IMMIGRATION & ASYLUM REACCREDITATION SCHEME Level 1 WRITTEN EXAMINATION Date: 12 February 2013 Page 1 of 10
INSTRUCTIONS TO CANDIDATES THE INVIGILATORS ARE UNABLE TO ANSWER ANY QUESTIONS ABOUT THE EXAM PAPER. IF YOU ARE UNSURE ABOUT A QUESTION, EXPLAIN THE APPROACH YOU HAVE ADOPTED IN ANSWERING IT. The time allowed for this examination is 2 hours plus 30 minutes reading time. Write in blue or black ink. This exam paper contains 10 pages. Please ensure that all pages are attached. You must answer all three questions. Please note that if you do not have sufficient time to set your answers out in full, credit will be given for answers which highlight the points to be made in brief form. Credit may also be given if you indicate matters that you would investigate by further research if you are not familiar with the detail of any particular issue from your practice. Please note that all relevant country information is contained in the questions. No additional marks will be awarded for answers relying on more specialised knowledge To pass this assessment, candidates must obtain at least 50% of the marks. This paper was set on 07 December 2012 and candidates will obtain marks if they show an accurate knowledge of law on that date. Although no one will lose marks for making reference to later developments, this will not earn bonus marks. Permitted materials: This examination is open book means that candidates will be able to take into the examination room any material, including text books, other bound material, downloaded material, personally prepared notes and lecture notes. All documents may be annotated and underlined in as much detail as the candidate requires. Post - it notes are also allowed in this context. Page 2 of 10
THIS QUESTION PAPER MUST BE HANDED IN WITH YOUR SCRIPTS AT THE END OF THE EXAMINATION Page 3 of 10
Question 1: Asylum [34 Marks] A new client Dennis is a gay man and a citizen of Hawak (fictional country). He is 26. He arrived in the UK in August 2009 with entry clearance for leave to enter as a student for a three-year degree level course in Computer Science at the University of Manchester and his leave to enter will shortly expire. Dennis is seeking legal advice because he has heard that he is unlikely to be able to extend or vary his leave to remain in the UK for the purposes of work or further studies at the end of his course [note to candidates: assume that this is correct]. He is worried about that, because whilst living in the UK he has come out as a gay man and, he says, the situation for openly gay people in Hawak is dangerous. Dennis has, since starting at the University, formed a relationship with another male student at the University, Himat, who is a national of the USA and they have been living together as unmarried partners for one and a half years. You decide to consider the issues raised prior to your first meeting with Dennis. (a) Explain which of the Convention reasons might be relevant to any potential claim for asylum on the facts you know at this stage (2 marks) (b) Specify 4 major sources of country information to research at this early stage whether the situation for gay people in Hawak is as Dennis says. Your initial research suggests that sexual relations between persons of the same sex are a criminal offence under the Hawak penal code, which prescribes a maximum punishment of term of imprisonment of two years. Page 4 of 10
(c) Explain the test for whether treatment of a person amounts to an act of persecution (4 marks) (d) What degree of risk must be shown to establish that an applicant for asylum will be persecuted if returned to a particular country or area? (1 mark) (e) What details are you likely to need in relation to the situation in Hawak to assess whether openly gay people are at risk of persecution in that country Having conducted further research, your assessment is that openly gay people are at risk of persecution in Hawak. However, when you meet Dennis you discuss his life in Hawak before coming to the UK to study and it emerges that he was able to avoid any adverse treatment in that country by living very discreetly as a gay man in the capital city Lusanko in the south of Hawak, having left his family home in a rural area to the north of the country where meeting other gay men was very difficult. (f) Explain whether you would expect any asylum claim made by Dennis to fail if it was established that he could conceal his sexuality in any area of Hawak? (3 marks) (g) Explain the potential significance for any asylum claim made by Dennis of the difference between the rural and capital city areas of Hawak. (h) Explain the main procedural steps that are followed when an asylum claim is made in the United Kingdom. (6 marks) Page 5 of 10
You assist Dennis in making a successful application for asylum to the United Kingdom Border Agency based upon his sexuality and the treatment of gay people in Hawak. (i) What form of leave should Dennis be given, of what duration of time and what restrictions will be placed in that leave? (3 marks) Page 6 of 10
Question 2 - Immigration [33 Marks] Carlos is a British citizen. He is single although he came to the UK five years ago on a spouse visa and subsequently naturalised as a British citizen. He has a daughter, Sophia, from a previous marriage. Sophia is 15 years old and lives in Argentina. She was living with her mother, Carlos ex wife. Sophia s mother passed away six months ago. Carlos travelled to Argentina for his ex-wife s funeral and at the same time made arrangements for Sophia to be looked after by a relative. He had her admitted into a private school and paid her school fees for a year in advance. He also gave the relative enough money to pay for Sophia s food, clothing and any other expenses. Carlos then returned to the UK. He comes to see you. He speaks to Sophia every weekend and she is unhappy about staying with the relative. Carlos has also spoken with his relative who has indicated that Sophia s behaviour is very poor and that he is unable to cope with the situation. He has asked Carlos to make alternative arrangements for Sophia s care. Carlos has been unable to find anybody who is willing to look after Sophia. He wants to know whether there is any way that Sophia can obtain permission to join him in the UK. (a) Advise Carlos on the type of application Sophia could make to join him in the UK and what the requirements are for making such an application for leave to enter the UK. You must cite relevant Immigration Rules in your answer. (6 marks) (b) Advise Carlos on the procedure for making an application for entry clearance. (6 marks) (c) The application is refused. Advise Carlos on the time limits for appealing the decision? Who should the appeal be submitted to? Page 7 of 10
The appeal is successful and Sophia arrives in the UK. (d) When will Sophia become eligible for British citizenship? You must cite the relevant legislative provisions in your answer. Carlos friend Fancisco emails you from Argentina because Carlos has praised your work very highly. Francisco s grandfather was born in the UK and the British Embassy in Buenos Aires has advised him to submit an application for entry clearance under the UK ancestry rule. However, he is unsure about what evidence to include with his application. You agree to send him a list of documents by email. (e) List the items of evidence Francisco should submit in support of his application. For each piece of evidence, you should also explain why it should be included. (6 marks) Francisco emails you back. He wants you to act for him in preparing an application. However, he tells you that some of the documents you listed in your email advice to him aren t available. A friend of his has offered to create the relevant documents. (f) What is your advice? How does this information affect your professional position? Page 8 of 10
Question 3 - EU Law [33 Marks] Doreen is a Jamaican national who entered the UK on 16 January 2007. She was granted leave to enter for six months as a prospective student. Later that year, Doreen was granted leave to remain as a student to take an access course with a view to taking a degree course in Nursing. She completed the access course successfully, obtained a place on a degree course and successfully applied to extend her leave to remain as a student to remain for the course which was due to take three years. In March 2012, Doreen married a Spanish national named Jose. Jose was working full-time in the UK as a delivery driver for a large company and, on 11 August 2012 Doreen was issued with Residence Card as the spouse of Jose, which was valid until 10 Aug 2017. (a) Explain Doreen s rights of residence in EEA law after the marriage When she came to the UK in 2004, Doreen had left her two children, Adele (16) and Rihanna (15), behind in Jamaica in the care of her mother, Edith. Doreen had not been married to the children s father and he has played no part in their lives. Doreen wishes that Adele and Rihanna join her and Jose in the UK. (b) Explain Adele and Rihanna s rights to be admitted to the UK to join Doreen and Jose (6 marks) (c) How could Adele and Rihanna obtain confirmation of their rights to be admitted to the UK to join Doreen and Jose before travelling, to whom would they apply and how much would that cost? (3 marks) Page 9 of 10
(d) What documents/evidence would Adele and Rihanna be advised to produce to obtain such confirmation of their rights to be admitted to the UK to join Doreen and Jose (e) Would Doreen s mother Edith also have a right to be admitted to the UK? (4 marks) Adele and Rihanna are admitted to the UK to join Doreen and Jose and at first all goes well; Jose is working and the family starts to get settled together. Jose loses his job and cannot find alternative work. Arguments start between him and Doreen, because Jose wants Adele and Rihanna to look for work to help to pay the bills, but they are still minors and had started in college as soon as they arrived in the UK. Doreen wants them to concentrate on getting good marks in their exams. Jose cannot find work and decides to return to Spain permanently, leaving Doreen and the girls behind. (f) Explain whether rights of residence in EEA law after Jose returns to Spain are still enjoyed by i) Adele and Rihanna (6 marks) ii) Doreen (4 marks) Page 10 of 10