The family of a wheel-chair bound overseas student is, after its own successful struggle, fighting the government’s institutionalised discrimination against disabled ‘foreign’ students.
On 9 September 2005, an intelligent severely disabled 19-year old wheel-chair bound overseas student, Nirav Shah, and his parents won a year-long battle to overturn two key decisions by UK immigration officials. The first was to prohibit his parents from coming to England to look after him as his carers. The second was to prohibit him from taking up his confirmed place to read Economics at Loughborough University. Whilst Nirav and his parents are now settling into university life at Loughborough, they are concerned that a legal precedent has not been achieved from which other students may benefit. They are therefore keen to link up with concerned organisations who might be able to fight for the wider issues brought forward by Nirav’s experiences.
This is the story of Nirav’s fight and the issues that are raised by it:
In August 2005, Nirav, a Kenyan citizen, lodged an application to take the British High Commission in Nairobi to the High Court in England for discriminating against him on the basis of his disability. Nirav argued that he was unjustly refused entry to the UK by immigration officials who did not act in accordance with UK immigration rules and who violated his right not to be discriminated against in accessing education (Article 14 of European Convention of Human Rights and Human Rights Act 1998). One month after Nirav and his parents had filed the application for judicial review, the family received a letter stating that the secretary of state had reconsidered the decision and had decided to grant Nirav and his parents the necessary visas.
Nirav’s student visa application was perhaps one of the first of its kind for a UK university. This is because Nirav was born with muscular dystrophy, a permanent condition causing severe muscular weakness making him dependent on his parents twenty-four hours a day for almost all his basic tasks including dressing, bathing, going to the toilet, brushing his teeth, lifting several times a day, turning in his sleep etc. Due to his disability, Nirav’s application for a three-year student visa should have been considered by the British High Commission on exceptional, compassionate and compelling grounds because Nirav needs his parents as his carers to come with him for the duration of his degree.
His parents are the only people who have looked after him since birth and private agency care in his case was found to have serious problems of reliability and continuity. This was made clear to the British High Commission, as was the fact that Nirav and his family do not require any financial support from the British government (and Nirav will actually be paying overseas student fees). Despite these facts, Nirav’s parents’ visa application was refused in November 2004 and then, Nirav’s student visa was also refused in July 2005 on the grounds that there was no care plan in place for him in the UK!
Since the November 2004 refusal, the family contested the treatment of Nirav’s case through official channels to no avail. The fight against the British High Commission culminated in an application for judicial review in August 2005. Concerned about getting Nirav to university in September 2005 and about the costs of judicial review, the family simultaneously launched a ‘Support Nirav’ public campaign. Crucial support was received from various organisations/people including the National Union of Students, Loughborough Students’ Union, the Muscular Dystrophy Campaign and Jeremy Corbyn MP. The case received wide media coverage in Kenya. And an online petition launched at www.supportnirav.co.uk which attained more than 5,000 signatures in two and a half weeks, was brought to the attention of Tony McNulty, the Immigration Minister. The family believe that it was this public campaign, supported by so many people, that enabled Nirav’s case to be brought to the attention of those with authority within the Home Office so as to override the seriously flawed decisions of the immigration officials in Nairobi.
Whilst the importance and success of campaigning is a positive outcome of Nirav’s experiences, the case raises serious unresolved questions about:
- How incorrect procedures are followed by immigration officials. In these exceptional circumstances, Nirav’s case should have been sent to the Home Office in the UK for special consideration. Why did this not happen?
- How immigration officials are prepared to misconstrue cases submitted to them. The British High Commission was presented with a significant body of evidence (including from Loughborough University Disability Team and several people with muscular dystrophy in the UK) demonstrating (a) why Nirav would need his parents to accompany him, and (b) why private agency care would be inappropriate in his case. Nevertheless, the visa was refused on the grounds that the family wanted to accompany Nirav so as to only avoid incurring the costs of private care. Why was all the supporting evidence ignored?
- The failure of the system to respond to challenges to decisions of lower level immigration officials. Nirav’s lawyer at Wesley Gryk Solicitors wrote at least twenty letters over nine months to the Entry Clearance Officers in Nairobi, Deputy High Commissioner, UK Visas, Immigration Minister and Minister for Africa pointing out the misrepresentations of the case by the immigration officials, clarifying the case, seeking a review of the case, or asking for the case to be passed to the Home Office as the decision could be overturned by the secretary of state. The responses from the Nairobi office simply maintained that there was no reason to overturn the decision and the responses from the UK either directed the family to a different department or merely stated that ‘enquiries with Nairobi are still continuing’. Why is the authority of lowest level immigration officials so difficult to challenge? And why is the role of specialised lawyers on immigration in practice not recognised?
- How immigration officials humiliated and discriminated against a disabled young man. When Nirav and his father were first called to the British High Commission on 30 September 2004 for what they thought was an interview, they were forced to sign a withdrawal from interview form, and threatened that their application would otherwise be immediately refused. At a later stage an Entry Clearance Officer even advised that ‘Nirav needs to realise that he is not always going to be able to do what able-bodied people or his friends can do’. Who is being employed in these posts and how are they trained?
- There is no protection in the UK for international students with disability. Nirav’s fight was to be treated fairly in accessing quality higher education that is not available to him in his home country, Kenya, where there is very limited disability access and facilities. Whilst further regulations protecting disabled citizens are being implemented in the UK, Nirav’s case shows the way in which the immigration system is set up to discourage and prevent disabled overseas students from gaining internationally recognised higher education. Would it help if special rules and guidance are given to immigration officials dealing with severely disabled people?
Support for Nirav from the NUS
‘NUS Students With disabilities will continue to campaign and support Nirav and his family for the call that all International students to be treated fairly and to be considered on their ability to study not their disability. NUS believes that students with disabilities face barriers to equality in all aspects of their lives. Lack of access denies disabled people opportunities in education, employment, leisure and even voting in local and general elections. These are activities that many take for granted. Even when it comes to just choosing a course disabled people face barriers. They make their choices based on not their ability but on accessibility. The case of Nirav Shah proves this. The NUS Students With Disabilities Campaign believes that going onto further and higher education is key for disabled people to get skills they need to fulfill their ambitions. Accessible and inclusive educational environments are fundamental to this and to be on course for a fair future ALL students must be able to get the education that they are entitled to, no matter if they are home students or International students. If students with disabilities still feel this type of discrimination like Nirav has how can we truly say we are on course for a fair future that embraces widening participation?’ Sian Davies, disability campaign officer, NUS.
Support for Nirav from the Muscular Dystrophy Campaign
‘The Muscular Dystrophy Campaign was pleased to support the campaign to allow Nirav to study in the UK and to be cared for by his parents and are glad that he is now at Loughborough and working on his degree. However we are concerned that this situation does not arise in the future and will be working to see that the government puts measures in place to ensure that future students from overseas do not face the difficulties which Nirav and his family faced.’ Dave Ward, Campaigns Officer, Muscular Dystrophy Campaign.