Summary Immigration Law: International Humanitarian Protection (LLB)
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Course
Immigration Law
Institution
City University (City)
International Humanitarian Protection Summarised Notes (there is a separate document for Convention reasons and Persecution and Internal Flight) for the Immigration Law module, LLB, at City, University of London - can of course be used for other universities as well! Should be used with the full bu...
Humanitarian Protection= A residual form of protection available to those not eligible for refugee
status, who do not have a right to subsidiary protection but cannot be removed from national
territory because of objective and serious personal situations.
1951 REFUGEE CONVENTION & ECHR 1950 – 2 sources been translated into EU + UK law – key
international sources of protection for those who leave their country on reason in danger
Refugee law largely EU based – with old case law principles –Refugee QUALIFICATION DIRECTIVE
ECtHR ruled on protection against expulsion allowed under ART.3 &8 ECHR – Binding EU states
“Asylum seeker” –term not in Convention describe person waiting on refugee status claim
Those recognised as refugees are given resident rights and equal status to settled foreigners
States cannot expel a person to a place of danger until their claim has been rejected
Reasons reject cases usually whether a person really in danger or has a safe place in their country
Case rejected person in danger non-political reason or excluded Convention for criminal conduct
ARTICLE 3 ECHR – may be to prevent expulsion but there is no status given – person in limbo
REFUGEE QUALIFICATION DIRECTIVE – confers humanitarian status upon (non-refugee) persons
Once a person has obtained refugee status or after 2005 a grant of humanitarian protection –
they may be joined by a partner + minor children whom left behind in their country of origin
This right only available once status been granted – applies to only relationships that existed and
to children who were part of household prior to departure from country of origin
Children who have been adopted informally – in war torn countries where birth parents may
either die or disappear are not covered by this right and must rely on ART.8
The spouseshow intend to live together and marriage is subsisting and applicant would not
themselves be excluded by ART.1F REFUGEE CONVENTION
Minor children may also apply to join a refugee provided under 18, not married or leading an
independent life –part of family before refugee sponsor left country + not excluded by ART.1F
Similar rules apply to the family members of those granted humanitarian protection
Around 12% refugee claims are made by minors but there is no provision in rules nor in current
policy for such children to be joined by their parents – a policy that appears to be at odds with
government’s obligation under s.55 BORDERS, CITIZENSHIP AND IMMIGRATION ACT 2009
amended– “currently” refugee or humanitarian protection can sponsor relatives under provisions
Since 2005 – Refugees given 5yr leave –renewed in light of conditions in country of origin
Their family members are given limited leave – to run for same period as refugee
This policy contributed to instability + uncertainty for refugee families who must decide whether
to remain separated or undergo relocation for a possibly finite period
As refugee five years’ leave rather than indefinite leave did not qualify as a sponsor under
marriage rules for settled people
Post flight spouse + child applications after 2012 subject to financial requirements (APPENDIX FM)
Fiancés originally not included in amended rules nor rules applicable to pre-flight family members
-There is no way to apply for refugee outside the country, so sneak into country e.g. lorry
-Refugee convention gives a bundle of rights like education, housing, welfare etc for many people
they are in limbo, living in a country without proper status – look at status of refugees – refugee
convention – asylum seeker is not really a legal term – a person is a refugee until proven otherwise –
so government then makes a decision – so in period waiting for government to make
-Most important right is right not to be sent back (right of non-refoulement – any refugee shall not
be expelled to any country where rights of freedom are affected)
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, -A person that claims to be a refugee, until government establishes they do not agree, has this
protection (Art.32(1) – so have rights until then – the refugee gives protection to people before
government establishes they are refugees, so are asylum seekers (Art.33)
-Art.31 – should not impose penalties where enter illegally so as long as present themselves to the
authorities and give good reason to entered illegally
-Art.32= can expel a person who is recognised on grounds of security – so if a danger to the country
can expel them – but have to give protection though like right to hearing, right to give evidence, and
right to be represented, and give them time to go to another country – if think person is a danger but
are being persecuted (so a refugee) this is possible
REFUGEE CONVENTION 1951
Key legal document, Ratified by 145 States Art.1 – DEFINITION OF THE TERM “REFUGEE”
Defines “refugee” – outlines rights of displaced as well as legal obligations of States protect them
Non-refoulement – Asserts a refugee should not be returned to a country where face serious
threats to their life or freedom – now considered a rule of customary international law
Art.31 – REFUGEES UNLAWFULLY IN COUNTRY OF REFUGEE – “Contracting states shall not impose
penalties for illegal entry or presence on refugees who coming directly from a territory where life
or freedom was threatened in sense of Art.1 –without authorisation provided present themselves
without delay to authorities and show good cause for their illegal entry or presence”
Art.31(2) – “Shall not apply restrictions other than those necessary and such restrictions shall only
be applied until their status in country is regularised or they obtain admission into another
country –allow refugees reasonable period +facilities obtain admission in another county”
Art.32 – EXPULSION “Shall not expel refugee lawfully unless ground national security/public order
Art.32(3) – “Allow such a refugee a reasonable period within which to seek legal admission into
another country –Contracting States reserve right apply that period internal measures
ART.33 – PROHIBITION OF EXPULSION OR RETURN (NON-REFOULEMENT) – “No State shall expel
or return (“refouler”) a refugee in any manner whatsoever to territories where his life or freedom
would be threatened on account of race, religion, nationality, membership of a particular social
group or political opinion”
Court test: people being persecuted due to race, ethnicity, membership of a particular social group
outside the country of his or her nationality
Test= (1)Needs to be outside the country (2) well-founded fear of being persecuted (3) caused by
the persecution for the reason of race, religion, membership of a social group
-If feared they are mixed up in a cross-fire, it is not necessarily being prosecuted
-Persecution includes inflicting severe pain on a person to reveal information is classic persecution
REFUGEE STATUS DIRECTIVE 2004/83
Lays down minimum standards for qualification of third country nationals or stateless persons as
refugees or as persons who otherwise need international protection + content protection granted
ART.4 – ASSESSMENT AND CIRCUMSTANCES
European Roma Rights Centre v Immigration Officer Prague [2004] – Romas 400 times more likely
than others to be refused entry to UK under a policy of British Immigration Officials to pre-clear”
passengers boarding flights within Immigration Rules
If officers concluded passengers claim asylum once they arrived they would be refused entry
The ERRC brought this action alleging direct discrimination on behalf of a group of asylum seekers
Roma suffer discrimination at home – in particular many attacks by skinheads
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