LEVEL 6 – UNIT 8 – IMMIGRATION LAW
SUGGESTED ANSWERS – JANUARY 2015
Note to Candidates and Tutors:
The purpose of the suggested answers is to provide students and tutors with
guidance as to the key points students should have included in their answers to
the January 2015 examinations. The suggested answers set out a response that
a good (merit/distinction) candidate would have provided. The suggested
answers do not for all questions set out all the points which students may have
included in their responses to the questions. Students will have received credit,
where applicable, for other points not addressed by the suggested answers.
Students and tutors should review the suggested answers in conjunction with the
question papers and the Chief Examiners’ reports which provide feedback on
student performance in the examination.
SECTION A
Question 1
Introduction
Tier 1 of the PBS covers entry by highly skilled migrants. Whereas the other Tiers
require sponsorship, Tier 1 enables the applicant to enter the UK without a
sponsor through demonstrating sufficient funds to invest or to start up a
business or alternatively through being exceptionally talented.
Exceptional Talent
Exceptional Talent has a limited amount of places available, at present there are
only 1,000 places per year. The category is intended to attract exceptionally
talented people in the field of arts and sciences who have great potential within
their field or who have already attained international recognition within their
field. Designated prestigious bodies endorse the applicants. The relevant bodies
are the Arts Council, the Royal Academy of Engineering, the British Academy and
the Royal Society.
The points required for Exceptional Talent are attributes only and the 75 points
are obtained through sponsorship from the relevant body. If successful, leave will
be granted for 3 years and 4 months. If the applicant is economically active in
their field at the end of that period he/she may attain a further 2 years limited
leave to remain and indefinite leave to remain can be granted at the end of 5
years.
Entrepreneur
The Entrepreneur category is a route for those who wish to either set up, take
over or join a business in the UK. The requirements are set out at para 245D HC
395. 75 points must be acquired for attributes, 10 points for language and 10
Page 1 of 17
points for maintenance. The attributes for leave to enter are achieved by having
access to £200,000 (25 points), which is held in a regulated financial institution
(25 points) and which is disposable in the UK (25 points).
If the application is for leave to remain as an entrepreneur, when already here in
that category or here as a business person or innovator, the applicant must show
that £200,000 has been invested in one or more businesses in the UK (20
points). The applicant must also show that he/she has registered as selfemployed, registered as a new business or as the director of an existing business
(20 points) and is engaged in business activity at the time the application for
leave to remain is made (15 points). Additionally the applicant may have taken
over a business, or started a new one, which has resulted in an increase in
employment within the business which is equivalent to two new full time jobs for
persons settled in the UK (20 points).
The 10 points for English language are acquired by passing a prescribed test at
level B1, being a national of one of the English-speaking countries listed in
Appendix B, or holding a degree taught in English.
The points needed for maintenance can be achieved by having £3,310 or more
available maintenance funds for entry or £945 or more for leave to remain at the
end of the initial leave period. The money must have been held for a consecutive
90 day period ending no earlier than a month before the date of the application.
The requirements under this category were slightly relaxed in April 2011 to
encourage applications. If the money required is provided through government
departments, venture capitalists or seed funding competitions it can be just
£50,000. Further, two entrepreneurs together can provide the required £200,000
by forming an ‘entrepreneurial team’. Entrepreneurs are permitted 180 days per
year out the country without it breaching the terms of their leave.
The closure of the Tier 1 (General) route and the Post-Study work route has,
however, led to an upsurge in applications in the Tier 1 (Entrepreneur) category.
Consequently the rules have been amended to introduce provisions establishing
whether the entrepreneur is genuine. The application can be refused if it is not
established that the applicant genuinely wishes to either set up or take over a
company or become a director of it, or that the applicant genuinely intends to
invest the money in the business or businesses, or that the funds are genuinely
available to him or her and will remain so until they are invested. The entry
clearance officer makes this genuineness assessment on the balance of
probabilities looking at the evidence provided, the business history of the
applicant and the viability and credibility of the financial sources and the
business plans. This introduces a high level of discretion into this area of the
Points Based System which could be potentially dangerous given the restrictions
on appeal rights in this area of law.
The usual period of leave is the same as for investors and exceptional talent
applicants, namely 3 years 4 months, then a further two years limited leave if
the requirements are met and indefinite leave to remain after five years.
However, if an entrepreneur creates 10 full-time jobs within three years or £5
million in income, he/she will be able to attain indefinite leave to remain after 3
years. Leave to enter may, however, be curtailed if the migrant does not register
as self-employed or a director within 6 months or if the funds cease to be
available to him/her unless they have been spent in setting up or running a
business.
Page 2 of 17
Investor
Investors are those who wish to make a substantial investment in the UK. For a
leave to enter application, an investor needs to obtain 75 points for attributes
which are obtained by holding £1m in a regulated financial institution or assets of
a value of more than £2m and a loan for £1m. The money must be disposable in
the UK.
If an investor is already in the UK and is requesting leave to remain the
requirements are slightly different. The investor must have money of his/her own
and under his/her control in the UK of no less than £1m. Alternatively he/she
could own personal assets exceeding £2m. The money must be disposable in the
UK and not less than £1m loaned by a financial institution regulated by the
Prudential Regulation Authority (30 points).
Additionally for leave to remain he/she must have invested not less than
£750,000 in the UK (30 points) and made investments within 3 months of
obtaining entry clearance or leave to remain as an investor (15 points).
Leave to remain in this category is 3 years 4 months with the usual requirement
not to have recourse to public funds during this period. A further 2 years can
then be granted and indefinite leave to remain is permitted after five years.
However settlement can be expedited where a much greater investment has
been made. The investor can get indefinite leave to remain after 2 years if £10m
have been invested and after 3 years if £5m have been invested.
Question 2
Introduction – deportation of foreign criminals
The one ground for deportation is that it is conducive to the public good – s3 (5)
(a) IA 1971. Under s32(4) UK Borders Act 2007 (BA 2007) the Secretary of State
must deem deportation of a “foreign criminal” conducive to the public good and
such deportation is automatic, unless an exception under s33 BA 2007 applies,
such as a breach of the Refugee Convention or the ECHR. Under ss32-39 BA
2007 deportation will be automatic if a “foreign criminal,” namely someone who
is not a British citizen and who is convicted of an offence in the UK, is either
sentenced to at least 12 months’ imprisonment (s32(2)), or the offence is
specified by order of SSHD under s72(4)(a) NIAA 2002 and the person is
sentenced to a period of imprisonment following a conviction for that specified
offence (s32(3)).
A criminal court can also recommend deportation, and conducive to the public
good includes conviction of a criminal offence. However, after Kluxen (2010) the
Court of Appeal advised judges not to make recommendations any more as the
automatic deportation provisions of the BA 2007 have largely superseded this
power.
Grounds opposing deportation
Article 8 ECHR
Article 8 arguments opposing deportation are often put forward in deportation
cases. Article 8 gives the qualified right to private and family life but the right
has to be balanced against the legitimate aims of national security, the
prevention of disorder or crime, the economic well-being of the country and the
rights of others (as set out in Razgar (2004)). Maintaining immigration control is
Page 3 of 17
accepted to fall within these legitimate aims (as reinforced in Shahzad (2014)) so
deportation has to be a proportionate response in the circumstances to not
breach the deportee’s Article 8 rights.
In 2012 the Secretary of State introduced rules attempting to balance private
and family life with immigration control in these circumstances. These rules
created considerable controversy as it can be argued that determining
proportionality is a judicial task – see, for example, Nagre (2013).
Earlier cases on the rules proposed a two stage assessment in deportation cases,
the first under the immigration rules and the second a separate article 8
assessment. However, after MF (Nigeria) (2013) in the Court of Appeal the rules
can be seen as a ‘complete code’ to determine these matters. This finding was
possible as the Court of Appeal accepted the Secretary of State’s representative‘s
concession that the ‘second stage’, i.e. decision making on proportionality under
article 8, was permitted within the consideration of ‘exceptional circumstances’ in
rule 398. Thus the two stage test is still carried out in deportation cases, but
entirely within the Immigration Rules. This approach was confirmed in Shahzad
(2014) and the Upper Tribunal made it clear that where the ‘exceptional
circumstances’ provision does not exist in a rule, a two stage test will still be
required, partly within and partly outside the Immigration Rules. The rules on
deportation will now be examined.
Immigration rules 396-399A
Imm Rule 396 and 397:
Where a person is liable to deportation the presumption shall be that the public
interest requires deportation. Rule 396 also states that it is in the public interest
to deport where the Secretary of State makes a deportation order in accordance
with s32 UK Borders Act 2007.
Rule 397 states that a deportation order will not be made if the person’s removal
would breach the Refugee Convention or the Human Rights Convention.
However, where there is no such breach, the public interest in deportation will
only be outweighed in exceptional circumstances.
Rule 398
Where someone claims that their deportation would be contrary to the UK’s
obligations under Article 8 ECHR, rule 398 HC 395 divides these deportations into
3 types:
a.
b.
c.
Deportation after conviction of an offence and being sentenced to at
least 4 years imprisonment (398(a));
Deportation after conviction of an offence receiving a sentence of less
than 4 years but at least 12 months (398(b)); and
Deportation due to offending causing serious harm or persistent
offending showing particular disregard for the law (398(c).
Where a crime is serious enough to receive 4 years imprisonment, deportation
will be conducive to the public good under the rules unless there are ‘exceptional
circumstances.’ These ‘exceptional circumstances, as held by the Court of Appeal
in MF (Nigeria) (2013), include those factors relevant to the usual proportionality
assessment under Article 8.
Page 4 of 17
Imm rule 399:
This rule provides a framework for decision making, and a guide to the Secretary
of State’s view on the public interest, where there is a genuine and subsisting
parental relationship with a child (part a) or a spouse (part b). If the person has
a genuine and subsisting parental relationship with a child who is a British citizen
or has lived 7 years continuously in the UK, and it would not be reasonable to
expect the child to leave the UK, rule 399 is engaged. However, unlike in
removal cases, in deportation cases there must be ‘no other family member who
is able to care for the child in the UK’ (Rule 399(a) HC 395). This is often very
difficult to overcome as, where the other parent of the child will remain in the
UK, there will be another family member able to do this.
This is possibly too stringent a test to determine whether family life permits
deportation and does not accord sufficient significance to the best interests of the
children in having both parents to care for them. It is also not in line with the
increased emphasis on the best interests of the child in Article 8 cases such as
Chikwamba (2008) and ZH Tanzania (2011). These factors could, however, be
considered as ‘exceptional circumstances’ permitting an exception to the
requirements of rule 399.
Where no children are involved rule 399(b) provides an exemption from
deportation where there is a genuine and subsisting relationship with a partner
who is in the UK and is either a British Citizen or settled, or has refugee leave or
humanitarian protection. Further the deportee must have lived in the UK with
valid leave for 15 years and there must be ‘insurmountable obstacles to family
life with that partner continuing outside the UK’. This insurmountable obstacles
test has also caused controversy as more recent ECHR decisions have usually
favoured a reasonableness requirement (Huang (2007), ZH Tanzania (2011)). In
MF (Nigeria) (2013) the Court of Appeal found the insurmountable obstacles test
to be inconsistent with article 8 case law, although this was not central to the
reasoning in the case.
Rule 399A finally deals with the situation when someone has been in the UK long
enough to establish strong private life ties here, and is to be deported. In this
situation satisfying the rules requires 20 years continuous UK residence and ‘no
ties (including social, cultural or family) with the country’ of origin. If a person is
under 25 the ties requirement is the same but the residence requirement is
relaxed to half of the person’s life. Again this is a very restrictive test and
arguably does not accord with Article 8 jurisprudence on private life.
Conclusion – The importance of the public interest
Despite the importance of family life and the need to respect the best interests of
the child in article 8 cases, the Court of Appeal in SS Nigeria (2013) emphasised
the importance of the public interest in cases involving the deportation of foreign
criminals. The Court of Appeal upheld that the best interests of any children
involved are a primary consideration (reinforcing ZH Tanzania (2011)) but that
family life will have to be very strong to outweigh the public interest in deporting
a foreign criminal. In the case of a 'foreign criminal' the Act places in the
proportionality scales a markedly greater weight than in other cases. Public
interest and the nature and seriousness of the offence must be balanced against
family life. Even though proportionality considerations are permitted under the
‘exceptional circumstances’ criterion in the rules, the public interest in
deportation will always be central to decision making in cases involving foreign
criminals.
Page 5 of 17
Question 3(a)
Before the British Nationality Act 1981
Before the British Nationality Act 1948 (BNA 1948) the status of British subject
was determined through birth in the UK or a colony. The term ‘Citizen of the UK
and Colonies‘ (CUKC) was introduced by the BNA 1948 and gave citizenship to
persons born or naturalised in the UK or colonies or to those whose father was
born in the UK or colonies. BNA 1948 also permitted the acquisition of citizenship
through registration. Further, a child born outside the UK or colonies to a CUKC
father acquired citizenship by descent.
The Immigration Act 1971 curtailed the right of abode in the UK for CUKCs by
introducing the term ‘patrial’. Only patrial CUKCs acquired the right of abode by
s2 Immigration Act 1971 (IA 1971), although some Commonwealth citizens who
were not CUKCs retained the right of abode. A right of abode was now held by:





birth, adoption, registration or naturalisation in the UK;
having a CUKC parent or grandparent who was born, adopted, naturalised
or registered in the UK at the time of his/her birth;
ordinary residence in the UK for 5 years when the IA 1971 commenced;
a Commonwealth citizen born to or adopted by a parent who was a CUKC
by birth in the UK; or
a woman Commonwealth citizen married to a CUKC or a person who would
have been a CUKC but for his death.
At the time ‘parent’ only referred to the father of a legitimate child or the mother
of an illegitimate child with reference to the acquisition of citizenship.
The passage of the British Nationality Act 1981 (BNA)
The term ‘British citizen’ was introduced by the BNA 1981 and was given and
restricted to those CUKC’s who had a right of abode as a ‘patrial’ under s2 IA
1971 immediately before BNA 1981 came into force. Unlike under s2 IA 1971, a
Commonwealth citizen woman who married a CUKC no longer acquired a right of
abode. But Commonwealth citizens with CUKC parents born in the UK and female
Commonwealth citizens who married a CUKC before 01/01/1983 retained the
right of abode without becoming British citizens.
CUKCs without the right of abode
Consequently a large section of former British subjects, who were CUKCs from
being born in a British Dependent Territory (former colony), did not become
British citizens on the passage of the BNA 1981. These British Dependent
Territories Citizens (BDTC) were renamed British Overseas Territories Citizens
(BOTCs) on the passage of the British Overseas Territories Act 2002 (BOTA
2002). A person who was a BDTC before 21 May 2002 was now given the right to
register as a British citizen entitled to the right of abode.
A further residual category of British Overseas Citizens (BOCs) was left for those
who did not become a BDTC. This included Asians who became CUKCs due to
residence in a British possession in East Africa. If a person was denied citizenship
when their country achieved independence (possibly as he/she was not born in
the country) they became BOCs on the passage of the BNA 1981, a citizenship
without the right of abode. Since 2003 such persons with no other nationality can
register as British citizens.
Page 6 of 17
Citizenship through birth and parentage
Before the British Nationality Act 1981 (BNA) a person born in Britain would
automatically become a citizen of the United Kingdom and Colonies. However a
person born outside the UK would only automatically become British if the father
was British. S1 BNA abolished this jus soli principle and replaced it with jus
sanguinis.
Section 1 BNA now establishes citizenship through parentage. Section 1(1) BNA
entitles a person to British citizenship if, at the time he/she is born in the UK,
one of his/her parents is settled in the UK.
A person who was born in the UK after 01/01/83 and, at the time of his/her
birth, either of whose parents was settled in the UK, would be a British citizen,
provided that, if only his father was British, his father and mother were married.
An illegitimate child, whose mother was neither British nor settled, did not qualify
for citizenship under the BNA 1981, as originally enacted. Section 9 NIAA 2002
rectified this injustice in the law and amends BNA 1981 to include the father of
an illegitimate child, provided proof of paternity is produced.
British Citizenship by descent or otherwise
Before the British Nationality Act 1981 (BNA 1981) came into force on
01/01/1983, a person who was born outside the UK would only be British if
his/her father was born in the UK or his/her father was registered or naturalised
as British in the UK before the child’s birth and his parents were married or
subsequently married. This was the main way to acquire British nationality by
descent.
Under s1 BNA 1981 a child born outside of the UK who has a British father or
mother will acquire British citizenship by descent. However if a person was born
outside the UK to a British mother before 01/01/83, when citizenship only passed
automatically only through the father, he/she can now register as a British
citizen.
Under s2(1) BNA 1981 in order to pass on British nationality and allow a child to
become a British citizen by descent, either the mother or the father must be a
British citizen otherwise than by descent. This restricts the passing on of British
citizenship to one generation only. This is remedied to a certain extent by
provisions governing registration under s3 BNA 1981.
Question 3(b)
Registration is the process by which children and a certain minority of adults can
acquire citizenship. It is granted if someone meets the legislative criteria and in
many of these cases people now have an entitlement to registration, while some
remain at the discretion of the Secretary of State. There is now a good character
requirement under s47 Borders Citizenship and Immigration Act 2009 (BCIA
2009) if a child is aged at least 10.
Children
Children can register where their parents are not settled at the time of their birth
but then become settled. Under s1(3) BNA 1981 a child can apply to register as a
British citizen if he/she was born in the UK after 1982 and, after his/her birth,
one of his/her parents becomes settled in the UK.
Page 7 of 17
Under s1(4) BNA 1981 a child can register as a British citizen if he/she remains
in the UK for the first 10 years of his/her life and is not absent for more than 90
days each year during that period.
Unmarried fathers used not to be able to pass on British citizenship but they now
can after NIAA 2002 Act. If a person was born before July 2006 to an unmarried
British father he/she can apply to register as a British citizen on a discretionary
basis. On the other hand, a person is entitled to register as a British citizen if
he/she was born outside UK before 1/1/83 to a British mother.
BNA s3(3) permits a child born overseas to register as a British citizen by
descent at a British consulate if:



one of the parents is a British citizen by descent;
the British citizen by descent parent has a parent who is or was a British
citizen otherwise than by descent; and
the child’s parent had at some time before the child’s birth lived in the UK
for a continuous period of three years, not being absent for more than 270
days in that period.
Section 3(5) BNA 1981 allows a child born overseas to a British citizen by
descent parent to be registered in the UK as a British citizen if he/she has lived
with his/her parents in the UK for three years before the application.
Question 4
Introduction
The rights of a family member of a UK citizen who is exercising free movement
are significantly greater than the rights of a family member of a UK citizen who
simply resides in the UK. The former will have free movement rights while the
latter will be subject to the increasingly restrictive immigration rules relating to
family members. This could be seen as unjust as the right to family life of British
citizens in the UK should not be dependent upon whether they form a
relationship with a non EU citizen when exercising their right to free movement
or whether they form a relationship whilst in the UK. Indeed it also leads to the
situation where an EU national coming to the UK has greater rights than some
UK citizens. Despite these anomalies the ECJ has found the provisions not to be
discriminatory as the situations are very different.
This trend has led to the development of case law where a British citizen is also a
national of another Member State and uses that nationality to gain residence in
the UK for a third country national spouse, rather than applying as a British
sponsor under the immigration rules.
The Surinder Singh Principle
If a UK citizen with a non-EU partner were to exercise treaty rights in an EU
state, and then enter the UK in order to exercise a treaty right such as
employment, then the UK citizen’s partner or spouse’s residence rights will be
governed by EU law rather than domestic law on the authority of IAT and
Surinder Singh ex parte SSHD (1992). This case considered the proposed
deportation from the UK of an Indian man married to a British woman. The
couple had previously lived and worked in Germany and then returned to the UK.
Shortly after they returned here the marriage broke down. They therefore did
not satisfy the requirement of the UK immigration rules relating to spouses as
they did not intend to live together permanently. However EU law has no such
Page 8 of 17
requirement and the ECJ ruled that EU law applied. This has therefore left a way
for couples to circumvent the increasingly tough immigration rules relating to
spouses by living in an EU country for a period of time before returning to the
UK.
The principle in this case is incorporated into I (EAA) R 2006 which stipulates
that, if the UK national has been in another EEA state as a worker or selfemployed person, and has been living together with his or her spouse or partner
in that state before returning to the UK, the UK national will be treated as an EEA
national. But reg 9 I(EEA)R 2006 now requires the British citizen to have
“transferred the centre of his life to the EEA State where he resided as a worker
or self-employed person”. This is intended to prevent British citizens from
spending only a short time in another Member State and then invoking the
Surinder Singh principle in order to gain a right of residence for their ‘third
country national’ partner.
Subsequent case law
Cases after Surinder Singh have upheld this principle, and clarified in which
situations such treaty obligations will arise.
In Akrich (2004) the ECJ made it clear that as long as the marriage was genuine
the fact that a couple established themselves in a Member State, specifically to
return later on without having to satisfy the immigration rules, did not prevent
them from benefitting from EU law.
The case of Carpenter (2002) involved a British national married to a Filipina
woman who had overstayed her leave to remain in the UK. He ran a business
involving the provision of services to other Member States and his wife stayed in
the UK looking after the children. He was therefore exercising rights under Art 49
EC Treaty, now Art 56. Given his circumstances, the Article 8 issues involved and
the essential childcare role provided by his wife, removal was found to be a
disproportionate interference with Article 8 ECHR. Community Law principles
protecting family life and Article 8 ECHR were considered in this case.
The case of McCarthy (2011) heard in the Court of Appeal, involved a British
citizen relying on her Irish nationality to achieve residence for a third country
national spouse. The woman lived in Northern Ireland and was both a British and
an Irish national. Her husband was from Jamaica and she hoped that her Irish
citizenship would enable her husband to stay in the UK, when he did not meet
the requirements of the immigration rules relating to partners.
The issue for the Court of Appeal, however, was the fact that Ms McCarthy had
never worked in the UK and had always been in receipt of benefits. She was
therefore not exercising treaty rights as an EU citizen in the UK and thus not a
qualified person for the purposes of Article 7 Directive 2004/38/EC and
regulation 6 I (EEA) R 2006.
When the matter reached the ECJ they found the problem to go even further in
that Ms McCarthy had lived all her life in Northern Ireland so, not only was she
not exercising free movement rights to work, she had not actually exercised any
free movement rights at all and thus EU law was not even engaged.
This principle was upheld in the case of Dereci and Others v Bundesministerium
fur Inneres (2011) when it was held by the ECJ that adult citizens of the EC have
no right to be joined by third country national family members if they have never
exercised free movement rights in another member state.
Page 9 of 17
The case of OB (Morocco) (2010) considered reg 9 I(EEA)R 2006. It concerned a
British citizen who was working and residing with her Moroccan spouse in Dublin
in the Republic of Ireland before returning to Belfast. Her partner then joined her
in Belfast and applied for a residence card as the spouse of a British national who
had exercised Treaty rights. There was a 13 month gap between the end of his
wife’s employment in Dublin and her return to Belfast. It was held that the term
"was so residing" in regulation 9 does not have to be immediately before
returning to the United Kingdom and there was a sufficient link between the
exercise of Treaty rights and the return in this case.
This case upholds a liberal interpretation of the EEA regulations. Couples are
clearly given greater latitude under the EEA regulations than under the
immigration rules for non-nationals where no treaty rights are exercised. It is
arguable that, where the family life of British citizens is concerned, a more
generous interpretation of the immigration rules should be considered in all
cases.
Conclusion
The principle in Surinder Singh and subsequent case law shows how it is
becoming increasingly easy for partners to settle in the UK as a partner of
someone exercising treaty rights rather than under the immigration rules relating
to partners. It could be argued that the Surinder Singh principle itself is a fair
way to establish family life and the real difficulties stem from the fact that family
life is being increasingly curtailed for non EU national spouses. Finding a way to
circumvent harsh immigration provisions in order to protect family life is
becoming more common, and these provisions provide a loophole in the law
which allows couples to do this.
Question 1
SECTION B
It will be argued that Monica is outside her country of nationality and has a wellfounded fear of persecution, without protection, for a Refugee Convention reason
and that internal flight is not a safe or reasonable option available to her. She
therefore fits the definition of a refugee under Article 1A UNHCR Convention and
Protocol Relating to the Status of Refugees (The Refugee Convention), Article
2(c) Refugee Qualification Directive (RQD) and para 334 HC 395.
Well Founded Fear
Subjective fear:
In Asuming v SSHD, the court stated that subjective fear is nothing more or less
than the belief about what the appellant states is likely to happen if he/she
returns to his/her country of origin. Monica fears that if she is returned to the
Democratic Republic of Congo (DRC) she will be killed or, at the very least,
detained in poor prison conditions and tortured in prison.
Objective fear
Her fears are objectively well founded (Horvath (2000)) as, in relation to the risk
of being killed, the Amnesty International Report refers to risks to journalists and
human rights defenders of attacks, intimidation, threats, warnings not to report
certain subjects and sometimes being killed for their work. Monica’s being
warned not to publish her work, and the risk of death now the damaging article
Page 10 of 17
has been published, shows that her fear is well founded in light of this
information.
The Amnesty International Report also shows Monica’s fear of being imprisoned
in inhuman prison conditions is well founded, as it reports that the prisons do not
meet international human rights standards due to the lack of adequate provision
of food and drink, inadequate access to healthcare and rape occurring therein.
It is submitted that there is a real risk (PS Sri Lanka (2008)) that Monica would
be persecuted on return as her subjective fear is supported by objective
evidence. It is submitted that the risk on return is severe in this case given the
history and the fact that she is in danger from the government.
Persecution:
The treatment that Monica has suffered amounts to persecution. She has
suffered serious harm plus failure of state protection Shah and Islam (1999).
One act of torture, such as her burning with cigarettes and her rape, would be
sufficient alone to amount to persecution on the authority of Demirkaya (1999).
Both are acts sufficiently serious by their nature to amount to persecution for the
purposes of Article 9 Refugee Qualification Directive (RQD) and Regulation 5
Refugee Qualification Regulations (RQR). The incident in which Monica was
beaten severely together with her being burned by cigarettes, raped in detention
and remaining at real risk of being killed on return, amount to a persistent
course of conduct and therefore acts sufficiently serious by their repetition as
well as nature (Article 9 RQD, Reg 5 RQR).
The central question at the appeal hearing is the risk on return, Karanakaran
(2000). On return Monica is at risk of being killed or at least imprisoned in
inhuman conditions and tortured.
Protection:
The agents of persecution are state agents, in this case the government officials.
According to the US Department of State Report the security officers commit
human rights abuses with impunity and the government is therefore complicit in
the treatment. There is therefore no effective protection available. Government
officials are at the high end of the Svazas (2002) spectrum of state responsibility
and there is no protection in these circumstances.
Convention Reason:
Monica is at risk because of her express political opinions. On the authority of
Gomez (2001) political opinion is very broad and actions seen as critical of the
government, such as writing an article about the poor prison conditions in this
case, are an expression of political opinion.
Her rape was clearly for the convention reason of her political opinions (Okonkwo
(1998)) and is a grave and abhorrent act amounting to torture (Aydin v Turkey
(1997)). It was not simply the act of a rogue official as the Amnesty
International Report states how the government are complicit in the ill treatment
of prisoners and do nothing to prevent security officers from abusing and raping
people in prison.
Arguably Monica is also a member of a particular social group, namely a woman
in a society that discriminates against women (Shah and Islam (1999)). The
innate characteristic that she cannot change is her gender and the treatment she
Page 11 of 17
received, including the rape, was perpetrated by state agents. The Department
of State report indicates that people are raped with impunity and that women are
discriminated against by society.
Credibility
The Home Office should not expect Monica to corroborate her claim to have been
raped. Asylum is not an area of law that requires corroboration (Karakas
(1998)). A positive approach should be taken to the evidence Karanakaran
(2000). Although it can be argued by the Home Office that if evidence is readily
available it should be produced (TK Burundi (2009)), Monica has produced a
medical report on the cigarette burns from her detention, which is something she
was able to do. Rape is very difficult to prove if evidence is not taken
immediately after the event so she could not be expected to have the same
evidence available in relation to the rape.
Internal Relocation
It is submitted that internal relocation is not a viable option for Monica as she is
at risk from the government and the government is the same all over the
country. Security officials have been to her aunt’s house in Kinshasa looking for
her so she is not safe to live there. She is likely to be picked up at the airport on
return in any event.
Further, and in the alternative, it is submitted that it is unduly harsh (Januzi
(2007)) or not a safe and reasonable option (rule 339O HC395) for Monica to
return to another area of the DRC. Even if she were not tracked down by security
officials, which it is likely she would be, she would be a single woman in a society
that discriminates against women. She would have difficulty accessing
employment and would not be able to support herself in areas where she has no
family, making this an unreasonable option for her (Jasim (2007)).
Article 3:
Monica also has the absolute right not to be subjected to torture or inhuman or
degrading treatment contrary to Article 3 ECHR.
The treatment she is at risk of suffering on return also amounts to torture and at
the very least inhuman or degrading treatment contrary to Article 3 ECHR.
Monica has suffered deliberate inhuman treatment causing very serious and cruel
suffering (torture on the authority of Selmouni v France (1999)) as she has been
raped, burned with cigarettes, beaten and threatened with death.
This risk remains if she is returned and she is at risk of being killed. She has
suffered and will suffer inhuman or degrading treatment as, at the very least, her
treatment has caused her intense physical and mental suffering (Ireland v UK
(1978)). She also risks detention in inhuman or degrading prison conditions
contrary to Article 3 (Peers v Greece (2001), Kalashnikov v Russia (2003)). The
Amnesty International report refers to these inhuman conditions in prison.
It is submitted that there is a real risk (Kacaj (2002)) that Monica would suffer
treatment contrary to Article 3 on return.
Conclusion
It is therefore submitted that Monica has a well-founded fear of persecution on
return on the grounds political opinion. The fear is both subjective and
Page 12 of 17
objectively well founded. The negative credibility findings against Monica are
unsustainable in light of the facts of the case and the approach to be taken to
the evidence. Internal flight is not a viable or reasonable option. She has also
suffered treatment contrary to Article 3 ECHR and there is a real risk of
persecution, torture and inhuman treatment if she is returned to the DRC.
Question 2
Introduction
The rules governing Marco’s entry clearance to the UK are found in Appendix FM
and Appendix FM-SE HC 395. There is nothing on the facts to indicate that Marco
is unsuitable for entry clearance under the suitability criteria in section S-EC.
The definition of a partner is found in Gen 1.2 HC 395. Marco would be best
advised to come as a proposed civil partner as he would not satisfy the 2 year
cohabitation requirement for unmarried couples.
Relationship Requirements
In order to meet the requirements for entry clearance there are certain
requirements governing sponsorship and the genuineness of the relationship that
need to be met. The first requirement is that Anthony needs to be a present and
settled sponsor or a British citizen in the UK. He is British citizen and living and
working in the UK so meets this requirement – ECP 2.1(a).
As Anthony is 30 and Marco is 28 they are both well over the minimum age
requirement of 18 and therefore satisfy ECP 2.2 and ECP 2.3 of the relationship
requirements. There is also nothing on the facts to indicate that they are within a
prohibited relationship contrary to ECP 2.4.
Anthony and Marco have clearly met in person as they met whilst Anthony was
travelling in Cuba and on subsequent visits. They should therefore easily satisfy
the test in Meharban (1983) to have an appreciation of one another in the sense
of appearance or personality – ECP 2.5.
The couple must also show that the relationship is genuine and subsisting to
meet requirement ECP 2.6. Factors accorded relevance by the Home Office are
found in the Immigration Directorate Instructions at Annex FM s2. Relevant in
this case are the fact that the couple have been in a relationship since August
2012 so it is an enduring relationship. They have been on long visits to see one
another. When they first met Anthony remained in Cuba for three months and
since that time Marco visited the UK for a month and Anthony visited Cuba for a
month. The fact that they have definite plans to live together at Anthony’s house
on Marco’s arrival will also help to satisfy this requirement.
ECP 2.7 relates to married couples so does not apply here. As Marco is coming as
a proposed civil partner he will instead need to show he is entering for the civil
partnership. Correspondence with the venue and other documentation relating to
the ceremony will help to show this and satisfy E-ECP 2.8.
In order to meet E-ECP 2.9 any previous relationship must have broken down but
there is nothing to indicate this will be an issue.
The final relationship requirement the couple must satisfy is an intention to live
together permanently in accordance with E-ECP 2.10. Factors such as the visits
and the plans regarding cohabitation will also help to satisfy this requirement.
Page 13 of 17
Further, correspondence such as emails and telephone calls during their time
apart can be used to prove this requirement.
Financial Requirements
In order to satisfy the maintenance requirement Anthony needs to earn a
minimum income of £18,600 per year to comply with E-ECP 3.2. He earns
£80,000 per annum so will easily satisfy this requirement. There are particular
provisions in Appendix FM-SE that need to be met to prove he satisfies the
requirement. For example he needs 6 months bank statements, 6 months wage
slips corroborating the entries in the bank statements, his P60 and a letter from
his employer confirming his position, the length and permanency of employment
and his salary. He also needs his contract of employment.
The onus is on the UK partner alone to show this income when the applicant is
abroad (E-ECP 3.2). Therefore any potential income of Marco’s will not be taken
into account at this stage. If Marco comes as a proposed civil partner he will not
be allowed to work for the first six months, or until the civil partnership
ceremony has taken place and leave has been granted as a civil partner.
In order for there to be adequate accommodation the space requirements must
be in compliance with s325 Housing Act 1985. Exclusive occupation of part of the
house is a requirement but a room in a shared house is sufficient - Saghir Ahmed
(1994).
In this case there is clearly adequate accommodation as Anthony currently lives
alone in a four bedroomed house. Title deeds or a letter from the building society
and a surveyor’s report will evidence this.
English language requirement
Marco will need to pass an English language test at level A1, and submit the
certificate with his application in order to satisfy E-ECP 4.1.
Leave granted
If Marco is granted leave as a proposed civil partner he will be granted 6 months
limited leave, within which time the partnership ceremony should take place. He
cannot work during this time but this is not an issue as Anthony can support
them both. Once they are in a civil partnership he may apply for leave to remain
under the rules for spouses and civil partners.
He would then, if successful, be granted 30 months leave to remain as a civil
partner and would be able to work but not have recourse to public funds. After
30 months he could apply for a further 30 months limited leave to remain. After
5 years he could apply for indefinite leave to remain.
Question 3(a)
Points Requirements
Angela must meet the requirements of Tier 4 of the Points Based System (PBS).
She will come as a Tier 4 (General) Student and the requirements for entry are
set out in rule 245ZV HC 395.
To meet Appendix A she requires 30 points for attributes. She requires a place
on a course of study, which she has already accepted in this case. She will then
Page 14 of 17
be issued with her Confirmation of Acceptance for Studies (CAS). This is a virtual
document in the Home Office’s IT sponsorship management system that must
contain the sponsor’s licence number. It must also include Angela’s nationality,
passport number, list the evidence provided in her application and give full
details of the course.
Angela must apply for entry clearance no more than 6 months from the issue of
the CAS. It is also essential that the course meets the minimum academic
requirements stipulated in Appendix A and that her studies are undertaken at the
University.
The University must be, and is, an approved education provider and on the list of
Tier 4 registered sponsors on the gov.uk website. The University must keep a
copy of Angela’s passport, ID card or immigration status document and up to
date contact details. The University must also be a highly trusted sponsor to
recruit overseas students, outside the EU, under Tier 4. This means the
University must have been inspected by a designated accreditation body and
have appropriate attendance monitoring and other administrative arrangements
in place to comply with its sponsorship duties.
In order to meet the 10 points for maintenance under Appendix C Angela needs
the course fees plus £820 per month for the first nine months of the course, i.e.
£7,380. This money must be in her bank account or in her parents’ account for a
28-day period ending no more than 31 days before the application – Appendix C.
There should be no more than six months in between the issuing of the CAS and
the application for entry clearance or leave to remain.
There is no points requirement for English language for a degree level course of
study at a publicly-funded institution. However the Entry Clearance Officer (ECO)
can request demonstration of proficiency on examination or at interview to B2
competence. The University can confirm this. The ECO can also inquire whether
Angela is a “genuine student”.
Employment
Regarding Angela’s wish to take up employment in the UK she will be able to
work for 20 hours a week during term time or for any period during the holidays.
She will need the money in her account at the outset, however, in order to
satisfy the maintenance requirement.
Angela should be advised that she should not miss her university classes in order
to fulfil her part-time job and should ensure that her hours of work fit around her
studies. The university, as her sponsor has a duty to inform the Home Office if
she misses 10 contacts with the institution (lectures/tutorials etc.).
Leave Granted
If her application is successful she will be granted leave to enter for 3 years 5
months as this is a 3 year degree, permitting one month of leave before the
course and four months at the end of the course.
Question 3(b)
Angela could apply for leave to remain under the Tier 2 (General) route. She
would need to apply before the expiry of her leave under Tier 4 and after she has
completed and passed her BA degree in marketing. The course she studied was
Page 15 of 17
at a UK recognised institution with a sponsor licence so she will satisfy this part
of the requirements.
Angela would need to attain 50 points for attributes. As a graduate from a UK
recognised institution she would be awarded 30 points for sponsorship and
therefore Walburys would not have to satisfy the resident labour market test.
She would then need 20 points for an appropriate annual salary of £20,500 or
more, which she satisfies as she will be earning £24,000 per annum. She will
now be able to achieve the 10 points for English language by having a BA degree
taught in English. She needs to submit her degree certificate as evidence in
support of her application. Angela will also need to show that she has £945 in
savings to satisfy the maintenance requirement.
If her application is successful she will be granted leave for the length of her
employment plus 14 days, in this case 2 years 14 days. She would need to apply
to extend the leave if she was then granted permanent employment.
Question 4(a)
Brad – Entry as a Visitor
Brad will need to obtain a visit visa to come to the UK. He will need to satisfy the
requirements in para 41 HC 395, specifically to show that:









He is genuinely entering as a visitor (41(i)).
He intends to leave the UK (41(ii)).
He has no intention of taking up employment (41(iii)).
He has no intention to produce goods or services in the UK (41(iv))
He does not intend to study (except incidental study of up to 30 days) (41
(v)).
He can maintain and accommodate herself without recourse to public funds
(41 (vi)).
He can meet the cost of the return journey (41 (vii)).
He is over 18 (41 (viii)).
He must not intend to engage in any of the activities allowed under the other
visitors’ rules (41 (ix)).
As he is entering for a specific event and intends to leave after a short stay with
his aunt and uncle he should have no problem in satisfying the first two
requirements. He wishes to take part in a tournament but does not intend to
take up paid employment in the UK. He has no intention of producing goods or
services in the UK or of studying. He is 19 so meets the age requirement.
Brad has £4,050 in savings which he must pay his £700 airfare from. He will still
have more than adequate maintenance for his stay in the UK without him
requiring recourse to public funds. He will be accommodated by his cousin in his
two- bedroomed flat which is adequate to accommodate Brad for his short stay.
Brad also needs to show that he can meet the cost of the return journey. He
intends to buy a return ticket out of his savings and will still have sufficient
money remaining to maintain himself.
The provision preventing Brad from entering as a general visitor is rule 41 (ix) as
he must not take part in any of the activities covered by the other visitor
categories. As he wishes to take part in the sporting event, he should come as a
sports visitor. He must then satisfy the rest of the general visitor requirements
discussed.
Page 16 of 17
Sports Visitor
As he is taking part in the tournament his preferred route to entry may be under
Para 46M as a sports visitor.
Para 46M states that a sports visitor must be genuinely seeking entry for a
limited period not exceeding six months and either:




Intend to take part in a sports tournament, particular sporting event or
events as either:
o an individual or team member,
o to make personal appearances or do promotions,
o to take part in trials, or
o to undertake short periods of training; or
Take part in a specific one-off charity event, provided no payment is made
for the event; or
Join, as an amateur, a wholly or predominantly amateur team provided no
payment is received other than board, lodgings and reasonable expenses;
or
Serve as a member of the technical or personal staff or as an official at the
same event as a visiting sportsman.
Brad should satisfy the first of these requirements as he is taking part in a sports
tournament as a team member. As he wishes to stay with his cousin for a few
weeks after the event he should specify this in the application and will be
granted leave up to six months.
He will be admitted for no more than six months, will be prohibited from taking
employment and cannot extend his stay beyond that period. It is therefore not
possible for him to switch to being a student if he wanted to do this. He would
have to return to South Africa and apply for entry clearance from there under
Tier 4.
If he simply wished to enter for the event he could enter for 1 month under rule
56X iii (e) for a pre-arranged temporary engagement. In this case this would
probably not be suitable as he wishes to stay in the UK for some time afterwards
with his cousin, and he is not undertaking a paid engagement.
Question 4(b)
In this alternative scenario Brad should enter under Tier 5 of the Points Based
System. Under para 111 Appendix A he would be a Temporary Worker in the
creative and sporting subcategory, i.e. a sportsperson internationally recognised
at the highest level and endorsed by the sport’s governing body, the Rugby
Football Union - see Appendix M. He would have to obtain 30 points for attributes
and would achieve this by being issued with a certificate of sponsorship from the
Rugby Football Union which will contain a unique reference number.
He would also need to achieve 10 points for maintenance by having £945
available. He has £4,050 so has more than enough available. Alternatively the
Rugby Football Union, as an A-rated sponsor, could guarantee that there will be
no recourse to public funds.
Brad will be granted leave to enter for a period of time matching the engagement
or his contract of employment, with 14 days either side of this period, up to a
maximum of 12 months.
Page 17 of 17