Ebola and Immigration: Why is the United Kingdom government not granting temporary protection when the USA is?

Most recent news reports state, “The Department of Homeland Security will grant temporary protected status to people from the three West African countries most affected by Ebola who are currently residing in the United States, department officials said on Thursday. People from Liberia, Guinea and Sierra Leone, in the United States, as of Thursday may apply for protection from deportation as well as for work permits, for 18 months, said a Department of Homeland Security official. After 18 months, the Secretary of Homeland Security will assess whether the protection should be extended, based on the level of the Ebola epidemic in West Africa. The move is a response to the Ebola epidemic, which has claimed more than 5,000 lives, mostly in the three West African countries. In order to prevent a mass migration from West Africa to the United States, nationals from these countries who arrive after Thursday will not be eligible for protected status. U.S. Citizenship and Immigration Services officials estimate that 8,000 people will be eligible to apply.”The Ebola response in the United States has been front and center in the United States government at high levels,” said a Department of Homeland Security official. “This designation has been part of that constant monitoring, reevaluation and reassessment of the appropriate response.”

Exclusive: U.S. to allow people from nations hit by Ebola to stay temporarily

While the United Kingdom seems more concerned in controlling mass immigration in the face of a clear need to offer some temporary form of protection against return to those originating from these 3 countries, the USA appears to be keepings its doors open for such people subject to restrictions.

The BBC Reports, “The Ebola outbreak in West Africa was first reported in March 2014, and has rapidly become the deadliest occurrence of the disease since its discovery in 1976. In fact, the current epidemic sweeping across the region has now killed more than all other known Ebola outbreaks combined. Up to 11 November 2014, 5,177 people had been reported as having died from the disease in six countries; Liberia, Guinea, Sierra Leone, Nigeria, the United States and Mali. ….” Ebola: Mapping the outbreak.

It is quite likely that those who have entered the UK from the affected countries within the last few months on visitor visas, for example, might upon those visas coming to an end, feel unable to return for fear of risk to their lives. Even those who might have arrived in the UK several years ago and have possibly, for various reasons, remained here beyond their leave to remain might not be open to a voluntary or enforced removal. Whether here legally or illegally, it seems that those potentially returnable to these countries might face a real risk to their lives or health.

If the United Kingdom were to follow the USA’s lead they would not be required at all to grant settlement but reviewable limited leave for the duration of the epidemic. Where there is no opportunity or policies in place in the UK enabling submission of applications for temporary leave from people in the UK returnable to these countries, then it will hardly be surprising that those feeling extremely reluctant to return might seek to go to ground or endeavor to continue remaining here undetected rather than be forcibly removed.

If minded to change their position, the UK government would be requested to grant temporary leave to those already here. In such circumstances then, such applications are incomparable to Article 3 medical conditions claims where the UK government is also very reluctant to grant leave to remain for applicants who claim that if returned to their home countries due to their physical or mental health condition, they would be subject to inhumane and degrading treatment contrary to Article 3 of the ECHR.

Human rights claims based on medical grounds have to meet the very high threshold in the case of “N”. The applicant must be gravely ill, at a critical stage of a terminal illness and close to death and removing them from the UK would deprive them of the treatment they are currently receiving and sending them home to an early death in circumstances which would constitute a breach of Article 3 of the ECHR. The case of “N” was considered by the House of Lords and the European Court of Human Rights, the ECHR. The ECHR upheld the position taken by the House of Lords that removing “N” who was HIV positive would not breach Article 3 and confirmed that cases where the applicant cannot resist removal and be granted leave to remain on Article 3 grounds are exceptional. The consequences to an applicant’s health of removing them from the UK could engage Article 8 of the ECHR in respect of private life including moral and physical integrity. Such cases are however considered to be rare and unlikely to add anything decisive to claims under Article 3 on the same facts. Successful human rights (medical) condition applicants are granted Discretionary Leave to remain up to a maximum of 30 months(2.5years). Applicants are eligible to apply for settlement after holding 6 continuous years discretionary leave if they were first granted Discretionary Leave before 9 July 2012. If granted Discretionary Leave to remain on or after 9 July 2012, then applicants can apply for settlement after 10 continuous years.

The Home Office may be reluctant to grant temporary leave on the basis of a defensive “floodgates” stance, however rather than remain in a state of ignorance of true immigration numbers in the UK for people from the affected countries, where an avenue to submit applications for temporary leave is available, then the Government will be in a position to know who has applied for such leave whether or not leave is granted. This would also enable the Government to know the numbers of those who may have gone to ground over the years but sought to regularize their stay on reliance upon a new policy specific to their countries.

For those seeking to make themselves known having been of irregular immigration status, rather than continue remaining in a state of immigration uncertainty potentially subject to removal, a protection policy would provide them with an opportunity to regularize their immigration status.

A shift in current policy with a view to seeking to grant temporary protection would necessitate relevant Guidance being published subject to certain criteria. Where the Government considers that a change in policy might invite more entrants from these countries, the criteria can in any case contain restrictions as regards applying only to those who have entered the United Kingdom during a certain period. The problem however is the action to be taken in relation to those who enter the UK after the cut-off date and thereafter seek genuinely to be granted protection against return. It is not recommended that the UK government shut its border to citizens from the affected countries, however screening at entry clearance posts or at the UK borders might assist in seeking to ascertain those potentially affected by the disease, but would not stop entry to the UK of those not affected by the disease who have satisfied the relevant entry visa requirements.

Where a person does not qualify for leave under the Rules or the Humanitarian Protection or Discretionary Leave Policies, leave to remain may be considered by reference to the Secretary of State’s Immigration Directorates Instructions, Chapter 1 Section 14, Leave outside the Rules. Leave to remain may be applied for to be granted outside the Immigration Rules for reasons that are particular compelling in circumstance. The Instructions state that grants of such leave are rare and are only for genuinely compassionate and circumstantial reasons or where it is deemed absolutely necessary to allow someone to remain in the UK when there is no available option. It is indisputable that the Ebola epidemic fits into these circumstances. It may be argued that the humanitarian conditions in these countries are so extreme such that the conditions meet the Article 3 threshold and return may result in degrading and inhumane treatment and most likely a loss of life.

The UK government may chose not to follow the USA lead in the meantime on the basis that the epidemic may be contained and passed over in a reasonably short time, however it may be worthwhile for the UK Government to seriously consider and appreciate the real suffering that returnees may face on return at this current time especially in cases where children might also be involved.

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