IMMIGRATION & ASYLUM ACCREDITATION SCHEME

Transcription

1 IMMIGRATION & ASYLUM ACCREDITATION SCHEME Level 2 WRITTEN EXAMINATION Date: 7 th October 2014 Page 1 of 20

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 20 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 and one optional question. This examination is divided into two parts. Part One contains 3 questions covering compulsory subject areas. Each question will carry 23 marks. You must answer all questions. Part Two contains the questions for the optional subjects. You must only answer ONE optional subject question which will carry 31 marks. Note that if you carry out publically funded work you must answer either Option A or B only, NOT Option C. 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. Page 2 of 20

3 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. 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 20

4 THIS QUESTION PAPER MUST BE HANDED IN WITH YOUR SCRIPTS AT THE END OF THE EXAMINATION Page 4 of 20

5 PART ONE COMPULSORY QUESTIONS Candidates must answer all 3 compulsory questions Page 5 of 20

6 Questions1 - Asylum [23 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? (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 6 of 20

7 (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? (6 marks) 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) Page 7 of 20

8 Question 2 - Immigration Law [23 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 (6 marks) 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. (6 marks) Page 8 of 20

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. (6 marks) 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. Page 9 of 20

10 Question 3 - EEA [23 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 (6 marks) 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. 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. (6 marks) Page 10 of 20

11 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 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. (6 marks) Page 11 of 20

12 PART TWO OPTIONAL QUESTIONS Candidates must answer only ONE of the three optional questions If candidates answer more than one optional question only the first question answered will be marked ** If you carry out publically funded work you must only answer either Option A or Option B** **Option C is only for those NOT carrying out publically funded work** Page 12 of 20

13 Option A - Asylum [31 marks] Guy arrived in the UK in December 2012 with leave to enter as a Tier 4 (General) Migrant valid until 13 th August On 12 th August 2014 he made an application for asylum. He was detained when he attended the Screening Unit for his initial interview. His case is not a fast track case. Guy has contacted you from the detention centre for advice regarding his asylum claim. He tells you that Immigration Officers wish to interview him regarding his asylum claim which he made 2 days ago and that he has asked for time to consult a legal representative but has been told by the Immigration Officer that he is to be interviewed tomorrow and that there is no obligation on the Secretary of State to allow him to find legal advice. (a) With reference to any applicable Immigration Rules, is the Immigration Officer correct? [5 marks] (b) Guy has heard from other detainees that he should not be detained because his leave to remain was extended as a result of him making an in time application to vary his leave. He asks you whether he can challenge the lawfulness of his detention on this basis. Guy s claim for asylum is based on his ethnicity. He is a member of the Yali clan and tells you that the Yali clan are targeted by members of the Mar clan who have attacked members of the Yali clan causing death and serious injuries to number of members of the Yali clan. The Mar clan are not part of the government but they are a significantly larger ethnic group than the Yali clan. Guy tells you that although the Mar are not part of the government, the state has not provided protection to the Yali because the police in his country do not like members of the Yali clan and are ineffective. He tells you that although there are laws in place criminalising attacks on an ethnic basis, the police do not enforce them. Page 13 of 20

14 (c) With reference to any applicable statutory instrument, is Guy able to show that he is not adequately protected? (d) Guy s claim for asylum is refused. He appeals against the decision and his appeal is heard by the First-tier Tribunal. You are explaining the procedure to Guy and he asks you whether he will have to give his evidence on oath. With reference to any applicable Rules does Guy have to give his evidence under oath? [3 marks] (e) You are preparing Guy s appeal and are preparing a background information bundle regarding the problems faced by the Yali clan. What evidence might you include in the bundle? (3 marks) Guy s appeal is refused. You make an application for permission to appeal to the Upper Tribunal but the application is refused. You renew the application for permission to appeal to the Upper Tribunal and the application is refused again. Guy wants to know whether he can make any further applications to challenge the Firsttier Tribunal decision. (f) With reference to any applicable Procedure Rules, what other application, if any, can Guy make? The Secretary of State withdraws Guy s decision following a change in circumstances in his country whereby the Mar clan is now in government. The Secretary of State grants Guy refugee status. Guy comes to see you for advice about family reunion because he has a wife and child in his home country and wishes to apply to bring them to the UK. Guy has made an application for his wife and child to join him in the UK. The applications have been refused because the ECO is not satisfied that his wife and child are related to him as claimed. Guy is not working and is concerned about the costs of a DNA test and an appeal. Page 14 of 20

15 (g) He asks you whether an appeal against the decision will be covered by legal aid. What is your advice to him? Page 15 of 20

16 Option B: Immigration Law [31 marks] Thoko is British citizen. She met Steve, who is from Nigeria, approximately two years ago. They formed a relationship and he started living with Thoko fourteen months ago. They were married last month at their local Registry Office. Steve arrived as a visitor to the UK four years ago but decided to stay here despite the expiry of his visa. Thoko was aware of the fact that Steve was an overstayer before they got married. Steve also worked illegally in a restaurant for five months last year. He was picked up in a Home Office raid on the restaurant he was working in, detained for a couple of days, questioned and then released after being served with papers. The papers he was served with required him to report fortnightly to the Local Enforcement Team. He tells you that after reporting for the first two months, he stopped reporting because he was worried that he would be detained again. He and Thoko have decided that Steve is going to return to Nigeria at his own expense. Their plan is that Thoko will then sponsor him to return to the UK as her spouse under the provisions of Appendix FM. a) How soon after returning to Nigeria can Steve submit an application for entry clearance to return to the UK as Thoko s spouse? Explain you answer by reference to relevant Immigration Rules. (4 marks) b) What further advice would you give Steve in relation to the applicability or otherwise of the general grounds of refusal in Part 9 of the Immigration Rules to any application he makes under Appendix FM. Explain your answer by reference to relevant Immigration Rules in your answer. (6 marks) Steve also tells you that six months ago, he was arrested and charged with assault following a fracas outside his local pub. He was tried and convicted at the Magistrates Court and given a conditional discharge for one year because he was Page 16 of 20

17 able to produce evidence that he was trying to stop a fight between some acquaintances. c) Steve wants to know whether this conviction will adversely affect the entry clearance application he intends to make and whether he should answer Yes or No to the question in the application form that asks about previous convictions. Give reasons for your answer and cite any relevant case law. d) How would you answer differ if Steve had been sentenced to pay a fine of 1000 following his conviction? You must make reference to relevant Immigration Rules in your answer. Steve returns to Nigeria and, in accordance with your advice, submits an application for entry clearance. The application is refused and you prepare grounds of appeal on his behalf. Your colleague, who completed the IAFT2 form, inadvertently forgot to complete the fee payment page of the form. e) What effect, if any, will this have on Steve s appeal? (2 marks) f) Does the FTT(IAC) have a power to make any form of order in relation to any of the costs associated of Steve s appeal? You must cite relevant Rules in your answer. (3 marks) The appeal is successful and Steve is issued with entry clearance. g) What conditions does his visa have to satisfy in order to have effect as leave to enter the UK? You must refer to relevant Immigration Rules in you answer. (3 marks) Page 17 of 20

18 h) After his arrival at a UK port, in what circumstances can an Immigration Officer cancel an entry clearance that has effect as leave to enter? You must refer to relevant Immigration Rules in your answer. (3 marks) Page 18 of 20

19 Option C Managed Migration [31 Marks] MUST NOT BE ANSWERED BY THOSE UNDERTAKING PUBLICLY FUNDED WORK Omar and Ibrahim are your clients. They are nationals of the United Arab Emirates (UAE). They are brothers and successful businessmen. They jointly operate Oil Al Taqa (OAT) group of companies in the UAE. OAT is a highly successful general trading and marine fuel logistics outfit. It commenced its operations in 2001 and has quickly developed to become one of the UAE s leading Petroleum Companies under the stewardship of your clients. It is their wish to expand their base/operations to the United Kingdom. They have formed an entrepreneurial team and would jointly be utilising the relevant/applicable investment funds. They are currently looking into investing around 300,000 into the company, which they wish to establish in the UK. a) Advise Omar and Ibrahim on the most appropriate category under the immigration rules they can apply for entry clearance. Explain the requirements they would have to meet. You must cite relevant Immigration Rules in your answer. b) Will your answer be different if brothers were in the UK as students and instructed you to help them switch from Tier 4 (Student) category to the most suitable category? Please explain your answer. (3 marks) c) List the items of evidence Omar and Ibrahim should submit in support of their entry clearance application. Please give reasons for submitting each document. (6 marks) Page 19 of 20

20 d) The brothers ask you what will happen if application is refused. Please advise Omar and Ibrahim whether they can do anything about the refusal and if they can, what is the procedure and time limits for doing so? e) What immigration conditions (if any) will be imposed on their stay in the UK? You must cite relevant Immigration Rules in your answer. (3 marks) f) What is likely to happen if the applicants fail to comply with any conditions attached to the grant of leave to enter? You must cite relevant Immigration Rules in your answer. (2 marks) For the purposes of this question only consider that Omar and Ibrahim are both married and want their wives and children to join them in the UK. Omar has three children and Ibrahim has two. All of the children are under 18. g) How much savings in total (for both families) should the applicants have in order to meet the maintenance requirement? Please explain your answer. (2 marks) h) For the purposes of this question only consider that Omar and Ibrahim s respective leave to enter applications were successful. They asked you to advise them whether they can extend their periods of leave to remain and if so what are the requirements. Page 20 of 20