Analysis: Yashika Bageerathi and the law

Protest against Yashika Bageerathi's deportation Demonstrators in London's Parliament Square highlighted the case

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Why was Yashika Bageerathi sent back to Mauritius? The Home Office says the case didn't pass the asylum test.

The law is quite clear that an asylum application must be based on the internationally-agreed criteria of the 1951 Refugee Convention.

That means an applicant needs to show that they need protection from persecution on one of the following grounds:

  • Political opinion
  • Race, religion or nationality
  • Membership of a particular social group that puts them at risk because of the particular situation in the country they are fleeing

This is where the problems started for Yashika Bageerathi. Her - and her family's - application to stay in the UK related to the fact that they were fleeing an abusive relative. On face value, that doesn't appear to be covered by that core of refugee law. It was not designed to end all of human misery, wherever it may be found.

But that's not the whole story - the law is much more nuanced.

It has developed down the years as judges have dealt with specific and complex cases which have forced them to look long and hard at what we mean by asylum and humanitarian protection.

'Social group' test

So while each case has to fit into what appear to be basic constraints of asylum law - it all depends on how you interpret those constraints and the UK's international obligations to care for genuine refugees.

Let's go back to those core tests. One of them is membership of a particular "social group".

The courts have said quite clearly that in certain specific scenarios women can constitute a social group that needs protection under refugee law.

In 1999, the Law Lords issued a landmark judgement in favour of two women from Pakistan, called Shah and Islam.

The women had escaped from terribly violent husbands and argued that if they returned to their home country, they would be accused and convicted in a local sharia court of adultery. They could face either public lashing or stoning. Critically, that court's judgement would give more weight to the claims of their husbands simply because they were men.

The asylum claims were rejected - but the Law Lords said that was wrong.

They ruled that the Pakistani women were part of a social group that was persecuted because they had no means to defend themselves.

In other words, in that specific context, domestic violence and abuse against women warranted refugee protection because the state exposed the women to persecution.

There have been many developments down the years to further expand on this concept - but none of them have ever said that anybody can just come to the UK and get protection because they have a horrible relative.

There has to be some kind of connection between the abuse and how their home country functions - or rather how it doesn't.

Greyer legal area

Now, some cases are in an even greyer area between the letter of the law and the grim realities of a personal situation. This is where a wider and more subjective test comes into play.

The UK is a signatory to the European Convention on Human Rights, the legal agreement between nations which have declared that they will ensure certain minimum standards of treatment towards people living within their borders.

Those minimum standards also include broadly agreeing not to despatch people to horrible fates overseas.

If a woman fleeing domestic abuse cannot find a way to fit into the refugee criteria, this has sometimes proved to be an avenue open to them.

And in practice, lawyers who work in this field have found courts to be sympathetic if the applicant can convince a judge that they face a really awful fate.

Ministerial discretion

In Yashika Bageerathi's case, judges were not convinced.

There was one final issue in this case: why was the Home Office removing her from the country ahead of her exams?

The Home Office's guidance states that children who are in school and coming to exams should not face removal at that point - even if they may be sent to their home country in the future. Yashika Bageerathi is not a child - she is 19 years old - so the guidance doesn't apply.

And that's why the teenager's supporters put pressure on ministers. They had the discretion to intervene and stop an immigration removal. It was ultimately their decision.

Dominic Casciani Article written by Dominic Casciani Dominic Casciani Home affairs correspondent

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  • rate this

    Comment number 499.

    @483. sarah standen
    " We should support people like her"

    If you want to support people who have no legal right to be in the country (I don't, so it's not "we"), write to the Home Secretary and ask where you send your cheque to fund it.

  • rate this

    Comment number 498.

    This case bewilders me by so many opposing this young woman's rejection of asylum.

    This is a perfect example of someone who is taking advantage of the system at our expense.

    Some people in this country have had bad abusive relationships with nutcases but they don't claim asylum in the US as a result.

    We must remember that we can only save the most in need, and not even a fraction of those!

  • rate this

    Comment number 497.

    No wonder people see the UK as the promised land. Enter the country and then completely ignore the rules and lodge your appeal, at the tax payers' expense. It worked for Abu Hanza for 10 years. I'm glad she's been sent packing. Now let us maintain that tough stance and retain control of our country once more.

  • rate this

    Comment number 496.

    There was really no good reason not to allow her to stay and complete her A levels. On purely humanitarian grounds this was the correct thing to do with ministerial discretion.
    It was an opportunity for government ministers not to be bureaucratic but to do a small amount of good in the life of a young person from another country- bread on the water.
    Sometimes I feel ashamed to be British.

  • rate this

    Comment number 495.

    If people are so keen to keep people here who are not genuine asylum seekers but merely fancy living in the UK how about providing them a room lin your homes, financing them until they are working and paying a refundable bond which you lose if they prove to be a liability? Prepared to finance your lofty beliefs or prefer if we all do it for you?

  • rate this

    Comment number 494.

    Information relating to this girl's claim for refugee status is missing from the article. When did she arrive? Arrived alone? Arrived as a visitor or a student, then claimed asylum as a delaying tactic against removal? Did she claim at the earliest opportunity? We are left to believe she was persecuted in Mauritius (6324 miles away) and the simple question is should she stay or go? Give us more...

  • rate this

    Comment number 493.

    In the absence of any journalism from the BBC/UK media, Google Le Mauricien to find out about the father and grandfather who have been in waiting and in touch, the neighbour/relative who has no idea/recognition of the rape threats. Read this by a Mauritian female journo - strong views on trivializing rape, asylum and Mauritian education

  • rate this

    Comment number 492.

    "How many tens of thousands of pounds of public money have been wasted "

    a lot this time, but a substantial long-term saving with the message that has been sent out. any political party, even the Greens, speaking against the decision?

    Oh and Mauritius does English A-levels (my Best Man is Mauritian and did them there) so she can take them there too.

  • rate this

    Comment number 491.

    "I'd like to apply for asylum in the UK"

    "On what grounds?"

    "Errmmm...hang on whilst I search the web and find out from the forums what reason to give you...can you hang on whilst I wait for a reply?"

    "We are UKBA and as we are scared of everybody...yes, we'll wait"

  • rate this

    Comment number 490.

    From the picture you can see 'rent a liberal mob' are out in force.

  • rate this

    Comment number 489.

    There is a lot of bright students trying very hard to get a higher education and there families are working very hard to put the money together ,should we advice them to come over as I am sure they also can find a reason to claim asylum.

  • rate this

    Comment number 488.

    There are many arguments for and against when we should or should not allow illegal immigrants to stay in the UK. If the media are to be believed, it appears to be easier to stay if you have a criminal conviction than if you have not. We have allowed convicted rapists and murders to stay due to Human Right legislation. In those cases they appeared to fulfill the stated criteria, but not Yashika.

  • rate this

    Comment number 487.

    I am going to claim asylum in Norway, I am going to claim I cannot return home because my wife will shout at me for not mowing the lawn...anyway I am off 2 bed,, some of us have work in the morning,,

  • rate this

    Comment number 486.

    About time! We've been a soft touch for far too many bogus hard luck stories. Unfortunately, I'm sure the left wing human rights lawyers will still manage to profit. Why can't those who feel disgusted by this decision use some of their energy to support our own people. Get over it. Bye bye.

  • rate this

    Comment number 485.

    She was young, bright and had a future ahead of her. That is exactly why she had to be deported. It is because of this that we send her back, had she been a criminal or a religious fundamentalist she could have argued on a religious and humanitarian grounds. We have laws to protect thieves and criminals and provide these people with our benefits but nothing to help to ones who are hard working.

  • rate this

    Comment number 484.

    483. sarah standen

    I don't doubt for one minute she is a very bright girl and posed no threat to our national security.
    Don't throw the "Human Rights" card at us. She was here illegally and her claim for asylum unfounded and a tad too late.
    I have a "right" not to have illegal immigrants in my country using resources that should go first and foremost to British citizens.....

  • rate this

    Comment number 483.

    Very very wrong ..... she deserved the chance to finish her education she is a very bright and lovely girl ... Not exactly a threat to our national security . We should support people like her and NOT support the human rights of terrorists by not exporting them .... Come on GB stand up for normal human rights

  • rate this

    Comment number 482.

    @481. Brummie123
    "Theresa May must be very proud today! Deporting a young A level student to face god knows what ."

    To face - probably nothing as the asylum claim was made after she had been in the country for two years and was tenuous and unsubstantiated.

    If you are in favour of uncontrolled illegal immigration, are you prepared to pay for it? You must ne very proud of yourself.

  • rate this

    Comment number 481.

    Theresa May must be very proud today! Deporting a young A level student to face god knows what .If only we could deport our dreadfull home Secretary instead.

  • rate this

    Comment number 480.

    Im pleased for you,If it's about point scoring, Both my wife and I have worked since school, my eldest is a vet nurse, my 2nd at uni, and the youngest still at school. I live in Sandwell, most of my friends, neighbours and colleagues are black and asian, my brother converted to islam in 2011. but because I disagree with allowing bogus asylum claims, i am a bigot?


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