IMMIGRATION & ASYLUM RE-ACCREDITATION SCHEME

Transcription

1 IMMIGRATION & ASYLUM RE-ACCREDITATION SCHEME Level 2 WRITTEN EXAMINATION Date: 7 th October 2014 Page 1 of 13

2 INSTRUCTIONS TO CANDIDATES THE INVIGILATORS ARE UNABLE TO ANSWER ANY QUESTIONS ABOUT THE EXAM PAPER. IF YOU ARE UNSURE ABOUT A QUESTION, EXPLAIN THE APPROACH YOU HAVE ADOPTED IN ANSWERING IT. This examination paper contains 13 pages. Please check that you have all pages. The time allowed for this examination is 2½ hours plus 30 minutes reading time. Write in blue or black ink. You must answer all three compulsory questions. Please note that if you do not have sufficient time to set your answers out in full, credit will be given for answers which highlight the points to be made in brief form. Credit may also be given if you indicate matters that you would investigate by further research if you are not familiar with the detail of any particular issue from your practice. Please note that all relevant country information is contained in the questions. No additional marks will be awarded for answers relying on more specialised knowledge. To pass this assessment, candidates must obtain at least 50% of the marks. This paper was set on 2 nd September 2014 and candidates will obtain marks if they show an accurate knowledge of law on that date. Although no one will lose marks for making reference to later developments, this will not earn bonus marks. Page 2 of 13

3 Permitted Materials This means that candidates can take into the examination room any material, including text books, other bound material, downloaded material, personally prepared notes and lecture notes. All documents may be annotated and underlined in as much detail as the candidate requires. Post-it notes are also allowed in this context. Electronic Devices Use of any form of electronic devices, e.g. tablets, phones etc. is not permitted during this examination. Page 3 of 13

4 THIS QUESTION PAPER MUST BE HANDED IN WITH YOUR SCRIPTS AT THE END OF THE EXAMINATION Page 4 of 13

5 Questions1 - Asylum [34 marks] Marie has recently arrived in the UK. She came to the UK using a false passport having left her home country of Sell. Marie tells you that she fled Sell as a result of her involvement in a political opposition group which is called the Salish Freedom Party [SFP] and which is a small political group seeking a separatist state within Sell for members of the Salish clan. The Salish clan has its own language but most members of the Salish also speak some of the national language of Sell. Marie tells you that she was detained in Sell following her attendance at a demonstration for the SFP and that she remained in detention for 3 months after which she was able to escape whilst being transported to another detention centre. Marie also tells you that she was beaten with batons and burnt with cigarettes whilst she was in detention and that she was forced to sign a piece of paper confirming that she would stop supporting the SFP. She tells you that she remained in hiding for a month whilst her uncle made arrangements with an agent for her to leave Sell. Marie also tells you that she has left her passport and ID card in Sell with her parents. Marie has come to see you about her claim for asylum which she made on her arrival in the UK. She is concerned because she used a false passport to enter the UK and has been told that she might face a criminal prosecution as a result. She asks you if there is anything she can do about this. (a) With reference to any relevant Statute, what, if any defence, does Marie have to a potential criminal prosecution? (5 marks) (b) The Secretary of State indicates that she does not accept Marie s nationality or that she is a member of the Salish clan. What evidence might you provide to show the Secretary of State that Marie is a national of Sell and a member of the Salish clan. Give reasons for each piece of evidence. (4 marks) Page 5 of 13

6 (c) The Secretary of State also doubts Marie s account of her escape from detention. You are drafting a witness statement with Marie to address this issue. What information would you seek from Marie to draft the statement? The Secretary of State refuses Marie s application and she appeals against the decision. The Secretary of State serves a bundle of documents on you but not on Marie. Marie wants to know why she has not bene served with the documents. (d) With reference to any applicable rules, explain to Marie why she has not been served with the documents. [4 marks] You attend the hearing to represent Marie at the appeal hearing. She attends with a friend from Sell whom she wishes to give evidence on her behalf. Her friend was detained with her in Sell and has been granted asylum. She has brought her refugee documents with her and a copy of her asylum determination allowing her appeal. (e) You have not met this friend before and so have not had an opportunity to take a witness statement from her. What do you do? (4 marks) (f) Marie s appeal is refused. She wishes to make an application for permission to appeal to the Upper Tribunal. (i) With reference to any applicable rules, how long does Marie have to make an application? [2 marks] (ii) What information must the application contain? [3 marks] Page 6 of 13

7 Marie is granted permission to appeal to the Tribunal. The Upper Tribunal remits the appeal for rehearing before the First-tier Tribunal. The Upper Tribunal also allows Marie to submit further evidence prior to the First-tier Tribunal hearing. Marie tells you that she has extensive scarring from the cigarette burns and beatings that she received whilst in detention. You arrange for a medico-legal report. The Secretary of State alleges that the scarring is caused by self injury by proxy. There is some background evidence that self injury by proxy exists. (g) Should the medical-legal report address this issue? [4 marks] (h) Marie s appeal is allowed and the Secretary of State does not appeal. Marie is granted refugee status. Marie is in the process of applying for a travel document. She comes to see you for advice. Marie tells you that she had received a caution for shoplifting and she is worried that this will mean that she is not entitled to a travel document which means that she will not be able to travel. With reference to any applicable rules, will Marie be entitled to a travel document? (2 marks) Page 7 of 13

8 Question 2 - Immigration Law [33 marks] Zahra is a citizen of Bahrain. She came to the UK in 2004 as the dependent child of her father (who had indefinite leave to remain). She was 14 years old at the time. In 2008, she was granted indefinite leave to remain. In 2011, she met and married Syed (who is also a Bahraini citizen) in an Islamic nikah ceremony at their local mosque. Syed was and continues to be a government sponsored student and currently has leave to remain in the UK until February 2017 as a Tier 4 (General) Student. He is studying for a Ph. D. in Nanonuclear Science. His government sponsorship extends to bearing all of the costs of his studies and the living costs of himself and any dependents. Since his Islamic nikah with Zahra, he has been provided with a three bedroom flat and a monthly allowance of 2500 for living costs which is paid via the Bahraini Embassy in the UK. The Bahraini government has made it clear that should this amount not be enough, Syed can apply for an increase in his monthly allowance. In 2012, Zahra gave birth to a baby girl, Aisha. Aisha holds British citizenship. In the latter part of 2013, Zahra becomes pregnant with the couple s second child. The couple had a civil registry marriage on 19 December Due to a family emergency, Zahra travels to Bahrain with Aisha in early On 7 July 2014, whilst still in Bahrain, she gives birth to a baby boy, Faisal. Syed and Zahra contact you to find out whether, like his sister, Faisal, is a British citizen. a) What is your advice? You must make reference to relevant legislative provisions in you answer Zahra is currently in Bahrain with Faisal. She has obtained a Bahraini passport for him. Zahra understands that she must obtain entry clearance before Faisal can travel with him to the UK. b) Advise Zahra on the most appropriate basis upon which to apply for entry clearance for Faisal and why? You must cite relevant Immigration Rules in your answer. Page 8 of 13

9 c) On the facts available to you, explain how each of the requirements of the Immigration Rule you identified your answer to b) above is satisfied. You assist Zahra and Syed in making an application for entry clearance for Faisal. The application is refused and you appeal the decision (citing Zahra as Faisal s litigation friend). Two weeks before the appeal is due to be heard, Syed is sent to the USA by his university to carry out urgent research and will be away for ten weeks. You had planned to call Syed as a witness in Faisal s appeal hearing. Zahra and Syed instruct you to attend the hearing to represent Faisal. d) In view of the fact that Zahra, Syed and Faisal cannot attend the appeal hearing, can the judge hear the appeal? You must cite relevant statutory provisions in your answer. (5 marks) The appeal is allowed. The ECO applies to the FTT(IAC) for permission to appeal to the UT(IAC). The FTT(IAC) refuses to grant permission to appeal. The ECO renews the application for permission to the UT(IAC) which grants permission. You are notified of the fact that permission has been granted and sent a copy of the permission application and the grounds upon which it is based. You form the view that the ECO s grounds are completely misconceived and wrong in law. e) What action could you take in order to set out your position? Are there any time limits in relation to any action you might take? You must refer to relevant Rules in your answer. (5 marks) The ECO s appeal is ultimately dismissed by the Upper Tribunal. By the time entry clearance is issued to Faisal, Zahra has been away from the UK for two years and three weeks. Page 9 of 13

10 f) Will the length of Zahra s absence from the UK have any impact on her readmission into the UK? Explain your answer by reference to relevant Immigration Rules. (5 marks) Page 10 of 13

11 Question 3 - EEA [33 Marks] IMPORTANT: You are required to cite the relevant regulations, where applicable, to score full marks Vivek was born in Goa, India. He has been married to Shanti for eight years and they have a daughter together, Rekha, who is seven years old. Earlier this year, he made an application for Portuguese citizenship at the Portuguese Embassy in India. Last month, he was informed that he had been granted Portuguese citizenship and a week ago, he received his Portuguese passport. Vivek s older brother, Krishan, lives in the UK and Vivek decides to visit Krishan for three weeks. Vivek is aware that he can travel to the UK and enter without difficulty. However, he wants both Shanti and Rekha to accompany him on the visit. They have booked tickets to travel to the UK in two months time. They contact you by . a. Advise them on what rights, if any, Shanti and Rekha would have to visit the UK with Vivek? Explain your answer. You must cite relevant Regulations in your answer b. Advise the family on whether Shanti & Rekha should apply for entry clearance before travelling. Explain the reasons for your answer by reference to relevant legislative provisions. (5 marks) c. What documents can Shanti and Rekha apply for before travelling? Does the ECO have any discretion as to whether such documents should be issued? Give reasons for your answer. You must cite relevant Regulations in your answer. Vivek, Shanti and Rekha arrive in the UK. They stay for four weeks instead of three. During the final week of their visit to the UK, Vivek is offered a job by the company Page 11 of 13

12 that employs Krishan. He starts working immediately and the family stay in UK. Vivek comes to see you. He tells you that his younger sister, Jaya, who is 23 years old, lived with him in India. After the death of his parents some years ago, he took responsibility for Jaya and he has paid for her education and has supported her financially. She will graduate from the University of Goa next month. He left some money with her for her living costs when he left India. Now that he has decided to stay in the UK, he will be sending her some money for her support when he receives his salary at the end of the month. However, he is unhappy at the notion of leaving a young, single woman in India on her own. He wants to know if Jaya can join him in the UK. (d) Explain, with reasons, whether Jaya can join Vivek and his family in the UK. You must cite relevant Regulations in your answer. It is now twenty months later. Shanti comes to see you. She tells you that five months ago, Vivek started divorce proceedings. The decree absolute came through last week and at the same time Vivek also took full custody of Rekha. The breakdown in their marriage was very fractious and they do not have any contact with each other. Shanti now rents a room at a friend s house and has been working for the past twelve months. She earns enough money to support herself. She wants to know what effect the divorce will have on her status in the UK. FOR THE REMAINING QUESTIONS, ASSUME THAT THERE IS NO CONFLICT IN ADVISING/ACTING FOR SHANTI. (e) Advise Shanti on what rights of residence, if any, she now has. Give reasons and cite relevant Regulations in your answer. You make an application for a residence card on the basis of your advice in answer to e) above. However, despite making efforts to contact Vivek, Shanti has not been able to get him to help her in any way. The application is refused because Shanti was unable to provide evidence in relation to Vivek s status as a qualified person. Page 12 of 13

13 You appeal the decision. The appeal hearing is in four weeks time and you still do not have any evidence establishing that Vivek was a qualified person at the relevant time. Shanti tells you that Vivek has been and continues to be employed by the same employer with whom he started working after his arrival in the UK. f. What applications, if any, can you make to the FTT(IAC) to resolve this problem? You must cite relevant Rules in your answer. (4 marks) Page 13 of 13