Secretary of State for the Home Department v SC (Jamaica)
| Jurisdiction | England & Wales |
| Judge | Lord Stephens,Lord Reed,Lord Lloyd-Jones,Lady Arden,Lord Hamblen |
| Judgment Date | 15 June 2022 |
| Neutral Citation | [2022] UKSC 15 |
| Court | Supreme Court |
[2022] UKSC 15
Lord Reed, President
Lord Lloyd-Jones
Lady Arden
Lord Hamblen
Lord Stephens
Appellant
Raza Husain QC
Simon Cox
Eleanor Mitchell
(Instructed by Birnberg Peirce LLP)
Respondent
Zane Malik QC
Tom Tabori
(Instructed by The Government Legal Department)
Heard on 19 October 2021
( with whom Lord Reed, Lord Lloyd-Jones, Lady Arden and Lord Hamblen agree)
There is a real risk to SC of inhuman or degrading treatment, in contravention of article 3 of the European Convention on Human Rights (“ECHR”) in urban but not in rural parts of his country of origin, Jamaica. So, his deportation to that country by the Secretary of State for the Home Department (“SSHD”), as a foreign criminal, would be unlawful unless he “can reasonably be expected to stay” in the rural areas of Jamaica (“internal relocation”). In allowing an appeal from a deportation order made by the SSHD the First-tier Tribunal Judge Kamara (“the F-tT judge”) held that SC could not reasonably be expected to internally relocate in Jamaica. In arriving at her decision as to the reasonableness of internal relocation she did not consider what was “due” to SC as a result of his criminality.
The first issue in this appeal is whether SC's criminal conduct in the UK is a factor relevant in determining if he could reasonably be expected to stay in a rural area of Jamaica, so that, for instance, his criminality may turn internal relocation from what would otherwise be unreasonable into what is reasonable based on a value judgment of what is “due” to him as a criminal. Accordingly, does internal relocation in Jamaica, which is unreasonable apart from SC's criminal conduct in the UK, become reasonable because he has committed serious offences in the UK?
The second issue, which arises if SC's criminal conduct is not relevant to internal relocation, is whether the F-tT judge erred in law in holding that SC could not reasonably be expected to stay in a rural area of Jamaica.
The third issue is whether the F-tT judge erred in her assessment of sections 117C(4)(b)-(c) of the Nationality, Immigration and Asylum Act 2002 (“the NIAA 2002”) and para 399A(b)-(c) of the Immigration Rules in holding that SC is socially and culturally integrated in the UK and there would be very significant obstacles to his integration in Jamaica.
The fourth issue is whether the F-tT judge erred in law in embarking on a freestanding assessment of article 8 ECHR, applying the wrong test and failing to give sufficient weight to the public interest in SC's deportation.
There is no challenge to the findings of fact made by the courts below which have been summarised in an agreed statement. Accordingly, SC's present well-founded fear of being persecuted because his mother is a lesbian and that lesbians and those associated with them, including their children, are persecuted in Jamaica, is not disputed. Nor is there any dispute as to the catalogue of abuse to which SC and his mother were subjected when they lived in Jamaica nor as to the present real risk which SC faces of suffering serious harm in urban parts of Jamaica because of his association with his mother.
SC is a national of Jamaica, born in 1991. He lived with his mother in Kingston until she left Jamaica for the UK in August 1999. SC was then cared for by his maternal grandmother in Kingston until he joined his mother in the UK in December 2001 at the age of ten. He has remained in the UK since then. He is heterosexual.
SC's mother is also a national of Jamaica. She worked as a go-go dancer in clubs. She is a lesbian, who sequentially entered into relationships with three Jamaican women between 1994 and 1999. Homosexuals are harassed and persecuted in Jamaica and SC's mother, her family and her female partners were subjected to intense violence between 1995 and 1999 which ultimately caused SC's mother to flee Jamaica seeking refuge in the UK.
The violence was mostly at the hands of gang members who frequented the clubs in which SC's mother worked. She was beaten, stabbed, and raped by them, because she was a lesbian. These assaults often took place in front of SC (then aged between three and seven years old). Furthermore, not only did SC witness the violence perpetrated on his mother but also on one occasion gang members attempted to rape him and abducted him for a short while. To avoid the violence SC's mother and her then partner went into hiding in the countryside, but not only did the gangs, in particular the Sunlight Crew, seek them out but also word had got around to minor gangs in the countryside, who then assaulted SC's mother and her partner.
Further details as to the degree of violence inflicted by reason of SC's mother's sexual orientation include that the Ramsey Road Gang in Jamaica had, because SC's mother is a lesbian, shot her two brothers (who had survived). Other gang members had physically and verbally abused her mother and threatened her sister. A further sexual assault occurred in June 1999 when SC's mother was held down at gunpoint by four teenagers who threatened to “blow her head off” if she did not leave the area. They forced her to have oral sex with them and when SC's maternal grandmother tried to intervene, they also assaulted her. They threatened to kill not only SC's mother but also her whole family, if she reported the matter to the police. After this incident, in fear of her life, SC's mother decided to leave Jamaica and to join one of her brothers in the UK.
Threats to kill SC's mother's family in Jamaica because of her sexual orientation continued after she left Jamaica. Even in London SC's mother was being threatened by gang members, especially members of the Sunlight Crew. For instance, she recounts that some three years after leaving Jamaica whilst on her way home by bus with SC a member of that gang screamed at her “Sodomite … you not dead yet? You must die.”
In December 2002 SC's mother applied for asylum in the UK with SC as her dependant. The claim, which was based on persecution suffered because of SC's mother's sexuality, was refused by the SSHD (to whom, for convenience, I will throughout refer as female). On appeal to an Immigration Adjudicator, R J Oliver, SC's mother gave evidence that she did not believe that she and her partner could avoid the harassment and persecution anywhere in Jamaica as there was a general intolerance of homosexual people. She said:
“They call us sodomites and feel they are justified in treating us like animals because they believe homosexuality is an evil practice.”
SC's mother stated that she believed that because this view was widely held that the government had done nothing to afford protection to homosexual people and she had no confidence in the police offering her protection. The Adjudicator found that SC's mother's evidence fitted in well with the background information material showing the violent persecution of homosexual people in Jamaica and the lack of protection available to them from the authorities. By a decision promulgated on 2 September 2003 the Adjudicator found SC's mother's evidence credible, accepted that she was a refugee and allowed her appeal. On 9 October 2003, and as a consequence of the Adjudicator's decision, SC's mother and SC were granted indefinite leave to remain in the UK as refugees.
SC has committed several criminal offences. His offending history began during 2005 when he was reprimanded for destroying or damaging property. In 2006 he received two warnings for taking a motor vehicle and destroying or damaging property. Between November 2007 and 2012 he acquired 14 criminal convictions for a total of 28 offences. These include a conviction for robbery on 1 November 2007; convictions for three robbery offences, attempted robbery and common assault in 2008; a conviction for assault and having an article with a blade in 2009; having an article with a blade in 2010 and using threatening, abusive or insulting words or behaviour in 2011. In addition, SC has been convicted of nine offences relating to the police, courts or prisons and several driving offences.
On 11 June 2012 SC was convicted of assault occasioning actual bodily harm, having an article with a blade, and breach of an anti-social behaviour order. SC was sentenced to a period of two years' detention in a young offender institution for the assault conviction. As a result, SC fell within the definition of a “foreign criminal” in section 32(1) of the UK Borders Act 2007 (“the UKBA 2007”) and in section 117D(2) of the NIAA 2002, being a person (a) who is not a British citizen, (b) who is convicted in the United Kingdom of an offence, and (c) who has been sentenced to a period of imprisonment (as defined in section 38(1) of the UKBA 2007 and in section 117D(4) of the NIAA 2002) of at least 12 months. Section 32(5) UKBA 2007 provides that the SSHD “must make a deportation order in respect of a foreign criminal” subject to certain exceptions which are set out in section 33. Section 33(2) provides that a foreign criminal is not to be deported where that would breach that person's ECHR rights or the UK's obligations under the 1951 Geneva Convention relating to the Status of Refugees and its Protocol (“the Refugee Convention”).
On 22 January 2013, the SSHD wrote to SC (having previously invited representations from him) to inform...
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