The right to a family life

The right to a family life

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By Taffy Nyawanza

THE big news this week, at least in our community, has got to be about the much anticipated decision in the case of the Zimbabwean failed asylum seekers which is before the Asylum and Immigration Tribunal (AIT).

The main issue before the AIT is whether it is safe to return failed asylum seekers to Zimbabwe. The case that the Zimbabweans are making is that a failed asylum seeker is at risk of persecution upon return to Zimbabwe merely for having claimed asylum in the UK. The celebrated 1994 High Court case of Ex parte Senga is their authority for their argument that an asylum seeker whose case has failed on the merits, may subsequently seek asylum on the grounds that the making of the asylum application itself has created the possibility of persecution for a Refugee Convention reason; namely imputed political opinion. Of course, the decision will largely be informed by the findings of the Home Office Field Report compiled by officials from the Home Office who visited Zimbabwe to assess the situation for themselves.

All I can say for now is that whatever the outcome this Friday, we will not have heard the last of this case, and we will be re-visiting the various issues that will arise right here.

I wish however, to address for this week the issues raised by a reader who calls herself Studio263. (I will call her Stud).

She is a Zimbabwean lady who came to the UK as a visitor, claimed asylum and was refused but stayed on and somehow managed to complete a nursing degree. In the meantime, she met and customarily married a Zimbabwean man with settled status in the UK. They have a child together.

Those facts are somewhat similar to the facts that came before Asylum and Immigration Tribunal (AIT) in the recent case of AC (‘Regularisation Period’: Rights of Appeal) Zimbabwe. In that case, however the Appellant did not make an asylum claim under the Geneva Refugee Convention and was therefore solely before the Tribunal on human rights grounds.

To clarify, refugee status is applied for under the Refugee Convention. To qualify as a refugee, an asylum seeker must show that he is a person with a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion...” in his country of origin or habitual residence. He must also show that he could not relocate to other parts of his country, and that the authorities in his country were unable or unwilling to protect him.

The courts have since accepted that the agents of persecution can either be the state (example the ZANU PF government), which makes it easier to satisfy the non-availability of a relocation option and unwillingness to offer protection, or non-state agents (example criminal gangs in Jamaica), where the Applicant needs to show that the State was unable to offer him sufficient protection. If an Applicant succeeds in an asylum claim, he will be granted refugee status which carries certain rights such as family reunion and a UN travel document, amongst others. As already discussed on this column, successful asylum seekers in the UK no longer obtain Indefinite Leave to Remain (ILR). They now get 5 years which is reviewable at the expiry of that period, or earlier in certain circumstances. If an asylum seeker fails in his application, he may qualify for Humanitarian protection which offers less rights.

A claim for protection may be made under the European Convention for Human Rights (the ECHR). The Applicant must show that he is in danger of suffering a serious risk to life or person arising from torture or inhuman or degrading treatment or punishment if returned to his country. Where the asylum claim is unsuccessful but the application discloses a real risk of torture or inhuman or degrading treatment or punishment, removal would be a breach of the Human Rights Convention, in particular its Article 3 provision. The Human Rights Convention is also considered where an asylum application under the Refugee Convention fails. In that case, an assessment is made on whether the applicant will qualify for Humanitarian Protection or Discretionary Leave. (In practice, asylum and human rights claims will often be based on similar facts so the assessment of those claims may be a parallel rather than a consecutive process). This is what AC did.

In the AC case, the Applicant invoked Article 8, amongst other articles, which is relevant for our present discussion. I need to emphasise that properly argued, Article 8 can determine what is and is not a 'strong case'. It can provide a route by which appeals falling outside the Immigration Rules can be allowed and can help shape the interpretation of the Rules themselves.

Article 8 specifically protects the right to the respect and protection of the Applicant’s private and family life, his home and his correspondence. Interference with this right will only be countenanced by the courts where the it 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.

AC failed, largely because he was married to Zimbabwean lady with limited leave as a student. Readers may remember that one of the conditions of a student visa is an intention to return to the country of origin at the completion of the period of study. In the court’s opinion, there was no reason therefore to “suppose that, when the Applicant leaves the UK, his partner and her child could not, and in the light of her own immigration status, should not go with him.” Stud’s case is crucially different in this respect.

The precursor to the Immigration and Asylum Tribunal (AIT), the Immigration Appeal Tribunal (IAT) has on a previous occasion taken a step-by-step approach in resolving Article 8 claims.

First, the court asks whether a private or family life has been established. Family life is broad enough to include immediate family, extended family, children inside or outside marriage, co-habitation without legal marriage, legal marriages without cohabitation, and so on. This is matter of evidence. The European Court of Human Rights has previously ruled that a biological parent-child relationship will almost always give rise to family life. In Stud’s case, the customary marriage and the child should be able to satisfy these requirements.

Secondly, the court asks whether there is interference with that private or family. The position of the law is that Article 8 is likely to be violated by the expulsion of a member of a family that has been long established in the UK if it is not reasonable to expect the other members of the family to follow the member expelled. Article 3 of the Convention may be invoked where interference amounts to ill-treatment or persecution in the receiving state as this touches on the physical and moral aspects of a person’s private life which Article 8 protects. The question here will be whether it would be unreasonable to expect Stud’s family to follow her to Zimbabwe.

If Stud’s partner is a refugee from Zimbabwe, it should be sufficient to produce proof of his status to show that he would be unable to travel back to Zimbabwe, especially where there is still clear evidence that he continues to be at risk if he returned to his country of origin. If on the other hand, the partner is a British citizen or a citizen of another country, research might be required to show that there could be difficulties for them in Zimbabwe. She could show for instance, that he would not be admissible to that country. The Foreign and Commonwealth Office (FCO) website gives regular travel advice to British Citizens. Warnings against travel to certain countries by the FCO are relevant to proportionality.

Thirdly, the court looks at whether that interference pursues a legitimate aim. This goes to the justification for removal. The Home Office’s standard position is that the legitimate aim is to maintain a system of immigration control.

Finally, the court considers whether interference is proportional. The Courts have explained this to mean that there would have to be a weighing of the rights of the appellant against the public interest elements, principally the need to maintain a system of immigration control. Whether interference with family rights is justified in the interests of controlling immigration will depend on (i) the facts for the particular case and (ii) the circumstances prevailing in the State in question.

Where there has been a serious delay or an error by the Home Office in effecting removal which allows the formation of a family life in the UK, this will count in the Applicant’s favour. The courts have previously adumbrated that if the enforcement of immigration control were so important as a matter of public policy, the Home Office would take it more seriously and not permit delays and errors to occur. People cannot be expected to be in limbo simply because the Home Office has not acted speedily.

It is crucial to realise however, that the UK courts are reluctant to afford people a short cut way into the UK, and more so where there is evidence that there would be no obstacles to the family relocating to the proposed country of removal and applying for entry clearance as a spouse or partner. The British have a thing against queue jumpers. However, the length of delay in obtaining entry clearance will show how long an Applicant could be separated from his family and will therefore be relevant to proportionality. It is also always factor to consider whether there are any circumstances that indicate an application for entry clearance is very likely to be unsuccessful or refused. If the Applicant claimant cannot apply under the immigration rules, removal would almost certainly be disproportionate as it will result in permanent breach of family life.

The issue of whether the child in question would be able to speak the language in the proposed country of removal is also considered. It may be unreasonable to require a partner or children to relocate where they do not speak the language in the proposed country of removal.

A separate decision has authoritatively re-stated the position in Article 8 claims as follows; “Other factors that are taken into account include the length of the applicant's stay in the country from which he is going to be expelled; the nationalities of the various persons concerned; the applicant's family situation, such as the length of the marriage; and other factors expressing the effectiveness of a couple's family life; and whether there are children in the marriage, and if so, their age. Not least, the Court will also consider the seriousness of the difficulties which the spouse is likely to encounter in the country of origin, though the mere fact that a person might face certain difficulties in accompanying her or his spouse cannot in itself exclude an expulsion.” (this is a para-phrased and simplified version).

This is perhaps a clearer and more concise pronouncement of the prevailing and relevant legal position. A word of caution though. Knowledge on the part of one spouse at the time of marriage that the rights of residence of the other were precarious militates against a decision that there has been a violation of Article 8 if that spouse is removed. There will be a premium on bachelors with status this summer.

Taffy Nyawanza is accredited by the OISC and writes in his personal capacity. He can be contacted at profettaffy@yahoo.co.uk

Disclaimer: This article only provides general information and guidance on immigration law. It is not intended to replace the advice or services of a solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information
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