UK Immigration Law: Analysis Of Several Scenarios - An Essay.

Part A: Answer at least one question from this Part

Part A: Answer at least one question from this Part

1. Advise the following of their right to live in the UK under EU law:
   
   
2. Hans, a German national, who wants to come to work unpaid for a charity in the UK;
   
   
3. Federico, an Argentinean national, who came to the UK four years ago with his wife, Alicia, an Italian national, who was working as a doctor. Federico and Alicia have just divorced. Federico is a PhD student and works ten hours per week as a university tutor;
   
   
4. Sadiq is a failed asylum seeker who was living in the UK when he married Ruth, a British citizen. Ruth moved to France where she has been working for three months and Sadiq joined her there. They now wish to return to the UK.

2. Advise the following whether they are subject to immigration control. Give reasons for your answer:
   
   
3. George was born in Jamaica in 1990. His father, Matthew, was born in the UK in 1963;
   
   
4. Jamil was born in Yemen in 1975 of Yemeni parents. He came to the UK as a student in 1996, stayed on to work and then naturalised as a British citizen. He then renounced his Yemeni citizenship. While on holiday visiting family in Yemen, he learnt that his British citizenship had been removed on grounds that this was conducive to the public good;
   
   
5. Esther is a Nigerian citizen married to Frank, a German citizen working as an engineer in the UK;
   
   
6. Claire, a British citizen by descent, who is coming to the UK for the first time.

3. Martina, a Chilean citizen, met Robert, a British citizen on a 2 week holiday in the UK. After corresponding for a year, Robert got a job in Chile, they met again and married. They have been living together in Chile for two years but Robert has now been made redundant, his parents are unwell and they wish to go to live in the UK with their baby daughter, Evelina. Robert is a chemical engineer and he is confident of finding work in the UK using his old contacts. In the meantime, they will live with Robert’s parents in their three bedroom house and will use their £15,000 savings to keep themselves.

Advise Robert and Martina of any likely problems with their application.

Part B: Answer question from this part.

4. To what extent have the British courts used article 8 ECHR to protect migrants who have a family life in the UK from removal and deportation?

1(a)

In the given scenario, Hans, who is a German national, in order to come to United Kingdom for unpaid charity work, needs to contact or consult with the UK Border Agency. The Agency acts as an executive unit of the Home Office, which manages migration, border control and the custom rules for the territory of United Kingdom. The Agency is responsible for making the consideration of the applications for granting the permission to make the entry and stay in United Kingdom to outside persons.

The citizens of the member states, which are prior to 2005 of the European Union, are allowed to work as volunteer in any of the member states. In case any organization who wishes to appoint an unpaid worker or volunteer from the territories outside the European Union, would need to make the application for becoming a sponsored organization. This means that an organization needs to be licensed in order to issue the sponsorship certificates to their workers.

In the given case, it is important for Hans to take the responsibility in ensuring that he is allowed to volunteer, so that he could jeopardize his immigration status (Anderson, 2010).

In the given scenario, Federico, having an Argentinean nationality, is a resident of the United Kingdom since the last four years, along with his wife named Alicia. Alicia and Federico got divorced. In the present time, Federico is a PhD student and works as a tutor in a university for ten hours every week.   

In the above scenario, Federico must have a Tier4 (General) student visa to study and work at United Kingdom. The Tier4 (General) student visa is granted when any person pursues any course in United Kingdom (Murdoch and Anderson, 2010). The Visa is offered to any person who can write, read, understand and speak the English language very well. The said visa is granted to any person who have that much money to support himself or herself in the territory of United Territory and who can pay for the course that they are pursuing (Silverman & Hajela, 2012). The said visa is also granted to any person, who is not from any country that lies in the European Economic Area. The said visa permits any person to study and work in several jobs.

Part B: Answer question from this part.

Hence, in the given scenario, Federico needs to have the said visa or else he have to make the application for the said visa.

According to the United Kingdom Immigration law, marrying a British citizen does not automatically provide you with British citizenship. The normal course is that one has to return to his country of origin and apply for a spouse visa. Additionally, a British citizen who wishes to bring his spouse to live in United Kingdom must show an income of £18,600 or above. After the introduction o the said rule, many British citizens choose the Surinder Singh route which requires them to leave United Kingdom and work in a European Economic Area country for about three months. According to European freedom of movement, British national working in any other EU country can bring their spouse to United Kingdom without the income requirement if they can prove they worked in another EU country for 3 months. Thus, in the said case, Sadiq can return back to United Kingdom with his British wife Ruth without the requirement of income of £18,600 or above (Ruhs & Anderson, 2010).

2(a)

In the present case, George was born in Jamaica in 1990 and his father was born in the United Kingdom in the year 1963. According to the current legislation in the United Kingdom, British citizenship normally descends through one generation to children who are born outside the United Kingdom. These children are considered United Kingdom citizen by descent however; they are unable to transfer citizenship to another generation of children born outside the United Kingdom. The children born outside United Kingdom to parents who were British citizen before 1 January 1983 are considered British citizens by descent. Initially, this right was available to legitimate children of just British fathers, however eventually citizenship was allowed to descend along both male and female line. Thus, in the given case George being a legitimate child of a British citizen born before 1 January 1983 will abode British citizenship by descent and will not be subject to immigration control (Hollifield, Martin & Orrenius, 2014).

According to section 40(2) of the British Nationality Act 1981 allows the Secretary of State of the United Kingdom to deprive an individual’s British citizenship if satisfactory grounds are found that such deprivation is conducive to the public good. Under the said law, deprivation orders are normally passed with immediate effect when the individual is outside United Kingdom in order to prohibit the said individual from returning back to the United Kingdom. The individual in such a case is not allowed to enter United Kingdom even to appeal against the said order (Eichengreen, 2010). Thus, in the said case, Jamil lost his British citizenship under section 40(2) of the British Nationality Act 1981 and thus will be subject to immigration control if she returns to the United Kingdom. However, he can appeal against the order to the Special Immigration Appeals Commission on the grounds that deprivation of British citizenship has made him stateless which is prohibited against section 40(4) of the British Nationality Act 1981.

Part 1

Under the European Immigration laws, individuals who marry an EU citizen are permitted to apply for a European Economic Area Family Permit. Foe non-EU citizens in the United Kingdom to be eligible for grant of a European Economic Area Family Permit, the spouse who is the EU citizen must exercising rights under the treaty which requires them to either work, study or be self-employed in the United Kingdom. The non EU-citizen must be legally married to the EU member residing in United Kingdom. The non –EU citizen must have met the EU citizen and must intent to live together. The EU citizen must hold a Residence Permit. If the said requirements are fulfilled, the non-EU spouse will be granted 5 year Family Permit. This permit allows the non EU spouse to work in United Kingdom for the said duration and eventually the said permit can be converted into Indefinite Leave to Remain if the relationship lasts till the final months of the permit. Thus, in the said case Esther who is a Nigerian citizen is not subject to immigration control providing he has European Economic Area Family Permit (Fox, MoroÅŸanu & Szilassy, 2012).

Citizenship by descent means a child who is born outside United Kingdom after 1 January 1983 automatically receive British citizenship if one of the child’s parent is a British citizen by birth or by registration (Spijkerboer, 2012). Thus, the requirement for a child to get British citizenship by descent is that at least one parent needs to be a citizenship of the United Kingdom in any other manner except descent. The section13 (2) of the Asylum and Immigration Act 1996 defines the individuals who are subject to immigration control in the United Kingdom. According to the said section one of the following individuals do not require leave to enter or remain in the UK:-

• British citizen
• Commonwealth citizen with right to abode
• Citizens of EEA country
• Individuals exempted by immigration control on ground of being diplomats and military officials.

Thus, Claire is subject to immigration control as she does not qualify to any of the above categories (Williams, 2012). 

In the present case, Robert who was a British citizen met Martina who was a Chilean citizen while she was visiting United Kingdom. Eventually, Robert got a job in Chile and married Martina in Chile. They have a daughter. As Robert’s parents are unwell, he now after 2 years wishes to return to United Kingdom. Thus, what problems can Robert and Martina face in visa application.

In the present case, Robert is eligible to enter United Kingdom as a returning resident as he was previously settled in United Kingdom and plans to return to the United Kingdom permanently and was not given public funds to leave the United Kingdom. Additionally, Robert was away from United Kingdom for more than 2 years, thus, he is eligible to apply for a returning resident visa (D'Aoust, 2013). Additionally, Robert has enough evidence to prove that he has strong family ties in United Kingdom as his parents live in the United Kingdom and are presently unwell. He being a British citizen can prove that he stayed in United Kingdom all his life. Additionally, he had a valid reason to leave United Kingdom as he got a job in Chile where he married his wife Martina, a citizen with whom he has a daughter (Sirriyeh, 2015). The issue which Robert in the said case will face is to comply with the financial requirements needed to sponsor a Non – EU partner and a child in United Kingdom. According to the new spouse visa requirement laws in the United Kingdom which were enforced from July 2012, it is compulsory for a British citizen to show an income of £18,600 and above annually to get a non –EU partner to live in the United Kingdom. Additionally, the amount is increased to £22,400 if the British citizen has a family to bring to United Kingdom with one child. This rule was brought about to relax the burden of migration on taxpayers in the United Kingdom. Thus, in the present case, Robert will face the issue to show a salary of £22,400 and above to get his wife and daughter to live with him in the United Kingdom (Charsley et al, 2012).

1(a)

Article 8 of the European Convention on Human Rights talks about the right to respect one’s private and family life and states that every individual has the said right subject to certain prohibitions which are according to law necessary in the democratic society (Dronkers & Vink, 2012).

Thus, when it comes to removal or deportation of a non-British citizen, the Secretary of State has to consider and act while determining the decision of deportation without breaching the article 8 of the European Convention on Human Rights. Accordingly to immigration laws in the United Kingdom, a British citizen can be deported from United Kingdom when the Secretary of State finds the deportation “conducive to the public good” and when the courts suggest deportation when individuals below the age of 17 who are non British citizens engage in crime which is punishable with prison term of 12 months and more. The recent case laws in the United Kingdom resulted into the new immigration law which states Article 8 has to be complied with unless genuine exceptional cases is shown. Thus, Courts have made it clear that before deportation of any individuals, domestic circumstances of the individual being deported has to be taken into consideration making it necessary to show that public interest outweighs domestic compassionate circumstances which justify deportation of an individual. Thus, many individuals who were denied entry in the United Kingdom to reunite with parents and partners used Article 8 to establish claims of appeal and Court granted the said entry in cases where public interest was not affected and was advanced by the decision. In one case, a child was send away by a mother who was granted indefinite leave to remain in the United Kingdom for child’s safety. The mother was then sent to prison and went she returned to Britain she was granted asylum. She tracked her child but the said child was refused entry clearance to the United Kingdom. The said decision was appealed relying on Article 8 of the European Convention on Human Rights. The Court in the said case considered that Article 8 does not ensure that the State will respect a family choices of the nation in which they conduct reunions however in the said case the facts outweigh the criteria of immigration control, thus, the child was granted entry clearance to the United Kingdom. Thus, the Courts have advanced the true meaning of Article 8 of the European Convention on Human Rights (Rainey, Wicks & Ovey, 2014).

Reference List

Anderson, B. (2010). Migration, immigration controls and the fashioning of precarious workers. Work, employment & society, 24(2), 300-317.

Charsley, K., Storer‐Church, B., Benson, M., & Hear, N. (2012). Marriage‐Related Migration to the UK. International Migration Review, 46(4), 861-890.

D'Aoust, A. M. (2013). In the Name of Love: Marriage Migration, Governmentality, and Technologies of Love. International Political Sociology,7(3), 258-274.

Dronkers, J., & Vink, M. P. (2012). Explaining access to citizenship in Europe: How citizenship policies affect naturalization rates. European Union Politics, 13(3), 390-412.

Eichengreen, B. (2010). The breakup of the euro area. In Europe and the Euro (pp. 11-51). University of Chicago Press.

Fox, J. E., MoroÅŸanu, L., & Szilassy, E. (2012). The racialization of the new European migration to the UK. Sociology, 0038038511425558.

Hollifield, J., Martin, P., & Orrenius, P. (2014). Controlling immigration: A global perspective. Stanford University Press.

Murdoch, S.J. and Anderson, R., 2010, January. Verified by visa and mastercard securecode: or, how not to design authentication. In International Conference on Financial Cryptography and Data Security (pp. 336-342). Springer Berlin Heidelberg.

Rainey, B., Wicks, E., & Ovey, C. (2014). Jacobs, White and Ovey: the European convention on human rights. Oxford University Press (UK).

Ruhs, M., & Anderson, B. (2010). Semi‐compliance and illegality in migrant labour markets: an analysis of migrants, employers and the state in the UK.Population, space and place, 16(3), 195-211.

Silverman, S. J., & Hajela, R. (2012). Migration Observatory Briefing: Immigration Detention in the UK. The Migration Observatory at the University of Oxford.

Sirriyeh, A. (2015). ‘All you need is love and£ 18,600’: Class and the new UK family migration rules. Critical Social Policy, 0261018314563039.

Spijkerboer, T. (2012). Analysing European Case Law on Migration: Options for Critical Lawyers. Migration and European Law: Collected Courses of the Academy of European Law Xxi, Oxford University Press, Forthcoming.

Williams, F. (2012). Converging variations in migrant care work in Europe.Journal of European Social Policy, 22(4), 363-376.