Spouse of a US citizen: eligible to asylum in UK?

[orionnebula]

Hi All,

We need an urgent advice on the following case:

Kim has the nationality of Country X only, which is his only country of residence.

Sara has the nationalities of both Country X (from her parents) and USA (born there). She was born in USA and lived there the first 7 years of life before moving to Country X.

Kim and Sara was married in their home country (Country x), before travelling to study in the UK few year ago on Tier 4 visa (Sara dependent on Kim). They didn't leave the UK since then. After finishing studies, their visa will expire soon.

They had their first baby in 2012 who was born in the UK. The baby has no passport (Country X) yet, and is definitely not eligible to a US passport because his mother Sara didn't live in the US after the age 14.

Now, for some reason, Kim and Sara can't go back to live in Country X because of credible fear of persecution. Normally this fear is enough as a reason for granting asylum in the UK. If Sara were not a US citizen, which is a "safe third country", they will be granted asylum because they has nowhere to live.

However, since Sara is a US citizen, then they think that they will not be eligible for asylum in the UK: on the ground that Kim can apply for a immigrant spouse visa in the USA, i.e. he is "admissible" there.

Kim and Sara has no actual connection to the USA (no domicile, no family members, no relatives, etc).

Another fact is that the baby has no Country X passport yet, but he normally automatically acquires the Country X nationality normally (from his parents).

Can anyone kindly confirm (with explanation) whether this family is eligible for asylum in the UK at this stage? Is there anything that can be done in order to provide the Home Office with a strong reason order to grant asylum to them?

Thanks in advance

[Wanderer]

Where is country X and what are the grounds for fear of persecution?

[orionnebula]

Country X is a non-democratic country in Asia. Kim has anti-regime opinions which are known to cause persecution to him in that country.

Please assume that the fear of persecution is established and is acknowledged by the Home Office. They will definitely not sending Kim back to Country X.

However, the actual problem is whether he is eligible for asylum in UK or not.

Will the Home Office say: "We will refuse the asylum because Kim theoretically can have a US spouse immigrant visa and therefore can live together with Sara in the US which is a third safe counrty"?

Thanks.

[PaperPusher]

The problem is they have waited a long time to make a claim for asylum, which doesn't look good.

If you are talking about North Korea, then no, the Home Office does not return people there, but North Koreans are also often entitled to South Korean citizenship and get removed to South Korea.

I cannot think of any other country in Asia where people are not removed to.

If these opinions are known to cause persecution it does beg the question of how the person was able to leave country X in the first place.

What is wrong with the non US spouse moving to the US anyway, because that is an option? If there is a safe country that the family can live, is claiming asylum in the UK such a good idea?

Claiming asylum could mean years of uncertainty, living on little money, and with no guarantee of a successful outcome.

What country is country X?

[orionnebula]

Thank you. It is not South Korea.

Q: Why UK asylum over US spouse immigrant visa?
A: Because, although the US visa is possible, it is not guaranteed. Also, UK was the first safe country to which they travelled from the home country.

Q: .. how the person was able to leave country X in the first place?
Assume that these opinions developed or announced publicly after leaving the country.

Is there any documented policies/rules the Home Office can use to decide on this case?

Thanks in advance.

[PaperPusher]

I'm not assuming anything.

What you are talking about is "sur place" activities.

The person could only be removed to a country that they are a legal resident of or are a citizen of.

Laos, Cambodia, Vietnam? I'm just thinking of countries that have few people claiming asylum, otherwise I don't understand the reticence.

There is lots of information on the UKBA website. There are also cases called "country guidance" available here:

https://tribunalsdecisions.service.gov. ... /decisions

[Wanderer]

All sounds a bit limp to me...

[orionnebula]

Thank for your replies. Well, the country is Syria. Does that make things clearer?

[PaperPusher]

People from Syria are getting asylum, but they can expect that if the regime changes they may be expected to leave the UK.

Better pick sides carefully, anti regime one year could be pro regime the next. Ask Libyans, Egyptians and so on.

There are also specific schemes for Syrians.

[PaperPusher]

I am also not sure F acebook posts count. Call me an old cynic if you like.

They should get legal advice. The US seems a reasonable choice and wouldn't be effected by regime change either.

I am also aware that what is happening in Syria is absolutely horrifying and the UK rightly isn't removing people there as far as I am aware.

[vinny]

Thank for your replies. Well, the country is Syria. Does that make things clearer?

That's helpful.

[askmeplz82]

may be Sweden ?

http://www.migrationsverket.se/English/ ... rmits.html

[Just Wondering]

Thank you. It is not South Korea.

Q: Why UK asylum over US spouse immigrant visa?
A: Because, although the US visa is possible, it is not guaranteed. Also, UK was the first safe country to which they travelled from the home country.

Q: .. how the person was able to leave country X in the first place?
Assume that these opinions developed or announced publicly after leaving the country.

Is there any documented policies/rules the Home Office can use to decide on this case?

Thanks in advance.

See Immigration Rule 345 and Third Country Cases: Referring and Handling

Kim and Sara need to seek legal advice on how best to put together an application for asylum. They may be able to offer advice on how best to structure the application (e.g. Kim as main applicant with Sara and child as dependents). They will be best placed to offer advice on the two main issues: lapse of time in seeking asylum and opportunity to be sent to the US.

As someone else said, they also didn't claim asylum at the first possible opportunity. The war in Syria has been raging on for years - and they've lived here for years without making a claim.

I am not au fait with US immigration rules, but if it's like the UK, obtaining visas for her family won't be too difficult. Whilst visa approval is not guaranteed, it's unlikely to fail unless there are obvious grounds of refusal (e.g. serious criminal convictions). Even then, there is discretion to waive the grounds of refusal.



The point about seeking asylum isn't about forum shopping - it's about providing safe havens for those that are genuinely being persecuted.