LEVEL 6 - UNIT 8 IMMIGRATION LAW SUGGESTED ANSWERS JUNE 2015

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1 Note to Candidates and Tutors: LEVEL 6 - UNIT 8 IMMIGRATION LAW SUGGESTED ANSWERS JUNE 2015 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 2015 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 The Immigration Act 2014 (IA 2014) has significantly reduced appeal rights, particularly from within the UK. These provisions came into force in October The former section 82 Nationality Immigration and Asylum Act (NIAA) 2002 provided a list of immigration decisions attracting a right of appeal, but IA 2014 amends s82, reducing appealable decisions from 17 to 4. Under the new s82, an appeal can be brought to the tribunal where the Secretary of State has refused a protection claim (s82 (1)(a)) or a human rights claim (s 82(1)(b)) or has revoked a person s protection status (s82(1)(c)). Appeal rights against decisions involving EU rights are also preserved in the amended Immigration (EEA) Regulations A protection claim is defined as a claim that removal would breach the UK s obligations under the Refugee Convention or in relation to persons eligible for Humanitarian Protection (s82(2)(a)). Protection status is defined as a grant of leave to enter or remain in the UK as a refugee or as a person eligible for a grant of humanitarian protection (s(82)(2)(c)). The grounds of appeal under s 84 NIAA 2002 have been amended by s15 IA Grounds of appeal are now only that removal would: breach the Refugee Convention (s84(1)(a)); breach the UK s obligations to grant humanitarian protection to eligible persons (s84(1)(b); be unlawful under section 6 Human Rights Act 1998 (s84(1)(c)). The application which has been refused must have included a human rights or protection claim, or it will not attract a right of appeal. Under the new s85(5), the Tribunal must not consider a new matter, such as a human rights claim, Page 1 of 18

2 unless the Secretary of State has given the Tribunal consent to do so. It is no longer possible to appeal on the grounds that the decision was not in accordance with the immigration rules, or not in accordance with the law, or that a discretion should have been exercised differently. The removal of an appeal where a decision is not in accordance with the law or immigration rules is very contentious and is likely to be strongly contested in the future. The removal of these appeal rights is likely to lead to increased judicial review in this area. With restrictions on legal aid for judicial review this is not ensuring access to justice. Furthermore, judicial review is a much longer and protracted process than speedy access to a tribunal. Question 1(b) Where a foreign criminal makes a human rights claim the new s94b permits certification of the claim, where deportation is deemed conducive to the public good. The claim may be certified if the Secretary of State considers that removal would not be unlawful under s6 Human Rights Act 1998 (s94b (2)) and the appellant would not face a real risk of serious irreversible harm if removed to the county or territory to which the person is proposed to be removed. (s94b (3)). The removal would take place before the appeals process is exhausted although the outcome of the appeal may permit the deportee to re-enter the UK. In determining the appeal public interest considerations, as inserted by the Immigration Act 2014, must be taken into account. Section 19 Immigration Act 2014 (IA 2014) inserts a new Part 5A into the Nationality Immigration and Asylum Act 2002 (NIAA) detailing public interest considerations which must be taken into account by courts and tribunals in determining Article 8 issues relevant to deportation and immigration decisions. New section 117B NIAA sets out the public interest considerations to be taken into account in all cases, while new section 117C sets out further considerations to which courts and tribunals must have regard in deportation cases. In all cases, it is said to be in the public interest that: effective immigration controls are maintained (117B (1)) persons entering or remaining in the UK are able to speak English (117 B (2)); and persons are financially independent (117B (3)) These provisions seem no more than common sense, and it may be surprising that it was felt necessary to enshrine them in primary legislation. The provisions do then go on to say that: Little weight should be attached to private life or a relationship formed when a person is in the UK unlawfully (117B (4)); Little weight should be attached to private life established when a person s immigration status is precarious (117B (5)); and Where a person is not liable to deportation, removal will not be required where there is a genuine and subsisting parental relationship with a qualifying child and it would not be reasonable to expect the child to leave the United Kingdom. (117 B (6)). These provisions are more contentious because, although in some respects more generous than the immigration rules, they attempt to dictate the weight to be Page 2 of 18

3 attached to the public interest by the judiciary, blurring the legislative and judicial functions and having serious implications for the separation of powers. Section 117C considers when deportation will be in the public interest noting that the more serious the offence the greater the public interest. Immigration rules attempted to do this before the advent of the Immigration Act The latter, however, is rather different and arguably more generous, for example, in respect of private life, replacing the requirement of no ties with the country of origin with the need for very significant obstacles to integration on return. Another change is replacing the phrase exceptional circumstances with very compelling circumstances when considering the deportation of a foreign criminal sentenced to at least four years imprisonment. But for those sentenced to less than four years in prison, it makes quite generous provision for family life, simply saying that the effect of the deportation on the child or partner would need to be unduly harsh to prevent removal. The replacement of exceptional circumstances with very compelling circumstances mirrors the language in MF (Nigeria) v Secretary of State for the Home Department (2013). In cases where the prison sentence was four years or more, such an approach is in line with SS (Nigeria) (2013) where the Court of Appeal found it would only be a very strong claim indeed that would outweigh the public interest in deporting a foreign criminal. But that may not necessarily be so in cases where the sentence was less than four years. Question 2 Introduction Entry of children to the UK for settlement is governed by para 297 of the Immigration Rules and is largely unaffected by Appendix FM. Applications are still made under Part 8 HC 395, except that children coming to the UK with parents who have obtained limited leave with a view to settlement will have to satisfy Appendix FM. Both parents in the UK Under para 297 a child can be admitted for settlement where both parents are present and settled in the UK or both parents are being admitted for settlement at the same time. If one of the parents is dead then the remaining parent must be being admitted for settlement at the same time or present and settled in the UK. Parent under para 6 of the immigration rules includes a stepfather where the father is dead and a stepmother where the mother is dead. Where a child is born outside marriage proof of paternity will be required. DNA testing at an approved clinic or hospital has now been introduced to establish the genuineness of applications. Where both parents are settled in the UK and they can maintain and accommodate the child without recourse to public funds, entry should usually be granted upon proof of the relationship. Page 3 of 18

4 Joining one parent Under rule 297, where a child is applying to join one parent, there are two alternative conditions that need to be satisfied. The first alternative is to show that the parent present and settled in the UK (or being admitted for settlement) has had sole responsibility for the child s upbringing. The other alternative is to prove that there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child s care (para 297(i)(f)). The latter requirement is often referred to more simply as exclusion undesirable. Sole responsibility Where both parents are alive and the child is applying to join one parent, it must be shown that the parent they are joining has had sole responsibility for the child (297(i)(e)). Having legal custody of the child is insufficient alone, but a residence order in favour of the UK parent is a strong indicator of sole responsibility, according to the Immigration Directorate Instructions. Some custody orders obtained abroad may be regarded in the same way (IDI ch 8 Annex M). However it is clear that legal responsibility, although a relevant consideration, is not conclusive, as indicated by the Court of Appeal in Nmaju (2000). It has been acknowledged in Emmanuel (1972) that sole responsibility cannot be interpreted literally and there will inevitably be some degree of shared responsibility with other relatives involved in the child s upbringing. An example is Sloley (1973) where a parent had come to work in the UK leaving her child with her mother. She sent money for the financial upkeep of the child and had assumed sole financial responsibility. Assuming financial responsibility for a child also resulted in a finding of sole responsibility in Ramos (1989). It used to be thought that the parent must have had sole responsibility for a significant period of the child s life, but the Court of Appeal clarified in Nmaju (2000) that no minimum period is required. The Asylum and Immigration Tribunal in TD (Yemen) (2006) set out the main principles underlying sole responsibility as follows: If both parents have been involved in the child s upbringing it would only be in exceptional circumstances that only one parent would have sole responsibility. Financial support is a factor to be considered but not a conclusive factor. The involvement of the sponsoring parent in the child s upbringing is considered as well as the involvement of others. Day-to-day decision-making by the child s carer is not fatal to the application. Who has made important decisions in the child s life (such as schooling, residence etc.) is the test to be satisfied. Home Office guidance on this issue lists similar factors and also considers the period of separation of the parent and child, arrangements for the care of the child before the parent migrated to the UK, and the degree of contact between the parent and child. Page 4 of 18

5 Exclusion undesirable The alternative to sole responsibility, where a child is joining just one parent or a relative in the UK, is where the exclusion of the child from the UK is undesirable given serious and compelling family or other considerations. Home Office guidance on the meaning of serious and compelling reasons states that the objective of the provision is to permit a child to join a parent or relative in this country only where the child could not be adequately cared for by parents and relatives in his own country. Older case law interpreted this provision very restrictively, suggesting that intolerable circumstances would be necessary. In Rudolf (1984) a more generous approach was taken, promoting family unity. It was held that where the parent overseas was unwilling and incapable of caring for the child then, in the absence of strong indicators to the contrary, exclusion would usually be undesirable. However, a more restrictive approach was taken in Cabarello (1986) indicating that abandonment of the child, rather than incapacity of the parent overseas, was required. More recent case law indicates that the circumstances should be exceptional. In Mundeba (2013) Blake J indicated that the focus of enquiry should be on the child in light of his or her age, social background and developmental history, and looking for evidence of neglect or abuse. It was stressed that unmet needs should be cared for and suitable arrangements made for the child s physical care. The assessment then involves whether the combination of such circumstances is sufficiently serious and compelling for the child to be admitted to the UK. Age and Dependence In addition to these alternative requirements all applicants must be under 18 to comply with 297 (ii). An applicant must also show that he or she is not leading an independent life, is not married or in a civil partnership and has not formed an independent family unit, in order to comply with 297 (iii). The rules would not therefore apply if a child had an alternative family supporting him or her in the country of origin, and consequently was not dependent on the parent in the UK. Maintenance and Accommodation Under 297 (v) the child must be maintained adequately without recourse to public funds by the parent they are seeking to join. 297 (iv) makes similar provision relating to adequate accommodation. But as held by the Supreme Court in Mahad (2009), third party support is available for children under Part 8 of the Immigration Rules. General Requirements Finally, the entry clearance must be valid and the child must not fall to be refused under any of the general grounds of refusal (297 (vi) and (vii)). Question 3(a) Registration Registration is the process by which children and a certain minority of adults can acquire citizenship. It is granted if someone meets the legislative criteria and in many of these cases people now have an entitlement to registration, while some Page 5 of 18

6 remain at the discretion of the Secretary of State. There is now a good character requirement under S47 Borders Citizenship and Immigration Act 2009 (BCIA 2009) if a child is aged at least 10. Children Children can register where their parents are not settled at the time of their birth but then 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 1982 and, after his birth, one of his parents becomes settled in the UK. Under s1(4) 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 were not able to pass on British citizenship but can do so now. Under NIAA 2002 as originally enacted, if a person was born before July 2006 to an unmarried British father they could apply to register as a British citizen on a discretionary basis. The Immigration Act 2014 now gives them an entitlement to do so. On the other hand, a person is entitled to register as a British citizen if they were born outside UK before 1/1/83 to a British mother. BNA s 3(3) permits a child born overseas to register as a British citizen by descent at a British consulate if: 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 child s 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. Section 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. Naturalisation 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 three years residence in the UK with leave, and with indefinite leave having been obtained by the date of the application for citizenship. However the probationary period since July 2012 has been five years and only after that can a person be granted indefinite leave to remain. In order to qualify for British citizenship, 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 three years continuously and have been physically present in the UK on the date three years before the application. A person 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 he or Page 6 of 18

7 she must have sufficient knowledge of life in the UK and English language at level B1 of the European Framework of Reference for Language Learning. This is shown either by passing a Life in the UK Test (already having satisfied the Secretary of State about this when granted indefinite leave to remain) or attending a course, which includes citizenship materials for English for Speakers of Other Languages (ESOL). It will now be more usual that a person satisfies the requirements to naturalise on the basis of marriage after five years in the UK, as indefinite leave to remain can only be granted after this period to partners entering after the rule changes in July A person must not have been absent for more than 450 days in total during this period and can immediately apply for citizenship upon being granted indefinite leave. 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 3(b) Under s40 BNA 1981 the Secretary of State can deprive a person of his or her citizenship, even when the person is British by birth, if satisfied that it would be conducive to the public good, as long as he or she would not be stateless as a result. This provision is by virtue of an amendment made to the BNA by s57 Immigration Asylum and Nationality Act 2006 (IANA 2006). The Home Office 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 40A BNA 1981, however, 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 s2(1) (d) IA 1971 and s2(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 abode removed from them if the Secretary of State deems it conducive to the public good. Under s40 (4) BNA 1981 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. This was confirmed in Al Jedda v SSHD (2010). However in B2 (2013) this was limited to only de jure rather than de facto statelessness, so statelessness contrary to the law of a country would be Page 7 of 18

8 forbidden, but a person could still be rendered de facto stateless if that country illegally refused to accept him or her. The determination on a statutory appeal of whether the Secretary of State should make an order to deprive a person of citizenship was considered by the Supreme Court in Al Jedda (2013). The appellate body is required to determine for itself under s40a BNA 1981 whether the deprivation of citizenship is conducive to the public good under s40 (2), whether the citizenship was obtained by deception under s40 (3) BNA 1981 or whether it would make a person stateless under s40 (4) BNA The appellate court is to decide whether the discretion to deprive a person of their citizenship should have been exercised differently. The impact on the appellant and his or her family and other proportionality considerations under Article 8 are to be taken into account - Deliallisi (British citizen: deprivation appeal: scope) (2013). In order to get around Al Jedda (2013), the Immigration Act has inserted a further provision into s40 British Nationality Act 1981, whereby a person who acquired British citizenship through naturalisation can be deprived of it for doing something seriously prejudicial to the vital interests of the United Kingdom, even if this will make him stateless. But the Secretary of State must be satisfied that he is reasonably likely to obtain the citizenship of another country. Question 4 Introduction Entry to the UK as a visitor is entry for a temporary purpose and does not give rise to settlement. Most visit visas are for a maximum stay of six months and different conditions are attached to the leave, depending on the category of the visit. The general visitor conditions also have to be satisfied in most cases, but there are other categories of visit, which permit slight derogation from these requirements, allowing the visitor to take part in, for example, sporting activities, entertainment or business. The general visitor requirements have been the subject of significant litigation, particularly focussed on whether the applicant intends to leave the UK at the end of the visit. The main problems applicants have faced are proving this intention and proving the genuineness of the visit. General Visitor The general visitor requirements are set out in para 41 of the Immigration Rules and require that the applicant: Is genuinely entering as a visitor (41(i)). Intends to leave the UK (41(ii)). Has no intention of taking up employment (41(iii)). Has no intention to produce goods or services in the UK (41(iv)) Does not intend to study (except incidental study of up to 30 days) (41(v)). Can maintain and accommodate himself without recourse to public funds (41(vi)). Can meet the cost of the return journey (41(vii)). Is over 18 (41(viii)). Must not intend to engage in any of the activities allowed under the other visitors rules (41(ix)). Must not intend to marry, form a civil partnership or give notice of the same (41(x)) Must not intend to receive medical treatment during the visit (41 (xi)); and Page 8 of 18

9 Must not be in transit to a country outside the common travel area (41 (Xii)). Definition of a visitor The word visitor is not defined in the rules. In the case of Oppong (2011) it was held that frequent visits do not necessarily mean that the visitor is taking up residence in the UK, even if an applicant is likely to make a fresh application very soon after the visit has ended. In that case it was also held that coming to the UK to care for a friend was not outside the rule as visitor is not defined, and there is no provision to come as a carer within the rules. Problems Encountered by Visitors - Intention to Leave The main obstacle to overcome when applying to visit the UK is proving that the visit is a genuine one and that the applicant intends to leave the UK at the end of the visit, as these are the main reasons upon which an application would be refused. So if a visa is requested for a month, for example, that is when the applicant should intend to leave. However, if he or she intends to leave, but not within the period of the visit, this is not a reason to refuse the application so long as the visit is less than six months Visa Office Cairo v Malek (1979). Further, an applicant should not be refused entry as a visitor because he or she is unable to specify the length of the visit. In SSHD v Arjumand (1983) the applicant was refused entry when unable to specify the length of the visit, as this depended on his father s health and the winding up of the family business. The refusal in this case was overturned. Applications are more likely to be refused where the Entry Clearance Officer is not satisfied that the applicant intends to leave the UK at the end of the visit. Applicants coming from countries that are less economically affluent than the UK often face difficulties in proving to the entry clearance officer that they intend to leave at the end of the visit. The Immigration Directorate Instructions state that there must be a reasonable relationship between the proposed purpose of the visit and the applicant s financial means, family, social and economic background. While a person cannot be excluded simply because they come from a country with a low standard of living (Blair (1980)), this is a factor that will be taken into account in assessing the likelihood of returning at the end of the visit. It should also not be assumed that someone will stay beyond his or her visa simply because he or she could do so. In AA and others (2006) the tribunal held that a difference in income and standards with the appellant s home country did not demonstrate an intention to stay unlawfully. This would assume that anyone with the opportunity to commit an offence would do so. The application for entry clearance can be refused because of an incentive to work, when consideration is given to the applicant s financial circumstances. This should be read in light of the principle in Mistry and Another v Entry Clearance Officer, Bombay (2002) that a person earning a modest living should not automatically be assumed to be tempted by a better standard of living in the UK and could still be seen as a genuine short-term visitor. Page 9 of 18

10 The Immigration Directorate Instructions also stipulate that previous immigration history and evidence of a pattern of family migration are matters that are taken into account. Therefore if an applicant has, for example, overstayed a visit visa in the past or has family members who have migrated to the UK, these may be factors indicating the applicant is less likely to leave at the end of the visit. If the applicant has a specific purpose to come to the UK this is more likely to show the visit is genuine. For example if a relative in the UK is sick and they are visiting to see them. Employment in the country of origin is also a factor that could help an applicant overcome the problem of proving intention to leave the UK. In Mistry (2002) the fact that the applicant had a job to return to in India was influential in the tribunal s finding that he was a genuine visitor. A further problem that visitors face is the limited rights of appeal in this area. If an entry clearance officer refuses the application the decision is difficult to challenge. Leave Granted The leave granted to a visitor is usually six months although longer visas (for two, five and ten years) can be issued, provided the visitor only stays for six months in any one visit. Conclusion There are important case law principles now established to prevent Entry Clearance Officer s simply refusing case on the basis of an applicant being from a less affluent country, and therefore assuming the applicant will not wish to return. The Immigration Directorate Instructions do, however, permit consideration of the relationship between financial means and economic, social and family background. Consequently proving a genuine purpose for the visit or having a job to return to in the country of origin are factors likely to assist applicants overcoming suspicions that a visit is not genuine. Question 1 SECTION B Introduction Cora, Heidi and Sienna will need to apply to enter the UK under the Points Based System. Cora should apply as a Tier 1 (Entrepreneur), Heidi as a Tier 1 (Investor) and Sienna as a Tier 5 (Temporary Worker). Cora Cora should enter under the Tier 1 (Entrepreneur) category. She will need 75 points for attributes, made up of 25 points from access to 200,000 (she has 210,000), 25 points that it is held in one or more regulated financial institutions (it is in Lloyds TSB) and 25 points as the money is disposable in the UK (it is in a regular account). She will need 10 points for English language. Having a Masters degree taught in English will satisfy this requirement without having to do further tests. She is also from one of the English speaking countries that satisfy the requirement. Page 10 of 18

11 Cora will need 10 points for maintenance. She needs at least 3,310 in her bank account for 90 days, as she is entering the UK. She has 10,000 above the 200,000 required, so will satisfy this too. If Cora s application is successful she will be granted 3 years limited leave to remain. At the end of this period she will have to demonstrate that the original requirements have been met, namely the full amount of 200,000 has been invested. She must again score at least 75 points for invested money, be registered with HMRC as a business, and be engaged in business activity, having either established a new business that has created two full time jobs for people settled in UK or having taken over a business with the same effect. There is no need to satisfy the language requirement again as it would have been satisfied on entry. She will have to demonstrate that she has maintained, and will continue to maintain, herself. She will be granted a two year extension after which she can obtain settlement. Heidi Heidi will come as a Tier 1(Investor). She needs 1 million and has 2.5m. She needs to score 75 points under attributes but has this as she has the money available to invest. Heidi requires three months bank statements immediately preceding the application. She will need a letter from the lottery that issued the funds. The funds must be freely transferable. She will need to invest them within three months of entry to the UK otherwise her leave can be curtailed. Heidi also needs a portfolio report or breakdown of investments in a letter produced by a financial institution covering the three months before the application. If she manages her own investments, documentary evidence of her holdings is needed. The initial leave period granted to a successful applicant is three years. After three years she can apply for a further two years leave to remain. She will be entitled to Indefinite Leave to Remain after five years under Tier 1. Sienna Sienna 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 includes the Creative and Sporting subcategory, allowing performers to work in the UK for up to 12 months, for example with a touring theatre company. She would need to obtain 40 points altogether, 30 points as attributes for relevant sponsorship and 10 for maintenance ( 945 or A rated sponsor that verifies she will not claim benefits). Sienna could then enter as an entertainer under para 245ZM of the Immigration Rules. In order to come as an entertainer a sponsor is required, and they will need a licence. Cabaret must be a registered sponsor on the Home Office website. They would need to issue a certificate of sponsorship (CoS) to Sienna. This sponsorship acts as a guarantee that she is seeking entry to work or perform and is not setting up a business and is not a threat to the resident labour force. The CoS reference number must be linked to a Certificate of Sponsorship Checking Service reference that names Sienna and confirms the sponsorship. It must be Page 11 of 18

12 issued no more than three months before the application for entry clearance is made. Cabaret must also consult the codes of practice for the creative sector found in Table 5 of Appendix J to the Immigration Rules. It would appear that Sienna has the international status, or a certain attribute not readily available in the EEA, which is necessary for the role. She will need to prove her international status with evidence such as certificates, press cuttings, publicity and/or proof of training. Sienna will be granted leave to enter for a period of time matching her contract of employment. As an entertainer she could obtain leave to enter for 12 months. Question 2 Well Founded Fear Mehdi has stated that if returned to Iran he fears that he will be imprisoned and tortured again. He also fears he would be given an unfair trial. This shows his subjective fear on return, which is nothing more or less than the belief which the appellant states is likely to happen if he returns to his country of origin(asuming v SSHD (1994)). On the authority of Horvath (2000) a claim cannot be assessed without looking at the conditions in the country of origin. This shows the appellant s objective fear. The Home Office report, although saying no executions have been reported in recent years, also records, from other sources, how a number of men have been sentenced to death. This is supported by the finding in the US Department of State report that press reporting of executions is severely restricted. Therefore the real number of executions could be a lot higher. On balance, therefore, it appears that there is at least a real risk that Mehdi would be executed on return given the findings of the objective evidence. The US Department of State report also refers to trials being unfair, private and often without access to legal advice, which supports Mehdi s fear of not receiving a fair trial on return. As Mehdi has been arrested in the past and escaped the risk would be higher for him on return. His parents have received a summons for his arrest which indicates an increased risk of persecution on return. On the basis of this objective information, what has happened to Mehdi in the past, and the current risk to homosexuals in Iran, it is submitted that there is a real risk (PS Sri Lanka (2008)) that he would be persecuted on return. Persecution Mehdi has suffered serious harm plus failure of state protection (Shah and Islam (1999)). He has been persecuted by state officials in the form of beatings and having a red hot pole pressed against his bare leg. He cannot get protection as the state is persecuting him. He is at risk of serious harm without state protection on return. Page 12 of 18

13 One act of torture is sufficient to amount to persecution Demirkaya (1999). It is an act sufficiently serious by its nature to be persecution Article 9 Refugee Qualification Directive (RQD), regulation 5 Refugee Qualification Regulations (RQR). Mehdi has been tortured in the form of having his leg burned with a red hot pole. Mehdi has also suffered persistent conduct amounting to persecution. The beatings and detention in poor conditions, over a period of two weeks, amount to a persistent course of conduct. This is treatment sufficiently serious by its repetition to amount to persecution (Article 9 RQD, regulation 5 RQR). Protection: Mehdi has been persecuted by state agents. Government officials such as the police carrying out state condoned actions are at the high end of the Svazas (2002) spectrum of state responsibility. Homosexuality is illegal and there is therefore no state protection. Refugee Convention Reason: Homosexuals as a social group Mehdi was persecuted and risks future persecution on account of his membership of a particular social group. Homosexuality is an innate and unchangeable characteristic, or immutable characteristic, and thus fits the criteria in Shah and Islam (1999) and Article 10 RQD, Reg 6 RQR. In HJ and HT (2010) the Supreme Court set out the test to be applied in cases involving homosexuals, which can be applied to Mehdi. First of all it must be established that the claimant is homosexual and that homosexuals are targeted in the country in question. In this case it is clear Mehdi is a homosexual and this part of his claim is accepted. The objective evidence supports the fact that homosexuals are at risk as there is systematic arresting and torturing of homosexuals with some being sentenced to death (Home Office report). Once this is established, how Mehdi will act if returned must be considered. If he is an open homosexual, for whatever reason he chooses to act in this way, he will be entitled to asylum. If he chooses to be discreet it will depend on his reasons for this. If it is due to social pressures and embarrassment he will not be entitled to asylum but if it is due to fear of persecution he will be entitled to asylum. As Mehdi is known to the authorities, given the fact that he has been persecuted in the past, he does not have the option of being discreet, as the Home Office are suggesting. He will therefore be at risk of persecution from the authorities if returned and should be entitled to asylum. Question 2(b) Human Rights article 3 The past persecution suffered by Mehdi is also treatment contrary to Article 3 ECHR therefore there is a real risk (Kacaj (2002)) that he would suffer inhuman or degrading treatment or torture on return. Page 13 of 18

14 The burning of his leg was deliberate inhuman treatment causing very serious and cruel suffering and therefore torture (Selmouni v France (1999)). The treatment he suffered in detention was intense physical and mental suffering (Ireland v UK (1978) and at least capable of humiliating and debasing him, therefore constituting inhuman or degrading treatment (Ireland v UK (1978)). The treatment he suffered crosses the high threshold of severity required for article 3 treatment (Kacaj (2002)). If he is returned there is a real risk he will suffer further torture and inhuman treatment and possibly be killed. The risk that Mehdi faces on return is greater as he is now at risk of execution. He therefore is at risk of torture on return as this amounts to deliberate inhuman treatment causing very serious and cruel suffering (Selmouni v France (1999)). Mehdi was detained in poor prison conditions with no sanitary facilities and only given food and water once a day. Peers v Greece (2001) and Kalashnikov v Russia (2003) detail poor prison conditions as breaching Article 3 ECHR. Cyprus v Turkey (2002) is authority that denial of adequate food and water to detainees is inhuman or degrading treatment. There is a future risk that Mehdi will be detained in poor prison conditions before his case is heard and therefore a real risk of similar treatment contrary to Article 3 ECHR on return. Conclusion It is therefore submitted that the appeal should be allowed as Mehdi has a wellfounded fear of persecution for a Convention reason. He is at risk of execution after an unfair trial and is likely to be detained in inhuman or degrading prison conditions whilst his case is ongoing. Mehdi s treatment also breaches Article 3 ECHR and there is a real risk of further torture and inhuman or degrading treatment on return. Question 3 Introduction As Cameroon is a visa national country, and entry to settle as a partner is a purpose that requires entry clearance, Henriette must successfully meet the requirements of Appendix FM to come to the UK as Matilda s unmarried partner. She must provide specified documentation in support of her 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 Henriette meets the partner definition as she and Matilda have been living together for over two years. Bills to the same address over the two year period, in both of their names, will prove this requirement. Relationship Requirements Matilda is a British citizen so will satisfy E-ECP 2.1 and be an appropriate sponsor. She is living and working in the UK so Britain is her place of ordinary residence. She needs to be present in the UK when Henriette arrives. In order to comply with E-ECP 2.2 and 2.3 both the applicant and the partner must be over 18. Matilda is 27 and Henriette is 22 so they meet the requirements. Page 14 of 18

15 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. This is obvious in this case as they have cohabited in the past. 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 over two years and can prove this, for example with bills to both parties (individual or joint) sent to the same address. As they intend to live together in the UK this will also assist in proving their relationship is genuine and subsisting. As Matilda and Henriette do not intend to get married or enter into a civil partnership they do not have to satisfy the requirements 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. There is nothing on the facts indicating a previous relationship of this nature. E-ECP.2.10 states that applicant and partner must intend to live together permanently in the UK. The previous cohabitation and the fact that they will be living at Matilda s flat on return to the UK will assist to show this requirement. Matilda is subject to no immigration restrictions as she is a British citizen. Her passport will be proof of this. Financial Requirements Income To satisfy E-ECP 3.1 Matilda and Henriette need to show an income of 18,600. This must be from the UK partner alone in an entry clearance application so Henriette s potential earnings are irrelevant. As Matilda is earning less than the required 18,600 income, her savings need to be 16,000 plus 2.5 times the shortfall between the amount of income she has and the income threshold. In this case she is earning 16,600 so the shortfall is 18,600 16,600 = ,000 plus (2.5 x 2,000) = 21,000. She has 25,000 so she has sufficient. Documentation required to evidence income: In order to evidence her income Matilda needs to produce her last 6 months wage slips, her last 6 months bank statements (showing her wages going into her bank account), her P60 and a letter from her employer confirming her position, the length and permanency of employment and her salary. She also needs her signed contract of employment. Third Party Support Third Party Support (TPS) is no longer permitted to assist with the maintenance requirement, so her parents cannot help her meet the threshold in that way. However, as she has sufficient money in savings this will not be a problem. Third party support is permitted for accommodation and her parents are assisting her with these costs. Page 15 of 18

16 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. Evidence of the tenancy agreement and independent accommodation report must be provided as evidence. Matilda s accommodation is adequate for the purposes of E-ECP 3.4 as she has a two-bedroomed property, and only one reasonably sized bedroom is needed for a couple- Saghir Ahmed (1994). English language requirement Henriette has a degree taught in English so this should exempt her from the English language requirement in E-ECP 4.1. Leave granted If Henriette s application is successful she will be granted 33 months leave to enter. After 30 months in the UK she will be able to apply for a further 30 months limited leave. After 60 months (five years) in the UK, if she still meets all the stated requirements, she will be able to apply for indefinite leave to remain. Henriette will be able to work on arrival. Question 4 General Treaty Rights Article 21 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. Consequently Marie and Jean-Paul can enter the UK freely in order to exercise their rights without requiring any prior entry clearance. If Marie was unable to take up the position, Article 6 would therefore also enable her to reside for three months while 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 threemonth period. As Marie has 5200 in savings she will therefore be able to stay longer if she needs time to look for alternative employment. In Royer v Procureur du Roi (1976), the UK case of Antonissen (1991) and also in EC Commission v Belgium (1997), the Court of Justice of the EU extended the rights of free movement to job seekers. It ruled that job seekers should be allowed a reasonable time to look for work (i.e. between 3-6 months). Marie could therefore also be a qualified person if she were simply looking for work in the UK. Based on these rulings Marie as an EU citizen has the right to stay in the UK in search of employment, but cannot claim unemployment benefits (unless the domestic law of the member states permits this). As all EU citizens are permitted Page 16 of 18

17 three months residence in another member state regardless of whether they are working or not, altogether Marie would have up to nine months residence in the UK to look for work. 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. Marie will be a qualified person exercising treaty rights whether working or self-employed. Art 45 TFEU sets out the rights of free movement of workers. It confers on Marie 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). Registration Certificate As an EEA national Marie can apply for a registration certificate, which confirms 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 five 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 the EU treaty obligations, but she can acquire a registration certificate in order to confirm these rights. Part-Time Work The Home Office cannot prevent Marie from taking up work simply because it is a part-time position. In 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 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 und Kunst (2004). Marie therefore clearly comes within the definition of an EU worker. Self Sufficient As Marie should be able to take up her position she would not need to burden the state, as she would be able to fund herself and Jean-Paul. She can also rely on resources supplied by another person, so her friend can help them financially Commission v Belgium (2006). Family Members 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 Page 17 of 18

18 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. As Jean-Paul is over 21 it will be his dependency that brings him into this category. Due to his disability he will be classed as dependent on Marie. He is financially dependent on Marie and needs material support to meet his needs, therefore satisfying the test of dependency Jia (2007), Bigia v Entry Clearance Officer (2009). 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. Jean-Paul s rights are derived from his relationship with Marie and may be revoked if she were to cease to be a qualified worker such as in OA (2007). Conclusion Marie therefore has the right to work here and Jean-Paul can accompany her to the UK. They could reside here without restriction for three months but can stay long term as Marie will be working. There is no justification for refusing to allow her to take up the position. Part-time work is permissible. Page 18 of 18