THE CHARTERED INSTITUTE OF LEGAL EXECUTIVES UNIT 8 IMMIGRATION LAW *

Transcription

1 12 January 2016 Level 6 IMMIGRATION LAW Subject Code L6-8 THE CHARTERED INSTITUTE OF LEGAL EXECUTIVES UNIT 8 IMMIGRATION LAW * Time allowed: 3 hours plus 15 minutes reading time Instructions to Candidates You have FIFTEEN minutes to read through this question paper before the start of the examination. It is strongly recommended that you use the reading time to read this question paper fully. However, you may make notes on this question paper or in your answer booklet during this time, if you wish. All questions carry 25 marks. Answer FOUR only of the following EIGHT questions. This question paper is divided into TWO sections. You MUST answer at least ONE question from Section A and at least ONE question from Section B. Write in full sentences a yes or no answer will earn no marks. Candidates may use in the examination their own unmarked copy of the designated statute book: Immigration Law Handbook, 9th edition, Phelan and Gillespie, Oxford University Press, Candidates must comply with the CILEx Examination Regulations. Full reasoning must be shown in answers. Statutory authorities, decided cases and examples should be used where appropriate. Information for Candidates The mark allocation for each question and part-question is given and you are advised to take this into account in planning your work. Write in blue or black ink or ballpoint pen. Attention should be paid to clear, neat handwriting and tidy alterations. Complete all rough work in your answer booklet. Cross through any work you do not want marked. Do not turn over this page until instructed by the Invigilator. * This unit is a component of the following CILEx qualifications: LEVEL 6 CERTIFICATE IN LAW, LEVEL 6 PROFESSIONAL HIGHER DIPLOMA IN LAW AND PRACTICE and the LEVEL 6 DIPLOMA IN LEGAL PRACTICE Page 1 of 8

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3 SECTION A (Answer at least one question from this section) 1. Outline the framework of the immigration and asylum tribunal system in the UK, the statutory basis of appeals to the tribunal and the basic procedure to be followed in the appeals process. (25 marks) 2. (a) Explain and analyse the different categories of EU nationals qualified to reside in the UK, including those qualifying as workers, under Directive 2004/38/EC and its implementing provisions. (12 marks) (b) Explain and analyse the extent to which close and extended family members of EU national qualified persons can join them in the UK under Directive 2004/38/EC. (13 marks) (Total: 25 marks) 3. (a) Explain how a child can be a British citizen by descent following the British Nationality Act 1981, as amended by subsequent legislation. (12 marks) (b) Outline the various categories of persons who are able to register as British citizens. (13 marks) (Total: 25 marks) 4. Explain and analyse how Article 3 ECHR and Article 8 ECHR can arise in deportation cases, and how the courts decide where to strike the balance between the public interest and the interests of the person being deported. (25 marks) Page 3 of 8 Turn over

4 SECTION B (Answer at least one question from this section) Question 1 Emily is a 24-year-old British citizen who is living and working in the UK as a nurse. She wishes to sponsor her partner, Sebastian, to come and join her here in the UK. Sebastian is a 26-year-old Jamaican national living in Jamaica. He is a chef in Jamaica earning the equivalent of 19,000 per annum. Sebastian met Emily in Jamaica, where she was living and working for the past three years, before returning to the UK six months ago. Emily was working at a Jamaican hospital earning the equivalent of 20,000 per annum for the three years immediately preceding her return to the UK. They now wish to live together in the UK. Emily and Sebastian met soon after her arrival in Jamaica and they then lived together for two years and three months. Emily returned to the UK in June last year as she secured a position at the Bedford General Infirmary. She has been working at the Bedford General Infirmary on a permanent contract since her return and is earning a gross annual income of 27,000. Sebastian came to visit Emily in the UK for the month of December and then returned to Jamaica. Emily and Sebastian are not intending to get married at the present time, but wish to live together in the UK. Emily is still married to, but separated from, her previous British husband, Peter. Emily and Peter separated shortly before she left for Jamaica and they are now in the final stages of getting divorced. Peter now lives in London with his new partner, Claire. Sebastian has been corresponding with a restaurant manager in Bedford who is able to offer him a job starting in March this year. He will be earning 26,000 per annum. Emily owns a flat in Bedford town centre, which she rented out while in Jamaica. The flat has two large double bedrooms. It is currently tenanted, but Emily gave the tenants notice to quit in November of last year and it will be available to live in from 1 February of this year. Emily will move into the flat at this time and Sebastian will live with her there on his arrival. Emily is currently staying with a friend in Bedford until the flat is vacated. Advise Emily whether Sebastian will meet the Immigration Rules and the leave that will be granted if his application is successful. (25 marks) Page 4 of 8

5 Question 2 Abi is an 18-year-old Gambian national from The Gambia. Her parents are members of the Mandinka tribe, which widely practises female genital mutilation (FGM). Shortly after Abi turned 18 years old, her uncle told her parents that her extended family and other tribe members were insisting she undergo FGM, as part of her initiation into womanhood. Abi s mother did not want this, as she herself had experienced severe suffering undergoing FGM at the age of 14 and later suffered complications and increased pain when giving birth to Abi. Despite cultural pressure earlier in her life, Abi s mother and father had not forced her to undertake the practice earlier but, once the pressure from her extended family increased, her father told her that he could no longer protect her and she must undergo FGM. Abi s mother strongly disagreed and secured financial help from members of the local church to pay for Abi s travel to the UK. Before leaving The Gambia, Abi spent a week in hiding in Banjul, while a false passport was arranged for her. She was brought food and drink and did not leave the house. Abi then flew from Banjul to London and claimed asylum on arrival. She fears that if she is returned to The Gambia, she will be forced to undergo FGM. She believes the risk would be the same all over The Gambia. Since being in the UK, Abi has spoken to her mother on the telephone and knows that her uncle and extended family members are still looking for her. Other members of the Mandinka tribe are searching for her in other areas. The Home Office Report states that Gambian law does not prohibit FGM and the practice remains widespread. Violence against women and gender inequality are generally accepted in Gambian society, and employment opportunities for women are limited. All the ethnic tribes are spread throughout the small country. The Home Office accepts the real risk of FGM for female Mandinka tribe members, but argues that Abi s mother can protect her from this. The Home Office also suggests that Abi can go and live in Banjul, as she was not at risk there. Abi does not know anyone in Banjul. The Home Office also maintains that there is no Convention reason, as the particular social group is defined by the FGM and thus does not exist independently of the persecution suffered. Advise Abi on whether she will qualify for refugee status. [You are not required to consider her application under humanitarian protection or Article 3 ECHR.] (25 marks) Turn over Page 5 of 8

6 Question 3 (a) Kiano is a Kenyan national living in Kenya. He is 19 and wishes to have a break from his studies before going to university. Then he hopes to study for a degree in theatre studies either in Kenya, or possibly in the UK if he likes it here. His cousin, Logan, is a 28-year-old solicitor living in London and has a two-bedroomed flat in Islington in North London. Logan is happy for Kiano to stay with him rent-free while he is here. Kiano is an amateur actor and is part of an amateur theatre group called Starlights. Starlights are performing a play at the Brighton festival in the UK in May Kiano wishes to come to the UK for three weeks before the event and then stay for two months afterwards, to spend time with Logan. He will not receive any money for his participation in the event. Kiano currently has 4,500 in savings, out of which he wishes to pay for his airfare to and from the UK. He has found a return flight for 440. Kiano wishes to know his position under the Immigration Rules and the leave he would be granted if his application were successful. Advise Kiano. (17 marks) (b) Kiano was granted entry to the UK. After his stay in the UK he returned to Kenya. He now wishes to return to the UK to study for a degree in theatre studies. He wishes to know how he would go about applying for entry from Kenya in order to study at a UK university for a three-year degree. He also wonders whether he would be able to do some part-time work during his studies to supplement his income. Advise Kiano in this alternative scenario. (8 marks) (Total: 25 marks) Page 6 of 8

7 Question 4 (a) Skyla is a New Zealand national living in New Zealand. She works in New Zealand for an international computing company, APDEL Ltd, having graduated with a Master s degree from New Zealand 18 years ago. Sklya is now 42 years old. She is a director of the company and it has recently set up a branch in the UK. Skyla has been working for APDEL Ltd for five years. Skyla s work is very specialised and the UK company is having trouble recruiting someone to manage the branch. Skyla has been offered the position of Senior Director of the UK company, APDEL (UK) Ltd, if she will relocate to the UK, for a salary of 185,000 per annum. The initial contract is for two years but will be extended if the company is successful. Skyla also has 120,000 in savings. Darwin, the managing director of APDEL (UK) Ltd, requires advice on the formalities involved in sponsoring Skyla to come to the UK and manage the branch here. He wishes to know whether Skyla will be able to fulfil the requirements of the Immigration Rules and whether he is under any duties or formalities that he must comply with in sponsoring Skyla. He also wishes to know the length of time for which Skyla would be allowed entry to the UK if her application were successful. Advise Darwin. (15 marks) (b) Federico is from Cuba and wishes to set up his own advertising agency in the UK. He has 255,000 held in a Barcloyds Bank account that he wishes to use to set up the business, and to maintain himself while the business gets established. Federico speaks good English and has a Master of Arts (MA) degree in advertising from a UK university, as he studied here 10 years ago before returning to Cuba. Federico wishes to know whether he will be able to satisfy the Immigration Rules and all the necessary requirements for entry. He also wishes to know how long he would be able to stay in the UK if his application were successful. Advise Federico. (10 marks) (Total: 25 marks) End of Examination Paper 2016 The Chartered Institute of Legal Executives Page 7 of 8

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