This essay considers the immigration and asylum law of the UK as well as the international and European law on refugees and asylum in order to provide legal framework and solution with respect to an asylum seeker in the UK who faces persecution and threat to life in his own country. Zahur’s case raises some important questions about the asylum and immigration laws and rules in the UK. International conventions are also applicable here.
The essay will first discuss the relevant provisions of the international refugee law and then the European human rights regime that impacts the case. The essay will then discuss the UK immigration and asylum law as well as cases in the context of the problems posed by the case.
Zahur arrived in the UK via France in March 2009 and applied for asylum in the UK. He is from Afghanistan’s Naghahar province, which is a stronghold of the Taliban, who are known to recruit young boys to join their terror outfit. Zahur has no family in Afghanistan, as his father, mother and brother were all killed by the Taliban. He is now studying in the university in UK, is married to a British citizen Maryam and they are expecting their first child together. However, after 7 years, the Home Office has taken a call on the asylum application and refused it.
Home Office has refused Zahur’s asylum claim under Asylum and Immigration (Treatment of Claimants) Act 2004, s.8. Section 8 (1) provides for Claimant’s credibility. Section 8 (4) is relevant here because it provides that a claimant’s credibility is impacted by a failure by the claimant to take advantage of a reasonable opportunity to make an asylum claim or human rights claim while in a safe country. It would be pertinent to s.8 (1) and clause (4) here as the former lays down the principle for credibility and the latter refers to making an asylum application from a safe country, which is particularly relevant to Zahur’s case.
Section 8 (1) provides for Claimant’s credibility as follows:
“In determining whether to believe a statement made by or on behalf of a person who makes an asylum claim or a human rights claim, a deciding authority shall take account, as damaging the claimant’s credibility, of any behaviour to which this section applies.”
Section 8 (4) provides that claimant should have made application for asylum from another safe country as follows:
This section also applies to failure by the claimant to take advantage of a reasonable opportunity to make an asylum claim or human rights claim while in a safe country.
A ‘safe country’ is defined as a country to which Part 2 of Schedule 3 applies. As per that schedule, France is a safe country. Because Zahur was in France for a period of two and a half months before coming in to the UK, the authorities may use this provision to say that Zahur failed to apply for asylum in France (JT (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ 878, 2008), therefore his application can be rejected in the UK (Symmes & Jorro, 2010). In Zahur’s case, this could also mean that his case be treated as a Potential Non-Suspensive Appeal, for which he would have to appeal against the decision of the Home Office from outside of UK (GuliK, 2010, p. 14).
The principal international conventions that is applicable here is the Convention relating to the Status of Refugees 1951 and its Optional Protocol relating to the Status of Refugees 1967. The Refugee Convention 1951 defines ‘refugee’ in Article 1(A)(2) as a person who has a “well-founded fear of being persecuted” and “owing to such fear, is unwilling to avail himself of the protection of that country.” In Zahur’s case, this fear is well-founded because his entire family was killed by the Taliban and he himself is afraid that he will be forced into Taliban if he goes back, in which case he should be given the status of refugee (R V Home Secretary, Ee Parte Sivakumaran [1988] AC 958, 1988).
Moreover, the Refugee Convention 1951, article 31 bars states from penalizing refugees for illegal entry if they have presented themselves to the authorities once in the state (Canefe, 2010). As Zahur has done by making an application for asylum, he has therefore presented himself before the authorities as per the provisions of the Refugee Convention 1951.
A recognition as a refugee, is within the powers of the UK government. Immigration Rules (HC 395), Part 11 para 327(a)(b) defines an asylum seeker “as a person who either makes a request to be recognised as a refugee, or, requests international protection under the 1951 Convention.” The noteworthy fact of this provision is that it defines an asylum seeker, leaving the ultimate authority for granting such a status with the government. The government is well within its powers and discretion to allow or refuse such recognition. However, in such cases there may be a possibility that the asylum seeker, if not granted refuge and sent back to his home country, may face persecution or threat to life. In the event of such possibility, it would be contrary to the provisions of the Refugee Convention as well as European Convention on Human Rights (ECHR), for such a refugee to relocated to his home country.
The possibility of persecution if sent back to Afghanistan will play an important role in the determination of Zahur’s status as a refugee. The Refugee Qualification Regulations 2006 defines persecution as “an act sufficiently serious by nature as to constitute a severe violation of a basic human right.” The ECHR, Article 3 protects the basic human right to life by prohibiting torture or degrading treatment. Article 5 protects the right to liberty and security of person. These rights are engaged in cases involving refusal of asylum and deportation, when such a deportation is done to a country where the life and security of the person is threatened (Chahal v United Kingdom, (1996) 23 EHRR 413, 1996).
Therefore, the state cannot deport an asylum seeker into a country where he faces threat to life. The European commission has decided in a case, that UK cannot deport the applicant to a country where his life may be threatened as that would be a violation of his Article 3 rights (Chahal v United Kingdom, (1996) 23 EHRR 413, 1996). In another case, the European Commission of Human Rights has held that expulsion or extradition of a person to countries where such a person may be tortured or his life threatened is a violation of the ECHR, article 3, which prohibits cruel or inhuman treatment (Decision No. 2143/64, 1964). The Qualification directive, Article 15 provides the definition of ‘serious harm’, which may include death penalty; torture or inhuman treatment or punishment; serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.
Considering the above discussion, Zahur has a strong case for proving that his life and security is threatened by the Taliban if his asylum application is denied and he has to move back to his home town in Afghanistan. However, the state may use the internal relocation doctrine to counter Zahur here by showing that there are parts in Afghanistan where the Taliban does not have any influence and Zahur can be relocated there. It can be argued that sending Zahur back to Afghanistan where the Afghan government will be able to protect him, will not violate the ECHR, Articles 3 and 5. There is some jurisprudence which supports the application of the internal relocation doctrine.
The internal relocation doctrine is relevant here because it provides that even if an asylum seeker is fearful of persecution in his home country, he may find a safe haven somewhere else within his country (Robinson [1997] 3 WLR 1162, 1997). The authorities can consider the internal flight or relocation option if there is a place in the home country where the asylum seeker will be safe (Clayton, 2016, p. 442). This safety may include foreseeable consequences of health as well as the protection of state.
The court has held that Article 8 rights are engaged by the foreseeable consequences for health even where such removal does not violate Article 3, if the facts relied on by the applicant are sufficiently strong (R (Razgar) v SSHD [2004] UKHL 27, 2004). As Zahur is a young man and there are no foreseeable consequences for health if he is sent back to Afghanistan, this case may not provide a support. In another case, the court held that if there is a failure of state in protecting its citizens from violence, it can also amount to persecution (Horvath v Secretary of State for the Home Department [2001] 1 AC 489, 2001). Even if it is shown that Zahur is safe in certain parts of Afghanistan, the fact that he is married to a British citizen who may have to relocate to Afghanistan if Zahur is asked to leave is a relevant aspect of Zahur’s application.
ECHR, Article 8 provides the right to social and family life. As Zahur is married to a British national and about to have a child with her, there are social and family ties for Zahur in the UK. This right has been interpreted widely by both the European Court of Human Rights as well as British Courts. In Maslov v Austria, [2008] ECHR 546, the court held that private life includes “the totality of social ties between migrants and the community in which they live.” In MM (Tier 1 PSW; article 8-private life), [2009] UKAIT 00037, the court held that the totality of social ties can evolve even during a temporary visit to the country.
The courts have usually been sensitive to the fact that UK is a multi-cultural society where the nature and composition of family ties may differ from each other as seen in EM (Lebanon) v SSHD, [2008] UKHL 64. In Beoku-Betts v SSHD, [2008] UKHL 39, the House of Lords held that the provisions of the Nationality, Immigration and Asylum Act 2002, s.84(1) should be interpreted widely and the family unit must also be considered as a whole for the purposes of article
Another question is whether it is reasonable to ask that the child be also removed to Afghanistan where he will have no extended family, as Zahur has no family in Afghanistan. The Borders, Citizenship and Immigration Act 2009 (BCIA 2009), Section 55, imposes the duty on the Secretary of State, to "[have] regard to the need to safeguard and promote the welfare of children who are in the United Kingdom". This is applicable to Zahur’s child.
The financial requirement of a minimum income threshold of £18,600 per annum is required to be allowed entry into the UK. The Supreme Court held that denial of marriage visas to a British national and his Chilean wife, engaged and infringed their article 8 rights (R (on the application of Quila and Another) v SSHD, [2011] UKSC 45, 2011; Clayton, 2016).
A case similar to Zahur’s (Chiqwamba v SSHD, [2008] UKHL 40, 2008), involving a Zimbabwean asylum seeker who married a Zimbabwean refugee and had a child with him. While the situation in Zimbabwe was tense, removals to that country had been suspended indefinitely, however, the Secretary of State ordered her removal when things improved in Zimbabwe. She was asked to apply for entry once removed. The House of Lords upheld the appeal by the applicant and observed that “policies that involve people cannot be, and should not be allowed to become rigid, inflexible rules” (Clayton, 2016).
A major change in Immigration Rules, was effected on 9 July 2012. Since that date, the Immigration Rules have contained a new framework for consideration of the public interest component in cases where applicants allege engagement of ECHR article 8. The changes are in Appendix FM to and paragraph 276ADE(1) of the Immigration Rules. The new rules provide the grounds on which applications are made for entry clearance to or leave to remain in the UK. These grounds are specifically family life grounds or leave to remain on private life grounds. The motivation behind these rules is to make immigration rules superior to Article 8 claims (Home Office, 2015).
However, the Supreme Court has been circumspect about reading the new rules too narrowly so as to not infringe important human rights of people, including right to family life under article 8. This is seen where the tribunal held that because the applicant had established genuine family relations in the UK and had a child as well with a resident of the UK, therefore article 8 was applicable and removal cannot be ordered (Ogundimu (Article 8- new rules) Nigeria, [2013] UKUT 00060 (IAC), 2013).
Lord Bingham also declared views on family rights and asked for flexibility in interpretation of rules ( EM (Lebanon) v SSHD, [2008] UKHL 64, 2008).
Zahur faces a reasonable fear of persecution in Afghanistan. Deporting him to Afghanistan will expose him to a violation of his right to life, liberty and security under ECHR, articles 3 and 5. This can also be gauged from the fact that Zahur’s entire family was killed by the Taliban and the latter still exercises sufficient control over the region in Afghanistan to which Zahur belongs.
His wife and would be child are British and the entire family of his wife, is in the UK. On the other hand, he and his wife have no family in Afghanistan. He has established strong family ties in the UK and is also getting a University education here. Under the ECHR, Article 8, Zahur, his wife and would be child have a right to family life. These rights are established by the case law on immigration laws and the ECHR right to family life under Article 8.
Zahur has established a family life in the UK and he has a British wife and soon to have a British child, it is not reasonable to deny his asylum request simply on a technicality of his being in a safe country for two and a half months, 7 years ago.
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