been imprisoned. Voluntary Departures takes place when removal procedure is initiated against the concerned individuals. Some people depart by official Assisted Voluntary Return Schemes; some make their travel arrangements and acknowledge the authorities; some individuals depart without acknowledging the government.

The difference between deportation , removal and voluntary departure is that deportation refers to the removal of a person and his children from the country for public good. Removal takes place when non-citizens have entered into the country unlawfully or violated conditions to remain the country. Voluntary departure takes place when the person against whom deportation notice has been issued, departs from the country on his own accord either by acknowledging the Home officers or without informing. Such people cannot re-enter the country. In other cases, they can re-enter the country after ten years but only when the deportation or removal charges have been cleared against them.

Further, individuals who leave country unlawfully, they may be removed and may be prohibited from re-entering into the country for a period of ten tears. If all the asylum applications are refused and the appeal rights are exhausted, the person must leave the country voluntarily, otherwise the Home Office would shall remove such person from the country.

In the given case, if Vinnie voluntarily departs from the country and if he wishes to re-enter the country he needs to apply to the court to set aside the deportation order. Once the order is set aside, the visa nationals may apply for entry clearance.

If Vinnie is removed from the country, it would imply that he has violated the conditions of leave to remain the country and therefore, has been removed by the state officials. If Vinnie is deported from the country, it would also imply that he has infringed the conditions of a leave to remain in the country. Both removal and deportation has an enduring derogatory effect on the person and both makes him an illegal entrant if he enters UK through the common Travel Area. In the event of deportation, the person must apply before the court to set aside the deportation order and only then, the Visa- nationals can apply for entrance clearance. In case of removal, the person cannot enter the country for a period of 10 years.

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