Immigration law and families

“A Study On Immigration Law: To What Extent Do Families Become Detained In The UK For Claiming Asylum Seeker Status; In What Cases The Detention Can Be Seen As Unlawful?”

Introduction

Every day families and their children come to seek protection in the UK in order to escape civil conflicts, prosecution and wars in their original countries. These families may be defined as refugees. According to the UN Convention of 1951 a refugee is a person who is unwilling or cannot be returned back to the country of their nationality due to ‘a well founded fair of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion'. Breaking this down the families must demonstrate that they have a fair, fear of prosecution for one of above Convention grounds that it is well- founded and that the authority in the country from which they have fled are unable or unwilling to protect them. Under these grounds the families may seek asylum in the UK. An asylum seeker is ‘a person who has applied for recognition as a refugee in a country, where they are seeking protection and pending a consideration on their application'. Therefore, in order to be accepted in the United Kingdom as a refugee, the new arrivals must first apply for asylum to the Home Office, which will take a decision on their application. Applications may be made in person by adults either on arrival at a port, or, if the family is already in the UK by personal attendance at the Home Office. More often than not the asylum seekers are faced to a very complex process. This often takes a long time when considering the applications and the Home Office may detain asylum-seekers in special detention centres designated for immigrants and their families. The Home Office is a government department which deals with immigration control and immigration issues including asylum law. During asylum process the immigration detention may be unlawful.

The purpose of this project is to discuss and analyse the reasons why a state is detained asylum seekers' families and their children who are subjected to administrative immigration detention. Also, it is going to examine what factors/ elements of asylum seekers process make arrivals/ asylum seekers to be detained whether its (process) has been worked well. The question is why the immigration officers detain asylum seekers but some of them not; whether it is reasonable to use such power under the Immigration Act 1971 and whether it is necessary to use detention on decision-making process of asylum seekers.Also, it will look what kind of possible protection these people may have regarding their asylum seekers claims in the UK under Human Rights policy/law/articles.

This project is intended to cover the legal concept of asylum process focusing on immigration detention of asylum-seeking families, Home Office detention powers and the limits of those powers, detention policy in immigration removal centres and case law on the unlawfulness of detention. Then, to examine in more details

Claim For Asylum

First of all, to analyse why asylum families is become to be detained, there is need to understand what asylum process is. Families who come to the UK should claim asylum in the Home Office. Then, they will be classed as an "in-country" asylum seeker.

Applying For Asylum

The first stage in the application process is that families will be interviewed by Home Office staff at the ASU about their identity and journey to the UK. This is called a Screening Interview. This interview is not concerned with the reasons why they are claiming asylum.

The Home Office will then issue families with a document known as an IND Application Registration Card (ARC). This document bears a photograph, personal details and details of any dependants. It is a valuable document and should be kept safely. It is the only evidence families have of their status in the UK until a decision is made about the application for asylum.

Consideration Of The Substantive Asylum Claim

Once a Screening Interview has been conducted the Home Office will require precise details of why you are claiming asylum. To obtain this information they usually ask an asylum seeker to complete a questionnaire known as a Statement of Evidence Form (SEF). A document known as a One Stop Notice will also be issued for completion and return (see below "Human Rights Claims")

SEF

If you are given a SEF you will have two weeks in which to complete and return it to the Home Office. The SEF requires you to set out in writing why you left your own country and are claiming asylum in the UK. What you say on the SEF will be taken as the reason for your asylum claim and as such it is very important that a full account is given that covers everything that the Home Office will need to look at. I will assist you in completing the SEF. It will be necessary to for me to take a full witness statement from you about the reasons why you have claimed asylum. This witness statement will then be attached to the SEF and returned to the Home Office together with any documents that you have that are relevant to your claim.

After the SEF has been returned to the Home Office they will called you for a "SEF interview". The interviewing officer will have read the information contained on the SEFand in your witness statement. I will prepare you for the SEF interview. The LSC no longer fund a representative of this firm to attend the interview with you. We would recommend that if it is possible, you pay privately for a representative to accompany you to the interview. The role of the representative is to ensure that the interview is conducted properly. If you are unhappy with any aspect of the interview, you should raise this with the representative who accompanies you immediately. You should not wait until the interview is over. If necessary we will also arrange for an interpreter to go to the interview. The role of our interpreter will be to ensure that Home Office interpreter interprets all that you say correctly. Likewise, you would need to pay privately for this.

During the interview notes will be taken of the questions and of the answers that you give. It is Home Office policy not to read the notes of the interview back to you at the conclusion of the interview. In view of this I advise you not to sign interview notes.

If you do not return a SEF form on time, or do not turn up for the SEF interview, your claim will be refused for "non-compliance".

Asylum interview where no SEF has been issued

If you made an in-country application for asylum before having instructed a lawyer, the initial screening interview may immediately have been followed by a longer more detailed asylum interview which was concerned with obtaining information in respect of your reasons for claiming asylum in the UK. If such an interview has been conducted in your case, I will go through the records of the interview and take your comments on the interview and your answers. I will then make the appropriate representations to the Home Office.

If upon claiming asylum you were not issued with a SEF but are told to come back at a later date in order for a full asylum interview to be conducted, I will be prepared you for this interview. We will discuss in advance the interview process and the questions you are likely to be asked. You will be accompanied to the interview by a representative of this firm and if necessary an interpreter.

Criteria By Which Your Asylum -Application Will Be Judged

When the Home Office have obtained full details of your reasons for claiming asylum, your file will be forwarded to the appropriate section in order for decision to be made. The decision in respect of your claim for asylum will be made by Home Office staff. For your claim for asylum to be successful you will have to show that you fall within the criteria contained in the 1951 Convention Relating to the Status of Refugees as interpreted in the UK. The Convention says that a refugee is someone who is outside his or her country of origin because of a well founded fear of persecution for one of five reasons, namely :-

  1. Race;

  2. Religion;-

  3. Nationality;

  4. Political opinion;

  5. Membership of a social group.

Under the Convention, the UK government can not send you back to a country where you could be persecuted. You will not have to leave the UK until your case, and any appeal you make, has been finalised. However, this only covers returning you to a country where you would be at risk, so you could be sent to another safe country without your claim being considered (see below "Safe third country")

You will need to show that your fears are objectively well founded. To establish this your claim will be assessed against the available evidence about your country of origin to establish whether your claim fits in with the generally known facts about events in your country of origin.

You will need to show that the treatment you fear amounts to persecution. Torture is always persecution and in some situations ongoing discrimination or harassment can also amount to persecution. If you have experienced treatment amounting to persecution in the past this will add weight to your claim that you will be persecuted in the future. However, asylum is meant to protect you from possible risks in the future, not just what has happened in the past. Therefore, even if you have been persecuted in the past, you may be refused if the Home Office believes that circumstances have changed in your country and you would no longer be at risk.

If it looks as though you would be at risk only in a certain part of your country, you may be refused asylum because you can live in another part of your country.

The reason you fear persecution must be for one of the five reasons set out in the Convention. While the categories of race, religion and nationality are self explanatory those of political opinion and social group can encompass a range of situations. I will advise you how best to present your claim so as to bring it within the Convention categories.

The Convention criteria is very restrictive and for this reason it is important that we discuss fully the reasons you have claimed asylum as soon as possible. If your claim does not fit within the 1951 Convention then you may be protected by other international conventions by which the UK is bound. To enable me to fully advise you about the best way to present your case, it is in your own interest to provide full details as to your basis of claim.

Human Rights Claim

Since October 2000 you it is possible to make a claim based on Article 3 of the European Convention on Human Rights. This prohibits torture or inhumane or degrading treatment or punishment. The UK would break the Human Rights act if it sent someone back to a country where he or she would face such a risk.

Unlike the Refugee Convention, you do not have to show any particular reason for the inhuman treatment. If you can show that you would face treatment prohibited under Article 3, the Home Office must allow you to stay and will grant you Exceptional. Leave to Remain in the UK.

The SEF is concerned with claims made under the Refugee Convention. The One Stop Notice is concerned with Human Rights claims.

Safe Third Country

As an asylum seeker you cannot be sent back to any country where you might face a risk of persecution. Your application must be considered and refused and all avenues of appeal exhausted before you can be returned from the countiy you came from.

However, if you passed through another country, even for a very short time, the Home Office may try to return you there if it is a "safe third country". They will not look at the substance of your application for asylum if they do this. They will say that it is the responsibility of the authorities of the safe third countiy to consider whether or not you are a refugee.

If the third country is one of the 14 countries in the European Union together with Switzerland, Norway, Canada and the USA, the Home Office must send your details to the authorities in that country and make a formal request that they take responsibility for your application for asylum. If the authorities in the other country agrees to this, the UK will return you there. If you are to be returned to any of these countries, you do not have a right of appeal against the decision to send you there until you leave the UK. If relevant I will discuss this with you in more detail.

If the Home Office wants to return you to any "safe" country apart from those mentioned above, you will have a right of appeal against the decision. You can exercise this right of appeal whilst still in the UK.

Credibility

Often claims for asylum are unsuccessful because the applicant's account of their basis of claim is not believed. This is usually due to inconsistencies or an inadequate explanation of the claim. It is vital that at the earliest possible opportunity you provide a full account of the reasons you have claimed asylum. If you are not sure about whether a particular matter is relevant to your claim, you should discuss this with me and I will advise you. It is better to provide too much detail rather than not enough. If you have any documents relevant to your claim you should show these to me as soon as possible and I can arrange for translations if necessary. Likewise if there is any individual in the UK who has witnessed things that have happened to you or your family in your country of origin you should mention this to me.

If you have been tortured, bear scars from treatment experienced or continue to suffer symptoms as a result of treatment experienced you should tell me. I may be able to refer you to specialist doctor for treatment. It may also be possible for me to request that a medical report be produced about the torture or injuries that you have suffered. Such a report would support your claim for asylum.

Confidentiality

Everything you tell me will be treated in confidence. All the members of staff of this firm and the interpreters and clerks that we use are bound by confidentiality agreements and will not disclose details of clients or their cases to anyone. Likewise the Home Office and Immigration Service will treat your claim for asylum in confidence. The authorities of your country of origin will not be contacted. If you are concerned about disclosing the reasons why you have claimed asylum for any reason, you should discuss this with me. If you would prefer your case to be dealt with by a representative/interpreter of a particular sex, I can try to arrange this.

The Decision

It is very hard to say how long it will be before this decision is made and the length of time varies between different countries of origin. At present however, new asylum applicants are waiting on average 2-4 months for initial decisions. Unless there are very strong compassionate reasons, supported usually by medical evidence, it is not possible to request that a quicker decision be taken.

If your claim for asylum is successful, you and your dependents will be granted refugee status and immediate settlement. This means that you will be granted indefinite leave to remain in the UK at the same time that you are granted refugee status. You will have an immediate right to family reunion. (Family reunion is the right to bring your spouse and dependent minor children to join you in the UK). It may be possible to obtain assistance from the Red Cross International Welfare Section with the tracing of family members and the cost of family reunion. You will also be entitled to a Convention Travel Document. This travel document will not be valid for your country of origin.

If your application for asylum is unsuccessful, the reasons why will be explained to you in a letter from the Home Office. A copy of the refusal letter together with forms explaining your right of appeal against the decision will be sent to your last know address.

If your application for asylum is unsuccessful, you will have a right of appeal. The period of time within which an appeal must be lodged against the decision to refuse you asylum is very short. You must therefore contact me immediately upon receiving the refusal documents from the Home Office so that I can make sure that your notice of appeal is lodged within the time limit. If you do not wish to appeal the decision you should tell me immediately. If you do not appeal within the time allowed then the Immigration Service will quickly take steps to arrange for your return to your country of origin.

Permission To Work

You will not be issued with permission to work until a positive decision is made on your claim. If your application has been negatively decided within this time and you are appealing the decision, you will not then be given permission to work.

Support And Accommodation

This firm represents you legally in respect of your application for asylum under the 1951 Convention. For expert advice about support and housing matters it is likely that I will refer you to another agency. Briefly however, as an applicant for asylum you may be entitled to assistance from N.A.S.S. To find out about this you should contact:

If you would like the details of community groups dealing with individuals from your country of origin that may also be able to offer you support, advice or assistance, you should mention this to me for details.

Travel

While your asylum application is under consideration, and until there is a final decision in your favour, you will not be able to travel outside of the UK. If you leave the UK your asylum application will be deemed to have been withdrawn. No exceptions are permitted to this rule and the Home Office will not give permission to travel in any circumstances.

Conclusion

The above is a brief outline only. If you require further information or you have any questions about your asylum application you should ask me. While it may not always be possible for me to speak to you if you telephone, you should leave a message so that I know that you have called. If you want to see me you will need an appointment. If you drop into the office hoping to see me it is unlikely that I will have the time to see you. To arrange an appointment you should telephone me and I will also book an appointment for you with an interpreter if necessary. If you wish to inform me that you have changed address, this should ideally be done in writing to ensure that I have the correct details of your new address.

Historical View Of The Immigration Detention.

In the UK the first legislative statutory of immigration control was introduced in the Aliens Act 1905 due to wave of immigrants from Eastern Europe.

The Refugee Convention 1951 and The Protocol of 1967 (posmotret na rus saite- lawfirm)

The legal concept and definition of refugee was introduced in the Refugee Convention 1951 in relation to how asylum seekers should be treated.

The meaning of Convention…….

The purpose of the Convention………..

Who is covered under/by the Convention 1951?

What kind of power a state has to detain AS

What does it mean detention of asylum seekers? The criteria to be detained.

Situations when detention of asylum seekers is applicable.

What problems asylum seekers are faced on their detention?

The main interpretation of the Refugee Convention is in the UNHCR Handbook (What are their functions?). This Convention gives protection to people who has being tortured in their countries not be returned back where their ‘life or freedom would be threatened on account of his race, religious, nationality, membership of a particular social group or political opinion.

Over the last years the immigration Act 1971 has been amended by???????????, however, the main principles of immigration law/ control are come from section 1 of the Act. Section 1 stated that ‘all those who are in this Act expressed to have the right of abode in the United Kingdom shall be free to live in and to come and go into'.

The Immigration Act 1971 provides the legal framework for the modern control of immigration in Britain to reduce the number of people entering the UK. This Act introduces the definition of ‘administrative detention/removal' for people are seeking refugee or who were refused leave to remain in the UK.

Chapter 1: In What Circumstances Is It Lawful To Detain Families?

  • Legal Reasons and grounds for detention

  • Duration of detention (The English Law did not define for how long aliens may be detained in removal centres. Therefore, this is raised problems + consequences of unlawful detention.

  • The power of the state. Asylum seekers' credibility

  • Fast- track procedural rules

  • What other researchers are said about fairness of immigration detention: for and against arguments. Is this process fair? PUBLIC OPINION

The officer will consider whether asylum applicants are qualified for the legal definition of asylum/are fitting in the legal definition of asylum by taking into account all their circumstances such as why they came to the UK and what would happened with them if they return to their original countries. By looking at all these factors an officer then may grant or refuse refugee status.

The Power To Detain Families For Immigration Purposes.

Under Schedules 2 and 3 of the Immigration Act 1971 and section 62 of the Nationality, Immigration and Asylum Act 2002 the asylum seekers may be detained in prescribed circumstances:

  1. On asylum seekers arrivals when he/she is waiting an immigration officer's decision in relation their asylum application. (during an examination by an immigration officer to decide whether or not to grant leave to enter, including those previously were granted entry clearance).

  2. Secondly, when a person was refused leave to enter, who was considered be as an illegal entrant and is pending/waiting the removal directions.

  3. Thirdly, those people are received/served a deportation order or got a notice of intention to deport them under section 3(5) of 71 Act and those are recommended for deportation.

  4. people who are refused to podchiniatsia to removal directions or ‘are reasonably suspected of intending to do so'

Therefore, an asylum seeker who had been refused leave to enter might be detained na neopredelennii period of time.

It seems that everyone, who is the subject of immigration control may be detained during examination by an immigration officer. It seems reasonable that the state has got power to detain and deport people who are committed to a criminal offence, for example made a claim on false documents or had worked illegally in the UK while pending asylum status. There is should be distinguishability between asylum seekers who were detained because of refusal their application by state and those people who did not claim asylum status in the UK. However, it looks ridicules when people, even they have came illegally to the UK to safe their life from torture, also they can be detained under the immigration and asylum system as in the criminal system. Therefore, the question is whether these people who are seeking protection in the UK should be detained; whether there are sufficient reasons for detention them; for what period of time they might be detained and do they have any protection from this deprivation under the human rights law.

However, there are limitations on the power to detain, the UK Borders Act 2007 states that an immigration officer may detain new arrivals only for three hours at a port in case if they have reasonable grounds/believes/suspicious that a person is committed criminal offence.

The Effect On Asylum Seekers From Detention.

In the UK, applicants may be detained from weeks to months. Most of detainees are suffering from a depression that leads to suicide. Since 1989 there have been 10 suicides of asylum seekers in detention(ncadc.org.uk 6 December 2007). From April 2006 to June 2007 there were 251 attempts to self-harm that required medical treatment (see Medical Justice Network)

In the UK, there is 13 removal centres, the most of them are built near ports and airports in order to detain new arrivals there. The detention centres were renamed in ‘removal centres' Most of the 10 immigration removal centres are for men only, but three include facilities for women and children.

However, ‘Chapter 38 of the Home Office's Operational Enforcement Manual stated that detention should only be used as a ‘last resort' and ‘for the shortest possible time''.

Therefore, before to make any considerations in order to keep an asylum seeker in detention, decision – makers should/must have to find out all evidences such as the Medical Foundation report and the report from scientist independent expert of this country for determine this process who gives or have only evidence but not his opinion on credibility of an asylum seeker or a psychological expert( HH( Ethiopia) v SSHD (2007) EWCA Civ 306.--imeuschego znania ob etoi ctrani where asylum seekers came from and only after these he could make decision (Mibanga v SSHD (2005) EWCA CIV 367.

Finally, the first chapter will look at the fast track system that introduced the Fast track procedural rules in order to guarantee a speedy and fair procedure for detained asylums seekers. advantages and disadvantages of fast-track model/procedures in detaining asylum seekers. (Gina). This model voznikla because the home office had difficulties to proceed asylum applications the Ho was too slow in proceeding the asylum applications that it arises neobxodimost to establish a new model to prevent a backlog arising.

Chapter 2: Protection From The Immigration Detention.

  • Article 5 and 8 of European Convention on Human Rights (ECHR)

  • Case law on unlawful detention

  • Where and how detainees may seek protection from detention or alternative ways of detention such as temporary admission.

  • Statistic figures on detention of asylum seekers in the UK

    • Asylum statistics of detainees at centres??? Where families are waiting decisions on their claims.

    • The Cost of Immigration detention.

The human rights of detained asylum seekers families under: The decision to return asylum seekers to their state of origin may engage both Arts 3 and 8 ECHR (freedom from torture, inhuman and degrading treatment and respect for home, family and private life).

Article 8 ECHR: respect for home, family and private life

Article 3 ECHR: freedom from torture, inhuman and degrading treatment

This article has explored the human rights of failed asylum seekers in such a way as to support the conclusion of the JCHR; that their treatment in the United Kingdom interferes with their human rights.

-the definition of detention

The UNHCR, in contrast, defines detention as:

confinement within a narrowly bounded or restricted location, including prisons, closed camps, detention facilities or airport transit zones, where freedom of movement is substantially curtailed , and where the only opportunity to leave this limited area is to leave the country.

The third chapter is a comparative one that will look at the procedures for detention regarding the families in France and how asylum seekers are treated according to the policy of the detention centres there.

How immigration detention is different in France. France: Detention centres to be shut down

Conclusion

    • provide the analysis of perspectives and recommendations on the detention of families with children.

Recommendations are :

To prevent detention of AS the HO must/should employed and trained caseworkers with special knowledge of asylum law and have learn about countries where asylum seekers come from, i.e. there should be divisions between immigration officers by countries this means that a officer should be trained for particular two or three countries, this will help to understand what kind of problem there, have basic knowledge of their language, country, culture, politic. In the UK, there is a lot of people with different backgrounds who can do this job, e.i. employed and trained people from Iran background then they may interview Iranian AS. This will better to understand and to find out whether they lies or not, kotorie ponimaut ili znaut dialekti stran ili geography ix country I ux gorodov.

The Home office must determine/consider As applicants according to the Refugee Convention Handbook. ‘Article 6 requires a fair and public …….

Ok, even the families were detained at centres, why they are treated like criminal offenders even they breach immigration rules like do not entre without permission/visa to the UK. Why AS blocked in these centres.

Posmotret' v inete ‘the report of detention at immigration centres by the Chief Inspector of Prisons.'

May be the HO could ask or give a choice to AS to stay at detention centres or to be free after the screening interview but not to be detained. And, if people don't have accommodation, friends, relatives then they can be offered to stay in such centres by explaining them that there they may have a roof under their heads, free legal advice/representations and get all information about their AS process, also there im budet predostavlen interpreter or they can read some useful broachers on their native language, to be able to call through telephone help line of charitable organisations like a BID.

If AS came to the UK in order to be escaped from torture and they do not have any support from someone else in the UK, then this would be reasonable to offer them to stay in the detention centres. AS should have to decide by themselves and should be release from there at any time on their request because this is not imprisonment where they are would be obliged to stay, therefore, they would be able to leave a detention centre for shopping, walking and so on. Even, some criminal offenders may be release from prison through new system of datchiki na noge. By such mehanish they are always under control but they are free of movement, only one condition they should be at certain time at their houses and registrated in a local police office. In case if the Home Office is worried that AS may vanish then the HO may accommodate them in special hostels but not in centres zakritogo tipa. HO has got their biometric details. Therefore, the question is whether they should be detained. These centres should to be more as hostels with social workers there, interpreters, physiological support especially for women and children.