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Section 1: Laying the foundations
European Convention on Nationality 1997 provides in Article 5 –
Non-discrimination:
- The rules of a State Party on nationality shall not contain distinctions or include any practice which amount to discrimination on the grounds of sex, religion, race, colour or national or ethnic origin.
- Each State Party shall be guided by the principle of non-discrimination between its nationals, whether they are nationals by birth or have acquired its nationality subsequently.
BNA as amended provides that nationals by birth may not be deprived of their nationality if to do so would leave them stateless, but the same protection does not apply to those who registered or naturalized using fraud, false information or false representations.
Do you think that this distinction offends against Article 5?
Section 2: Enabling principles: EU free movement and human rights
Amira is Iranian. She is married to Hans, a German doctor. Amira has been unable to gain entry to Germany to live with Hans as his wife, and they can only spend time together when he gets short periods of work or holiday in Iran. They decide to move together to the UK. Hans has no job in the UK as yet, but is confident of getting one as he is experienced in a sought-after specialism.
Explain their position in European law.
Amira is concerned that if she does move to the UK with Hans she will be seen as an apostate and face severe punishment if she were to return to Iran.
How does this help or hinder their legal position?
Section 3: The system of immigration control
Ronnie is an immigration officer based at Heathrow.
Joe has arrived on a flight from Zimbabwe, his country of nationality, with his passport endorsed with a student visa. He explains to Ronnie that he is returning for a deferred third year of his degree course. He had to take a year out as both his parents were seriously ill in Zimbabwe. His mother has now died. His father is in reasonable health. He has come to finish his degree.
He has a confirmation of acceptance for studies from his University, confirming that he is returning for his deferred third year as he says.
Joe is a mature student. His subject is political studies. Ronnie asks Joe if he had an interview to get his visa in Zimbabwe and Ronnie says he did not. Ronnie notices a book tucked into Joe's hand luggage called 'Liberation Politics in Africa'. He is suspicious. He knows there are a lot of unsuccessful asylum claims from Zimbabwe. He is not certain that it would be right to refuse Joe, as the visa looks genuine, but decides that Joe should be taken into a side room for further questioning. On discovering that Joe is an MDC activist, Ronnie cancels Joe's leave to enter.
Was this action lawful? What legal provisions are relevant and how should they be applied?
Section 4: Entry to the UK
Question 1 (Chapter 8: Family life)
Javed is 29 years old. He has lived in Kashmir all his life and is a national of Pakistan. When he was 19 he married Robina, also a Pakistani national. The marriage did not work, and after two years he and Robina separated. They were divorced in Kashmir by bare talaq.
After some difficult times and negotiations in the family, Javed is now engaged to be married to his cousin’s niece, Shazia, also a Pakistani national, who came to the UK aged nine, as a dependant of her mother. She is 23 and is in full-time employment as a travel agent. The couple have met on three occasions, during family gatherings, and are happy with the family’s plan for them to marry. They will have a traditional Muslim wedding, probably in Pakistan.
Advise them about the issues they will need to consider in order to satisfy UK immigration law.
Question 2 (Chapter 9: Points-based system)
Sufe is from Bangladesh and is 22 years old. He has an undergraduate degree in catering and hospitality and six years of experience working in his uncle’s restaurant. He is interested in coming to the UK but is not yet sure of the best way to do this.
Will he have any opportunity to enter the UK for work, and if so, how can he do this? Would it make any difference if his uncle decided to open a branch of his restaurant in the UK? He is famous for the special delicacies his restaurant offers, and he understands there would be a market for these.
Section 5: The asylum claim
Question 1
Aram is an Iraqi Kurd. He arrived in this country in 2002 and claimed asylum on arrival. His fear of persecution arises from a blood feud which went back over 20 years. A family called Fatin had been instrumental in implementing a plan, devised by Saddam Hussein's regime, to remove Iraqi Kurds from their villages and place them in a camp. The project went ahead in spite of the protests which Aram's father made to senior members of the Fatin family, and Aram and his family moved under sufferance to the camp.
Aram's father received the support of a Kurdish fighting group in his quarrel with Fatin, and in 1986 Fatin was killed, alongside his cousins. The idea got about that Aram's father was in some way responsible for the killing. Aram says that this was not true, and that his father did not instigate the killing.
In 1994 Aram 's father was killed by the Iraqi security forces. Aram believed that he was killed on the grounds that he had been responsible for the death of Fatin, who had been an agent of the Iraqi Government. The following year Fatin's family tried to avenge his death by attempting to kill both Aram and his paternal uncle, who ran a bakery, but they did not pursue their plans once they realised that Aram and his uncle had obtained the protection of the Kurdish Democratic Party ("KDP"). The other main political party in the Kurdish Autonomous Area ("KAA"), the Patriotic Union of Kurdistan ("PUK"), supported Fatin's family. Aram was not himself a member of the KDP, though one of his maternal uncles was a senior member.
In 1997 the family was forced to close the bakery shop and move to an area under KDP control where Aram felt relatively safe. His paternal uncle was killed, however, in 1998 in a fight between the PUK and the KDP.
On 14 March 2002 Aram was shot at from a taxi. He could see the person who shot at him. It was a member of the Fatin family. Aram believed that this was an attempt to kill him or kidnap him. The incident was reported immediately to the police, who were given a description of the attacker and of the car in which he had been travelling. The police notified checkpoints but the car was not spotted. The police could not provide Aram with 24-hour protection, and as a result he went into hiding and in due course left the country.
Aram says that his fear was of the Fatin family. He felt that a truce could not be organised with this family because he was unable to see them in order to negotiate it. If he had any means of effecting a reconciliation he would take advantage of it, but he did not know where they were currently living. There was also a lack of certainty now about who in each family would have the authority to negotiate such a truce.
His claim has been refused on the ground that he has no fear of persecution because the police can provide effective protection, and any fear that he has is not based on a Convention reason. He comes to you for advice on the appeal. What arguments can you make to support his claim for asylum?
Question 2
Ochir has travelled to the UK overland from Mongolia, his home country. He got on a long distance bus in Mongolia and was stowed by an agent into a false roof space. He could breathe through a small tube piercing the roof above him. He was told to stay there until someone came to get him out. This happened some 40 hours later when someone pulled him out by his feet into a wagon containing the bus. He was told that he was in a tunnel under the English Channel, and that he must claim asylum on his arrival at the port. Exhausted and dehydrated after his journey, Ochir asked no questions. Only when he arrived at the immigration desk did he realise that he did not have his passport. He had given it to the man who had pushed him into the roof space when he began his journey. He assumed it would be waiting for him here with someone but it was not.
Ochir wants to claim asylum. What legal obstacles will there be to the progress of his claim, and what procedures can he expect to face in the UK?
Section 6: Enforcement
Question 1
Juanita’s asylum claim has failed, and she has been served with notice of removal to Colombia, her country of nationality. However, it has taken five years for her claim to be determined. In this time she has formed a relationship with another woman, Lily, and they together have care of Lily’s son, who has Down’s syndrome and is profoundly deaf. Lily comes from rural China, where her son would be treated as an outcast. Lily is a student, who hopes to obtain leave to remain in the UK to work after the end of her studies. It would be very difficult for Lily and her son to make a life in Colombia. Juanita makes an appointment with a solicitor to challenge her removal, but before the appointment day she is arrested and taken into detention, at the same time being notified that she will be removed on a direct flight to Colombia 36 hours later.
What is the basis in law for her detention and has it been lawfully carried out? If not, what remedies are there?
Can she challenge her removal? If so, on what basis, and what will the Home Office argue in response to such a challenge?
Question 2
Lena is a Dutch national who has been convicted of possessing heroin with intent to supply. She is due to go to court for a sentencing hearing. Someone in the prison where she has been detained on remand told her that she might be deported. As a European national she thought she could not be. She has a job in the UK and a circle of friends and has lived here for 8 years. She is now 32. This is her second drugs offence. For the previous one she served a year in prison, and thought she would not offend again, but came under financial pressure because her car was written off by an uninsured driver and her landlord put up her rent at the same time.
What factors will govern whether she is deported, and what outcome do you think would most closely accord with legal principle?
Question 3
Ashley is a Jamaican national who has been convicted of armed robbery. He made off with the till from a shop and frightened the shop assistant with a loaded gun. This is his first offence. He was under pressure financially as his girlfriend had just got pregnant and they needed to raise a deposit on a flat so they could live together.
He has lost his job because of the criminal charge. He has been in the UK three years.
What more do you need to know in order to advise him on whether he is likely to receive a notice of deportation? What possibilities are there in law to argue against deportation?