Chain-smoking asylum seeker refused cash over humans right breach

The Royal Courts of Justice
The Royal Courts of Justice

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A FAILED asylum seeker who ‘wasted’ money on smoking has been refused an award of damages after his human rights were breached by the Home Secretary’s refusal to pay his travel expenses from Portsmouth to see his young son.

The Iranian national, who was convicted of rape and faces deportation moves, won a High Court ruling on November 5 that he should have received help out of public funds to pay for the Portsmouth to Canterbury journey.

[He] has been spending a considerable proportion of his limited means on smoking

Judge Michael Kent QC

Deputy High Court judge Michael Kent QC, sitting in London, then had to consider whether the father, who can only be identified as MG, should receive damages for the ‘unjustifiable interference’ with his right to a family life protected by Article 8 of the European Convention on Human Rights.

Today Judge Kent rejected MG’s claim on several grounds.

These included MG’s character as revealed by his conviction for a serious sexual offence.

It also took into account the fact that the Home Secretary has now agreed to fund travel for fortnightly visits to his son.

The judge stressed he was only dealing with a damages claim by the father who had always been at high risk of deportation and losing contact with his son - and not a joint claim involving the child.

MG’s lawyers argued in his compensation claim that he had suffered symptoms of depression and anxiety as a result of the restrictions on him seeing his son.

But the judge said it was relevant to the claim that MG ‘has been spending a considerable proportion of his limited means on smoking’.

When he was not being provided with additional funds ‘he wasted such a large part of his means in that way,’ said the judge.

That shed light ‘on how much he has been affected by the problem he faced travelling to see his son - otherwise he would surely have given priority to the cost of return tickets to Canterbury over his smoking habit’.

Refusing to award damages, the judge said he had taken into consideration MG’s smoking habit, in combination with other factors that showed it was not ‘just and appropriate’ to make an award.

The judge said problems had arisen because MG could not live with the mother of his child in Canterbury, Kent, because their relationship had broken down.

Kent, a county with several ports, including Dover, was already full of asylum seekers and could not house him.

He had been provided with accommodation at Cosham near Portsmouth and provided with £36.62 per week – now £36.95 – the standard amount the Government has to pay to asylum seekers who would otherwise be destitute.

As a failed asylum seeker, MG was not permitted to work, save in ‘shortage occupations’, or jobs requiring skills which were locally in short supply. That was something MG could not offer.

His accommodation was some 130 miles from where his former partner and son K lived, and a day return fare for the journey of three and three-quarter hours was £13.55.

The judge said MG, who smoked 35 cigarettes a day, first came to the UK as long ago as June 2004.

The evidence was he was addicted to cigarettes and had cut down on other essential needs, particularly food, to support it.

His claim for asylum was refused in September that year and his rights of appeal against that refusal were exhausted in March 2005.

Judge Kent said: ‘Nevertheless he remained in this country and in September 2009 he was convicted of rape and sentenced to five years imprisonment.’

MG was served with notice of deportation after release on licence from prison - but in fact was not deported and went to live in the Brighton area.

In March 2012 he began a relationship with a British citizen, referred to as EW, who gave birth to their son K.

Their relationship continued until it broke down in January 2015, but in the meantime MG was recalled to prison for a breach of his licence conditions following a conviction for possessing a Class B drug.

EW gave birth to their son in September 2013, while he was still in prison, and shortly after moved to live with her parents in Canterbury, Kent.

The judge said MG was again released from prison the following December and went to live with a friend in Brighton.

A fresh asylum claim was refused and a new deportation order issued in October this year. The judge said MG had lodged an appeal and the effect was that he would have to remain in the country until that was disposed of, which would be no earlier than January next year.

The judge said MG’s case was about whether the Home Secretary had properly discharged her obligations to him under the Immigration and Asylum Act 1999, and asylum support regulations made under it which entitled him to a modest allowance to prevent him becoming destitute.

This brought into play other legislation, including Article 8 of the European Convention on Human Rights, which protects the right of everyone to a private and family life.

Under provisions of the UN Convention on the Rights of the Child, the UK was also obliged to treat ‘the best interests’ of children as a ‘primary consideration’ when making decisions involving asylum seekers.

After the breakdown of their own relationship, MG and his partner had both striven to ensure K maintained contact with his father, and the child had responded well to contact when it occurred. Indirect contact, such as through Skype, was no substitute for face-to-face meetings.

The judge said he was prepared to accept there were real practical difficulties about accommodating MG nearer to his son than Portsmouth. The county of Kent was under pressure from asylum seekers arriving at its ports and had no places to offer.

But even though MG might face deportation if his asylum appeal fails, that did not mean the court should ‘view with equanimity’ a situation where it was virtually impossible for regular contact to be maintained with his son.

Although there were practical difficulties in housing him closer to Canterbury, there were no practical difficulties about providing MG with the ‘relatively modest sum’ to cover regular trips from Portsmouth to Canterbury, the judge ruled.

He also ruled the Home Office had failed to show MG had sufficient money from his modest allowance to afford the trips.