The Home Office rejected the claims of Muran and Faisal

Muran and Faisal

The Home Office rejected the claims of Muran and Faisal, citing Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.

Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, relates to circumstances that lead to creation of doubt in the claimant’s credibility, wherein any behaviour on the part of the claimant that is designed to deceive or likely to deceive or mislead will be taken into consideration to assess damage done to general credibility. Therefore, the claimants must not indulge in any acts of behaviour that are provided under section 8 (3), which may lead to their general credibility being questioned. Section 8 (3) provides that the claimants must not fail to produce passport, or produce invalid passport, or destroy, alter or dispose a passport or a ticket or other document connected with travel without reasonable explanation or fail to answer a question asked by a deciding authority. The most relevant behaviour that probably led to the rejection of the asylum claim is the last mentioned behaviour above. Faisal and Muran overstayed their visas, before entering into a civil partnership. This points towards their concealing material facts or misleading the Home Office. Now Faisal and Muran have to provide reasonable explanation for their behaviour or lapses to the Home Office.

In their rejection letter, the Home Office have used the internal relocation doctrine[1] and stated that the claimants can live in other parts of their origin countries, where they do not face threat of persecution.[2] Paragraph 339O of the Immigration Rules allows the Home Office to reject asylum application on the basis that the claimants can be relocated to a part of the country of nationality where a well-founded fear of persecution or real risk of suffering serious harm does not exist. To counter this, Muran and Faisal must show that the existing circumstances in the country of nationality would still put them at risk and internal relocation would not be remove that risk. Moreover, the claim must also show that the available domestic redressal systems in the country of nationality is not sufficient to protect them from the risk. Faisal and Muran can argue that the failure of their state of nationality to protect them from persecution also amounts to persecution.[3] Because of their LGBT status, they would eventually face challenges related to employment and housing, as well as social and cultural difficulties in their country of nationality.[4] This would amount to persecution within the meaning of 1951 Refugee Convention. The 1951 Refugee Convention recognises claims relating to sexual orientation on the ground of membership of a particular social group (Article 1 (A)(2).

According to the European Council’s Qualification Directive,[5] Muran and Faisal can make asylum claims as refugees by identifying themselves as members of a particular social group, who are subjected to well-founded fear of being persecuted (Article 2(c)). According to Article 10(1) (d) of the Qualification Directive, such social group may include a group portraying a common characteristic of sexual orientation.

The UK Immigration Rules inculcate the principles in 1951 Refugee Convention as well as the Qualification Directive. Muran and Faisal can make their claims under Paragraph 339K of the UK Immigration Rules Part 11. For the claim to succeed, they must have a “well-founded fear of persecution or real risk of suffering serious harm” because of LGBT status on return to country of nationality. The ground of the claim must be supported by a proof that potential persecutors in their country of nationality would treat them as LGBT. [6] The fact that Muran is already subjected to direct threats of serious harm from his father is an obvious indicator of the fear. He must show enough reason that persecution or serious harm, if it occurs, would be repeated. Further, to claim asylum based on sexual orientation, there must be a credible proof of sexuality.[7]

In the event the claimants are not granted asylum, they may claim refugee status on humanitarian grounds. Paragraph 339L UK Immigration Rules Part 11 provides that even if there is no proof to support a claim of fear of being persecuted, the claim can still be made by substantiating the asylum claim and by invoking the ground of human rights. The claim must be supported by providing all available materials at disposal. The claimant must establish general credibility by providing all coherent and plausible statements.[8] The claim of human right protection is based on Article 3 of ECtHR. The Article states that ‘no one shall be subjected to torture or to inhuman or degrading treatment or punishment’. So, in order that the claim of protection on the ground of human rights is sustainable, the claimants must show that there is a risk of such inhuman treatment. In addition, they must show that the states of their nationality do not have sufficient protection for human rights of people belonging to their social group.[9] The claimants must also show that the risk of danger emanates from both the authorities of the state of nationality and also from private persons.

Article 3 provides an opportunity to Faisal to apply for permission to stay in the UK on medical grounds as well. Article 8 of ECHR provides the right to private and family life. Faisal must show that his illness is at a critical stage and if removed from the UK, he would be deprived of the current treatment that he is receiving at the UK.[11] Sending him home would violate Article 3 of (ECHR) as he would be subjected to treatment that is degrading to his health and dignity. Moreover both Faisal and Muran have the right to family life under Article 8, which they will be deprived of if they are separated.

LIKELIHOOD OF THE ASYLUM CLAIMS

Muran and Faisal have a reasonable chance of successful asylum claim. However, there are a few areas of concern as well. First, Muran and Faisal have overstayed their visas and they may not have reasonable explanation for this. This may be the reason why the Home Office rejected their asylum claims, as being misleading or deceptive under Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. Second, it must be noted here that just showing stereotypical behaviour associated with homosexuals and citing individual situation and personal circumstances are not sufficient grounds asylum claim.

The UK government, in its guidance related to asylum claims, states that the claim should be applied on arrival in UK or as soon as the claimant thinks it is unsafe to return to the country of nationality. The application is likely to be denied if delayed.[13] This guidance provides an immense opportunity for the parties to get asylum protection. Paragraph 339L (iv) of the Immigration Rules provides that delay in making claim is averse to credibility. However, the parties can justify delay on the basis of fear as being the reason for not claiming asylum. Also, there is no rule of law that requires evidence from sources to prove their claim of fear. The claimants need to establish the likelihood of the element of fear to a reasonable degree.

The best option for the claimants would be to seek protection of their human rights. These rights are available under Paragraph 339L of the UK Immigration Rules Part 11 and Articles 3 and 8 of ECtHR, as stated above. The parties have to satisfactorily comply with all of the provisions to establish general credibility. The act of overstaying their visas without giving any reasonable explanation for years and without applying for leave to the authorities in time may cast a doubt on their credibility. This is an offence under section 24 of Immigration Act 1971 liable to fine or imprisonment. Citing fear of prosecution only after they entered into civil partnership furthers the element of deception as stated above.

Faisal also cited medical reasons in his claims. However, he must understand that the UK government may remove a claimant if such removal is proportionate to the aim of economic protection of the UK. Faisal is expected to submit acceptable medical evidence to prove his claim.[15] If his medical condition does not fall under ‘exceptional circumstances’ as laid down by the European Court of Human Rights (ECtHR) in D v UK,[16] his chances of getting protection based on medical grounds will fall. Faisal will have to show that he would face exceptionally poor medical conditions in the event he returned to his country of nationality. He is at critical stage of his illness, and to remove him would lead to violation of Article 3. Muran will have to prove that his right to family under ECHR article 8 is engaged and his removal would violate the right.

Q.2 (1)

In the given circumstances, Guilia must seek protection provided under the UK Immigration Rules. First and foremost, she must seek leave as a partner of Paolo under Paragraph 195. The leave will be for a period not in excess of that granted to Paolo. Under Paragraph 194, she must show that she is the unmarried partner of Paolo and that they have been living together in a relationship with intent to marriage and that the relationship has subsisted for 2 years or more. Since they have been in a relationship for 18 months now, the leave must be applied after they have completed 2 years of partnership. For the four months pending the 2 years completion, Guilia must apply under Paragraph 196A for an extension of stay in the United Kingdom as partner of Paolo. However, the only catch would be the challenge to establish her visa overstay. Guilia can seek the conditions under Paragraph 39E that will disregard her period of overstaying. Home Office provides the guidance to caseworkers to see reasons beyond the control of applicants that forced them to overstay. Guilia must show either that: i) She was under an emergency medical treatment. This must be proved by an official letter showing the nature of the treatment and dates of admission and discharge; or ii) Bereavement of a close family; or iii) Confirmation of Acceptance for Studies not promptly issued by her educational institution was not sufficiently in issuing.[17] Guilia may use clause (iii), that is confirmation of acceptance of studies.

The above applications will ensure that Guilia is clear of her visa overstay issue. She will have an extension of leave to stay in the UK. She establishes herself as an unmarried partner of Paolo and has the same duration of leave as Paolo. Going further to attain indefinite leave, Paolo must complete his five years of work permit. Once completed, he must apply for indefinite leave to remain as a work permit holder under Paragraph 134. The five years must be a continuous period and a lawful stay. He must show that his employment is still required. He must have a certificate from the employer stating that he is paid and his payment is above the appropriate rate. He must produce all necessary specified documents provided under Paragraph 134SD. He must show he has sufficient knowledge of the English language. He must have sufficient knowledge about life in the United Kingdom.

Once Paolo gets his indefinite leave to stay in the UK, Guilia can also apply for indefinite leave to remain as partner of Paalo under Paragraph 196D. She must also show that she has sufficient knowledge of the English language. He must have sufficient knowledge about life in the United Kingdom. She must meet all the other requirements as provided under the paragraph.

Now, to bring Guilia’s elderly mother to the UK, they must apply for indefinite leave under Paragraph 317. This Paragraph allows a parent to seek indefinite leave as a parent of a person staying in the UK. They must either show that the mother is single, divorced, or widowed or separated. She must be more than 65 years of age and that she is financially dependent on Guilia. Guilia must show that the mother would be accommodated adequately by her. She must also show that her mother does not have any close relatives in the country of nationality, and that there is no one there who could provide her financial support. On arrival, the mother must produce a valid United Kingdom entry clearance for entry as a parent.

Q.2 (2)

Selvin and Janice are partners who have two children together aged 9 and 6 years. The children are British citizens. Janice is a British citizen. The only person whose immigration status is in question in this scenario is Selvin. The UK Immigration Rules, Paragraph 195 allows a claim for leave for unmarried partners, provided they have been living together in a relationship with intent to marriage and that the relationship subsisted for 2 years or more.

Selvin is a Jamaican who was in the UK on a visitor visa of 6 months, which he overstayed. He has built a family life in the UK and if he is sent back to Jamaica, he and his family will be deprived of their family life. The ECHR protects rights that are engaged in this case.

ECHR, Article 8 provides Selvin, Janice and their children the right to social and family life. As Selvin is in a partnership with a British national and has two children with her, there are social and family ties for him in the UK. The right to social and family ties has been interpreted widely by the European Court of Human Rights (ECtHR) and the Courts in the UK.

In Maslov v Austria,[18] the court held that private life includes “the totality of social ties between migrants and the community in which they live.” Therefore, it is not necessary that only marital ties lead to private life. Partnerships, such as that between Selvin and Janice may also lead to the creation of family ties. The UK is a multi-cultural society and the courts have generally considered the fact of multiculturalism to bear on the question of the nature and composition of family ties.[19] In Beoku-Betts v SSHD,[20] the House of Lords gave a very important guideline that the provisions of the Nationality, Immigration and Asylum Act 2002, s.84(1) need to be interpreted widely, and the family unit considered as a whole for the purposes of defining family and private life rights under article 8 of the ECHR.

In MM (Tier 1 PSW; article 8-private life),[21] it was held that the totality of social ties can evolve even during a temporary visit to the country. Therefore, even though Selvin’s visa was of a temporary nature, it cannot be said that he could not have established family ties during the duration of his stay in the UK.

If Selvin has to be asked to leave the UK, an important question that arises will be if it reasonable to expect that Janice and the two children should also leave for Jamaica with Selvin because the alternative would be breaking up their family life. In similar cases, courts have held that it is generally unreasonable to break the bonds within the family by asking one member of the family to leave the UK, while the other members of the family remained behind. In such cases, simply saying that even if one member of the family is removed from the UK or denied entry, the family could still enjoy a family life elsewhere, is seen to be an unreasonable proposition.[22] In general, the courts consider the movement of an entire family, the majority members of which are British citizens, to be harsh.[23]

With respect to the children, it is also pertinent to mention the Borders, Citizenship and Immigration Act 2009 (BCIA 2009), section 55 of which 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".[24] Considering this provision, it may not be in the best interest of the children who are British nationals to be removed to a third world country and be deprived of all the advantages that are theirs by right as British nationals. These advantages relate to education, medical and health care, social security and other such advantages.

It can be argued by the authorities that the Selvin can leave the UK and apply for the leave to enter from outside UK. However, it has been held in Chiqwamba v SSHD,[25] that policies that involve people cannot be, and should not be allowed to become rigid, inflexible rules.[26] That case involved removal of the applicant from UK to Zimbabwe from where she could apply for permit to enter. The applicant had a minor child who was a British citizen and the court found that the rule which mandated that the applicant apply for permit from outside the UK was unreasonable.[27] Similarly, this applicant in this case will also have to suffer separation from his family if he is asked to make an application from outside the UK.

The applicant has a good chance that the claim will be successful.

Table of Cases

• Auad v Bulgaria [2011] ECHR 1602.
• Beoku-Betts v SSHD, [2008] UKHL 39.
• Chiqwamba v SSHD [2008] UKHL 40.
• D v UK, (1997) 24 EHRR 423.
• EB (Kosovo) v SSHD, [2008] UKHL 41.
• EM (Lebanon) v SSHD, [2008] UKHL 64.
• HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31.
• Horvath v Secretary of State for the Home Department [2001] 1 AC 489.
• MM (Tier 1 PSW; article 8-private life), [2009] UKAIT 00037.
• Maslov v Austria, [2008] ECHR 546.
• Muse and others v ECO, [2012] EWCA Civ 10.
• Robinson [1997] 3 WLR 1162.
• R (Razgar) v SSHD [2004] UKHL 27.

Bibliography

• Clayton G, Textbook on Immigration and Asylum Law (Oxford: Oxford University Press 2016)
• Held N, What does a ‘genuine lesbian’ look like? Intersections of sexuality and ‘race’ in Manchester’s Gay Village and in the UK asylum system (London: Routledge 2016)

Website Sources

• GOV.UK, ‘Claim asylum in the UK’, accessed.
• Home Office, ‘Human rights claims on medical grounds’ (May 20, 2014), accessed.
• Home Office, ‘Applications from overstayers (non family routes)’ version 7.0 (24 Nov 2016).
• Gina Clayton, Textbook on Immigration and Asylum Law (Oxford: Oxford University Press 2016) 442.
• Robinson [1997] 3 WLR 1162.
• Horvath v Secretary of State for the Home Department [2001] 1 AC 489
• Home Office, Gender Identity Issues in the Asylum Claim Sexual orientation in asylum claims, (Version 6.0, August 3, 2016).
• 2004/83/EC.
• HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31
• Nina Held, What does a ‘genuine lesbian’ look like? Intersections of sexuality and ‘race’ in Manchester’s Gay Village and in the UK asylum system (London: Routledge 2016) 131-148.
• Paragraph 339L UK Immigration Rules Part 11.
• [2000] 3 WLR 370.
• Auad v Bulgaria [2011] ECHR 1602.
• R (Razgar) v SSHD [2004] UKHL 27.
• C-148/13, C-149/13 and C-150/13.
• GOV.UK, ‘Claim asylum in the UK’, accessed.
• Gina Clayton, Textbook on immigration and asylum law (Oxford: Oxford University Press, 2016).
• Home Office, ‘Human rights claims on medical grounds’ (May 20, 2014), accessed.
• (1997) 24 EHRR 423
• Home Office, ‘Applications from overstayers (non family routes)’ version 7.0 (24 Nov 2016).
• [2008] ECHR 546.
• EM (Lebanon) v SSHD, [2008] UKHL 64.
• [2008] UKHL 39.
• [2009] UKAIT 00037.
• EB (Kosovo) v SSHD, [2008] UKHL 41.
• Muse and others v ECO, [2012] EWCA Civ 10.
• Section 55, the Borders, Citizenship and Immigration Act 2009.
• Chiqwamba v SSHD [2008] UKHL 40.
• Gina Clayton, Textbook on immigration and asylum law (Oxford: Oxford University Press, 2016).
• Chiqwamba v SSHD [2008] UKHL 40.