LEVEL 6 - UNIT 8 IMMIGRATION LAW SUGGESTED ANSWERS - JUNE 2014

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1 Note to Candidates and Tutors: LEVEL 6 - UNIT 8 IMMIGRATION LAW SUGGESTED ANSWERS - JUNE 2014 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 2014 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 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 all 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 s84 NIAA 2002 and include where the decision is not in accordance with the immigration rules (s84(1)(a)), where the decision is unlawful under s6 of the Human Rights Act 1998 (HRA) (s84(1)(c)), 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)). Where the hearing takes place 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 Page 1 of 20

2 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). 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 NIAA 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, and usually as at the date of application in in-country 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 under s87 NIAA 2002 can be made to give effect to the decision, for example, to 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. Time Limits 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 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 Page 2 of 20

3 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 determined 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. Question 1(b) 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 may be an error of law in the determination, permission will be granted for the UTIAC to consider whether there actually is an error. If there is, UTIAC will either re-make the decision on the appeal itself or remit the appeal to FTIAC for a fresh decision. Further appeal from UTIAC would be to the Court of Appeal, with leave, but only 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. If there is uncertainty about a point of European Union law, a reference can be made to the Court of Justice in Luxembourg. Question 2 Introduction Before the British Nationality Act 1981(BNA) if a person was born in Britain they would automatically become a British citizen. However if a person was born outside the UK they would only automatically become a British citizen if their father was British and was married to their mother. These rights changed with the passage of the BNA. Before the British Nationality Act 1981 A person who had been born or naturalised in the UK or colonies, or whose father had been, became a citizen of the UK and Colonies (CUKC) on the coming into force on the British Nationality Act The 1948 Act also provided for the acquisition of CUKC status by birth, adoption, descent, registration or naturalisation in the UK. Naturalisation at this time was at the discretion of the Page 3 of 20

4 Home Office and granted if a person was of good character, had sufficient knowledge of the English language, had 12 months residence in the UK prior to the application and had been resident in the UK and colonies for four out of the seven years preceding the application. The Immigration Act 1971 then restricted those CUKCs eligible for the right of abode in the UK to those people termed patrials or the wives of patrials. Section 2 IA 1971 defined patrials as CUKCs who had acquired that status: By birth, registration, naturalisation or registration in the UK; or By being born to or legally adopted by a CUKC parent AND the parent was born, adopted, naturalised or registered in the UK or the parent had been born to or adopted by a parent who was a CUKC at the time of birth or adoption; or Being ordinarily resident in the UK for five years or more; or Being a Commonwealth citizen born or adopted by a CUKC parent born or adopted in the UK; or Being a Commonwealth citizen married to a CUKC man (or would have been if not deceased). The British Nationality Act 1981 Patrials On the passage of the BNA 1981, the term British citizen was introduced and those CUKCs with the right of abode as a patrial became British citizens. Those Commonwealth citizens who were patrials retained the right of abode but did not become British citizens. Parentage Section 1(1) BNA 1981 entitles a person to British citizenship if he is born in the UK and if, at the time he or she is born, one of his or her parents is settled in the UK. Section 1 BNA abolished the jus soli principle and established citizenship through the mother or, if he was married to the mother, the father. Before The BNA 1981 the issue of parentage was more relevant to someone who was born outside the UK. Since 01/01/83, if a person is born in the UK and at the time of his/her birth either of his parents is settled here, he will now be a British citizen. 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 is known as acquiring British citizenship by descent. The BNA 1981 rectified the inherent injustice in this provision by establishing citizenship through the mother under section 1 as discussed below. Before 1 July 2006 a father s status was only relevant if the couple were married and citizenship could not pass through unmarried fathers. This has been rectified by s9 NIAA Under s1 BNA 1981 a child born outside of the UK with a British father or mother acquires British citizenship by descent. If the child is born in the UK to a British father or mother he/she will acquire British citizenship otherwise than by descent, which enables citizenship to be passed on from one generation to the next. A person can only gain British citizenship by descent, however, if either the Page 4 of 20

5 mother or father is a British citizen other than by descent. This limits transmission of citizenship to one generation but s3(3) BNA 1981, discussed below, permits registration in broader circumstances. Registration Registration is the process by which children and a certain minority of adults can acquire citizenship. It is discretionary but used to be granted simply if someone met the legislative criteria. There is now a good character requirement contained in s46 Borders Citizenship and Immigration Act Children can register where parents are not settled at the time of the child s birth but become settled. Under s1(3) BNA 1981 a child can apply to register as a British citizen if he was born in the UK after 1981 and, after his birth, one of his parents becomes settled in the UK. For example if someone has been working here under the Points Based System and then applies for settlement after five years. In such circumstances a child can register as a British citizen under section 1(3) BNA Under s4 BNA 1981 a child can register as a British citizen if he remains in the UK for the first 10 years of his life and is not absent for more than 90 days each year during that period. Unmarried fathers used not to be able to pass on British citizenship but now can after Immigration Asylum and Nationality Act 2006 (IANA). A person born before this Act to an unmarried British citizen father can register as a British citizen. A person can register if they were born outside UK before 1/1/83 to a British mother when citizenship only passed automatically through the father. This is one of the limited ways adults can register as a British citizen. Other adults that can register as British citizens are those that lost the right of abode with the incremental passage of various nationality acts. Section 3(3) BNA 1981 permits registration of a child born overseas if their father or mother is a British citizen by descent who has a parent who is a British citizen other than by descent and the British parent (by descent) had lived in the UK for 3 years (not being absent for more than 270 days in that period) at some point before the child was born. If a family reside in the United Kingdom for three years after the child is born, the child (while still a minor) can be registered under s3(5) BNA Naturalisation The final way in which a person can acquire British citizenship is through naturalisation. Under s6(1) BNA 1981 an adult can be naturalised as a British citizen who: Is of good character; Is the spouse or civil partner of a British citizen; Is settled at the time of the application; Has been living in the UK legally for 3 years continuously, and was physically present in the UK on the date 3 years before the application (not absent more than 270 days in total and 90 days in year before application), Page 5 of 20

6 Has sufficient knowledge of the English language and of life in the UK, shown by: o Passing a Life in the UK Test ; and o Obtaining an English language qualification in speaking and listening at level B1; or o Previously passing the same for a grant of Indefinite Leave to Remain. If a person is not married or in a civil partnership with a British citizen, the requirements are more stringent, namely 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; and Have not 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 3 Tier 2 of the Points Based System (PBS) covers entry of skilled workers to the UK. A Tier 2 applicant needs to have a sponsor in the UK. The sponsor needs a licence, which will be issued by UKBA only if the sponsor complies with stringent criteria. UKBA have a register of sponsors on their website and an employer can apply to obtain a sponsor licence if their company is not on the list and be placed on the register of sponsors. Companies on the register can issue certificates of sponsorship to migrants. This contains a unique reference number that the sponsor issues to the applicant, along with the details of the sponsorship. Tier 2 is divided into 4 categories - general, intra-company transfer, minister of religion and sportsperson. For general migrants the attributes are based on sponsorship, qualifications and prospective earnings. Common Requirements for all categories Most Tier 2 migrants have to score 70 points from the three different areas, comprising 50 points for attributes, 10 points for English language and 10 points for maintenance. The requirements are slightly different for intra-company transferees, who do not have to score any points for English language at all. The English language points are met by either passing an approved test, being a national of an English speaking country or having obtained an academic qualification taught in English deemed by UK NARIC to be the standard of a BA or MA degree in the UK. In order to score the 10 maintenance points required the applicant must have at least 900 in personal savings held for at least 90 days before the application. Certain A rated sponsors can instead undertake to guarantee to maintain and accommodate the applicant during the first month of their employment if it becomes necessary, which can be limited to an amount of 900, or more if the sponsor stipulates. Page 6 of 20

7 The way in which the 50 points for attributes are achieved, however, varies significantly between the categories as seen below. Tier 2 (General) In order to achieve 50 points for attributes a Tier 2 (General) migrant needs to have a job offer from a UK employer already in place in order to get entry clearance. This category is intended to fill gaps in the labour market that cannot be filled by UK resident workers. Consequently tests must be passed to demonstrate this. The job either has to be on the shortage occupation list or meet the resident labour market test to attain 30 points for attributes and the final 20 points are achieved for an appropriate salary of 20,000 or more. Shortage Occupation List UKBA publishes a list of shortage occupations at Appendix K of the Immigration Rules and 30 points will be awarded if a job is on the list. If an employer is recruiting someone on the shortage occupation list this will be a lot easier than if the position is not on the list and they need to fulfil the resident labour market test. Resident Labour Market Test This test can be onerous for employers to meet. The UKBA recognises it may be necessary for sponsors to recruit a migrant from outside UK to fill a vacancy that cannot be filled by a settled worker. In these circumstances the sponsor must show there is no suitably qualified settled worker available to fill the vacancy. Therefore they must advertise in accordance with the code of practice for the job at Appendix J, and also advertise at a Jobcentre. The post must be advertised to settled workers for a minimum of 28 calendar days first and they must use a relevant code of practice medium of advertising such as journal/newspaper. Such stipulations may not be very attractive to employers, although if they cannot fill the position they will have little choice but to comply. Tier 2 (Intra Company Transfer) This category is more complex than the other categories and allows multinational companies to transfer staff from outside the EEA to a branch of the company in the UK. There are four sub-categories of intra-company transfer to cover the different reasons for which an applicant may wish to transfer. Long term staff must have been working for 12 months for the overseas entity and are transferred to carry out a skilled job that could not be carried out by a member of the resident workforce. Short term staff are transferred for the same reason as established staff but to work for 12 months or less in the UK. Graduate Trainees are transferred for no more than one year as part of a graduate training programme. In the Skills Transfer category, employees are transferred for up to six months to learn skills and knowledge and then return and perform the job overseas, or to impart specialist knowledge to the UK workforce. Intra company transfer applicants require 30 points for attributes for the certificate of sponsorship and 20 for the appropriate salary. For long-term established staff this is at least 40,600 and for short term, skills transfer or graduate trainees it is 24,300 or more. Maintenance points are still scored as explained but an A rated sponsor can guarantee maintenance instead. The language requirement of Appendix B does not need to be met. Page 7 of 20

8 Duties of Sponsor A Tier 2 sponsor has to comply with certain duties including keeping records of the migrant s ID card and passport, reporting any absences or if their circumstances were to change, ensuring the migrant complies with certain rules (such as demands of particular professions) and having the permitted immigration status to carry out the role. The Home Office may also perform visits and carry out certain checks which will have to be complied with. Leave Granted Most Tier 2 migrants, if successful, obtain limited leave to enter for 3 years and 4 months (or 3 years if leave to remain) subject to the condition not to have recourse to public funds. They must also register with the police if required by the Immigration rules. Towards the end of the 3 years they should apply to extend the leave for a further 2 years. Towards the end of the 5 years of limited leave, an application can be made for indefinite leave to remain. Intra company transfer applicants, by contrast, have more complicated periods of leave, depending on the category of transfer. Leave will be granted for the shorter of the two following periods: either the period of engagement plus a month; or For short term staff (including graduate trainees) one year; For skills transfer category 6 months. For long term staff sub category 3 years and one month. Long-term staff can get a further two years leave to remain, but cannot stay beyond five years, unless they are earning at least 152,100 per annum. Then they can stay for up to nine years. But Intra-Company Transferees can no longer obtain settlement in the UK. Question 4(a) General Definition In Shah and Islam (1999) the House of Lords defined persecution as serious harm plus a failure of state protection. The serious harm element constitutes the acts of persecution suffered and the lack of state protection is either because the state itself is carrying out the persecution or the state does no protect the victim of persecution from acts of non state agents. The development of persecution through the case law has led to a broad spectrum of different types of treatment constituting persecution and this has been implemented through the Refugee Qualification Directive 2004 (RQD) and the Refugee (Person in Need on International Protection) Regulations 2006 (RQR). The RQD and the RQR Article 9 RQD defines acts of persecution as acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, or an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner. Particular examples are given including acts of physical, mental or sexual violence or legal and administrative measures implemented in a discriminatory manner. The Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (RQR) at Regulation 5 define persecution in the same way Page 8 of 20

9 although they omit specific reference to acts of a gender specific or child-specific nature, which are arguably incorporated into the rest of the definition in any event. Acts Sufficiently Serious by their Nature One act of persecution can be sufficient if the harm is serious Demirkaya (1999). An act of rape or other torture would fall under this heading. In the context of gender persecution, for example, in Aydin v Turkey (1997) rape was found to be a particularly grave and abhorrent act amounting to torture. This would therefore be a sufficiently serious act alone to amount to persecution where a Convention reason is present. Female genital mutilation has been found to amount to persecution in many cases, including Fornah (2006). Acts Sufficiently Serious by their Repetition Where acts are less serious, such as beatings rather than torture, they may still amount to persecution if persistent. For example in the case of Ravichandran (1996) where the appellant, a Tamil from Sri Lanka, was subject to persistent round ups and questioning due to his ethnicity putting him under suspicion of terrorism. Violations of Human Rights If a person is subject to discrimination for a long period of time which inhibits his or her human rights, this can also amount to persecution. For example in Gashi (1996) where denial of social rights, e.g. to education, housing, employment against a person of Roma origin was systematic, for a Convention reason and not based on absolute lack of resources. Here the acts must occur over a long period of time or the consequences must be so substantially prejudicial to the person concerned inhibiting their freedom to exercise basic human rights. Prosecution and Persecution The RQD and RQR also make provision for the situation where prosecution may lead to such severe consequences that it can be persecutory. Prosecution can amount to persecution if the punishment is excessive, such as receiving ten years for a minor theft or being stoned to death for adultery. This is referred to as disproportionate punishment in the RQD. Where the law is applied in a discriminatory manner this can also amount to persecution, Sivakumar (2002). Article 9 (2) RQD and reg 5 (2) RQR refer to disproportionate prosecution or punishment. Finally, where there is lack of due process or fairness in the criminal process Khan v SSHD (2003). This is also covered by s9(2) RQD referring to denial of judicial redress resulting in disproportionate punishment. Examples would be lack of access to counsel or unfair trials in criminal courts. Past and Future Persecution If an asylum seeker has suffered in the past, this past persecution will be evidence that future persecution is likely to result if he or she were returned to the country of origin. The Court of Appeal in Demirkaya (1999) accepted that even one incident of past persecution may be sufficient to show a real risk of similar treatment in the future. However future persecution must be proved, and the focus is the risk on return Karanakaran (2000). Page 9 of 20

10 Persecution and State Protection The definition of persecution laid down in Shah and Islam (1999) indicates that, as well as the serious harm discussed, there also has to be a failure of state protection. The acts of persecution are often committed by state agents, such as the police or government officials. In these cases it is very unlikely that protection will be available as the risk is from the state itself. Art 6 RQD and reg 3 RQR state that actors of persecution can be the state or organisations controlling the state but also non state agents if the state is unable or unwilling to offer protection against the harm perpetrated. The leading case on non-state agent persecution is Horvath (2000). In order to offer protection the state must have an effective and functioning system of criminal justice in place. The asylum seeker must have attempted to access protection yet not been successful or not accessed protection due to fear of the state itself, rather than any repercussions from the non-state agents. Art 7 RQD and reg 4 RQR state that those in control of the state must have taken reasonable steps to prevent the persecution or suffering of serious harm by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm. The provisions also add that access to the protection must be available. Question 4(b) Article 3 provides an absolute right not to be subjected to inhuman or degrading treatment or torture. Section 6 Human Rights Act (HRA) places the Home Office and the courts under a duty to act compatibly with the Articles in the European Convention on Human Rights. (ECHR). Article 3 ECHR arguments will run alongside an asylum claim as the treatment that amounts to persecution for the purposes of the refugee convention will usually amount to treatment contrary to Article 3. However, Article 3 treatment does not have to be for a Convention reason and therefore can protect where an asylum claim may fail. For example, if someone is involved in terrorism but is at risk of torture on return, they would be excluded from protection under Article 1F Refugee Convention but would still be protected by Article 3 ECHR as in the case of Chahal v UK (1996) and more recently Abu Qatada (2013). In Saadi v Italy (2008) the E Ct HR made it very clear that Article 3 permits no derogation and the risk of ill treatment cannot be weighed against the reasons for the treatment. Thus Article 3 s ambit is significantly greater than the Refugee Convention. Treatment does have to cross a minimum threshold of severity to be treatment contrary to Article 3, and this has been maintained at a high standard. For example in health cases the unavailability of treatment in the country and the likelihood of dying in a short time will not normally make return inhuman or degrading N v SSHD (2003). The standard of proof in human rights cases is the same as asylum cases, there has to be a real risk that the treatment will materialise on return Kacaj (2001). In the case of Ireland v UK (1979) the different types of treatment prohibited by Article 3 were defined by the European Court of Human Rights. The definition of torture was upheld to be deliberate inhuman treatment causing very serious and cruel suffering. Inhuman treatment was defined as that which causes intense physical and mental suffering. Degrading treatment was held to be treatment Page 10 of 20

11 which arouses in the victim a feeling of fear, anguish and inferiority capable of humiliating and debasing the victim and possibly breaking his or her physical or moral resistance. Account must be taken of the duration of the treatment, its physical or mental effects, and in some cases, the sex, age and state of health of the victim. Whereas torture has to be deliberate, inhuman and degrading treatment does not. Conditions in a prison such as overcrowding, lack of sanitation causing disease and lack of medical treatment can be inhuman or degrading contrary to Article 3. Being on death row for an unreasonably long period was found to be a breach of Article 3 in Soering v United Kingdom (1989). The leave granted would depend on the type of treatment involved. If the claim was successful as the applicant would suffer serious harm on return then there would be a grant of five years humanitarian protection under 339 HC 395. This implements Article 15 RQD, although the RQD refers to the protection offered as subsidiary protection rather than humanitarian protection. Protection is provided where there is a real risk of serious harm in the country of origin but where the Refugee Convention does not apply. Art 15 RQD defines serious harm as including the death penalty, torture or inhuman or degrading treatment or punishment or serious threats to life from armed conflict. Here, leave will be granted for 5 years with the option of applying for indefinite leave to remain (ILR) at the end of this period. If, however, there is no such defined serious harm, but there are Article 3 grounds, such as in medical cases, discretionary leave will be granted instead, outside the rules. This is usually granted for a maximum of three years and reviewed when the leave ends. After six years continuous discretionary leave ILR could be granted. However, if someone would be excluded from the Refugee Convention, they would require ten years leave. Question 1 SECTION B Introduction As Kenya is a visa national country and entry to settle as a partner is a purpose that requires entry clearance, Victor must successfully meet the requirements of Appendix FM to come to the UK as Grace s unmarried partner. He must provide documentation in support of his application as stipulated in Appendix FM-SE. Definition of a Partner The definition of a partner is found in Gen 1.2 Appendix FM. In this case Grace meets the partner definition as she and Victor have been living together for over two years. In unmarried couple cases two years cohabitation in a relationship akin to marriage is essential under Gen 1.2 (iv). They will need to show bills to the same address over the two year period, in both of their names, in order to satisfy this requirement. Relationship Requirements As Grace is a British citizen she will satisfy E-ECP 2.1 and be an appropriate sponsor. She is now living and working in the UK so Britain is her place of ordinary residence in line with the test laid down by the House of Lords in Shah v London Borough of Barnet (1983). She needs to be present in the UK when Victor arrives. Page 11 of 20

12 In order to comply with E-ECP 2.2 and 2.3 both the applicant and the partner must be over 18. This was confirmed in the case of Quila (2011) when the Secretary of State s temporary raising of the age to 21 was found to disproportionately interfere with family life. In the present case the couple are 27 and 25 respectively so meet the requirements. There is nothing in the facts to indicate that the applicant and partner are within the prohibited degree of relationship, contrary to E-ECP 2.4. In order to comply with E-ECP 2.5 the couple must have met in person. In accordance with the test in Meharban (1989) the parties only require some knowledge of each other in the sense of appearance or personality so this is easily shown. As Grace and Victor have lived together for two years this will be easy to satisfy. They can show photographs of themselves together to meet this requirement, evidence of joint commitments such as bills, bank accounts and so on. E-ECP 2.6 stipulates that the relationship must be genuine and subsisting. Annex 2.0 of the Immigration Directorate Instructions (IDIs) lists factors which will serve to indicate genuineness. In this case the relevant factors are the fact that they have been living together two years and can prove this, for example with bills to both parties (individual or joint) sent to the same address. The fact that Grace has spent the past three years with Victor in Kenya, and lived with him for 2 years and 3 months, will help them meet this requirement. As they intend to live together in the UK this will also assist in proving their relationship is genuine and subsisting. They should submit bills to their joint address in Kenya and tickets and photographs from Grace s trip to Kenya to help prove this requirement. As Victor and Grace do not intend to get married they do not have to satisfy the requirements 7 and 8 at ECP 2.7 or 2.8. E-ECP.2.9 states that any previous relationship of the applicant or their partner must have broken down permanently. Grace and Simon, her husband, are in the final stages of divorce which indicates that their relationship has broken down permanently. Correspondence between their solicitors would be useful evidence to show that this requirement is met, alongside the evidence showing that Grace and Victor have been cohabiting in Kenya whilst Simon and his new partner have been in the UK. E-ECP.2.10 states that the applicant and partner must intend to live together permanently in the UK. The previous cohabitation and the fact that they will be living at Grace s flat on return to the UK will assist to show this requirement. As Grace will have been in the UK for a few months before Victor arrives they should show any correspondence in their time apart, such as print outs of s, any telephone bills etc. This is relevant to intention to live together on the authority of Choudhury (2002). Financial Requirements Adequate Maintenance Income required As Victor and Grace do not have children they simply need to show an income of 18,600 to satisfy E-ECP 3.1. This must be from the UK partner alone in an entry Page 12 of 20

13 clearance application so Victor s potential earnings are irrelevant. As Grace is earning 28,000 per annum and was earning 20,000 she will clearly satisfy this requirement. Documentation to prove As Grace has been working at the hospital for six months in salaried employment she will also need to meet the requirements of Appendix FM-SE para A1 2 by providing a P60, 6 months wage slips and bank statements, a letter from her current employer detailing her employment and gross salary, how long she has been employed, how long she has been on 28,000 and the fact that the job is permanent. She will also need to submit her signed contract of employment. Adequate Accommodation Accommodation must be adequate, owned or occupied exclusively and there must be no recourse to public funds to provide the accommodation in accordance with E-ECP 3.4. In order to be adequate it must not be overcrowded within the terms of the Housing Act. As it is a two bedroomed flat that the couple will live in exclusively they will easily satisfy this requirement, as they only require one room for their exclusive use Saghir Ahmed (1994). English language requirement Victor will need to pass an English language test at level A1, and submit the certificate with his application in order to satisfy E-ECP 4.1. Leave granted If Victor s application is successful he will be granted 33 months leave to enter. After 30 months in the UK he will be able to apply for a further 30 months limited leave. After 60 months (5 years) in the UK, if he still meets all the stated requirements, he will be able to apply for indefinite leave to remain. Question 2(a) Introduction South Africa is a visa national country so Dominic and Larry will require entry clearance for any purpose. Dominic s entry will be governed by Tier 4 of the Points Based System (PBS). Larry will enter the UK with a visit visa, most likely as a sports visitor as he cannot meet all the requirements of a general visitor as discussed below. Dominic Entry as a Student: The requirements for entry as a student under Tier 4 PBS are governed by rule 245ZT HC 395. Dominic requires 30 points under Appendix A (attributes) for sponsorship. He will meet this requirement by obtaining a Confirmation of Acceptance for Studies (CAS) from Kempston University. This is a virtual document in the UKBA s IT sponsorship management system that must contain the sponsor s licence number. It must also include Dominic s nationality, passport number, list the evidence provided in his application and give full details of the course. The CAS must be issued less than 6 months before the application for entry clearance or leave to remain. Page 13 of 20

14 The degree course has to meet minimum academic requirements stipulated in Appendix A and studies must be undertaken at the University. Dominic needs to score 10 points under Appendix C (maintenance). He will need his first year s fees plus 7,200 (for the first 9 months of the course) and will need this money to be in his bank account for 28 days before the application is made. His parents are funding his fees so will need to put this money into his own account at least 28 days before the application is made, or provide confirmation that they are Dominic s parents and are willing to maintain him. For a degree level course of study, it is assumed that the sponsor is satisfied that the student has attained level B2 proficiency in English. However an ECO can request demonstration of proficiency to level B2 competence at an interview. An application can be refused if the applicant is not competent Hazret Kose (2011). Regarding his wish to take up employment in the UK, Dominic will be able to work for 20 hours a week during term time or for any period during the holidays. If his application is successful he will be granted leave to enter for the period of his course plus an extra five months as it is a three year degree, one month before the course and four months at the end of the course. Larry Entry as a Visitor Larry will need to obtain a visit visa to come to the UK. He will need to satisfy the requirements in para 41 HC 395, specifically to show that: He is genuinely entering as a visitor (41(i)). He intends to leave the UK (41(ii)). He has no intention of taking up employment (41(iii)). He has no intention to produce goods or services in the UK (41(iv)) He does not intend to study (41 (v)). He can maintain and accommodate herself without recourse to public funds (41 (vi). He can meet the cost of the return journey (41 (vii)). He is over 18 (41 (viii)). As he is entering for a specific event and intends to leave after a short stay with his aunt and uncle he should have no problem in satisfying the first two requirements. He wishes to take part in a charitable event but does not intend to take up paid employment in the UK. He has no intention of producing goods or services in the UK or of studying. He is 19 so meets the age requirement. Larry has 3500 in savings which will be more than adequate maintenance for his stay in the UK without him requiring recourse to public funds. He will be accommodated by his aunt and uncle who have a four bedroomed house where they live by themselves. This is therefore more than adequate to accommodate Larry for his short stay. He also needs to show that he can meet the cost of the return journey. The facts indicate that his parents will also be funding this. Larry also has to show that he will not take part in any of the activities covered by the other visitor categories and so, as he wishes to take part in the sporting event, he should come as a sports visitor as detailed below. He then also has to satisfy the rest of the general visitor requirements as listed above. Page 14 of 20

15 Sports Visitor As he is taking part in the charitable event his preferred route to entry may be under Para 46M as a sports visitor. Para 46M sets states sports visitor must be genuinely seeking entry for a limited period not exceeding six months and either: Intend to take part in a sports tournament, particular sporting event or events as either: o an individual or team member, o to make personal appearances or do promotions, o to take part in trials, or o to undertake short periods of training; or Take part in a specific one-off charity event, provided no payment is made for the event; or Join, as an amateur, a wholly or predominantly amateur team provided no payment is received other than board, lodgings and reasonable expenses; or Serve as a member of the technical or personal staff or as an official at the same event as a visiting sportsman. This case would fall into the one-off charity event category. As he wishes to stay with his aunt and uncle for a few weeks after the event he should specify this in the application and will be granted leave up to six months. He will be admitted for no more than six months, will be prohibited from taking employment and cannot extend his stay beyond that period. If he simply wished to enter for the event he could enter for 1 month under rule 56X iii (e) for a pre-arranged temporary engagement. In this case this would probably not be suitable as he wishes to stay in the UK for some time afterwards with his aunt and uncle, and he is not undertaking a paid engagement. Question 2(b) In this alternative scenario Larry should enter under Tier 5 of the Points Based System. Under para 111 Appendix A he would be a Temporary Worker in the creative and sporting subcategory, i.e. a sportsperson internationally recognised at the highest level and endorsed by the sport s governing body, which is the Football Association (FA): see Appendix M. He would have to obtain 30 points for attributes and would achieve this by being issued with a certificate of sponsorship from the FA which will contain a unique reference number. He would also need to achieve 10 points for maintenance by having 900 available. Alternatively the FA, an A-rated sponsor, could guarantee that there will be no recourse to public funds. Larry will be granted leave to enter for a period of time matching the engagement or his contract of employment, with 14 days either side of this period, up to a maximum of 12 months. Page 15 of 20

16 Question 3 General Rights of Residence 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 the 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, simply on production of a valid identity card or passport. Britta and Otto will be able to enter the UK freely in order to exercise their rights without requiring any prior entry clearance. If Britta was unable to take up the position Article 6 would enable her to reside for three months whilst she found alternative employment. Further under Article 7 paras 1 (b) and (c) Directive if a person has sufficient resources not to become a burden on the state they can have residence beyond this three-month period. As Britta has 4,000 in savings she could satisfy this requirement. In Royer v Procureur du Roi, the UK case of Antonissen and also in Commission v Belgium, the Court of Justice of the EU extended the rights of free movement to job seekers who should be allowed a reasonable time to look for work (i.e. between 3-6 months). Therefore, in addition to her standard 3 months permitted residence Britta has up to 6 months residence in the UK to look for work, i.e. 9 months altogether. 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 this three-month period. This is also provided for under the Immigration (European Economic Area) Regulations 2006 regulation 6. Britta will be a qualified person exercising treaty rights if she takes up the position. Article 45 TFEU sets out the rights of free movement of workers. It confers on Britta the right to enter the UK for the purpose of employment. Under Article 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 her employment (subject to conditions contained in secondary legislation). Registration Certificate If Britta was granted a registration certificate this would confirm her right of residence in the UK under European law. She will need to produce evidence of her employment. If she then lives in the UK for 5 years in accordance with the European regulations, she can apply for a document certifying permanent residence. Her right to live and work in the UK derives from her treaty obligations but she can acquire a registration certificate in order to confirm these rights. Part-Time Work The Home Office cannot refuse a registration certificate simply because it is a part-time position. In the case of Levin v Staatssecretaris the ECJ found employment as a part-time chambermaid to be sufficient to come under the Page 16 of 20

17 provisions. A worker had to simply have effective and genuine employment which included part-time work. 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 Wissenschaft, Verkehr und Kunst (2004). Britta clearly meets the definition of a worker on the basis of these rulings. Otto and Manuel s Rights The rights of family members to join EU national workers are found in Articles 2, 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. Article 2 stipulates that 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. Otto clearly fits this definition as he is under 21 and dependent on Britta. Regulation 7 of the I(EEA) R 2006 also 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. Manuel does not fit the definition of a family member in Article 2 Directive but his entry could be facilitated under Article 3 Directive and regulation 8 I(EEA)R 2006 as a partner with whom the EU citizen has a durable relationship, duly attested. 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 and which includes the partner of an EAA national in a durable relationship. Manuel should be entitled to reside in the UK, despite not being married to Britta, as they are in a durable relationship. They have been living together for over 2 years and have a child together. There is no mandatory cohabitation period but the length of the relationship shows the durability of the relationship. Evidence of their relationship could include household bills over the period of cohabitation, Otto s birth certificate, any joint commitments and photographs. Manuel s rights are derived from his relationship with Britta and may be revoked if she were to cease to be a qualified worker such as in OA (2007). Britta therefore has the right to work here and Otto and Manuel have the right to accompany her and join her here respectively. They could reside here without restriction for three months but can stay long term if Britta is working. There is no justification for refusing to allow her to take up the position. Part-time work is permissible. Family Permit In order to join Britta in the UK, reg 11 I (EEA) R 2006 provides that a family member can be admitted on production of a passport and an EEA family permit Page 17 of 20