LEVEL 6 - UNIT 8 IMMIGRATION LAW SUGGESTED ANSWERS - JUNE 2013

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1 Note to Candidates and Tutors: LEVEL 6 - UNIT 8 IMMIGRATION LAW SUGGESTED ANSWERS - JUNE 2013 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 2013 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(a) SECTION A General Rights of EU nationals Article 21 Treaty on the Functioning of the European Union (TFEU) sets out a general right for citizens of the EU to move and reside freely within member states, subject to conditions and limitations imposed in the treaties and measures adopted to give them effect. Article 6 Directive 2004/38/EC (the Citizens Directive) provides for a general right of residence in another member state for up to 3 months without any conditions or formalities, but simply on production of a valid identity card or passport. Free Movement of Workers Art 45 TFEU sets out the rights of free movement of workers. It confers the right to enter the UK for the purpose of employment. Under Art 45 (3) the rights of an EU worker include the right to accept an offer of employment actually made, to move freely within the member state (MS) for the purpose of such employment, to stay in the MS for the purpose of employment and to remain in the MS after their employment (subject to conditions contained in secondary legislation). Under Article 7 para 1 of the Citizens Directive workers or self-employed persons in the host member state are permitted to reside longer than the initial three-month period. This is also provided for under the Immigration (European Economic Area) Regulations 2006 regulation 6. These are persons who either: are working or self-employed persons in the host member state; Page 1 of 23

2 have sufficient resources for themselves or their family members not to become a burden on the social assistance system of the host member state; or are enrolled at a private or public establishment for study or vocational training. In the latter two cases the national must also have comprehensive sickness insurance cover in the host member state. The Immigration (European Economic Area) Regulations 2006 incorporate the Directive into UK law. Regulation 6 defines a qualified person who is exercising treaty rights as a jobseeker, a worker, a self-employed person, a selfsufficient person and a student. On production of evidence of employment, a registration certificate will be issued to an EEA national exercising these rights, to confirm their right of residence. After five years working in the UK a qualified person will be eligible for permanent residence. Broad Interpretation of Worker In addition to the inclusion of the self-sufficient and students into the definition of worker, the Directive goes beyond this and makes provision for those who find themselves out of work after a period in employment. Provision is also made to remain a qualified person where work may have stopped involuntarily or someone may be looking for work. Article 7 Directive 2004/38/EC also allows a person to stay on as a worker if he is temporarily unable to work as a result of illness or accident, involuntarily unemployed after working for more than a year and registered as a jobseeker. If a person is voluntarily unemployed after completing a fixed term contract or within the first year of employment they will not be seen as a worker for any longer than six months. In Royer v Procureur du Roi (1976), the UK case of Antonissen (1991) and also in Commission v Belgium (1980), the Court of Justice of the EU extended the rights of free movement to job seekers. Using the purposive rule of interpretation the Court refused to confine the rights of free movement to the literal meaning of the language used in Article 45 TFEU, which refers to persons entering a member state for the purpose of accepting an offer of employment. The Court held that the general context and purpose of the free movement of workers policy was to promote the free movement of the labour force within the common market, and that the labour force includes job seekers. It therefore ruled that job seekers should be allowed a reasonable time to look for work (i.e. between 3-6 months). It is also worth noting that employment includes both self-employment and parttime employment. Article 49 TFEU refers to self-employed persons and Article 7 Directive 2004/38/EC gives effect to this right. In Lawrie Blum v Land Baden-Württemberg (1987) it was held that the provision of services for and under the direction of another in return for remuneration defined the essential element of employment. In relation to self-employment, the case of Levin v Staatssecretaris (1982) the ECJ found employment as a part time chambermaid to be sufficient to come under the provisions. A person would be seen as a worker as long as the Page 2 of 23

3 employed activity was effective and genuine and there was no reason why part time work could not be seen as such. Further in Kempf v Staatssecretaris van Justitie (1987) a German national who obtained work in Holland as a part-time music teacher was held to be in effective and genuine employment and was able to rely on state benefits to supplement his earnings. Temporary employment on a fixed term contract was also held to suffice in the more recent case of Ninni-Orasche v Bundesminister fur Eissenschaft, Verkehr and Kunst (2004). Question 1(b) Family Members Rights Generally The rights of family members to join EU national workers are found in Articles 2, 3, 6 and 7 Directive 2004/38/EC. Article 6 extends the general right of residence for three months to family members, whether or not they are themselves EU nationals. Article 7 provides that family members of those qualified to reside for longer than 3 months, for example workers, also have the right to long-term residence. Definition of Family Member Article 2 stipulates that family members are: The spouse or registered partner of an EU citizen; direct descendants of an EU citizen or their partner who are either under 21 or dependent on the EU citizen or their partner will be seen as a family member for the purposes of the Directive; and dependent relatives in the ascending line. Article 2 is transposed into national law by Regulation 7 I(EEA) R 2006 which defines family member in a similar way. Regulation 11 I (EEA) R 2006 provides that a family member of an EEA national can be admitted if they produce a passport and an EEA family permit or other means of proving that they are the family member of an EEA national with the right to accompany or join the EEA national. A spouse or civil partner will not cease to be a family member in the event of a marital breakdown or separation as long as the EEA national continues to exercise treaty rights in the same member state: Diatta v Land Berlin (1985) and Amos v SSHD (2011). Facilitating Entry for Other Family Members Article 3 Directive 2004/38 obliges member states to facilitate entry and residence for other family members who are dependent or members of the household of the EU citizen in their country of origin. Further other family members who have serious health issues requiring personal care by the EU citizen may be admitted. Finally provision is made under this article for entry to facilitate the residence of a partner with whom the EU citizen has a durable relationship which has been duly attested. Article 10 Directive 2004/38 obliges Member States to issue residence cards to family members of union citizens no later than 6 months from the date on which they submit the application. Page 3 of 23

4 Article 3 is transposed into national legislation by Regulation 8 I (EEA) R 2006, which details extended family members who may be eligible to join a worker in the UK. It can also include brothers, sisters, aunts, uncles and cousins. They may be eligible for residence if: They are dependent on the EEA national or member of his household; (lived in same house for at least 6 months); they are dependent and accompanying the EEA national here; they are dependent and are joining the EEA national here; on serious health grounds they require the personal care of the EEA national; they would meet the dependent relative requirements if the EEA national were a present and settled sponsor in the UK; they are in a durable relationship akin to marriage or civil partnership with the EEA national. Regulation 8 is slightly more specific than Article 3 in stipulating that, as well as requiring dependency or membership of the household, the family member should be either accompanying the EEA national to the UK or wishing to join him there or continue to be dependent upon him or to be a member of his household. Where Regulation 8 requires family members to have been living in the same country as the EEA national before coming to the UK, the Grand Chamber of the Court of Justice of the European Communities (ECJ) in the case of Rahman (2012) stipulates that this is not necessary. In relation to dependency, evidence is required of recent dependency and/or recent household membership. An example of dependency can be found in the case of Bigia v ECO (2009) where the Court found the test to be met where the EEA national provided his adult daughter with rent-free accommodation and sent her money on a regular basis for daily living expenses, bills and clothes. She had no other source of income in this case. It was held in TR Sri Lanka (2008) that serious health grounds must be significantly greater than ordinary ill health and must be supported with detailed medical evidence. Daily personal care must be necessary for the functionality of the dependent. UKBA guidance states that Directive 2004/38 refers in Article 3 simply to facilitating entry and residence of family members. The UKBA, when making a decision on whether to issue a residence card, must assess whether refusal would deter the EEA national from exercising Treaty rights or create an obstacle to exercise those rights. An important factor would be whether there are relatives in the home country that could provide the care. Therefore, in considering cases under regulation 8, if a person had their own family unit in their home country this would be likely to result in a refusal of entry. Thus the closeness and dependency of the relationship will affect the decision. Rahman considered whether Article 3 obliged Member States to make legislative provision to facilitate entry and/or residence to family members in these circumstances and whether Article 3 was directly applicable in the event that a family member cannot comply with any requirements imposed by national legislative provisions. It also considered whether residence in the same country as the union national before they came to the host state was necessary and whether the dependency relied on had to exist shortly before the union citizen moved to the host state. Page 4 of 23

5 The ECJ held in Rahman that Members States are not required to grant every application for entry or residence submitted by family members of a union citizen that shows dependence (but does not fall within the definition in Article 2 (2)). Members States must, however, ensure that their legislation allows those persons to obtain a decision on their application for entry and residence that is founded on an extensive examination of their personal circumstances. Any refusal of residence must be justified with reasons. A wide discretion was allowed for members states to select criteria for entry but the criteria must be consistent with the term facilitate and of the words relating to dependence in Article 3 (2). The legislation must not deprive Article 3 of its effectiveness and whether national legislation did satisfy those conditions was a judicially reviewable decision. In relation to the issue of what constitutes dependence, in order to be dependent on the Union citizen the situation of dependence must exist in the country from which the family member comes, at the very least at the time when he apples to join the Union citizen. Question 2 The Tribunal System The Tribunals Courts and Enforcement Act 2007, replacing the one-tier Asylum and Immigration Tribunal (AIT) in 2010, overhauled the immigration appeals system. It established a dual tribunal process with a First Tier Tribunal and an Upper Tribunal. Both tribunals have an Immigration and Asylum Chamber. The Immigration and Asylum Chamber of the First Tier Tribunal (FTIAC) hears appeals from decisions made by the UK Border Agency (UKBA) either in the UK or abroad at High Commissions and Embassies. Immigration judges either sit alone or with other immigration judges or non-legal members to make the decisions. Onward appeal rights are to the Immigration and Asylum Chamber of the Upper Tribunal (UTIAC). If an appeal raises national security issues or public interest concerns and needs to be heard in camera it will be heard by the Special Immigration Appeals Commission (SIAC). The Statutory Basis for Appeals The statutory basis for appeals is principally Part V of the Nationality, Immigration and Asylum Act 2002 (NIAA 2002). The appeal will be against the Secretary of State or the Entry Clearance Officer and the relevant respondent may be represented by a Home Office Presenting Officer. Not all immigration decisions are appealable. Entry clearance decisions relating to the Points Based System, for example, cannot be appealed. The main categories of decisions which attract a right of appeal are immigration decisions as listed at s82 NIAA The grounds upon which an immigration decision can be brought are found in section 84 of the NIAA 2002 and include where the decision is not in accordance with the immigration rules (s84(1)(a)), where the decision is unlawful under section 6 of the Human Rights Act 1998 (HRA), where the decision breaches EC law (s84(1)(d)), where the decision is not otherwise in accordance with the law (s84(1)(e)), where a discretion should have been exercised differently (s84 (1)(f) ) and where removal would breach the Refugee Convention (s84(1)(g)). Page 5 of 23

6 When the appeal reaches the Tribunal its jurisdiction to determine the case is governed by the NIAA 2002 which permits the Tribunal to treat the appeal as including an appeal against any decision that would give the appellant a right of appeal and including all possible grounds that could have been raised in accordance with the Act. Evidence can be considered up to the date of the hearing in most matters, including asylum cases, but only until the date of decision in entry clearance cases or refusals of certificates of entitlement to the right of abode, as well as incountry appeals under the Points Based System. The FTIAC and the UTIAC have to allow appeals, in accordance with s86 NIAA 2002, if: the decision against which the appeal is brought was not in accordance with the law, including the immigration rules; or A discretion that was exercised in the making of the decision against which the appeal is brought should have been exercised differently. If neither of the above applies the appeal should be dismissed. Where an appeal is allowed a direction can be made to give effect to the decision. This is made under s87 NIAA 2002 and will, for example, direct the Secretary of State to give five years leave to remain in a successful asylum appeal. This must then be complied with unless any further appeal is brought. Just as an asylum seeker or person seeking entry clearance may appeal against a negative decision, the respondent, i.e. the Secretary of State or the Entry Clearance Officer, may appeal to UTIAC against a decision of FTIAC, but only on a point of law. In entry clearance cases the sponsor will usually attend the hearing as all hearings take place in the UK. In asylum, human rights and EEA cases, s92niaa 2002 allows the appellant to stay in the UK and make the appeal in country. Fast Tracked Cases There are certain asylum cases which are non-suspensive and the in-country right of appeal is lost. This is where someone is from a safe third country included in Sch 3 AI (TC) A 2004 or where the claim has been certified by the Secretary of State as clearly unfounded. Section 94 NIAA 2002 contains a list of countries from which a claim is deemed to be clearly unfounded. A claim may also be seen as clearly unfounded if it is so clearly without substance...[it]...would be bound to fail. R v SSHD ex parte Thangarasa; Yogathas (2002) UKHL 36. Asylum cases which are thought to have little merit may be put on a fast track which does give a right of appeal in-country, but the appeal is disposed of very quickly, and the appellant is kept in detention during the process. Appeal Procedure The procedure to be followed in the appeal process is found in the Asylum and Immigration Tribunal (Procedure) Rules 2005 (AIT (P) R 2005). The time limits for appealing decisions are, if the appellant is in the UK, 10 working days or 5 working days if the appellant is in detention. Appeals from outside the UK must be made within 28 calendar days of receiving notice of the Page 6 of 23

7 decision. In all in-country cases the decision is deemed to have been received 2 days after posting. Late appeals can be allowed in special circumstances where it appears fair and just to allow the matter to go ahead. A decision as to whether a late appeal will go ahead will be made on the papers as a preliminary issue. Notice of appeal must be given in writing and lodged with the FTIAC. Specific appeal forms are sent with refusals of entry clearance (IAFT 2) and in-country refusals (IAFT 1). Grounds of appeal are drafted on these forms and lodged within the time limits above. The appellant and respondent then prepare court bundles of documents to be considered, the respondent s bundle including a reasons for refusal letter in an asylum case and an explanatory statement in an entry clearance case. Rules of evidence do not apply in immigration and asylum cases in the same way they do in civil cases. Under r23 AIT (P) R 2005 an asylum appeal should now be fixed for a hearing date no more than 35 days after the date of receipt of the notice of appeal, provided the respondent has provided the relevant documents for the appeal hearing. If an oral hearing is not requested the appeal can be heard on the papers but in most cases a formal hearing will take place. The decision is not usually given at the hearing but is reserved and sent out later with a full determination and reasons for the decision. After the hearing, if the appeal is in relation to an asylum matter, the determination must be served within 10 days of the hearing or the determination of the matter on the papers. Challenging Tribunal Decisions A decision of the FTIAC can be challenged and either corrected, amended or set aside by the FTIAC itself or permission granted for the matter to be heard by the UTIAC. If the FTIAC refuse permission to appeal the application can be renewed to the UTIAC itself. If it is considered that there is an error of law in the determination, permission will be granted for the UTIAC to reconsider the appeal. Further appeal would be to the Court of Appeal, with leave, on a point of law where an important point of principle or practice or some other compelling argument is raised. In limited circumstances the UTIAC can review and correct its own decision, namely where legislative provision or binding authority which would have materially affected the decision has been overlooked, an authority has been decided since the UTIAC decision that would have a material effect on the decision, or if there are procedural errors. Further appeal can be made to the Supreme Court if leave is granted because there is a point of general public importance. If a human rights point was in issue there would then be the possibility of an application to the European Court of Human Rights. Judicial Review Judicial review is no longer granted against the refusal of leave to appeal against first-instance decisions, as it used to be in immigration cases. However, clearly unfounded claims under s94 NIAA 2002 (discussed earlier) do not carry an in - country right of appeal and therefore judicial review is the only option. Fresh claims for asylum in cases where a first asylum claim has failed and the Home Office have rejected them without a right of appeal may also be judicially reviewed. In BA Nigeria (2009) the Supreme Court held that some fresh claims should attract appeal rights. Page 7 of 23

8 Judicial review is often used to challenge decisions made by the Home Office in respect of policies outside the Immigration Rules, e.g. in Munir and Rahman v SSHD (2012) UKSC 32 where the effect of the now-defunct seven-year child concession on subsequent applications was in issue. Question 3(a) Where a person is born outside the UK and acquires British citizenship through having a parent who is a British citizen he or she will be a British citizen by descent. This means that if he/she were then to have a child abroad he/she would not automatically be able to pass on British citizenship to that child. By contrast a British citizen other than by descent is a British citizen who has acquired citizenship through birth in the UK and as such could pass on that citizenship to a child. Before the British Nationality Act 1981 (BNA 1981) came into force on 01/01/1983 a person who was born outside the UK before 01/01/83 would only be a British citizen if his father was born in the UK or his father was registered or naturalised as a British citizen in the UK before the child s birth and his parents were married or subsequently marry. This was the main way to acquire British Nationality by descent. The BNA 1981 rectified the inherent injustice in this provision by establishing citizenship through the mother under Section 1. Now a child born outside the UK who has a British father or mother will acquire British citizenship by descent. However if a person was born outside the UK to a British mother before 01/01/83 when citizenship only passed automatically through the father, they can now register as a British citizen. Until 1 July 2006, a father could only pass on his nationality in this way if he was married to the child s mother. S9 NIAA 2002 rectified this previous injustice in the law and amends BNA 1981 to include the father of an illegitimate child, provided proof of paternity is produced. Under s2 (1) BNA 1981 in order to pass on British nationality and allow a child to become a British citizen by descent, either the mother or the father must be a British citizen otherwise than by descent. This restricts the passing on of British citizenship to one generation only. BNA s 3 (3) does mitigate this to some extent as a child born overseas has the right to be registered as a British citizen by descent at a British consulate if either: One of the parents is a British citizen by descent; the British citizen by descent parent has a parent who is or was a British citizen otherwise than by descent; and the British citizen by descent parent had at some time before the child s birth lived in the UK for a continuous period of three years, not being absent for more than 270 days in that period. S 3 (5) BNA 1981 allows a child born overseas to a British citizen by descent parent to be registered in the UK as a British citizen if they have lived with their parents in the UK for three years before the application. Page 8 of 23

9 Question 3(b) Under s40 BNA 1981 the Secretary of State can deprive a person of their citizenship if satisfied that it would be conducive to the public good. This provisions is by virtue of an amendment made to the BNA by s57 Immigration Asylum and Nationality Act 2006 (IANA 2006). The UKBA guidance states that this can be done in cases involving national security, terrorism, serious organised crime, war crimes and unacceptable behaviour such as preaching jihad. Section 42A BNA 1981 also gives a right of appeal against a decision to deprive a person of their British citizenship. The Secretary of State can also deprive a person of their British citizenship where it was obtained by registration or naturalisation, if he is satisfied that it was obtained by means of fraud, false representation or concealment of a material fact. The effect of these provisions is that even if someone acquired their citizenship by birth in the UK it could still be taken away from them if the Secretary of State deemed it conducive to the public good to do so. This was not possible before April Commonwealth citizens with the right of abode under s 2(1) (d) IA 1971 and s 2 (2) IA 1971 (i.e. where born outside the UK to a parent born in the UK or a woman married to a Commonweath citizen man before 01/01/1983) can also have the right of the abode removed from them if the Secretary of State deems it conducive to the public good. The Secretary of State cannot, however, make an order depriving someone of their citizenship in either of these ways if the effect of the order would be to render a person stateless: Al Jedda v SSHD (2010). If such an order is made s40 (5) provides that the Secretary of State must serve notice on the person subject to the order explaining the decision, the reasons for it and the right of appeal against it. Question 3(c) Naturalisation is the process whereby a person settled in the UK can become a British citizen through residence in the UK or marriage to a British citizen. Under S6 (1) BNA 1981 an adult can be naturalised as a British citizen. The granting of citizenship to any person who is not a British citizen is at the discretion of the Home Secretary. If a person is married to a British citizen it used to be easier for them to be granted indefinite leave to remain, requiring 2 years limited leave to remain and a year s indefinite leave to remain. However the probationary period has now been extended to 5 years and only after that can a person be granted indefinite leave to remain. In order for a person married to a British citizen to qualify, in addition to the good character requirement, a person must be settled at the time of the application, have been living in the UK legally for 5 years continuously, and have been physically present in the UK on the date 5 years before the application. They must not have been absent for more than 270 days in total during this period and not more than 90 days in the year immediately before the application. Finally they must have sufficient knowledge of the English language and of life in the UK. This is shown either by passing a Life in the UK Test, already having satisfied the Secretary of State as such when granted indefinite leave to remain or attending a course which includes citizenship materials for English for Speakers of Other Languages (ESOL). Page 9 of 23

10 A person can also be naturalised on the basis of residence if they have been in the UK for five years. For example someone working in the UK under the PBS would be entitled to settlement once they had been here for five years. After having completed a year s indefinite leave to remain they would be entitled to apply to be naturalised as a British citizen. If a person is not married or in a civil partnership with a British citizen the applicant must have been settled for at least one year at the time of the application, have lived legally in the UK for five years and been present in the UK on the date five years before the application. The applicant must not have been absent for more than 450 days in total during the five years and not more than 90 days in the year immediately before the application. The good character and sufficient knowledge of English language and life in the UK tests also apply. Additionally an applicant in this category must show an intention to live in the UK. This requirement can usually be met if the applicant s stated intention is to have his home or principal home in the UK. Question 4 Introduction The new family immigration rules (HC 194) aim to be a clear, consistent and fair way of determining entry clearance applications in this area ( Family Migration: A Consultation June 2011). They replace HC 395 for new applications for entry, although there are transitional provisions for leave to remain applications which will be dealt with under the old rules. HC 395 contained fairly straightforward rules relating to partners and a lot of guidance on their implementation was contained in the Immigration Directorate Instructions (IDIs). The new rules, HC 194, profess to reflect how the balance should be struck under Article 8 ECHR when considering applications under this route. However, following the Supreme Court decision in R (on the application of Alvi) v SSHD (2012) UKSC 33 a lot of the former guidance was rushed through parliament and made into new immigration rules in an attempt to placate the finding that a change in practice [that] has the potential to determine the outcome of a application for leave to enter or remain must be laid before parliament (Lord Clarke para 122). It is arguable that the new rules are prescriptive and complex and how they will work in practice remains to be seen. The New Partner Rules in overview A partner is defined in Appendix FM GEN.1.2 HC 194 as the applicant s spouse, the applicant s civil partner, the applicant s fiancée or proposed civil partner, or a person who has been living with the applicant in a relationship akin to a marriage or a civil partnership for at least two years prior to the date of the application. This definition of an unmarried partner deals with the cohabitation element before the requirements are listed. The partner rules contain suitability criteria, which incorporates general grounds for refusal of entry clearance, eligibility requirements and provisions on leave to remain. Eligibility for Entry Clearance as a Partner The substantive requirements of the rules relating to entry are found in Appendix FM, section E-ECP which is termed Eligibility for entry clearance as a partner. This is split into relationship requirements at E-ECP 2.1- E-ECP 2.10, financial Page 10 of 23

11 requirements at E- ECP and the English language requirement at E-ECP Requirements for leave to remain are then found at Section R-LTRP 1.1 with suitability requirements at S-LTR similar to those for entry clearance and eligibility criteria similar to that for entry clearance at E-LTRP Appendix FM-SE lists the acceptable evidence of financial requirements, formerly contained in the IDIs, and arguably highly prescriptive for immigration rules. Relationship requirements The first requirement remains that there must be a sponsor present and settled in the UK (E-ECP 2.1). Rules ECP 2.2 and 2.3 provide that the applicant and the partner respectively must be 18 or over at the date of the application. They must not be within a prohibited degree of relationship which the guidance at 3.1.2c details (e.g. a sibling as prohibited by the Marriage Act 1949). The parties must have met in person (the face to face element added for clarification). The met requirement has previously been held by the tribunal in the case of Meharban (1989) to mean having an appreciation of one another in the sense of appearance or personality. This could be proved by photographs or bills showing cohabitation as examples. Rule E-ECP 2.6 states that the relationship between the applicant and partner must be genuine and subsisting. The Immigration Directorate Instructions (IDIs at 2.0 encourage caseworkers to consider the objective factors when assessing applications such as the length of the relationship, any cohabitation or plans to cohabit, children, shared responsibilities, visits to each other s country and consent in the case of arranged marriages. There is also a lengthy list of factors which may be associated with a relationship which is not genuine and subsisting. These include the registrar s report, a public statement from the applicant or partner that the marriage is a sham, a public statement of forced marriage from the applicant or from a reliable third party, failure to attend an interview, previously sponsoring another partner where the relationship ended after ILR, inability to communicate with partner and refusal of another application in another category, to name only some. A lot of these requirements are controversial; simply because someone has been refused a student visa, for example, does not mean that they are not genuinely entering for marriage. The provision allowing a statement from a reliable third party for example may be also be seen as subjective but in some cases, such as a forced marriage case, a bride may be reluctant to come forward, making this the only evidence available. The guidance does emphasise that it is not to be considered as a checklist but to assist and focus the decision making and that decisions would be made on a case by case basis looking at the whole of the evidence. It could provide caseworkers with a list of justifications for refusing a claim and it remains to be seen whether the UKBA caseworkers will approach the evidence in the manner anticipated. The validity requirements for partners and fiancées remain the same and are found at E.C.P 2.7 and E.C.P 2.8. The final eligibility requirement is ECP 2.10 that the applicant and partner must intend to live together permanently was also found in the old rules. Page 11 of 23

12 Financial Requirements Arguably the most controversial section of the new family rules is the maintenance requirement found in E-ECP 3.1. The applicant must provide specified evidence, from sources listed in the rules, of a specified gross annual income of at least 18,600; an additional 3,800 for the first child and a further 2,400 for each additional child. This could be produced alone or in combination with 16,000 savings plus additional savings of an amount equivalent to 2.5 times the amount which is the difference between the gross annual income from the sources listed in paragraph E-ECP (a)-(d) and the total amount required under paragraph E-ECP 3.1 (a). The documentation and sources required to evidence this provision are now very specific, including 6 months of wage slips or 12 months if the employer has changed in the past 6. The requirement that a couple requires 18,600 to maintain themselves has created considerable controversy. This is the level at which a couple cease to be eligible for any welfare benefits (as recommended by the Migration Advisory Committee in November 2011) and is a lot more than the original yardstick of a similarly constituted family receiving income support (KA Pakistan 2006). Currently this would be 5,500 per annum plus housing benefit. This distinction may lead to challenge as being a breach of the UK s obligations under Article 8 ECHR. Annex FM- SE A1 (c) and Annex FM 1.7 of the modernised guidance make it clear that salaried employment of the applicant is only considered if the applicant is in the UK, but not otherwise. Potential earnings are not accounted for. Therefore an entry clearance application of a partner from abroad can only take into account the salary of the UK sponsor. This may be unreasonably harsh on some couples, particularly where the partner abroad has a job secured in the UK earning a significant income. Annex FM 1.7 also stipulates that third party support (TPS) is not permitted. After a long line of contradictory case law on this the Supreme Court case of Mahad and others (2009) had made it clear TPS was permitted as the purpose of the rules was that there was no recourse to public funds. This new approach overrules this and disadvantages many applicants. Many other sources such as income-related benefits and tax credits are also not permitted in the calculation, arguably a harsh measure given the increased level of maintenance. The final financial requirement of adequate accommodation remains largely unaltered. Presumably, therefore, third party support for accommodation will still be permitted and the artificial distinction between support with accommodation and help with maintenance, warned against in Mahad, will again become the legal position. English Language Requirement The English language requirement is found at E- ECP 4.1 and appears similar to the previous requirement. Exception There is an exception to these requirements found in Section EX to Appendix FM. It is that an applicant in a genuine and subsisting relationship with a settled British citizen or someone with refugee leave or humanitarian protection and there are insurmountable obstacles preventing family life with the partner continuing outside the UK (EX1 (b)). This purports to strike the balance in article Page 12 of 23

13 8 cases (a qualified right) between immigration control and family life. This was a decision always previously made by the courts who had grappled with whether the test was whether it was reasonable to expect the couple to live elsewhere (Huang 2007) or whether they had to show insurmountable obstacles against doing so (Abdulaziz, Mahmood (2000). More recently in MA (Pakistan) (2009) the test was held to be: whether there was any sensible reason as to why [an appellant] should be required to live elsewhere. The preference in the new rules for the more stringent test may be subject to future legal challenges. The Leave Granted Where before married or civil partners and unmarried couples or same sex partners were granted 27 months limited leave to enter initially, this has now increased to 33 months under D-ECP. Following this a further 30 months limited period of leave is granted under D-LTRP before an applicant can apply for indefinite leave to remain. If a person comes under EX-1 but does not satisfy all the requirements they must wait 10 years. Fiancé(e)s or proposed civil partners are still granted 6 months during which the marriage should take place. The former allowance for a couple who have been living together for four years abroad as unmarried partners, spouses or civil partners to be able to come to the UK for immediate settlement has also been abolished. Conclusion The new rules relating to partners have been implemented amid controversy. Expecting young couples to have such a high level of maintenance could arguably breach Article 8 ECHR. The detailed provisions relating to documentation required, permitted sources of income and indicators of genuine relationships are arguably overly prescriptive and cumbersome. Further, even when leave is granted a migrant will now have to wait at least five years to be entitled indefinite leave to remain. It is questionable as to whether this is the consistent, clear and fair rules promised and it can only be hoped that the UKBA and the courts take the broad approach to the evidence encouraged and determine each case according to merit. Question 1 SECTION B Kenya is a visa national country so both Sarah and Claire will need to obtain entry clearance which functions as leave to enter for whatever purpose for which they are coming to the UK. Both Sarah and Claire satisfy the age criteria for entry clearance as a visitor, student, or temporary worker as they are both over 18. Sarah Entry as a Student Sarah is coming as a student so will now come under Tier 4 of the Points Based System (PBS). She will enter as a Tier 4 (General) Student and the requirements for entry are governed by rule 245ZT HC 395. Sarah must have 30 points under Appendix A for sponsorship and 10 points for maintenance under Appendix C. There is no points requirement for English language for a degree level course of study but an ECO, on examination or interview, may require the applicant to demonstrate English language proficiency of the required standard without the assistance of an interpreter. A degree-level Page 13 of 23

14 student is required to have level B2 competence in English, but the University can confirm this, rather than Sarah having to sit an English language test. In order to meet the 30 points for attributes Sarah will need a Confirmation of Acceptance for her Studies (CAS). This is a virtual document in the UKBA s IT sponsorship management system. It must identify Claire by name, nationality and passport number and list the evidence provided by her in her application. It needs to contain details of the course title, the qualification, commencement date and expected end date, the number of study hours per week, details of work placements and course fee details and any fees and accommodation costs already paid. The sponsor s licence number and details of the institution should also be contained in the CAS. There should be no more than six months in between the issuing of the CAS and the application for entry clearance or leave to remain. The course itself has to meet minimum academic requirements that are listed in Appendix A to the immigration rules and she must undertake her studies at the University. In order to obtain the 10 points for maintenance Sarah needs the course fees plus 800 per month for the first nine months of the course, i.e. 7,200. Her parents are willing to fund her fees and living expenses but she will need to have this money in her or her parents bank account for a 28-day period ending no more than 31 days before the application Appendix C. If Sarah is successful in her application she will be granted 3 years and 4 months leave to remain for a 3 year degree. She must return home at the end of this period. Claire Entry as a Visitor or a Temporary Worker Depending on whether Claire enters the UK as a visitor, to visit her aunt and uncle, or as a temporary worker to work as a singer, the requirements of the rules will be very different. Each possibility will be discussed in turn and the relative merits and restrictions of each category considered. Entry as a Visitor If simply coming to visit Claire would enter on a visit visa and would have to satisfy the immigration officer that she meets the requirements of para 41 HC 395. A visit visa is granted for 6 months in the majority of cases and cannot be extended. Claire needs to be genuinely seeking entry as a visitor for a limited period that does not exceed six months. This could be problematic here, as could having to show that she intends to leave the UK at the end of the visit and does not intend to take up employment. If her purpose is simply to visit her aunt and uncle she should be able to satisfy this. However if she intends to work this will defeat the purpose of entry as she will be undertaking activity that is not permitted for a visitor. Her work as an entertainer would defeat this requirement and also show intention to take up employment. It should not be assumed that she will stay beyond her visa simply because she could do so (AA and others (2006)). So if she wishes to come to visit only she should be clear of her intention and her wish to study should not prevent her Page 14 of 23

15 obtaining a visit visa. This must be her clear intention, however, and may be questioned by the Entry Clearance Officer in her circumstances. Maintenance and accommodation plus meeting the cost of the return journey should be easy to satisfy. Claire has 3500 in savings and her aunt and uncle are happy for her to stay in their house. Provided they have a spare bedroom for her (Saghir Ahmed) this will be sufficient. Given the fact that Claire is eager to work as a singer in the UK she would be ill advised to come as a visitor. As shown above she will defeat requirements 41(i) to (iii) and possibly 41(v)). If Claire did come as a visitor she would not be able to extend his visit or switch to being a student or a temporary worker. Entertainer Visitor The other option available is that she comes as an entertainer visitor. In order to do this, however, she would need to have a specific event or competition that she was coming to participate in and at the moment it is only a tentative arrangement. Claire would have to satisfy the requirements under para 46S. It might be that if the company had in mind a specific competition or event that they wished Claire to be involved in then she would be able to fulfil these criteria. She would then be able to switch to being a temporary worker as this is one of the few categories she could switch from. If Claire was entering temporarily for a pre-arranged engagement there is a possibility that she could enter under rule 56 x iii (e). However in this case it would probably not be suitable as she wishes to enter for more than a month. Claire Entry as a Tier 5 Temporary Worker Claire would be best advised to enter under Tier 5 of the Points Based System as a temporary worker in the UK. Tier 5 covers temporary working in the UK and is for performers, entertainers and sportspersons, allowing them to work in the UK for up to 12 months, for example with a touring theatre company. 30 points are acquired for relevant sponsorship and 10 for maintenance ( 800 or A rated sponsor that verifies she will not claim benefits). Claire could enter as an entertainer under para 245ZM. In order to come as an entertainer a sponsor is required and they will need a licence. The theatre company is a registered sponsor on the UKBA website. They would need to issue a certificate of sponsorship to Claire. The sponsor must consult Table 5 of Appendix J codes of practice for the creative sector. On the facts it may be that she has international status or a certain attribute necessary for the role. A Tier 5 temporary migrant will be granted leave to enter for a period of time matching their contract of employment, or series of contracts of employment. As an entertainer she could obtain leave to enter for three months, if her engagements were less than three months in advance, but as she plans to work for a year she will be better advised to seek entry clearance. In order to enter under this heading Claire must achieve 30 points for attributes and 10 for maintenance. In relation to attributes, 30 points are given for the certificate of sponsorship and 10 for maintenance. She needs at least 800 available and she has 3500 in savings. Page 15 of 23

16 Conclusion Sarah should therefore satisfy the requirements for entry as a student and Claire would be best advised to come as a temporary worker or as an entertainer visitor for six months, then changing to a temporary worker if she wishes to stay longer. She is likely to defeat many of the general visitor requirements if she wishes to work but, given her particular circumstances, entry as a Tier 5 temporary worker will be appropriate. She will have to return home after her stay in the UK and regain entry as a student if she proposes to study in the future. Question 2(a) Introduction This case has been refused on the grounds that the claim is not credible and that, even if it is accepted, Afsoon s rape was not for a refugee convention reason. It is also stated that she can live elsewhere but does not specify where she should go. It is submitted that the Home Office refusal letter is not legally sound and she fits the definition of a refugee for the following reasons: Well founded fear: Subjective fear: In Asuming v SSHD, the court, guided by the UNHCR Handbook paragraphs 40 to 41, stated that subjective fear is nothing more or less than the belief which the appellant states is likely to happen if he returns to his country of origin. Afsoon s subjective fear is clear in that she has said she is afraid of torture and possible death on return. This will be contained in her statement which will be submitted to the Home Office. Objective fear Her fear is objectively well founded (Horvath (2000) is authority for this requirement) as the Amnesty International report states that SUSPECTED political opponents and political family members are tortured and killed. She would therefore still be a target as a family member of a political activist as she was suspected of involvement herself. Her fear is also current (Adan (1998)) as the targeting of family members of political activists is an ongoing problem in Iran. It is submitted that there is a real risk (PS Sri Lanka (2008)) that she would be persecuted on return as her subjective fear is supported by objective evidence. It is submitted that the risk on return is severe in this case given the history and the fact that she is in danger from the government. Persecution: The treatment that Afsoon has suffered amounts to persecution. She has suffered serious harm plus failure of state protection Shah and Islam (1999). One act of torture would be sufficient to amount to persecution on the authority of Demirkaya (1999). It is an act that is sufficiently serious by its nature for the purposes of Article 9 Refugee Qualification Directive (RQD) and regulation 5 Refugee Qualification Regulations (RQR). The gang rape amounts to persecution and is a grave and abhorrent act sufficiently serious to amount to torture, Aydin v Turkey (1997). Page 16 of 23

17 Furthermore the central question at the hearing is the risk on return, Karanakaran [2000]. On return Afsoon is at risk of being killed. Protection: The agents of persecution are state agents, in this case the government officials. There is therefore no effective protection available. Government officials are at the high end of the Svazas (2002) spectrum of state responsibility and there is no protection in these circumstances. Convention Reason: Afsoon is a member of a political family and suspected of being more politically involved than she is. The first Convention reason is imputed political opinion. On the authority of Gomez (2001), upheld in Suarez (2002), political opinion can be real or imputed. The fact that the security officials keep asking Afsoon and her brothers about the organisation shows imputed political opinion. Afsoon is not political herself, but the opinions attributed to her by the persecutors are that she and her brothers are involved in the organisation themselves. This imputed political opinion is sufficient to bring her within the definition of a refugee in Article 1A Refugee Convention. A further possible Convention reason is the particular social group as they were targeted because they were a political family. The immutable characteristic for the purposes of Shah and Islam (1999) or the innate characteristic for the purposes of the Refugee Qualification Directive is the blood ties with her family (K v SSHD (2006)). As there are two clear convention reasons in this case it is submitted that the Home Office s assertion that Afsoon was not raped for a convention reason is questionable. She was targeted as she was a member of a political family and because of the political opinions she was perceived to hold. The circumstances surrounding her gang rape show that she asked about her own involvement in the political organisation and the whereabouts of her parents before she was attacked, clearly showing the rape was for a convention reason not sexual gratification (Okonkwo (1998)). Credibility In relation to the Home Office s assertion that she did not know the answers to questions about the political party at her asylum interview, it is submitted that she would not know about a party she was not involved in. Her parents were active members but she was only a suspected political activist and was not actually involved with the party. The Home Office should not expect Afsoon to corroborate her claim with membership cards and a summons. Asylum is not an area of law that requires corroboration (Karakas (1998)) and she should not be penalised for this. A positive approach should be taken to the evidence Karanakaran (2000). Conclusion It is therefore submitted that she has a well founded fear of persecution on return on the grounds of imputed political opinion and membership of a political Page 17 of 23