Immigration Law
Applying the relevant law to a family migration appeal you have
witnessed, give the judge your view on the legal issues raised and the
most appropriate way of resolving them.
OR
b) Using the relevant law to the following scenario, give the judge your
view on the legal issues raised and the most appropriate way of resolving
them.
CASE STUDY ONE
Stephen is a Cameroonian national who came to the UK in September 2014 on a
visitor visa which expired in March 2015. He did not return home but lived with a friend
whilst working as a car wash attendant earning £100 per week. Stephen made three
applications to the Home Office in false names for asylum but these were all refused.
In May 2016, whilst washing her car, he met Jane, a Congolese citizen who was
studying in the UK. They began a relationship. Stephen and Jane began cohabiting
in June 2017. In October 2017 Jane obtained indefinite leave to remain. She secured
a well-paid job in a bank. In November 2018 she gave birth to a daughter Florence.
Stephen is named as the father on the birth certificate. Stephen and Jane began to
argue after the birth. They separated in May 2020. Stephen sees Florence each
weekend for 3 hours. If he had to go back to Cameroon, Florence would continue to
live with Jane. In October 2020 Stephen applied to the Home Office for leave to
remain under Appendix FM.
The Home Office refused his application in January 2021. The decision letter said
that under Appendix FM he cannot succeed under the main rule because he is not
lawfully in the UK. It noted that he ‘should not benefit from his flagrant breaches of
immigration law.’ Furthermore, under EX1 and EX2 there are no insurmountable
obstacles to him going to Cameroon. It also said that he is not taking an active role
in Florence’s upbringing. It said Florence would continue able to enjoy all the benefits
of British citizenship. The refusal decision did not mention Article 8 ECHR outside the
rules or show it had considered whether any exceptional circumstances applied. The
letter said he was unlawfully in the UK and should leave.
Stephen appealed against the decision on human rights grounds under s82
Nationality, Asylum and Immigration Act 2002. At the start of the appeal hearing,
Stephen said that he suffered from anxiety and was worried because he could not
afford a lawyer. The judge told him that this was not a reason to adjourn the case.
When giving his evidence Stephen got confused about what he had given Florence
for her last birthday. He also said his social worker had agreed that Florence had
formed a strong bond with him. The Home Office lawyer said that Stephen should not
be believed because he could not answer basic questions about his relationship with
Florence. There was also no family court order provided to show that he had any
contact at all. Stephen should go home to seek a visa to return to the UK. The family
would only be separated for a few months. The judge has reserved her decision.
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CASE STUDY 2 Asylum/Protection
a) Applying the relevant law to an asylum/protection appeal you have
witnessed, give the judge your view on the legal issues raised and the
most appropriate way of resolving them.
OR
b) Applying the relevant law to the following scenario, give the judge your
view on the legal issues raised and the most appropriate way of
resolving them.
Khalid is a national of Iraq and was born a Shia Muslim. He lived in the North
of Iraq with his family. He came to study philosophy in the UK in 2015. In 2016,
his home town was overrun by forces linked to Daesh (Islamic State), a military
group that in some places sought to kill Shias who refused to renounce their
faith in favour of Sunni Islam. Khalid did not return to Iraq as his family said it
was too dangerous. His student visa expired in 2017 and he claimed asylum
but he heard nothing from the Home Office. He then became an evangelical
Christian who promoted his views in Arabic on his website which began to
attract many subscribers.
Iraqi Kurdish forces fought Daesh and recaptured Khalid’s hometown in 2018.
The situation remains unstable and Khalid has heard that Daesh still have spies
everywhere. He is afraid to return to his hometown because of the level of
violence still going on. He also fears for his safety now that he is a Christian.
Khalid says he cannot be an openly evangelical Christian in Iraq, even in
Baghdad. He says that he has no support network in Baghdad and that there
are still lots of bombings and shootings there. The general public is not safe.
He fears that he would become destitute there.
In December 2020, the Home Office refused his application saying:
(a) he would not face persecution because civilians in his home area can
seek protection from Kurdish forces;
(b) his claim is not credible because he only claimed asylum after his visa
expired;
(c) his ‘conversion’ to Christianity is not genuine but is instead a tactic to
secure asylum;
(d) he can relocate to Baghdad where there is no violence and the
Constitution protects religious minorities.
Khalid lodged an appeal under s82 of the Nationality, Immigration and Asylum
Act 2002. At the hearing, he filed a bundle of evidence including copies of his
blog posts and also threats he has received on his webpages. He has not been
able to afford to translate these into English but asks the judge if he can use
the court interpreter to read them out. He says they say ‘Death to you!
Apostate!’ He does not have a lawyer.
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He gives evidence and says that he became interested in Christianity in 2014
after reading some Bible passages. He kept quiet about this out of fear. The
Home Office’s lawyer says that he is not credible because he only started his
evangelical blog in 2017 after his visa expired. The judge asks Khalid some
detailed questions about why he is a Christian. Khalid explains that he had
many discussions with fellow students in the UK that led him to convert. His
church requires that he try to spread Christianity, so he started his blog in
Arabic. He has one witness – a member of Khalid’s church – who gives
evidence and confirms Khalid’s account. The judge has reserved her decision.
CASE STUDY 3 – Bail Application
a) Applying the relevant law to a bail hearing you have witnessed, give the
judge your view on the legal issues raised and the most appropriate way
of resolving them.
OR
b) Applying the relevant law to the following scenario, give the judge your
view on the legal issues raised and the most appropriate way of resolving
them.
Musa is a national of Algeria who entered the UK in September 2019 on a valid visa
to study English at Kingston College. His visa ran until April 2020 when it expired. He
did not return home but continued to live with his cousin Abdul. Abdul has a student
visa as he is doing a PhD at Oxford University. Musa was arrested in May 2020 after
he was found in possession of a stolen credit card which he had tried to use to buy
food with. He was not charged but was passed to the Home Office and detained as
an over-stayer. A week later he claimed asylum saying he was gay and could not
return to his home country. At this point the Home Office granted him bail on condition
that he live with his cousin Abdul and report to the Home Office every week on
Mondays. He reported each week even though it meant a 4-hour round trip and he
had to borrow money from his cousin for the travel fare.
His asylum claim was rejected by the Home Office on 1st June 2020 as his claim to
fear persecution was found not credible. He lodged an appeal to the First-tier Tribunal
but this was dismissed by the Immigration Judge on 1st October 2020 and a copy of
the appeal decision sent to Musa at his cousin’s house. The judge said that his claim
was a ‘complete fabrication and a determined attempt to stay in the UK by fraud’.
Musa did not have a lawyer at his appeal.
The Monday after his appeal was dismissed he did not report to the Home Office. He
was marked as an ‘absconder’. The Home Office sent some officers to find him at his
cousin’s house in an attempt to arrest him so they could remove him. He was not
there on that occasion and his cousin said that Musa was out at the library. He
reported the next Monday and the Home Office arrested him on that occasion. He
has been detained since 8th October 2020. The Home Office are trying to get a travel
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document for him. He has signed all the paperwork but the Algerians are not
responding to letters from the Home Office.
Two months ago, a medical expert confirmed in a report that Musa is positive for HIV.
It recommends that he be allowed to stay in the UK to receive treatment. He is doing
well now that he receives anti-retroviral drugs but he is fearful that if sent back to
Algeria he may die. Musa has now applied for bail before an Immigration Judge. He
does not have a lawyer to represent him. He has been told by a friend that he should
apply to stay in the UK on health grounds. He is not sure if this is possible or how to
do it. He says he sorry for not reporting once to the Home Office but he was ill that
day and tried to phone to explain but could not get through to anyone. Abdul has
attended the hearing with proof that he (Abdul) has £2,000 in his bank account.
The Home Office bail summary argues that bail should be refused as they say:
- Musa will abscond if released. This is based upon:
-his failure to extend his student visa
-his previous absconding
-his criminal record
-his failure to claim asylum until he was arrested
-his lack of credibility in his asylum claim
-his lack of any applications or appeal at present - That he is likely to commit further offences because he has no money