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'Refuse first, review after'

Written by
Samir Pasha and Naga Kandiah
Date of Publication:
12 June 2019

What is an example of an individual contributing beyond expectations to a country? Perhaps a PhD at the prestigious Oxford University? A recent Home Office decision shows that may not be enough. The UK Home Office has in facto put in place a policy to 'refuse first, review after'. An on-going judicial review being led by Mr Naga Kandiah, highlights the depressing state of affairs for hard-working families who are being torn apart by a department that places no value on positive contribution to the British society.

The client is a Tamil lady, who herself came to the UK legally, and worked as a teacher, while her two sons; one completed his studies and works for- ironically - British Airways; the other just began his PhD at Oxford University. The client left Sri Lanka in 2003, moved to Singapore, then settled in the UK in 2009. She submitted a claim under Article 8 Human Rights Act 1998 (HRA), which was not only refused but also her claim was certified as being 'clearly unfounded'. The Home Office believe she can leave her children and go back to Sri Lanka, a place where she has not lived for 16 years and has integrated into British society fully. There are two aspects of this case that are worrying. First, just how much does one need to integrate into British society to be deemed sufficient, second, can a draconian certification of someone of the client's calibre have her claim be decided as 'clearly unfounded'.

The first question is based on facts and has to be seen on a broad basis. Previous cases have established that to determine the level of integration into society has to be a broad evaluation, taking into account understanding that society and participating in it. The client has lived in the UK for 10 years, worked as a teacher, supported her children in ensuring they educate themselves to the highest level. The sheer amount of dedication and support required to nurture a child who goes onto gain admission at one of the world's most prestigious university is no small feat. The hours of encouragement, creating the right home environment, discussing careers and ensuring extra-curricular activities are kept up, have all been disregarded by the Home Office. This begs the question, if such traits are not deemed British enough, what does? We have seen time and again, that Home Office has an elusive understanding of British values and dedication to British society. Two examples come to mind, the plight of the Gurkhas, whose community sacrificed lives fighting for Britain, and most recently, the Windrush Generation. Both scandals where the Home Office showed its true colours and subsequently required a combination of legal challenges and Parliamentary intervention. In keeping with this line of thought, one has to question the Home Office whether they have a criteria of what integration in British society means. If sacrificing lives, settling and contributing above and beyond to the social fabric, and achieving academic success is not enough for the Home Office, then perhaps British values are not to be found in hard work and perseverance.

This is notwithstanding the current hostile post-conflict climate in Sri Lanka for Tamils, especially those being made to return from Western countries.

This brings us to the second question, whether a client whose circumstances deserve to be reviewed carefully as there are facts that support her claim under HRA be regarded as clearly unfounded. Could it be said that this client's claim was so without substance that her whole claim is manifestly unfounded? The client's grounds and basis for wanting to continue staying in the UK are neither unfounded nor unsubstantiated. She has lived in the UK for 10 years, she has been working as a teacher, and her children are working and studying. Surely, she deserves her day in court, and more so, deserves the full support of the justice system. Judges in previous similar cases have already set out that one cannot disregard an individual's case with such brazen force that she would not be able to rely on even one ground. That would be throwing the baby out with the bathwater. Previous judgments have strongly condemned the Home Office when they have taken such decisions, and if there is a reasonable doubt that an applicant's case may succeed, the Home Office's decision is regarded as irrational. Her sons have provided statements stating that they need their mother for financial and emotional support, is that so far-fetched? And what of the human rights of the children, who have endured sleepless nights and constant anxiety over whether their mother will be sent back to a country thousands of miles away, who has been their rock. If they can achieve so highly whilst having the constant fretting of the sword of hanging over their necks that their family unit will be broken, then it is a travesty.

If an applicant as esteemed as this client needs to fight tooth and nail to establish her manifest basis, and continue to drag her claim through the court hierarchy, then is it no wonder that the Home Office is indeed irrational in its decisions?