CHIEF EXAMINER COMMENTS

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1 CHIEF EXAMINER COMMENTS WITH SUGGESTED ANSWERS JANUARY 2019 LEVEL 6 UNIT 8 IMMIGRATION LAW Note to Candidates and Learning Centre Tutors: The purpose of the suggested answers is to provide candidates and learning centre tutors with guidance as to the key points candidates should have included in their answers to the January 2019 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 candidates may have included in their responses to the questions. Candidates will have received credit, where applicable, for other points not addressed by the suggested answers. Candidates and learning centre tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners comments contained within this report which provide feedback on candidate performance in the examination. CHIEF EXAMINER COMMENTS Candidates are advised to prepare adequately, read the questions properly, give answers that relate directly to the questions and write clearly. The key concerns are as follows: 1. Poor preparation 2. Poor planning 3. Lack of knowledge and understanding of the subject area. The general performance in each question was very poor. Only a couple of candidates produced excellent answers to questions and performed to a distinction standard. Some candidates performed reasonably, and others showed a poor level of understanding of the subject area. Candidates who performed poorly appeared to have been very under-prepared. There were more clear fails than expected. Page 1 of 19

2 CANDIDATE PERFORMANCE FOR EACH QUESTION Question 1 Section A Candidates who answered this question did not really understand the requirements of it. The answer needed to address the legal framework for leave to enter and remain in the UK. This necessitated discussion of the Immigration Act 1971 and the duties and powers of the Secretary of State and Entry clearance Officers, as well as the different kinds of leave and conditions that can be imposed. They also needed to explain the nature and purpose of the immigration rules. This question was not answered by many candidates, but the weaker answers did not address the legal points specifically and made very general points that were not always relevant to the question asked. Answers needed to be a lot fuller and more directed at the legal framework of immigration control. Question 2 There were some good answers to this question but also some weak ones. Candidates needed to be more specific in relation to the points needed for attributes, maintenance and language in part A, and the ways in which the points can be achieved. Some candidates did this, but not many. Not all the categories of Tier 2 were always correctly identified. In relation to Part B, more detail was required by the question in relation to the Resident Labour Market Test (RLMT). While candidates usually knew what this was, there were 13 marks available for this question, so much greater detail was needed. The need to advertise the post for 28 days, and the way in which it needs to be advertised needed explaining. Most candidates did not discuss the exemptions from the RLMT (shortage occupations, post study work, postgraduate doctors and dentists, high earners, supernumerary research position, academic leave and high earners) which missed a lot of marks. Question 3 Some candidates did well on this question but many candidates who answered this question showed a lack of understanding in the subject. In part A candidates were better at identifying the qualified persons under Regulation 6 but did not all discuss the family members who qualify under Regulation 7. Only a couple of candidates mentioned the rights of extended family members under Regulation 8, which was a requirement of the question. Part B was not answered as well as Part A and many candidates appeared confused in answer to this question. As the question asked for the factors to be considered when expelling EEA nationals, the focus was on the public interest criteria. However, some candidates answered this in the context of removing and deporting non-eea nationals and therefore did not get credit for the points made. It is very important that candidates read the question carefully and recognise the differences between these types of expulsion. Page 2 of 19

3 Question 4 Some candidates that answered this question produced good answers. However, there was a tendency to focus on the automatic deportation provisions and the question required consideration of both automatic and nonautomatic deportation. Conviction of a criminal offence must carry a sentence of at least 12 months imprisonment, or be a specified offence, to be automatic under s32 UK Borders Act Candidates also needed to discuss other deportations under s3 Immigration Act 1971 and the factors that are considered in deciding whether or not to deport. Question 1 Section B Some candidates attempted this question well, but most did not cover all the areas in issue. In part A, most candidates noted the category of partners, but not all considered dependent relatives, parents, children or children of partners or parents. In part B many candidates did not grasp the domestic violence issue raised by the question, which necessitated discussion of the domestic violence rule in Appendix FM (DVLR) and the necessary documentation to support such an application. Some candidates addressed the issue, but not in the detail required by the question. Many candidates omitted discussion of Appendix FM section EC-PT, the route for a parent who has responsibility for a child who is a British citizen following the breakdown of the relationship with the child s other parent. Some candidates discussed the general requirements for entry under Appendix FM, without targeting the answer to the specific issues raised by the question. Question 2 This was a popular question and there were some good answers to this. Most candidates had some basic knowledge of the visitor rules. This knowledge was not, however, comprehensive in most papers and some of the requirements were mentioned whilst others omitted. Application to the facts of the question was also lacking on many papers. Some candidates lacked awareness of the issues raised by the question in relation to genuineness and intention to leave at the end of the visit. The fact that there was no job to return to, and the applicant had a son who was seriously ill in the UK, would have raised questions regarding intention to leave after 6 months. Question 3 Overall, candidates did not answer this question comprehensively. Whilst candidates often recognised the relevant legal provisions, the answers were basic. There was a lack of application of the legal provisions to the question asked. Candidates were weaker at detailing the evidence required to support the application. There were a lot of marks for this and comprehensive Page 3 of 19

4 knowledge of the application process and evidential requirements was needed for a good grade on this question. Question 4 This was a popular question and answered well overall. Three candidates showed an excellent level of understanding and knowledge in the subject area. With questions on this subject, it is important to provide a comprehensive overview of the requirements and the evidence required in support. While some candidates did this well, other answers contained less detail on the legal principles and evidential requirements. Answers could have used more case law to support the principles at times. SUGGESTED ANSWERS JANUARY 2019 LEVEL 6 UNIT 8 IMMIGRATION LAW Question 1 SECTION A The UK cannot successfully absorb every immigrant attempting to settle in the UK every year. Therefore, controlling immigration in a fair and balanced way is vital to the UK economy. Immigration control is a system of identifying and managing people who want to enter the UK. Terms and conditions of entry are defined on the basis of nationality, length of time and reason that they want to enter the UK. For example, the system of control for EEA citizens is different from the system of control for non-eea citizens. The Immigration Act 1971 is the main piece of legislative framework, which deals with immigration law. The 1971 Act has been substantially amended by subsequent statues to arrive at the current system of control including the recent Immigration Act The Immigration Rules define the rules for entry to and remaining in the UK for those subject to immigration control. The Secretary of State is empowered by section 3(2) of the 1971 Act to make and amend the Immigration Rules. The Immigration Rules contain various categories and purposes for which people can enter or remain in the UK. There are those who are not subject to immigration control according to Section 1(1) of the 1971 Act and they include those with the right of abode. British citizens, and those British nationals, or citizens of Commonwealth countries who were settled in the UK, or married to men settled in the UK, when the 1971 Act came into force, have the right of abode. Those that do not have this right may live, work and settle in the UK by permission and subject to immigration control under Section 1(2). Page 4 of 19

5 In the leading Supreme Court case of Alvi (2012) UKSC 33 it was held that all mandatory and evidential requirements must appear in the Immigration Rules. The main forms of immigration control are: Entry clearance This form of immigration control exists prior to a person leaving their country of residence. Entry clearance applications are made at the British Embassies, Consulates or High Commissions abroad. Entry clearance documents are colloquially known as visas and are always required for visa nationals regardless of the purpose of their travel. Non-visa nationals will not require entry clearance before travelling if they are intending to come to the UK for six months or less. Any national who is applying to stay in the UK for more than six months will always require entry clearance. The person responsible for dealing with entry clearance applications is an entry clearance officer (ECO). Leave to enter This form of immigration control exists at all ports. It is administered by Immigration Officers (IOs), Chief Immigration Officers (CIOs) and Inspectors appointed by the Home Secretary. Leave to enter may be granted abroad or on entry to non-visa nationals for certain categories of leave for six months or less. Non-visa nationals without entry clearance will be subject to detailed examination by an Immigration Officer at the port. Non-visa nationals will be questioned, and their documents thoroughly examined. The Immigration Officer will seek to ascertain whether the non-visa national satisfies the requirements of the immigration rules for the category in which they are seeking to enter the UK. Leave to remain UK Visas and Immigration (UKVI) administer this form of immigration control. UKVI is part of the Home Office and is responsible for making decisions about who has the right to visit or stay in the UK. When applications for further leave to remain are made, the UKVI makes the decision to grant or refuse leave in accordance with the Immigration Rules or on a discretionary basis outside the Rules. Leave to remain may be extended or varied while the applicant s existing leave to remain is still extant. Immigration Enforcement, which is part of the Home Office, is responsible for preventing abuse, tracking immigration offenders and increasing compliance with immigration law. Page 5 of 19

6 Question 2(a) Introduction Under Tier 2 (General), UK employers are able to recruit skilled workers from outside the European Economic Area (EEA) where vacancies cannot be filled by British citizens or EEA workers. An employer must have a sponsorship licence granted by the Home Office to recruit from outside the EEA. Once a licence is granted to an employer, the employer is placed on a Home Office register of sponsors. A prospective employee must achieve a total score of 70 points as follows: 50 points for attributes depending on the category but based on certificate of sponsorship and income; 10 points for English language pass a test/national of Englishspeaking country, or relevant academic qualification UK NARIC approved/ba or MA standard; 10 points for maintenance in personal savings held for at least 90 days before the application or guarantee from A rated sponsor. Categories The four categories under the Tier 2 Skilled Workers route, which allow an employer to recruit skilled workers from outside the United Kingdom and European Economic Area (EEA) are: General An applicant must pass the Resident Labour Market Test (RLMT) for those coming to the UK to fill a shortage occupation. An employer must issue a prospective employee with a certificate of sponsorship (CoS) reference number, generated through the Home Office sponsor management system. Intra Company Transfer (ICT) ICT is split into long term staff and graduate trainee subcategories. ICT applies to existing employees of a multinational employer who need to be transferred to their UK branch, for training purposes or to fill a specific job vacancy that cannot be filled by a settled, British or EEA worker. The maximum period of residence under this category is a maximum of five years. The vacancy to be filled must either be on a long basis or shortterm basis. On a short-term basis, it must be no more than 12 months on a structured graduate training programme. To be eligible the multinational company must have a common ownership link or control to the UK based company. Sportsperson This category is created for internationally established sportsperson or coaches whose employment will make a significant contribution to the development of their sport at the highest level in the UK. Applicants must be endorsed by the governing body for their sport. Minster of Religion For those undertaking religious activities such as preaching and pastoral work and are required take up employment within a faith community in Page 6 of 19

7 the UK. Applicant must show they are competent to take up the role for which they have been employed. Common Requirements for most categories Tier 2 (General) Need to demonstrate skills to show fill gaps in labour market. Must have accepted job offer from UK- based licensed employer that fills recognised gap in UK labour force. 50 attribute points needed. 30 points achieved by: o Shortage Occupation (formerly 50 points); or o Passes Resident Labour Market Test; or o Job offer with annual salary of 159,600 or more. 20 points achieved by appropriate salary 20,800 in specific categories or in others as a minimum. Question 2(b) The Resident Labour Market Test (RLMT) protects the settled workforce by ensuring that all UK employers must advertise the posts to give British and EEA citizens a chance to apply, before it is open to Tier 2 (General) migrants. All UK employers must only recruit a migrant if the RLMT is satisfied. They must show that no suitable settled worker is available to fill the post unless the exemptions apply. Unless the exemptions apply, the employer must first advertise the post in the UK in accordance with the relevant provisions in Appendix A - Table 11B which deals with the advertising methods and duration which satisfy RLMT and Table 11C which deals with the advertising media that satisfy RLMT. Posts must be advertised for 28 calendar days in 2 ways: The post must be advertised for a single continuous period, with a minimum closing date of 28 calendar days from the date the advertisement first appeared, or The post is advertised in 2 stages, with each stage being advertised for no fewer than 7 calendar days but where both stages total a minimum of 28 calendar days. Exemptions to the RLMT apply in the following cases: Continuing to work in the same job The RLMT does not apply where an employee is continuing to work in the same job for which the employee was sponsored in the employee s last grant of visa; Shortage occupation list The RLMT does not apply where the RLMT where the post is on the shortage occupation list at Appendix K to the Immigration Rules Post-study work The RLMT does not apply if a migrant is already in the UK and is applying to switch into Tier 2 (General) leave and has, or was last granted leave to enter, or to remain in, the UK under: Tier 1 (Post-Study Work), Tier 1 (Graduate Entrepreneur), Page 7 of 19

8 The International Graduates Scheme, The Fresh Talent Working in Scotland Scheme, or The Science and Engineering Graduates Scheme. High earners The RLMT does not apply where the total salary package for the post will be 159,600 or above. Academic leave The RLMT does not apply where the Higher Education Institution had previously sponsored a migrant who is returning to resume their post following a period of academic leave. Supernumerary research positions The RLMT does not apply where the job is in a supernumerary research position, over and above normal staffing requirements. This is where the migrant has been issued a scientific research award or fellowship by an external organisation. Postgraduate doctors and dentists The RLMT does not apply if the migrant will be sponsored as a doctor in speciality training, where their salary and the costs of their training are being met by the government of another country under an agreement with the UK government. High value inward investment The RLMT does not apply where the job offer is for the migrant to work in support of a posting from an overseas firm, in connection with the relocation of a high value business to the UK, or a significant new inward investment project. Question 3(a) In accordance with the Treaty on the Functioning of the European Union, (TFEU) and the Directive 2004/38/EC ('the Citizens Directive') European Economic Area (EEA) nationals, their family members are entitled to move freely among Member states to work and study. Free movement rights also apply to family members of EEA nationals. The principle benefit of reliance on EEA law is that EEA law is designed to encourage free movement, unlike UK immigration law which is designed to restrict free movement. Under the rights of admission, all EEA nationals, in accordance with Regulation 1, must be admitted into the UK on the production of a valid national ID card or passport issued by an EEA member state subject to public policy, health and security. This includes those EEA nationals who are subject to deportation or have an extant deportation order. Article 21 TFEU - this confers a general right for citizens of the EU to move and reside freely within member states, subject to conditions and limitations imposed in the treaties and measures adopted to give them effect. Under the rights of residence, all EEA nationals are considered to be resident by virtue of their nationality and do not need to be a qualified person for the first three months of any time spent in the UK. A non-eea family member also has automatic rights of residence during this period. After the initial three Page 8 of 19

9 months period, an EEA national is considered to be a resident if they are a qualified person or have the right of permanent residence. Article 6 of the Citizens Directive this confers a general right of residence in another member state for up to three months without any conditions or formalities, but simply on production of a valid identity card or passport. The countries whose citizens now enjoy rights of free movement around EEA and Switzerland benefit from exercising Treaty rights when engaged in the following economic activities, as set out in Regulation 6 in the Immigration (European Economic Area) Regulations 2016: A jobseeker (Regulation 6(1)(a)) A worker (Regulation 6(1)(b)) A self-employed person (Regulation 6(1)(c)) A self-sufficient person (Regulation 6(1)(d)) A student (Regulation 6(1)(e)) With the exception of a jobseeker, a worker and a self-employed person, the possession of comprehensive sickness insurance cover (private health insurance) is a prerequisite of meeting the definition of a qualified person for EEA nationals and their family members. There are various forms of evidence that a family member of an EEA national may hold to confirm their right of admission by virtue of being a family member of an EEA national: EEA family permit; Residence card; Permanent residence card. A family member is defined by Regulation 7 of the 2006 Regulations as: The EEA national s spouse or civil partner; Direct descendants of the EEA national or of their spouse or civil partner who are under the age of 21 or are their dependants; Dependant direct relatives in the ascending line of the EEA national or of their spouse or civil partner. The right to admission and residence is automatic once such a family relationship has been established. An extended family member is defined by Regulation 8. Extended family members are subject to extensive examination of their personal circumstances. Extended family members include: A relative of an EEA national or of their spouse or civil partner who is residing in an EEA state in which the EEA national also resides and is dependent on the EEA national; A member of the EEA national s household and accompanying or joining the EEA national; A relative of an EEA national or of their spouse or civil partner who strictly requires personal care from the EEA national or their spouse or civil partner on serious health grounds; and A person who is a partner of an EEA national who is in a durable relationship with the EEA national. Page 9 of 19

10 A non-eea family member who has obtained a right of residence under Regulation 10, may retain that right following the death of, departure of, or termination of marriage/civil partnership with an EEA national, who is a qualified person. In these circumstances, family members of an EEA national might acquire independent rights of admission or residence in the UK. Question 3(b) The protection accorded under EU law is strengthened with the period of residence in the UK. For example, the grounds for removals and exclusions are narrowed from public policy, public security, or public health, to public policy and public security, to public security alone. There are also three qualifications for the grounds to expulsion. They are ordinary grounds, serious grounds and imperative grounds. For the first five years of residence, or on initial entry, the grounds for expulsion can only be based on public policy, public security, or public health. Where residency has been for more than five years, but less than 10 years, the grounds for expulsion is based on serious grounds of public policy, or public security. Those with more than ten years residency can only be expelled on imperative grounds of public security. Identifying the level of residence in the UK is important in determining which level of protection is appropriate. A period of imprisonment does not in itself prevent a person accruing 10 years residence and therefore engaging the imperative grounds Regulation 3 of the Immigration (European Economic Area) Regulations However, there is existing case law, which confirms that imprisonment will prevent a person maintaining their status as a qualified person. The relevant factors to consider in public interest expulsion regardless of which ground is applied are as follows: The principle of proportionality must be complied with; The personal conduct of the person being expelled; The person being expelled must pose a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society; The person s previous convictions in context with other factors; The person s age, state of health, family and economic situations. Question 4 The powers which render a non-eea national liable to deportation are split into two forms: (a) Automatic deportation this is applied when a non-excluded person is given a criminal sentence in the UK of over 12 month s imprisonment. The power to make automatic deportation is contained in s32 UK Borders Act 2007 and applies to non-british citizens who have been convicted in the UK of an offence and sentenced to a period of imprisonment of at least 12 months. "Imprisonment" does not include failure to pay fines or compensation. It includes hospital orders and suspended sentences if the term is for at least 12 Page 10 of 19

11 months. It is activated irrespective of the period actually served. Twelve months is a calendar year and 52 weeks is not a sentence that qualifies. The introduction of automatic deportation has limited the use of the court s power to recommend deportation. Where a person is sentenced to more than 12 months, deportation will take place after the sentence has been served. However, where a person is sentenced to less than 12 months, deportation will only take place (after the sentence has been served) if it is decided that it is conducive to the public good to deport: SS Nigeria (2013) (automatic deportation and article 8): SS (Nigeria) makes it clear that a higher weight is applied to the public interest in deportation cases involving serious criminal offences. MF (Nigeria) (2013) (immigration rules and article 8): the exceptional circumstances to be considered in the balancing exercise involves the application of proportionality. Section 32(4) UK Borders Act 2007 creates a statutory presumption that deportation is conducive to the public good and a deportation order must be signed. However, the exclusions to deportation still apply under s33 UK Borders Act The exceptions to automatic deportation are: Deportation would be contrary to the Refugee Convention or European Convention of Human Rights; Deportation will breach an EEA national rights under European law; Where the deportee is a child under the age of 18 at the time of conviction; Where the deportee is facing extradition or has been ordered to serve a sentence or time in a psychiatric institution under the Mental Health Act 2005; Where the deportee is a victim of trafficking. 4(b) Non-automatic deportation this applies when deportation is not automatic, and the Secretary of State considers that the person s continued presence in the UK is not conducive to the public good. This power is contained within s3(5)a) Immigration Act Family members are also considered under s3(5)b Immigration Act Under this power, a sentence of any length is considered, depending on the offence. Although a decision to deport under the Immigration Act is discretionary, there are guidelines to follow in considering deportation, namely: The foreign criminal is a non-eea foreign criminal; The recommendation for deportation is made by a criminal court judge; A custodial sentence of any length is received for a serious drug offence; The foreign criminal is a persistent offender; The foreign criminal receives aggregated or consecutive sentences of 12 months or more; The foreign criminal receives a sentence of less than 12 months imprisonment, but the secretary of state considers the offence has caused serious harm; The foreign criminal has committed a crime overseas and received a custodial sentence of at least 12 months and the crime overseas is also a crime in the UK; Page 11 of 19

12 Other factors considered are age at the time of the offence, length of residence in the UK, links with country of origin and ties in the UK. Where a deportation decision is to be made, whether it is for discretionary or automatic deportation, the secretary of state must identify the person subject to deportation and give them an opportunity to make representations as to why they should not be deported. The leading cases on deportation are Sanade and others (British citizen Zambrano Dereci (2012) UKUT and SS (Nigeria) v Secretary of State for the Home Department (2013) EWCA Civ 550 (22 May 2013). Question 1(a) SECTION B The four categories of family migration, which provide a route to enter and remain in the UK for those with family life are: A partner of a person present and settled in the UK; The purpose of this route, is to set the requirements to be met for those seeking to enter, or remain in the UK on the basis of their family life with a person who is a British citizen (paragraph FM EC-P of Appendix FM). A parent of a child in the UK; This route is intended for a parent who has parental responsibility for; or access to a child where their relationship has broken down and in particular for single parents who have sole parental responsibility; or access rights to their child (paragraph FM EC-PT of Appendix FM). A child of partner or parent; For those children whose parent has; or is being granted limited leave as a partner or parent under Appendix FM. For entry clearance, the child must be coming to the UK with; or to join a parent who has limited leave as a partner or parent (paragraph FM EC-C of Appendix FM). An adult dependent relative; The purpose of this route is to allow an adult British citizen, settled person, refugee, or a person with humanitarian protection to sponsor a parent, grandparent, sibling, or child over the age of 18 to settle in the UK (paragraph EC-DR of Appendix FM) Question 1(b) Mariam should be advised that she should be making an application to remain in the UK as a victim of domestic violence (DV) because she is a partner under Appendix FM. It is vital to show that the relationship has broken down permanently due to DV. There must be a causal link between the violence and the end of the relationship. Domestic violence can be physical, emotional, sexual, or financial abuse. For the case scenario, Mariam was hit across her face, screamed at and emotionally abused by Tom. It must be clear that the Mariam has suffered DV. She will therefore be eligible to apply under the DV category. Page 12 of 19

13 Applications under the DV category only apply to those last granted limited leave as a spouse, civil partner, or unmarried partner of a British citizen, or a person settled in the UK. Mariam was last granted leave as a partner of Tom who is a British citizen. Applications are made on form SET(DV). The normal fees apply but a fee waiver is available for those who can show they are destitute. Mariam is not destitute as she is staying with a friend albeit on a temporary basis. There is no requirement to have current leave at the date of application as long as the relationship broke down due to DV whilst the person had leave. There is no financial or English language, or Life in the UK requirements to meet in a DV category. However, the suitability requirements must be met. Where this requirement is not met, the person is granted 30 months leave rather than Indefinite Leave to Remain (ILR). According to the Home Office Modernised Guidance, certain types of evidence are needed to prove a claim of DV. The following types of evidence should be considered required: An injunction, non-molestation order or other protective order made against the sponsor; A relevant court conviction against the sponsor; Full details of a relevant police caution issued against the sponsor; Medical report from a hospital doctor confirming the applicant has injuries consistent with domestic violence; A letter from family doctors registered with the General Medical Council (GMC) confirming that Mariam was examined by them to be a person who has suffered domestic violence; A police report confirming attendance at the home of the applicant; A letter of support or report from a domestic violence refuge or support organisation, which confirms that Mariam has suffered domestic violence. Statements from friends and family who helped Mariam to flee and accommodated her and Paul are vitally important. Mariam s own account should also be presented. A refusal of an application under DV is not appealable unless a human rights claim can be made out. However, a refusal under DV is an eligible decision under Administrative Review and/or judicial review. Mariam could also make an application to remain in the UK as a parent of a child in the UK under Appendix FM section EC-PT. This route is available for a parent who has responsibility for a child who is a British citizen following the breakdown of the relationship with the child s other parent. This route is for single parents who: Have sole responsibility for their child or; Page 13 of 19

14 Do not live the child but have child arrangement orders for and the child lives with a British or settled parent or carer or; Are the parent with whom the child normally lives with rather than with the other parent who is British or settled. If an application is successful, 30 months leave to remain will be granted on either a 60 months route, or a 120 months route where EX1 has been applied. Where a parent fails to complete the route because the child reaches maturity before settlement has been granted, the parent will need to apply for extension and show that the child remains dependent on them. Mariam could also make an application outside the Immigration Rules on Article 8 grounds. The most suitable option for Mariam would be to make an application under the partner route of Appendix FM because her relationship has broken down due to domestic violence. Question 2(a) Carlos should be advised to apply for a standard visitor s visa by completing the online application process. He would need to book an appointment at a visa application centre where his fingerprints and photographs will be taken. As part of the online application process, he would also be expected to pay the relevant fees and provide a valid travel document. The standard visitor visa replaced the following short-term visas family visitor visa, general visitor visa, child visitor visa, business visitor visa, including visas for academics, doctors and dentists, sports visitor visa, entertainer visitor visa, prospective entrepreneur visa, private medical treatment visitor visa and approved destination status (ADS) visa. There are the core requirements prescribed under the Immigration Rules (V4.2 V4.10). Applicants applying for a standard visit visa must show evidence that they will leave the UK at the end of their visit. Applicants will also need to prove that they are genuinely seeking entry for the permitted purposes and that they will not undertake prohibited activities. A standard visitor can usually stay in the UK for up to six months but in certain situations can stay up to 11 months for private medical treatment, or 12 months on academic on sabbatical and coming to the UK for research. One of the main reasons for a visitor visa refusal is the intention to return. The relevant factors to consider are: Immigration history with regard to previous compliance with UK immigration laws; Family links with home country such as children, spouse, parents for which the visitor is the usual carer; Economic ties with the home country such as job to return, education and business; Levels of income and the evidence to support availability of funds; Absence or otherwise of links in the UK; and Whether a genuine applicant will more likely wish to exchange their life in their home country with life an over-stayer in the UK. Page 14 of 19

15 Question 2(b) There is no right of appeal against the refusal of a visitor s visa. The full right of appeal was removed under s52 of the Crime and Courts Act An appeal may be available if the visit visa amounts to a human rights claim. Article 8 does not impose a general obligation on the UK to respect an individual s choice of country of residence Razgar v SSHD (2004), In general a refusal of a visit visa will not engage human rights. If refusing a visit visa would have a minimal impact on the family life, there will be no breach of the positive duty under Article 8. A breach of Article 8 must be more than technical or inconsequential to be engaged. Article 8 is not engaged where (VW (Uganda) (2009) EWCA Civ 5): Family life is not based on personal contact; There are frequent visits to the applicant s home country; If visiting the applicant s home country is a possibility Carlos wishes to visit his son Josh, who has recently been diagnosed with cancer. Josh is a British citizen and so is his mother. Carlos has a very strong relationship with Josh. They speak regularly over social media in accordance with an existing child arrangement order. Josh has never visited Colombia and could not visit Colombia because of his illness. In considering Carlos application for a visit visa, his family s circumstances will be taken into account and balanced against public interest factors including whether he meets the requirements under the Immigration Rules (V4.2 V4.10). Carlos has recently lost his job as a driver. He has only a small amount of savings, which would question his intention to return to his home country. However, his ex-wife has said she will fund the costs of his visit if he pays the air fare. Consideration will be given to the relationship Carlos has with his son. Carlos relationship has primarily consisted of remote communication albeit with an extant child arrangement order. Any decision to refuse his visit visa must consider if there are reasons for his visit. Carlos wishes to spend time with his 12-year old son who has been diagnosed with cancer. It is clear that a refusal of Carlos visit visa will engage Article 8 rights. Therefore, there will be a right of appeal against a refusal. Question 3 Janet is an Italian citizen, therefore a national of an EEA member state, and benefits from freedom of movement provisions. She has the right to enter and reside in the UK according to the EC Treaty, Council Regulations and Directives and by reference to the Immigration (European Economic Area) Regulations Freedom of movement is a fundamental right under EU law and its basis is economic. Janet will be deemed to be a qualified person because she is currently employed as a Social Care Worker at Johnson & Johnson Care Page 15 of 19

16 Solutions in Hull, UK. The Immigration (EEA) Regulations 2016 set out a list of qualified persons, which includes workers. Zakiel is a Nigerian citizen. Nigeria is not a member of the EU. Zakiel is married to an EEA national and is thereby entitled to benefit from the rights as the spouse of an EEA national as long as Janet continues to be a qualified person. Noah is entitled to work in the UK. Zakiel was previously married to Gladys, who was a Nigerian citizen. They both had 2 children, Emmanuel who was born on 4 April 2005 and Anointed who was born on 5 June Gladys died in 2009 during the birth of Anointed. In accordance with Regulation 7 of the Immigration (EEA) Regulations 2016 and Article 2.2 of the Citizens Directives family members of another person are: Their spouse or their civil partner; Their direct descendants, their spouse, their civil partner who are under 21 or their dependents, their spouse or their civil partner; or Their dependent direct relatives in their ascending line or that of their spouse or their civil partner Both children are under the age of 21 and are dependent on Zakiel and Janet. As there is a relevant family relationship with the EEA national, even though Zakiel s sister has been looking after the children since their mother died in 2009, the children are the ordinary family members of Zakiel and Janet. The children are entitled to enjoy, accompany, or join and reside with the EEA national who has the right to reside in the UK. The supporting evidence required to accompany their application must be original and should include: Completed online application forms for Emmanuel and Anointed; Zakiel s current EEA Residence Card; Janet s Italian passport document; Zakiel and Janet s marriage certificate; Janet s current employment letter; Ezekiel and Janet s joint bank statements; Janet s payslips for the last 6 months; Bills including council tax bills for their current address; Death certificate of the children s (Emmanuel and Anointed) biological mother; Tuberculosis test certificates for Emmanuel and Anointed; Tenancy Agreement for Zakiel and Janet s current home address; Evidence of regular financial support towards Emmanuel and Anointed; Birth certificates for Emmanuel and Anointed; DNA test Report to prove parentage of Emmanuel and Anointed. Question 4 Michelle is able to make a fiancée visa application under the Immigration Rule -Appendix FM Section EC-P 1.1. A fiancée visa allows a couple to come to the UK to get married. After the marriage, a spouse can make an in-country application for an extension as a spouse. A two and a half year probationary period is usually given for spouses GEN 1.2 of the Appendix FM. Page 16 of 19

17 If Michelle s application for a fiancée visa was successful, she will be granted six months leave to enter during which time Michelle and Damien are expected to marry. Employment is prohibited during these six months. Towards the end of Damien s six months visa, and before the visa expires, Michelle and Damien will be expected to apply for leave to remain on the basis of their marriage. If Michelle and Damien are unable to marry during the six months period granted, Michelle must show good cause why the marriage has not taken place and that it will take place at an early date. Michelle will be required to apply for a further six months leave to remain as a fiancée. The requirements that must be satisfied are as follows (paragraph FM ECP of Appendix FM): Michelle and Damien have met In accordance with section ECP 2.5 Appendix FM, Michelle and Damien must show that they have met in person. In order to assess whether a couple have met, Michelle would be expected to provide evidence of when, where and how she met Damien and the existence of a physical relationship together, e.g. letters and photographs as evidence of the relationship. She would expect to provide evidence of her life with Damien, if they lived together previously including the address(es), how long they have lived together and documentary evidence in the form of a correspondence address to both of them at the same address, from utilities, government bodies, local authorities and financial institutions. Michelle and Damien have a daughter, Angela. Michelle would be expected to provide their daughter s birth certificate, where Angela lives now, the length of time she has lived with Damien. Breaks apart should not necessarily be a problem in this category. However, Michelle and Damien would be expected to provide evidence of their relationship continued throughout the period apart, by visits, letters or other forms of evidence. You and your partner intend to live together permanently In order to assess whether a couple intends to live together permanently in accordance with ECP 2.10, the parties are expected to provide evidence of when they decided to marry, where they intend to live, evidence of notice to marry, evidence of arrangements for any reception or celebration, including details of the location, proof of booking and relevant contact. As Michelle and Damien are not currently living together, they would be expected to provide evidence that their relationship is subsisting e.g. letters and photographs as evidence of your relationship. Any previous marriage or similar relationship has to have been permanently broken down. Meet the Financial Requirements and have Adequate Accommodation Michelle will need to meet the financial requirements, stipulated in ECP 3.2, on the basis of Damien s income. Under Appendix FM any application for entry clearance as a fiancée will need to meet the gross annual income of 18,600 with an additional 3800 for the first child and an additional 2400 for each additional child. Page 17 of 19

18 A child is defined in para ECP 3.1 (c) of Appendix FM as: A dependent child of the applicant under the age of 18 or who was under the age of 18 when they were first granted entry; Is applying for entry clearance as a dependent of the applicant or has limited leave to enter or remain in the UK; and Is not a British citizen or settled in the UK and not EEA national with a right to be admitted under EEA Regulations Appendix FM para ECP 3.4 states that accommodation must be adequate for the person coming to the UK. For people seeking entry on a long-term basis there are two main considerations. Firstly, the sponsor must own or exclusively occupy the proposed accommodation. The accommodation can be shared with other members of a family provided that, at least, part of the accommodation is for exclusive use of the sponsor and partner. Secondly, the proposed accommodation must not be overcrowded once the partner arrives. Damien lives in a 3-bedroom house. This satisfies the accommodation requirements. English language ability ECP 4.1 Appendix FM provides that the partner entering the UK [will need to satisfy the English language requirement. Michelle can show this, if her qualifications are not from a recognised English-speaking country, by providing: An original English language test certificate in speaking and listening from an English language test provider approved by the Secretary of State for these purposes, which clearly shows the applicant s name and the qualification obtained (which must meet or exceed level A1 of the Common European Framework of Reference) or An academic qualification (not a professional or vocational qualification) which is deemed by UK NARIC to meet the recognised standard of a Bachelor's or Master's degree or PhD in the UK, and o o Provides the specified evidence to show he has the qualification, and UK NARIC has confirmed that the qualification was taught or researched in English. Suitability requirements Michelle must show she meets the suitability requirements set out in section S-EC of Appendix FM. These requirements mirror the general grounds of refusal in Part 9 of the Immigration Rules. They relate, mainly to criminality, deception and owing money to the NHS. There is nothing in the facts to suggest Michelle falls foul of the suitability requirements. In accordance with Appendix FM ECP 3.2, Damien must provide evidence that he earns at least 22,400 (the required gross annual income of 18,600 with an additional amount of 3800) in his current employment. The financial requirements apply to George because he is 16 years old and a Mozambican citizen. From the facts in the scenario, Damien s gross income from his current salaried employment with Mineral & Gas UK is 38,000 per annum. As this employment started on December 2018, which is less than six months before Page 18 of 19

19 the date of application, Michelle would be required to meet two parts of the requirements of Appendix FM Section 1.7: First, Damien must be in a salaried employment at the date of Michelle s application and has been with Mineral & Gas UK and earning at least 22,400, for less than the last six months. There is no required minimum period for this current employment. Second, Damien must in addition have received in the 12 months prior to the date of Michelle s application, have received a gross salaried income of at least 22,400. The evidence required is set out in Appendix FM SE and includes 12 months bank statements, 12 months wage slips, his most recent P60, a letter from his employer setting out the nature of his employment and how long he has been employed there and his signed contract of employment. Page 19 of 19