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LEVEL 2 ASYLUM PAPER
INSTRUCTIONS TO CANDIDATES
Level 2 (52 marks)
This examination is open book. You may refer to materials such as the OISC resource book, published texts and your own notes.
You have 2 hours and 15 minutes to complete this exam paper. You may begin reading as soon as the invigilators say so. You may begin writing whenever you have read the questions.
You may use bullet points to summarise your answers in non-drafting questions, and you may use reasonable abbreviations so long as their meaning is obvious.
You are provided with all the country information that is necessary to answer the questions within the exam paper itself. No marks will be awarded for references to other country evidence that may be within your personal knowledge.
This exam paper has four pages. If you do not have four pages, please inform the invigilator at once.
Your Instructions
You have taken over the case of Fatima, who was born in June 1980, whose instructions to you are as follows when she comes to see you in your office and explains that she is an asylum seeker. She lived in the centre of Mogadishu. She married her husband Abdi in September 1996. They are both from the Ashraf minority clan. Abdi left the country in 2004 with their children because it was not possible for him to continue running his jewellery shop due to attempts at violent extortion by the militia. She worked as a singer from 2006, performing at weddings, and in public at hotels and community houses. In 2008 Al Shabaab, the fundamentalist militia, sent a message via her father that she should stop singing.
Her father was subsequently murdered by Al Shabaab in the first month of 2010 in a raid on the family home, because that fundamentalist militia learned that she had continued her performances. Following his death she limited her performances to private weddings and parties, only involving herself in a limited number during her last year in Somalia. She was once stopped on the street by Al Shabaab members a few months after her father’s death and asked why she had not stopped singing. Some old men passed by and they let her go.
After the peacekeeping forces arrived in her district Al Shabaab started calling her on the telephone saying that she was acting in an un-Islamic way and would be raped or tortured if she continued with her activities. She went to the local community leaders but they told her that they could not help. The international peacekeeping forces who came to Mogadishu did not act as a police force: they simply carried out military activities. Eventually she decided she could not live with this level of pressure upon her and she made arrangements to leave the country using an agent.
Before coming to the United Kingdom, she had travelled to Kenya on several occasions by lorry as Abdi was living there. She would stay with relatives in Somalia on her way to see him before crossing the border. She obtained a passport in Somalia in 2009. She had used
that to travel into Kenya to visit him. She and Abdi have two children who he was forced to leave with relatives in Kenya, a boy and girl, aged fifteen and seventeen respectively. She had last stayed with him in October 2011: after that he had come to the United Kingdom and claimed asylum. She travelled to Kenya from Mogadishu by road. She applied for entry clearance as a visitor in June 2012, the application form being completed by agents in Kenya but this was refused: she did not seek to appeal. She left Somalia last on 15 December 2012, flying to an unknown country, then to France, and then travelled onto the United Kingdom, using an American passport provided by her agent (which she later destroyed in the airport toilets), arriving on 20 December 2012. She claimed asylum on 30 December 2012.
Country Evidence
Reviewing the Country Guidelines regarding Somalia, you see that in AMM the Tribunal found:
(a) There remained a general risk of harm from the armed conflict to returnees who lacked recent experience of life in Mogadishu, though no risk arises for a person connected with powerful actors or belonging to a category of middle class or professional persons, who can live to a reasonable standard in circumstances where the risk from harm, which exists for the great majority of the population, does not apply – however the significance of this category, which requires the identification of cogent evidence (which turns on whether socio-economic protection is available in all the circumstances), should not be overstated;
(b) A returnee from the United Kingdom who is fit for work or has family connections may be able to avoid having to live in a camp for the internally displaced: a returnee may, nevertheless, face a real risk of Article 3 harm, by reason of his or her vulnerability;
(c) Outside Mogadishu, a person with recent experience of life under Al Shabaab would not be at risk of serious harm from them subject to avoiding identification as a recent returnee and having struck up an accommodation with them in the past: the frequent changes in Al Shabaab leadership prevent the possession of family members in a particular locality from securing one's safety, and having to "play the game" in terms of behaving consistently with Al Shabaab expectations would in itself constitute persecution where the returnee did not genuinely share their religious beliefs;
(d) Women travelling without male friends or relatives are in general likely to face a real risk of sexual violence.
The last Country Guidelines determination that addresses the circumstances of minority clan members in particular is AM & AM where the Tribunal found "that the situation in Mogadishu for the great majority of residents is currently precarious. In our view the situation of minority clans in Mogadishu would be a fortiori precarious."
Recent newspaper reports from July 2013 set out that Mogadishu has recently suffered a series of military incursions from Al Shabaab and there is fighting on the streets: civilians are being injured in large numbers due to random shell-fire. They additionally report that discrimination against women continues to be rife.
Fatima was refused asylum by letter of 11 July 2013. You do not yet have the refusal letter (which she received by post) as she has lost her copy but another one is being faxed to your office by the Secretary of State imminently.
Fatima’s appeal succeeds on grounds that have the consequence that the Secretary of State awards her Humanitarian Protection. In what circumstances will she be able to obtain travel documents, on the basis that there is no appropriate agency of the Somali authorities in the United Kingdom from where she can obtain a document?
Question 9 (8 marks)
Fatima and Abdi wish to bring their children to this country. Abdi has now been granted asylum. What matters would you need to investigate in determining whether an application for the children to join them here might be viable?
Instructions to Marker
You may award up to 3 bonus marks on this paper (marks which do not appear in the marking scheme but which you consider are appropriate to award in order to recognise the merit of an unexpected answer)
LEVEL 2 ASYLUM PAPER: MODEL ANSWERS
Part 1 – The Questions (52 marks)
Question 1 (2 marks)
What legal sources would you look at in anticipating what credibility points might be raised by the Secretary of State? Identify the provisions in question.
- Section 8 Asylum and Immigration (Treatment of Claimants, etc.) Act 2004
- Immigration Rules e.g. Rule 339I
Question 2 (16 marks)
Bearing in mind the credibility points that might be raised by the Secretary of State, what further questions might you need to put to Fatima regarding the credibility of her asylum claim. Draft a letter to Fatima raising these points, on the basis that you wish her to think about particular issues before attending your office to determine the merits of her lodging an appeal against the refusal of her asylum claim.
Specimen Letter
Dear Fatima
I write further to the preparation of your asylum claim.
As you are aware, your asylum claim has been refused. Before lodging an appeal against this decision, we should ensure that you are fully advised as to merits of your
case. In determining whether there are merits, we need to find out some more details. Please understand that I am not criticising your case in raising these points: however we have to anticipate points that the Secretary of State or the Tribunal might take against your claim.
- Why did you not claim asylum on arrival
- Why did you not claim asylum in France or Kenya
- Why did you destroy your passport
- You stayed with relatives during your journey to see Abdi in Kenya: did you have any problems when you were with them?
- Why did she not travel with Abdi when he came to the United Kingdom
- What is Abdi’s immigration status (has his asylum claim been granted?)
Please consider the issues above ready for our next appointment. I look forward to seeing you.
Yours sincerely
Your Lawyer
Marking scheme for Question 2
Credibility points (6)
Marks should be awarded for drafting thus (12)
- Structure (2)
- Use of appropriate simple and direct language (2)
- Ensuring the client understands the purpose of your enquiries (2)
- Good grammar and spelling (2)
- Succinctness (2) Up to 2 marks may be deducted where the candidate adds misleading information which is not contained in the question
Question 3 (5 marks)
From the information above, both particular to Fatima and the country evidence generally, how would you argue that she might be at risk on a return to Somalia? Cite any relevant legal presumptions that might be applicable.
- A history of threats to her personally
- The killing of her father
- Being minority clan
- There is no positive evidence of any relationship with any powerful actors
- Immigration rule 339K raises a presumption of repetition of serious harm where there have been threats in the past
Question 4 (3 marks)
What is the legal test you would have to satisfy to demonstrate that any problems Fatima faces in the future amount to persecution as opposed to something falling short of that? Cite the relevant provisions.
Question 9 (8 marks)
Fatima and Abdi wish to bring their children to this country. Abdi has now been granted asylum. What matters would you need to investigate in determining whether an application for the children to join them here might be viable?
- Immigration Rule 352D provides for a person with refugee status to sponsor children to come here (1)
- They are under the age of 18 so satisfy the age requirements (2)
- Are they, given their age, unmarried and not independent (2)
- Were they part of the relevant family unit (family has complicated migration movements) (2)
- Have they conducted any excludable acts (1)
Instructions to Marker
You may award up to 3 bonus marks on this paper (marks which do not appear in the marking scheme but which you consider are appropriate to award in order to recognise the merit of an unexpected answer)
