Are Immigration Controls Racist? A Case Study of UK & European Asylum Law Essay

Are Immigration Controls Racist? A Case Study of UK & European Asylum Law Essay

Introduction:
The Human Rights Act (HRA) 1998 does not provide a positive right for the non-citizen to remain, however it does provide that rights contained within the HRA may be breached by deportation to their state of origin. Nor does the HRA extend to other nation-states, however it does bind the UK to ensure these rights are available to all persons who enter the UK and if the UK does aim to deport an individual, it must take care that the future actions of the country of origin would not be a breach of any right contained within the HRA. In other words if there is a possible occurrence that a person may be treated in a way, in their country of origin, that would be classed as a breach of the HRA in the UK; this breach would be imputed back to the UK through its act of deportation, therefore causing a breach in the HRA. These persons are not technically asylum seekers as they are making a claim under the Geneva Convention, so for the purposes of this discussion they will be defined as asylum seekers. Persons who are looking for a safe place to enjoy their life and freedom and in some cases obtain their basic needs, e.g. food, water, education The HRA does not protect a right to basic necessities. This essay begins by focusing on founding human rights principles and the central question that will be discussed is; whether the legal framework of human rights, through the Human Rights Act 1998 (HRA) and the European Convention of Human Rights (ECHR), uphold the principles that these pieces of law were founded upon. This is a similar reaction in other European countries and the most prevalent are the Roma Gypsies and Eastern Europeans; the following discussion will consider this case study to show that immigration law can be, and has been, used to assert racist policies by classing them as economic migrants rather than asylum seekers, which means their financial status will exclude them and the persecution does not meet the standard posed by the European Court of Human Rights (ECtHR).

Human Rights Theory:
Natural rights are the basis for the international human rights of today, however the theory of modern human rights is slightly different as it no longer purely concerns democratic government, but aims to ensure that gross human rights violations in the world as a whole will be held accountable and hopefully eliminated. Dworkin describes human rights as trumps (Ronald Dworkin, Taking Rights Seriously, pg. 92) that indicate a powerful set of principles individuals can rely on to protect them from abuses of these rights, yet his version is weak in the sense it was only a power over bureaucratic decisions not that of government and law. Donnelly also believes that these rights are to be supported as powerful instruments to protect the individual from abuses of a tyrannical government (J. Donnelly, The Concept of Human Rights, pp. 1-13).
Peter Jones in Rights contrasted the difference between natural and human rights (Peter Jones, Rights, pp. 72-92). The concept of natural rights is tied up in the idea where the citizens gave up to the governing body for the good of law and order and in return the governments protected and upheld within the law, e.g. Constitutions. Therefore the argument of natural rights has now become so diluted that it is no longer an effective model.
Human Rights as theory admits from the outset they are intangible and not from nature, therefore one cannot empirically observe or measure them, as Margaret MacDonald 9 Margaret MacDonald, Natural Rights, pg. 35-55) criticized the argument from nature. Human rights, as described by Jones, are prescribed by the fact of being human and part of humanity (Peter Jones, Rights, pg. 221-227). It picks up on the egalitarian theory of equality, whereby human beings are equal and therefore are afforded these basic rights. The arguments for these rights come from arguments, such as self-evidence, human worth and moral worth.
Also there is the crucial problem of non-citizens that the 20th century models try to reconcile. The 17th, 18th and 19th century models of rights were mainly concerning some sort of democratic government, where rights were a trade-off for governance. The modern models of rights are trying to extend to all persons, regardless of their origin. In modern theories there are different strands of this Kantian argument; however they are all based around a transcendental need for the autonomous nature of the individual to be free in society. There are arguments from necessity, e.g. the minimum rights and freedoms to ensure the autonomous being; yet again it seems to be just a new veneer of the Kantian ethic. This ethic was one of the most influential arguments for universal human rights, in response to Nazism, eugenics and ethnic cleansing, which can be illustrated in the Universal Declaration of Human Rights with words such as inherent, inalienable and equality applied to rights and the basis of these rights are the foundation of freedom, justice and peace in the world.

Roma Gypsies A Case Study of Racism in European Immigration Law:
The Roma gypsies illustrate how human rights laws can be used to avoid responsibility for non-citizens. In Conka v Belgium (Conka v Belgium (2002) 34 EHRR 54) the facts of the case did not even resemble an Article 3 claim and the court found the severity of the treatment was not enough to argue ill-treatment and such a claim was manifestly ill-founded. The facts of this case was that the Conka family were repeatedly attacked and harassed by skinheads in their home country of Slovakia and the police refused to intervene, therefore they fled the country and claimed asylum in Belgium. The attacks on Mr. Conka were so severe that he had to be hospitalised; however such treatment of non-citizens in the home state was not enough to bring an Article 3 claim (ibid para O-113 pg. 25). The following study of the UK cases will discuss how severe the treatment of the applicants is; yet there is not even an Article 3 claim, therefore the applicants try to bring a claim of persecution, which is unique in Europe, to the UK; where persecution = serious harm (arguably for a Convention reason) + failure of the originating states protection. The Roma gypsy cases are all very similar and the courts themes also extend to similar Eastern European groups, so the cases of Kacaj (Klodina Kacaj v SSHD, (2002) WL 347090 (CA)), Canaj (Canaj v SSHD (2001) EWCA Civ 782) and Vallaj (Vallaj v Special Adjudicator (2001) EWCA Civ 782) will be discussed as they further illustrate the thinking of the UK courts.

Severity; Persecution; Protection; and Horvarth:
The leading case on severity and persecution is Horvarth v SSHD (Canaj v SSHD (2001) EWCA Civ 782), which is a House of Lords case. The facts of this case are that the applicant had successfully pleaded that he was in fear of persecution from skinheads in Slovakia but he had not proven that the authorities in Slovakia have not given effective protection, i.e. Slovakia has laws that protect Roma gypsies in the same manner as the rest of the populace. The case failed; the severity of the treatment was not questioned under Article 3. Therefore the question that was asked was what sort of harm needed to be present and to what extent the originating states authorities have to protect applicants before they have a successful claim in the UK. The threshold of severity proposed by some of the judges seemed to be that of non-citizen Article 3 standards, however, it would include random attacks on classes, whereas some of the judges proposed that a lesser severity would be allowable as long as the authorities were not providing sufficient and equal protection to that of the rest of the populace. This has been further illustrated in cases stemming from Horvarth.
In the case of Sona Banomova v SSHD (Sona Banomova v SSHD (2001) WL 542297 (CA)), which stems around a half-Roma gypsy whose family was subjected to a hate campaign. Their house had been invaded, the whole family tied up, and the father taken away and beaten by masked skinheads. The police were called, however, the family were threatened with death if they continued with the complaint. The father withdrew the complaint because of the threats; the police dropped the investigation without hesitation. In the application there was no question that the severity of ill-treatment would suffice for an Article 3 claim; therefore the application was based upon the Horvarth idea of persecution. In this case, persecution could not be claimed because, although the treatment by the skinheads could possibly cause serious harm, the originating state did provide a sufficient system of protection and did not have a lesser one for the Roma gypsies. Another element that cropped up, similar to other Roma gypsy cases, was because the attacks were random on all Roma gypsies and not just a threat to the particular family in question and the police have provided adequate protection for all Roma gypsies in these circumstances then there is no claim. In effect, the UK courts have avoided responsibility if there is a legal system where the authorities deal with persecution by third parties sufficiently. To narrow this down it was argued in the Horvarth case that the serious harm must be based around a Convention (Convention on the Status of Refugees 1951 Art 1A(2)) ground. This was a dissenting view where Lord Lloyd of Berwick (Horvarth v SSHD, Judgement 3 (2000) 3 AER 577) said persecution has nothing to do with state protection but the ordinary diction meaning where the severity and the means adopted which turns discrimination into persecution (Hine Lambert, The Conceptualisation of Persecution by the House of Lords: Horvarth v Secretary of State for the Home Department). This view took it to mean that one must show extreme severity in the treatment, and protection only came into it when questioning if sufficient protection was provided. The majority of the House of Lords looked at the formula as not two tiers but a symbiotic relationship (Hine Lambert, The Conceptualisation of Persecution by the House of Lords: Horvarth v Secretary of State for the Home Department), whereby the persecution is severe but the fear is further propounded by the fact that there is not sufficient state protection, although the Convention ground is still relevant, this can be seen in a more flexible manner. The whole situation is looked at, also taking more into the account that the laws of protection may be available equally to Roma gypsies but in effect may not be enforced by the authorities. Therefore they look at the merits of the case and determine whether there is a real risk/well-founded fear; which in effect illustrates that the majority view is trying to illustrate the essence of the human rights law behind protecting individuals from persecution. The Courts avoided the well-founded protection, as long as it was in the law and the authorities were willing to act then protection was sufficient, even if these actions were incompetent or inefficient. Later cases have taken the flexibility of the majority but have taken up the idea that the serious harm must be based on a Convention ground.
The Horvarth case has illustrated that the persecution the Roma gypsies suffer does not reach the grounds of Article 3 because it is inflicted on this class of people as a whole, is random and not individually based (although this should not be read as all cases), therefore restricting the Article 3 claims to a very high severity and threshold for non-citizens. Yet in relation to the idea of persecution as an asylum claim under the Refugee Convention, the House of Lords did turn in majority to read the essence of the Convention and not look at literal meanings, especially when dealing with a symbiotic relationship between protection and serious harm. The judgment was limiting on the area of protection; instead of focusing on the elimination of risk, the test of protection was that of sufficiency: i.e. laws protecting Roma gypsies [persecuted group] + state willing to protect = protection [effectiveness, incompetence are irrelevant factors]. This has posed a very difficult task for the individual from a state to argue non-protection, as most states in United States will have these laws and a system of protection but the efficiency is another question, e.g. the United States in the 1960s and the lynching of African Americans. In effect one has to argue that the UK courts have interpreted international human rights law but have found a loop-hole to avoid providing protection for non-citizens.
Kandrac (Re: Kandrac (QBD), (2000) CO/1138/2000 Transcript: Smith Bernal) illustrates this point as this was a Czech case where the applicant was stabbed in the stomach by skinheads, his children were beaten up by skinheads and he was unable to gain employment due his Roma origins. The UK courts found that the abuse definitely equalled serious harm and persecution, again there was no Article 3 claim because of the general nature of random attacks and inability to meet the high threshold set in Vilvarajah. The problem with this case was the idea of protection. The applicant did go to the police for protection, however they were positively abusive therefore he had no confidence in them and could not ask them for further assistance. In this scenario one would almost think that no protection was being afforded to the applicant, because of the biased attitudes of the police. The UK courts did not come to this conclusion and Ouseley J 9 ibid. Judgement 1 paragraph 4) pointed out that there was a legal system in the Czech Republic that is enforced in respect to Roma gypsies, therefore the persecution has protection in the originating state and therefore there was no asylum claim. In effect, although Horvarth set forth at looking at the essence of the idea of persecution and protection in the Refugee Convention, the cases following this did not have a different outcome from that of earlier cases.
Floranowicz (Floranowicz v SSHD (CA Civil Division) Transcript Smith Bernal (29/1/98)) is a case where skinheads and the police persecuted the applicant because of his Roma gypsy origins. The case failed because the UK courts saw that the country afforded the level of protection that was necessary; especially in light of the citizens ombudsman who had been set up to deal with complaints of abusive authorities. Also in the case of Stercyl (R v SSHD ex parte Stercyl (QBD), CO/0842/99 Transcript Smith Bernal) where the claim was on a two-tier basis; the fact he lost his job because his wife was a Roma Gypsy; and the wide level persecution of Roma gypsies. The persecution was dismissed on the grounds that the Czech Republic provides an adequate level of protection; also the dismissal from his job was dealt with in the same manner, because there is also adequate level of protection in the Czech Republic. The claim was based around the inability to get a job, which leads to the question of economic migrants and the UKs unwillingness to treat them as genuine refugees. Although no specific mention of economic migrants in these cases has been made, this idea will be briefly discussed later in the chapter.

Horvarth: Application Beyond Roma Gypsy Cases:
Horvarth has been applied in later cases outside of Roma gypsies, especially when dealing with Eastern Europeans because the facts are similar. The cases for Canaj and Vallaj illustrate the case of two Kosovar Albanians who no longer have protection needs because persecution of certain groups is no longer a threat as the conflict is over and the country provides the necessary protection for these groups. In effect, as sufficient protection was available for the two individuals, no refugee status was granted, which shows that persons who are given leave to remain do not get the same protection as those with refugee status and if circumstances in the level of protection change to make it sufficient then deportation will occur. This means these persons could still be at risk of persecution, i.e. the risk is not eliminated but the UK courts see a level of protection in the law, although this may not be practically carried through. The Horvarth case has theoretically introduced flexibility and the essence of International Human Rights. In fact it has done it in such a way that the cases are still determined in the same way and the persons deported are at risk, which seems to illustrate that the UK courts have used Human Rights laws to avoid protecting non-citizens. The case of Kacaj introduces some interesting insights to Horvarth being applied to Article 3 cases: it was suggested that the idea of protection could be argued against Article 3 claims. Therefore if the state provides protection against third-parties, even if the treatment satisfies the severity of Article 3 thresholds, then the person does not have a successful claim. The Immigration Appeal Tribunal (IAT) upheld this idea; it was then taken to the Court of Appeal and the Court quashed the tribunals decision but not on the grounds of the applicability of Horvarth but the IAT had not shown that risk of ill-treatment was definitely not present. This means that Horvarth could be used to restrict Article 3 claims when it comes to non-state actors and then cause Article 3 to lose its absolute quality; yet as the House of Lords decision indicated, it is the essence of the conventions that needs to be upheld. Using Horvarth this way might go against the essence of the ECHR.
Economic Migrants:
It was touched upon earlier that a lot of the Roma gypsy cases and other Eastern European cases have the theme of being unable to gain employment, through persecution. Claims such as this will be classed as economic migrants and the resistance of the UK to see these persons as in need of protection is great. This leads one back to think about fundamental human rights, which are based on arguments such as dignity, justice From basic principles it could be argued that economic and social rights may be fundamental human rights also. Is it right that a person who cannot get a job because of their ethnic origin is not described as being persecuted just because he/she does not bear physical scars of beatings? This is really an area that needs to be explored in the next chapter, however it is important to bring it up in this context as many cases concerning Romas centre around economic persecution, e.g. Conka v Belgium… This illustrates the democratic liberalist societys reluctance to see economic and social rights as fundamental human rights.

Conclusion:
The Roma gypsy cases illustrate how the UK and European courts interpret conventions and human rights so strictly that they avoid responsibility for non-citizens. The facts of some of the cases are horrendous and in the cases considered disproved, but instead of protecting the individuals the UK courts say that it is the originating states duty to protect and if the state has the machinery to protect the persecuted group then the UKs responsibility is nullified. It was not considered whether the originating states machinery of protection was effective and whether the authorities had any real interest to protect these persecuted groups, or whether in fact the reality was that the authorities are biased against them. In truth, the essence of the Refugee Convention, one would like to argue, is that these persons should be protected outside of their originating state because claims of persecution indicate that the state is not providing sufficient protection and persons should not be returned until the risk is eliminated; as well as the use of immigration law to exclude a set of individuals which has been traditionally prejudiced against. In other words, immigration law does not follow the equality of human rights theory, rather it uses the rights to exclude certain groups through the law (delete,) when there is racist reasoning behind the legislation.

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