QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF DAWKINS||(CLAIMANT)|
|IMMIGRATION APPEAL TRIBUNAL||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MISS ANDERSON appeared on behalf of the DEFENDANT
Crown Copyright ©
"The gay and lesbian community in Jamaica face extreme prejudice. Sexual acts in private between consenting male adults remain criminalised and punishable by imprisonment and hard labour."
"Those subjected to such abuse by the police are unwilling to report for fear of further retaliation."
"Taken account of the state sponsored bodies now in place and their activities in seeking to protect homosexuals and prosecute crimes against homosexuals."
"Just slapped my face and ears, nothing major."
"Against the context of the background and high levels of violence in Jamaica, whilst noting that he was attacked outside a gay night club, noting that he visited a gay night club at least three times a week until the date of his departure over a three-year period, I do not regard it as established to a reasonable degree of likelihood that he was attacked on account of his homosexuality."
"The appellant has not established that he left Jamaica owing to either societal or police or the authorities' discrimination or persecution of him as a homosexual."
"The appellant, on his own history and having taken into account the background evidence concerning the situation of homosexuals in Jamaica has not made out that there is a reasonable degree of likelihood of him suffering treatment amounting to persecution on account of his homosexuality. I accept that homosexuals constitute a social group for the purposes of the Refugee Convention.
"With regard to the human rights appeal, the standard of proof and the burden of proof are the same as that in the asylum appeal. On the above findings of fact I must dismiss the human rights appeal.
"Under Article 8 I have to determine the following separate questions:-
(i) Is there an interference with the right to respect for private life (which includes the right to physical and moral integrity) and family life?
(ii) Is that interference in accordance with the law?
(iii) Does that interference have legitimate aims?
(iv) Is the interference proportionate in a democratic society to the legitimate aim to be achieved?"
She went on to say:
"The core right in this instance under Article 8 is the appellant's private life, including his sexual life which deserves respect. His right is primarily not to be interfered with by the state in relation to what he does in private at home and to the efforts by the state to protect him from interference by others.
"It is submitted that the appellant's wish to form homosexual relationships is a right which is denied to him in Jamaica through a combination of societal prejudice and through the state of Jamaica law, which continues to make homosexuality illegal.
"Whilst it is correct that the law renders homosexuality illegal, adopting the reasoning in Jain CA Imm AR 76 and having regard to the appellant's clear evidence of his freedom to give his life without state or societal interference save for two incidents, one of which was two and a half years prior to his departure, and in respect of which it is far from clear that he was attacked owing to his homosexuality, given it was not repeated.
"I find that the rights of the appellant have not been denied and will not be by his return. I make this finding against the above finding that the relationship between the appellant and H is not of a sufficiently settled nature to be one which engages consideration of the appellant's rights under Article 8. He could be returned to Jamaica as a practising homosexual, and on the evidence of H he would not be accompanying the appellant. This would be due to H being in receipt of medical treatment in the United Kingdom for his condition of HIV positive and since their relationship has not been demonstrated to be other than a casual one.
"Noting the submissions in respect of the appellant being precluded from making any application under paragraph 295A of HC 395, an application for entry clearance for the purpose of returning with H, this does not fall within the ambit of Article 8. There is insufficient evidence before me to support the suggestion that there would be any subsisting relationship between them at that time.
"Insofar as there may be some interference, by virtue of the imposition of criminal sanctions causing the appellant to be secretive in the conduct of his homosexual relationships in Jamaica, I have had regard to the background evidence as to the lack of societal discrimination against homosexuals and the specific evidence of the appellant regarding his own homosexual activity and work as a trainee. There has not been shown a substantial degree of likelihood of the appellant's Article 8 rights will be interfered with should he continue his homosexual life in Jamaica. The appellant does not face a real risk of persecution and discrimination because of his sexuality in Jamaica on the above findings of fact."
"However, all causation and human rights questions are very fact sensitive and I consider that it would be wrong to pronounce on the matter in the abstract."
"No immigration policy considerations could justify the return of an individual to a country where his expression of his sexual desires with another adult in private is in any way inhibited."
On that submission, Schiemann LJ commented as follows:
"For my part I would not rule in such broad terms. This is a difficult area. Consider a proposed expulsion of a heterosexual man to a destination State which has and enforces laws which would inhibit that man from marrying or from founding a family of more than, say, one child - for instance laws which prohibit marriages between persons of different races or laws which place at a severe disadvantage those who have more than one child. These are not fanciful examples and I consider that we should develop the law on a case by case basis in the light of the facts of that case rather than rule on points in the abstract."
"To what extent does the Human Right Acts inhibit the United Kingdom from expelling asylum seekers who fall short of a well-founded fear of persecution?"
The Article of the convention under consideration in Ullah V Do is Article 5, but as the Court of Appeal recognised, their decision, under Article 9, would have wider implications.
"The act of removing either [Mr Ullah or Ms Do] will, if it takes place, be an act of a public authority done to a person within the jurisdiction. If the consequence of this act will be that the person will be removed to a country where his or her Article 9 rights will not be respected, will this infringe the Convention and the HRA? To this question Mr Blake suggested a qualified answer. 'Yes', provided that the restriction on religious freedom is severe. Mr Gill was not prepared to accept such a qualification. His primary submission was that all that Miss Do had to demonstrate was that there was 'real risk' that, if she were removed to Vietnam, her Article 9(1) rights would be infringed. "
"A removal decision to a country that does not respect Article 9 rights will not infringe the HRA where the nature of the interference with the right to practice religion that is anticipated in the receiving state falls short of Article 3 ill-treatment. It may be that this does not differ greatly, in effect, from holding that interference with the right to practice religion in such circumstances will not result in the engagement of the Convention unless the interference is 'flagrant'.
"This appeal is concerned with Article 9. Our reasoning has, however, wider implications. Where the Convention is invoked on the sole ground of the treatment to which an alien, refused the right to enter or remain, is likely to be subjected by the receiving state, and that treatment is not sufficiently severe to engage Article 3, the English court is not required to recognise that any other Article of the Convention is, or may be, engaged. Where such treatment falls outside Article 3, there may be cases which justify the grant of exceptional leave on humanitarian grounds. The decision of the Secretary of State in such cases will be subject to the ordinary principles of judicial review but not to the constraints of the Convention."