HEADLEY AND OTHERS v. THE UNITED KINGDOM
Inadmissible
Josep Casadevall;Nicolas Bratza
The first applicant, Mr Prince Charles Headley, is a Jamaican national, who was born in 1970 and is currently detained in Manchester. The second applicant, Akeem Headley, is a Jamaican citizen, born in 1991 who currently lives in Sheffield. The applicants were represented before the Court by Mr J. Dickinson, a solicitor practising in Sheffield, and Hugh Southey of Counsel. The respondent Government were represented by Ms. E Wilmott, Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The first applicant claims that he ran a successful record promoting business in Kingston, Jamaica which, he alleges, drew the attention of gangs, who demanded to become involved. When he refused to continue sharing profits with the gang, on 11 August 1993 the first applicant was shot in the face by gang members and was admitted to hospital suffering with paralysis of the left side of his face. On 12 October 1993 gang members forced their way into his home in the early morning and shot at the applicant and his girlfriend, Sandra Satchell. The first applicant was readmitted to Kingston Hospital at 7-30 a.m. with multiple gun shot wounds, to the right jaw-bone, the left forearm and right arm, to the right “axillary fold”, the tip of the right shoulder and to the right side of his chest. One of the bullets intended for him hit Ms Satchell, who was fatally injured and died, aged 25, on 13 October 1993. The first applicant alleges that he had to be kept under police protection in hospital, and that at one point gang members attempted to enter the hospital to kill him, in order to destroy evidence relating to Ms Satchell's murder. One of the gang members, a cousin of Ms Satchell, was subsequently convicted of a firearms offence and sentenced to a determinate period of imprisonment. According to the first applicant, he has now been released from prison. The first applicant did not give evidence at the trial. In January 1994 the first applicant, whose mother is a British citizen, entered the United Kingdom on a six months medical visa, to allow him to gain treatment for his gunshot injuries. This visa was subsequently extended until August 1995. In 1996 the first applicant visited Jamaica to see his grandfather, who was terminally ill. In 1997 he again travelled to Jamaica, for his grandfather's funeral. He claims that he was shot at by gang members, and had to return to the United Kingdom after a stay of only six days. He has not been back to Jamaica since. The first applicant claims he set up a business in the United Kingdom importing clothing from continental Europe. He has been married twice in the United Kingdom. On the basis of his first marriage in June 1995 he was granted, on 17 April 1996, leave to remain for twelve months. The marriage broke down – although it produced a daughter (born 9 June 1996), with whom he still has some contact – and he did not apply for indefinite leave to remain. The first applicant claims that in 1996 he started a relationship with the C. The couple had a child together, R, born on 10 December 1997. Although they were married on 24 February 2003, it does not appear that their relationship was continuous in the meantime. On 27 May 1998 the applicant was joined from Jamaica by his son Akeem, the second applicant, who was born on 2 November 1991, and is the younger son of Ms Satchell. His older brother still lives in Jamaica. Upon arriving in the United Kingdom the second applicant was given six months' extended leave to remain. The first applicant claims that the second applicant lived with him until he was imprisoned. However, it is not clear who else was living with the first applicant at the time. At the time of his arrest in January 1999 the first applicant said he was living with a girlfriend by the name of “Angela Smith”. The first applicant appears to have remained in prison from the time of this arrest in January 1999 until the time of his trial in January 2000. On 31 January 2000 the first appellant was convicted of conspiracy to import a Class A drug and sentenced to seven years' imprisonment and a GBP 9,000 confiscation order. He had made several trips to and from Amsterdam, one of them in the company of a woman who was arrested when re-entering the United Kingdom with 247 grams of cocaine hidden in her vagina. The first applicant had three previous convictions, namely two counts of assault on a police officer, for which he was sentenced in September 1997 to two months' and four months' imprisonment, and one offence of affray, for which he was sentenced in February 1998 to four months' imprisonment. It is not clear whom the second applicant lived with while the first applicant was in prison. On 22 September 1999 a person by the name of Maria Smith made an application for indefinite leave to remain on behalf of the second applicant. In that application she described herself as the second applicant's “stepmother”. On 9 June 2000, Sheffield City Council recorded in a social work assessment that the second applicant was living with a “family friend”. However, it is accepted by the Government that by the time of this application to the court, in November 2003, the second applicant was living with C and R. The trial judge did not recommend that the applicant be deported, but the Secretary of State nonetheless, because of the drugs conviction, made a deportation order against him on 13 February 2002. The first applicant appealed against this decision and claimed asylum, on the basis that he would risk violence from gang members if returned to Jamaica. On 13 December 2002 the Secretary of State decided to refuse asylum and to refuse to revoke the deportation order. On 2 June 2003 the decision was made to give directions for the first applicant's removal. The first applicant appealed against these decisions under Part 4 of the Immigration and Asylum Act 1999 (see below). His appeals were dealt with jointly and refused by an adjudicator on 25 September 2003, after a hearing at which the first applicant represented himself. The first applicant did not seek permission to appeal that decision to the Immigration Appeal Tribunal. On 2 February 2004 the Government set directions for the removal of the first applicant on 12 April 2004. The first applicant was nominally released from imprisonment on 12 February 2004 but was immediately detained by the immigration authorities pending deportation. However, the deportation was stayed pending the outcome of this application and on 11 June 2004 the first applicant was granted bail on condition that he stay with C. Around this time the first applicant discovered that C was in a relationship with another man. It was alleged that he made violent threats against this other man and on 16 June 2004 he was remanded back into custody on charges of possessing an illegal firearm and making unlawful threats. These charges were subsequently dismissed. However, C has since indicated that she no longer wishes to have contact with the first applicant. When the first applicant returned to prison, in June 2004, the second applicant moved in with C's brother, S, S's partner and their daughter. He has lived there ever since. S has indicated that the second applicant can stay there “forever – or as long as he wants”. The Government have not yet made any decision as to whether or not they intend to remove the second applicant. The applicants have submitted various reports in relation to the second applicant. A letter from the head teacher of his junior school states that he has slight learning difficulties and would find it difficult to adjust to any further changes in his life. In September 2003 the second applicant started at secondary school. A letter from his current head teacher, dated 19 February 2004, states that the second applicant has behaved aggressively at school. However, according to S's witness statement, dated 31 July 2004, the second applicant's behaviour at school “stabilised” after he moved in with S's family in June 2004. Two reports were prepared in connection with the present application by Ms Andrea Pecherek, a chartered psychologist. The first report appears to have been based on various false assumptions, such as that the second applicant lived as part of a “nuclear family” with the first applicant and C for four years (between 1996 and 2000). The second report, dated 16 October 2004, contains the following conclusions: (1) there were two consistent factors in the second applicant's life: his father and his black British identity; (2) it is in the second applicant's interests to maintain both; (3) the second applicant's sense of security and family has been maintained by living with S and his partner – “an extremely positive solution to what could have been an extremely negative situation”. Part 4 of the Immigration and Asylum Act 1999 (“the 1999 Act”) provided that anyone who was the subject of an immigration decision, such as a decision to make or refuse a deportation order or a decision to set removal directions, should have a right of appeal to an adjudicator if they alleged that that decision was in breach of their rights under either the European Convention on Human Rights (“the Convention”) or the Geneva Convention relating to the Status of Refugees. The appeal provisions in Part 4 of the 1999 Act were later repealed by the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). Sections 82 and 83 of the 2002 Act brought in new appeal provisions, which did not, however, have effect in relation to any events which took place before 1 April 2003. For all such events the appeal provisions under Part 4 of the 1999 Act continued to have effect. Section 101 (1) of the 2002 Act provides as follows: “A party to an appeal to an adjudicator under section 82 or 83 may, with the permission of the Immigration Appeal Tribunal, appeal to the Tribunal against the adjudicator's determination on a point of law.” Paragraph 1 (4A) of Schedule 2 to the Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003 (as amended) provides as follows: “Section 101 (1) of the 2002 Act shall apply to a party to an appeal to an adjudicator under Part 4 of the 1999 Act which is determined on or after 9th June 2003, as it applies to a party to an appeal to an adjudicator under section 82 or 83.” Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must have regard to all relevant case law from this Court. In the case of R v IAT ex p AC ((2003) EWHC 389 Admin), the High Court held that, in determining appeals relating to Article 8 of the Convention, adjudicators and tribunals were obliged to consider the rights under Article 8 of the appellant's family as well as the appellant himself. Samaroo and Sezek v Secretary of State for the Home Department ([2002] INLR 55) concerned a Guyanan national, who was given permission to visit the United Kingdom for six months in June 1988. Three months later he married a British citizen and was given indefinite leave to remain. In 1991 a son was born to their marriage. In 1994 Mr Samaroo was convicted of being knowingly concerned with the importation of 4 kg of cocaine worth GBP 450,000 and was sentenced to 13 years imprisonment. While in prison he behaved as a model prisoner and it was accepted by the Secretary of State that he was unlikely to re-offend. Nonetheless the Secretary of State made an order that he be deported, relying in particular on the importance of deportation as a deterrent to actual and prospective drug traffickers. Mr Samaroo appealed against this decision. In finding against him the Court of Appeal held that the Secretary of State had been entitled to attach importance to his general policy of deporting those convicted of importation of class A drugs in order to protect those resident in the United Kingdom from the harmful effect of drugs and, by deterring others, in the interests of preventing crime and disorder.