An appeal by Mr. Jamali Abdullahi against the decision made by the Home Office UK Visas and Immigration. This is an appeal by Mr. Jamali Abdullahi who is seeking asylum in the UK state. The appellant is an Iran national who is threatened by his stay in Iran and, therefore, seeking to continue his stay in the UK. He has requested to be recognized as a refugee. He has also requested for a grant of humanitarian protection. He has cited several reasons for his actions which haven’t convinced the UK state home office. The state home office of UK has declined the request citing various reasons. The counter reason given by the home office does not convince the appellant. This has led to the appeal application seeking to make the court reconsider the decision made by the home office of UK.
Mr. Jamali raised different issues in his claims to request asylum, each issue was responded to by the UK home state office in an unexpected casual manner. The issues raised include;
The appellant was seeking asylum and in the UK and asked to be recognized as a refuge. The basis of the request is the well-founded fear of persecution.in Iran due to religious disagreements. The home office replied not to have found a convincing reason, through the secretary of state. Quoted directly from the refusal order statement he argues. “I have decided that you have not established a well-founded fear of persecution so you do not qualify for asylum”. It goes further to say the asylum claim has therefore been refused under the paragraph 336 and 339M of HC395 of the (exhibit JA1).
Secondly, the appellant’s request for humanitarian protection.The office through the secretary has also awarded a refusal statement on the same. Quoted directly he states. “I have also decided that you do not show substantial grounds for believing that you face a real risk of suffering serious harm on return from the UK, so you do not qualify for humanitarian protection.” These claim has also been refuted under the paragraph 339F of the immigration rule.
The house also established that they carefully considered the circumstances of the case. They hold that none of their decisions has in any way breached his individual rights (exhibit JA1 339F).The individual right being talked about is; right to respect for family and private life under (article 8) of the ECHR. This decision was based on considerations of the appendix FM and the immigration rules.
The house also decided that the appellant does not qualify for leave. The decision is made considering the argument of the appellant’s family and private life in the UK. The refusal order is under section 276CE
The house has also ruled that the appellant is not eligible for grant of limited leave, The leave granted to remain the UK in accordance with the published Home Affairs Asylum policy instructions. Lastly, the house decided that the appellant does not qualify for discretionary leave. They, therefore, acknowledge considering all the humanitarian laws of the ECHR, under article 2 and 3.
Section 55 of the borders ACT takes into account considerations of safeguarding and promoting the welfare of children in the UK. The house has only mentioned of taking this section into consideration while making their decision but not on any specific decision.
Mr. Jamal Abdullah is an Iran national.
He is threatened by his return to their original country. Adhan Abdullah brother to the appellant has been arrested and detained following his flight from Iran. This shows there have been attempts to find the appellan.The parents to the appellant are not practicing Muslims.
He has been involved in the atheist society at the University. He has shared his beliefs of atheism with other like-minded people. He has written articles of atheism before and distributed them to the school. The appellant is a victim of a raid that took place in the building that they had organized an atheist meeting.
Security officers raided the building on account of searching for the appellant. The appellant has never had problems with the nation except on accounts of being an atheist. Security agents in Iran have been in pursuit of the appellant since learning that he is an atheist,They have raided severally the home of his parents in Iran searching for him. He confirms being an atheist.
He is risking going back to Iran since an open declaration in Iran would lead to his death. Iran’s punishment for the atheist is a death sentence,The appellant cannot stay in another part of the home country since the regime is well connected and can find him and still punish him.
The appellant has never attended military services.
The following law will apply to this case.
The International Human Rights Regulatory law.
The European Convention on Human Rights law
The UK Immigration and refugee law.
International Refugee Law.
The refugee law was introduced after the second law. It was so that the people who were forced out of their country due to exile. They would seek asylum in other countries through refuge laws.
The law has since develop due to other reasons owing to the Geneva Convention of 1951. Before this the IRL only applied to a few countries, later then other counties joined.
The law has since developed. The law protects the individual from intimidation that may be caused when someone is under persecution in the original country.
Persecution in this case is defined in (the article 10) where it specifies. Any fear of being killed in the original country.
The same law gives a limitation under the same article. That the same rule will only apply if the
Individual hasn’t committed a serious offence, or poses a serious threat to another country.
There could be no legal documentation for such from the Iran government. However, there is every likelihood that the appellant will be persecuted on return to Iran. An attempt has already been made to do so, therefore, another attempt is also very possible. Role of international human refugee law in protecting the refugees in other countries,
Governments normally guarantee the basic human rights and physical security of citizens. When civilians become refugees the government no longer respect the law anymore, UNHCR made laws to pursue justice for refugees. It is a way to ensure safety for refugees and persons seeking asylum. They have rights just like everyone else that are protected by law. The governments of such nations do also have a role to play. This is all accorded in the international laws for refugees
The starting point for a person seeking asylum in Europe as in the appellant’s case is the Geneva Convention. The Geneva Convention is the basis of law used when considering the qualification directive. The major underlying principle used determining the qualification directive is the nonrefoulement principle. This principle is considered the most important under both the international refugee laws and European law. The principle states that a refugee must not be returned to a country where they have reason to fear persecution.
The non refoulement principle applies to both country of origin and where the refugee fears to face persecution. The law goes further to specify that all member states of the EU and Council of Europe are party to the Geneva Convention that came up with this principle The appellant is seeking asylum based on this principle. He has cited various reasons causing his fear of persecution. He pegs this to religion.
The appellant states that he is an atheist who is not willing to give up his beliefs. He states that the risk of being an atheist in Iran is punishment by death. He has narrated being pursued by the regime and the family members have been threatened.
He has cited instances of escaping death from the regime by running away from the state. His account is given from the witness statement (exhibit JA2). It is beyond reasonable doubt that the appellant should be granted the qualification directive. The qualification directive should be awarded by the home office of the UK unless the office of immigration office is not part of the Geneva Convention stated in the. (2011/95/EU). The home office state has given their decision based on (article 8) of the Geneva Convention. They do agree that the appellant is of Iran nationality, but has not demonstrated reason enough to show the risk of persecution in Iran.
the appellant has shown enough reason to be considered for qualification of asylum According to his witness statement, he has shown that he had once escaped an attack when he went back to Iran. He later flees the country on short notice after his cousin paid someone at the airport to determine that his name was not on the wanted shortlist. This two incident prove that the life of the appellant is at a risk and therefore qualified for asylum grant
Being one of the oldest laws having existed since 1957. There are so many things that have changed since then. The rime frame therefore limits the effectiveness of this law applying to particular cases. This also applied to the case at hand. Some of the provisions are limited to apply in modern communication. In the law the term persecution is not defined. The term is not specific to which persecution do they mean. For this case it is difficult to understand why the persecution is being done. The state office therefore cannot act on this basis.
The second limitation of the refugee law is the overall definition of a refugee. According to the Geneva Convention, the refuge law is not applicable to the contemporary forms. Fear of persecution during the 1957 is different from the current forms. The main form of persecution according to the law then was implemented on individuals who were forced on exile into other countries. The reasons for applying refugee law like due to religious persecution were not their previously. This therefore limits the operation of the action by the state office.
Thirdly, the international refugee law lacks the repartition between member states. This means that if one state doesn’t feel like awarding asylum, then the individual might apply somewhere else. This provision would have helped the appellant apply in another country and would not have needed to appeal.
In overall, the absence of evolution of the refugee law since the 1951 Geneva Convention makes it insufficient to be the basis of denying asylum. The law therefore needs to be amended to fit particular scenarios and be even more effective.
The (Article 9) of the Geneva convention states that no one may be removed, expelled or extradited to a state where they would be subjected to a death penalty, torture or other inhuman or degrading treatment or punishment. (Article 33) reverses the qualification directive in (article 9). The article allows for removal of a refugee under the following exceptional circumstances. When the person pauses a danger to the security of the host nation, when the person has committed a serious crime and when the person is danger to the community
Basing the reasons on (article 33) of the European convention of 2008 the appellant should receive a qualification directive. The appellant has no previous criminal records. He has all documents and visas including the post-migrant visa for his masters, allowing him to be in the UK as testified by the home office in section 44 in their refusal order. The appellant should, therefore, be granted the asylum request.
The appellant is also not a potential threat to the security of the country. All his emails and communication have been monitored by the state. There are no traces of the appellant communicating to any unauthorized persons. The appellant, in fact, is an asset to the nation as he participates in the medical technical advisory,The appellant doesn’t present any danger to the community around. Providing technical medical advice is not causing harm to the community. Based on this article of the law, therefore, the appellant should, therefore, receive a qualification directive.
(Article 10) of the EHCR expresses the various forms of persecution. The various forms include when a person is forced to conceal his or her political convictions, sexual orientation or religious beliefs.
In a previous case handled by the UK court in 2010 under articles 9 (1) (a) of the qualification directive. The UK court was asked to determine whether the definition of acts of persecution for religious reasons covered interference, with the freedom of an individual’s manifestation of one’s faith.
The court clarified that the appellant cannot forgo religious activities that can put his life in danger in the country of origin. The court further determined that the national authority should asses the status of the claim and give the qualification directive. The UK house of migration seemed to have neglected this article. The article stresses the need to provide the qualification directive for such religious reasons. In their refusal document, they allow the appellant to continue the group of atheist in the country. They, on the other hand, refuse to grant asylum so that, the appellant can continue engaging in his religious activities. The country of origin which has Iran put the life of the appellant in danger
The home office continues to reject the request basing their argument on the appellant’s failure to request for asylum at the time he was at the airport. This is in the refusal document at section 46. These refusal conflicts with the (article 5) of the qualification directive. The article specifically covers that when asylum claims arise while the person is already in the host country, they are allowed to raise fear of persecution concerns based on the event. They then should be granted asylum even when already in the host country. The appellant has raised fear of persecution though he is already in the UK. He has narrated in his witness statement how the events after he moved to the UK build to his fear. The appellant’s brother has been held captive in pursuit of the appellant. There have also been frequent visits to the parents’ home trying to find him.
The home office refuses to grant subsidiary humanitarian protection to the appellant based on the knowledge that the appellant does not fit the qualification of becoming a refugee. This is under section 2 of the refusal order. The refusal is in contradiction with the article 15(a) of the EHCR law for refugee. The article states that subsidiary protection can be given to those who do not qualify as refugees but are facing serious threats of the death penalty or execution from the original state. The appellant has shown possibilities of persecution by death penalty owing to the attempted murder on his life. The state, therefore, should grant the appellant subsidiary protection.
Theoretical issues and legal principles of free movement and the relationship between human rights law and refugee law. Alluding to the 2010 case of Supreme Court of the United Kingdom. The appeal parties accepted being a social group that practice homosexuality. And that it constituted a social group. In relation to article 1A (2), it is difficult to determine the honest fear of persecution. In our case, can atheists fall outside the convention protection? Can the persecution be avoided by concealment? In that judgment, the judge, Lord Hope, ruled that the characteristics are immutable and the only way to protect them was to grant them humanitarian protection.
This statement clearly applies to the case in question. The appellant in his statement says that he and his social group are not willing to stop or conceal their atheistic belief. With this honest opinion the appellant, therefore, deserves subsidiary and humanitarian protection. The rule of concealment of true identity has worked previously if the fear of persecution makes the individual to willingly accept the concealment. The court, in this case, should not seek to determine if the person persecution risk will be reduced. The house of office in its refusal order seemed to have ignored the centrality of the risk from the individual’s claim, which according to the international laws for refugee should remain the basis for protection.
The home office denies interfering with humanitarian rights of the appellant. They fail to recognize any potential threat to the individual. The protection of asylum seekers is not just about admission but also about protection. International laws in regard to human rights and movement principles (article 7) provide this information. The law advises that when denying asylum it is prudent that the state determines the formal aspects of basic living. These aspects include work, family and other internationally recognized fundamental rights. This is an international concern. The house of office has neglected all this assessment and has not given a decision based on any of the fundamental rights of the appellant being violated.
The principle of non-discrimination makes up the international law (Petersen 2018). The law recognizes the sovereign movement of people between states. It uses the principle to manage those who are discriminative in terms of race, ethnic beliefs and religious beliefs. The refusal order by the state home office is absolutely inconsiderate of this principle.The refusal order from the home office at number 54 proves my claim. They claim the assailant has not been given freedom to display any atheist behaviors, so he should not have displayed any of those behaviors both in UK and Iran. This statement is discriminative of the religious beliefs of the appellant, asking him why he decided to behave so.
This is a form of violation of the principle of non-discrimination. If sovereign competence approach has to be maintained for movement between the states, the ground rules, such as the principle of non-discrimination and principle of refugee protection, are worth restating.
Assessment of refugee rights including children and women in terms of economic, political and social context. Article 1(A) (2) of the 1951 convention defines a refugee as an individual who is outside his or her own country of nationality and unwilling to return due to a well-founded fear of persecution based on his or her race, religion, nationality, political opinion or a member in a particular social group.This article qualifies the appellant to be considered a refuge in the state of UK. The appellant has fear of persecution due to his religious beliefs, his rights to be recognized as a refugee has been infringed. He has been asked to leave the country contrary to his will. The refusal order at the last part insists that if he doesn’t leave the state, he will be forced to. The use of force interferes with the individual rights of the appellant.
The social rights that include right to the family of the appellant have not been infringed by the home office. The appellant has no family yet in the country therefore the refusal order of asylum affects him alone and not the family. The family is not threatened by his being away except for his brother. The convention protects the right of refugees, such as the right to education, access to justice and other fundamental freedoms. Denying the appellant asylum would be denying him the right to education.The assailant has recorded in his statement that he is still a continuing MBA student. His denial of asylum infringes on his fundamental right to education. The home office does not give a relevant response to this factor citing that it is not relevant to the request.
The refuge law according to the UN are stipulated in such a way that they seek protect the right of the refugees. They also provide for various articles that support the rights of people seeking asylum.
The UN convention of 2008, clarifies that the people seeking refuge and refugees have the right to enjoy social, economic rights like right to education and work in the country that provide asylum. These right is compromised as most of the education facilities and employees prefer admitting natives rather than refugees.
The UN also mentions that these refugees are entitled to funds from the government. The countries that provide asylum do not give any funds to these refugees giving various reasons.
The two example therefore show that, the laws are well written but they are not implemented by the member states. The fact that they are not implemented compromise on their practicability to saving the refugees.
The argument is asking the court to reverse the refusal order by the UK home office of migration and instead grant Mr. Jamali Abdi asylum. (Under article 9) of the humanitarian law.
The reasons he has given are valid enough considering the international law, humanitarian law, and the EHRC laws.
The court should provide protection for such refugees and not judge their fate to their religious beliefs. (Article 10).
The argument also seeks to ask the court to order the state office to provide the humanitarian subsidiary protection in relation to the humanitarian laws (article 9).
The appellant fear of persecution is valid. The court is also requested to consider reversing the order of forceful deportation of the appellant (article 2).
Lastly, the court is requested to ask the state to consider the appellant a refuge of the home state.
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