Immigration and Asylum Accreditation Scheme

Standards and guidance – Level 2 (Senior) caseworker

February 2010

Introduction

The standards

The guidance

Standards for Level 2 (Senior) caseworker

Immigration law – Structure and Process

Immigration law – Policies

Immigration law – Case Law

Refugee Law

Asylum Processes and Rights of Asylum – Family Reunion, Other Rights and Special Procedures

Humanitarian Protection Qualification - Exclusion, Cessation and Rights

Human Rights - ECHR

The European Economic Area (EEA) and EEA Appeal

Appeals Law and Procedures

Nationality Law

Detention

Ethics

Practical Skills

The lists of case law, statutory provisions, rules and policies are intended to be exemplary rather than exhaustive, as from time to time important new developments will arise. All Level 2 accredited senior caseworkers are expected to be aware of such developments in case law.

Introduction

Immigration advisers can apply for accredited membership under the Immigration and Asylum Accreditation Scheme at one of four levels:

  • Probationer (which allows advisers to work at the probationer level for a period of twelve months after which they must successfully achieve accredited caseworker standard)
  • Level 1 (Accredited) caseworker
  • Level 2 (Senior) caseworker
  • Level 3 (Advanced) caseworker

The scheme is based on a set of standards.

The standards identify the key knowledge and skills an individual must able to demonstrate in order to be accredited at that level. The knowledge and skills will be assessed against the standards during the formal assessment process. Candidates who do not demonstrate that they meet the standards on assessment will not be accredited.

To assist candidates in preparing for the assessments, some guidance has been prepared on the statutory, policy and judicial material with which candidates might be expected to be familiar. However, it is the candidate’s responsibility to ensure that their knowledge is current and addresses all of the areas covered by the standards. The Law Society cannot guarantee that the guidance will remain complete or up to date.

The standards

The broad standards set out the key knowledge and skills advisers should have at each level. The standards also identify the depth of knowledge required for each area at each level of the scheme. In order to identify the depth of knowledge required at each level, the Law Society has specified whether candidates need to have ‘awareness’, ‘knowledge’ or ‘understanding’ of particular areas. For the purposes of these standards, awareness, knowledge and understanding have been defined as follows:

Understandingthe identification, assimilation and comprehension of information. Members can correctly paraphrase or summarise information and can relate it to other material, including its practical application.

Knowledgefamiliarity with specific information, including facts, definitions, rules, methods, process or settings, without necessarily being able to see its fullest implication or application.

Awarenessacquaintance with general concepts, topics, rules, methods or procedures, without necessarily being able to summarise or paraphrase information. Members should be able to identify the limits or their awareness and be able to refer to sourcematerial for more in-depth knowledge.

For example, if you are applying to become an accredited caseworker, you need to have ‘awareness’ of ‘the structure and sources of immigration law’ but if you are applying to become a senior caseworker, you need to have ‘knowledge’ of the ‘structure and sources of immigration law’.

The guidance

Each of the standards at each level is accompanied by detailed guidance. The guidance is simply intended as a helpful expansion of the standards and is not an exhaustive list of legislation or material. There is no guarantee that you will pass the assessments simply by knowing the material and legislation in the guidance. Equally, there is no guarantee that the questions in the assessments will be restricted to the material in the guidance. The guidance should, however, provide you with a useful reference list for the key areas. You should also be aware that, although the guidance will be updated from time to time, it is the responsibility of individual advisers to make sure that they are aware of any changes in legislation and practice.

The guidance includes details of particular cases, specifically identifying the principle within each case for which it is deemed noteworthy. This case law is intended to provide guidance on the key legal principles of which candidates need to be aware. You will not be assessed on all of the cases. You should be able to research and identify which cases are relevant to a matter.

Standards for Level 2 (Senior) caseworker

Subject Area / Guidance

Immigration law – Structure and Process

  • knowledge of the structure and sources of immigration law, including the personnel exercising immigration control and their powers
  • knowledge of who is subject to immigration control
  • knowledge of the terms used in immigration control
  • knowledge of the primary and secondary legislation relating to immigration in the UK
  • understanding of the structure and operation of the immigration rules
  • knowledge of the procedures in relation to applications to the Home Office and entry clearance officers
  • extensions, variations and curtailments of leave, illegal entry, overstaying, administrative removal and removal directions, and deportation orders
  • indefinite leave to remain and the grant of citizenship
  • knowledge of Tier 4 of the New Points System for Students
  • knowledge of the types of immigration decision that may be made in an individual’s case dependant upon the stage of the entry or expulsion process that they have reached
  • knowledge of the immigration rules on general grounds for refusal, especially rules 320(7A)-(7C) and 320(11)
  • knowledge of UK Borders Act 2007: Automatic Deportation Sections 32 – 39 and its Commencement by The UK Borders Act 2007 (Commencement No. 3 and Transitional Provisions) Order 2008 No. 1818
  • awareness of Tiers 1 and 2 of the New Points System and the requirements for maintenance and leave to remain
  • knowledge of Tier 5 of the New Points System for Temporary Workers (see comments on Level 1 notes) and Youth Mobility applicants
  • knowledge of the immigration rules regarding Tier 4 of the New Points System for Students
  • The Home Office explanation of the New Points System for students under tier 4 (but not the detail of the Policy Guidance save for the restrictions on funds available for maintenance and documents that need to be submitted) - and paras 34 to 45
  • knowledge of Tier 5 of the New Points System for the Youth Mobility category
  • awareness of Tier 5 of the New Points System for the Temporary Workers category

Immigration law – Policies

  • knowledge of the concessions and policies which operate outside the rules and how to use and apply these to individual cases
  • specifically chapter 1 section 5 (Section 3C of the 1971 Act),
  • marriage and certificates of approval - paras 3.2 -3.9 of Important information regarding “Certificate of Approval for marriage or civil partnership application .
  • The Home Office explanation of the New Points System under Tier 5 (but not the detail of the Policy Guidance save for the restrictions on funds available for maintenance)

Re maintenance - paragraphs 47 to 53
  • regarding spouses: IDIs Annex F to chapter 8 section 1 (maintenance and accommodation of spouses, civil partners and fiancés) paragraphs 3-6.3
  • chapter 8 section 4 paragraphs 1.2 & 1.2.1, 1.3, 3-3.3, 5, “Victims of Domestic Violence”

Immigration law – Case Law

  • the continued relevance of the concession for families with children who have been in the UK for seven years (found in the case of NF (Ghana) v Secretary of State for the Home Department [2008] EWCA Civ 906 at paras 26, 29, 39) which was withdrawn 9 December 2008 (note case reference is because this is the best public domain location of the policy: you need not understand the case as a whole
  • the continued relevance of the policy on spouses and partners in relationships which predate enforcement action, DP 3/96, as set out AF (Jamaica) v The Secretary of State for the Home Department [2009] EWCA Civ 240 para 14 and BP (DP3/96 – Unmarried Partners) Macedonia [2008] UKAIT 00045 withdrawn 24 April 2008 (note case reference is because this is the best public domain location of the policy: you need not understand the case as a whole)
  • Chapter 53.1.2 of the Enforcement Guidance and Instructions l, regarding “family cases” of overstayers and others subject to administrative removal: “Following an individual assessment of the prospect of enforcing removal, and where other relevant factors apply, a 3 year period of residence may be considered significant, but a more usual example would be 4-6 years. Family units may be also be exceptionally considered where the dependent child has experienced a delay of 4-6 years whilst under the age of 18.”
  • the principle that the scope of the immigration rules cannot be narrowed by concessions outside the rule
  • the principle in KA and Others (Adequacy of maintenance) Pakistan [2006] UKAIT 00065 that the level of income support represents the minimum level at which the maintenance requirements of the rules will be satisfied
  • the principle in KJ (“Own or occupy exclusively”) Jamaica [2008] UKAIT 00006 (16 January 2008) that the requirement in the Immigration Rules that a person "own or occupy exclusively" property does not carry any technical legal meaning of exclusive occupation. It is sufficient if there is a defined place where the person lives and which he has as his home
  • the principle in OS (10 years' lawful residence) Hong Kong [2006] UKAIT 00031 that the terms of the ten year concession (ie the “long residence” policy that preceded, then ran alongside, the immigration rules on “long residence”) are not necessarily to be used as an aid to interpretation of the rules: however a person who does not meet the requirements of the rules may have the benefit of the Secretary of State's exercise of discretion in his favour under the concession
  • The principle in Kwok On Tong that if a refusal is based on one element of the Rules, but by the time of the hearing it becomes apparent that there was some other requirement of the Rules which the appellant could not meet, that matter must be dealt with on appeal, and the parties must be allowed any appropriate adjournment in order to avoid the injustice of being taken by surprise: see RM (Kwok On Tong: HC395 para 320) India [2006] UKAIT 00039
  • The principle in TD (Paragraph 297(i)(e): “sole responsibility”) Yemen [2006] UKAIT 00049 that sole responsibility" is a factual matter to be decided upon all the evidence, the test being whether the parent has continuing control and direction over the child's upbringing, including making all the important decisions in the child's life
  • The principle in Ishtiaq v Secretary of State for the Home Department [2007] EWCA Civ 386 that an applicant who is claiming leave to remain under the domestic violence rule can prove her case by producing cogent relevant evidence (ie not merely the forms of evidence preferred by the Home Office policy)
  • The principle in SZ (Applicable immigration rules) Bangladesh [2007] UKAIT 00037 that there is no general duty on the Tribunal to consider whether a claimant's case if differently presented or if made the subject of a different application might have succeeded on a different basis from that on which the application or claim was made; however that exceptionally the facts of a case or the terms of a notice of decision may require the Tribunal to consider the appeal on a number of alternative bases
  • The principle in N (Kenya) v Secretary of State for the Home Department [2004] EWCA Civ 1094 that whilst the risk of re-offending is a factor to be taken into account in deportation proceedings, for very serious crimes, a low risk of re-offending is not the most important public interest factor
  • The principle in OO & Ors v Secretary of State for the Home Department [2008] EWCA Civ 747 (01 July 2008) that a student is not confined to a single course of study, and failing an examination does not always negate satisfactory progress
  • The principle in NA & Others (Tier 1 Post-Study Work-funds) [2009] UKAIT 00025 (02 July 2009) that the New Points System requires applicants to show they have funds for their maintenance in the form of a specified amount held over a specified past period, and that the sums in question must be shown on each and every day of the three month period, and that the balances must be shown by documents specified by the Secretary of State in the Points Based System Policy Guidance
  • The principle in Mahad v Entry Clearance Officer [2009] UKSC 16 (16 December 2009) that third party support is in principle acceptable, subject to questions of its verification and reliability
  • The principle in ZH (Bangladesh) v Secretary of State for the Home Department [2009] EWCA Civ 8 (19 January 2009) that to use the evasion of immigration control adversely to a person applying under the 14 years unlawful residence rule would defeat the purpose of the rule

Refugee Law

  • understanding of the definition of a refugee under Article 1(A)(2) of the 1951 Refugee Convention for persons with a single nationality, for the stateless, and for dual nationals
  • understanding of the European Community law on asylum, in particular the Qualification and Procedures Directives and their domestic implementation
  • understanding of issues which the Home Office routinely raise including statutory issues of credibility
  • understanding of who can be excluded from being a refugee under the 1951 Convention and under the Qualification Directive; differences between the Directive and domestic law and on what basis
  • understanding of the procedure for making an asylum application – applications, screening, substantive interviews, the New Asylum Model
  • understanding of leading cases relating to the interpretation of the Refugee Convention by the domestic courts
  • Definition – ie the meaning of well founded fear, persecution, Convention reason, state protection, including an ability to recognise which facts of a client’s claim are relevant to each of these concepts
  • Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (Preamble 10-12, 14-15, Articles 1-33, 38)
  • The Refugee or Person in Need of International Protection (Qualification) Regulations 2006
  • Immigration rules HC 395 Parts 11, 11A and 11B
  • awareness of the application of the Refugee Convention to clients who are stateless, including the fact that stateless asylum seekers receive travel documents under the 1954 Convention against Statelessness (
  • the application of the second clause of Article 1(A)(2) of the Refugee Convention to clients who are dual nationals and of Article 1E of the Refugee Convention to clients who enjoy rights akin to nationality
  • the application of the Cessation Clauses in Article 1C of the Refugee Convention and section 76 of the Nationality, Immigration and Asylum Act 2002
  • Articles 31 and 33 of the Refugee Convention
  • the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status regarding the distinction between prosecution and persecution, paragraphs 56-60, 84-86
  • The Key Concepts of the New Asylum Model – “Asylum application process” within the “Applying” section of the Home Office Border and Immigration Agency website
  • Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status
  • the consequences of making an asylum application within the currency of leave to remain including the possibility of curtailment of existing leave to remain and the consequences for rights of appeal
  • the consequences of making an asylum application at any stage of the expulsion process
  • the principle in Karanakaran [2000] Imm AR 271 that the benefit of the doubt should be given to an asylum seeker
  • the principle in R v Secretary of State for the Home Department, ex p Sivakumaran [1988] Imm AR 147 that a fear of persecution is well founded if there is “a reasonable degree of likelihood” of its occurrence
  • the principle in R v Uxbridge Magistrates' Court ex parte Adimi [2001] QB 667 that there is no absolute requirement in international law that a refugee claim asylum in the first safe country they reach
  • the principle in Ahmed v Secretary of State for the Home Department [2000] INLR 1 that future conduct in the country of origin is relevant to the existence of a risk of persecution
  • the principle in Horvath v Secretary of State for the Home Department [2000] UKHL 37that persecution is best defined as the sustained or systemic failure of state protection in relation to a core human right
  • the principle in Sepet and Bulbul v Secretary of State for the Home Department [2003] UKHL 15 that there is no core human right regarding conscientious objection against military service
  • the principle in Krotov v Secretary of State for the Home Department [2004] EWCA Civ 69 (11 February 2004) that an asylum seeker who faces personal association with military service breaching international standards could be entitled to refugee status
  • the principle in R v Secretary of State for the Home Department ex parte Adan [1998] Imm AR 338 that a person who faces human rights abuses that arise from a civil war must show a risk of persecution over and above the normal risks of civil war – a “differential impact”
  • the principle in Danian v Secretary of State for the Home Department [1999] EWCA Civ 3000 that risks generated by actions carried out in bad faith, eg those brought about by making an unmeritorious asylum claim, do not exclude a person from refugee status
  • the principle in Shah and Islam v Secretary of State for the Home Department and Immigration Appeal Tribunal and Another [1999] UKHL 20; [1999] 2 AC 629; [1999] 2 All ER 545 that persecution cannot define membership of a particular social group, that discrimination is relevant to the identification of a particular social group, and that women and homosexuals may be members of a particular social group depending on the circumstances of the society from which they come
  • the principle in K and Fornah [2006] UKHL 46 that the family is a particular social group
  • the principle in SB (PSG - Protection Regulations – Reg 6) Moldova CG [2008] UKAIT 00002 that "Former victims of trafficking" and "former victims of trafficking for sexual exploitation" are capable of being members of a particular social group because of their shared common background or past experience of having been trafficked
  • the principle in Horvath v Secretary of State for the Home Department [2000] UKHL 37