In cases involving asylum seekers there are different models that are used and presented to make a sound and most appropriate decision given the different dynamics of a specific case. However, the judgment or rules governing the decisions that are made in these cases are dependent on individual cases meaning that there is no standard or a judicial precedent that governs all cases. The International Court has been one of the cases that have helped in developing the best models that are used in defining the models and aspects that are used across different asylum cases. Since most of the countries look to pass deportation judgments on asylum seekers there are different rules that have been revolutionized and changed the models that are used at the ICC. It is increasing becoming important to consider the right of a family and property before making a decision for deportation. The ECHR, ICCPR, ICEED are some of the organizations that have redefined the models used in these cases. However, one of the factors that have still not been met has been the changes that are needed by judges in the society. The judges are tasked with the role of examining the evidence and passing judgment depending on the models that are appropriate depending on the dynamics of the case. This paper assesses the different pertinent aspects that have since been controlled and changed over the years that are important in giving the asylum seekers a chance depending on their right to family and private life.
One of the cases that have largely been highlighted has been the cases of Boutlif Vs. Switzerland. After the applicant was slated for deportation by the Swiss government, the ICC changed the ruling citing the qualifications that were created by his family (Frontman-Cain, 2002). Boutlif had moved to Switzerland from Algeria and had married a Swiss woman who spoke French but did not speak Arabic. After staying with the woman for a few years, Boutlif was involved in a criminal case where he assaulted another man and was jailed for two years. In the year following his hearing he was to renew his stay in the country but the Swiss government declined citing that he was a danger to the Swiss people (Frontman-Cain, 2002). The Swiss government and courts held the same opinion after appeal and he pushed the case to ICC where it was overturned and he was given a right to stay in the country. This is even though he did not have any children with his wife and was involved in altercations with a Swiss resident. A similar case involved Uner Vs Netherlands where Uner was involved in a case where he had been involved in an altercation with a Dutch citizen. He was jailed for two years but after his release, he shot two people and Netherlands decided to deport him back to Turkey (Thym, 2008). Uner Filed for a petition in the case in the Netherlands and thereafter in the ICC where he failed in both cases. The courts held that Uner was a repeat offender and although he had shown no signs of offending it was his word against the evidence of his actions. It was difficult for the court to establish if he would do the same in future making the case difficult and the courts therefore, all upheld the decision to deport him (Thym, 2008).
Under the requirements of article 8 everyone has the right to respect for his private and family life, his home and his correspondence (Cholewinski, 1999). It goes on to state there should be no interference from a public authority with the exercise of this right except if its in accordance with the law (Frontman-Cain, 2002). The Article is however, ambiguous and difficult to follow since the statements that are assessed in the article do not define or describe the best processes for determining the models that should be used in these cases. One of the aspects that is analyzed is if the case is in accordance with the law and pursuit of a legitimate aim. The Boutlif case was in accordance with the law and had followed all the domestic aspects that were necessary to ensure that the case was heard and given a chance in court (Frontman-Cain, 2002). The petitions were given in different courts and there was a basis of argument that was critical in giving the people the best chance to communicate and make the best models necessary in making it critical and relevant in the case. There were different models that were represented making it crucial for the case to be relevant. The case was relevant since Boutlif was a model citizen and had been released before the release date due to his impeccable behavior having not been a repeat offender (Frontman-Cain, 2002). In the case of UNer the fact that he was a repeat offender meant that he would not be given the same chance since he did not have much confidence or give the court enough evidence to overturn the ruling.
The nature and seriousness of the offence has to be assessed and the actions of the individual after conviction also have to be analyzed. This is aimed at assessing if the actions taken by the alien country are necessary for a democratic society (Gedalof, 2007). There court needs to establish how serious the conviction was before making a decision on the deportation process that needs to be used in this case with courts having to assess the individual behavior before making appropriate processes and behaviors. The case of Boutlif in comparison to Uner case is different since they are for different activities and actions. While Uner was convicted with shooting two people where one of them died, Boutlif was convicted of a simple case of assault where they had fought with a Swiss citizen (Frontman-Cain, 2002). The fact that Uner is a repeat offender also diminishes any chances that he has for the case for deportation to be overturned. Uner after Deportation still manages to enter the country illegally and after being arrested looks to use Article 8 as a defense.
The family ties and the length of stay in the country are also aspects that are measured. Before Boutlif had his case for deportation overturned, his wife had to give a testimony where he asserted that he did not know Arabic and would have a hard time if deported to Algeria (Frontman-Cain, 2002). These are some of the issues that the courts are basing their facts on to ensure that the decision for deportation for asylum seekers is not unfair and therefore follows the right procedures (Castles, 2004). There are changes that are being orchestrated that are going a long way in helping the asylum seekers in having a chance to look for asylum and protect the interests of their families in the process.
Castles, S. (2004). Why migration policies fail. Ethnic and racial studies, 27(2), 205-227.
Cholewinski, R. (1999). Economic and social rights of refugees and asylum seekers in Europe. Geo. Immigr. LJ, 14, 709.
Frontman-Cain, S. (2002). Boultif v. Switzerland: The ECHR Fails to Provide Precise Criteria for Resolving Article 8 Deportation Cases. Loy. LA Int'l & Comp. L. Rev., 25, 323.
Gedalof, I. (2007). Unhomely homes: Women, family and belonging in UK discourses of migration and asylum. Journal of ethnic and migration studies, 33(1), 77-94.
Thym, D. (2008). Respect for private and family life under Article 8 ECHR in immigration cases: a human right to regularize illegal stay?. International and Comparative Law Quarterly, 57(01), 87-112.
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