Free Movement Wins Jamaican Homosexual’s Case

CY-at-demo-e1380810719214Secretary of State for the Home Department (SSHD) v JR (Jamaica), R (on the application of) [2014] EWCA Civ 477 (16 April 2014)

This case tells yet another extraordinary tale of winning against impossible odds. The hearing took place on April Fools’ Day and the Court of Appeal (Kay and Lewison LJJ, Sir Stanley Burnton) unanimously dismissed the SSHD’s appeal. And, of course, instructed by the Lambeth Law Centre, Colin Yeo saved the day for JR. But the court explained at para 17 that this case turned “on its specific and quite unusual facts” and “should not be seen as providing more general succour to others convicted of grave crimes.”

Context

JR is a 29-year old Jamaican homosexual who arrived in the UK at age 15 in December 2000 on a visitor’s visa. Rather than leaving the UK after an extension of his visit visa was refused, within a year of his arrival JR ended up getting involved in a homicide incident. He was convicted and sentenced to serve at least eight years and two months’ imprisonment and recommended for deportation. On appeal, JR’s sentence was reduced to six years and two months and the recommendation to deport him was set aside.

Yet, in 2009, on New Year’s Eve, the SSHD decided to deport him and his appeal against that decision on asylum grounds was dismissed in June 2010. However, in April 2012, for the first time, JR made a fresh claim for refugee and human rights protection because of his homosexuality. Subsequently, in mid-June 2012, he was released on licence after spending more than eleven years in custody. The SSHD refused to revoke the deportation decision and JR appealed to the First-tier Tribunal (FtT) which allowed his appeal on refugee and Article 3 ECHR grounds because it found that JR is homosexual. The Upper Tribunal (UT) also dismissed the SSHD’s appeal in August 2013. Sir Stanley Burnton subsequently granted the SSHD permission to appeal to the Court of Appeal.

The Court of Appeal

Kay LJ explained that the SSHD recognised that if JR is homosexual then returning him to Jamaica would breach Article 3. But his Lordship noted that because of the seriousness of JR’s offence, the SSHD issued a certificate (in relation to his asylum claim) by virtue of which he was presumed to be a danger to the UK’s community unless the presumption was rebutted. Because the UT upheld the FtT’s finding as regards JR’s homosexuality the presumption regarding his dangerousness was successfully rebutted.

The SSHD’s appeal in the instant court attacked two factual points that emerged from the proceedings below, namely whether JR really:

  • Is homosexual?
  • Succeeded in rebutting the presumption of dangerousness pursuant about dangerousness?

Since an appeal from the UT to the Court of Appeal lies only on a point of law, the SSHD argued that the UT failed to have regard to material considerations and also failed to give adequate reasons for determining that JR is homosexual and is not dangerous to the UK’s community. Centrally, Kay LJ observed that:

5. It is the conclusion on homosexuality that is pivotal. If it is unassailable, it is common ground that JR succeeds on Article 3. Section 72 [Serious criminal, Nationality Immigration and Asylum Act 2002] and dangerousness only arise in the context of refugee status. However, refugee status remains a relevant issue, even if JR succeeds in relation to Article 3, because it would bring with it additional benefits as regards the form and duration of the leave to remain which would ensue. Because Article 3 is freestanding and unencumbered by section 72 I shall take the course that was agreed in the UT and deal with it first.

The court recalled that JR’s homosexuality claim was missing from his earlier asylum application and appeal and so the SSHD rejected the claim as inconsistent. Similarly, the presentation officer in the FtT submitted that the claim was a last minute concoction to avoid being deported. Although the FtT was cautious about JR’s late claim that he was gay, after anxiously scrutinising all the evidence the FtT nevertheless decided that JR’s witnesses’ testimony was believable; he just wanted to live life freely as a gay man. His mother’s testimony was compelling. She said that JR did not raise being homosexual at an earlier juncture because of the extreme intolerance prevalent in Caribbean society about gay people. Both the UT and the UT judge refusing the SSHD permission to appeal thought that the FtT was right in allowing his appeal dually on refugee grounds and Article 3.

Of course, the SSHD still complained that JR’s disclosure as regards being gay was too late; it was and afterthought. But he overcame that point as his expert psychiatrist opined that he was open and honest about his sexuality and he had told his mother and others about his sexual preferences. He had understandably remained in the closet so as to avoid prejudice. Equally, any inconsistencies in JR’s story were “unremarkable” and Kay LJ put the rest in the following way:

7. … In my judgment, it simply cannot be said that the FtT omitted to take into account any material consideration or evidence in relation to this issue which, at this stage, had been agreed between the parties to be “the sole question to be addressed”: FtT, paragraph 11. I detect no inadequacy of reasoning. It is readily apparent why the FtT did not consider its lateness to be fatal to the assertion of homosexuality. The reasons why the Secretary of State lost on this issue are intelligible to any reader of the FtT’s determination which also makes it clear that all material considerations were addressed.

The FtT found JR’s mother’s evidence to be particularly weighty. Accordingly, it decided that “[n]o cogent reason exists to doubt her testimony”. On the other hand, the SSHD was aggrieved because of “a failure to take account of the mother’s reason to lie” and to provide clarification for accepting her evidence. But the Court of Appeal was not in the mood to tolerate nonsense on April Fools’ Day. It was highly unimpressed by such arguments. Kay LJ therefore held that:

9. In my judgment, these submissions are unsustainable. It is fanciful to suggest that this FtT – a two member panel, lawyer and lay person as is common in deportation cases – did not consider that a mother might have an incentive to lie in these circumstances.

Both mother and son were cross-examined and the FtT was alive to the delicate issues at play in the case; it therefore approached JR’s mother’s evidence critically. And it believed her. The instant court could not go behind these findings. In any event, in R (Jones) v FtT and Criminal Injuries Compensation Authority [2013] UKSC 19 at para 25, Lord Hope DPSC (as he then was) discouraged appellate courts from easily assuming that the tribunal misdirected itself merely “because not every step in its reasoning is fully set out in it” and this also reflected some thirty years’ settled jurisprudence. JR’s mother was “an impressive witness”. Her account was supported by expert evidence and in terms the SSHD wanted “reasons for reasons” which went “too far” and the UT was right not to find fault with the FtT’s decision and to dismiss the SSHD’s appeal as regards Article 3 (paras 10 – 11).

Proceedings in FtT concentrated on JR’s homosexuality and so section 72 of the 2002 Act was not considered. Because it found that JR is gay, his appeal was allowed on Article 3 and asylum grounds. However, the UT considered the presumption of dangerousness at length and concluded that JR had successfully rebutted it. Kay LJ felt that the SSHD’s arguments did not hit their target because it was unrealistic to suggest that the UT lost sight of the dangerousness of JR’s offence. For example, even The Parole Board opined that JR’s risk level was diminishing. It was “at a manageable level” because he stayed off drugs and did well in his courses and it was no longer necessary to keep him in custody. The UT weighed the expert’s report in the balance and he, i.e. Dr Oliver White, concluded that on the whole:

JR no longer constitutes a significant danger to the community of the United Kingdom.

JR’s remaining problems could be handled by way of effective management and, taking the negatives and the positives together, Kay LJ concluded by letting it be known that:

In my judgment it cannot be said that the UT committed a legal error in its assessment of all this material. It reached a conclusion which was open to it. It was neither perverse nor irrational. It was more than adequately reasoned. It is the FTT and the UT, as specialist tribunals, that have been entrusted by Parliament with jurisdiction in this sphere. In the absence of legal error on their part it is not for this court to intervene.

Comment

Jamaica is the not only the most homophobic place in the Americas but it is also one of the most homophobic places in the world and sex between men is punishable by ten years’ imprisonment. Had he been deported, JR would have gone back to the life of a Batty Boy (as gay men are pejoratively known in the Caribbean). Thus, over and above winning this case, Colin Yeo has also saved a young man’s life because Jamaica has the world’s highest murder rate too. Gay people are murdered there all the time and no one cares.

The paradox, of course, is that we generally associate the Caribbean with reggae beats and One Love.

Anyway, as one would expect, the Daily Mail is outraged by JR’s victory. But that is a bit weird because JR was involved in murdering Abdul from Somalia who refused to pay a £10 debt for cannabis. It is nice to see the Daily Mail campaign for the deceased foreigner’s rights but its legal analysis needs a lot of improvement:

The judge referred to Article Three in the Human Rights Act, which protects an individual from inhuman or degrading treatment.

Hmm … Article 3 in the Human Rights Act 1998! What utterly rubbish reporting yet again: almost as bad as the entry clearance staff in Mumbai; see, for example, Lord Justice Sedley’s not completely unrelated para 10 thoughts on “boiler-plate decision-making” in relation to “Article 8 of the Human Rights Act” when his Lordship was busy correcting history in Patel, Modha & Odedra v Entry Clearance Officer (Mumbai) [2010] ECWA Civ 17.

Big Respects to Colin Yeo, Nice One.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Appeals, Article 3, Asylum, Homophobia and tagged , , , . Bookmark the permalink.

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