The Home Office is trying to force two British-born children with lifelong and complex physical and mental disabilities out of Britain in a move which experts say breaches UK and UN law.
Doctors and social care professionals agree that leaving the UK will put the young children, one of whom was born with only half a brain, at significant risk of ill-treatment, educational neglect and physical, emotional and sexual abuse.
The children, aged five and six years old, are currently thriving and making good progress under the care of specialist health services in the UK. But the Home Office has said the children, who only speak English, must move to Pakistan, a country they have never visited where multiple experts believe they are highly likely to suffer irreversible harm and suffering.
The children’s father, who has asked to remain anonymous, came to the UK 11 years ago to complete his masters degree. As part of his application for indefinite leave to remain in 2016, he was interviewed by a Home Office caseworker, who found all his evidence credible and said he should be believed.
Nevertheless, when the Home Office decision was returned, the father’s application was refused on the basis that his answers in a Home Office interview lacked credibility, despite the case officer’s own notes stating that they did find him credible. The Home Office also said the father’s earnings were “false and fabricated”, despite having previously assessed and approved them.
In addition, the Home Office said the father had failed to make them aware of his children’s health problems. Not only is it the statutory responsibility of the Home Office to ensure its decisions are in the best interests of any children involved but the father’s barrister submitted evidence to the court proving the evidence was provided with his original application.
The refusal is unlawful and irrational,” said barrister Parminder Saini, in his skeleton argument as the family’s judicial review. “It is crystal clear that the Home Office caseworker had not put these matters to the father at all prior to drafting its refusal letter.”
“When the father appealed the refusal, the Home Office began dropping its objections: firstly, they abandoned their claim that he was not earning enough money to satisfy the immigration rules.
Then, just hours before the appeal was to be heard, the Home Office were forced to admit they had concealed from the court the fact their own interviewing officer said the father should be believed. They continue to insist, however, that the family must leave the UK.
Judge Perkins of the upper tribunal of the immigration and asylum chamber agreed there should be a judicial review into the Home Office’s decision. But the Home Office promised to review the case within 90 days of the decision, by 12 July 2018. Since the deadline passed, the Home Office has repeatedly asked the father for information he has given many times before. He has been sent the same questionnaire four times. “It’s like they’re trying to starve us out,” he said. “They just take us round in endless circles but I can’t afford any more legal help to take them back to court to uphold the judge’s decision for them to review my case.”
In his judgement, Perkins criticised the Home Office for attempting to force the father to leave the UK without addressing the health issues of his children. “[It] is not good enough in a case involving a child with severe developmental problems, characterised fairly if somewhat roughly as being born with only half a brain,” he said.
The Home Office had claimed that the father hadn’t sent any evidence of his children’s disabilities to them. This was proved to be untrue in a Home Office document the father obtained through a subject access request, which confirmed he had sent documents detailing his children’s acute needs.
Saini said the Home Office’s arguments were “vague, ambiguous and perverse” and reveal “classic public law errors”.
“Following a credible interview, it is hard to understand how the Home Office could rationally reverse [then-home secretary Amber Rudd’s] decision and conclude otherwise without any forewarning to the father, and without taking [the] previous credible view of him into account,” said Saini. “The father’s employment history is flawless and unchallenged.”
The children’s school have confirmed that the family’s financial hardship has already caused the children to significantly regress, both physically and psychologically. One child has already regressed to the point of needing extra support in classes.
“I wish the Home Office could be made aware of the torment and sufferings an applicant goes through as a result of an unlawful and unreasonable decision and its devastating impact especially on his or her children,” said the father.
“I certainly don’t want anyone to experience the pain of seeing their children in pain but I wish if they hypothetically imagine just for a second the helplessness of [a] father seeing his children struggling for food. I wish the caseworker could spend an hour with me so I can talk him through the terrible time my children had gone through and the lifetime impact it will leave on their lives,” he said.
An independent social worker who assessed the children found that forcing them to leave the UK would be a violation of the government’s own statutory duty to safeguard and promote the welfare of children under the Local Authority Social Services Act 1970, issued jointly by the Home Office, the Department for Education and Employment, and the Department of Health.
According to a 72-page report to the Home Office by Charles Musendo, the social worker commissioned by the family, the government would also be in breach of its responsibilities under the UN convention on the rights of the child, the Borders, Citizenship and Immigration Act 2009, the Children and Families Act 2014, the Children Act 1989 and 2004, and Every Child Matters: Change for Children (2009).
A Home Office spokesperson said: “All UK visa applications are considered on their individual merits and in line with UK immigration rules.
“The onus is on the applicant to demonstrate that they satisfy the immigration rules.”