IMMIGRATION & ASYLUM REACCREDITATION SCHEME

Transcription

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

2 INSTRUCTIONS TO CANDIDATES THE INVIGILATORS ARE UNABLE TO ANSWER ANY QUESTIONS ABOUT THE EXAM PAPER. IF YOU ARE UNSURE ABOUT A QUESTION, EXPLAIN THE APPROACH YOU HAVE ADOPTED IN ANSWERING IT. This examination paper contains 12 pages. Please check that you have all pages. The time allowed for this examination is 2½ hours plus 30 minutes reading time. Write in blue or black ink. You must answer all three compulsory questions. Please note that if you do not have sufficient time to set your answers out in full, credit will be given for answers which highlight the points to be made in brief form. Credit may also be given if you indicate matters that you would investigate by further research if you are not familiar with the detail of any particular issue from your practice. Please note that all relevant country information is contained in the questions. No additional marks will be awarded for answers relying on more specialised knowledge. To pass this assessment, candidates must obtain at least 50% of the marks. This paper was set on 12 December 2012 and candidates will obtain marks if they show an accurate knowledge of law on that date. Although no one will lose marks for making reference to later developments, this will not earn bonus marks. Page 2 of 12

3 Permitted materials: This Examination is Open Book. Candidates will be able to take into the examination room any material, including text books, other bound material, downloaded material, personally prepared notes and lecture notes. All documents may be annotated and underlined in as much detail as the candidate requires. Post it notes are also allowed in this context. Page 3 of 12

4 THIS QUESTION PAPER MUST BE HANDED IN WITH YOUR SCRIPTS AT THE END OF THE EXAMINATION Page 4 of 12

5 Question 1: Asylum [34 Marks] Maya is a national of the (fictional) country of East Mall. She comes to see you for advice on her claim for asylum. The country of Mall was initially a unified country but in 1956 it split into two separate countries; East Mall and West Mall. East Mall is governed by the People s Republic of Mall [ PRM ] who do not allow any opposition groups to operate within East Mall. West Mall is governed by the West Mall Democratic Party [ WMDP ] and there is a thriving opposition movement which is allowed to operate freely within West Mall. Despite the problems with opposition groups operating within East Mall there is an opposition party, the East Mall Freedom Party [ EMFP ] which operates clandestinely. Maya has been a member of the EMFP for 5 years. She has been actively involved in recruitment and uses her position as a university lecturer to try to gain student recruits for the opposition. Maya tells you that she arrived in the UK last week and that whilst in East Mall she was detained by the authorities. Maya tells you that she was detained for a month during which time she was interrogated and beaten from which she still bears scars. She says that she was released from detention following payment of a bribe and that she was due to report to the authorities a week after her release but that she left East Mall before her reporting date. Maya tells you that she travelled through West Mall en route to the UK. Maya has already claimed asylum and has attended her screening interview. She is due to attend her substantive asylum interview and wanted to be legally represented at that interview which is due to take place next week. (a) What further information might you require from Maya regarding her claim for asylum before attending the interview? (6 marks) Page 5 of 12

6 (b) Maya is relying on political opinion as her Refugee Convention reason. With reference to any applicable statutory instruments, what is the definition of political opinion? (2 marks) Maya tells you that she did not disclose to the Secretary of State during her screening interview that she had travelled through West Mall and that she told the interviewing officer that she left via a different route. She does not wish to disclose this to the Secretary of State in case the Secretary of State states that she can go to West Mall. (c) What is your advice to Maya? (5 marks) You attend the substantive interview with Maya. At the end of the interview, she informs the interviewing officer that she has further documents which she wishes to submit. She tells you after the interview that the documents are not in English. You are worried about whether you will be able to submit them in time if they need to be translated. (d) (i) How many days does the Secretary of State usually give in which to submit the documents? (1 mark) (ii) Are you able to submit the documents un-translated? (1 mark) The Secretary of State refuses Maya s claim for asylum but the only reason given for the refusal is that Maya did not claim asylum as soon as possible i.e. on her arrival at the airport in the UK. (e) With reference to any applicable Immigration Rules is the Secretary of State able to refuse Maya solely on this basis? (2 marks) Page 6 of 12

7 Following further consideration, the Secretary of State refuses Maya s claim for asylum on the grounds that she is able to obtain nationality from West Mall and that she could therefore relocate to West Mall. (f) What must the Secretary of State consider when considering whether Maya can obtain West Mall nationality? (6 marks) (g) Maya appeals against her refusal. What evidence would you require in order to properly present Maya s appeal? (5 marks) (h) On the morning of the appeal hearing, the Secretary of State informs you that they are withdrawing their decision. With reference to any applicable Procedure Rules, what effect does this have on Maya s appeal? (3 marks) The Secretary of State has granted Maya refugee status. Maya comes to see you for advice about her husband who is still in East Mall and whom she wishes to join her in the UK. Maya was married before she left East Mall. She is not working and is receiving public funds. She is worried that her husband will not be able to join her in the UK because of this. (i) What is your advice to Maya? (3 marks) Page 7 of 12

8 Question 2: Immigration Law [33 Marks] Numan was born in 1980 in Australia. His family immigrated to the UK in In 1999, at the age of 19, he acquired British citizenship. In 2005, at the age of 25, he married Tahira, a citizen of Canada. Because of Tahira s educational and later work commitments, they decided to delay making an application for Tahira to join Numan in the UK. During the last seven years, Numan has visited Tahira in Canada at least once a year; in some years he has visited up to four times. They have two children together, Khadijah aged 5 and Hamzah aged 2. Both of the children were born in Canada. Tahira, Khadijah and Hamzah all have only Canadian passports. Tahira has finally completed her contractual obligations in Canada and the couple have decided to make an application for Tahira and the children to join Numan in the UK. Numan comes to see you to obtain some initial advice. (a) Advise Numan on the financial threshold he would have to meet in order to sponsor applications for entry clearance by Tahira, Khadijah and Hamzah. Explain your answer. You must refer to relevant Immigration Rules in your answer. (6 marks) Numan tells you that he does not earn the annual salary you indicated in your answer to a) above. He wants to know if the shortfall can be met from his savings of 14,000 which he has had for over a year. (b) Does the fact that Numan has savings of 14,000 have any effect on his position? Explain your answer. You must refer to relevant Immigration Rules in your answer. (3 marks) Numan informs you that Tahira also has savings. (c) Can the savings that Tahira has be used to bridge any shortfall? You must refer to relevant Immigration Rules in your answer. (3 marks) Page 8 of 12

9 (d) Numan wants to know whether Khadijah and Hamzah qualify for British citizenship and if so, how he might evidence this. Advise him. You must refer to relevant statutory provisions in your answer. (4 marks) (e) How would your advice in relation to the financial threshold differ in the event the children were able to evidence British citizenship? Explain your answer. You must refer to relevant Immigration Rules in your answer. (5 marks) Following your advice, Numan takes certain actions. As consequence, Numan and Tahira need to meet a lower financial threshold than the one you initially advised. They meet this lower threshold and you make an application for Tahira to be granted entry clearance. (f) What is the maximum period for which Tahira can be granted entry clearance? You must cite relevant Immigration Rules in your answer. (2 marks) Whilst considering Tahira s application, the Entry Clearance Officer, becomes suspicious about the genuineness of one of the specified documents submitted by Tahira and Numan. (g) What effect might the ECO s suspicion have on the way in which the application is considered? You must cite relevant Immigration Rules in your answer. (6 marks) Page 9 of 12

10 Consider the following scenario: Jerry is 14 years old. He was born in Singapore. His mother was a citizen of Singapore; as a consequence, Jerry obtained Singaporean citizenship and was issued with a passport. Four years ago, Jerry s mother died and his father, Ben, who is a British citizen returned to the UK bringing Jerry with him. They have been living in the UK ever since. Ben has been advised that because he (Ben) was born abroad, he cannot pass on his citizenship to Jerry. Ben contacts you because he wants to know whether there is any other route via which Jerry can obtain British citizenship. (h) Advise him with reference to relevant statutory provisions. (4 marks) Page 10 of 12

11 Question 3: EU question [33 Marks] IMPORTANT: YOU MUST CITE RELEVANT EEA REGULATIONS WHERE YOU ARE ASKED TO DO SO, IN ORDER TO OBTAIN FULL MARKS FOR THAT QUESTION. Szusa is a citizen of Austria. Three years ago, whilst working in New Zealand, she met Domingo, a citizen of Mauritius. They formed a relationship but after six months, Szusa returned to Austria. Domingo visited Szusa in Austria several times and they eventually decided to get married during the course of a visit by Domingo to Austria a year and half ago. Domingo is still working in New Zealand. Four months ago, Szusa moved to the UK to take up a job with the Home Office. (a) What residence rights does Szusa have? Explain your answer. You must cite relevant EEA Regulations in your answer. (6 marks) Domingo wishes to make an application to join Szusa in the UK as her spouse. (b) What is the procedure for making such an application? (4 marks) The ECO refuses the application on the basis that he suspects that Domingo and Szusa s marriage is a marriage of convenience. No further explanation is provided by the ECO. (c) Who bears the burden of proof in such circumstances? You may cite relevant case law in your answer. (5 marks) The ECO s decision is overturned in a review that takes place shortly after the refusal. Page 11 of 12

12 (d) What document will Domingo be issued with? How long is such a document usually valid for? You must cite relevant EEA Regulations in your answer. (3 marks) Domingo arrives in the UK. Szusa was already pregnant with their child and she gives birth to a baby boy, Ignacio, two months later. Szusa starts to suffer from post natal depression (although she continues to work part-time) and her relationship with Domingo deteriorates. A couple of months later, she issues divorce proceedings and the couple are divorced. Domingo is advised that he no longer has a right to stay in the UK but decides to stay anyway because he wants to be near his son. Four years later, Szusa dies. Domingo immediately takes over the daily care of Ignacio who now attends school full time. (e) What is Ignacio s immigration status? Explain your answer. You must cite relevant EEA Regulations in your answer. (5 marks) (f) How does Ignacio s status affect Domingo s immigration status? Explain your answer. You must cite relevant EEA Regulations in your answer. (5 marks) (g) In the event that Domingo is able to obtain a right of residence in the UK, what document can he apply for to evidence such a right? How long would such a document be valid for? You must cite relevant EEA Regulations in your answer. (5 marks) Page 12 of 12