A 51-year-old migrant convicted of raping his wife and sexually assaulting his sister will not be deported from Britain after an immigration tribunal accepted that he could face persecution in Jamaica because he is bisexual.
The man, who says he was a well-known musician and teacher in Jamaica, received prison sentences totalling 18 years. However, his removal was blocked on human rights grounds under the European Convention on Human Rights (ECHR).
The Home Office issued a deportation order in July 2018. He subsequently claimed asylum, arguing that returning to Jamaica would place him at risk because of his bisexuality.
Officials rejected the asylum application, saying he had been convicted of a “particularly serious offence” and represented a “danger to the community” in the UK.
A First-tier Tribunal initially dismissed his appeal, although the judge accepted that he was bisexual and had been living as a gay man in Britain. The tribunal also concluded that he would likely continue that lifestyle if he returned to Jamaica.
He challenged that ruling at the Upper Tribunal and was successful under Article 3 of the ECHR, which prohibits torture and inhuman or degrading treatment.
An immigration judge said there was “nothing positive to say about his presence in the UK” and accepted that deportation would serve the public interest. However, the judge was required to allow the appeal after finding that the man could face serious harm because of his sexuality.
The Upper Tribunal was also told that he claims to be in a relationship with a younger man who was 20 when the pair became engaged.
The 51-year-old, who claims to have been a prominent musician and teacher in Jamaica, received an 18-year prison sentence at Basildon Combined Court
He arrived in the UK legally in 2003 and secured a senior teaching position, the tribunal heard. His wife and sister later joined him in Britain.
In 2013, he was convicted at Basildon Combined Court of two counts of raping his wife. He was sentenced to five years in prison and ordered to remain on the Sex Offenders Register for life.
The following year, he was found guilty of historical sexual offences, including the attempted rape of a girl under 16, the rape of a woman over 16 and penetrative sexual activity involving an adult relative.
He received a further 13-year sentence at Basildon Crown Court.
During sentencing, the judge described him as “a manipulative bully” who used complaints, threats and the complainant herself as tools of control.
The judge added: “You are a man who’s already been convicted of two counts of rape against your wife, and even that conviction, when it came out, you sought to justify and try to say that it was now subject to appeal: another lie that trips so easily from your tongue.”
The court said it had no doubt that he would continue to minimise his conduct and blame other people for the convictions.
The judge also said he appeared to have manipulated members of his family into disbelieving his sister, a situation that had previously led to his first arrest over the offences against her being dropped.
Article 3 of the ECHR states that “no one shall be subjected to torture”. Because that protection is absolute, the tribunal said the seriousness of the migrant’s criminal convictions could not override the risk assessment in his human rights appeal.
The man has been granted anonymity and is identified in the proceedings only as “OB”.
Upper Tribunal Judge Joanna McWilliam ruled that he faced a real risk of harm if returned to Jamaica because of his sexuality, including the legal and social dangers associated with same-sex relationships there.
She said that although the Home Office said the attitude to homosexual people in Jamaica was improving, this was not the case.
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Judge McWilliam said that the migrant had been called a ‘batty-man’ when he lived in Jamaica and that he had been attacked for being perceived as gay.
He told the tribunal that he was a ‘well-known’ musician and teacher in Jamaica, because he was a head of music at major schools and performed at national and international music festivals.
He said that his family is religious and they have not accepted his sexuality, and they have made ‘threats’ to his life.
Judge McWilliam said that prosecutions for homosexuality are now less frequent, but gay people still suffer from ‘mob violence’ and this would be a risk for the migrant.
She said: ‘On the basis that the [OB] is a bisexual man, I accept that there are aspects of his case which are supported by the background evidence.
‘Moreover, while the [Home Office] says that [OB] has not provided evidence of past persecution, he mentioned past persecution in his asylum interview.
‘He said that he was regularly hit with sticks and was hit with a bottle. He was beaten up when he was aged eighteen by a group of men with weapons.
‘They called him Batty Man. I have considered what [OB] said in the interview in the round.
‘Whilst I have great reservations about much of what [OB] says, considering this evidence in the context of the background evidence as a whole, it is credible that [OB] who has been found to be bi-sexual by the First-tier Tribunal would have been perceived as gay and that as a result he would have been subject to attacks.
‘I accept that he was attacked, applying the lower standard of proof.’
Judge McWilliam ruled that if the decision had been based on Article 8 of the ECHR, she would not have allowed the appeal decision, saying that Article 3 is an ‘absolute non-derogable right’.
She said: ‘The comments of the sentencing judge about [OB] are illuminating. Having heard him give evidence I reach the same conclusion about his character.
‘In the absence of risk under Article 3, I would have no hesitation in dismissing the appeal under Article 8.
‘The [Offender Assessment System] report presents a negative picture of the [OB] who has at no time accepted responsibility for his heinous crimes.
‘The author of the report states that [OB] portrayed himself as the victim and that he was unable to show remorse. [OB] remains a risk to the public.
‘There is nothing positive to say about the [OB’s] presence in the UK. His philanthropic claims are fictional.
‘He presents a risk to children and young people. Hopefully he will not be placed in a position of trust in the future.
‘[OB’s] deportation is in the public interest and the only rational conclusion that could be reached on the evidence, in the absence of a risk under Article 3, is that any breach of [OB’s] rights under Article 8 would not come close to outweighing the public interest in his deportation.’
A Home Office spokesman said they can’t comment on individual cases, but said: ‘We are reforming our human rights laws to prevent them being abused by foreign criminals with no right to be in the UK.
‘This includes domestic legislation to tighten the application of the European Convention on Human Rights in immigration cases, and working with European partners to ensure it remains fit for modern migration challenges.’