When it comes to asylum seekers because the decision is often at the discretion of the home minister, I’m going to try and use some equitable maxims, though it’s never done in reality, to help us try and achieve or arrive at more just and fair decisions, without taking into account the prevailing political factors or conditions. No nation on earth is forced to grant asylum but having made the decision to do so, it is best to at the very least to make those decisions look acceptable.
Let’s start off with the maxim equity varies with the length of the Lord Chancellor’s foot. The principles of equity were created to remedy the defects of the common law especially in instances where common law decisions seem or appear to be too harsh. Hence equity does not adhere to the principle that like cases should be treated in like manner but rather looks at the facts of each case and this becomes especially important when we are dealing with asylum seekers because no two seekers are alike.
For starters asylum seekers come from a range of different countries and the prevailing conditions in each of the countries are different and despite the fact that they may be requesting for asylum on the same grounds, say for example, to escape racial or religious persecution, the operative factors are different. Therefore, the common-law principle that like cases should be treated in like manner should be set aside and the decision should be based solely on the facts of the case.
The second maxim that I am going to advocate is the maxim that he who comes to equity must come with clean hands. Often with asylum seekers, and not all of them are genuine, they lack documentation and we cannot ignore the fact that some seekers may not have been granted the necessary or relevant documentation because the level of intolerance is so high that they might not be able to obtain the relevant documents.
However, there are also cases and instances where asylum seekers dispose of their travel documents prior to claiming asylum and that may be because they have either travelled on false documents or they are not willing to share their details. In worst case scenarios or instances their story may have been fabricated.
This in turn lengthens the process because the authorities will have a difficult time trying to track their details down during which time they remain incarcerated and some may even do it in the hope that after spending a certain number of years in a detention center they’d be granted asylum.
For those who genuinely seek asylum, even if they have travelled on false documents, it is in their best interest to tell the authorities why they’ve travelled on false documents and if possible where and how they obtained it. It is highly unlikely that the authorities are going to go after those who supplied the documents and in some cases, the forgers may even have been a genuine help. As long as the authorities can piece the story together than there is a good chance that the seeker may be granted asylum.
Asylum seekers have a duty to help themselves where possible, and to start with they have to try and get out of the detention center as soon as possible and begin getting acclimatized or attuned to their new country and to try and develop the skills that they need to survive in their new environment, including language and other social skills. Whatever has been left behind has been left behind and the sad fact of the matter is, five or ten years down the track, it may no longer be there.
Often in cases of racial and religious persecution there is a tendency to wipe out all traces of a people’s existence and it has happened many, many times before in history so there is no point worrying about it or lamenting what’s lost. Change, adopt, survive and continue to do so until such time, that is if he or she wants to, the seeker reaches the stage where he or she can increase public awareness of the legacy he or she has left behind but in a manner that meets the legal requirements of the country that has opted to adopt the seeker.
The third maxim that I am going to use is that equity is a shield and not a sword and this is related to the second maxim in that once the seeker has been granted asylum it is best not to use it as a platform to achieve other objectives abroad. All it serves to do is to create more tensions and in the present climate authorities are not above revoking protective statuses that have been granted. It is just easier to enjoy the new lease on life one has been given.
Copyright © 2017 by Dyarne Ward