QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF NEWTON HUDSON||(CLAIMANT)|
|(1) SECRETARY OF STATE FOR THE HOME DEPARTMENT|
|(2) UK IMMIGRATION SERVICE||(DEFENDANTS)|
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 JENNI RICHARDS (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT
Crown Copyright ©
"It is considered that it would be reasonable to expect both parties to have been aware that your client's precarious immigration status was such that the persistence of their marriage within the United Kingdom would, from the outset, be uncertain. Moreover, although your client's spouse is a purported British citizen, it is believed [she] could reasonably be expected to live in Jamaica. You claim that your client's wife cannot accompany him to Jamaica as she has never left the United Kingdom previously and has never held a United Kingdom passport, in addition to the distance from Jamaica to the United Kingdom and cultural differences between the two countries. It is noted that you have submitted only the purported birth certificate of your client's spouse and an NHS card as evidence of her nationality and residence. You are reminded that birth certificates state quite clearly that they are not evidence of identity. An NHS card is not accepted as proof of nationality. All documents submitted are dated 2003 and as such do not demonstrate three years residence. If your client's spouse is a British citizen as claimed, it is open to her to apply for a passport and to travel to Jamaica with her husband. Failing this, she can remain in this country and support any application that your client might make for entry clearance to return in the appropriate category. It is not accepted that it would be unreasonable to expect Mr Newton's spouse to accompany him or remain here to support an application for him to return.
The couple also claim to have a child who is a British citizen, though you have provided only a birth certificate to support this claim. You have not provided evidence to demonstrate that your client supports or exercises rights of access to this child. At only one year of age she is considered young enough to adapt to life abroad with her parents. Although your client's child's material quality of life in Jamaica may not be to the same standard as it would in the United Kingdom, this is the case with many children brought up in other countries and is not considered a sufficiently compelling factor. When of an age to be independent of her parents she would be able to return to the United Kingdom to take up her right of abode should she wish to do so.
In the circumstances we are not persuaded that the position of your client's family constitutes a sufficiently compelling reason for making an exception to the normal practice of removing those who have remained in the United Kingdom illegally."
"It is therefore considered that there would be adequate treatment available in Jamaica to both your client and his wife should they choose to utilise it. Your client's medical condition is not sufficiently compelling as to allow him to remain in the United Kingdom unlawfully."
"In addition, your client's human rights claim is one to which section 94(3) of the Nationality Immigration and Asylum Act 2002 applies. This requires the Secretary of State to certify that your client's claim is clearly unfounded unless he is satisfied that it is not clearly unfounded. After consideration of all the evidence available, it has been decided that your client's claim is clearly unfounded. Therefore, it is hereby certified under section 94(2) [of the 2002 Act] that your client's claim is clearly unfounded."
"I was afraid then and I am even more afraid of being persecuted; in fact I may never reach court."
In the light of the information that has subsequently been forthcoming, which can be put under the heading, "Persecution", that is a remarkably laconic statement.
"Re: The Deportation or Extradition of Newton Hudson, Jamaican National.
Further to our discussions ... I reviewed the statements and depositions in the relevant file relating to the original charges for which Mr Hudson was before the court in the parish of Clarendon.
I hereby advise that the office of the Director of Public Prosecutions would undertake to prefer indictments only for Illegal Possession of Firearm, Robbery With Aggravation, Burglary and/or Non-Capital Murder against Mr Hudson.
None of the aforementioned charges would attract the death penalty if Mr Hudson was convicted. He would only be liable to a term of years up to life imprisonment if found guilty.
I have had discussions with Mr Kent Pantry QC, the Director of Public Prosecutions, who was seized of the matter and he agreed that this is the procedure that this office would adopt.
The Jamaican Law Enforcement authorities would wish to have Mr Hudson (who had absconded his bail between 14 August 2001 and 10 September 2001 during the preliminary Enquiry) returned to this country and ordered in order to expedite the trial of this matter as soon as possible. This office would be prepared to request Mr Hudson's extradition from the United Kingdom (or to acquiesce to his deportation). Before these arrangements are embarked upon, we would wish to be advised as to his exact status in the United Kingdom as far as Law Enforcement and Immigration authorities are concerned. Your prompt response would be appreciated."
"It is considered that the affidavits have been submitted merely to bolster your client's case and to attempt to delay removal even further. They are not significant and add no weight to your client's case. The previous decisions to refuse and certify your client's human rights claims are maintained."
"While there have also been reports of such deaths in the past, [there] have by no means been as many as in respect of deaths as a result of "shoot out". A report from the Gleaner in September 1 2005, a leading Jamaican daily newspaper, of two men who went missing after last being seen in police custody. That matter, as far as I am aware, remains unresolved. The most well-known incident of the kind, in what has become known as the "Agana Barrett" case, involved the death while in police custody about 10 years ago of a young man who had been kept in an overcrowded, insanitary lockup and who in fact died of suffocation and dehydration."
"Based on the available evidence, I conclude that Mrs Hudson is highly vulnerable and is likely to remain so for another 8 months or so, that is, if she remains clinically free from symptoms until then. If she relapses, she will require special services from a Mother and Baby service. It is not known if such services are available in the part of Jamaica where they may wish to settle. I have already advised her to consult her GP if she requires abnormal perception however transient it may be. Generally, she will require support and assistance in the process of bringing up two children under the age of 3 and I sincerely hope that the court will consider this aspect in detail before drawing any conclusions."
"... it is considered that with the involvement at such a high level, that your client would be protected from any extra-judicial punishment or killing.
Furthermore, it is known that your client will be met by police upon his arrival in Jamaica and taken directly to custody to await trial. He will be closely supervised throughout his trial to ensure that no harm will come to him."
"This demonstrates that a known criminal can receive a fair trial and protection from the police force, and that he can challenge his conviction on the basis of identification evidence."
"This information [and that is not just restricted to the newspapers] clearly demonstrates that full investigations are carried out with regards to alleged police shootings and that members of the public can approach and complain about individual officers and that these are dealt with properly. It is also clear that police officers involved in corruption and bribery are disciplined accordingly. It is therefore not accepted that your client is at any risk of being killed as he alleges.
It has been decided to maintain the previous decisions to refuse and certify your client's human rights claims for the reasons given in the earlier decision letters and for the reasons set out above."
"If the Secretary of State is satisfied that an asylum claimant or human rights claimant is entitled to reside in a State listed in subsection (4) [Jamaica is so listed] he shall certify the claim under subsection (2) unless satisfied that it is not clearly unfounded."
Sub-section (2) provides:
"A person may not bring an appeal to which this section applies in reliance on section 92(4) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) is or are clearly unfounded."
The claims therein referred to are either asylum claims or human rights claims or both: see section 94(1).
"Firm immigration control requires consistency of treatment between one aspiring immigrant and another. If the established rule is to the effect -- as it is -- that a person seeking rights of residence here on grounds of marriage (not being someone who already enjoys a leave, albeit limited, to remain in the UK) must obtain an entry clearance in his country of origin, then a waiver of that requirement in the case of someone who has found his way here without an entry clearance and then seeks to remain on marriage grounds, having no other legitimate claim to enter, would in the absence of exceptional circumstances to justify the waiver, disrupt and undermine firm immigration control because it would be manifestly unfair to other would-be entrants who are content to take their place in the entry clearance queue in their country of origin."
Laws LJ made similar observations in paragraph 26.
"Miss Webber's second point, which is allied to her first, is that it is unreasonably harsh to require the applicant to give up contact with his wife and young children for however long may be needed to process his application at the British High Commission in Pakistan. I would endorse the comments made by Laws LJ in relation to Miss Webber's reliance on R v Secretary of State for the Home Department, Ex p Hashim 12 June 2000 in this context. At the same time there is obvious force in Miss Webber's argument that it will be harsh if the applicant is denied contact with his two young children for a lengthy period. I would hope that this consideration will lead to any application that he may make under paragraph 281 being dealt with with reasonable expedition. I do not consider, however, that the Secretary of State's insistence that the applicant should comply with the same formal requirements as all other applicants seeking an entry visa to join spouses in this country is in conflict with article 8."
"It would be a bizarre and unsatisfactory result if, the less able the applicant is to satisfy the full requirements for entry clearance, the more readily he should be excused the need to apply. The time presently being taken to process entry clearance applications in Germany is, we are told, something under a month. When granting permission to appeal, Sedley LJ said of this appellant's immigration history that 'few claimants come to court with a track record of such prolonged evasion and mendacity'. True it is, as Sedley LJ also observed, that 'the protection of one's human rights is not a reward for virtue and the withholding or dilution of them is not a penalty for vice', but that is not to say that a person's immigration history is an irrelevant consideration when striking the balance between his article 8 rights and the countervailing public interest in maintaining effective immigration control. To my mind it is entirely understandable that the Secretary of State should require the appellant to return to Germany so as to discourage others from circumventing the entry clearance system. One authority which Mr Jacobs put before us was this court's decision in Shala v Secretary of State for the Home Department  EWCA Civ 233. In giving the leading judgment there Keene LJ said at paragraph 10:
'It is important that those without leave to enter or remain should not be able to exploit the procedures so as to be able to prolong their stay in the United Kingdom by making in-country applications for such leave. As Mahmood ... shows, even with a subsisting marriage, a person only here on temporary admission will be required to return home to seek entry clearance, unless there are exceptional circumstances'."
"In our judgment his duty, when faced with an Article 8 case where the would-be immigrant has no claim under the Rules, is and is only to see whether an exceptional case has been made out such that the requirement of proportionality requires a departure from the relevant Rule in the particular circumstances. If that is right, the importance of maintaining immigration control is a prior axiom of the debate before him."
"(3) what is the test for determining whether there is sufficient protection against persecution in the person's country of origin - is it sufficient, to meet the standard required by the Convention, that there is in that country a system of criminal law which makes violent attacks by the persecutors punishable and a reasonable willingness to enforce that law on the part of the law enforcement agencies? Or must the protection by the state be such that it cannot be said that the person has a well-founded fear?"
"As regards the third issue, the answer to it also is to be found in the principle of surrogacy. The primary duty to provide the protection lies with the home state. It is its duty to establish and to operate a system of protection against the persecution of its own nationals. If that system is lacking the protection of the international community is available as a substitute. But the application of the surrogacy principle rests upon the assumption that, just as the substitute cannot achieve complete protection against isolated and random attacks, so also complete protection against such attacks is not to be expected of the home state. The standard to be applied is therefore not that which would eliminate all risk and would thus amount to a guarantee of protection in the home state. Rather it is a practical standard, which takes proper account of the duty which the state owes to all its own nationals. As Ward LJ said at p.44G, under reference to Professor Hathaway's observation in his book at p.105, it is axiomatic that we live in an imperfect world. Certain levels of ill-treatment may still occur even if steps to prevent this are taken by the state to which we look for our protection. I consider that the Tribunal in this case applied the right standard when they were considering the evidence."
"... wherever the appellant located herself in Jamaica, the Tivoli Gardens gang would be likely to find her and seek revenge."