Immigration law
The importance of setting out the full argumentOchave v INS, 2001 WL 709235 (9th Cir.
26 June, 2001) This is a disturbing US Court of Appeal for the ninth Circuit case.
The court, by a majority, ruled that a Filipino applicant failed to show a nexus between her rape by Marxist guerrillas and her imputed political opinion, and that she thus was not eligible for asylum.Although her father was municipal counsellor, the court found that there was no evidence that the guerrillas knew who her father was at the time of the rape.Furthermore, the applicant testified that the attack might have been a random act of violence.
The dissent stated that the majority set an impossible evidentiary standard by requiring her to show that the rapists explicitly informed her that she had been singled out because of her father's position.The dissent also stated that the INS attorney and immigration judge repeatedly prevented her from answering questions designed to elicit the information in question.
This is a dreadful decision, particularly when read with recent Home Office refusal letters asserting that the state has no responsibility for the violent actions of its soldiers and police officers which allegedly occur because of lack of discipline.Practitioners must not assume that because they are aware of the use of rape and sexual assault as a weapon of oppression and not a lack of discipline, that the argument need not be properly formulated.
The horror of persecutory acts must not blind practitioners to the need to ensure that all necessary arguments are properly placed before the court.Deportation for the public goodAllan Samaroo v Secretary of State for the Home Department; Memet Sezek v Secretary of State for the Home Department CA (Dame Elizabeth Butler-Sloss President, Lords Justice Thorpe, Dyson) 17 July 2001 These two cases involved appeals to the Court of Appeal against deportation orders made on the basis that deportation would be conducive to the public good.
The two appellants ('SA' and 'SE' respectively) had both been granted permission to enter the UK many years previously and had established family life and roots in the UK.
Both had been convicted of serious drugs offences, hence the deportation orders.
In the case of SA the secretary of state considered that his compassionate circumstances were outweighed by the seriousness of the offence.
SE had been intermittently unemployed during his time in the UK.
SA argued that the deportation order would interfere with his right to a family life under article 8(1) of the European Convention on Human Rights and that such interference was not justified under article 8(2) of the convention.
SE submitted that as a Turkish national he was protected from deportation by article 6(1) of decision 1/80 of the Association Council of the European Communities under the Ankara Treaty of 1963.
The Court of Appeal held:l the objective of preventing crime and disorder was sufficiently important to justify limiting a fundamental right and the deportation of those convicted of serious criminal offences was a measure that was rationally connected to that objective.
The sole question was whether deportation had a disproportionate effect on SA's rights under article 8(1) of the convention.
In a case like this, where the legitimate aim could not be achieved otherwise than by interfering with a convention right, the decision-maker had to strike a fair balance between the legitimate aim and the person's convention rights.
The striking of a fair balance lay at the heart of proportionality.
Accordingly, the court had to determine whether the secretary of state had struck a fair balance between SA's right to respect for his family life and the prevention of crime and disorder, bearing in mind that he had a discretionary area of judgment.
l The secretary of state was not required to prove that the risk of crime and disorder outweighed the violation of the convention right, but instead had to justify derogation from a convention right and the justification had to be convincingly established (Barthold v Germany (1985) 7 EHRR 383).
It was held that the secretary of state reached a fair and reasonable conclusion in respect of SA.
l It was held that SE lacked the four years' employment required by article 6(1) of decision 1/80 of the Association Council under the Ankara Treaty of 1963 and had ceased to be duly registered as belonging to the labour force on his imprisonment.
By Jane Coker, Coker Vis Partnership, London
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