; E 130 Reasons Statement
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E 130 Reasons Statement


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									                                                        Appeal Number : AS/09/08/20115
Address:                                                UKBA Ref.        : 03/12/00056
                                                        Appellant’s Ref. :

                       IMMIGRATION AND ASYLUM ACT 1999
                   (SOCIAL ENTITLEMENT CHAMBER) RULES 2008

             Tribunal Judge      Mr David Saunders
             Respondent          Secretary of State

                              STATEMENT OF REASONS

1.      This Statement of Reasons is made in accordance with Rule 34(1) of the
        Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules
        2008 (“the Rules”), and gives reasons for the decision given on Monday the 24th
        day of August 2009 dismissing the above mentioned appeal.

2.      The appellant, a 26 year old citizen of Iran, appeals against the decision of the
        Secretary of State who, on 28 July 2009, decided to discontinue his support
        under Section 4 of the Immigration and Asylum Act 1999 (“the 1999 Act”) on the
        grounds that the appellant is not destitute within the meaning of Regulation
        3(1)(a) of the Immigration and Asylum (Provision of Accommodation to Failed
        Asylum Seekers) Regulations 2005 (“the 2005 Regulations”).

3.      At the hearing before me, the appellant appeared in person and was
        unrepresented. He gave his evidence in Kurdish Sorani and was assisted by
        an interpreter, Ms Saeed. The respondent was unrepresented at the hearing.

4.      It is not disputed between the parties that the appellant is a failed asylum
        seeker whose appeal rights are exhausted. He made an application for Section
        95 support on 1 December 2003. This application was refused. He then made a
        further application on 23 August 2007. This was again refused on 14 April 2008.
        On 19 June 2008, the appellant made an application for Section 4 support on
        the grounds that he was destitute and that he had made further representations
        in relation to a fresh claim for asylum. This was granted to him on 20 June
        2008. He has been in receipt of Section 4 support ever since.

5.      The Secretary of State reviewed the appellant’s continuing entitlement to such
        support and formed the view that the appellant was no longer destitute. He,

Form E 130 (04/07)
        therefore, discontinued support on 28 July 2009. The appellant appeals that

6.      Section 4(2) of the 1999 Act as amended by Section 49 of the Nationality,
        Immigration and Asylum Act 2002 (the 2002 Act) allows the Secretary of State
        to provide, or arrange for the provision of, facilities for the accommodation of a
        person and his dependants if –

                 (a) he was (but is no longer) an asylum seeker, and

                 (b) his claim for asylum was rejected.

7.      Section 4(5) of the 1999 Act (as amended by Section 10 of the Asylum and
        Immigration (Treatment of Claimants, etc.) Act 2004 (the 2004 Act) allows the
        Secretary of State to make regulations specifying criteria to be used in
        determining –

              (a) whether or not to provide accommodation, or arrange for the provision
                  of accommodation, for a person under this section;

              (b) whether or not to continue to provide accommodation, or arrange for
                  the provision of accommodation, for a person under this section.

8.      The criteria to be used in determining eligibility for, and provision of
        accommodation to a failed asylum-seeker under Section 4 are set out in
        Regulation 3 of the 2005 Regulations. These came into force on 31 March

9.      Regulation 3 states as follows:

         (1) …..the criteria to be used in determining the matters referred to in
             paragraphs (a) and (b) of section 4(5) of the 1999 Act in respect of a
             person falling within section 4(2) or (3) of that Act are-

              (a) that he appears to the Secretary of State to be destitute, and

              (b) that one or more of the conditions set out in paragraph (2) are satisfied
                  in relation to him.

10.     The respondent says, in his discontinuation letter, that his investigations have
        revealed that the appellant is no longer destitute. First, it is claimed that the
        appellant is in receipt of Job Seekers Allowance from 23 October 2008 until
        18 November 2008 where he received £60.50 per week. Between 19 November
        2008 and 16 December 2008, the appellant was receiving Work Based
        Learning Allowance through the Job Centre and receiving £70.50 per week. As
        a result of enquiries made following receipt of that information, the respondent
        obtained copies of the appellant’s bank statements relating to his account with
        Barclays Bank Plc. I am told that these showed total receipts of £4,523.94
        between 19 June 2008 and 15 June 2009. This sum consists of £489.44 by way
        of Job Seekers Allowance and £4,34.50 in cash. In addition to this, the bank
        statement reveals that the appellant was making payments to Halifax car
        insurance between 1 July 2008 and 28 January 2009 and then payments to
        Esure motor insurance between 24 February 2009 and 17 June 2009 - the last
        date of the bank statements that were obtained. It is suspected that the
        appellant was in the ownership of a motor car.

Form E 130 (04/07)
11.     The respondent notes that the appellant had the sum of £958.94 in his bank
        account at the time when he was originally granted Section 4 support. It is
        claimed that this information shows that the appellant is no longer (and has
        never been) destitute. It is considered that it is likely that the appellant remains
        in employment and that he has failed to disclose all the information required
        and that has led to him wrongly being granted support. As a result, a decision
        has been made to discontinue such support effective as from 14 August 2009.

12.     In support of these contentions, I have been provided with copies of the
        appellant’s bank statements in relation to his account with Barclays Bank Plc for
        the period from 20 June 2008 to 27 July 2009. These accounts show a balance
        as at that date of £234.49. I have also received a letter from Stockton Job
        Centre Plus dated 10 June 2009. This confirms that the appellant was in receipt
        of Job Seekers Allowance and then Work Based Learning Allowance for the
        period set out in the decision letter under appeal.

13.     The appellant, on the other hand, says in his grounds of appeal that he
        mistakenly claimed for Job Seekers Allowance and that, as soon as he realised
        that he was ineligible, discontinued his claim. He says that he is unable to work
        as he has significant health problems. I have been provided with a number of
        letters to include reports from his Consultant Neurosurgeon (and General
        Practitioner) which show that the appellant has spinal cord compression and
        this leaves him with urinary difficulties. As a result of this, he claims to be
        unable to work and that he does not have a car.

14.     At the hearing before me, the appellant gave oral evidence as to his current
        circumstances and the allegations that have been made by the respondent. He
        accepts that the position is as set out in his bank account. He cannot dispute
        this. However, he sought to explain that the majority of the monies found in his
        account came from a friend (unnamed) who was unwilling to appear at the
        Tribunal in order to give evidence on his behalf. He repeats what is said in his
        grounds of appeal - in terms of the fact that he claimed Job Seekers Allowance
        through having a National Insurance number and was told this was appropriate.
        However, he subsequently discontinued that claim when he discovered that it
        was unlawful. He disputes the Job Centre’s account of his having discontinued
        because of his having found work. He accepts that he did have a car - despite
        what is claimed in his grounds of appeal. He purchased this for £575 “about
        eighteen months ago” and sold it (for £900) about a month ago. He had no
        documentation to confirm these transactions. He also claimed that the car
        insurance was now cancelled. A driving test application which was made as
        recently as July 2009 related to his friend and not himself. However, he did say
        that he had “failed” a driving theory test on three occasions which contradicted
        this. He claims that he is a full time student - showing me his card and that due
        to this (and his medical problems) it is impossible for him to be in work. He tells
        me that he is destitute and homeless.

15.     I have considered all the evidence that is before me, to include all the
        documents contained in the Secretary of State’s bundle of evidence, the
        documents produced by the appellant and his own oral evidence in the matter.
        The appellant will only remain eligible for Section 4 support if he continues to
        satisfy the criteria set out in Regulation 3 of the 2005 Regulations that I have
        set out above. This is a two-stage test. He has to both demonstrate that he
        continues to be destitute and that one or more of the conditions contained in
        Regulation 3(2) relate to him. The burden of proof, however, falls upon the
        respondent to prove that he no longer qualifies upon the balance of

Form E 130 (04/07)
16.     The only matter that I have to consider is as to whether or not the appellant
        remains destitute – it not having been raised that the appellant no longer meets
        the requirements of Regulation 3(2) of the 2005 Regulations. The appellant’s
        oral evidence simply confirms that the investigation carried out by the
        respondent in terms of the financial information that he has adduced is entirely
        accurate. First, it can be shown that the appellant did not declare the sum of
        £958.94 which was contained in his Barclays bank account at the time when he
        applied for Section 4 support. Secondly, he must have known that he had a
        continuing obligation to report any changes in his circumstances. He freely
        confesses that he made a “mistake” in not disclosing his claim for Job Seekers
        Allowance. I have noted that his bank account show deposits of cash which are
        far in excess of the usual resources to be found with someone who is destitute.
        I note, for example, that he held £2,705.53 in his account as recently as
        22 June 2009. Even as at 13 July 2009 this had only reduced to £1,545.01.
        There are notable entries in relation to two recent payments of a DSA theory
        test and ongoing direct debit (paid monthly) in favour of Esure motor insurance.
        Although the appellant claims that this was money (and transactions) relating to
        a friend, there is no evidence of such a person either by way of attendance at
        the hearing or in the form of a Witness Statement supporting the appellant’s
        account of events. In addition, the appellant freely accepts that he had
        ownership of a motorcar. Section 4 support would not have supported the
        purchase and cost of running this vehicle. His oral evidence in relation to the
        car was somewhat confusing. He claims that the insurance has been cancelled
        - but there is no evidence of this. The most recent payment was made on
        19 July 2009. At the same time there are recent applications for the theory test.
        These are indicative of someone who continues to retain a motorcar particularly
        as there was no evidence of its purchase or sale. I find the appellant’s account
        less than credible - in the absence of any contrary evidence - and consider that
        the respondent was correct in making the decision that he did.

17.     In the circumstances, I find (for the reasons that I have set out above) that the
        appellant is no longer destitute and that it is in doubt that he was ever destitute
        within the meaning of Regulation 3(1)(a) of the 2005 Act as of the date he was
        granted support. It is open to the appellant to make a renewed application for
        Section 4 support should he be able to provide evidence that he no longer has
        adequate accommodation and that his essential living needs cannot be met. I,
        therefore, dismiss this appeal.

Signed ………………………………………                                Date ……………………………
Tribunal Judge, Asylum Support

Form E 130 (04/07)

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