ASYLUM SUPPORT TRIBUNAL APPEAL

asy support dec

 

 

IN THE FIRST-TIER TRIBUNAL                     APPEAL NUMBER:  AS/14/05/31456/ZM

ASYLUM SUPPORT

 

BETWEEN

 

MR MOHAMMED AFHAM JAINUDEEN ISMAIL + 4 DEPENDANTS

and

SECRETARY OF STATE FOR HOME DEPARTMENT

 

SKELETON ARGUMENT ON BEHALF OF APPELLANT –

HEARING 4^TH JUNE 2014

 

 

1. This is an appeal by the Appellant (“Mr Ismail”) against the decision of the respondent (“Secretary of State”) who refused to provide subsistence support Only. The Appellant asks the Tribunal to quash the decision of the Secretary of State, who failed to exercise her discretion correctly because:
2. She has breached Section 55 of the Borders, Citizenship and Immigration Act 2009.
3. She has also violated her obligations towards the Human Rights Act 1998.
4. Her breach is against the best interest of Justice. She has conspired to pervert the course of justice and engaged in criminal conspiracy against the children and their family.
5. She has breached confidentiality and engaged in misrepresentation to the court and corruption.
6. There is no policy or statute allowing the Secretary of State to intentionally make asylum seekers and their families homeless by misusing her powers through illegal actions. In short, it is prohibited to knowingly and recklessly influence other organizations or individuals to ensure destitution and to cause inhuman and degrading treatment to asylum seekers.

 

3. The Respondent has acted inappropriately and criminally and has violated Article 3 of the Convention. She is required to substantiate with evidence that her actions are legitimate and proportionate.  She is also required to provide relevant statutes.

 

4. After the determination of Ms Paulene Gandhi dated 13^th May 2014 to remake the decision and indirectly indicating to resume Subsistence Support, the respondent (Mr Clifford Kirsch) started to plot against the family by communicating with third parties on 14^th May 2014 (as explained in paragraphs 73 – 76).

The Facts

5. Mr Ismail is a Special Needs Teaching Assistant. His wife is a GTC Registered qualified Teacher in the UK and an exam marker of National Curriculum Tests.  They have contributed to the well-being of this country and the society since 2004.

 

6. Mr Ismail is the son of Head of British Guard Force, Mr T.J.I Ismail MBE (Most Excellent Order of British Empire) who has protected British Interests. Mr Ismail’s father was awarded MBE as he consistently showed exceptional commitment in his role in spite of any personal risks, especially during the long years of the Sri Lankan conflict, and his professionalism, resilience and dedication were unfaltering.

 

7. Mr Ismail is also protecting British Interests in the UK as it is confirmed that officers acting on behalf of the Secretary of State have acted unlawfully and have worked against the United Kingdom’s sovereignty by involving in fraudulent activities. Most of them are not pure British as can be seen by their names such as Sam Acolaste, Yvonne Orekoya, Lilian Amogu, Doreen Umeadi, Clifford Kirsch, Sewasew, Roshan Saji, Nancy Elliott, Adewumi Akono, Kumaragura Muraleetharan, Susie Ayandokan, Iffat Pasha, Alka Patel, Asma Nazir, Naila Atif, Ecem Daly, Balaaratnam Viveganthan, to name a few. There is reasonable doubt to believe that they have been recruited without any prior training as can be seen clearly in the minutes provided by the Respondent in her bundle. They are either migrants, students, illegal entrants or even previous asylum seekers who have been recruited exclusively to target vulnerable people and to cause substantial harm to children and families. It can be quoted from one of the minutes written by Naila Atif:  “…I advised that a LORRY to move their belongings will not be provided.  Once dispersal is set the family will be moved and will be able to take two bags per person…”. In another stance, the officers acting on behalf of the Secretary of State are unfortunately unqualified and poor in English.  They are only spoiling the sovereignty of the United Kingdom by their unprofessionalism and lack of knowledge.  They have merely used dirty tricks and engaged in corruption.

 

8. They have worked institutionally to cover up and to put stain on Her Majesty the Queen’s and the UK’s dignity and protection of Human Rights. Those who are involved in my cases are criminal minded and have acted in contrary to the law.  I will take all the lawful steps to protect British Interests and bring them in front of justice.  It has brought  death threats to my and my family’s lives but with respect to the reward given to my father by the Queen, I will continue to protect the interest of this country against those who have misused the powers conferred by this country’s law for their personal gains and to cover up. 

 

Chronology of Events

9. The Appellant applied for Subsistence Support Only on 28^th April 2014 outlining his circumstances of not being in urgent need of accommodation. The application indicated as follows:

“This is a request for subsistence support only under Section 95 Immigration and Asylum Act 1999. 

Due to ongoing court procedures and undetermined asylum further submissions, we are currently not in an urgent need for accommodation.  We will inform you if accommodation is required in due time and once we receive a court decision or upon the conclusion of the court of appeal proceedings…

It is requested to arrange necessary regular subsistence support as a matter of urgency due to Mr Ismail’s health condition and children involved”.

 

1. On 29^th April 2014, the Respondent made her decision regarding the refusal to provide Subsistence Only Support. Their letter indicated as follows:

 

“On the information available we are not satisfied that your current accommodation is adequate – since it appears that you have no enforceable right to remain there. Additionally, it is not clear how you propose to cover rent and other accommodation costs. We are not therefore prepared to provide you with subsistence support to cover you and your family’s essential living needs while you remain at your current address.

 

1. The Respondent is under the impression that we do not have enforceable right to live in the current accommodation in which we are at present living in. She relies upon A Notice To Quit which has no bearing in law and is not related to the application for Subsistence Only Support dated 28^th April 2014. A notice to quit is a notice of the landlord’s intention to seek possession of the property.  It does not have any legal bearings and it is not a document to be relied upon as it is merely an intention.  The respondent also argues that “there are proceedings in the County Court requiring you to vacate the property”.  However, this is incorrect and totally misleading.  There are no proceedings whatsoever in the County Court.  This statement amounts to misrepresentation to the tribunal.

 

2. In principle, it is hard to justify the treatment of deliberately non-binding directions about rights as legal obligation directly enforceable in court, as their status is thereby determinable by the whim of the judiciary currently in place, which may pick and choose which policies they attack. In practice, consequently, it is hard for the Respondent to predict with any certainty the outcome of a case, which is dependent on judicial activism and county court proceedings; unless or otherwise, if the Respondent has acted in a corrupted manner by misusing her powers.

 

3. The Appellant is thereby compelled by the Secretary of State’s decision to put forward submissions about accommodation and dispersal despite knowing that the tribunal does not have jurisdiction as this appeal is about Subsistence support Only.

 

4. The respondent also argues that Subsistence Support will be available at the area of dispersal but this is beyond the jurisdiction of the Tribunal. The approach of the Respondent is therefore against the democratic accountability, efficient administration and the sovereignty of Parliament. The words “not prepared to provide” must be given their ordinary everyday meaning.  This must therefore include suspension or discontinuation of support.

 

5. The determination of whether the Appellant should receive or continue to receive asylum support is the determination of a “civil right” within the meaning of Article 6 of the Convention. Thus, the legislation should therefore be interpreted, if possible, in close conformity with the European Convention on Human Rights. The policy adopted towards adult members of families with dependant children is different from the policy towards single persons or childless couples to discontinue section 95 support upon the condition of dispersal.

 

6. NASS have issued Policy Bulletin 31 providing guidance in the allocation of accommodation. Guideline 2.3 provides that, if an applicant makes an application for accommodation and requests to remain in that area, then, subject to the availability of accommodation, the applicant should be allocated accommodation in the area in which they applied. (It was the failure to comply with this guideline that vitiated the decision to transfer the Appellant to Birmingham). Guideline 2.6 provides as follows:

“Each application should be considered on its own merits. Careful consideration must be given to the individual circumstances of each case and when deciding whether it is reasonable to allocate dispersed accommodation particular attention should be given to the following:

… Family ties.”

7. Guideline 5.1 reads as follows:

“Many asylum seekers state that they wish to be allocated accommodation near, or with, relatives or friends. When considering such matters caseworkers should have regard to Article 8…”

8. Therefore, it is clear that due to the Respondent’s failure to follow Policy Bulletin 31 in its entirety, her decision dated 29^th April 2014 is unlawful and irrational. The condition laid down is totally misconceived as clearly indicated by Mrs Paulene Gandhi in her decision dated 13^th May 2014:

“In my view, given that the appellant is now making a claim for subsistence only support, the respondent’s decision, although couched in unusual terms, amounts to a refusal to provide the appellant and his dependants with subsistence only support. As the appellant is no longer making a claim for Home Office Accommodation the respondent cannot predicate the appellant’s subsistence support on his moving to his Home Office accommodation in Birmingham…”

9. The test for destitution is laid out under Section 95 (3) of the 1999 Act:

…a person is destitute if:

1. he does not have adequate accommodation or any means of obtaining it (whether or not his essential living needs are met)
2. he has adequate accommodation and the means of obtaining it, but cannot meet his other essential living needs.

 

The test has to strike the balance between being fair and reasonable, given the requirement to fulfil the UK’s international obligations to asylum seekers or failed asylum seekers. As indicated above, the appellant has adequate accommodation and he has enforceable right to continue to reside in it due to the fact that County Court proceedings have not begun.  However, as he cannot meet his living needs and that of his family, he has requested Subsistence Support Only, which was refused by the Respondent without any justification or policies.  Despite being teachers who can work, the Respondent has deliberately prohibited them to do so.

1. In the Appellant’s case, the court of Appeal has not decided that he and his family can be dispersed. The court has simply engaged in cover-ups and its officers have engaged in misconduct in public office by relying upon fraudulent documents and a false note of judgment provided the Respondent. It was not in accordance with the law.  The Lord Justice of the court of appeal did not have the transcript of the lower court while making his decision, therefore he himself did not know what the Administrative Court’s judge has said with respect to dispersal. In such circumstances, the Tribunal is urged not to rely upon the Court of Appeal’s decision as it may do so upon the statement made by the Respondent.  The court of Appeal’s decision cannot be relied upon as there was a severe breach of Article 6 ECHR.

Article 6 reads as follows:

“(1) In the determination of his civil rights and obligations …, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ….”

The Appellant argues that the provisions of Article 6 have been infringed because he has not been afforded the fair and public hearing by an independent and impartial court to which he is entitled in the determination of her “civil right” to adequate accommodation.

1. For that reason, the Tribunal does not have jurisdiction to mention about the accommodation issues, or rely upon the above court of appeal case as it was purely a miscarriage of justice. The tribunal should consider that the Appellant is not in need of accommodation for the moment and he has applied for Subsistence Support Only on 28^th April 2014, which has been refused by the Respondent. 

 

The Statutory Framework

2. The statutory provisions are reflected in the Dispersal Guidelines. Paragraph 2.1 of those Guidelines, under the heading: “Due Regard to Areas with a Ready Supply of Accommodation” states:

“Under the provisions of section 97 of the Immigration and Asylum Act 1999 caseworkers must have regard to the desirability, in general, of providing accommodation in areas in which there is a ready supply of accommodation.

2.2 This means that, as a general rule, caseworkers should allocate accommodation in areas outside London and the south east.”

Paragraph 2.4 provides:

“Asylum seekers may ask to be allocated accommodation in London or the South East. Caseworkers should assess:

. whether it is reasonable to allocate accommodation in a dispersal area (i.e. outside London or the South East)

. whether an allocation of accommodation will meet the person’s accommodation needs

. whether the decision to disperse is compatible with the Human Rights Act 1988

 

3. It is noted that the Respondent has not carried out any relevant assessments/ interviews which will prove that the decision to disperse the appellant and his family is compatible to the Human Rights Act 1998. By merely referring to a Court of Appeal’s decision which has been obtained through fraud does not substantiate the respondent’s decision to suspend subsistence support. The Appellant would like to give a brief explanation on the appeal court’s case on which the Respondent is relying upon.  The case name was Ismail v Secretary of State and Barts Health NHS. The case was about the illegal cancellation of Mr Ismail’s leg operation by Barts Health NHS after they received communications from the Secretary of State.  In short, the two parties shared confidential and sensitive information about Mr Ismail for over two weeks before deciding to cancel the leg surgery scheduled for 11^th March 2013 to make sure that Mr Ismail and his family disperses to Birmingham.  It was a case about conspiracy. Therefore, that case does not have any connection with the present appeal to terminate subsistence supports.

 

4. In Hejota v Secretary of State for Home Department [2002], it is mentioned:

“The Government’s policy is based on moving asylum seekers and their dependants away from London and the south east, dispersing them to other parts of the country….

We shall not, therefore, take into account preferences, but, as I have said, we can take into account circumstances. For example, if an asylum seeker’s family or members of an ethnic group live in an area in which the necessary support is available, we would want to weigh carefully the value of placing the asylum seeker in that area. I cannot give an absolute guarantee that we will be able to do that in every case, but we want to create cluster areas….”

“In my view that constraint is limited. Whilst the Secretary of State must not take into account the Claimant’s preference as to locality and the nature of the accommodation, the Secretary of State is obliged to provide adequate accommodation and in so doing to take into account (amongst other factors) the individual circumstances of the applicant as they relate to his accommodation needs (including family ties). While regard may not be had to preferences, regard may be had to the factors underlying those preferences”.

The question raised is whether Article 8 requires the Secretary of State to go further and have regard to the claimant’s preference regarding locality and the nature of the accommodation.

5. In this case, the circumstances of the Appellant and his family have not been taken into account and have been disregarded for the purpose of carrying illegitimate activities. Those circumstances have been clearly elaborated by the School Headteacher’s letter, Children’s letters and other representations provided to the Respondent.

 

6. It is indeed very upsetting to note that the Secretary of State is adamant to split the appellant and his family from their community, families and friends without carrying out any relevant assessment required by law and infringing Article 8 and as outlined below. The Tribunal is therefore put in clear difficulty by this failure by the Secretary of State. If the Tribunal were to refuse this appeal against refusal for subsistence support Only relying on the Secretary of State’s decision is that unlawful per se given the Secretary of State may be relying on either no policy, or an unlawful policy?. The answer to this question in our view is the remedy the Tribunal can give. It is our view that in the absence of the policy guidance from the Secretary of State, the Tribunal should not remit the case back for reconsideration by the Secretary of State as it would seem unreasonable or irrational to do that when there are concerns about the absence of policy or guidance on decision making or misrepresentations of facts. Namely, why remit back to a decision maker who has no lawful policy on decision making and should practitioners point this out when making submissions to the Tribunal?
7. The answer may be that in the absence of policy or guidance it is down to the Tribunal to substitute its decision in this case for that of the Secretary of State. In the policy vacuum, the answer may be for the Tribunal to develop its own guidance and jurisprudence.

 

8. A children’s rights impact assessment should be conducted to ensure that Home Office policy and service providers adhere to the government’s obligations under the UNCRC and Section 55 duty of the Borders, Citizenship and Immigration Act 2009 to safeguard and promote the welfare of children. The Home Office should be required to publish an annual report detailing how it has complied with these obligations when providing children and their families with asylum support. This assessment has not been carried out in the Appellant’s case.

 

9. Several Assessments should be carried out to substantiate the fact that the decision of the Secretary of State will not breach the Appellant’s and his family’s convention rights. This raises the following conundrum. Article 3 of the Convention provides that no one shall be subjected to ‘inhuman or degrading treatment’ and section 6 of the Human Rights Act 1998 forbids the Secretary of State to act incompatibly with the Convention rights. Can the Secretary of State refuse subsistence support to the destitute without thereby subjecting them to inhuman treatment? If there are some circumstances in which she can do so, how are they to be defined and what procedure is required to make sure that she does not stray outside them? A similar issue arises in relation to Article 8, which provides that everyone has the right to his private and family life and his home. Will refusal of assistance to the destitute infringe this right?

 

1. Those questions can only be answered if the Respondent has carried out necessary assessments and as she has not done so, her decision is legally flawed.

 

1. The task of the tribunal when faced with issues of statutory construction, such as those which arise in this case, is to deduce and give effect to the intention of Parliament. The judge has no discretion of his own. Rules of law prescribe what can and what cannot be considered when seeking to interpret a statute. The starting point must always be the words of the statute itself, but where there is any uncertainty there is other material to which it is legitimate to have regard and principles of construction which fall to be applied. Materials which the Tribunal is urged to consider will therefore be: The Head Teacher’s letter, The children’s letters in which they expressed their wishes and feelings, the Representations provided by the families and friends to show the strength of connections in the area and other evidences such as medical reports, children’s best interests, children’s connections to the area, the strong bond between the community and the children, the medical situation of Mr Ismail and the whole family’s Convention Rights considered individually and notwithstanding the exceptional circumstances of the appellants.

 

2. This appeal, which is concerned with the meaning and application of a single section of a statute, raises difficult and important issues. The fact that the respondent has terminated subsistence supports for over a month put herself at a position where she has been in severe breach of Article 3 of the Convention Rights which provides:

Article 3 of the Convention provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

 

3. In Q & Others v SSHD (2003), Simon Brown LJ stated: “True, no obligation arises under Article 24 of the Convention of 1951 until asylum seekers are recognised as refugees. But that is not to say that up to that point their fundamental needs can properly be ignored. I do not accept they can. Rather I would hold it unlawful to alter the benefit regime so drastically as must inevitably not merely prejudice, but on occasion defeat, the statutory right of asylum seekers to claim refugee status. If and when that status is recognised, refugees become entitled under Article 24 to benefit rights equivalent to nationals. Not for one moment would I suggest that prior to that time their rights are remotely the same; only that some basic provision should be made, sufficient for genuine claimants to survive and pursue their claims.”

 

Before one can consider the requirements of procedural fairness, it is necessary to identify the nature and ambit of the factual enquiry that the Secretary of State has to carry out when faced with an application for support by an asylum seeker.  In this appeal, the Appellant urges the tribunal to take into consideration the fact that no enquiries have been made by the respondent before refusing the application for Subsistence Only Support.  They have merely engaged in criminal conspiracies and unlawful campaigns.

 

4. In Q & Others v SSHD (2003)

 

Collins J indicated: “The issue might, however, have arisen of whether the provision was compatible with the European Convention on Human Rights (‘the Convention’), as applied by the Human Rights Act 1998.  Two issues arise: (1) can failure to provide support ever constitute subjecting an asylum seeker to inhuman or degrading treatment? If yes, (2) in what circumstances will the failure constitute such treatment?

 

5. The question in the present appeal is whether the withdrawal of support from destitute asylum seekers such as the Appellant and his family, who cannot meet their essential living needs may constitute inhuman punishment or treatment and so violate Article 3. The judgment of the Court of Appeal in the JCWI case indicates that other means of support principally by charities or families and friends, are scarce.

 

6. The situation here is different since asylum seekers are forbidden to work and so cannot provide for themselves. The Appellant despite being a Special Needs Teaching Assistant and his wife, a teacher, are prohibited from taking up any employment despite being highly qualified individuals and this in itself render their situation and their children’s situation as destitute. However, this does not mean that the Respondent will abuse her powers to lay down unlawful conditions for the provision of subsistence support. That was a pilot scheme in the year 2002 but it was not successful as the parliament indicated that this type of scheme will violate the Asylum Seeker’s Article 3 Rights. 

 

7. Collins J also pointed out in Q & Others v SSHD that the Secretary of State would be in breach of Article 3 if she failed to provide support to an asylum seeker in circumstances where he would not receive assistance from friends or charity. Later he held that Article 3 would be violated if:

“A State puts into effect a measure which results in treatment which can properly be described as inhuman or degrading …by adversely affecting his mental or physical health to a sufficiently serious extent. It is not necessary to wait until damage of a sufficient severity occurs provided there is a real risk that it will occur”

8. The supports which the appellant refers to in his representations were mainly emotional, moral and at some extent minimum financial support to bear the costs of medicines without prescription, phone cards and not for essential living needs. However, these supports from community were already provided to the family since 2010 while they were in receipt of subsistence support. This is an Article 8 ECHR issue where proportionality tests should be carried out with regards to dispersal procedures, that is, whether these community supports will be available in the dispersal area due to the disability and vulnerability of the appellant.

 

9. Collins J went on to hold that there will normally be a real risk that to leave someone destitute will violate Article 3, observing that he was not persuaded that charity offered a real chance of providing support.

 

Article 3 of the Convention, together with Article 2, must be regarded as one of the most fundamental provisions of the Convention and as enshrining core values of the democratic societies making up the Council of Europe. In contrast to the other provisions in the Convention, it is cast in absolute terms, without exception or proviso, or the possibility of derogation under Article 15 of the Convention.

 

1. Asylum seekers who are here without a right or leave to enter cannot lawfully be removed until their claims have been determined (The Appellant has pending further submissions) because, in accordance with the United Kingdom’s obligations under Article 33 of the Refugee Convention, Parliament has expressly forbidden their removal by what is now section 15 of the 1999 Act. But while they remain here, as they must do if they are to press their claims, asylum seekers cannot work (Asylum and Immigration Act 1996, section 8) unless the Home Secretary gives them special permission to do so (Immigration (Restrictions on Employment) Order 1996).

The imposition by the legislature of a regime which prohibits asylum seekers from working and further prohibits the grant to them, when they are destitute of support is unfair.

 

1. Destitution is an emotive word, and it might be argued that denying support to the destitute is necessarily inhuman and degrading treatment. inaction

 

The passages from the judgment of Collins J to which we have referred above suggest that he considered that there will be a breach of Article 3 if the Secretary of State refuses permission to an asylum seeker where there is a real risk that, because he will receive no support from any alternative source, he will decline into the kind of state described in Pretty.

 

2. Article 8 provides that ‘everyone has a right to respect for his private and family life, his home and his correspondence’.

 

If the denial of support to an asylum seeker impacts sufficiently on the asylum seeker’s private and family life, which extends to the individual’s physical and mental integrity and autonomy – see X and Y v Netherlands (1985) 8 EHRR 235, the Secretary of State will be in breach of the negative obligation imposed by Article 8, unless he can justify his conduct under Article 8(2).

 

The Respondent’s unfairness

 

3. Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.

 

4. In this case, the Appellant and his children did not have and not been afforded any opportunity to put forward their representations during an interview. The Secretary of State has merely made a decision by manipulation with malicious and xenophobic intention and by simply looking at forms. Collins J clearly added in Q & Others (2003) that:

“It is an unfortunate element of the system, although I understand why it is considered necessary, that the person at NASS who decides whether to refuse or allow support under s.55 relies entirely on the answers recorded on the form. He does not see nor does he question the Claimant.”

5. In R v Ministry of Defence, ex parte Smith [1996] QB 517, 554, Lord Hoffman indicated that “The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable [i.e. within the range of responses open to a reasonable decision-maker]”.

 

• the caseworkers were not properly directed as to the relevant test
• fairness required the Respondent should have interviewed the applicants to try to ascertain the precise reason why they need subsistence support only or any other related matters using interviewing skills and a more flexible approach than simply completing a standard form questionnaire.]

 

6. At an occasion, Iffat Pasha acting on behalf of the Respondent phoned Mr Ismail to request him to withdraw an appeal made to the Tribunal as she has decided that he is qualified to be provided with accommodation in London. She indicated that he will be guaranteed accommodation in London upon withdrawal. However, no offers were ever made (A recording of the conversation is available and must be heard by the Judge during the hearing as part of the evidence). This amounts to dishonesty and cheating a disabled and vulnerable person.

 

Children’s Best Interests

7. In Sedgemoor the Judge accepted that – following the decision in ZH (Tanzania) v SSHD [2011] UKSC 4 – he had to take the best interests of the children into account when determining whether to grant an injunction which would have the effect of forcing a Gypsy family to leave their land which they had developed as a caravan site without planning permission and return to life on the roadside. Helpfully the Judge went further in his judgment and made it clear that the Court would need evidence from the Council as to the best interests of the children – evidence in the form of a social services report before he could decide whether an injunction should be granted. In this appeal, the same applies.

 

8. There is no evidence to substantiate that the Respondent has conducted relevant assessment to determine the best interests of the children concerned. The children have clearly indicated that they do not wish to be separated from their friends and community and secure environment but the Respondent did not take any action to find out their wishes and feelings with regards to the condition of supports. In such circumstances, the unlawful condition imposed was plotted to separate the Appellant and his children from their community and families in order to cause them substantial harm elsewhere where they will not have any connections or protection.

 

9. In these situations, it is justified to make complaint to CRC but before taking these steps, the Appellant and his family requests the tribunal to consider the below policies which it ought to follow while making its decision:

• Principle of the best interests of the child (Article 2).
• Must have regard to the rights and views of the child and those views must be given due weight in accordance with age / maturity of the child (Article 2)
• Must be child-sensitive procedure (including preventing the manipulation of child by those acting on his / her behalf) (Article 3(2))
• May decline to examine any communication it considers not to be in the child’s best interests. (Article 3(2))

1. Article 12 of UNCRC provides:

“1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”

1. The most often cited source for the concept, ‘Best interests of the child’ is Article 3, UN Convention on the Rights of the Child which states as follows:

Article 3 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative  bodies, the best interests of the child shall be a primary consideration.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision
4. Section 1 of the Children Act 1989 of the UNCRC principle that the ‘best interests of the child’ would be a paramount consideration when courts are making orders affecting children.

The introduction of s55, BCIA 2009 finally placed the duty imposed on the Home Office to make ‘best interests of the child’ a paramount consideration on par with other public authorities who were already bound to do so pursuant to ss10 & 11, Children Act 2004. The base starting point must be – children first, migrant second.

3. In ZH (Tanzania) v SSHD [2011] UKSC 8, Lady Hale made clear that when it is said that the ‘best interests of the child’ must be a primary consideration, it means that they must be considered first. The decision-maker thus must make a decision on what is in the overall best interests of the child and only then to assess whether those interests are outweighed by countervailing factors such as those concerned with the rights and freedoms of others, the effective maintenance of immigration control, prevention of crime, etc.: see Lady Hale at §33; Lord Hope at §44; Lord Kerr at §46. The Respondent has failed in her duties to consider the best interests of the children which should have been her paramount consideration. Her approach to them was simply that the children are an asylum seeker’s children and she failed to consider them as children first.  She failed to take positive steps to promote and safeguard the welfare of a child who is in the UK.  She went on to conspire against the children as explained in below paragraphs with the intention to cause considerable damages.

 

4. The child’s best interests must be taken account of in undertaking this balancing exercise. These best interests that are referred to are the child’s upbringing and well-being in general and whether it is reasonable to expect the child to live in another place. These best interests must be a primary consideration which should be considered first.

 

5. The views of a child who is capable of forming her own views in all matters affecting him must be heard and due weight must be given to them in accordance with his age and maturity. Procedures should be adopted that ensure that those views are fully and freely obtained. The respondent failed in this duty.

 

6. Importantly, the Court in Tinizaray held that the s55 BCIA 2009 duty and the assessment of ‘best interests’ cannot be limited to information which is supplied by the child / her family members, particularly if it is clear that that information is either incomplete or potentially slanted. The s55, BCIA 2009 duty requires further information to be sought by the decision maker including, in appropriate cases, interviews of the applicant and separate interviews of the child, questionnaires, and seeking / soliciting the views, assessments and reports of other agencies such as local authority social services, CAFCAS or local children’s welfare groups and schools: see §24 of the judgment. This is akin to the well-established public law Tameside duty to inquire (i.e. did the decision-maker ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?).

 

7. In LD [2010] UKUT 98 (IAC) (a case predating ZH (Tanzania) but cited with approval in AJ (India)), Blake J referred to Article 3 of the UNCRC and also stated in paragraph 26:

“26. Very weighty reasons are needed to justify separating a parent from a minor child or a child from a community in which he or she had grown up and lived for most of her life. Both principles are engaged in this case.”

8. The respondent’s decision of separating the children from their community is against S55 BCIA 2009:

In EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC), the Tribunal wrote at para 308(vi):

“Even where neither the children nor the parents has the status of a British citizen, the welfare of the children is a primary consideration in administrative action affecting their future and accordingly the balance of competing interests under Article 8 must reflect this factor as a consideration…”

Absent other factors, the reason why a period of substantial residence as a child may become a weighty consideration in the balance of competing considerations is that in the course of such time roots are put down, personal identities are developed, friendships are formed and links are made with the community outside the family unit. During a child’s very early years, he or she will be primarily focused on self and the caring parents or guardian. Long residence once the child is likely to have formed ties outside the family is likely to have greater impact on his or her well-being.

9. The Respondent should ascertain the child’s wishes regarding the provision of Section 95 Support which she has failed to carry out.

Legislation

1. Section 55(5)(a) of the 2002 Act, whose provisions lie at the heart of this case, must be read together with section 6(1) of the Human Rights Act 1998 which provides that it is unlawful for a public authority to act in a way that is incompatible with a Convention right. The Secretary of State and the Tribunal is, of course, a public authority for the purposes of that subsection. The purpose of section 55(5)(a) is to enable the Secretary of State to provide support where a failure to do so would result in a breach of section 6(1) of the Human Rights Act 1998 because he has acted in a way which is incompatible with a person’s Convention rights.

 

1. In the Court of Appeal Laws LJ drew a distinction between what he described as breaches of article 3 which consist in violence by state servants and breaches which consists in acts or omissions by the state which expose the claimant to suffering inflicted by third parties or by circumstances: [2004] EWCA Civ 540, [2004]. The officers acting on behalf of the Respondent have breached Article 3 ECHR in this present case.

 

2. The decision to withdraw support from someone who would otherwise qualify for support under section 95 of the 1999 Act because he is or is likely to become, within the meaning of that section, destitute is an intentionally inflicted act for which the Secretary of State is directly responsible. She is directly responsible also for all the consequences that flow from it, bearing in mind the nature of the regime which removes from asylum-seekers the ability to fend for themselves by earning money while they remain in that category. They cannot seek employment for at least 12 months, and resort to self-employment too is prohibited. As the Court of Appeal said in R (Q) v Secretary of State for the Home Department [2003] EWCA Civ 364, para 57, the imposition by the legislature of a regime which prohibits asylum-seekers from working and further prohibits the grant to them, when they are destitute, of support amounts to positive action directed against asylum-seekers and not to mere inaction. This constitutes “treatment” within the meaning of the article.

 

3. Withdrawal of support will not in itself amount to treatment which is inhuman or degrading in breach of the asylum-seeker’s article 3 Convention right. But it will do so once the margin is crossed between destitution within the meaning of section 95(3) of the 1999 Act and the condition that results from inhuman or degrading treatment within the meaning of the article. This is the background to the second question which is whether, if nothing is done to avoid it, the condition of the asylum-seeker is likely to reach the required minimum level of severity. Mr Ismail and his family in this case have been given inhuman and degrading treatment which is very severe.

 

4. Article 8 requires the Secretary of State to provide the appellant as a destitute asylum seeker with adequate accommodation. The question raised is whether it requires the Secretary of State in deciding what is adequate to go beyond giving the Appellant the opportunity to state both his individual circumstances as they relate to his accommodation needs and his family ties (as he has done in providing for completion of the NASS form) and taking those considerations into account, and requires her to take into account the Appellant’s preferences.

 

Legal Representation

 

5. The absence of provision for representation before the Asylum Support Tribunals may lead to a breach of an asylum seeker’s right to a fair hearing.

 

Where an appeal fails, and as a result of the unavailability of legal representation an asylum seeker is left destitute, the result may also be a violation of Article 3 ECHR.

It is considered that by refusing permission for most asylum seekers to work and operating a system of support which results in widespread destitution, the treatment of asylum seekers in a number of cases reaches the Article 3 ECHR threshold of inhuman and degrading treatment. Deliberate use of inhumane treatment is unacceptable.  The Parliament agreed that the system of asylum seeker support is a confusing mess.

 

Asylum Seeker and Failed Asylum Seeker

 

6. The Respondent claims that the Appellant is a failed asylum seeker and he has been provided with Section 95 support due to his children’s involvement. She further claims that the Appellant would need to satisfy one or more conditions under paragraph 3 (2) of Immigration and Asylum Act Regulations 2005 to obtain Section 4 support.

 

7. In order to substantiate the above claim, the Respondent should provide evidence whether the Appellant is a failed asylum seeker. It is useful to explain the key distinction between “Asylum Seeker” and “Failed Asylum Seeker”. The term Asylum Seeker in ordinary speech is used in a very wide sense, as in anyone who is seeking refugee status, regardless of where they are in the process. By contrast, it is generally used by the Home Office to refer to a person who has made a claim for asylum which has been recorded by the Secretary of State and which has not been finally determined.

 

8. In the context of entitlement to support under sections 95, 98 or section 4 of the 1999 Act, there is a specific statutory definition of Asylum Seeker in section 94(1) of the 1999 Act. Section 94(5) of the 1999 Act extends that definition to include persons who have children as part of their household at the time their asylum claim is determined and provides that they will still be considered as Asylum Seekers (for the purpose of eligibility to section 95 support) while any children remain in the UK.

 

9. An Asylum Seeker is to be contrasted with a Failed Asylum Seeker. A Failed Asylum Seeker is a person who has had his or her asylum or human rights claim refused and has exhausted their appeal rights in the UK and the time for making an in-time appeal has expired. Such persons are referred to by the Secretary of State as “Appeal Rights Exhausted” or “ARE”.

 

1. In Mr Ismail’s case, his asylum application was refused in October 2010, his appeal to the First-Tier Tribunal was refused in January 2011, and the permission he sought from the Upper Tribunal to appeal to the Court of Appeal was disregarded. He was not served with the document entitled IA157. The tribunal was required to issue IA157 notice which outlines if permission has been granted or refused.  The asylum team responsible for his case and the Upper Tribunal did not serve Mr Ismail with that notice.  Therefore, Mr Ismail is still an asylum seeker as his case was never determined and as 4 years have elapsed, he and his wife should be given permission to work.  In that effect a judicial review is pending under Reference number CO/2431/2013.

 

1. In February 2014, the appellant submitted further representations and this has also been communicated to the Member of Parliament.

It is clear that “When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection ….”

2. The Tribunal is requested to consider the overwhelming or compassionate circumstances in this case.

Breach of Confidentiality and Conspiracy

3. On 14 May 2014, Mr Clifford Kirsch, acting on behalf of the Secretary of state contacted Miss Afefa from RHP Services (letting Agent) to illegally pressure her to expedite the eviction proceedings in the County Court. He convinced her that Mr Ismail and his family should be moved to Birmingham and in order to substantiate the respondent’s claim that Mr Ismail does not have enforceable right to stay in his current accommodation. This communication was made after Mr Ismail and his family asked Subsistence Only Support.  Hence, Mr Kirsch willfully and knowingly conspired with an intention to harm and plotted by revealing confidential information to RHP Services and Darren Rawlins, their solicitor from Rainer Hughes and made a deal with them. It is against the law to prevent a human being from receiving any kind of support.  Mr Kirsch moreover advised Miss Afefa to send someone to the Appellant’s property in order to take photos and recordings of the house and the family on 22^nd May 2014. The tribunal is urged to obtain full explanation of that conversation as Miss Afefa can be called for witness. Disclosure should be provided to us as well for a public enquiry as the Respondent has misused her powers for personal gains and to cause substantial damage to the UK.

 

4. On the same day, Mr Clifford Kirsch contacted Mr Marc Davis of Newham Social Services to convince him that the children of Mr Ismail should be taken into custody / care as the family did not move to Birmingham. However, he provided false information to Mr Davis as it was the child himself who refused to travel to the dispersal area and he wrote a letter in that effect to express his views, opinions and feelings. Mr Kirsch has not carried out any assessments or interviews to substantiate that the children are at risks. Mr Kirsch’s plot and conspiracy was confirmed with evidence in his minutes.  When Mr Davis visited our premises on 28 May 2014, he did not show any expression of concern or any indication that Mr Kirsch contacted him.  His visit was simply to explain his duty to support as a social worker. 

 

5. On 8^th March 2013, Mr Clifford Kirsch advised Miss Ecem Daly to contact Barts Health NHS in order to cancel Mr Ismail’s leg operation to make sure that he moves to Birmingham. Mr Kirsch and his team has gone beyond the extent to obstruct the submissions to the Tribunal through the sending of vexatious letters.

 

6. On 7^th August 2012, Mr Kirsch and his team contacted Genesis Housing Association, Bow County Court, Newham Council and the Police to evict Mr Ismail and his family. He did so to make sure that the family becomes street homeless (without providing any Home Office accommodation despite an application was made). He then conspired to confiscate important evidences related to corruption from the property and to seize the CCTV footage available. Our employment history files were lifted.  It was a multi-agency operation having xenophobic attitudes.

Fraud

7. As explained in all our documents, the Officers acting on behalf of the Respondent have engaged in criminal conspiracies. Misrepresentation cases can be prosecuted criminally or civilly under a variety of statutes or they might be the basis for common law claims. The gist of the offence is the deliberate making of false statements and willfully harm someone.

 

8. The tribunal may take steps to consider if there is a contempt of court and where there is, to punish it [Rule 32 PD]. It may direct the party making the allegation to refer the matter to the Attorney General with a request that the Attorney General consider whether to bring proceedings for contempt of court. Due to the fact of submitting false documents and misleading information, the officers acting on behalf of the respondent have been dishonest and misconducted in public office.

 

9. A representation is defined as “false” if it is untrue or misleading and the person making it knows that it is, or might be, untrue or misleading. Actual knowledge that the representation might be untrue is required not awareness of a risk that it might be untrue. The court of Appeal order included in the Respondent’s bundle on page 103 was sustained in a corrupted manner and with submissions of misleading documents. Our MP has been alerted about the misconduct of the judiciary and public officials in the home Office and it has been proposed to him to conduct a public enquiry for breach of public trust.

 

1. The Officers acting on behalf of the Respondent have perverted the course of justice by submitting misleading documents to the Court of Appeal and to the Tribunal. Perverting the course of justice can be any of three acts:
   • Fabricating or disposing of evidence
   • Intimidating or threatening a witness or juror
   • Intimidating or threatening a judge
2. Doing an act tending and intended to pervert the course of public justice is an offence under the common law of England and Wales.

This offence, and the subject matter of the related forms of criminal conspiracy, has been referred to as:

• Perverting the course of justice
• Interfering with the administration of justice
• Obstructing the administration of justice
• Obstructing the course of justice
• Defeating the due course of justice
• Defeating the ends of justice
• Effecting a public mischief

2. The Respondent has engaged in criminal threatening. Criminal threatening (or threatening behavior) is the crime of intentionally or knowingly putting another person in fear of imminent bodily injury. “Threat of harm generally involves a perception of injury…physical or mental damage…act or instance of injury, or a material and detriment or loss to a person.” A terroristic threat is a crime generally involving a threat to commit violence communicated with the intent to terrorize other.

 

3. The Respondent has caused serious harm to the appellant and his family by misleading the court and the tribunal. The acts of Mr Kirsch and other officers acting on behalf of the Respondent are intended to pervert the course of justice. They have used documents with intent to deceive. They have attempted to persuade Mr Ismail and his family by intimidation, harm or otherwise providing false information to other third parties.

Conclusion

4. The Appellant humbly request the tribunal to order the Respondent to resume subsistence supports with immediate effect.

 

5. The Appellant also request the tribunal to refer the case to the Supreme Court if it lacks jurisdiction.

 

6. The Respondent should be ordered to conduct appropriate assessments, interviews and proportionality tests by considering children’s best interests.

 

7. The Tribunal is also requested to consider the criminal conspiracies carried out by the respondent and the breach of confidentiality and Data Protection Act 1998. These matters should be referred to CPS for prosecution.

     MR AND MRS ISMAIL

2^nd June 2014

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