A failed asylum seeker convicted of rape and given accommodation in Portsmouth as he faces moves to deport him is entitled to money from the public purse to travel to see his baby son, the High Court has ruled.
A judge said it seemed to him the jobless man, referred to as MG, was entitled to travel expenses for at least fortnightly trips to comply with human rights laws, despite the Home Office saying that if he gave up smoking 35 cigarettes a day he could spend the money on travel instead.
The Iranian national, whose son lives in Canterbury and who for legal reasons can only be identified as MG, won a ruling that the Home Secretary’s refusal to pay up was an “unjustifiable interference” with his rights.
Deputy High Court judge Michael Kent QC, sitting in London, said MG came to the UK as long ago as June 2004.
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 his child.
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 today’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.
The judge said 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.
Allowing MG’s application for judicial review against the denial of travel expenses, the judge said his task was to ensure that “a decision is not left in place which interferes with the claimant’s and his son’s Article 8 rights in a way which cannot be justified”.
The judge said MG could not be allocated accommodation in Kent nearer his son.
The county, which has several ports, including Dover, was already full of asylum seekers and could not house him.
The judge said he could not stay with the wife of his child now as their relationship had broken down.
He had been provided with accommodation at Cosham 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.
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 it was argued on MG’s behalf that he and his former partner, before and after the breakdown of their own relationship, 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.
It had been argued he smoked 35 cigarettes a day and if he cut down he would have the ability to pay the fares.
Dismissing the argument, the judge said the evidence was MG was addicted to cigarettes and had already cut down on other essential needs, particularly food, to support it.