IMMIGRATION & ASYLUM ACCREDITATION SCHEME

Transcription

1 IMMIGRATION & ASYLUM ACCREDITATION SCHEME Level 2 WRITTEN EXAMINATION Date: 12 February 2013 Page 1 of 19

2 INSTRUCTIONS TO CANDIDATES THE INVIGILATORS ARE UNABLE TO ANSWER ANY QUESTIONS ABOUT THE EXAM PAPER. IF YOU ARE UNSURE ABOUT A QUESTION, EXPLAIN THE APPROACH YOU HAVE ADOPTED IN ANSWERING IT. This examination paper contains 19 pages. Please check that you have all pages. The time allowed for this examination is 2½ hours plus 30 minutes reading time. Write in blue or black ink. You must answer all three compulsory questions and one optional question. This examination is divided into two parts. Part One contains 3 questions covering compulsory subject areas. Each question will carry 23 marks. You must answer all questions. Part Two contains the questions for the optional subjects. You must only answer ONE optional subject question which will carry 31 marks. Note that if you carry out publically funded work you must answer either Option A or B only, NOT Option C. Please note that if you do not have sufficient time to set your answers out in full, credit will be given for answers which highlight the points to be made in brief form. Credit may also be given if you indicate matters that you would investigate by further research if you are not familiar with the detail of any particular issue from your practice. Page 2 of 19

3 Please note that all relevant country information is contained in the questions. No additional marks will be awarded for answers relying on more specialised knowledge. To pass this assessment, candidates must obtain at least 50% of the marks. This paper was set on 11 December 2012 and candidates will obtain marks if they show an accurate knowledge of law on that date. Although no one will lose marks for making reference to later developments, this will not earn bonus marks. Permitted materials: This Examination is Open Book. Candidates will be able to take into the examination room any material, including text books, other bound material, downloaded material, personally prepared notes and lecture notes. All documents may be annotated and underlined in as much detail as the candidate requires. Post it notes are also allowed in this context. Page 3 of 19

4 THIS QUESTION PAPER MUST BE HANDED IN WITH YOUR SCRIPTS AT THE END OF THE EXAMINATION Page 4 of 19

5 PART ONE COMPULSORY QUESTIONS Candidates must answer all 3 compulsory questions Page 5 of 19

6 Question 1: Asylum [23 Marks] Maya is a national of the (fictional) country of East Mall. She comes to see you for advice on her claim for asylum. The country of Mall was initially a unified country but in 1956 it split into two separate countries; East Mall and West Mall. East Mall is governed by the People s Republic of Mall [ PRM ] who do not allow any opposition groups to operate within East Mall. West Mall is governed by the West Mall Democratic Party [ WMDP ] and there is a thriving opposition movement which is allowed to operate freely within West Mall. Despite the problems with opposition groups operating within East Mall there is an opposition party, the East Mall Freedom Party [ EMFP ] which operates clandestinely. Maya has been a member of the EMFP for 5 years. She has been actively involved in recruitment and uses her position as a university lecturer to try to gain student recruits for the opposition. Maya tells you that she arrived in the UK last week and that whilst in East Mall she was detained by the authorities. Maya tells you that she was detained for a month during which time she was interrogated and beaten from which she still bears scars. She says that she was released from detention following payment of a bribe and that she was due to report to the authorities a week after her release but that she left East Mall before her reporting date. Maya tells you that she travelled through West Mall en route to the UK. Maya has already claimed asylum and has attended her screening interview. She is due to attend her substantive asylum interview and wanted to be legally represented at that interview which is due to take place next week. (a) What further information might you require from Maya regarding her claim for asylum before attending the interview? (6 marks) (b) Maya is relying on political opinion as her Refugee Convention reason. With reference to any applicable statutory instruments, what is the definition of political opinion? (2 marks) Page 6 of 19

7 Maya tells you that she did not disclose to the Secretary of State during her screening interview that she had travelled through West Mall and that she told the interviewing officer that she left via a different route. She does not wish to disclose this to the Secretary of State in case the Secretary of State states that she can go to West Mall. (c) What is your advice to Maya? (5 marks) You attend the substantive interview with Maya. At the end of the interview, she informs the interviewing officer that she has further documents which she wishes to submit. She tells you after the interview that the documents are not in English. You are worried about whether you will be able to submit them in time if they need to be translated. (d) (i) How many days does the Secretary of State usually give in which to submit the documents? (1 mark) (ii) Are you able to submit the documents un-translated? (1 mark) The Secretary of State refuses Maya s claim for asylum but the only reason given for the refusal is that Maya did not claim asylum as soon as possible i.e. on her arrival at the airport in the UK. (e) With reference to any applicable Immigration Rules is the Secretary of State able to refuse Maya solely on this basis? (2 marks) Following further consideration, the Secretary of State refuses Maya s claim for asylum on the grounds that she is able to obtain nationality from West Mall and that she could therefore relocate to West Mall. (f) What must the Secretary of State consider when considering whether Maya can obtain West Mall nationality? (6 marks) Page 7 of 19

8 Question 2: Immigration Law [23 Marks] Numan was born in 1980 in Australia. His family immigrated to the UK in In 1999, at the age of 19, he acquired British citizenship. In 2005, at the age of 25, he married Tahira, a citizen of Canada. Because of Tahira s educational and later work commitments, they decided to delay making an application for Tahira to join Numan in the UK. During the last seven years, Numan has visited Tahira in Canada at least once a year; in some years he has visited up to four times. They have two children together, Khadijah aged 5 and Hamzah aged 2. Both of the children were born in Canada. Tahira, Khadijah and Hamzah all have only Canadian passports. Tahira has finally completed her contractual obligations in Canada and the couple have decided to make an application for Tahira and the children to join Numan in the UK. Numan comes to see you to obtain some initial advice. (a) Advise Numan on the financial threshold he would have to meet in order to sponsor applications for entry clearance by Tahira, Khadijah and Hamzah. Explain your answer. You must refer to relevant Immigration Rules in your answer. (6 marks) Numan tells you that he does not earn the annual salary you indicated in your answer to a) above. He wants to know if the shortfall can be met from his savings of 14,000 which he has had for over a year. (b) Does the fact that Numan has savings of 14,000 have any effect on his position? Explain your answer. You must refer to relevant Immigration Rules in your answer. (3 marks) Numan informs you that Tahira also has savings. (c) Can the savings that Tahira has be used to bridge any shortfall? You must refer to relevant Immigration Rules in your answer. (3 marks) Page 8 of 19

9 (d) Numan wants to know whether Khadijah and Hamzah qualify for British citizenship and if so, how he might evidence this. Advise him. You must refer to relevant statutory provisions in your answer. (4 marks) (e) How would your advice in relation to the financial threshold differ in the event the children were able to evidence British citizenship? Explain your answer. You must refer to relevant Immigration Rules in your answer. (5 marks) Following your advice, Numan takes certain actions. As consequence, Numan and Tahira need to meet a lower financial threshold than the one you initially advised. They meet this lower threshold and you make an application for Tahira to be granted entry clearance. (f) What is the maximum period for which Tahira can be granted entry clearance? You must cite relevant Immigration Rules in your answer. (2 marks) Page 9 of 19

10 Question 3: EU question [23 Marks] IMPORTANT: YOU MUST CITE RELEVANT EEA REGULATIONS WHERE YOU ARE ASKED TO DO SO, IN ORDER TO OBTAIN FULL MARKS FOR THAT QUESTION. Szusa is a citizen of Austria. Three years ago, whilst working in New Zealand, she met Domingo, a citizen of Mauritius. They formed a relationship but after six months, Szusa returned to Austria. Domingo visited Szusa in Austria several times and they eventually decided to get married during the course of a visit by Domingo to Austria a year and half ago. Domingo is still working in New Zealand. Four months ago, Szusa moved to the UK to take up a job with the Home Office. (a) What residence rights does Szusa have? Explain your answer. You must cite relevant EEA Regulations in your answer. (6 marks) Domingo wishes to make an application to join Szusa in the UK as her spouse. (b) What is the procedure for making such an application? (4 marks) The ECO refuses the application on the basis that he suspects that Domingo and Szusa s marriage is a marriage of convenience. No further explanation is provided by the ECO. (c) Who bears the burden of proof in such circumstances? You may cite relevant case law in your answer. (5 marks) Page 10 of 19

11 The ECO s decision is overturned in a review that takes place shortly after the refusal. (d) What document will Domingo be issued with? How long is such a document usually valid for? You must cite relevant EEA Regulations in your answer. (3 marks) Domingo arrives in the UK. Szusa was already pregnant with their child and she gives birth to a baby boy, Ignacio, two months later. Szusa starts to suffer from post natal depression (although she continues to work part-time) and her relationship with Domingo deteriorates. A couple of months later, she issues divorce proceedings and the couple are divorced. Domingo is advised that he no longer has a right to stay in the UK but decides to stay anyway because he wants to be near his son. Four years later, Szusa dies. Domingo immediately takes over the daily care of Ignacio who now attends school full time. (e) What is Ignacio s immigration status? Explain your answer. You must cite relevant EEA Regulations in your answer. (5 marks) Page 11 of 19

12 PART TWO OPTIONAL QUESTIONS Candidates must answer only ONE of the three optional questions If candidates answer more than one optional question only the first question answered will be marked ** If you carry out publically funded work you must only answer either Option A or Option B** **Option C is only for those NOT carrying out publically funded work** Page 12 of 19

13 Option A - Asylum [31 Marks] Malik is a national of the (fictional) country of Tusi. He comes to see you to ask about a possible claim for asylum. Malik arrived in the UK a month ago. He travelled to the UK using a false passport. Malik tells you that he is a member of a sect called the Ozarians. He tells you that the main religion in Tusi is the Yala religion and that the Ozarians are a break away sect that was started in Malik tells you that the Ozarians are targeted by the members of the Yala religion and that he has been attacked on a number of occasions. He states that on the last occasion he required hospital treatment and that he was warned that if he remained as a member of the Ozarians then he and his family would be killed. Shortly after this, Malik began to receive written threats and he decided that he had to leave. Malik left Tusi leaving his wife and children behind. They have moved to another area of Tusi to stay with an aunt. (a) Malik wants to know if he can claim asylum. What is your advice to him? (6 marks) Malik makes a claim for asylum. He is asked by the Secretary of State to report to a designated place for fingerprinting but failed to do so. Malik says that he did not feel like reporting and this is the only explanation that he gives you. (b) With reference to any applicable Rules, will Malik s failure to report for fingerprinting affect his asylum claim? (4 marks) The background information regarding Tusi states that members of the Ozarian sect who practice their religion in private will not come to the attention of members of the Yala religion. It is only those who actively seek to convert people to join the Ozarian sect who are at risk. Page 13 of 19

14 (c) What information would you require from Malik to assess the potential risk to him in Tusi? (5 marks) Malik s claim for asylum is refused and he wishes to appeal against the decision. He instructs you to appeal on his behalf. Unfortunately, you are very busy and forget to diarise the appeal deadline meaning that it is lodged two days late. (d) With reference to any applicable Rules, can you apply for an extension of time? (4 marks) (e) Malik s appeal proceeds to a CMR hearing. Should the parties provide a written statement of issues for the CMR hearing? (3 marks) Prior to the CMR, the Secretary of State tells you and the Tribunal in writing that credibility is not in issue and that the issue is the general country situation in Tusi including sufficiency of protection. (f) When you attend the hearing however, the Secretary of State tells you that credibility is now an issue. Is the Secretary of State able to do this? (3 marks) Malik s appeal is dismissed and his application for permission to appeal is also dismissed. Malik comes to see you a few weeks after the dismissal of his permission to appeal application and tells you that he has received an arrest warrant from his wife in Tusi. He tells you that a complaint was made against him that he was proselytising and that this has led to the issuing of the arrest warrant. The country evidence shows that false complaints are often made in Tusi and that they can lead to long pre-trial detention in conditions where the detainees are subjected to illtreatment. Page 14 of 19

15 (g) Malik asks you what you can do on his behalf. What is your advice to him? (3 marks) The Secretary of State reconsiders Malik s claim for asylum but refuses him again. The Secretary of State grants Malik a further right of appeal against the refusal which Malik exercises. At the First-tier Tribunal hearing, the Secretary of State seeks to rely on the findings contained in the initial First-tier Tribunal determination which dismissed Malik s appeal. (h) Is the Secretary of State able to do this? (3 marks) Page 15 of 19

16 Option B Immigration Law [31 Marks] Nemo is a citizen of Malaysia. He is granted a Tier 2 (General) visa valid for three years and one month. (a) Will Nemo be required to register with the police? Give reasons for your answer? You must make specific reference to relevant Immigration Rules in your answer. (4 marks) Towards the end of his first year of employment, he decides to use his annual leave entitlement to go on a golfing holiday. Nemo has been told that there are some fantastic golf courses in the Channel Islands. He contacts you to find out whether he will need a visa to travel to the Channel Islands. (b) What is your advice? Explain your answer. You must make specific reference to relevant Immigration Rules in your answer. (5 marks) Nemo is eventually granted indefinite leave to remain. Whilst living in the UK he had used his earnings to buy a house for himself to live in and three commercial properties which he rents out. After obtaining settlement, he finds out that his widowed mother who lives in Malaysia has been diagnosed with cancer. The doctors have indicated that she will live for another year at most. Nemo decides to return to Malaysia to care for his mother. He engages letting agents to rent his house out with the proviso that the rental period must not exceed a year because he intends to return to the UK after year (in view of his mother s prognosis). He engages the same letting agents to deal with his commercial properties as well. In the event, Nemo s mother lives for another two and half years. After her death, Nemo travels back to the UK. Page 16 of 19

17 (c) Is his absence likely to have any impact on his ability to re-enter the UK. Explain your answer by making specific reference to relevant Immigration Rules. (5 marks) Nemo is allowed to re-enter the UK. About a year later, he is contacted by the local police. At the request of the Malaysian police, they are investigating a batch of false Malaysian passports obtained by Malaysian citizens living in the UK. Nemo s passport has been identified as a possible false passport. (d) What effect might it have on Nemo s immigration status if it turns out that he obtained leave to remain in the UK using a false passport? You must make specific reference to relevant legislative provisions in your answer. (4 marks) The police investigation is concluded and it is found that Nemo s passport is genuine. Three years later, Nemo is convicted of tax fraud and sentenced to 14 months imprisonment. (e) With specific reference to relevant legislative provisions; advise Nemo on the effect the conviction could have on his immigration status. (6 marks) (f) How would your answer differ if the sentence imposed upon Nemo was a suspended sentence? Make specific reference to relevant legislative provisions in your answer. (4 marks) (g) What would be deadline to appeal in the event that an immigration decision of the type you identified in your answer above was made against Nemo? (3 marks) Page 17 of 19

18 Option C - Managed Migration [31 Marks] MUST NOT BE ANSWERED BY THOSE UNDERTAKING PUBLICLY FUNDED WORK Fernando is a citizen of Mexico. He is 28 years old. For the last ten years, he has been working with drug addicts and has developed a new method for helping drug addicts to come off drugs. He has won a number of awards for his work from several NGOs. He has been invited by a national UK charity, Freedom, which assists recovering drug addicts to come and do some voluntary work for them. Freedom already holds an appropriate sponsorship licence. He contacts you in order to find out what immigration laws apply to him and what he has to do in order to come to the UK. (a) Advise Fernando on the most appropriate Points Based System category under which he can apply for entry clearance. Explain how many points in total he will need for his application. What would you advise him about how many points he will need for attributes and on what basis he would score them? You must cite relevant Immigration Rules in your answer. (6 marks) (b) What is the length of the period for which Fernando will be granted leave to enter? You must cite relevant Immigration Rules in your answer. (6 marks) (c) Set out what forms and other items Fernando must provide for his entry clearance application. (5 marks) (d) Advise Fernando on whether he will be required to provide a TB screening certificate with his application. Explain your answer. (3 marks) Page 18 of 19

19 Fernando is granted entry clearance and arrives in the UK. (e) Will Fernando need to register with the police during his stay in the UK? Give reasons for your answer. You must cite relevant Immigration Rules in your answer. (5 marks) He comes to see you. His leave to remain is due to expire in 14 days. The work he has been doing has been extremely successful. Due to his very high success rate with addicts his sponsor has asked him to stay for up to another year. (f) Advise Fernando whether he can extend his stay in the UK. If an application can be made, what is the maximum period by which his stay can be extended? You must cite relevant Immigration Rules in your answer. (6 marks) Page 19 of 19