LEVEL 6 - UNIT 8 IMMIGRATION LAW SUGGESTED ANSWERS - JUNE 2012

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1 Note to Candidates and Tutors: LEVEL 6 - UNIT 8 IMMIGRATION LAW SUGGESTED ANSWERS - JUNE 2012 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 June 2012 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) Art. 21 TFEU confers the freedom of movement on all EU citizens. Art.6 Directive 2004/38/EC permits an EU citizen to reside in another member state for up to three months without condition provided that he has an passport or identity card. Those EU citizens who are defined as workers who are coming to the UK to work may exercise those rights under Art 45 TFEU and under Art. 7 Directive 2004/38/EC, may stay for longer periods. The status of non-eea citizens accompanying an EU citizen exercising the free movement right to work is wholly dependent on the rights of that EU citizen as a qualifying person. If that status is lost then, the non-eea citizen is not entitled to reside in the UK. The wording of Directive 2004/38/EC is more generous in relation to the non-eu citizens joining EU citizens, who are qualified persons under Art 7, than under the UK implementing legislation, Immigration (EEA) Regs The right is extended by the Directive to family members as defined in Art 2, that is a spouse or registered partner, direct descendants of either partner who are under 21 or dependent on the EU citizen and dependent relatives in the ascending line. It is also extended to other family members under Art. 3. Reg. 12 I(EEA)R 2006 provides for the issue of family permits to non-eu family members, providing the family member is lawfully residing in a member state of the EEA or, if resident outside the EEA, would meet the requirements for leave to enter the UK. In Metock v Ireland [2008] the ECJ found that a national requirement similar to Reg Regs was not lawful. However I(EEA) R 2006 have now been amended, to enable the admission of non-eu family members living outside the EEA. Immigration (EEA) (Amendment) Regulations Page 1 of 14

2 Metock [2008], however, has been taken to apply only to family members as defined in Art 2 Directive 2004/38/EC and not to other family members as defined by Art 3 of the Directive and more importantly by Reg 8 I(EEA)R 2006 (not amended by the 2011 Regs). The extent of the principle in Metock was tested in Bigia and others [2009] where it was confirmed that a requirement that extended family members should be living in an EEA state was contrary to the Directive, but that a requirement that other family members must be able to show dependency on the EEA national concerned was not in breach. (b) Subsidiary protection is available under Article 2(e) Qualification Directive to someone who does not qualify for refugee status but in respect of whom substantial grounds have been shown for believing that the person concerned would face a real risk of suffering serious harm if returned to his country. Serious harm is defined as: Death penalty or execution Torture or degrading treatment or punishment A serious and individual threat to a civilian s life or person by reason of indiscriminate violence in situations of international armed conflict. (Article 15 QD) In relation to the third part of Article 15 a general risk from internal conflict if very serious reduces the need for an individual to show risk to himself (Mekie Elgafaji, Noor Elgafaji v Staatssecretaris van Justititie [2009]) This case indicates that not all conflicts put an individual at risk it is a matter of degree. If a person is given subsidiary protection under the QD leave to remain for five years will be granted. The grounds for granting protection under para 339C HC 395 and the QD are almost identical with para 339C making humanitarian protection available to those who face a serious risk of: The death penalty Unlawful killing, or Torture or inhuman or degrading treatment or punishment A serious and individual threat to a civilian s life or person by reason of indiscriminate violence in situations of international armed conflict He is not excluded from protection This includes those who have a fear of harm of a breach of Art 3 ECHR if removed. In common with the QD, HC 395 includes provisions for exclusion of an applicant on the same grounds that apply to refugees. Protection is normally granted for five years, reviewable after that period, and if there is still need for protection indefinite leave to remain will normally be granted. There are provisions for family reunion similar to those available to refugees. The Secretary of State has a residual discretion to grant leave to remain exceptionally where refugee or humanitarian protection under HC 395 is not available. Home Office policy states that this will be granted in the following limited circumstances: Page 2 of 14

3 Removal would be in breach of Article 8 ECHR Removal would be a breach of Article 3 ECHR not covered by humanitarian protection Unaccompanied children have sought asylum and have been refused but there are no adequate arrangements for their reception in their home country There are compelling individual circumstances Those excluded from humanitarian protection cannot be removed from the UK as to do so would be in breach of Article 3 ECHR Discretionary leave will normally be granted for up to three years. Unaccompanied children will only be granted leave until they are 171/2 and a refugee who falls under the exclusion clauses for only six months (although reviewable after that time). After six years of discretionary leave a person may be granted indefinite leave. However, those granted leave because they are within the exclusion clauses will not be granted indefinite leave until after 10 years of discretionary leave. There is no right of appeal against refusal of discretionary leave unless combined with a removal decision. However, if a claim for asylum is refused and discretionary leave granted instead, if the leave is for more than 12 months, then the refusal will bring a right of appeal under NIAA Finally, it should be noted that humanitarian protection and discretionary leave are not only available to those who have applied for asylum and not considered to qualify as refugees. Question 2 The current system of immigration appeals is as a result of changes made by the Tribunals Courts and Enforcement Act 2007 which came into effect for immigration on 15 th February This Act established two tribunals, a Firsttier Tribunal and an Upper Tribunal. There is now an Immigration and Asylum Chamber in each. The Immigration and Asylum Chambers hear appeals on asylum, immigration, and nationality matters. The role of the First-tier Tribunal is to hear and decide appeals against decisions made by the UK Border Agency's officers in the UK or officers at diplomatic posts abroad who can issue visas. One or more immigration judges may hear an appeal. They are sometimes accompanied by non-legal members of the tribunal. Immigration judges and non-legal members are appointed by the Lord Chancellor. Parties may appeal, with permission, from a decision of the First-tier Tribunal to the Upper Tribunal on a point of law. Permission must be sought from the First-tier Tribunal initially, and if that is refused, the application can be renewed directly to the Upper Tribunal. The Special Immigration Appeals Commission (SIAC), which is outside the main Tribunal Service, hears appeals against decisions made by the Home Office to deport, or exclude, someone from the UK, or to deprive someone of British citizenship, on national security grounds, or for other public interest reasons decisions against which there is no right of appeal to an immigration judge. In recent years it has mostly been concerned with people accused of terrorist activities or of promoting jihadist movements. It is possible to appeal from a decision of the Upper Tribunal or SIAC to the Court of Appeal but this can only be done where the appeal raises some important point of principle or practice or there are other compelling reasons for admitting such an appeal. Similarly, the Court of Appeal can sanction an appeal to the Supreme Court. If the domestic appeals system has been exhausted and there is a question whether a decision making body within the immigration system has complied with the ECHR, it is open to an appellant to refer a decision to the Page 3 of 14

4 European Court of Human Rights. From time to time a higher court (including the Upper Tribunal) may refer a point of European law to the Court of Justice of the European Union (ECJ) for a ruling on a matter of European law. It is important to note that not all decisions by decision makers in the immigration process attract a right of appeal. The main categories of decisions which attract a right of appeal are immigration decisions and are conferred by s82 Nationality Immigration and Asylum Act These are as follows: refusal of leave to enter the United Kingdom, refusal of entry clearance, e.g. to a spouse or fiancé living abroad of a person settled in the United Kingdom, refusal of a certificate of entitlement under section 10 of the 2002 Act, i.e. a certificate that a person is entitled to right of abode in the United Kingdom, refusal to vary leave to enter or remain in the United Kingdom if the result of refusal is that the person has no leave to enter or remain, variation of a person s leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain, revocation of indefinite leave to enter or remain in the United Kingdom under section 76 of the 2002 Act, e.g. because leave was obtained by deception, a decision that a person is to be removed from the United Kingdom in accordance with the provisions of section 10 of the Immigration and Asylum Act 1999 because he is unlawfully in the United Kingdom, e.g. because he has overstayed his leave, a decision to remove an illegal entrant by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971, a decision under paragraph 10A of the same Schedule to remove family members of an illegal entrant, a decision to make a deportation order under section 5(1) of the Immigration Act 1971, refusal to revoke a deportation order under section 5(2) of that Act. It is important to note that refusal of asylum is not treated as an immigration decision and that the jurisdiction to hear pure asylum appeals is to be found primarily in s83 Nationality, Immigration and Asylum Act Under s83 a person may appeal against a decision in an asylum claim if he has, apart from being refused asylum, been granted leave to enter the UK for more than 12 months or an aggregate of periods amounting to more than 12 months. s83a allows appeals to be made against decisions where a person has first been granted refugee status and then had that status revoked and leave to remain granted on another basis, against the decision curtailing, or refusing to extend the initial leave to remain as a refugee. The primary role of the High Court is to consider applications for judicial review of decisions relating to an individual s immigration status. In relation to judicial review it is important to note that the jurisdiction of the High Court is very much narrower than the First-tier Tribunal or the Upper Tribunal and that an application can only succeed on the grounds of illegality, procedural impropriety or irrationality in relation to the decision in question (Council of the Civil Service Unions v Minister for the Civil Service [1985]). Since the decision in this case proportionality has become more prominent and the basis for intense scrutiny by the High Court of decisions relating to an individual s immigration status. In spite of this limiting factor the Administrative Court has a substantial immigration and asylum workload which includes certified cases where the SoS certifies that a claim is clearly unfounded, fresh claims where there is no right of appeal to the First-tier Tribunal (para 353 HC395), detention under the Immigration Acts and those cases where there is a dispute about the age of the claimant. Judicial review is also used to challenge decisions relating to safe third countries Page 4 of 14

5 (Schedule 3 AI (TC)A 2004) where appeals to a First-tier Tribunal are specifically excluded. Some of the High Court s judicial review workload has now been transferred to the Upper Tribunal e.g. in age dispute cases. On the other hand since Cart [2011] refusal by the Upper Tribunal to grant leave to appeal from the First-tier Tribunal may be reviewed by the High Court in certain circumstances. Question 3 (a) The Tier 1 (General) migrant category was closed for all out of country applicants on 23 December 2010 and for all others on 6 April This category is not being directly replaced but a new category under Tier 1 seeks to attract those from outside the EEA who are within a group of exceptionally talented individuals. This route, known as Tier 1 (Exceptional Talent), is for those who are internationally recognised as world leaders or potential world-leading talent in the fields of science and the arts and who wish to work in the UK. Unlike Tier 1 (General Migrant) and its predecessor the Highly Skilled Migrant Worker scheme there will be a cap on those admitted as being exceptionally talented. Initially this cap will be set at 1,000 persons for each sector. Those seeking admission within the new category will need 75 points and will achieve those by being economically active in his expert field as endorsed by a Designated Competent Body. They will also need 10 points for maintenance which amounts to 2,800. For the year Aug 2011/2012, there will be 1,000 endorsements in the field of science and arts distributed between Designated Competent Bodies e.g. Royal Society (Science) and Arts Council of England. From this it can be seen that the scheme is far more restrictive and limited in scope than its predecessors. Those already in the UK as Tier 1 (General migrants) or under the Highly Skilled Migrant programme at 6 April 2011 will be able to extend their stay provided that they meet the requirements placed on them when they entered. After 5 years residency in the UK they will be able to apply for settlement provided that they meet the income requirements and have passed the Life in the UK test which requires competence in the English language at level B1 of the Common European Framework of reference. They must also not have any unspent convictions. Those qualifying under the new Tier 1 (Exceptional Talent) will initially be admitted for 3 years and four months and will be subject to the following restrictions: (i) no recourse to public funds, (ii) no employment as a Doctor or Dentist in Training, and (iii) no employment as a professional sportsperson (including as a sports coach). (iv) in certain cases, registration with the police After the initial period of entry, leave to remain will be granted for a further two years provided the original conditions of entry are complied with and the applicant continues to have 75 points for attributes and a further 10 points for maintenance which is earned by having 800 available. After 5 years in the UK as a Tier 1 (Exceptional Talent) migrant a person may apply for indefinite leave to remain. This will be granted if: Page 5 of 14

6 (a) The applicant does not have one or more unspent convictions under the Rehabilitation of Offenders Act (b) The applicant does not fall for refusal under the general grounds for refusal, and is not an illegal entrant. (c) The applicant has spent a continuous period of 5 years lawfully in the UK with leave as a Tier 1 (Exceptional Talent) Migrant. (d) The applicant has a minimum of 75 points for attributes. (e) The applicant has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless the applicant is under the age of 18 or aged 65 or over at the date the application is made. (b) This route is for high net worth individuals making a substantial financial investment to the UK. All migrants arriving in the UK and wishing to enter as a Tier 1 (Investor) Migrant must have a valid entry clearance for entry under this route. If they do not have a valid entry clearance, entry will be refused. To qualify for entry clearance or leave to remain as a Tier 1 (Investor) Migrant, an applicant must meet the requirements listed below: (a) The applicant must not fall for refusal under the general grounds for refusal. (b) The applicant must have a minimum of 75 points for assets, that is: (a) has money of his own under his control held in a regulated financial institution and disposable in the UK amounting to not less than 1 million; or (b) (i) owns personal assets which, taking into account any liabilities to which they are subject, have a value exceeding 2 million, and (ii) has money under his control held in a regulated financial institution and disposable in the UK amounting to not less than 1 million which has been loaned to him by a UK regulated financial institution. Entry clearance will be granted for a period of 3 years and four months and will be subject to the following conditions: (i) no recourse to public funds, (ii) registration with the police, if this is required, and (iii) no employment as a Doctor or Dentist in Training, unless the applicant has obtained a primary degree in medicine or dentistry at bachelor's level or above from a UK institution that is a UK recognised or listed body, or which holds a sponsor licence under Tier 4 of the Points Based System. Investors may apply for settlement after five years and will qualify if they have invested 1m in the UK. Under new rules introduced on April those who have invested 10m will be able to apply for settlement after the investment is in place for two years. Those investing 5m will be able to apply after three years. Investors will now be able to be absent from UK for 180 days rather than 90 days without prejudicing an application for settlement. Page 6 of 14

7 Those applying for indefinite leave to remain must have sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless the applicant is under the age of 18 or aged 65 or over at the date the application is made. Furthermore the applicant must not have one or more unspent convictions. Whilst entrepreneurs seeking admission under Tier 1 (Entrepreneur) must meet similar conditions to those applying to investors, the funding requirements are more liberal. Prior to 6 April 2011 entrepreneurs required 200,000, the new rules provide that this sum is reduced to 50,000 where this is provided by a venture capitalist firm, a Government department or a seed-funding competition. In addition to this up to two business partners may use the entrepreneur route if they have equal access to the funding. Finally, those entrepreneurs who create 10 full time jobs or who have a turnover of 5m will be able to apply for settlement after 3 years. They will of course have to prove their investments and meet the same terms and conditions as for their investor counterparts. Question 4 A person can be administratively removed under s10 IAA 1999, if: they have breached the conditions of their stay (including overstaying) they obtained or sought leave to remain by deception they have indefinite leave to remain revoked directions have been given under s10 for the removal of a person to whose family they belong (s10 Immigration and Asylum Act 1999) Before concluding that a person should 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 deported 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) Family member of person who is being or has been deported s3(5) (b) IA 1971 Those recommended for deportation by a court as part of a criminal sentence (s3(6) IA 1971). SoS is required to consider all relevant factors in considering whether presumption in favour of deportation is outweighed in non-automatic deportations (para 364 HC 395) Page 7 of 14

8 The main differences between administrative removal and deportation are in process and impact: Deportation can only take effect once an Order has been signed The decision to deport or the making of an automatic Deportation Order attracts a right of appeal in-country 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 long resident 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 or public security. (Regs and 24 I (EEA) Regs. 2006: Art 27 Directive 2004/38 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 (or is an EEA national or a member of the family of an EEA national and claims the decision breaches the appellant s rights under the Community Treaties in respect of entry to or residence in the UK. (see s92(4) 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 or formed a civil partnership before the deportation came into effect (see paras HC 395) Those who are administratively removed can apply for re-entry after the periods of time laid down at para 320(7B) HC 395, but the rules relating to the reentry of those deported are far more restrictive (para 320(7B) HC 395). Thus, a person subject to a deportation order cannot enter the UK, unless the 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, while if the conviction can never become spent under the Rehabilitation of Offenders Act 1974, it will never be revoked unless there are strong human rights grounds. Where there was no criminal conviction then the revocation will not be authorised unless the Page 8 of 14

9 situation has been materially altered by a change in circumstances since the order was made or by fresh information. Question 1 SECTION B In evaluating the grounds on which Adad 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 Art 3 has a broader application, as a claimant will not have to show fear of torture for a RC 1951 reason or for any reason at all. 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 Adad 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 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]). If the SoS issues a certificate under s97 NIAA 2002 to the effect that he believes that Adad 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 must also be brought before SIAC (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. 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 Page 9 of 14

10 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 Tira 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. Question 2 (a) Whilst clearly Lisa, as a UK citizen, may return to the UK with her children, the issue is whether Diego s status falls to be dealt with under UK or EU law. The guiding principle in cases such as these is to be found in IAT and Surinder Singh ex parte SSHD [1992] where it was found that it is EU rather UK law that applies where a UK citizen has lived and worked in a member state and then returns with his non-eea spouse to the UK. Immigration (EEA) Regulations 2006 Regulation 9 provides that as long as the UK national has been living in another EEA state as a worker or undertaking self-employment and has been living together with his spouse before returning to the UK, the non-uk national is be treated as the family member of an EEA citizen. On this basis it seems that Diego is effectively the family member of an EEA citizen. However, there remains the issue of the deportation order and Diego s position should the UK government refuse to issue a revocation. In Akrich [2004] the court made it clear that a person in Diego s position could only benefit from being treated as the family member of an EU citizen where he could be legally resident in the UK, which is not so in Diego s case. However, the court went on to say that in considering whether or not to lift the deportation order the UK authorities should have regard to Article 8 ECHR. As Diego is part of a established family unit this is clearly relevant to the question of whether deportation order made against him should be revoked. That will depend partly on whether his criminal conviction has been spent. If Diego enters or seeks to enter the UK before the deportation order has been revoked, then he risks being classed as an illegal entrant under s33(1) IA (a) His entry will be illegal even though an immigration officer grants leave being unaware that a deportation order is in force. As an illegal entrant Diego will be liable to administrative removal and to arrest without warrant and detention. He will also risk prosecution under Page 10 of 14

11 s24(1)(a) IA 1971 which states that a person shall be guilty of an offence if he knowingly enters that UK in breach of a deportation order or without leave. This offence may be tried summarily or on indictment and a convicted person is liable to imprisonment and/or a fine. A summary conviction carries sentence of up to 6months imprisonment and a fine up to the current maximum and on indictment the maximum term is two years and a fine of an unlimited amount. It is important to note that this offence requires the prosecution to prove knowledge and that in this case given Diego s stated belief it may not be difficult for this to be established. (b) The rules relating to the admission of parents and other relatives are to be found in paragraph 317 HC 395. In addition to the necessity to have entry clearance a relative in this category must show, firstly, that he was wholly or mainly financially dependent on the relative in the UK, and, secondly that there are no other close relatives in his own country that he could turn to for financial support and thirdly, that there is adequate maintenance and accommodation which the sponsor owns or occupies exclusively, without recourse to public funds. The person seeking entry must also fall into one of the categories set out in paragraph 317. Those relevant to this question are: (i) must be related to a person present and settled in the UK; (ii) parents travelling together, at least one of whom is over 65 years old (iii) a father or mother who is a widow or widower aged 65 years or over; (iv) a parent who is under the age of 65, if living alone outside the UK in the most exceptional compassionate circumstances and mainly financially dependent on relatives settled in the UK. In terms of eligibility to be admitted under paragraph 317 it is clear that Malik qualifies as he is over 65. However, in terms of meeting the criteria in paragraph 317 although Rana falls within the category of relative that can be considered, she will have to establish dependency on Husna and Aban, that there is no other close relative to turn to in Pakistan for financial support and that she is living alone in the most exceptional and compassionate circumstances. In Rana s case she appears to have some income in addition to financial support from Husna and Aban but it seems that she is mainly dependent on their money. In IAT ex parte Patel [1982] the court said that the proper test of dependency was whether money was needed from the sponsor in the UK to remedy a deficiency in the relative s own resources. It is also necessary for the relative to be dependent on the sponsor as a matter of necessity rather than choice (see Zaman [1973]). It will be necessary for Husna, Aban and Rana to provide documentary evidence to support the claim of dependency and that Husna has been making regular payments to Rana. Even if Rana had relatives to whom she could turn, following IAT ex parte Dadibhai [1983] if these relatives are unable to assist financially they would not be regarded as close relatives to whom Rana can turn. The courts have found difficulty in defining most exceptional compassionate circumstances. The hurdle that this phrase creates is undoubtedly set very high so that in IAT ex parte Joseph [1988] it was said that the circumstances had to be very exceptional indeed. It is hard but not impossible to meet this criterion (see Zeinat Begum (19545)) and in Senanayake [2005] the Court of Appeal said that the words most exceptional are used in that context to describe the degree of compassion which the circumstances evoke in the mind of the decision maker. As far as Rana is concerned the factors that will be taken into account will be her health, in respect of which she will need to Page 11 of 14

12 provide evidence and perhaps the degree of isolation that this and her relative poverty might create. Her divorce from Malik may also mean that she is cut off from her family network and this will need to be assessed. If an application by Rana is accepted then she will be given leave to enter for an indefinite period. As a result there will be no restriction on her taking up employment in the event, perhaps unlikely, she should wish to do so. It may be, however, that an undertaking may be sought from Husna and Aban under the Social Security Contributions and Benefits Act 1992 to maintain Rana. This undertaking gives the relevant government department the right to reclaim any income support paid to the relative from the sponsors, in this case Husna and Aban. Until the Rules changed on 31 st October 2011 it was clear that joint sponsorship was acceptable. Under the new Rules it is as yet unclear whether Husna and Aban would be able to jointly sponsor their family members. As Yalda is under 18 years of age and does not come with paragraph 317, she may qualify for entry under paragraph 297(i)(f) as the relatives of a person present and settled in the UK. She will need to show that there are serious and compelling family or other considerations that make her exclusion undesirable and that suitable arrangements have been made for her care. She will also need to show that she is unmarried or not in a civil partnership or living in an independent family unit, can be accommodated without recourse to public funds in accommodation that Husna owns or occupies and that she can be maintained adequately without recourse to public funds. Question 3 Under paragraph 339I HC 395 it is the duty of an applicant for protection under RC 1951 to submit all material factors to substantiate their claim. This means that they must disclose all the facts of their case, attend interviews, complete questionnaires and be fingerprinted when required. Paragraph 339L HC 395, however, provides that in instances where the applicant has not been able to support a statement by documentary evidence confirmation may not be needed if it is felt that a genuine effort has been made to substantiate the claim and the statements in relation to the claim are coherent, plausible and consistent with the background information. A key element of the assessment of a claim is whether an applicant s behaviour falls within the list of behaviours in s8 Asylum and Immigration (Treatment of Claimants) Act The provisions of s8 are mandatory and must be taken into account by the decision maker. s8 lists general forms of behaviour that may damage the claimant s credibility, being behaviour that (a) is designed or likely to conceal information; (b) is designed or likely to mislead; (c) is designed or likely to obstruct or delay the handling or resolution of the claim or the taking of a decision. The section then defines specific behaviours that shall be treated as designed or likely to conceal information or mislead and details other forms of behaviour that will be considered to damage the claimant s credibility. It is necessary therefore to assess whether the information available about Chul in his file reveals behaviours that might, on the face of it, damage his credibility and therefore his claim for protection. Turning to the information on file therefore this reveals that Chul first travelled from North Korea to Italy. s8 provides that failure to take advantage of a reasonable opportunity to make an asylum claim whilst in a safe country will be considered damaging to a claimant s credibility. The countries listed in paragraph 2 Schedule 3 of Asylum and Immigration (Treatment of Claimants) Act 2004 are deemed to be safe countries and this Page 12 of 14

13 includes all EEA countries except Liechtenstein. Consequently, in the context of s8 it will be necessary to establish whether Chul had a reasonable opportunity to make asylum claim whilst he was in Italy, an EEA country. If he cannot give a satisfactory explanation of the circumstances in which he did not apply in Italy then this will be taken as damaging his credibility. He may be sent back to Italy under the Dublin II Regulation, to pursue his asylum claim there. Chul apparently cannot produce a passport. If he cannot give a reasonable explanation for this, then according to s8 this will be taken as behaviour designed or likely to conceal information or mislead. Again this will undermine Chul s credibility. Similarly, Chul needs to explain why the destination was altered, if he cannot give a reasonable explanation, then, again, s8, treats this as behaviour designed or likely to conceal information or mislead. Finally, it is clear that when he is interviewed that Chul will need to provide information to substantiate his claim for asylum particularly on the issue of whether he has been persecuted by the state in North Korea, the nature of the persecution and if possible details of specific acts against him by the state. If he cannot establish that persecution was by the state or its agents or that the state will not or cannot intervene in persecution by others, this will undermine his whole claim to be a refugee under the RC1951. Failure to answer questions on this issue posed by the UKBA without reasonable explanation will undoubtedly significantly undermine his claim and under s8 will be taken to damage his credibility as being behaviour designed or likely to conceal information or mislead. If Chul is accepted as a refugee under current Home Office policy he will be granted five years leave to remain. At the end of the five-year period he will have to make a further application for indefinite leave to remain. Para 339A HC395 provides that a grant of asylum may be revoked if any of the cessation clauses in Article 1C RC 1951 as defined in Article 11 Qualification Directive apply. Thus, a grant of asylum may be revoked if the person is considered no longer to require protection or if the exclusion criteria should have applied when the claim was first considered. However, any change in circumstances in a refugee s country of origin must be significant and not temporary. In addition to this para 339A states that a grant of asylum can also be revoked or renewal refused where: There has been misrepresentation or omission of the facts including the use of false documentation, which were decisive for the grant of asylum There are reasonable grounds for regarding the applicant as a danger to the security of the UK Having been convicted by final judgement of a particularly serious crime, he constitutes a danger to the community. Question 4 (a) Draza is a Slovakian national and as an EEA national has exercised her right of free movement under Article 7 EC Treaty (Art 21 TFEU). On this basis she was free to take up her appointment as a lecturer. However, she plans to marry Salman, a non-eea national. The couple will no longer need a certificate of approval from the Secretary of State, however, they will need to give notice under s19 AI (TC)A 2004 to a specified register office (Immigration (Procedure for Marriage) Regulations 2005). Once notice has been given they can chose to marry in a register office of their choice. Page 13 of 14

14 There is an adoption order made by a court in country whose adoption orders are recognised by the UK and at English law. The adoption order has been made in favour of Draza, who is an EU citizen. Consequently, the two children will be treated as children of an EU citizen and their entry into the UK will be governed by EEA regulations and not by the Immigration Rules. (b) Admission of unmarried partners into the UK is governed by paras 295A 295B HC 395. As Max and Jalita had not been living together in the USA for four years, Max would not have been entitled to immediate indefinite leave to enter. 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 Jalita for two years Max can apply for settlement, this period is known as the probationary period. Applications by unmarried partners for settlement are dealt with by para 295G-H 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 Max and Jalita, the periods of separation may affect their ability to show a future intention to live together permanently. If Max 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, Max and Jalita s relationship had broken down within the twoyear period, then Max would not be able to achieve settlement on the basis of that relationship, but if it was caused to break down by domestic violence of which he was the victim this may provide the basis of a claim to settlement under para 289A HC395. On the other hand, if he continues to have contact with the two children, he can apply for leave to remain on that basis under para 248A HC395, which can also lead to settlement. Alternatively, family life between the children and Max, as well as the section 55 duty to promote the welfare of children and the Supreme Court judgement in ZH (Tanzania) about British children (Max and Jalita s children are British) combine to make a strong case for discretionary leave under Article 8 ECHR. Page 14 of 14