Jamaican Migrant Convicted of Rape Allowed to Stay in UK Due to Bisexuality

A Jamaican migrant, who was jailed for a total of 18 years for raping his wife and sister, has been granted the right to remain in the United Kingdom. The decision was based on his claim of being bisexual and facing potential harm if deported to Jamaica.

The 51-year-old migrant, who claims to be a musician and teacher in his home country, was issued a deportation order by the Home Office in July 2018. He subsequently claimed asylum, arguing that his bisexuality would put him at risk upon return to Jamaica.

The Home Office initially rejected his asylum claim, citing the severity of his offenses and the danger he posed to the community. However, he appealed this decision. A First-tier Tribunal dismissed his appeal but acknowledged his bisexuality, concluding he was living a gay lifestyle in the UK and would continue to do so in Jamaica.

Upon further appeal to the Upper Tribunal, the migrant won his case under Article 3 of the European Convention on Human Rights (ECHR), which prohibits torture and inhuman or degrading treatment or punishment. An immigration judge acknowledged that deporting the migrant was in the public interest and that there were "nothing positive to say about his presence in the UK." Nevertheless, the judge ruled that the appeal against deportation had to be allowed because the migrant would be at risk of harm due to his sexual orientation.

Criminal Convictions

The migrant arrived in the UK legally in 2003 and held a senior teaching position. His wife and sister later joined him. In 2013, he was convicted at Basildon Combined Court of two counts of rape against his wife, receiving a five-year prison sentence and a life-long placement on the Sex Offenders Register.

A year later, he was convicted of further historical sex offenses, including attempted rape of a minor, rape of an adult relative, and penetrative sex on an adult relative. For these offenses, he was sentenced to 13 years in prison at Basildon Crown Court.

During his sentencing, the judge described him as a "manipulative bully" and noted his tendency to justify his actions and lie. The judge also commented on his ability to manipulate his family to prevent his sister from being believed.

Asylum Appeal and ECHR Article 3

The Upper Tribunal heard that the migrant is now reportedly in a relationship with a man who was 20 years old when they became engaged.

Upper Tribunal Judge Joanna McWilliam determined that there was a risk the migrant could face harm if deported because homosexual relationships are illegal in Jamaica. While the Home Office suggested attitudes towards homosexual people were improving in Jamaica, the judge found this not to be the case. The migrant testified to being called derogatory names like 'batty-man' and experiencing physical attacks in Jamaica due to being perceived as gay.

He also claimed that his religious family had not accepted his sexuality and had made threats against his life. Judge McWilliam acknowledged that although prosecutions for homosexuality are less frequent, gay individuals still face risks from mob violence, which she deemed a credible threat to the migrant.

Judge McWilliam stated, "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... 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."

Article 8 vs. Article 3

Judge McWilliam clarified that if the decision had been based on Article 8 of the ECHR (right to respect for private and family life), she would not have allowed the appeal. She emphasized that Article 3 is an "absolute non-derogable right," meaning it cannot be overridden by other considerations, including the individual's criminal history or the public interest.

She noted that an Offender Assessment System report painted a negative picture, with the migrant having never accepted responsibility for his crimes and portraying himself as a victim without remorse. The report concluded that he remains a risk to the public and to children and young people. The judge expressed hope that he would not be placed in a position of trust again.

Government Response

A Home Office spokesperson stated that while they cannot comment on individual cases, the government is working to reform human rights laws to prevent abuse by foreign criminals. This includes tightening the application of the ECHR in immigration cases and collaborating with European partners to address modern migration challenges.