BASIC IMMIGRATION LAW

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1 BASIC IMMIGRATION LAW Introduction Under immigration law, anyone not having a right of abode in the UK is subject to immigration control and can only live, work and settle in the UK by permission (Section 1(1) 1(2) Immigration Act 1971). Those with a right of abode include British citizens and certain commonwealth citizens. Different rules also apply to nationals of Member States of the European Economic Area (EEA). For all other nationals, a system of immigration control is in place. The most relevant provisions of this which apply to victims of trafficking are below: 1. The National Referral Mechanism (discussed during the introduction to today s conference). After conclusive identification as a victim of trafficking, that victim may be given a one year residence permit if this is necessary owing to their personal circumstances or if their presence in the UK is required for continuing police investigations (Article 15 Convention on Action against Trafficking in Human Beings). The residence permit is renewable. 2. Asylum Procedure. The majority of victims of trafficking, unless from the EU, will have their claims assessed through their asylum applications. This means that UKBA will first consider whether they should be granted asylum, or some form of discretionary leave and if this fails will then consider whether they should be granted a residence permit (following conclusive identification under the NRM). This training will cover both the substantive legal basis for seeking asylum and the procedure. Substantive Asylum Law Who can seek asylum: Asylum is granted to individuals who meet the definition of a refugee as set out in the Geneva Convention of 1951 Relating to the Status of Refugees). This definition is applied by all countries who have signed the Convention, including the UK. In order to be recognised as a refugee an individual will have to show that: 1 P a g e

2 Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear is unwilling to return to it. This definition can be broken down into various parts and in order to make a successfully asylum application each part will need to be established: 1. Well-founded fear this means that an individual must be genuinely afraid of returning to their country of nationality or habitual residence, and that fear must be what any ordinary person would fear if they were in the same situation (this is subjective) and when considering the information available about the situation in the country of origin (this is an objective assessment). 2. Persecution there is no definition of persecution in the Convention itself, but it has been understood to mean a threat to the person s life or freedom, or other serious human rights violations. It can also be the result of a series of less serious elements which taken together form a pattern of treatment which amounts to persecution. Discrimination alone will not necessarily amount to persecution, but if the discrimination makes it very difficult, or even impossible for you to, for example, earn a living, practice your religion or access things like education, then it may amount to persecution. Fleeing prosecution for a criminal offence will not ordinarily amount to persecution, unless the law in the country of origin is discriminatory or is applied in a discriminatory manner. In addition the fact that an individual has been persecuted in the past will not be enough on its own to fulfil this criteria which is forward looking i.e. they will need to demonstrate that they fear continued or new persecution if they are returned to their country of origin. 3. For reasons of race, religion, nationality, membership of a particular social group or political opinion These are known as the Convention Reasons. To be a refugee, the persecution feared or suffered must be for one of these five reasons. Victims of trafficking will generally fall into the category of being members of a particular social group: i.e. trafficked women from China. This has been accepted by the UK Tribunals in the following cases: 2 P a g e

3 SB (PSG) Moldova [2008] The Tribunal found that former victims of trafficking for sexual exploitation constituted members of a particular social group. The risk they faced on return would depend on an assessment of whether the Moldovan authorities were able to provide sufficient protection. In this case the victim gave evidence against her trafficker who was convicted and sentenced to five years in prison in the UK, however he was also known to have numerous associated in Moldova and a wide network of contacts throughout Eastern Europe. AZ (Trafficked Women) Thailand [2010] The tribunal found that former victims of trafficking in Thailand constituted members of a particular social group, but not all would be at risk on return. The factors to be considered when assessing risk included age, marital status, domestic background, education, availability of employment and family or other support networks. 4. Is outside the country of nationality An individual cannot be a refugee while they remain in their country of origin. In most cases, they will have escaped a situation of harm in their country and applied for asylum in the country they travel to. For victims of trafficking, they often become refugees after having left their country and therefore almost always meet this requirement of being outside their country of nationality (having been trafficked from there). 5. Is unable or, owing to such fear is unwilling to avail himself of the protection of that country For an individual to be unable to obtain protection from their country of origin, there has to be something beyond their control which prevents them from doing this, for instance civil war or other disturbance, because the authorities of the country of origin have refused a request for protection or that there is objective evidence which shows that the authorities do not take steps to protect victims of trafficking and any measures in place are inadequate to protect a victim. If an individual to be unwilling to avail themself of the protection of their country of origin this must be due to the well-founded fear persecution for a Convention reason discussed above. They will have to show that the danger and harm they fear exists wherever they may go in their country, so that there is no possibility that they can relocate. An individual who can demonstrate all of the above criteria will meet the definition of refugee and should be granted asylum. 3 P a g e

4 Humanitarian Protection If an individual s situation does not fit within the definition of a Refugee set out above (for example they cannot establish that their persecution will be because of one of the Convention reasons), but they still fear that they will be killed or seriously harmed if returned to their country of origin, then they should make an application to remain in the UK on human rights grounds. The application will be made under Article 3 of the European Convention on Human Rights Article 3 prohibits torture, inhuman and degrading treatment, and prevents the UK from removing someone and sending them to a country whether they would suffer: i. Torture deliberate inhuman treatment causing very serious and cruel suffering; and / or ii. Inhuman treatment or punishment Treatment or punishment that causes physical and mental suffering; and / or iii. Degrading treatment or punishment Treatment that causes the victim to feel fear, anguish and inferiority capable of humiliating and debasing the victim and possibly breaking his or her physical or moral resistance. This could include situations where a victim of trafficking, who may now have a child, would suffer undue financial hardship, isolation and no prospects of being able to provide for herself and her child on return. In order to make a successful application they will again have to show that their fear of this kind of treatment is well-founded, that there is a serious risk of ill-treatment as described above, that the authorities in their own country either cannot or will not protect them. They will also have to show that this applies throughout their country of origin and that there is no part of the country in which they will be safe. Following the Judgment of the European Court of Human Rights in the case Rantsev v Cyprus and Russia, victims of trafficking can now rely directly on Article 4 of the European Convention on Human Rights (which prohibits slavery, servitude and forced or compulsory labour) in their claims for protection on human rights grounds. The Court in Rantsev made a number of crucial findings relating to trafficking victims: i. Trafficking itself was now a prohibition under Article 4, which is an absolute right and therefore there are no exceptions to this. ii. States must protect victims of trafficking and potential victims of trafficking. 4 P a g e

5 iii. States have positive obligations not to return victims to a situation where they may once again face exploitation. In order to raise a human rights claim, an individual should make an application for asylum and inform the UK Border Agency of all the reasons why they fear returning to their country. The UK Border Agency will then make an assessment of whether the asylum criteria are met, and if not, will automatically consider the claim on human rights grounds. Procedure for Applying for Asylum Once someone has notified the UKBA that they wish to apply for asylum, the UKBA should make arrangements to interview them about their asylum application. If the individual does not speak English, or they prefer to communicate in a language other than English then they are entitled to have an interpreter present during the interview. The interview will usually be split into two parts. The first part is a Screening Interview where the individual s personal details are taken, and they are asked about how they travelled to the UK. The second part is called a Full Asylum Interview. They will be asked about why they fear returning to their country of origin. It is important for them to explain all of the events that occurred which led them to run away from their country. If they leave anything out, this may later be used against them, and so it is up to them to make sure that they tell the Immigration Officer who interviews them everything that happens. Legal representatives are no longer funded to attend the full asylum interview, so it is important to request that the interview is tape-recorded. The individual can put forward any other evidence in support of their application. The sorts of evidence that can be put forward are: Medical evidence if the individual has been tortured or physically or mentally abused, then they may have ongoing mental or physical health problems. They may have scarring which can be recorded by a doctor. In this case it is advisable to send a medical report to UKBA as proof of this. Evidence of arrest or court proceedings in the individual s country of origin if they have been arrested or prosecuted and this is part of their fear, then they should, if possible, provide the original arrest warrants or letters from the court to the UKBA. If 5 P a g e

6 these are not in English they will need to be translated. Before submitting documents it may be advisable to obtain an expert report commenting on their authenticity. The individual can put forward any other evidence including photos, newspaper articles, party membership cards (if they belong to a political party), birth, marriage or death certificates. They can also send in a full written account of what happened to them. If they have a lawyer acting for them they will usually help them to do this. It can be very helpful as it allows them to tell their whole story in their own words. Once the individual has put forward all the evidence in support of their case, the UKBA will look at the evidence and make a decision on their case. WHAT DECISIONS CAN UKBA MAKE? UKBA can make one of the following decisions: 1. To allow the asylum application and recognise the individual as a refugee 2. To refuse the asylum application, but allow the individual to remain in the UK on Human Rights grounds 3. To refuse the application and refuse any other kind of permission to remain in the UK If the individual is recognised as a refugee they will be given permission to remain in the UK for 5 years. During that time they will have the same entitlements to work, benefits, housing, education and health care that a UK national has. They can also apply to have their family members join them in the UK. Shortly before their refugee status expires you will have to apply for permanent residence, and at that stage your application will be reviewed. If the application is allowed on human rights grounds then the individual will be granted either Humanitarian Protection or Discretionary Leave to Remain in the UK. This will depend on the reason why their application was granted. If the application was granted because although the individual does not fit within the definition of a refugee, they would be at risk of torture, inhuman or degrading treatment if returned to their country of origin, then they will be given Humanitarian Protection. If the application is allowed for any other human rights reason, or if they have serious criminal convictions, then you will be granted Discretionary Leave to Remain. If the individual is granted Humanitarian Protection they will be given permission to remain in the UK for 5 years. During that time you will have the same entitlements to 6 P a g e

7 work, benefits, housing, education and health care that a UK national has. They can also apply to have their family members join them in the UK. Shortly before their Humanitarian Protection expires they will have to apply for permanent residence, and at that stage their application will be reviewed. If the individual is granted Discretionary Leave to Remain in the UK they will be told how long they are able to stay in the UK for. This will be for a period between 6 months and 3 years. If they have been convicted of a serious criminal offence it is likely that they will be granted 6 months leave to remain, and their leave will be reviewed every 6 months. They will not be allowed to apply for permanent residence until they have spent 10 years on Discretionary Leave, and even then UKBA may refuse to allow them to remain permanently. Most other people granted Discretionary Leave will be granted 3 years permission to remain in the UK. When this 3 year period is about to expire, they will need to apply for a further 3 years. At the end of 6 years with Discretionary Leave they can apply to remain permanently. Do criminal convictions affect the kind of status people get? As explained, when the application is allowed on Human Rights grounds, criminal convictions may lead to the individual being granted Discretionary Leave to Remain instead of Humanitarian Protection. In asylum claims, minor criminal convictions should not have any effect. However, if a person has committed a serious offence she may be excluded from the protection of the Geneva Convention. This can lead to refusal of asylum, or to refugee status being withdrawn where it has previously been granted. This does not always happen, but an individual who has committed an offence for which the sentence is 2 years or more should seek legal advice, as it is possible that the UKBA may consider this serious enough to withdraw their refugee status, or exclude them from protection. What happens if the application is refused? If the application for asylum is refused, then the individual will have a right of appeal to the First Tier Tribunal (Immigration and Asylum Chamber) where an Immigration Judge will consider whether the decision to refuse them was in accordance with the law. UKBA can certify the claim 'clearly unfounded'. The effect of a 'clearly unfounded' 7 P a g e

8 certificate under s94 of the Nationality, Immigration and Asylum Act is that the individual is denied any in-country appeal before being expelled to her country of origin. She may bring an appeal from her home country. UKBA will outline all their reasons for refusing the application in a detailed letter, usually known as the reasons for refusal letter. If the application is refused the individual should seek legal advice if they haven t already done so, as appeals usually need expert preparation. There are two things that you should bear in mind: 1. If the individual is detained when the application is refused, they will only have 5 working days in which to appeal 2. If the individual s legal adviser is assisting you through the Controlled Representation Scheme (this is often called Legal Aid ) then they will only be able to represent you for free at your appeal if they think that your case has a chance of success. This simply means better than a chance of success. However, if the prospects of success are borderline or unclear, and the matter is of particular importance (such as an asylum appeal), CLR may be provided. Someone who is refused CLR because of this merits test may apply to the LSC for a review of that refusal. The legal adviser who has decided there is insufficient merit in the case is required to advise the individual on this review procedure, including how to complete the relevant form (called the CW4 form). Lodging the appeal An appeal can be lodged against any 'immigration decision' listed in s.82 of the 2002 Act on any of the grounds listed in s.84 in the 2002 Act (which include asylum and human rights grounds). It is rarely advantageous to file very detailed grounds of appeal. Often the circumstances of the case have changed by the time of the full hearing. Preparing for the Appeal Further evidence can be put forward at the appeal in support of the individual s claim even if has not previously been considered by the UKBA. The most essential piece of evidence will be a witness statement from the individual responding to all of the points that have been raised by the UKBA in the refusal letter. Potential witnesses who may be able to corroborate the individual s account should be asked to attend court and provide a witness statement. Remember hearsay is permitted 8 P a g e

9 in this jurisdiction, so it does not matter that the witness may not have witnessed an incident first-hand. If the witnesses have claimed asylum it is important to try and obtain all of the papers from their asylum application/appeal. If the UKBA has challenged what the individual has said about the situation in their country of origin it may be necessary to instruct an expert to comment on this. This should only be done if there isn t sufficient evidence in the public domain. If medical evidence hasn t previously been submitted it may be necessary to obtain it at this stage for the reasons outlined above. Before the full hearing the matter will be listed for a Case Management Review Hearing. The majority of CMRH s are now done either on paper or on the telephone. They are (sometimes) a useful opportunity to clarify the issues in the case and seek further disclosure. The Hearing As with interviews an individual is entitled to have an interpreter present during the hearing. The standard directions require that the witness statement stands as examination in chief. As a result the scope for examination in chief is somewhat limited and it will often simply be a matter of the individual adopting their witness statement. If the individual is called to give evidence then the Home Office Presenting Officer (HOPO) is entitled to cross-examine her. The purpose of cross-examination is for a party to put its case and give the witness the opportunity comment on it. Law students are trained to cross-examine using closed questions. Very few HOPO s use this technique. Instead most HOPO s simply re-iterate the questions that have already been put to the individual in their interview in the hope that the individual will contradict their earlier account. The individual s representative is given an opportunity to re-examine the individual. However, they are only permitted to ask questions in re-examination which arise out of the evidence given in cross-examination. The Immigration Judge can ask questions at any time, but they usually wait until after the HOPO has finished cross-examination. The Immigration Judge is not permitted to 9 P a g e

10 embark on questioning of an individual aimed at developing his or her own theory of the case. The HOPO will then make their submissions and the individual s representative will respond. The individual s representative will have usually provided the tribunal and the HOPO with a skeleton argument, which outlines the legal argument. THE DETERMINATION The Immigration Judge can allow the appeal on asylum and/or human rights grounds or dismiss the appeal entirely. The appeal can also be allowed to the extent that it is remitted back to the UKBA to make a decision that is in accordance with the law. ONWARD APPEALS If the Immigration Judge has made a material error of law then it is possible to apply for permission to appeal to the Upper Tribunal (Immigration and Asylum Tribunal). An application must first be made to the First Tier tribunal. The application must be made within 5 (in country) or 28 (out of country) days of deemed receipt of the determination. If the FTT refuses permission it must send the parties its reasons. An application can then be made to the UT. If the UT refuses permission then it may be possible to apply for Judicial Review of their decision, but only on very limited grounds. If permission to appeal is granted by either the FTT or the UT then the matter will proceed to an error of law hearing. If a Senior Immigration Judge of the UT finds that there is a material error of law then the matter will be re-heard. 10 P a g e

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