How the British Government continues to violate Human Rights for failed Asylum Seekers. A petition for Activist groups.
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How the British Government continues to violate Human Rights for failed Asylum Seekers. A petition for Activist groups.
by Collins Bunjira on Sunday, 03 April 2011 at 13:37
The attempt of guidance given in this document doesn't substitute for legal advise, but is merely made available for activist groups who wish to campaign for the rights of failed Asylum Seekers around the UK - Especially Zimbabweans.
. This guidance aims to show precedance of how the British government is violating Human Rights of failed Asylum seekers in accordance to Paragraph 353 of the Immigration Rules, when considering section 4 Fresh Claim Submissions, and applying ECHR Human Rights Act.
We ask for the Home Office to consider different countries': political cultures; political atoms; environmental cultures and aspects; variance in social differences of different countries. We ask for individual cases not to be dealt with British common sense as opposed to Zimbabwean common practise. { A report shows that 70% of asylum support decisions are overturned for represented applicants. CAB evidence briefing, ‘Supporting Justice: the case for publicly-funded legal representation before the Asylum Support Tribunal’, June 2009. }
Perhaps the UKBA may see merit in considering to employ positive decisions outside the immigration rules.
It is without a doubt that discretion is an essential part of law. [...] it is not possible to anticipate every eventuality that may arise, so there remains scope to grant Discretionary Leave where individual circumstances, although not meeting any of the other categories, are so compelling that it is considered appropriate to grant some form of leave. }Current UKBA Asylum Policy Instruction ‘Discretionary Leave’ updated November 2009 http://www.bia.homeoffice.gov.uk/sitecontent/documents/policyandlaw/asylumpolicyinstructions/apis/discretionaryleave.pdf?view=Binary )
Under common law, the state is required to treat people humanely. More than 200 years ago, the UK courts stated –
As to there being no obligation for maintaining poor foreigners before the statutes ascertaining the different methods of acquiring settlements, the law of humanity, which is anterior to all positive laws, obliges us to afford them relief, to save them from starving. (1803) 4 East 103, 102 ER 769 at 770.{
Firstly, this principle has been applied in cases such as R v Secretary of State for the Home Department, ex parte Joint Council for the Welfare of Immigrants which concerned the denial of social security benefits to asylum seekers who did not claim asylum on arrival in the UK and those whose claims had been rejected by the Secretary of State and were pending appeal.
Secondly, the UK courts have recognised a constitutional right of access to the courts (including tribunals and other adjudicative mechanisms) at common law. { R v Secretary of State for the Home Department ex parte Saleem [2001] 1 WLR 443 per Baroness Hale at 458 – “in this day and age a right of access to a tribunal or other adjudicative mechanism established by the state is just as important and fundamental as a right of access to the ordinary courts”. }This includes the right of an individual to unimpeded access to a solicitor to seek legal advice and assistance. { Raymond v Honey [1983] 1 AC 1, HL; R v Secretary of State for the Home Department, ex parte Anderson [1984] QB 778, Div Ct; R v Secretary of State for the Home Department, ex parte Leech [1994] QB 198; R v Lord Chancellor, ex parte Witham [198] QB 575, Div Ct. }
If we are to consider case law of Shah v Barnet LBC in 1982, tto satisfy the “lawful” component of the ordinarily resident test. He says:- he judge has ruled that, in his view, other case law{ I can see no reason why a person lawfully living in the United Kingdom… should not become ordinarily resident by dint of his voluntary wish to settle, coupled with residence for a significant period… A person whose claim to asylum (which might carry with it a wish to return to his native territory when the threat to him has lessened or gone), has failed, but who refuses to leave voluntarily is likely to be determined to remain in the United Kingdom if he can. Significant residence with that purpose is likely to provide proof of ordinary residence. }
RT (Zimbabwe) & Ors v SSHD [2010] EWCA Civ 1285 }
The court in RT (Zimbabwe) was asked to extend the same reasoning (of HJ (Iran) ) to political activism, ie, that an individual found to hold genuine political beliefs should not be required to modify their behaviour or deny their beliefs in order to avoid persecution.
An appellant should not be required to pretend that they are loyal to the Mugabe regime, when they are not, in order to avoid persecution. I cannot be expected to lie about their true political beliefs, or lack of them. This must be understood against the background that in the particular case of Zimbabwe, even a lack of political beliefs is dangerous, since those at risk on return to Zimbabwe are no longer restricted to people who are perceived to be members or supporters of the MDC but include anyone who is unable to demonstrate support for or loyalty to the regime or Zanu PF (per paragraph 258 of RN).
The Court found that a person with no political profile, but who had claimed asylum in the UK, and had been absent from Zimbabwe for a lengthy period of time, should be entitled to asylum, if he is generally credible.
Important Conclusion in The RT:
The general proposition is that returnees cannot be expected to lie about their background and circumstances when asked by the authorities. This means that if they have been politically active, they should be entitled to asylum if going home would result in them being forced to hide their opinions in order to avoid persecution.
Even someone with a low political profile should also be entitled to asylum since he falls in the category of people who would be unable to demonstrate loyalty to the Mugabe regime.
Further, even someone without any political profile should not be expected to lie about the absence of their political beliefs to avoid persecution, as they would be unable to prove loyalty to the Mugabe regime. This covers asylum seekers who rely on simply having been in the UK for a long time and having made an asylum claim.
Credibility remains the critical issue. If someone is generally credible about other aspects of their case, they should be entitled to asylum, even if they have no political profile.
RT (Zimbabwe)
Important FACT on the current political Climate in Zimbabwe:
The situation in Zimbabwe will not stabilise immediately. Activists are still detained, peaceful protesters are still being beaten, and the rule of law does not seem to be functioning. There are disputes and disagreements regarding control of the Reserve Bank and there is a humanitarian disaster still present. Read on Abel Chikomo on the latest Humanitarian crisis.
Written Submission on the count of destitution:
}A person who is unable to meet his/her “essential living arrangements is destitute. {
{Still Human Still Here, ‘Briefing Paper on destitute refused asylum seekers’, February 2009 }If a failed asylum seeker was to require services from a medical practitioner, were to travel to Croydon for any section 4 interview, were to require warm winter essentials, were to have a roof over their head, were to require legal assistance/advice whilst taking into account the level of confidentiality needed in respect to such cases, the asylum seeker were to require food for basic habitable needs: would fail to do this. They have no money and no means of supporting theirself.
{ICAR, ‘Destitution amongst refugees and asylum seekers in the UK’, May 2006}Destitution has affected me mentally and physically. The complexity of the application forms, and the constant need of seeking accommodation instead of life enhancements, exasperates me intimately, which led to the deterrent of efficient communication means between UKBA and myself. This continues to affect me as I feel the social exclusion from the community. I am not whole.
}Had they been given permission to work, they would not have become destitute, and made themselves subject to the desperation they now find themselves under. If they were to obtain temporary rights to work for meeting their leaving essentials, this would bring innumerable benefits to the public purse. Evidence currently does not support the UKBA's position that granting work permission will act as a “pull factor” for asylum seekers. {
}The independent Asylum Commission {
}The court of appeal {
}The Joint Committee on Human Rights {
Legislative Assessment of The Home Office's Position:
Should we support any failed asylum seekers who have been found to have no protection need by the independent appeals system? Yes, there are many circumstances whereby support should be provided to failed asylum seekers, including all those listed at 2 (a) – (f).
Circumstance (d) states ‘where there is another issue outstanding which would require support to be provided to prevent a breach of a person’s human rights’. This should be worded more broadly to correspond to case law that confirms that human rights law requires the state to provide support not just where there is a breach of human rights but also where there is ‘imminent prospect of serious suffering’. { Limbuela case, Lord Bingham, para. 8 and Lord Scott, para. 72. }
Further, destitute refused asylum seekers who have lodged a fresh claim should also be supported while their representations are being considered. Under current arrangements, the submission of further representations does not automatically render a person entitled to asylum support. Case law, however, has confirmed that this should normally be the correct approach, as removing support, only to reinstate it under other provisions, would be a waste of resources. The courts have confirmed that s4 support must be provided to a destitute refused asylum seeker while UKBA considers any further representations that rely on new arguments or evidence that are not manifestly unarguable. Nigatu [2004] EWHC 1806 (Admin). }
Do we agree that the support of those found to have genuine claims should be different from failed Asylum seekers?
The Joint Committee on Human Rights review of the treatment of asylum seekers recommended the introduction of a ‘coherent, unified, simplified and accessible system of support for asylum seekers, from arrival until voluntary departure or compulsory departure’. { JCHR, The Treatment of Asylum Seekers, para 121 }
Indeed, the Committee saw ‘no justification for providing varying services of support’ { Ibid }
It is unhelpful to draw distinctions between asylum seekers and refused asylum seekers by having different support systems in place. A single system whereby all asylum seekers (including pending/refused asylum seekers) receive the same support could bring substantial resource savings by eliminating administration and review costs.
In addition, a single system could encourage asylum seekers to maintain contact with the UKBA rather than the current system which provides little incentive to asylum seekers to refrain from going ‘underground’ if their applications are refused. The Home Office estimates the ‘hidden’ group of refused asylum seekers to be between 155,000 and 280,000. House of Commons Committee of Public Accounts (2006) Returning Failed Asylum Applicants, 34th Report of the Session 2005-06 }
Furthermore, the proposal to introduce additional distinctions is hardly in keeping with the simplification ethos currently being pursued with the Immigration Simplification Bill 2009.
I oppose the proposal to remove the right of appeal to the Asylum Support Tribunal for applicants whose support is terminated after three months. Consultation document, page 13 }
A recent CAB report found that the quality of decision-making within the asylum support process is poor. The report shows that 70% of asylum support decisions are overturned for represented applicants. CAB evidence briefing, ‘Supporting Justice: the case for publicly-funded legal representation before the Asylum Support Tribunal’, June 2009. }
This highlights the need for continued access to an independent adjudicator. Until there is a substantial improvement in the quality of decision-making, it follows that UKBA is not justified in limiting appeal rights. Cases are currently heard before the First-Tier (Asylum Support) Tribunal. }
My Assessment of the Asylum process:
I am particularly alarmed by the punitive measures asylum seekeres are made to endure, under a functioning democracy. From the evidence, they have been reduced to data, mere statistics, and sub brackets. Their cases are not being dealt on individual merit from past dealings to date. I fear that The UKBA continues to ignore consideration to the spectre of destitution and the long term negative effect it has on individuals, dependants, charities and wider organisations. To state the FACT, it has costed some relationships, a violation on their article 8 human rights Article 8, ECHR}
Whilst this is happening, law was supposed to provide for them. RN (Zimbabwe CG) [2008] UKAIT 00083. }
ECHR 1950/Human Rights Act 1998: My human rights.
We wish to affirm that all such human rights are being violated by the Home Office and The British Government.We ask the courts, the Home Office, and all parties with interests, to judge for themselves how many human rights violations have been carried out on the said failed Asylum seekers.
Article 1 – Obligation to respect human rights
The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.
Section I – Rights and freedoms
Article 2 – Right to life:
Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
a.) in defence of any person from unlawful violence;
b.) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
c.) in action lawfully taken for the purpose of quelling a riot or insurrection.
Article 3 – Prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 4 – Prohibition of slavery and forced labour
No one shall be held in slavery or servitude.
No one shall be required to perform forced or compulsory labour.
For the purpose of this article the term “forced or compulsory labour” shall not include:
a.) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;
b.) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;
c.) any service exacted in case of an emergency or calamity threatening the life or well-being of the community;
d .) any work or service which forms part of normal civic obligations.
Article 5 – Right to liberty and security
Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
a.) the lawful detention of a person after conviction by a competent court;
b.) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
c.) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
d.) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
e.) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
f.) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.
Article 6 – Right to a fair trial
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
Everyone charged with a criminal offence has the following minimum rights:
a.) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
b.) to have adequate time and facilities for the preparation of his defence;
c.) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
d.) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
e.) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
Article 7 – No punishment without law
No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.
Article 8 – Right to respect for private and family life
Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 9 – Freedom of thought, conscience and religion
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
Article 10 – Freedom of expression
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Article 11 – Freedom of assembly and association
Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.
Article 12 – Right to marry
Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.
Article 13 – Right to an effective remedy
Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.
Article 14 – Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Article 15 – Derogation in time of emergency
In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.
No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.
Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefore. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.
Article 16 – Restrictions on political activity of aliens
Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens.
Article 17 – Prohibition of abuse of rights
Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.
Article 18 – Limitation on use of restrictions on rights
The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.
Conclusion:
Based on the arguments presented in this document, we wish to submit that lengthy absence from Zimbabwe puts failed asylum seekers lives at threat, for the several reasons explored in this written submission. We wish to close the discourse by saying
“…one of the building blocks of democracy and necessarily permeates any democratic { Constitution…. Treating like cases alike and unlike cases differently is a general axiom of rational behaviour.Matadeen v Pointu [1998] 3 LRC 542 at 552; [1999] 1 AC 98 at 109. }
And –
“ { Every person within the jurisdiction enjoys the equal protection of our laws. There is no distinction between British nationals and others. He who is subject to English law is entitled to its protection. This principle has been in the law at least since Lord Mansfield freed “the black” in Somersett’s case (1772) 20 State Tr 1 at 20.Khawaja v Secretary of State for the Home Department [1983] 1 All ER 765 at 782; [1984] AC 74 at 111-112. }”
Why do we still feel like there are double standards if democracy is the order? Article 13, ECHR }
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