Return gay man to UK, Smith ordered

By John Aston,Press Association
Thursday 19 February 2009 13:58

The High Court has ordered the Home Secretary to secure the return of a gay man forcibly removed from the UK to his native country.

A judge condemned the failed asylum seeker's removal as "manifestly unlawful" and ordered Jacqui Smith to "use her best endeavours" to bring him back.

The judge warned that the practising homosexual, Mr X, and his homeland must not be named because he fears persecution and is in hiding.

The judge said it appeared to him that officers of the UK Border Agency, which is responsible for controlling migration, had "deliberately misled" Mr X and effectively deprived him of his right to seek legal advice before his removal.

Their actions were calculated "to avoid any complication that could arise from his removal becoming publicly known", said the judge.

In a statement seen by the court Mr X said that, last September, he was deceived into thinking he was being taken from Tinsley House immigration removal centre, located on the perimeter of Gatwick Airport, for an interview with an immigration officer.

Instead, without warning, he was taken in a van by four security men to a plane.

He said that when he resisted leaving the van he was handcuffed, punched in his private parts to make him straighten his legs so they could be belted together. Crying, he was lifted on to the plane and flown out of the country.

His mobile phone had been taken from him and he was given no chance to contact friends or lawyers, even though Home Office rules required that he should have 72 hours' notice of removal to give him a chance to make calls.

Lawyers for the Home Secretary conceded in court that his removal was carried out illegally.

But they argued flying him back to the UK was pointless because the 38-year-old was bound to lose the fresh asylum claim he now wanted to make.

Rejecting the submission, High Court deputy judge Sir George Newman ruled that the illegal actions of the UK Border Agency in removing him were "grave and serious", and justice required his return.

The judge said: "Justice requires he should, if possible, be brought back to this country so that he can make his claim as effectively as he can.

"Without hesitation, I exercise my discretion to grant the claimant a mandatory order that the Secretary of State should use her best endeavours to secure his return to the UK."

If returned, Mr X is expected to launch a claim for damages against the Government over his illegal treatment.

The judge described how he first arrived in the UK in September 2001 and worked here for some seven years before being earmarked for removal after the failure of his original asylum claim.

He had argued he feared persecution because his native country discriminated against homosexuals and he could be subjected to violence and ill treatment.

An unsuccessful attempt to remove him was made in the early hours of September 14 last year. The attempt was abandoned after he protested and refused to cooperate, saying that he was not aware of the response to fresh legal representations made on his behalf by the Refugee Legal Centre.

This somehow became known to the newspapers in the country to which he was due to be returned, said the judge.

The Refugee Legal Centre argued on his behalf that there was new evidence that he could face persecution.

But, without anybody's knowledge, arrangements were made to force his removal on September 18.

UK Border Agency officials took the "wrong-headed" decision that the new removal instructions did not trigger a fresh 72-hour notice period, said the judge.

They also wrongly thought Mr X was not entitled to notice in view of his "disruptive" behaviour when he resisted removal four days earlier.

The judge said agency officers must have known the 72-hour requirement was designed to provide an opportunity for a person being removed to have access to a lawyer for legal advice and possibly for the courts to become involved in the case.

The judge ruled that Mr X's account of how he was deceived and forced on to a plane with no chance to contact anyone was "credible".

He said he was also satisfied that the actions of the Border Agency officers were "deliberately calculated to avoid any complication that could arise from Mr X's removal becoming publicly known."

The judge added: "It seems to me they deliberately misled him to avoid him making any contact with the Refugee Legal Centre."

Mr X said in a statement seen by the court that, on his return to his homeland, his circumstances had become "quite desperate".

He had been beaten up during a period in detention and he had now gone into hiding to avoid being interviewed by the police about his homosexuality.

The judge said the evidence before him made it perfectly plain that Mr X had come to the notice of the authorities, and this had added to the risk of his human rights being breached by reason of his homosexuality.

He rejected the Home Secretary's argument that there was no point in him returning to the UK to pursue his asylum application.

The judge said: "I find it impossible to conclude, on the basis of the evidence as it now is, that there is not the real possibility that a judge might find that he is at risk if he is returned (to his homeland) by reason of his homosexuality."

Join our new commenting forum

Join thought-provoking conversations, follow other Independent readers and see their replies

View comments