ASYLUM AND HUMAN RIGHTS PROTECTION
ASYLUM AND HUMAN RIGHTS PROTECTION
The United Nations Conventions 1951 states that the person can claim asylum in the UK on the basis of following reasons:
· Social Group
· Political Activities
The applicant needs to provide it to the Home Office that he/she has genuine threat to his life, he/she cannot relocate within the country and he/she cannot seek protection from the authorities.
We provide detailed assistance in relation to your asylum claim. Our assistance includes following:
· Advising and assisting on merits of asylum claim.
· Detailed advise on supporting documents
· Drafting of witness statement
· Explaining your rights as an asylum seeker during asylum interview
· Attendance of asylum interview
· Post asylum interview advise session
· Drafting of legal representation and preparation of application bundle
· Correspondence with the Home Office on behalf of applicant
Please contact our immigration expert for detailed advise
Detention is the action of holding someone in official custody before they are deported or removed from the UK.
In the UK there is no time limit on how long an adult can be detained – it could be indefinite (with exceptions for pregnant women). However, according to the UK government’s policy on detention, detention is to be used for the shortest period necessary. Hence, if an individual is detained for longer than necessary, the detention will be unlawful for being incompatible with the government’s policy.
When can someone be detained?
An individual can be detained at any time that they do not have the right to remain in the UK
and if they are not waiting for a response on an immigration application. Not having the right to remain can arise in the following situations:
· Upon entry into the UK – e.g. not having valid permission to enter lawfully
· Upon claiming asylum in the UK as a Dublin safe third country case – namely, when the Home Office thinks you could have safely claimed asylum in another EEA country before travelling to the UK and so they could attempt to remove you to the ‘third’ country
· Upon claiming asylum and being appeal rights exhausted – this is when an asylum application has been rejected and either the appeal was refused, you did not appeal or did not have the right to appeal
· If you have an expired leave to remain and are not waiting for a decision on an immigration application
Who cannot be detained?
Certain groups of people should not be detained (unless exceptional circumstances arise), such as:
· Unaccompanied persons under the age of 18
Adults that may be “particularly vulnerable to harm in detention” as outlined in the Home Office 2016 policy, such as:
· Those aged 70 or over
· Pregnant women
· Those with serious physical disabilities
· Those with serious medical conditions that can only be managed outside of the detention centres
· Those suffering from serious mental illness, including PTSD
· Torture and trafficking victims
· Victims of gender or sexual based violence
· Those that are transsexual or intersex
What Is Immigration Bail?
An Immigration Bail is a request or an application either to the Chief Immigration Officer (CIO) or to the Immigration Judge for release of a person from immigration detention where person’s removal is not imminent from the UK.
Before the applicant applies for bail at Immigration Tribunal it is advisable to make application for temporary admission to Chief Immigration Officer requesting that the applicant must be released on Temporary Admission.
If the detainee is released, they will usually be required to comply with conditions imposed by the Home Office. The usual conditions are:
1)The applicant should reside at the specified address.
2) The applicant must report to the designated police station.
3) Sureties. These conditions can be varied by an application to an Immigration Officer or Immigration Judge.
Bail Application To Immigration Judge
If the temporary admission gets rejected, then the applicant is entitled to apply for immigration bail. It should be noted that the applicant cannot apply before spending 7 days at detention centre. The applicant needs to attend the tribunal either in person or via video link. The applicant must put forward minimum one ad maximum two sureties. Only the person who are living legally in the UK can act as a surety. Those with criminal convictions or insecure immigration status, or whose addresses have in the past been associated with absconding, are unlikely to be accepted as sureties. The sureties should always attend court – it will rarely be the case that nonattendance will be accepted. The surety should have proof of ID, address, occupation, financial status, immigration status (ideally British citizenship/Indefinite leave to remain) and evidence of the address that is available to the detainee.
Remember at the bail hearing that the burden of proof in justifying detention lies, given the presumption in favour of bail, on the Secretary of State to the balance of probabilities. The adjudicator should give a reasoned decision, albeit that it is not in writing.
If the bail applicant absconds or does not comply with conditions of bail, the sureties risk forfeiting all or part of their recognisance.
CHALLENGING DEPORTATION/REMOVAL ORDERS
A deportation order requires a foreign national, usually with a criminal conviction, to leave the UK. The grounds of deportation can include, according to Part 13 of the Immigration Rules:
1. Where the Secretary of State considers the individual’s deportation to be “conducive to the public good and in the public interest”
2. Being the spouse, civil partner or child under 18 of a deportee
3. Where a court recommends deportation in case of a person over the age of 17 that has been convicted of an offence punishable with imprisonment
The categories of immigration breaches that may result in an administrative removal of a person include:
· Those who are required to have leave to enter or remain in the UK but do not have it (such as overstayers, illegal entrants, and those who refused leave at a port of entry)
· Those who are found to be breaching a restriction or condition of their visa to enter or remain in the UK
· Those who seek or obtain leave by deception
· Those who are family members of a person being removed.
The Home Office must notify those liable for removal and cannot remove the individual during the noticed period. During the notice period, a challenge of the removal order may be carried out; however, after the notice period has expired, the Home Office has a 3-month removal window during which to remove an individual at any point without notice. The notice period for removal is 7 calendar days if the individual is not detained and 72 hours if the individual is detained.
Challenging deportation and removal orders
There is no automatic right of appeal to challenge a deportation order – however, under certain circumstances a person may have the right to appeal to have the deportation order revoked such as under a human rights claim. A deportation order can be appealed by arguing a breach of the UK’s Human Rights Act 1998 obligations through Article 3 where there is a breach of the prohibition of torture or through Article 8 where your right to private and family life has been infringed, or both.
Any such appeal must be made within 28 days outlining the reasons why you should not be deported. However, if a person is in detention, they only have 5 days to appeal.
If the appeal is successful and the deportation order is lifted, non-EEA nationals and who require a visa to enter the UK can apply for entry clearance. EEA nationals and non-visa nationals can arrive at a port and seek ‘leave to enter’.
Removal orders should not be given if individuals have a pending application for leave to remain, if there is a pending asylum claim or if a fresh claim has been submitted and an individual is waiting to hear whether the fresh claim will be accepted.
If there is no right to appeal a decision or if there is no human rights-based claim to be made, a deportee can make a judicial review application which includes an injunction to stop the deportation order; this is an ideal option for those facing deportation very soon.
Can I re-enter the UK after being deported or removed?
Generally, it is very difficult to re-enter if a person has been deported or removed from the UK in less than 10 years ago, without the successful revocation of deportation or removal order.
However, if a child who was deported or removed as a family member has reached 18 years of age or if the marriage or civil partnership has come to an end of the spouse or civil partner who was deported or removed as a family member, then such persons can seek to return to the UK without applying for revocation of the deportation or removal order.
Contact our immigration expert for detailed advise