LEVEL 6 - UNIT 8 – IMMIGRATION LAW
SUGGESTED ANSWERS – JANUARY 2016
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 2016 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.
Question 1
SECTION A
The Tribunal System
The Tribunals Courts and Enforcement Act 2007, replacing the one-tier
Asylum and Immigration Tribunal (AIT) in 2010, established a dual tribunal
process with a First-tier Tribunal and an Upper Tribunal. Both tribunals have an
Immigration and Asylum Chamber.
The Immigration and Asylum Chamber of the First-tier Tribunal (FTIAC) hears
appeals from decisions made by the Home Office, either in the UK or abroad at
High Commissions and Embassies. It is also hears appeals against a decision to
deprive a person of his or her British citizenship under s40A of the British
Nationality Act 1981.
Immigration judges either sit alone or with other immigration judges or non-legal
members to make the decisions. Onward appeal rights are to the Immigration
and Asylum Chamber of the Upper Tribunal (UTIAC). If an appeal raises national
security issues or public interest concerns, and needs to be heard in camera, it
will be heard by the Special Immigration Appeals Commission (SIAC). These will
be cases where the Secretary of State has certified the case under s97 NIAA
2002 as one where the Secretary of State believes removal of the appellant to be
in the interests of national security or the relationship between the UK and
another country.
Statutory Basis for Appeals
The statutory basis for appeals is principally Part V of the Nationality,
Immigration and Asylum Act 2002 (NIAA 2002). The appeal will be against the
Secretary of State, the Entry Clearance Officer or an Immigration Officer and a
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Home Office Presenting Officer will represent the respondent. The NIAA 2002 has
been amended by the Immigration Act 2014.
The grounds upon which an immigration decision could be brought before the
Immigration Act 2014 included where the decision was not in accordance with
the Immigration Rules (s84 (1)(a)), where the decision is unlawful under s6 of
the Human Rights Act 1998 (HRA) (s84 (1)(c)), where the decision breaches EC
law (s84 (1)(d)), where the decision is not otherwise in accordance with the law
(s84 (1)(e)), where a discretion should have been exercised differently (s84
(1)(f)) and where removal would breach the Refugee Convention (s84(1)(g)).
Appeals under the Immigration Act 2014
The Immigration Act 2014 has significantly reduced appeal rights, particularly
from within the UK. These provisions came into force in a piecemeal fashion,
from October 2014. The IA 2014 amends s82 by reducing appealable decisions
considerably. Under the new s82 an appeal can be brought to the tribunal where
the Secretary of State has refused a ‘protection claim’ (s82 (1)(a)), has refused
a human rights claim (s 82 (1) (b)) or has revoked a person’s protection status
(s82 (1)(c)). Appeal rights against decisions involving EU rights are also
preserved in the amended Immigration (EEA) Regulations 2006.
A ‘protection claim’ is defined as a claim that removal would breach the UK’s
obligations under the Refugee Convention or in relation to persons eligible for
Humanitarian Protection (s 82 (2) (a) and (b)). ‘Protection status’ is defined as a
grant of ‘leave to enter or remain in the UK as a refugee or as a person eligible
for a grant of humanitarian protection’ (s (82) (2) (c)).
The grounds of appeal under s 84 NIAA 2002 have been amended by s15 IA
2014. Grounds of appeal are now only that removal would breach:
 The Refugee Convention (s84 (1) (a));
 The UK’s obligations to grant humanitarian protection to an eligible person
(s84 (1) (b);
 Section 6 Human Rights Act 1998 (s84 (1) (c)).
The immigration decision appealed has to be related to human rights or
protection issues, and they cannot be raised at a later stage.
The removal of earlier appeal rights is likely to lead to increased judicial review in
this area, although it should be noted that Legal Aid is not available for judicial
review so this restricts access to justice. A successful judicial review will not
provide the same remedy as an appeal, but will result in the original refusal of
leave being quashed and the Home Office making another decision, which may
not be positive.
Procedural Rules
The procedural rules governing appeals have changed with the Tribunal
Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014
(“the new Rules”), which came into force on 20 October 2014, replacing the
Asylum and Immigration Tribunal (Procedure) Rules 2005. There is a new
overriding objective to deal with cases ‘fairly and justly’ rather than the former
requirement emphasising fairness alongside efficiency and speed.
An appeal to the First-tier Tribunal against a refusal of an application must be
received within 14 days of the decision being posted. The time limit is the same
for applying for permission to appeal to the Upper Tribunal against an appeal
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dismissed by the First-tier Tribunal. If an appeal is filed late, reasons have to be
given for extending the time.
In country appeals are lodged on an IAFT-1, and the grounds of appeal drafted
on this form. Court bundles have to be prepared by the appellant and the Home
Office for submission to the court. Out of country appeals are lodged on an IAFT2 form.
Under rule 29 Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum
Chamber) Rules 2014 (“the new Rules”) the tribunal may now give a decision
orally at the hearing. The tribunal must provide to each party, as soon as
reasonably practical after making a decision, a notice of the decision and
notification of any appeal rights. In asylum or humanitarian protection cases the
tribunal must also provide written reasons for the decision. In other matters, if
these are not provided, an application can be made to the tribunal, within 28
days, to provide reasons. If such an application is made the tribunal must
provide reasons as soon as reasonably practicable.
Onward appeals
If a case is refused by the First-tier Tribunal an application for permission to
appeal to the Upper Tribunal can be made under rule 33 to the First-tier Tribunal
initially. Where the applicant is in the UK, the application must be received no
later than 14 days from when the applicant was provided with written reasons for
the refusal, and no later than 28 days if the applicant is outside the UK. The
application must identify the decision being appealed and the error or errors of
law in the decision. It must also state the desired result from the hearing and
include any request for extensions of time, with reasons.
If the First-tier Tribunal refuses permission, a request for permission can be
made to the Upper Tribunal. If the Upper Tribunal refuses permission to appeal
the remedy would be an application to the High Court to judicially review the
decision. If the Upper Tribunal grant permission, but the appeal is then dismissed
by the Upper Tribunal, further appeal would then be made to the Court of
Appeal.
Administrative Review
The restrictions on appeal rights introduced by the Immigration Act 2014 will see
the increased use of Administrative Review as an alternative challenge to a
decision to refuse entry clearance or leave to remain. This is not a full right of
appeal, and therefore not an adequate replacement for earlier appeal rights. It
does, however, permit an applicant to request that the Entry Clearance Officer,
Immigration Officer or Home Office corrects an erroneous decision caused by a
caseworking error. If such an error is found the decision will be withdrawn and a
new decision made. On a successful application, if the decision was an
application for leave, leave will then be granted. The major difficulty with this
process is that it is asking the Home Office to review a decision made by its own
officer. Consequently the right to a full appeal hearing by an independent and
impartial tribunal will no longer be available in these cases.
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Question 2 (a)
General Rights of EU nationals
General free movement rights are contained in Article 21 Treaty on the
Functioning of the European Union (TFEU). Article 6 Directive 2004/38/EC (the
Citizens’ Directive) provides for a general right of residence in another member
state for up to 3 months without any conditions or formalities, but simply on
production of a valid identity card or passport.
Free Movement of Workers
Art 45 TFEU confers the right to enter the UK for the purpose of employment.
More specifically Art 45 (3) permits acceptance of an offer of employment made
and free movement within the member state (MS) for such employment. It also
permits staying in the MS for the employment and remaining in the MS after the
employment (subject to conditions contained in secondary legislation).
Under Article 7 para 1 of the Citizens’ Directive workers or self-employed persons
in the host member state are permitted to reside longer than the initial threemonth period where they are working or self-employed in the host member
state, have sufficient resources not to burden the social assistance system or are
enrolled at a private or public establishment for study or vocational training. In
the latter two cases the EU national must also have comprehensive sickness
insurance cover in the host member state.
The Immigration (European Economic Area) Regulations 2006 (I (EEA) Regs)
incorporate the Directive into UK law. Regulation 6 defines a “qualified person”
who is exercising treaty rights as a jobseeker, a worker, a self-employed person,
a self-sufficient person and a student.
Article 7 Directive 2004/38/EC, incorporated in Regulation 6 I (EEA) Regs, also
allows a person to stay on as a worker if he or she is temporarily unable to work
as a result of illness or accident or involuntarily unemployed after working for
more than a year and registered as a jobseeker. Jobseekers must be seriously
and genuinely seeking work and will be allowed a reasonable time to look for
work Antonissen [1991]. If a person is voluntarily unemployed after completing a
fixed term contract, or within the first year of employment, they will not be seen
as a “worker” for any longer than six months.
Under Regulation 6 (8) I (EEA) Regs a Union citizen only retains the status of a
worker during the first six months in which he or she is looking for work. After 91
days the status of jobseeker is lost and can only be reinstated if the EU national
leaves the UK for at least 12 months and then returns to look for work again.
Regulation 5 defines a ‘worker or self-employed person who has ceased activity”
as an EEA national who satisfies the conditions in paragraph (2), (3), (4) or (5)
of the regulation, namely those who have ceased activity due to permanent
incapacity or illness and are no longer capable of work, or have reached
retirement age or taken early retirement. Three years residence in the UK is
necessary for those retiring and one year in employment is necessary prior to the
retirement. If activity is ceased due to permanent incapacity, two years
residence is required prior to the termination unless the incapacity was caused
by an accident at work or an occupational disease. If these conditions are met
such persons acquire a permanent right of residence under reg 15 (1) (c).
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Employment includes both self-employment under Article 49 TFEU and part-time
employment under Article 7 Directive 2004/38/EC. This was upheld by the ECJ in
Levin v Staatssecretaris [1982] where part-time employment as a chambermaid
was found to be ‘effective and genuine’ and in Kempf v Staatssecretaris van
Justitie [1987] where part-time music teaching was seen to be the same.
Question 2 (b)
Family Members’ Rights Generally
The rights of family members to join EU national workers are found in Articles 2,
3, 6 and 7 Directive 2004/38/EC. Article 6 extends the general right of residence
for three months to family members, whether or not they are themselves EU
nationals. Article 7 provides that family members of those qualified to reside for
longer than 3 months, for example workers, also have the right to long-term
residence.
Definition of “Family Member”
Article 2 and Regulation 7 I(EEA) R 2006 define family members as:



The spouse or registered partner of an EU citizen;
Direct descendants of an EU citizen or their partner who are either under
21 or dependent on the EU citizen or their partner; and
Dependent relatives in the ascending line of the EU national or his/her
partner.
Regulation 11 I (EEA) R 2006 provides that a family member of an EEA national
can be admitted if they produce a passport and an EEA family permit or other
means of proving that they are the family member of an EEA national with the
right to accompany or join the EEA national.
Facilitating Entry for Other Family Members
Article 3 Directive 2004/38 obliges Member States to facilitate entry and
residence for:
 Other family members who are dependent on or members of the
household of the EU citizen in their country of origin;
 Family members who have serious health issues requiring personal care by
the EU citizen; and
 Partners with whom the EU citizen has a durable relationship, which has
been duly attested.
Article 10 Directive 2004/38 obliges Member States to issue residence cards to
family members of Union citizens. Article 3 is transposed into national legislation
by Regulation 8 I (EEA) R 2006, which details ‘extended family members’ who
may be eligible to join a ‘qualified person’ in the UK. They may also be
accompanying the EEA national or joining the EEA national here.
Extended family members now have to have been dependent on the EEA national
before coming to the UK or to have lived in the EEA national’s household before
entry. Rahman [2012] clarified that there is no need for the applicant to have
lived with the Union citizen in the household abroad, or to have been dependent
while the Union citizen was still living in the Member State, but the dependency
itself or the household membership must have arisen before the family member
moved to the host state. This was confirmed in Oboh and Others [2013]. This
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situation arose in Bigia v ECO [2009] where dependency was shown through an
EU national providing his adult daughter with rent-free accommodation and
regularly sending her money for daily living expenses, bills and clothes.
As family members rights are derived from their relationship with the qualified
person, if the rights of the qualified person cease, the family member will lose his
or her secondary rights OA [2007].
Retained rights of residence
There are provisions in the Directive (Articles 12 and 13) and the Regulations
(Regulation 10) for EEA nationals to retain rights of residence where a qualified
person has died, a relationship has ended or where the qualified person ceases
to be qualified. A spouse or civil partner will not cease to be a family member in
the event of a marital breakdown or separation as long as the EEA national
continues to exercise treaty rights in the same member state: Diatta v Land
Berlin [1985] and Amos v SSHD [2011].
With divorced couples, three years of marriage before the initiation of divorce
proceedings are required to satisfy the provision alongside residence in the host
member state for at least one year. Further, residence rights are retained, under
regulation 10, on termination of the marriage where there is domestic violence or
an order of the court conferring access to or custody of a child.
A partner of an EU citizen and the EU citizens’ children will retain residence rights
where the partner has custody of the children and the children are studying at an
educational establishment, provided the children were in the host state at a time
when the Union citizen was working there.
Where then Union citizen has died, the same provisions for acquiring permanent
residence will continue as if the Union citizen were still alive, provided the family
member exercises the equivalent of ‘Treaty rights’ as a worker, self-employed or
self-sufficient.
Question 3(a)
Where a person is born outside the UK and acquires British citizenship through
having a parent who is a British citizen, he or she will be a British citizen by
descent. This means that if he/she were then to have a child abroad he/she
would not automatically be able to pass on British citizenship to that child. By
contrast a British citizen other than by descent is a British citizen who has
acquired citizenship through birth, naturalisation or registration in the UK and as
such could pass on that citizenship to a child.
Before the British Nationality Act 1981 (BNA 1981) came into force on 1 January
1983 a person who was born outside the UK would only be a British citizen if his
father was born in the UK or his father was registered or naturalised as a British
citizen 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.
The BNA 1981 rectified the inherent injustice in this provision by establishing
citizenship through the mother under Section 1. Now a child born outside 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 1
January 1983 when citizenship only passed automatically through the father,
they can now register as a British citizen.
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Until 1 July 2006, a father could only pass on his nationality in this way if he was
married to the child’s mother. S9 NIAA 2002 rectified this previous injustice in
the law and amends BNA 1981 to include the father of an illegitimate child,
provided proof of paternity is produced.
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.
BNA s 3 (3) does mitigate this to some extent as a child born overseas has the
right to be registered 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 British citizen by descent 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.
S 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 they have lived with their
parents in the UK for three years before the application.
Question 3 (b)
Registration
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 in the UK 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 was born in the UK after 1982 and, after his
birth, one of his parents becomes settled in the UK.
Under s1(4) BNA 1981 a child can register as a British citizen if he remains in the
UK for the first 10 years of his 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 can do
so now. Under NIAA 2002, as originally enacted, if a person was born before July
2006 to an unmarried British father they could apply to register as a British
citizen on a discretionary basis. The Immigration Act 2014 now gives them an
entitlement to do so. Under the new ss.4E-4J BNA 1981, inserted by the
Immigration Act 2014, people who were born illegitimately to British fathers
before 1 July 2006 can now register as British citizens. On the other hand, a
person is entitled to register as a British citizen if they were born outside UK
before 1 January 1983 to a British mother.
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BNA s 3(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 they have lived
with their parents in the UK for three years before the application.
The Borders, Citizenship and Immigration Act 2009 added a new category of
children who can register as a British citizen. A child of a member of the British
armed forces serving overseas, born after 13 January 2010, can apply for
registration as a British citizen. This permits children of foreign nationals serving
in the armed forces to acquire citizenship in this way.
Adults
The limited categories of adults that can register as British citizens are those that
lost the right of abode with the incremental passage of various nationality acts.
British Overseas Territories Citizens (BOTCs), British Overseas Citizens (BOCs),
British Protected Persons (BPPs), British Nationals Overseas (BNOs) and British
subjects who have been resident in the UK legally for five years and have
indefinite leave to remain can apply to register in this way. Additionally BOCs,
BNOs, British subjects and BPPs with no other citizenship or nationality can
register, provided that they have not renounced another nationality.
An adult can also register as a British citizen if he or she was born outside UK to
a British mother before 1 January 1983, when citizenship only passed through a
person’s father. This therefore remedied some of the inherent injustices in the
previous legislation. This used to be a concession (discretionary Home Office
practice) before the end of 2000 but now Section 4C BNA 1981 gives such a
person the right to register in this way.
Question 4
A decision to deport someone can be made where the Secretary of State deems
it to be conducive to the public good under s3 (5) (a) Immigration Act 1971 (IA
1971). Further, under s3 (6) IA 1971 a person convicted of an offence
punishable with imprisonment can be recommended for deportation by the court.
Finally, deportation of ‘foreign criminals’ is automatic under s32 UKBA 2007
where a person who is not a British citizen is sentenced to a minimum of 12
month’s imprisonment, or the offence is of a type specified in an order and the
person is sentenced to imprisonment following conviction for such a specified
offence.
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National Security Deportations and Article 3
Deportation can be found to be conducive to the public good on the grounds of
national security. In these cases arguments against deportation may arise under
Article 3 ECHR, the absolute right not to be subjected to torture or inhuman or
degrading treatment. Deportation is prevented where there is a real risk of
torture or inhuman or degrading treatment if returned to the country of origin
and there is no question of balancing the right against public interest
considerations. In Chahal v UK [1996] the absolute nature of Article 3 prevented
deportation of a Sikh terrorist to India was not permitted as there was a real risk
he would be tortured if returned. Further in Saadi v Italy [2008] the European
Court of Human Rights (ECHR) would not accept that the risk of ill-treatment
should be balanced against the reasons for expulsion in these cases.
More recently Abu Qatada [2012] exposed the difficulties of wishing to deport an
alleged terrorist where there was a real risk of torture on return. Assurances by
the Jordanian government that the appellant would not be tortured, or tried on
evidence adduced under torture, finally enabled his deportation.
Deportation and Article 8
Article 8 is the qualified right to respect for private and family life so where these
matters arise in deportation proceedings there is a need to balance the right
against public interest considerations. The right can be interfered with where
there is a legitimate aim, and immigration control is in the economic wellbeing of
the country to control immigration and, in deportation cases, also satisfies the
legitimate aim of preventing disorder or crime. National security grounds may
also permit an interference with the right. The question is whether the
interference with the right in pursuit of these legitimate aims is necessary or
proportionate Razgar (2004).
In recent years the Home Office has taken steps to facilitate the deportation of
non-UK citizens and has made clear statements of when the Secretary of State
believes the public interest will require deportation.
The Immigration Rules on Article 8 and Deportation
Firstly, the introduction of rules 390A and 396-400 were intended to clarify the
circumstances in which private and family life can outweigh the public interest in
deportation. The rules have been amended slightly after the changes in the
Immigration Act 2014. However rule 398 still provides that it will be in the public
interest to deport a person who has been convicted of an offence and sentenced
to 4 or more years imprisonment (398 (a)), or to 1 to 4 years imprisonment
(398 (b)), where their offending has caused serious harm or where they are a
persistent offender showing particular disregard for the law (398 (c)).
Rules 399 and 399A provide exceptions to 398 (b) and (c) where there is a
genuine and subsisting relationship with a British citizen child, or a child who has
lived in the UK continuously for 7 years, and where there is a genuine and
subsisting relationship with a partner who is a British citizen or settled in the UK,
formed when the deportee was in the UK lawfully. In these cases it must also be
‘unduly harsh’ for the child to move with the deportee or live in the UK without
them or for the partner to do the same.
If the application is a private rather than family life one, under rule 399A the
person will need to have been lawfully resident most of his life, be socially
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integrated in the UK and there must be very significant obstacles to his
integration in the country of deportation.
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. The Court of Appeal in MF (Nigeria) (2013) found the rules to be a
‘complete code’ incorporating the two stage test entirely within the Immigration
Rules, ‘exceptional circumstances’ permitting consideration of Article 8 case law.
In Shazad (2014) 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. On a strict
interpretation of Shazad the replacement of this test with ‘compelling
circumstances’ could mean a return to the two-stage test.
Article 8 statutory public interest considerations
Section 19 Immigration Act 2014 (IA 2014) inserts a new Part 5A into the
Nationality Immigration and Asylum Act 2002 (NIAA). New section 117B NIAA
sets out the public interest considerations to be taken into account in all cases,
such as maintaining effective immigration controls, while new section 117C sets
out further considerations to which courts and tribunals must have regard in
deportation cases. Section 117B in particular prescribes that ‘little weight’ should
be attached to private life or a relationship formed when a person is in the UK
unlawfully (117B (4)), and when a person’s ‘immigration status is precarious’
(117B (5)).
Another change is replacing the phrase ‘exceptional circumstances’ with ‘very
compelling circumstances’ when considering the deportation of a foreign criminal
sentenced to at least four years imprisonment. This mirrors the language in MF
(Nigeria) v Secretary of State for the Home Department (2013) and is in line
with SS (Nigeria) (2013) where the Court of Appeal found it would only be a
‘very strong claim indeed’ that would outweigh the public interest in deporting a
foreign criminal.
For those sentenced to less than four years in prison, s117C makes quite
generous provision for family life, simply saying that the effect of the deportation
on the child or partner would need to be ‘unduly harsh’ to prevent removal. This
is different to the more detailed Immigration Rules contained in 398-399A, which
will be problematic for the courts when dealing with these cases.
Case law
These statutory public interest considerations, reflected in the rules, impose very
prescriptive considerations, favouring deportation and having less regard to
matters such as the best interests of the children in having both parents to care
for them. Article 8 cases emphasising the best interests of the child, such as
Chikwamba (2008) and ZH Tanzania (2011) are only significant when the
provisions of rule 399 HC 395 and s117B NIAA 2002 are not met. The Court of
Appeal in SS Nigeria (2013) emphasised the importance of the public interest in
deporting foreign criminals. The best interests of any children involved are a
primary consideration (ZH Tanzania (2011)) but family life will have to be very
strong to outweigh the public interest in deporting a foreign criminal. The more
serious the offence, the more likely the public interest will favour deportation.
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SECTION B
Question 1
Definition of a Partner
The facts indicate that Sebastian meets the definition of a partner in Gen 1.2 as,
although unmarried, Emily and Sebastian have a period of cohabitation lasting
over 2 years and their relationship has lasted longer than this. They will need to
show letters/bills to the same address over the two-year period, in both of their
names, in order to satisfy this requirement.
Suitability requirements
There are various suitability requirements within the rules, which the applicant
must not fall to be refused under. Under Section S-EC 1.1-1.8 grounds such as
exclusion being conducive to the public good, being subject to a deportation
order, being convicted of a sentence of imprisonment of 12 months or more or
failure to attend an interview or undergo a medical examination, can lead to
mandatory refusal. Discretionary grounds to refuse are also laid down in S-EC
2.1- 2.5, including the provision of false information or refusal to provide an
undertaking in relation to accommodation or maintenance.
Eligibility requirements
Relationship Requirements
As Emily is a British citizen she will satisfy E-ECP 2.1 and be an appropriate
sponsor. She needs to be present in the UK when Sebastian arrives or
accompanying him.
In order to comply with E-ECP 2.2 and 2.3 both the applicant and the partner
must be over 18. This was confirmed in the case of Quila (2011) when the
Secretary of State’s temporary raising of the age to 21 was found to
disproportionately interfere with family life. In the present case the couple are 24
and 26 so meet the requirements.
There is nothing in the facts to indicate that Emily and Sebastian are within the
prohibited degrees of relationship, contrary to E-ECP 2.4.
In order to comply with E-ECP 2.5 the couple must have met in person. In
accordance with the test in Meharban (1989) the parties only require some
knowledge of each other in the sense of appearance or personality so this is
easily shown. As Emily and Sebastian have lived together for 2 years and 3
months this will be easy to satisfy. They can show photographs of themselves
together to meet this requirement, evidence of joint commitments such as bills,
bank accounts and so on.
E-ECP 2.6 stipulates that the relationship must be genuine and subsisting. Annex
2.0 of the Immigration Directorate Instructions (IDIs) lists factors, which will
serve to indicate genuineness. In this case the relevant factors are the fact that
they have been living together two years and can prove this, for example with
letters/bills to both parties (individual or joint) sent to the same address. The
fact that Emily has spent the past three years with Sebastian in Jamaica, and
lived with him for 2 years and 3 months, will help them meet this requirement.
As they intend to live together in the UK this will also assist in proving their
relationship is genuine and subsisting. They should submit bills to their joint
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address in Jamaica and tickets and photographs from their time together in
Jamaica and Sebastian’s visit to the UK, as these are relevant to show
genuineness.
As Emily and Sebastian do not intend to get married they do not have to satisfy
the requirements 7 and 8 at ECP 2.7 or 2.8.
E-ECP.2.9 states that any previous relationship of the applicant or his or her
partner must have broken down permanently. Emily and Peter, her husband, are
in the final stages of divorce, which indicates that their relationship has broken
down permanently. However, permanent relationship breakdown can only be
established by producing the Decree Absolute.
E-ECP.2.10 states that applicant and partner must intend to live together
permanently in the UK. The previous cohabitation, and the fact that they will be
living at Emily’s flat on return to the UK, will assist in proving this requirement.
As Emily will have been in the UK for six months before Sebastian arrives they
should show any correspondence in their time apart, such as printouts of emails,
any telephone bills etc. This is relevant to intention to live together on the
authority of Choudhury (2002).
Financial Requirements
Maintenance
Income required
As Emily and Sebastian do not have children they simply need to show a gross
annual income of £18,600 to satisfy E-ECP 3.1. This must be from the UK partner
alone in an entry clearance application so Sebastian’s potential earnings are
irrelevant. As Emily is earning £27,000 per annum she will clearly satisfy this
requirement.
Documentation to prove
As Emily has been working at the hospital for six months in salaried employment
she will also need to meet the requirements of Appendix FM-SE para A1 2 by
providing six months wage slips and corresponding bank statements to show
receipts of salary, and a letter from her current employer detailing her
employment and gross salary, how long she has been employed, how long she
has been on £27,000 and the fact that the job is permanent. It would be useful
also to submit her signed contract of employment and her P60.
Adequate Accommodation
Accommodation must be adequate, owned or occupied exclusively and there
must be no recourse to public funds to provide the accommodation in accordance
with E-ECP 3.4.
In order to be adequate it must not be overcrowded within the terms of the
Housing Act 1985. As it is a two bedroomed flat that the couple will live in
exclusively they will easily satisfy this requirement, as they only require one
room for their exclusive use – Saghir Ahmed (1994).
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English language requirement
As Sebastian is from a Home Office approved English-speaking country he will
not need to pass any language tests to come to the UK.
Leave granted
If Sebastian’s application is successful he will be granted 33 months leave to
enter. After 30 months in the UK he will be able to apply for a further 30 months
limited leave. After 60 months (5 years) in the UK, if he still meets all the stated
requirements, he will be able to apply for indefinite leave to remain.
Question 2
Article 1A Refugee Convention, the Refugee Qualification Directive 2004 (RQD
2004) and the Refugee Qualification Regulations 2006 (RQR 2006) define a
refugee as someone who has a well-founded fear of persecution for reasons of
race, religion, nationality, membership of a particular social group or political
opinion and is outside his or her country of nationality and is unable or, owing to
such fear, unwilling to return to it. Rule 328 of the Immigration Rules provides
UK asylum claims will be determined in accordance with this definition. Rule 334
permits a grant of asylum where an applicant meets this definition. It will be
argued that Abi fits this definition of a refugee and thus should be entitled to
international protection.
Well-founded Fear
Subjective fear:
Subjective fear is the belief that the appellant states is likely to happen if
returned to his or her country of origin. Abi’s subjective fear is that if she is
returned to The Gambia she will be forcibly circumcised and risk dying from her
injuries, or suffering intensely in the way her mother did. Her fear is based on
what happened to her mother and the practice of her tribe members generally,
together with the threats of FGM.
Objective fear
An applicant’s fear must be well founded in context of the country information
(Horvath (2000)).The Home Office report states that FGM is widely practised in
The Gambia and violence against women is widespread. This supports the
conclusion that Abi is at risk of FGM on return.
Standard of Proof
Arguably, as Abi’s subjective fear and previous experiences are supported by
objective evidence, there is a real risk (PS Sri Lanka [2008]) or reasonable
degree of likelihood, (Sivakumaran [1988] upheld in Karanakaran [2000]) that
she will be persecuted on return.
Taking into account therefore her subjective fear of being forcibly circumcised on
return, supported by what has happened to her mother in the past and the
objective evidence showing this risk is well founded, there is a real risk or
reasonable degree of likelihood of persecution on return.
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Persecution
Abi is at risk of serious harm plus failure of state protection if returned, the
definition of persecution laid down in the case of Shah and Islam [1999]. In
Demirkaya [1999] the Court of Appeal held that a single act of torture or serious
ill treatment could constitute persecution. FGM would be an example of such
torture.
Applying the Refugee Qualification Directive article 9 and RQR reg 6 the future
risk of FGM is clearly sufficiently serious by its nature to amount to persecution.
In Fornah [2006] the appellant was at risk of FGM in Sierra Leone. It was
accepted by House of Lords in Fornah that claims based on fear of FGM have
been recognized or upheld in courts all around the world, including England and
Wales (P and M [2004] cited amongst others) and that FGM is an extreme
expression of the discrimination to which all women in Sierra Leone are subject,
as much for those who have already undergone the process as for those who
have not. The facts show this is the same situation as in The Gambia as the
Home Office report states that the practice is not unlawful and is widespread. A
more recent Court of Appeal decision in MJ Gambia [2013] confirmed this risk
and looked at particular factors that alter the risk such as parental views, living
in a rural or urban area and membership of an ethnic tribe that practices FGM.
Protection
This is a case of non-state agent persecution and the leading authority is the
case of Horvath [2000]. In order to show that Abi has no protection she has to
show that, although she would be targeted by non-state agents on return, the
state would offer her no protection against this.
Horvath upholds that, in order to show protection, there must be an adequate
criminal justice system in place and a willingness to operate it. The Home Office
report states that FGM is widespread and that Gambian law does not prohibit the
practice. Gender inequality is accepted in society. Abi could not therefore seek
police protection as the practice is not illegal so not within the remit of the police.
Convention reason
The Convention reason in this case is that she fears persecution because of her
membership of a particular social group. The protection afforded to the victims in
Shah and Islam [1999] can be extended to the instant case.
As in Shah and Islam [1999] she is a woman in a society that discriminates
against women. Her gender is an innate and unchangeable characteristic or, as
was termed in Shah and Islam [1999], an immutable characteristic that is
beyond her power to change. The RQD article 10 and RQR 6 (d) refer to this
innate and unchangeable characteristic needed to be a member of a PSG. It was
settled in Fornah [2006] that women in a society that practices FGM share the
immutable characteristics of being female, Sierra Leonean (in that case) and
members of the particular tribe to which they belong. As they would share these
characteristics whether or not FGM were within their communities, their social
group exists completely independently of the initiation rites it chooses to practise
(Baroness Hale).
In Fornah it was held that women at risk of FGM are a particular social group for
the purposes of the refugee convention, which can be applied to this case. The
country reports show that women are at risk of FGM in The Gambia in the same
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way and that the police do not protect against this. Contrary to the Home Office’s
argument in Abi’s case, the PSG exists independently of the persecution suffered
as women are discriminated against as a group and the persecution can occur
against the women because they are subordinated in society.
Internal Flight
The Home Office have raised internal flight saying that Abi could live elsewhere
in The Gambia. Article 8 RQD requires decision-makers to consider whether an
applicant could reasonably relocate to another area – Para 339O Immigration
Rules implements this.
It was held in MJ Gambia [2013], upholding K and others [2013] in the Upper
Tribunal that internal flight is not a viable option in The Gambia as the country is
so small and ethnic groups are interspersed throughout. This is also mentioned in
the Home Office report showing that internal flight is not realistic in this case.
Further, Abi’s mother has told her that members of the Mandinka tribe are
looking for Abi throughout The Gambia.
In any event it would arguably be unduly harsh (Robinson test) or unreasonable
(RQD art 8 and 339O HC 395) to send Abi to Banjul. The cases of Januzi [2006]
and AH Sudan[2006] focus on factors relevant in deciding whether internal flight
is reasonable and consider socio-economic survival amongst other factors. Abi
would not be able to support herself as she has no family there and the Home
Office report says few employment opportunities for women.
It is arguably unreasonable or unduly harsh to return her taking all the matters
into account, the standard of proof for internal flight laid down in Karanakaran
[2000].
Conclusion
It is therefore submitted that Abi has a well founded fear of persecution if
returned to The Gambia as she risks Female Genital Mutilation there from
members of the Mandinka tribe. The risk of persecution is on account of her
membership of a particular social group, as she is a woman in a society that
discriminates against women (Shah and Islam (1999)), and the group exists
independently of the persecution suffered. There is no protection available to her
as the government do not protect against this. Internal flight is not viable, as
ethnic groups are interspersed throughout the country, and is also unduly harsh
as she would not have any support in another area.
Question 3 (a)
General Visitor Requirements
Kiano will need to obtain a visit visa to come to the UK as Kenya is a visa
national country. A visitor is now defined in Appendix V of the Immigration Rules,
inserted by HC 1025, as ‘a person who is coming to the UK, usually for up to six
months, for a temporary purpose.’ He should enter under the standard visit
category in V 1.5.
Kiano will need to satisfy the eligibility requirements of V 4.2. In particular he
must show a ‘genuine intention to visit’. In order to show this he needs to prove
that he:
(a)
will leave the UK at the end of his visit;
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(b)
(c)
(d)
(e)
will not live in the UK for extended periods through frequent or successive
visits, or make the UK his main home;
is genuinely seeking entry for a purpose that is permitted by the visitor
routes;
will not undertake any prohibited activities set out in V 4.5 – V 4.10; and
has sufficient funds to cover all reasonable costs in relation to his visit
without working or accessing public funds. This includes the cost of the
return journey.
As Kiano is entering for a specific event and intends to leave after a short stay
with his cousin, he should have no problem in satisfying V 4.2 (a) and (b). He
wishes to take part in a festival but does not intend to take up paid employment
in the UK.
Kiano will be ‘genuinely seeking entry for a purpose that is permitted by the
visitor routes’ in compliance with V 1.5 (c) as he is taking part in the festival.
Paragraph 16 Appendix 3 lists creative activities as an artist, entertainer or
musician as a permitted activity for all visitors. These include:
(a) Giving performances as an individual or as part of a group;
(b) Taking part in competitions or auditions;
(c) Making personal appearances and take part in promotional activities; or
(d) Taking part in one or more cultural events or festivals on the list of permit
free festivals in Appendix 5 (where payment is permitted).
As Kiano wishes to take part in the festival he will be permitted to do so under
paragraph 16 (d). He must then satisfy the rest of the general visitor
requirements discussed. Kiano should satisfy this as Brighton festival is listed in
Appendix 5. Paragraph 16 (a) may also be satisfied as it is a performance by his
amateur theatre group, Starlights.
The prohibited activities mentioned in (d) are set out in V 4.5-V4.10 and include
undertaking paid work (other than a ‘permitted activity’), studying, accessing
medical treatment (other than private medical treatment or donating a kidney)
and getting married or entering into a civil partnership. There is no indication
Kiano wishes to do any of these things other than the permitted creative activity
of partaking in the festival.
Kiano has sufficient funds to satisfy V 4.2 (e) as he has £4,500 in savings, which
he will pay his £440 airfare from. He will still have sufficient funds for his stay in
the UK without him accessing public funds or working. Kiano will be
accommodated by his cousin, Logan, in his two- bedroomed flat, so will not need
to pay for accommodation.
Kiano 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.
As Kiano 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 for 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 would therefore
not be possible for him to switch to being a student if he wanted to do this. He
would have to return to Kenya and apply for entry clearance from there under
Tier 4.
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Leave Granted
Kiano will be granted leave for a maximum of 6 months and will not be able to
switch into another category of leave from his visit visa. He will not qualify for
indefinite leave to remain as a visitor.
No Switching to student
As Kiano would be best advised to come as an entertainer he must be warned
that he cannot switch from visitor category. Therefore he would need to return to
Kenya and apply for entry clearance as a student if he wished to study at a UK
University.
Question 3 (b)
Entry as a Student
The requirements for entry as a student under Tier 4 PBS are governed by rule
245ZV of the Immigration Rules. Kiano would need 30 points under Appendix A
(attributes) for sponsorship. He would meet this requirement by obtaining a
Confirmation of Acceptance for Studies (CAS) from a UK University or college
that is a Home Office approved education provider. A CAS is a virtual document
in the UKBA’s IT sponsorship management system that must contain the
sponsor’s licence number. It must also include Kiano’s nationality, passport
number, list the evidence provided in his application and give full details of the
course. The CAS must be issued less than 6 months before the application for
entry clearance or leave to remain.
The degree course Kiano wishes to study would have to meet the minimum
academic requirements stipulated in Appendix A and his studies must be
undertaken at the University.
Kiano would need to score 10 points under Appendix C (maintenance). He will
need his first year’s fees plus £7,380 (£820 per month for the first 9 months of
the course) if he was studying outside London or £9,180 inside London (£1,020
per month for a maximum of 9 months as he wishes to study on a degree
course) and would need this money to be in his bank account for 28 days before
the application is made. At present he does not have this much money in savings
so he would need to be advised of the extra maintenance money he would
require and the need to have that in addition to the cost of the first year’s fees.
Kiano would be able to work for 20 hours per week during term-time, to
supplement his studies, or for as long as he wanted during the holidays. He
would still, however, require the extra money at the start of his degree or would
not satisfy the requirements.
For a degree level course of study, it is assumed that the sponsor is satisfied that
the student has attained level B2 proficiency in English. However an Entry
Clearance Officer can request demonstration of proficiency to level B2
competence at an interview – rule 245 ZV (ca).
If his application were successful he would be granted leave to enter for the
period of his course plus an extra five months for a three-year degree, one
month before the course and four months at the end of the course.
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Question 4 (a)
Skyla would enter under the Tier 2 (Intra Company Transfer) category. As an
established employee she would come under either long-term staff or short-term
staff as she is a skilled employee transferring to the UK branch of their
organisation to fill a post that cannot be filled by a settled worker. The
requirements for entry clearance under Tier 2 (Intra Company Transfer) are
found in 245GB of the Immigration Rules.
APDEL (UK) Ltd. needs to issue a Certificate of Sponsorship. They will also need
a sponsor licence and, if they are not already on the register of sponsors, they
will need to apply to be placed on it to enable them to issue these certificates.
The register of sponsors lists all organisations that the Home Office has licensed
to employ migrant workers. A company can be added to the register if it is:



A legitimate organisation working within the law in the UK;
There are no reasons to believe that they are a threat to immigration
control; and
The organisation will meet its sponsorship duties.
The company will be given an A or B sponsorship rating if successfully placed on
the register. The application must be made to the Home Office with a fee and
relevant documentation listed on the website.
To be transferred as an employee of the company Skyla needs to have been
working for 12 months. She has been there 5 years. She would come under
“long-term staff” as she is an established employee of a multi- national company
who is being transferred for more than one year to a skilled job that could not be
carried out by a new recruit from the resident workforce.
Skyla will need to acquire 60 points. 50 points must be obtained for attributes
and 10 for maintenance. The English language requirement does not need to be
met for an intra-company transfer.
Sklya will obtain 30 points for the certificate of sponsorship and 20 points for
having the appropriate salary. In the long-term category this is a salary over
£41,000, and she is earning in excess of this.
To achieve the 10 points for maintenance she will need to show she has had a
minimum of £945 in personal savings for a 90 day period ending no earlier than
31 days before the application. She has £120,000 in savings so will easily satisfy
this requirement.
As she will be applying in the long-term staff sub category, entry clearance will
usually be granted for a period equal to the length of the period of engagement
plus one month or 5 years plus one month, whichever is shorter. However, leave
can now be granted for 9 years if the applicant is earning £155,300 or more (or
£153,500 if the Certificate of Sponsorship used in support of the application was
assigned before 6 April 2015). Therefore Skyla could be granted 9 years in this
case. She would not however be entitled to indefinite leave to remain as it is not
available in this category.
Her leave will be subject to the condition not to have recourse to public funds,
and only to work in accordance with the sponsorship in the certificate of
sponsorship.
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APDEL Ltd, as her sponsor, will need to comply with certain duties during her
employment. These include reporting following situations to the Home Office:







Migrant not turning up on first working day.
Migrant absent from work for more than 10 days without permission.
End of contract of employment, including resignation or dismissal.
Name and address of any known new employer.
Significant changes to migrant’s circumstances e.g. change of job or
salary.
Any suspicions migrant breaching condition of leave.
Any significant changes in the sponsor’s circumstances, e.g. stops
trading/becomes insolvent/substantially changes nature of business,
involved in a merger or taken over.
There is now also a new genuineness test under 74H Appendix A of the
Immigration Rules. No points will be awarded for a Certificate of Sponsorship if
the Entry Clearance Officer or the Secretary of State has reasonable grounds to
believe, in spite of the evidence provided by the applicant, that the job is not a
genuine vacancy or that the applicant is not appropriately qualified to do the job
in question. There is nothing on the facts to indicate that this may be the case,
but Darwin should be made aware of the possibility of the Entry Clearance Officer
refusing the case on these grounds and the additional discretion this gives to
ECOs in these cases.
Tier 2 General
Skyla could also enter under the Tier 2 (General) category on these facts as she
is filling a recognised gap in the labour market in taking up the position. She
would need 50 points for attributes. She would normally acquire 30 points by
either passing the Resident Labour Market (RLM) test, or her job being on the
Shortage Occupation List, which it does not appear to be in this case. Skyla
would also need to achieve 20 points for the appropriate salary. In this case the
RLM test exemption applies namely as she has a job offer with annual salary of
£155,300 or more. The appropriate salary for Tier 2 (General) is £20,500 or
more, which she can easily satisfy.
If Skyla were to come as a Tier 2 (General) Migrant she would also be subject to
a new genuineness test and the claim could be refused if it was thought not to be
a genuine vacancy or that she was not appropriately qualified for the job. There
clearly seems to be a vacancy here, the only issue may be if there was someone
within the company that could have filled it, although the facts suggest
otherwise.
If Skyla comes under this route she would have the option to apply for indefinite
leave to remain after five years and would be granted a maximum of five years
leave to enter initially.
Question 4 (b)
Federico should enter under the Tier 1 (Entrepreneur) category. Under paragraph
245DB of the Immigration Rules he will need 75 points for attributes, made up of
25 points from access to £200,000, 25 points that it is held in one or more
regulated financial institutions and 25 points as the money is disposable in the
UK. The money is held in a regulated financial institution, as it is in Barclays
Bank, and he can access it as it is in his current account.
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Federico will need 10 points for English language. Having a UK degree will satisfy
this requirement without having to do further tests.
Federico will need 10 points for maintenance. He needs at least £3,310 available
as he is entering the UK. He has £55,000 above the £200,000 required so will
satisfy this too.
If his application is successful Federico will be granted 3 years 4 months limited
leave to enter. At the end of this period he will have to demonstrate that the full
amount of £200,000 has been invested, that he is registered with HMRC as a
business, that he is engaged in business activity, that he has created at least two
full-time jobs for people settled in the UK and that he is self-employed or
registered as a director of an existing or new business.
There is no need to satisfy the language requirement again as it would have
been satisfied on entry. He will have to demonstrate that has maintained, and
will continue to maintain himself. He will need to show £945 maintenance funds
for the leave to remain application. After two more years he can obtain
settlement. Alternatively early settlement may be granted after 3 years if 10 new
full time jobs are created or £5 million income has been generated.
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