Response to challenging the ISE 343

Response to challenging the ISE 343

19-04-2013
My wifes reporting restrictions were removed until July.  My wife’s application will be expediated and Eddy Montgomery to call me on Monday.

After my chat on the phone with Ollie, I did feel the need to highlight possible consequences of illegal detentions of family members of EU Citizens (regardless of whether my Directive 2004/38/EC claim is valid, my wife is still afforded the right to reside and work by having dependant British children.)  I therefore felt it wise to note the following Case law:

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Subject: Re: FAO Rob Whiteman/Nadhim Zahawi – ISE 343 – Notice of Detaining my wife??? – REALLY?
From: Me @ Mine.com
To: [email protected]; [email protected]; Cc: [email protected]; [email protected]; [email protected];
Date: Friday, 19 April 2013, 15:32

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My Name My Address

Date: As Emailed

FAO: Rob Whiteman / Nadhim Zahawi (MP) CC: NWEuro9

* MP Ref: x * Home Office Ref: (Its a long reference) – x

Dear Mr Whiteman / Nadhim Zahawi,

After speaking with Ollie on Rob’s team today, (which I have to point out I have no faults with.  This gent was very polite, whilst on recollection I perhaps was a little rude, but with the obvious stress this whole case is putting us under…)

I do however, further to my previous email, feel the need to highlight the following relevant case law to UKBA / The Home Office: Raducan & Anor -v- MJELR & Ors [2011] IEHC 224 http://courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/4f9d0fcb1a442217802578b8005ae84f

Whilst this directly relates to Directive 2004/38/EC I am aware that the whole case will also be reflected in any decision to detain my wife in our case.

I thank Ollie for taking the time for myself to go over my issues again, the half-hour telephone call was helpful to know that whilst Ollie isn’t dealing with the case himself he is aware of it, and therefore SOMETHING must be happening with it…

Once again, I await your responses…

Yours

Mr W B P
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After this I prepared myself for a wait.  But I was later shocked to receive the following email to my inbox:

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From: Whiteman Rob (Submissions) <[email protected]> To: Me @ Mine .com; Whiteman Rob (Submissions) <[email protected]>; “[email protected]” <[email protected]> Cc: UKBA Customer Complaints <[email protected]>; EREC <[email protected]>; Liverpool Euro Passport Returns <[email protected]> Sent: Friday, 19 April 2013, 17:32 Subject: RE: FAO Rob Whiteman/Nadhim Zahawi – ISE 343 – Notice of Detaining my wife??? – REALLY? ——-

Dear Mr P. Thank you for your emails to Rob Whiteman and others. When we spoke earlier I said that I would try to respond to you today. I have obtained some information from the team in the West Midlands that issued the ISE343 document – I thought that this was likely to be the most pressing issue for you so wanted to get a response to you in writing before the weekend ahead of a more comprehensive reply on the other issues you’ve raised next week.   The ISE343 is an automatically generated document that is sent to individuals who do not report as required and have not alerted the Home Office in advance that they can’t attend. Your wife was clearly aware of the requirement to report as she had been doing so compliantly for many months and had called ahead of the previous reporting event (in March) to advise that she was too ill to attend. Your wife’s IS151a and IS96 forms make it clear that she is technically an overstayer and liable to arrest and detention at any time if she fails to comply with the terms of her temporary release – the ISE343 simply reminds her of that and the team was correct to issue it in the circumstances. As I’m sure you can imagine the vast majority of people who report don’t feel that they should have to, and without making any comment on the relative merits of your wife’s application or status (as I am not privy to the details or familiar with caselaw) it is important that she complies with her reporting restrictions while it is required of her. Whatever you think of how her applications have been handled being unco-operative with what is an established (and legal) process won’t improve the situation and I would advise your wife to recommence reporting.

I have only become familiar with this case this afternoon and we aren’t yet in a position to respond in detail to all the other points you have made in your communications on this – I hope that we will be able to do so next week. As I said on the phone sending us additional emails each day actually serves to slow our response down as we have to revisit our proposed response to make sure it covers all the new issues raised. Therefore I would politely ask you to give us the opportunity to consider the points you’ve raised and respond to you accordingly before sending us further complaints.

Finally I have arranged for three things to happen next week:

1.    Your wife’s outstanding application will be expedited and considered by a caseworker early next week. Depending on what information she has already provided and what is missing that caseworker may contact you to request some additional evidence. Please do what you can to co-operate with this process as I think that dealing with this application may be a positive step towards the resolving the situation. 2.    Eddy Montgomery, who is the senior civil servant with overall responsibility for the team that send you the ISE343 (and indeed for all enforcement operations in the North of England and the Midlands) will telephone you on Monday to discuss further. He is much more senior and much more knowledgeable than me and will be better placed to explain. If you let us know a good number to reach you on I’ll pass that on to Eddy. 3.    I advised the team in Solihull of your assertion that your wife would not be able to report on 24 April. We would not normally accept childcare arrangements as a reason not to report but in the circumstances we will suspend reporting until 11 July 2013. This is to allow the appropriate consideration of your wife’s outstanding application and to acknowledge her consistent and reliable reporting since 2010. We will shortly send you a new IS96 with the next reporting date as 11 July 2013.

I appreciate that this doesn’t touch on many of the issues you’ve raised but I wanted to at least respond and address the immediate issues and reassure you again that your wife’s case is being looked at quickly and by the relevant senior people.

Have a good weekend,

Ollie

Ollie Carlisle Private Secretary to the Director General of Operational Systems Management Home Office
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So this is where it became a little… hmmm… I understand that Ollie was trying to give some “advice”, however his advice also highlighted key words…

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Subject: Re: FAO Rob Whiteman/Nadhim Zahawi – ISE 343 – Notice of Detaining my wife??? – REALLY? From: me @ mine.com To: [email protected]; [email protected]; Cc: [email protected]; [email protected]; [email protected]; Date: Friday, 19 April 2013, 23:00 Date: As Emailed

Name and Address

FAO: Rob Whiteman / Nadhim Zahawi (MP) CC: NWEuro8

 

MP Ref: x Home Office Ref: (Its a long reference) – x
Dear Mr Whiteman / Nadhim Zahawi,

 

Ollie,

 

In response to your email today, Thank you. Let me begin with: My telephone number is 07xxxx, I have an appointment with my Physiotherapist on Monday Morning until 2pm, so I wiill not be available during this.

 

You mention IS151a and the fact that my wife is “technically an overstayer”. Whilst I understand your statement that you are not aware of all case law, I am well aware of plenty of the case law. I am specifically aware of ECJ case C-459/99 MRAX v Etat Belge [2002] Particularly part 2 of the ruling:

  1. On a proper construction of Article 4 of Directive 68/360 and Article 6 of Directive 73/148, a Member State is not permitted to refuse issue of a residence permit and to issue an expulsion order against a third country national who is able to furnish proof of his identity and of his marriage to a national of a Member State on the sole ground that he has entered the territory of the Member State concerned unlawfully.

 

Whilst I understand my wifes Zambrano application is based upon a Derivative right obtained via TFEU 20, the fact remains, this case law will still have a significant bearing on my wifes leave to remain in the country. Specifically: My wifes immigration history cannot be taken into account for the process of her application for (and I reiterate) confirmation of her right to reside and work within the United Kingdom.

Since March 2011 my wife has attempted to discuss her case with the team in West Midlands. They have outright refused to do so.

Your wife’s IS151a and IS96 forms make it clear that she is technically an overstayer and liable to arrest and detention at any time if she fails to comply with the terms of her temporary release – the ISE343 simply reminds her of that and the team was correct to issue it in the circumstances.

As I said on the telephone to you today: I am aware that an IS96 reporting condition is an ALTERNATIVE to DETENTION. I am also aware that DETENTION is ONLY POSSIBLE when removal is pending. As far as I am aware, removal instruction have not been issued to my wife. If such removal instructions have indeed been issued, then we would like a copy of such instructions, and then we will file our judicial review claim on such. As I outlined on the telephone to yourself today. My wife, (as her right to reside falls from the EEA regulations para. 15(a)), is not a Person Subject to Immigration Control. – The same is also true as my wife is also the spouse of an EEA national.

As I’m sure you can imagine the vast majority of people who report don’t feel that they should have to, and without making any comment on the relative merits of your wife’s application or status (as I am not privy to the details or familiar with caselaw) it is important that she complies with her reporting restrictions while it is required of her. Whatever you think of how her applications have been handled being unco-operative with what is an established (and legal) process won’t improve the situation and I would advise your wife to recommence reporting.

Whilst I understand that you are trying to give some helpful advice I would like to reiterate once again:

1) It is not required of her for two reasons, firstly she is the spouse of an EEA National. I have worked in Finland. Regardless of the UK’s interpretation of case law, I remain fixed that my wifes protection under Directive 2004/38/EC still remains!

2) LEGAL: It isnt a legal process. Case C-34/09 does not allow a member-state to impose restrictions upon that persons right to reside. Such restrictions go onto remove the genuine enjoyment of the EU citizen’s rights. (I’ll touch on this more below).

I have only become familiar with this case this afternoon and we aren’t yet in a position to respond in detail to all the other points you have made in your communications on this – I hope that we will be able to do so next week. As I said on the phone sending us additional emails each day actually serves to slow our response down as we have to revisit our proposed response to make sure it covers all the new issues raised. Therefore I would politely ask you to give us the opportunity to consider the points you’ve raised and respond to you accordingly before sending us further complaints.

I understand that further emails may slow the whole process down. However, the fact remains that statements are made, and statements require further commenting on. I will, however, ATTEMPT to withhold further complaints. However, as the large amount of illegal actions by UKBA come to light (I am rather shocked that our solicitor did not highlight the relevant legal process for obtaining finger prints), Such things need bringing to light and querying.

Finally I have arranged for three things to happen next week:

1.Your wife’s outstanding application will be expedited and considered by a caseworker early next week. Depending on what information she has already provided and what is missing that caseworker may contact you to request some additional evidence. Please do what you can to co-operate with this process as I think that dealing with this application may be a positive step towards the resolving the situation.

As I have made clear, I am more than willing to supply whatever evidence is required. I am certain whatever evidence should be required to prove that my wife of a 9 month old baby and 3 year old British Children is the primary carer, for whom are dependant on her in many ways. (Note the ruling in C-34/09 upon whom he is dependant)

2.Eddy Montgomery, who is the senior civil servant with overall responsibility for the team that send you the ISE343 (and indeed for all enforcement operations in the North of England and the Midlands) will telephone you on Monday to discuss further. He is much more senior and much more knowledgeable than me and will be better placed to explain. If you let us know a good number to reach you on I’ll pass that on to Eddy.

I would like that. My mobile number (as mentioned above) is xxx. However, I will be unavailable until after 2pm.

 

3.I advised the team in Solihull of your assertion that your wife would not be able to report on 24 April. We would not normally accept childcare arrangements as a reason not to report but in the circumstances we will suspend reporting until 11 July 2013. This is to allow the appropriate consideration of your wife’s outstanding application and to acknowledge her consistent and reliable reporting since 2010. We will shortly send you a new IS96 with the next reporting date as 11 July 2013.

Once Again, As mentioned on the telephone: Section 55 of the Act, means that a childs care and welfare must be THE primary consideration in all matters which involve a child. Are you telling me that childcare arrangements do not fall within the UKBA obligations under Sec. 55?

As I explained previously. My wife is unable to report due to our daughter attending nursery. Infact when my wife called the centre in March she was told that she would need to attend the following month… She did infact inform them that she would be unable to attend as our daughter had an Easter Bonnet parade at nursery. In addition to this, on numerous emails, I have highlighted that my wife is the Primary Carer for our daughter. It is my wife who takes our daughter to school and collects her. It is impossible for my wife to get from Stratford, to Solihull and back to collect our daughter… This is true EVEN IF DRIVING.

Are you stating that a child’s education is not a primary consideration as to their welfare? If so, I also draw attention to UN Rights of the Child. Particularly Article’s 28 and 29.

http://crae.org.uk/rights/uncrc.html

Article 28
  • Every child has the right to free primary education.

  • Governments must encourage secondary education, making it available and accessible to every child and young person

  • Access to higher education must be based on the ability to benefit from it.

  • Governments must make sure children and young people get information about education.

  • Governments must encourage regular school attendance.

  • Governments must make sure that school discipline protects the dignity of children and young people, and is in line with their rights in this Convention – so no hitting or humiliation.

Article 29
  • Governments agree that the aim of education is to help the fullest possible growth of the child’s or young person’s personality, talents and mental and physical abilities.

  • Education must help children and young people:

    – respect human rights – respect their parents – respect their and others’ culture, language and values – have self-respect respect the environment.

Surely, UKBA / The Home Office must agree that this case is clear. A childs education should not suffer due to “reporting restrictions”. We even mentioned about my wife reporting to the local police station – This was discussed during the rather lengthy telephone call which took place with Richard. I am well aware that this is a possibility. We have no reason to be unco-operative. However, I am well aware of processes in place. I am also aware that my wife has rights within the UK. These rights include the right to WORK and RESIDE FREELY within the UK.

I appreciate that this doesn’t touch on many of the issues you’ve raised but I wanted to at least respond and address the immediate issues and reassure you again that your wife’s case is being looked at quickly and by the relevant senior people.

Whilst I understand that you have done your best here, for which I thank you. The fact remains, the law is the law. The restrictions imposed upon my wife are illegal (despite what you, or your colleagues within the UKBA state). The Immigration Act 1971 does not apply to my wife. My wifes right to reside within the UK comes from the EEA Regulations 2006. I attach a copy of said regulations in an “updated” form to this email for your reference… At no point in these regulations does it state that a reporting restriction can be imposed upon any person subject to these regulations. Obviously, if you know otherwise, then please: direct me to the relevant legislation that states so.

Your’s
Mr W B P

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