LEVEL 6 - UNIT 8 IMMIGRATION LAW SUGGESTED ANSWERS JANUARY 2011

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1 Note to Candidates and Tutors: LEVEL 6 - UNIT 8 IMMIGRATION LAW SUGGESTED ANSWERS JANUARY 2011 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 2011 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 A person can be administratively removed; If they have breached the conditions of their stay Have obtained or sought leave to remain by deception Have indefinite leave to remain revoked Directions have been given under s10 for the removal of a person to whose family he belongs (s10 Immigration and Asylum Act 1999) Before concluding that a person must be removed under s10 the SoS must consider the following factors (para 395C HC 395): Age Length of residence in the UK Strength of connections with the UK Personal history, including character conduct, and employment Criminal record and the nature of the offence committed Compassionate circumstances Any representations on the person s behalf. Where a person ceases to be a refugee, his indefinite leave to remain can be revoked under s76(3) Nationality, Immigration and Asylum Act 2002 and he can then be returned to his country unless there is some other basis on which can remain here. The categories of non-eea citizens who can be removed are: Those subject to automatic deportation under s32(1) UKBA 2007 Those whose presence in the UK is considered not to be conducive to the public good (s3(5)(a) Immigration Act 1971) (IA 1971) Those recommended for deportation by a court as part of a criminal sentence (s3(6) IA 1971). The main differences between administrative removal and deportation are in process and impact: Page 1 of 15

2 Deportation can only take effect once an Order has been signed Other than in the case of automatic deportations, the decision to deport attracts a right of appeal Administrative removal does not generally attract a right of in-country appeal unless there are asylum or ECHR grounds. Once deported an individual cannot seek to re-enter the UK until the deportation order has been revoked Certain individuals have immunity from deportation i.e. British Citizens and certain Commonwealth citizens and Irish Citizens EEA citizens cannot be administratively removed but can be removed in a limited set of circumstances, that is, on grounds of public policy, public health and public security. (Reg 21 EEA 2006: Art 27 Directive 24/38 EC). An illegal entrant is liable to removal and is a person: Unlawfully entering or seeking to enter in breach of a deportation order or of immigration laws Entering or seeking to enter by means which include deception by another person Having already entered by any of these unlawful means (s33(1) IA 1971) It should be noted that once a person has been notified of a decision to make a deportation order he may appeal. However, in the case of a decision to administratively remove a person or to remove a person who is an illegal entrant, the right of appeal will not usually be available until after the removal has taken place. The exception is where the person due to be removed has made an asylum or human rights claim whilst in the UK (see s82 Nationality, Immigration and Asylum Act 2002) (NIAA 2002). There is a common set of rules relating to the deportation or administrative removal of family members. The SoS has power to deport a family member unless: He has qualified for settlement in his own right He and his mother or father have been living apart from the deportee He is a child who has left home and established himself independently, or He is a child who married before the deportation came into effect (see paras HC 395) Those who are administratively removed can apply for re-entry immediately, but the rules relating to the re-entry of those deported are far more restrictive. Thus, a person subject to a deportation order cannot enter the UK, unless a deportation order has first been formally revoked by the SoS (see paras 390 to 395 HC 395). Deportation orders made following a criminal conviction will not be considered for revocation until after 10 years. Where there was no criminal conviction then the revocation will not be authorised unless the situation has been materially altered by a change in circumstances since the order was made or by fresh information. Question 2 (a) A person may fear persecution in only one area of his country but there are other parts of his country where he may be safe and therefore he may not be a refugee for the purposes of the Refugee Convention 1951 (RC 1951), referred to as the internal flight alternative or internal relocation. Art 8 Qualification Directive (QD) requires decision makers, when deciding whether an asylum claimant could seek refuge in another part of his country to consider whether it is reasonable to expect him to stay in that part of the country. Reasonableness is assessed by reference to the general Page 2 of 15

3 circumstances prevailing in that part of the country and the personal circumstances of the applicant (see para 339O HC 395). The issue of reasonableness will be determined without reference to the technical difficulties of an individual returning to part of his country. Internal relocation does not arise unless the individual can be said to have a fear in some part (if not all) of his country of origin. The tests as to the factors to take into account when considering the reasonableness of internal relocation are to be found in Januzi v SSHD [2006] (confirmed in AH (Sudan) and others (FC) [2007]) The test focuses on whether it was reasonable from the point of view of the asylum seeker to relocate, with consideration to be given to issues such as the risk of breach of nonderogable rights and to a person s socio-economic survival. In Januzi the House indicated that, taking account of all relevant circumstances pertaining to the claimant and his country of origin, the court must decide whether it is reasonable to expect the claimant to relocate or whether it would be unduly harsh to expect him to do so. (b) Article 1F RC 1951 refers to activities outside the country of refuge and allows exclusion from protection where (a) there are serious grounds for considering that a person has committed a war crime or a crime against humanity, JS (Sri Lanka) [2009] stated that what constituted an international crime should be determined by reference to Rome Statute of the International Criminal Court. Therefore participation in a common enterprise must have been with the intention of perpetrating a crime under the Statute. (b) a serious non-political crime outside the country of refuge has been committed i.e. an act too serious and too remote from the political objective for the political objective to be achieved (T v SSHD [1996]) e.g. an indiscriminate terrorist act. (c) the person has been has been guilty of acts contrary to the purposes and principles of the UN. Little more than membership of a proscribed organisation would be necessary if it is predominately terrorist in character Gurung [2003]. However the personal and direct level of involvement of an individual was crucial (MH and DS v SSHD [2009]: KJ v SSHD [2009]). s54 IANA acts contrary to the purposes and principles of the UN shall include committing, preparing and instigating terrorism encouraging and inducing others to commit, prepare or instigate terrorism. The QD, reg 7 RQR extends the scope of Art1F(a) and 1F(b) to persons who instigate or otherwise participate in the acts in Art 1F(a) & (b). Particularly cruel actions, even if committed with a political objective, may still fall within the exclusion clauses. (c) RC 1951 to be a refugee, persecution must be for race, religion, nationality, membership of a particular social group or for holding a political opinion. The starting point for consideration of the reasons is now Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (RQR 2006) and Art 10 QD where race includes consideration of colour, descent or ethnicity. This is not however an exhaustive list (Art 10(1)(a) QD and Reg 6(a) RQR 2006). RQR 2006 religion defined as including those holding theistic and non-theistic and atheistic beliefs (reg 6(b) RQR 2006). Formal worship private or communal not necessary. Key issue is whether the particular belief or non-belief has given rise to persecution. RQR 2006 nationality includes citizenship or non-citizenship, membership of a group defined by cultural, ethnic or linguistic origins or those relating to geographical or political origins or relationship with the population of another state. Membership of a particular social group has Page 3 of 15

4 been a difficult issue for the UK courts (see Shah v Islam [1999]). QD: RQR members of particular social groups should share a particular innate characteristic or a common background that cannot be changed or a belief so fundamental to identity that they should not be required to change it. A group must have a distinct identity in its own country that is perceived as being different from the rest of society. Those of a particular sexual orientation are recognised as being capable of constituting a social group. Art 10 QD and reg6 (f) RQR 2006 extend the concept of political opinion to include the holding of a political opinion whether or not it is acted upon. This definition retains the notion that persecution must be founded on grounds of political opinion not political activity and seems to extend to imputed political opinion. Question 3 The fact that an individual is settled in the UK does not exempt him from immigration control. Thus every time such a person travels outside the common travel area and wishes to be re-admitted leave to enter may be required. If, however, that person has indefinite leave to enter or remain there are special provisions that apply which are contained in para 18 HC 395. This paragraph provides that a returning resident may be admitted for settlement if the IO is satisfied that he: Had indefinite leave to remain when he last left the UK Has not been away from the UK for more that two years Did not receive help from public funds towards the cost of leaving in the UK Now seeks admission for the purposes of settlement It is important to note that indefinite leave to remain does not lapse unless the holder is away from the UK for a continuous period of two years (paras. 20, 21 HC395: Immigration (Indefinite Leave to Remain) Order 2000). This means that a person with indefinite leave will not require leave to enter if returning within the two-year period. If that person remains outside the UK for two years his leave will only lapse if the absence is continuous. However, a person may still be re-admitted under para 18 HC 395 if he has been away from the UK for two years, if he comes within para 19 HC 395. This paragraph states that notwithstanding an absence of more that two years a person may be admitted as a returning resident if, for example, he has lived here most of his life. It is designed to avoid the inherent inflexibilities of para 18 and should be interpreted to give effect to this purpose (Entry Clearance Officer, Dhaka v Armat Ali [1981]). The discretion under para 19 does not however extend to granting resident status to someone who did not have indefinite leave to remain when they left the UK (ECO Bombay v Noromba [1995]). Examples of factors to be considered, other than having spent most of a lifetime in the UK, were given in SSHD ex parte Ademuyiwa [1986], a case which now forms part of the guidance to decision makers in this area. These factors include: The length of an applicant s original stay in the UK The length of time spent outside the UK by an applicant (the longer the absence the less likely an applicant will qualify) The reason why the applicant did not return and whether it was his fault (e.g. illness may have prevented his return) (see Khokakhar (1981)) The current intent of the applicant in returning now to the UK The strength of family ties in the UK and whether those ties have been maintained in the applicant s absence Whether the applicant has a home in the UK and whether, if re-admitted, he intends to live in that home. Page 4 of 15

5 A person who fails to be re-admitted under para 19 may still be admitted on the same basis as originally granted. The exceptions to the two-year rule relate to persons who have accompanied a spouse in HM Forces, a permanent member of HM Diplomatic Service or a comparable member of the British Council on a tour of duty abroad. The case of Immigration Appeal Tribunal ex parte Coomasuru [1983] provides important guidance on the situation where a person who once had indefinite leave to remain but following an absence of more than two years lost that status and was granted leave to enter as a visitor. In Coomasuru the issue was could the time limit on such person s stay be removed? The Court of Appeal considered two scenarios. The first related to an entrant who is quite happy to be admitted for a limited period, but after entry changes his mind and decides to apply to remain permanently. In this case the applicant cannot be considered as a returning resident. In the second situation, a person who always wanted to be considered as a returning resident and informed the IO accordingly, is entitled to rely on the returning resident rule and can have his application for removal of the time limit on his stay considered under para 19. Those individuals with long residency in the UK whether legal or illegal may be granted indefinite leave to remain if they fall within paras 276A-D HC 395. To qualify a person must show that he has had continuous residency in the UK and that it has not been broken by: Removal or deportation or refusal of leave to enter or remain Departure from the UK with evidence of a clear intention not to return or with no expectation of being able to lawfully return Conviction of an offence with a sentence of imprisonment or detention in an institution other than a prison Spending more that total of 18 months away from the UK Continuous residency means 10 years continuous lawful residency or 14 years continuous residency. Where residency has been unlawful, any period following service of a removal direction or a decision to deport cannot be counted as part of the 14 years. Continuity will not be broken where there are absences of up to six months at a time not equalling 18 months in total (see para 276A HC 395). There is some flexibility in that the HO will allow one short break in continuity between expiry of limited leave and the application for further leave. The SoS, as well as considering the wider public interest, uses the following factors to determine whether a person should be allowed to remain: Age Strength of connections with the UK Personal history Previous criminal record Compassionate circumstances Any representations made on the person s behalf An applicant must also show that he has sufficient knowledge of English and life in the UK. Failure to pass the language and life test, will, subject to the other criteria being met lead to the grant of leave to remain for up to two years. A person who has spent less that 14 years in the UK will in these circumstances be granted leave subject to any conditions last attached to a leave to remain. Successful applicants will, however, be granted indefinite leave to remain. Critical to any application for indefinite leave of the basis of long residency is proof of the date of entry to the UK, which may be difficult for those who entered illegally. Page 5 of 15

6 Question 4 (a) The rights of family members in relation to an EU national exercising Treaty rights in the UK derive from their relationship with that national. Consequently, the rights of residency in the UK depend upon the basis on which the EU national is exercising the right of residence in the UK. Under Art 6 Directive 2004/38/EC the general right of residence for up to three months extends to family members regardless of whether they themselves are EU nationals. Similarly, Art 7 extends the right of long term residency to family members of EU nationals who are workers (Lawrie-Blum [1987]), self employed, self-sufficient or students. Family members are defined by Art 2 as spouse or registered partner, direct descendants of either partner who are under the age of 21 or dependent on the EU member or his spouse, dependent relatives in the ascending line. Art 3 widens the definition by including, other family members who are dependents or members of the household of the EU national in the country from which they have come. Family members with serious health problems requiring care of the family member by the EU citizen and partners with whom the EU citizen has a durable relationship duly attested are also included. Where the EU citizen is studying in the UK the definition of family members is narrowed to, spouse, a registered partner, or dependent children their spouse or registered partner. Under Arts 12 and 13 the status of the family members of an EU citizen continues if the EU citizen dies, leaves the Member state in which he was exercising Treaty rights or if the relationship ends in divorce or annulment, or a registered partnership is terminated. Thus the rights of the family member are not affected as long as they are exercising Treaty rights. For family members who are non-eu citizens they will not lose the right of residence if the EU citizen partner dies or leaves the host state provided that they have been residing in the EU state for at least one year. Where the marriage ends in divorce or annulment a non-eu spouse may also retain the right of residence provided that: Prior to divorce or annulment the relationship had lasted for more than three years of which at least one was in the host state By agreement or court order, the non-eu spouse or partner has custody of the couple s children or custody is assumed in difficult circumstances such as domestic violence By agreement or court order, the non-eu spouse or partner has access to a minor child Where an UK citizen with a non-eu spouse or partner is exercising Treaty rights in an EU state and later the couple enter the UK for the purpose of the UK citizen exercising a Treaty right, such as employment or business, then his spouse or partner s right of residence is governed by EU rather than domestic law. (see IAT and Surinder Singh ex parte SSHD and Immigration (EEA) Regulations 2006). Consequently on a subsequent divorce etc it is EU law that applies to the non- EU spouse or partner. It should also be noted that in contested cases concerning non-eu citizens where family life may be affected, the courts have invoked Art 8 ECHR as well as EU law to ensure that the right to family life is protected (see Akrich [2004] and Carpenter v SSHD [2002] both ECJ cases). (b) There are three groups of workers in EU states who do not enjoy full freedom of movement under Directive 2004/38/EC but for whom arrangements are in place to permit them to come to the UK to work without going through the points based system. Page 6 of 15

7 Under Accession (Immigration and Worker Registration) Regulations 2004 citizens of eight of the ten accession states who are to be employed or who are seeking employment in the UK must register under the Workers Registration Scheme. These Regulations specifically derogate from the abolition of restrictions on residence and movement embodied in the EC Treaty in respect of the accession states excluding Malta and Cyprus. This scheme, which is compulsory, requires workers who take up new employment after 1 May 2004 to register with the Home Office within one month of getting employment. Once registered the worker will get a registration card and after 12 months registration he can apply for an EEA residence permit and is exempt from further registration. Fresh registration is required if the worker changes his job. Nationals of accession states within the scheme can get permanent residence after 5 years in the same way as other EEA nationals. Nationals of Bulgaria and Romania, although now states within the EU, do not enjoy the enhanced freedom of movement for employment enjoyed by other EU nationals. These nationals may come to the UK and reside here for three months, and, if they are exercising such Treaty rights as they are entitled to enjoy, may apply for a residency certificate. They cannot exercise all Treaty rights and so far as working is concerned, those wishing to do must work under the work permit scheme now abolished for all other nationals. The categories of work permits available are: Business and commercial Training and Work Experience Sports and entertainment Student internships Low skilled work in certain sectors. The only exceptions are for workers who worked in the UK continuously before 1 January 2007 or those with leave to remain that includes permission to work. Those seeking to come to the UK as a Tier 1 migrant must do so through the points based scheme. Once the worker has been employed continuously for 12 months, the restrictions no longer apply and he will enjoy the same rights as any other EEA national. (see Accession (Immigration Worker Authorisation) Regulations 2006). It should also be noted that where a company is established in an EU member state and carries out a contract in another EU state its non-eu national workforce can be transferred with other workers for the length of the contract or project (see Rush Portuguesa Lda v Oni (1990)). Question 1 SECTION B (a) As a Chilean national Genaro is subject to immigration control in the UK. Currently he has limited leave to enter as a student. There is no bar on him marrying whilst he is studying in the UK provided that he can meet the requirements of s19 Asylum and Immigration (Treatment of Claimants) Act 2004 (AI(TC)A 2004). Magda on the other hand is an EU citizen with Treaty rights to travel to the UK for the purpose of study and is therefore not subject to immigration control. Consequently, the main issue is whether Genaro can comply with the requirements of the 2004 Act. As he does not have entry clearance specifically for the purpose of getting married in the UK he must first get a certificate of approval to marry from the SoS. At the moment a certificate Page 7 of 15

8 of approval is only given where the applicant at the date of his application was given more than six months leave to enter of which three months or more still remain. If Genaro s leave was for one year then, unless he applies for a certificate of approval before March 2010, he will need to respond to more detailed enquiries about the relationship and the marriage from the Home Office before the certificate is granted. The response to these enquiries must be in the form of separate affidavits from the applicant and his proposed spouse. The certificate of approval procedure applies to a non-eu citizen marrying an EU citizen exercising Treaty rights in the UK. If a certificate is ultimately granted the couple must give notice of the marriage in a specified registration district (Immigration (Procedures for Marriage) Regulations 2005). Once such notice has been given the couple can get married in any district and not just those specified in the Regulations. If Genaro wishes to remain in the UK after his leave expires until Magda completes her studies, then he will need to have leave to remain as her spouse by meeting the requirements of para 284 HC 395. However, even though Genaro may be able to satisfy most of the requirements of this paragraph, being under 21 at the date that leave would otherwise be granted, means that in normal circumstances he will not be entitled to an extension (para 277 HC 395). If Magda chose to leave the UK to go another EU state to exercise Treaty rights and he accompanied her, and later Magda returned to the UK again exercising Treaty rights, Genaro could enter the UK as her spouse and his status would depend on EU law and not on UK immigration law (see Akrich [2004]). If Genaro was in based in Chile and was engaged to Magda his first step would be to ascertain whether he can seek entry to the UK as a fiancé under para 290 HC 395. A key requirement under this paragraph is that the applicant wishes to join someone who is present and settled in the UK. Para 290A HC 395 provides that someone seeking to join an EEA national who has a registration certificate will be treated as seeking to join someone who is present and settled in the UK. However, as Magda is a student who is required to hold a residence certificate to that effect, the scope of family members who can join her whilst she is exercising this Treaty right is limited to a spouse or partner. Therefore as Magda cannot be said to present and settled in the UK, Genaro is effectively blocked from applying for entry as a fiancé. His only recourse therefore is to seek entry clearance as a marriage visitor under para 56D HC 395. In doing so he will need to meet all the requirements for entry as a visitor (other than the prohibition on marriage or giving notice to marry) and show an intention to marry or to give notice of marriage. (b) Admission of unmarried partners into the UK is governed by paras 295A 295B HC 395. As Lance and Daksha had not been living together in the USA for four years, Lance would not be entitled to immediate indefinite leave to remain. Instead, he would have had to apply for entry clearance prior to arrival in the UK and when granted it would have been for an initial period of 27 months. Having been in the UK in a relationship with Daksha for two years Lance can apply for settlement, this period is known as the probationary period. Applications by unmarried partners for settlement are dealt with by para Page 8 of 15

9 295G HC 395 and indefinite leave to remain will only be granted if the conditions in this paragraph are met. The conditions are as follows: The applicant has completed a period of 2 years as the unmarried partner of the person who is now present and settled here. He is still the unmarried or same-sex partner of the person he was admitted or granted an extension of stay to join and the relationship is still subsisting. Each of the parties intends to live permanently with the other as his partner. There will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively. The parties will be able to maintain themselves and any dependants adequately without recourse to public funds. The applicant has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom. Application for settlement must be made on form SET(M) and accompanied by the required supporting information. For Lance and Daksha, the periods of separation may affect their ability to show a future intention to live together permanently. If Lance had gone abroad during the two year period, the circumstances in which he did so would be taken into account. Consequently, a limited time abroad in connection with an applicant s job may not affect his prospects of settlement. If, however, the Home Office have some doubt about the permanency of the relationship then it is open to it to grant a further probationary period rather than immediate settlement (see Tanweer [1985]). If, however, Lance and Daksha s relationship had broken down within the two-year period, then there is little prospect of Lance being able to remain in the UK. Although application can be made on form SET(O), even if there were most exceptional compassionate circumstances, and notwithstanding that there are children with a right of abode, Lance s chances of success are slim. He may, however, be able to establish that Art 8 ECHR is engaged in relation to family life or to seek leave to remain as a parent exercising rights of access to a child resident in the UK under para 248A HC 395. Question 2 Jackie There are four main options open to Jackie. Firstly, she could seek entry as a Tier 5 (Youth Mobility Scheme) Temporary Migrant entrant as a working holidaymaker. The Canadian government is a participant in this scheme and would act as her sponsor. There are no pre-arranged work requirements and no restrictions on the type of employment that can be taken other than the applicant cannot work as a professional sports person, a doctor in training or undertake self-employment. She will need a minimum number of 40 points for attributes 30 points for her nationality, 10 points for her age, which must be between 18 and 30. She will also require 10 points for funds available, which must be at least 1,600. Page 9 of 15

10 She may also qualify as a Canadian citizen under the grandparent rule in para 186 HC 395 if she can establish ancestral connections with the UK. Entry clearance must be obtained in advance from the High Commission in Canada and proof of descent will be required. Leave to enter will be for five years and no employment need be arranged in advance, but the applicant must be able to and intend to take or seek work in the UK. Her third option is to seek entry as a Tier 1 (Post-study work) migrant (para 245X HC 395). The category is for graduates of UK universities wishing to seek or take highly skilled work in the UK. To qualify she will require 75 points for attributes and 10 points each for language and funds available. Leave to enter if granted will be for a maximum of 2 years. Her fourth option is either to come to the UK as a Tier 1 (General) migrant and seek work or to seek work prior to coming the UK from a registered sponsor and if she does get a job to seek entry as a Tier 2 (General) Migrant. As a Tier 1 (General) Migrant (para 245C HC 395) she will need to establish that she has exceptional skills and accumulate 75 points for attributes i.e. qualifications, past earnings, UK experience and age: 10 points for English Language and 10 points for funds available for maintenance. As a Tier 2 (General) Migrant she will need 50 points for attributes, 10 points for English Language and 10 points for funds available. Work in this category will only be available to her if there are no EEA citizens to fill the post and her chances will be enhanced if the job she wishes to take is within the Home Office list of shortage occupations. Nanako Nanako s options are more limited. It would be possible for her to seek Tier 2 (General) Migrant type work from a registered sponsor but this may prove difficult to obtain and be unattractive to her, as she wants free time to travel in the UK. As a Japanese citizen she will qualify under Tier 5 (Youth Mobility Scheme) as the Japanese government participates in this scheme. She may also be able to apply to enter under Tier 5 (Temporary Worker) Migrant category in the Government Authorised Exchange scheme. This category is for people coming to the UK through approved schemes that aim to share knowledge, experience and best practice, and to experience the social and cultural life of the UK. This category must not be used to fill job vacancies or to bring unskilled labour to the United Kingdom. The sponsor will be an overarching body who manages the government authorised exchange scheme. This overarching body must have the support of a United Kingdom government department. The Law Society for example is a sponsor supported by the Ministry of Justice. This may be relevant to her as she wishes to get experience of the English legal system. As Nanako comes from outside the EU any work must be skilled which means it must be equivalent to NVQ or SVQ level 3 or above. She will be allowed to stay in the United Kingdom for up to 24 months but must have prior entry clearance and qualify under para 245ZO HC 395. Dean Apart from seeking work as a Tier 2 (General) Migrant, Dean s main prospects of working whilst in the UK depend upon being able to qualify under one of two Page 10 of 15

11 categories in Tier 5 (Temporary Worker). The first option he could consider is seeking entry as a sports worker. This category is for Sportspeople who are internationally established at the highest level in their sport; and/or Sportspeople whose employment will make a significant contribution to the development and operation of their particular sport in this country; and/or Coaches who must be suitably qualified for the job. If he can bring himself within one of these categories, Dean will need to seek a sponsor, who must have support of a relevant sports governing body approved by the Home Office, to issue a certificate of sponsorship. For Dean to work as a church worker his church will need to be an approved sponsor. To get a sponsor licence under this category, the organisation must be a genuine (bona fide) religious institution. It must be a registered, excepted or exempt United Kingdom charity or an ecclesiastical corporation (either corporation sole or body corporate) established for charitable purposes. Charities that are not registered according to the relevant charity legislation must explain the reason for non-registration when they apply. There are detailed rules relating to the activities of this type of organisation and there stated beliefs. The sponsor is responsible for ensuring that the migrant is suitably qualified and supervised, works at specified locations, is maintained by the organisation and is not displacing a suitably qualified member of the resident labour force from a genuine vacancy. The migrant must operate only as a visiting religious worker or a religious worker in a pastoral role. He must also have 10 points relating to maintenance, that is, 800 available for that purpose or accommodation and financial support available from the sponsor. Miranda To undertake a short tour of the clubs in Manchester, Miranda will need a sponsor and meet the requirements of Tier 5 (Temporary Workers) as a creative worker. If there are no more than 14 calendar days between engagements then it is possible to have one sponsor, usually an agent, as opposed to each venue having to act as a sponsor. If there is are no more than 14 calendar days between engagements then permission to enter will be given to enter for the whole tour. If the gap is greater then Miranda will need to leave the UK and apply again between engagements. The period of stay for creative workers can vary and may be limited to a specific tour or providing sponsorship is available up to 2 years. There is no specific category in the points based system for those seeking work as an au pair. Tier 5 (Youth Mobility Scheme) replaced the previous au pair scheme but Croatia is not one the participating countries. Consequently, as Croatia is not yet in the EU the only route for Miranda to undertake au pair type work is through Tier 2 (General) employment. If she wishes to pursue this alternative then she will need to seek work with a registered sponsor and to establish that she has the requisite number of points required for this category. If any of the group wish their spouses, partners, civil partners or children to travel with them then other than in relation to Tier 5 (Temporary Workers) the family members will need to meet the requirements of para 319A HC 395. This Page 11 of 15

12 paragraph in turn states that each of these family members will need to meet the requirements of the Immigration Rules relating to their particular status. Question 3 (a) In evaluating the grounds on which Hamid intends to appeal against the refusal of asylum, it is necessary to first establish whether the UK courts recognise that an individual should not be deported or removed to a country where there is a prospect of that individual being tortured or being subjected to interrogation methods which are inhuman and degrading. In Chahal v UK [1996] and Saadi v Italy [2008] it was established that in principle protection should be granted where it can be established that the authorities in another state might subject an individual to torture or inhuman and degrading treatment. Claims of this nature are normally founded on Art 3 ECHR and/or RC Art 3 ECHR provides that No one shall be subjected to torture or inhuman treatment or punishment. It is important to note that this Article is absolute and that there can be no exceptions or derogations. In contrast in a claim founded on the RC 1951 a claimant needs to establish the treatment he is likely to receive if forced to return to his country of origin is linked to a RC 1951 reason i.e. race, religion, nationality, membership of a particular social group or political opinion. From this it can be seen that as a claimant will not have to show fear of torture for a RC 1951 reason or for any reason at all, Art 3 has a broader application. Its absolute nature means that Art 3 will apply regardless of the claimant s behaviour. Consequently, where there is a failed claim for asylum under RC 1951 or where a person is to be excluded from refugee status because of criminal activity under Art 1F and 33(2) RC 1951, the individuals concerned are still protected by Art 3 ECHR. This applies even if the individual s conduct is deemed not to be conducive to the public good. From Hamid s point of view if he relies on either convention, an important factor in his appeal will be whether he meets the standard of proof, which, under both conventions, is that there is a real risk of ill treatment on return (SSHD v Kacaj [2001]). Consequently, as he is claiming that he will be tortured on return there must be a real risk that the treatment he will receive will exceed the minimum level of severity (Ireland v UK [1978]) and amount to treatment that is especially grave and abhorrent (Aydin v Turkey [1997]). Even if the alleged treatment falls short of this description it is possible that it may be classed as inhuman and degrading if it is physical or psychological treatment that arouses in the victim a feeling of fear, anguish and inferiority capable of humiliating and debasing the victim and possibly breaking his physical or moral resistance (Ireland v UK [1978] see also Soering v UK [1989]). A refusal of asylum is not an immigration decision within s82 NIAA 2002 but Hamid can appeal against the decision to remove him on the grounds that this would breach RC In addition to this Hamid has indicated that he believes that the Home Office has discriminated against him on the basis of his ethnicity and if wishes to pursue this claim by way of appeal he could do so by claiming a breach of the Race Relations Act 1976 by officials. He will need to be aware, however, that even if successful this may not lead to the decision not to grant him asylum being overturned. In relation to any claim he may make that Art 3 ECHR would be breached if he was returned to Terranovia, the courts, including First-tier and Upper Tribunals, are Page 12 of 15

13 bound by s6 Human Rights Act 1998 to consider whether in any particular case the ECHR has been breached. As Hamid is not in detention the time limit for appealing is 10 working days from the date of the decision (AIT(P) Regs 2005). If Hamid wishes to pursue his appeal he will need to apply to do so out of time. This may be granted under the 2005 Regs if he can establish special circumstances and that it is considered just to do so. Otherwise the question of whether the appeal can proceed will be decided as a preliminary issue before the Firsttier Tribunal who will consider whether there are special circumstances and whether it is just to allow the appeal to proceed. If the SoS issued a certificate under s97 NIAA 2002 to the effect that he believes that Hamid s removal is in the interests of the relationship between UK and Terranovia, the appeal will be referred to the Special Immigration Appeals Commission (SIAC). If the SoS also certifies that the decision is based wholly or partially on information that he believes should not be made public in the interests of national security, the relationship between the UK and Terranovia or otherwise in the public interest an appeal cannot be brought (see SIACA 1997). Although most of the provisions relating to appeals also apply to appeals to SIAC, there are special procedures relating to the disclosure of sensitive information during an appeal. (b) Whilst Art 3 ECHR relates to torture or ill treatment inflicted by one person on another, it also relates to inhuman or degrading treatment relating to the quality of a person s life. Claims that Art 3 may be breached in this way have been brought on a number of occasions where it was alleged that the lack of or quality of medical treatment in the country of origin, was so inadequate it amounted to inhuman or degrading treatment. In approaching cases of this nature the courts have latterly set a very high threshold. The following definition of inhuman and degrading treatment was approved in Pretty v UK [2002] where it was said that the suffering which flows from naturally occurring illness, physical or mental, may be covered by Art 3 where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures for which the authorities can be held responsible. In terms of the engagement of Art 3 where medical treatment abroad has been at issue, decisions of the courts suggest that for Khalida s claim to succeed she will need to establish that exceptional and compelling circumstances apply to her case. This was the approach in N v SSHD [2005] where the EctHR endorsed the view of the House of Lords that: An alien subject to expulsion had no entitlement to remain in order to benefit from medical or other services provided by the state The fact that life expectancy is reduced if the claimant is removed does not of itself engage Art 3 Although removal to a country where treatment for illness is inferior may raise an issue under Art 3 it will only be in exceptional and compelling circumstances that the removal will be in breach of Art 3. If Khalida chooses to appeal from the decision of the First-tier Tribunal, then her options are as follows. She can apply to the Upper-tier Tribunal on a point of law. Otherwise permission to appeal against the First-tier Tribunal s decision is sought from this Tribunal itself, and if refused, the application can be renewed to the Upper Tribunal. If permission is refused again, then this is the end of the matter. Judicial review is not available for Page 13 of 15

14 statutory appeals. If permission is granted by either Tribunal, the appeal is heard by the Upper-tier Tribunal. A further appeal lies to the Court of Appeal, on restricted second appeal grounds. Question 4 If Abdul and Muna were born in Trinidad prior to the British Nationality Act 1948 (BNA 1948) they were British subjects who, on 1 st January 1949, became CUKCs. This will need to be established by examining their birth certificates. After Trinidad became independent in 1962 and ceased to be a British colony they lost that status. When Adbul and Muna came to the UK in 1966 they may have been Trinidadian passport holders and, although Commonwealth citizens, would have been subject to immigration control under the Commonwealth Immigrants Act However, after 5 years residency in the UK they were both entitled to register as CUKC s as they were both Commonwealth citizens (BNA 1948). Alternatively they could have applied for naturalisation, which was at the discretion of the Home Office (BNA 1948). It will be necessary to check the documentation that Abdul received from the Home Office to ascertain the basis on which he was told that he had British Citizenship. If, as appears to be the case, Muna did not register as a CUKC or seek naturalisation, then her status in the UK now will depend on her being married to Abdul. As Abdul appears to have a right of abode by being a British citizen by registration or naturalisation, Muna herself is entitled to a right of abode (see s2(2) Immigration Act 1971). Any right to apply for naturalisation on the basis of Muna s marriage to Abdul under s6(2) BNA 1981 could only have been exercised after three years residency from the date of her return to the UK in During that period she must not have been absent from the UK for more than 270 days or 90 days in the year preceding her application. It will be necessary to check Abdul and Muna s marriage certificate to ascertain Muna s entitlement to right of abode and to naturalisation. Although, as seems likely Adbul travelled to and from South Africa on a British passport, Muna must have had to establish her right to abode on return to the UK in There may therefore be documentation that is relevant to this as to re-enter the UK in 1984 she would have had to provide a certificate of entitlement to the right of abode. This could have been obtained in South Africa prior to departure or there is the possibility that had she been admitted on some other basis in the UK. Roshan was born in 1947 to a father who was a British subject in what was still a colony. Therefore on 1 st January 1949 he became a CUKC because he was a British subject born in a British colony. However, he too lost that status when Trinidad became independent in From the information provided it appears that although apparently settled in the UK he has not yet obtained British citizenship. He therefore remains a Trinidadian citizen. He may wish to regularise his position by seeking naturalisation on the basis of his long-standing residency in the UK. Whilst having a home in the UK will help support such an application, Roshan will need to show that in the past 10 years his absences away from the UK did not total more than 18 months. Nawal was born in 1949 and as such she was a CUKC by birth (BNA 1948). In common with her brother she lost that status in 1962, but appears to have become a British citizen by registration prior to leaving the UK. It will be necessary to check whether Nawal received a certificate showing that she was British and its contents. However, her son Muneer, was born abroad to a non- CUKC father and a mother who was a CUKC by registration. As he was born prior Page 14 of 15

15 to the BNA 1981 coming into force his mother could not pass on her British citizenship. He is therefore not a British citizen and would have required leave to enter when his mother returned to the UK. His passport will need to be checked to ascertain the basis on which he entered the UK. He now needs to regularise his position, probably by applying for registration on the basis of being born abroad to a British mother (s4 C BNA 1981). As far as Lateefa is concerned, she was born in the UK in 1982 prior to the BNA coming into force on the 1 January 1983 and therefore under BNA 1948 automatically became British. In order to give comprehensive and accurate advice it will also be necessary to see Nawal s birth certificate and that of her two children. Emma was a CUKC by birth in Hong Kong prior to 1 January If, as appears to be the case, she lived in the UK for five years and had no time limit on her stay she had a right to abode under s2(1)(c) IA As such she would be a British Citizen under BNA Again, it will be necessary to check her birth certificate and whether there is evidence of her residency in the UK. It appears that Nancy was a BDTC under BNA 1981 and as such was entitled to apply before 1 July 1997 for a new status, British National (Overseas), under Hong Kong Act 1985 and Hong Kong (British Nationality) Order This designation does not confer full British citizenship. Consequently, although British Nationals (Overseas) can enjoy visa-free visits to the UK and the EU, they do not have a right of abode in the UK and cannot visit the UK for more than 6 months without a visa. Thus whilst it is open to Nancy to visit Emma and her family for up to 6 months using her British National (Overseas) passport, if she wishes to settle in the UK she will have to meet all the relevant immigration requirements. To confirm this analysis it will be necessary to examine the passports of Emma and Nancy, Emma s passport and birth certificate. Page 15 of 15