Financial Requirements for Curt's Student Visa Application

Question 1

a. On the available facts, Curt can score the 10 points required under the Financial requirement by showing documentary evidence that he has sufficient funds to pay for the course for 1 academic year or up to 9 months). In this case, the one year fee is £12978 of which £5000 has been paid already by Curt. This means that he should have the balance £7978 to show that he can pay for this. He needs to show that he has sufficient funds for the 9 months of his stay, which comes to £1334 per month as the college is in London. The total amount of living that he needs to show is £12006. As he is coming with his spouse and dependant child, they each have to show that they have the amount for their living expenses for 9 months, which comes to £7605 (845*9) for his wife and £6120 (680*9) for his child. Curt must show that he had this money for at least 28 consecutive days before they apply for their visa. In this case, as Curt has paid a deposit of £2000 to his college for accommodation, he can deduct £1334 from the total to come to the amount that he needs to show for his tuition and living expenses as well as his wife and daughter’s living expenses. In order to score 10 points, he will require to show that he has had the amount of £30373 for a period of 28 consecutive days prior to the application for the Visa.

The issue in this situation is whether Cerys can make a claim for unfair and wrongful dismissal after she refused to make a move to Exeter or Bristol office.

Calculation:

Tuition: 12978 – 5000 (already paid) – 2000 (Accommodation deposit) – 1334 (for accommodation) = 4644

Living expenses (Curt): 1334*9 = 12004

Living expenses (wife): 845*9 = 7605

Living expenses (child): 680*9 = 6120

Total required for meeting financial requirements: 4644+12004+7605+6120 = 30373

B. The amount of Immigration Health Surcharge that will have to be paid by Curt when he makes his application for entry clearance will include surcharge payable for him as well as his two dependants (wife and child). For the student visa, the surcharge is calculated at £470 per year and £235 for any additional period that is less than 6 months. The surcharge is also payable from the period of 1 month prior to the course begins and upto 4 months after it is concluded to provide some time before and after the course. The same amounts are payable for wife and the child dependant and for the same period of time. As the length of the course is 33 months, the Immigration Health Surcharge to be paid would take into consideration 1 month prior to the course and 4 months period after the conclusion of the course. This comes to 38 months. For the period of 2 months that falls outside the scope of the year 3 calculations, £235 is added to each party. The total of Immigration Health Surcharge to be paid is £4935.

Calculation

Curt: 470+470+470+235 = 1645

Wife: 470+470+470+235 = 1645

Child: 470+470+470+235 = 1645

Total = 4935

C. In order to assess the facts that show Curt to be a genuine Student and the facts to argue against him being a genuine student, reference is made to the facts presented by Curt in Document A. The facts that argue in favour of Curt include the fact of his acceptance of an offer of a place at King’s College, London, England for a PhD course in Sport, Health and Genetic Muscle Diseases and the fact that he has a history of achievement of higher education aspirations. Curt graduated from the University of the Philippines with a BSc in Sport Science, and then went on to study in America for Master’s degree in Health and Sport Studies (MA) from the University of Iowa, United States of America. Furthermore, Curt has already paid part of his tuition fee to the King’s College, which signifies his intention to enrol for the course to which he has been accepted. He has also paid a deposit for accommodation inside the college, which shows his intention to stay and study for the course in the college itself. The argument that can be made against him being a genuine student is that he is under negotiations with The British Association of Sport and Exercise Sciences, London to work as a paid adviser for them whilst studying in the UK. Paragraph 245ZV(k) of the Immigration Rules requires that applicants for entry clearance as a student must show that they are ‘genuine’ students. There are various factors that can be taken into account in order to assess whether an applicant is a genuine student or not. These factors may include the amount of time that has elapsed since the applicant last studied, and whether the applicant has sound reasons for returning to, or commencing, formal study of this subject, particularly after any significant gap and whether the applicant demonstrates sufficient commitment to the course, and the relevance of the course to post-study plans in the UK or overseas. In this case, Curt is 30 years old and if it is assumed that he finished his Masters program in the United States at about age 24, then he may argue that 6 years is not a significant gap for him to now aspire to gain a doctorate in his subject. He may be able to show the relevant of the course to his post study plans as well. However, his commitment to the course may be questioned if he is also thinking of acting as a paid advisor while undergoing the course because it is a full time course.

QUESTION 2

Leon can be granted asylum is he can establish that he has a fear of persecution in Nigeria due to the fact of his being a homosexual man. The facts that can go in his favour include the fact that in Nigeria, homosexuality is not acceptable and he has to hide and conceal his gay identity. The fear of persecution comes from the fact that in Nigeria, homosexuals are considered to be evil and demons. Due to this, homosexuality becomes a taboo and gay people are persecuted. Leon has claimed that he has already faced such persecution in Nigeria in July 2019, when a mob formed around him and another man when they were found in a park kissing. The mob was screaming homophobic abuse at Leon and the man first and then they punched and kicked them, marched them to the local police station and handed them over to the police demanding their execution. Instead of helping Leon, the police photographed and fingerprinted him and then put him in a prison without toilet facilities. The police pressurised him to admit that he was not a homosexual and would never have anything to do with homosexuals or face prosecution for being a homosexual. He was beaten for refusing to sign. The scars of the beating match with the medical report which shows that he has such scars that are consistent with the description of the belt beating given by him. There are other details shared by Leon that suggest that he was persecuted by the police authorities at another time when he was beaten by them and even blackmailed and humiliated by the police. The police also threatened to kill him. These events suggest that he has a genuine fear of persecution. According to the Refugee Convention of 1951, a fear of persecution can be a ground for asylum and although the term "persecution", is not defined it can include serious human rights violations, threat to life or freedom, and other harm. This can be used by Leon in his favour due to the treatment given him by the police forces in Nigeria.

Leon’s application for asylum may be denied because he tried to enter the UK with illegal documents. The facts that can go against his application for asylum include his coming into the UK with a fake American passport, and wrong credentials, telling a false story to the immigration officials as tutored by his agent, about how he was an American citizen visiting relatives here in the UK and not answering their questions truthfully. This can be used to question his credibility as in the case of MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49, where the Supreme Court examined the impact of lies upon the credibility of a person’s account. In such an event, the decision maker to whom the entire account has been narrated may decide what weight to be given to the lies and that the significance of lies will vary from case to case. Thus, the fact that he told lies at the outset to the immigration officers may go against his asylum application because the decision maker may be able to decide what weight to be attached to these lies. With respect to the false American passport, false nationality claim renders the claimant liable to prosecution under Section 24A of the Immigration Act 1971.

Evidence may be needed from the parents of Leon to corroborate his statements on persecution by the police. As he has claimed that he was put in prison for a period of a week in 2019, any documentation that can attest that fact can be shown to corroborate his claims. A copy of the statement given by him under duress to the police that he is not a homosexual and will never have anything to do with homosexuals, may also be provided if such a copy is available. Medical evidence showing Leon’s post prison treatment for injuries sustained while at prison can also be given to provide evidence of beatings. Similarly, the medical evidence, if any, related to the beatings given by the police to Leon at another time can also be provided to show how Leon did in fact sustain these injuries. If there are specific laws in Nigeria that make an offence of homosexuality and allow police to arrest and detain homosexuals, then such evidence can also be provided. Evidence can also be provided in form of newspaper reports, if any, of police brutality with homosexuals.

Leon has fair prospects of being recognised as a refugee on the basis of the medical report which notes that the marks on his back are highly consistent with him being beaten with a belt and metal buckle in 2019 as he describes. This can be used to corroborate his statements regarding the beatings he suffered in prison by the police officers. The fear of continued persecution if sent back to Nigeria, may be claimed to be based on actual experience of persecution by Leon. This may be used in his favour for asylum application. On the other hand, the fact that he lied initially may be taken by the authorities to question his credibility. At the same time, in MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49, the Supreme Court has noted that simply because an applicant lied should not be the reason for discounting all information. In this case, the medical report is strong evidence that suggests that at some point recently, Leon has been subjected to torture and beatings with a belt. Therefore, it is possible that the decision making authority may take the evidence of the medical expert seriously and not see the fact that Leon lied initially as a reason to disbelieve that his fear of persecution is not real and well founded.

QUESTION 3

1. Darren (a visa national living in his home country)

a, The further documentation or information needed are tenancy agreements if there are any, because being a bungalow there may be some parts of it that may be let out. The title deeds are required to attest the ownership of the bungalow. Any mortgage documentation may also be needed to show if and how much mortgage is let unpaid.

b. Under the Housing Act 1985, sections 324 – 326, overcrowding is explained and also not permissible for assessing which the room standard test and space standard test are used. The room standard test is based of the number of people and gender of people who can sleep in one room, with the rule being that a child under the age of 10 can share a room with another and so can couples. For the contravention of the room standard test under section 325, it should be shown that the number of persons sleeping in a dwelling and the number of rooms available as sleeping accommodation are such that two persons of opposite sexes not being spouses must sleep in the same room. Further, only children under the age of ten are left out of account. A living room however is allowed to be used as a sleeping accommodation.

Also relevant is the space standard under Section 326, which is contravened when the number of persons sleeping in a dwelling is in excess of the permitted number. For this, regard must be had to the number and floor area of the rooms of the dwelling available as sleeping accommodation. A child under 10 years is taken to be as one-half of a unit, and all others are one units. However, a room with a floor area of less than 50 square feet is not counted as part of sleeping dwellings. In this case, the room occupied by Alice at present is 45 square feet and will not count as a sleeping dwelling. Therefore, the number of rooms that the bungalow does have at present for the purpose of sleeping dwelling are 3 (2 bedrooms and 1 living room). The number of persons that can be accommodated are 5.

2. Lucas (a citizen of Argentina)

a, Lucas will have to establish that he is a senior employee of Fiesta de Frijol S.A. with the skills, experience and knowledge of the business necessary to undertake the role, with full authority to negotiate and take operational decisions on behalf of Fiesta de Frijol S.A in order to get a Visa as a sole representative of the company in the UK. The criteria are that he should have been initially recruited and employed outside the UK by an already established company, have substantial business experience and knowledge relating to the role in the company, hold a senior position within the company and have full authority to make decisions on behalf of the parent company, and have authority given by the parent company to establish and set up a UK branch. In this case, the company has not given this authority to Lucas because he needs to report to, and obtain the approval of, Santiago and Lautaro for each new major transaction. This indicates that Lucas does not have the full authority to make decisions on behalf of the parent company.

(b) Because Lucas took a Master’s degree in Business at the University of Auckland, New Zealand in 2009, he may be able to exempt himself from taking the test for establishing proficiency in the English language. If the applicant can prove that he has a degree-level qualification taught in English from UK or another country whose Academic Qualification Level Statement (AQUALS) from UK NARIC conforms that the degree is equivalent to a UK qualification, then the applicant does not require to establish English proficiency.

(c) Yes, his application fail because he has a majority stake in Fiesta de Frijol S.A.. The Visa requirements for sole representative include the requirement that the applicant should not be a majority shareholder in the parent company.

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