Answer Sheet

Immigration Law Module

Tutorial 1 Family Migration, Appendix FM and FM SE, appeals

Reading: Appendix FM and FM-SE and s82-5 Nationality, Asylum and Immigration Act 2002

Consider the following and prepare your answers to advise these clients:

1. Saphia is a Turkish woman who arrived in the UK. In 2002 she met Leon, a UK national and they
began a relationship. In 2004 their child Leyla was born. Saphia has applied to stay in the UK as
Leons partner. Consider the following alternative scenarios and advise on the legal position under the
Immigration Rules and the Human Rights Act, including any appeal rights:

General points
Immigration rules changed from 9 July 2012. So para 281 replaced for new decisions. Date of
decision important Odeola principle applies (current rules not rules at date of application). App
FM governs leave to remain (LTR) as partner Section R-LTRP says suitability must be met and
eligibility unless exception EX applies.
Suitability no convictions to make mandatory refusal.
Eligibility relationship E LTRP 1.1 must have co-habited 2 years (see GEN 1.2 definition of
partner) other rules under E-LTRP must be met too intent to cohabit
Immigration status requirement E-LTRP 2.1 ? not met if she is overstayer.
English language requirement E-LTRP 4.1 must show done relevant test
Leyla born British citizen if Leon British.

(a) Leon earns 20,000 in a job he has had for 3 months and Saphia has savings of 6,000.
Before this Leon earned 16,000 for 2 years. The Borders and Immigration Agency refuse the
application on financial grounds.
Financial requirement E-LTRP 3.1
Income 18,600 plus 3,800 for child = 22,400 (but not if child is British father can pass
on nationality but needs DNA test for child to prove paternity so can be declared British)
E-LTRP 3.2 income can include that of partner from specified employment
and applicant from specified employment if working legally.

App FM-SE says para 2(c) must provide wage slips for last 12 months if not employed in
present job for 6 months. So Leon needs to go back a year to show income from his current
and previous jobs. This means his income for the previous 12 months was (16,000pa x 9
months(12,000) plus 20,000 x 3 months (5,000) = 17,000)
He is short on income by 5,400.
Safias savings can be considered but they must be over 16,000 to make any contribution
The rule E-LTRP 3.2 is you must have 2.5 x the income shortfall PLUS 16,000. So she needs
5,400 x 2.5 = 13500
plus 16,000 = 29,500
So they dont meet the financial requirement either.
However they may fall under exception EX (a)(i) genuine parental relationship with British
child and not reasonable to expect the child to leave UK . They met the suitability and
relationship requirements (these are mandatory EX can only fill the failure to meet the other
limbs financial or English language)
Case of ZH Tanzania suggests best interest for British child to stay in UK unless
exception factors point to removal. This is an Article 8 case (not EX under the Rules) but is
persuasive. Likely to be met in most cases for children going to poorer countries.
Saphia is not on income support so not a direct burden to UK, no convictions, so likely to
succeed under the EX.
But in any event on s84 NIA Act appeal judges must also apply Human Rights Act and Art 8
ECHR case-law like Chikwamba suggests removal not appropriate.
(b) Home Office refused her application on eligibility grounds saying to Saphia that she should
go back to Turkey and apply for a settlement visa because she was illegally in the UK.
See above the exception EX can apply here or alternatively Chikwamba applies if we use the Art 8
route.
(c) Leon is disabled and receives disability living allowance and income support. His brother also
gives him 100 to help him with bills. Saphia has savings of 10,000. The application is
refused on financial grounds.
The 22,4000 income requirement is not applicable if the PARTNER receives one of the benefits
listed in E-LTRP 3.3 which DLA is. Then the couple only have to show the old rule maintain
and accommodate themselves adequately (including the child) without ADDITIONAL public
funds this could be income support levels. They can apparently take into account third-party
support in these circumstances (unlike for standard cases) and her savings. The Income Support
level for a family of three is only about 130 pw - 6500 pa. The disability benefits and her
savings (drawn down 10,000 over 30 months of the initial visa is about 3333 pa)

(d) Leons employer gave him a letter confirming his earnings as 25,000 but actually they were
26,000. Leon supplied wage slips and P60s which were correct. The application was refused
on suitability grounds.
False statement even if not material and A did not know about it. breach of suitability rules SLTR 2.2. Normally refused in such cases and EX exception cannot save this as it is not about
eligibility. But the Tribunal will consider if the discretion should be exercised in her favour see
s86(3)(b) NIAA.. V Likely esp as HRA in her favour too. So she might qualify under the rules or
HRA s84(1)(c).
(e) Saphia has a criminal conviction for shop-lifting and was given a suspended sentence of 12
months. She has been found not suitable for leave to remain.
Suitability issue again this time mandatory refusal under the rules suspended sentence? No
difference see S-LTR 1.4 at least 12 months and so conducive to public good. But there is an
argument that suspended sentences dont count the Rules arent clear. Tribunal no discretion to
disagree under the Rules , EX cannot apply but the Tribunal could allow under HRA s84(1)(c)
NIAA.
But see para 399 Immigration rules which states that where deportation (not just denial of leave to
remain) is being considered on grounds of criminal conviction further requirements must be met to (in
effect a new EX applies which includes all the LTR EX plus there must be no carer in the UK for the
child). So if Saphia is ordered to be deported she would lose under the rules. The HRA would still
apply however see the brand new decision in MF (Article 8 new rules) Nigeria[2012] UKUT
00393 (IAC)
2. Karl is an American national who has been living in San Francisco for two years with Jim, his
British partner. Jim is returning to work in London. He has earned 18,000 a year working for 5 years
at the same company. Upon his return to the UK he will earn 21,000. He has savings of 20,000.
Karl has received 100, 000 a year from his family discretionary trust for the last 10 years. He will
expects to continue to do so upon his arrival in the UK.
The application for Karl to come to the UK with Jim is refused on financial grounds. At the appeal,
Jim tells the judge he has had a pay rise to 30,000.
Suitability not in issue. Eligibility met partner 2 years, no language test as US but finance:
Income only .Couple need 18,600 E-ECP3.2 can only look at PARTNERS INCOME FOR
ENTRY CLEARANCE not applicant Karls unless it is specified non-employment income. Cannot
look at Karls income from trust see FM-SE para 10 (b)((i) must prove ownership?
FM-SE says must look back 6 months to Jims previous job AND also forward to new job in UK that
he must start within 3 months of arrival. BOTH jobs must pay over 18,600 (see FM-SE para 13(c)
under calculating gross income)
So short by 600. Savings methods need 2.5 x shortfall(2.5 x 600=1,500) plus 16,000 = 17,500. So
they make on savings and income combined.