Subject 40 INSTITUTE OF LEGAL EXECUTIVES IMMIGRATION LAW EXAMINER S REPORT AUTUMN 2007 There was a range of marks in this examination. As always, good candidates showed both knowledge and the ability to address the question. Poor candidates displayed little accurate knowledge and sometimes answered in ways that were totally irrelevant. SECTION A 1. George learns that his cousins Frank and Elizabeth (who are not EEA nationals) are in trouble with the authorities in their country of origin. At George s suggestion, Frank applies for a visitor s visa to come to the UK for a holiday. He obtains the visa, comes to the UK and claims asylum on arrival. As Elizabeth has previously over-stayed and is unlikely to obtain a visa, George borrows his sister Helen s UK passport and sends it to Elizabeth, Elizabeth has the passport altered and uses it to travel to the UK. Two days after her arrival, Elizabeth claims asylum but, at interview, refuses to say how she gained entry to the UK. Advise George, Frank, Helen and Elizabeth as to their possible criminal liability in relation to immigration offences. This is quite a complex question and candidates could gain good marks without being correct on every detail. Students could have identified some of the following: George: He has assisted both F and E to enter UK and in doing so, may have committed an offence under S25(1) or S25(A) IA 1971 as amended. His assistance to Frank consisted only of suggesting that he apply for a visa and, particularly as F applied for asylum on arrival and thus did not gain entry (see Naillie) conviction under S25A unlikely. As regards E, S25A is unlikely to apply as it requires the facilitation to be for gain. However, he may face conviction under S25(1) as he has facilitated the commission of a breach of immigration law by someone who is not an EEA national, knowing it is a breach of immigration law and knowing E is not an EEA national. No S31-type defence even if E s asylum claim is successful. Frank: F claimed asylum on arrival but obtained a visitor s visa by misrepresenting his intentions. He therefore did not enter the UK illegally. However, he may be charged under S24 A IA of obtaining or seeking to obtain leave to enter by deception. S31 defence only applies if F is awarded refugee status answers may point out that S31 (although upheld by courts: Hussain and Pupushi) is narrower than usual interpretation of A31 RC. Even then, other limitations apply although facts here suggest they do: he made claim as soon as reasonably practicable and did not stop off en route. Page 1 of 7
Helen: Assuming her role is discovered, she may face prosecution under S25(1). However, prosecution would have to show that Helen did an act (ie actively lent the passport) knowing or having reasonable cause to believe the purpose for which it would be used. Elizabeth: Elizabeth could be charged under S24(1) entry by deception if the facts concerning her entry come to light or if interview reveals that she must have used deception to enter see APIs on illegal entry. Limited S.31 defence applies. If she produces the passport, she may be charged with falsifying it (S26(d) IA or Forgery and Counterfeiting Act 1981) though limited S31 defence applies. If she sticks to her story, she may be charged under S2 AI(TC)A with entering the UK without a passport. Only defence would have been to produce Helen s passport at interview and show that she used it to travel to UK. No S.31-type defence. 2. Mien s mother has lived in the UK for many years and has established a successful import business. She now wishes to retire and for Mien (who is a non-eea national) to come to the UK in order to take over the business. Consider which categories of entry, if any, Mien could apply for. The facts were deliberately left sketchy to give candidates the opportunity to identify and apply relevant issues. Mien could apply to come as someone wishing to set up or join a business. However, the rules are very restrictive and not really appropriate to Mien. Rules are in paras 202-204 IRs. Form of business (sole trader, partnership, UK registered company) is flexible. However, there are many other criteria that M must meet. These are set out in para 201 and include maintenance and accommodation, ft involvement, necessity for controlling interest and ban on disguised employment. Some may prove difficult for Mien, most notably that she must have 200 000 of own money under her control and disposable in the UK, held in her own name and which she will be investing in the UK. Even if her mother is willing to pass ownership of the business to her, this would not be sufficient to satisfy this requirement (Rahman). Additional requirements in para 202 apply when someone intends to join or take over the business as partner or director. As well as a written statement of terms and audited accounts, there must be evidence that his service and investment will result in a net creation of at least 2 ft jobs. Mien s mother could apply for a work permit for Mien provided she meets requirements for one including qualifications and experience but then the business would have to undergo resident worker test. Also must show intention to leave UK plus criteria for grant of work permit excludes those who have more than a 10% share in the business. The most flexible option would be HSMP provided Mien can qualify as can work as employee or on own account and must intend to make UK her permanent home. If this does not work, no short-term solution. Could eg try to come on wp basis and then take up ownership after gets ILR. 3. Advise the following as to their right to enter and/or remain in the UK: Page 2 of 7
(a) (b) (c) (d) Irini, a citizen of Greece, and her husband Gabriel, a Columbian national, wish to spend two months travelling round the UK as tourists. As an EU national, Irini has the right under A.6 Directive 2004/38/EC to reside in the territory of another MS for a period of up to three months without any condition except the requirement to hold a valid identity card or passport. The provision extends to family members who are not EU nationals. If Gabriel already has a residence permit, he is entitled to enter. If he doesn t, he may apply in advance but may not be turned away at the border without being given an opportunity to prove his status. Henrik, a national of Sweden, came to the UK to work as an accountant one year ago. After nine months, he lost his job. Since that time, he has been unable to find another job. Henrik is entitled to remain in the UK under A7 Directive 2004/38/EC if he became involuntarily unemployed within first 12 months and has registered as a job-seeker. However, he retains this status only for 6 months so he only has 3 more months to find work or to exercise rights in another capacity. When he first started work, he would have been entitled to a registration certificate but this is not the source of the right and may be withdrawn if H fails to find work or to exercise rights in another capacity. Natasha is a Russian national married to Gregoire, a citizen of France. They have been living and working in the UK for two years. Gregoire has recently died. As a third country national, Natasha s rights are dependent upon those of Gregoire. She would not yet have achieved a right of permanent residence at the time he died. However, A.12 2004/38/EC provides that provided where, as here, non-eea national has been residing for at least one year, she will not lose her residency rights and can qualify for permanent residency so long as she continues to be a worker, selfemployed or self-sufficient. Matilde is a Mozambique national and the niece of Fernando, a Portuguese national, who has a business and lives in London with his family (all Portuguese nationals). Fernando sends Matilde money to help her with her studies. He would like Matilde to come and live with his family in London. A.2 2004/28/EC defines family members with right of entry as spouse, children under 21 or dependent or dependent relatives in ascending line. Matilde is not within that category. However A3 provides for entry and residence to be facilitated for other family membesr who are dependants or members of the household. So, if M can establish dependency, entry should be facilitated. Dependency has been interpreted widely there is no need to establish reason or that is a dependence of necessity. However, UK implementing regulations, I(EEA)R 2006, take a more restrictive view. Where family member is outside UK, regulations provide that will only be admitted if meets requirements of domestic immigration rules (which are much tougher than EU rules). This is a very broad interpretation of ECJ case law (Akrich etc) and of doubtful validity. Legal challenge is probable. Page 3 of 7
4. Albert, a non-eea national, has over-stayed his visa in the UK. He suffers from a severe mental illness. Treatment is limited in his country of origin and mental illness is heavily stigmatised. Advise Albert whether he can rely on the Human Rights Act to prevent his removal from the UK. Albert would have to rely either on A.3 or A.8 ECHR. A.3 is available only in the most severe cases. In D, one case where a medical claim succeeded, the applicant was on the point of death anyway and it was a question of dying in destitution in country of origin. In Bensaid, while mental illness was not excluded from triggering a claim, it did not on those facts. In N, HL found that A.3 does not create an obligation to provide medical care that is not available in the country of origin even if the outcome may ultimately be death. Here, however, the issue is not only the absence of treatment but the stigma that attaches to the condition. If that would result in treatment that breaches an A.3 claim, A s claim might be successful. This point should be considered in good answers. There is also the possibility of relying on A.8. Adopting the step by step approach could result in a finding that A s right to a private life has been infringed and this might be disproportionate see Razgar. However, note dicta in Razgar, confirmed in Huang, that only the most compelling humanitarian considerations would result in such a finding, a test similar to that of flagrant violation. In all events, whether A3 or A8 claim succeeds, p would get discretionary leave. SECTION B 5. Discuss the role of all the following in immigration law: (a) juxtaposed controls; These were introduced under NIAA and involve reciprocal arrangements with other EEA countries to allow immigration control to be carried out in each other s country at port of departure eg Calais, Brussels for Eurostar, Dover etc. Administrative advantages but also that because immigrants do not enter UK territory, they are not able to make a claim under Refugee Convention or ECHR. Questions also about how they fit in to the rest of the immigration control eg appeal rights etc. (b) carriers liability Another means of preventing illegal entry and asylum claims. Responsibility is imposed on those bringing passengers or goods into the UK to avoid clandestine entrants. Measures have become increasingly draconian. Joint civil penalty may be imposed on owners, hirers, captains etc. Code of practice to ensure those responsible know their responsibilities. Limited statutory defences: duress or did not know and had no reasonable cause to believe presence of clandestine passenger. Fixed penalty now on sliding scale after Roth. Penalties also for inadequately documented passengers. Means carriers have to carry out work of immigration officer. Airline liaison officers appointed to help. HO has been found liable in negligence where loss foreseeable. (c) race discrimination; and Under RRA 1976 as amended, immigration control is subject to race relations legislation. However, relevant person ie minister or person acting in accordance with authorisation may discriminate on grounds of nationality or ethnic or national origins. Authorisations have been given in certain cases eg immigration officer may examine particular nationalities more closely than others, language testing etc. Prague airport case found that Page 4 of 7
could not discriminate even if motive was not discriminatory. Many unanswered questions about how it applies to eg entry clearance where practice between posts varies considerably. (d) Switching. Means changing in-country from one category to another. Strict rules eg visitors may not switch to marriage or work permit employment. May change to some related categories eg innovator/hsmp/work permit. Rules change regularly depending on current position. So some students have been permitted to wp employment but this could change again, whm can switch into wp employment in shortage areas. If switching not permitted, expectation is that you will leave the UK and apply from abroad for entry clearance. 6. Discuss the effect on asylum seekers of the limitations on the right of asylum. There are a lot of points that may be covered in this question and candidates do not need to identify them all. Essentially, there are 2 types; those contained within the Convention itself and those contained in UK domestic law and relating mostly to procedure. Answers might refer to: Need to be outside country of origin practical difficulties in making claim Protection limited to non-refoulement so if not admitted to UK via visa controls, carrier liability regime etc, responsibility does not arise. Also gives rise to safe third country rules. Limited obligations to those awarded refugee status so may be eroded eg no longer get ILR but 5 years Persecution must be for a convention reason thus excluding victims of general unrest, natural disasters etc Necessity to establish that state is unwilling or unable to protect scope of this has been somewhat limited in case law; also, internal relocation has been quite severely applied Article 1F and, more frequently, A33(2) restricts asylum status of those who have committed various crimes UK law arguably goes beyond RC in S72 NIAA Obligations in UK law on asylum seekers that can lead to rejection of claim for non-compliance eg prompt and full disclosure, short time limits for SEF Extensive list of behaviour that is deemed to reduce credibility Short time limits for appeal and need to raise all relevant issues in the appeal 7. Compare the rules for the admission of family members under EU and domestic law. This was a relatively straightforward question but good answers should contain some evaluation rather than just a description of the two regimes. EU law is more liberal than domestic law because it is predicated on a different principle: facilitating free movement as opposed to controlling immigration. Nonetheless, contrast is marked while existence of EU regime provides opportunities for UK nationals caught by rigid domestic rules. Candidates could cover the following: Financial restrictions limited in EU regime cf maintenance and accommodation Page 5 of 7
No visa needed if already have residence card issued by another member state. No fee for visa and must be given priority Dependency widely defined in EU cf under UK law Spouses: marriage of convenience narrowly defined and burden of proof on state cf intention to live together where burden is on applicant Unmarried partners relationship has to be duly attested cf requirement under UK law to have lived together for 2 years plus requirement of intention No provision in EU law for fiancé(e)s so these have to apply under domestic law Children under 21 or dependant on EEA national to be admitted under EU regime cf children under 18 where both parents resident or sole responsibility/serious and compelling considerations Other direct descendants also included if under 21 or dependant under EU regime whereas grandchildren excluded from UK regime. Dependant relatives in the ascending line included in EU regime compared to UK where parent or grandparent over 65 must be widowed or travelling together or remarried and cannot be supported by second family and must show wholly or mainly financially dependant on UK relative and is without other close relatives to turn to in his own country In EU law, entry and residence must be facilitated for all other family members who are dependant or members of the household or health care needs have to be met by personal care of EU citizen. In UK, short exhaustive list of other relatives including parents or grandparents under 65, children, siblings, aunt or uncle over 18 and living alone in most exceptional compassionate circumstances and mainly dependent on UK settled relatives. 8 (a) Explain the differences between settlement and right of abode; Settlement is an immigration status means ordinarily resident (see Shah) without restriction on immigration status. However, may be deported or may lose status if are absent from the UK for 2 years. Right of abode is absolute right to live in the UK usually associated with citizenship but a few Commonwealth citizens also have right of abode. Good answers may note ways in which may now lose right of abode. AND (b) Explain the differences between British overseas territories citizen and British overseas citizen; These are both categories of British citizenship that do not carry the right of abode in the UK (although a few privileges). BOTC are nationals of British overseas territories. This is a much smaller category as most of those who were BOTCs on May 21 st 2002 became British citizens under BOTA. BOC is a residual category most significant are East African Asians. They are former CUKCs who did not acquire local citizenship when their country gained independence. Previously covered by a voucher scheme abolished 2002. However, S4B BNA 1981 inserted by NIAA 2002 gives the right, in most cases, to register as BCs provided they have no other citizenship or nationality. Page 6 of 7
AND (c) Explain the differences between registration and naturalisation; Most adults naturalise. Candidates should explain the criteria and that it is discretionary. Answers should mention residence qualification, good character, intention to make UK main home, language requirements, knowledge of British society and ceremony with oath and pledge. Registration is an administrative process available for children in certain circumstances eg when born in UK to non-settled parents who subsequently become settled plus eg BOCs/BOTCs etc who reside legally for 5 years and have ILR, BOCs etc without an alternative citizenship etc. AND (d) Explain the differences between citizenship by descent and citizenship by birth. Citizenship by birth is available to those born in the UK with one parent a BC or settled in the UK (including via unmarried father since 1 st July 2006). Citizenship by descent applies when a child is born abroad and one parent (whether married or not) is a BC other than by descent. Descent limited to one generation unless connection with UK maintained. Very good answers might show understanding of difference between S.3(3) and S3(5) BNA and advantage of S3(5). EXAMINATION STATISTICS Candidates Sitting: 5 Percentage Passing: 60% Distinctions Achieved: - 2007 Institute of Legal Executives Page 7 of 7