At the Deportation Tribunal

On​ 17 March 2022, a judge in the Immigration and Asylum First Tier Tribunal heard the case of AB, a 21-year-old man facing deportation to Jamaica. The case rested on AB’s criminal history. He was convicted in 2019 of offences relating to the supply of heroin and cocaine and sentenced to more than four years in youth custody. While he was in prison, the Home Office made a deportation order against him. He appealed.

The Home Office had a strong case. The 2014 Immigration Act states that ‘the more serious the offence committed by a foreign criminal, the greater is the public interest in deportation.’ When someone has been sentenced to ‘a period of imprisonment of at least four years’, it becomes extremely difficult to make the case that their right to private and family life outweighs the ‘public interest’ in their expulsion. And this wasn’t a first offence. AB had previously been convicted for possessing offensive weapons: a kitchen knife when he was sixteen, then a pocket knife when he was seventeen. Two months before the hearing, he was in a car with a group of friends when they were pulled over by the police. They jumped out and tried to escape by running through a park; the police found a knife and drugs discarded in the park. AB was arrested, then released. At the immigration tribunal, the presenting officer from the Home Office argued that the incident proved AB was still associating with criminals, therefore deportation was proportionate and just. AB contested the assertions that he was at risk of reoffending, and that he was foreign. He was born in the UK and had never been to Jamaica.

Since the 1981 British Nationality Act abolished birthright citizenship, a child born in Britain has only been eligible for British citizenship if at least one of their parents is a citizen or holds indefinite leave to remain. A ‘foreign criminal’ who has been sentenced to at least twelve months in prison can appeal against deportation if they have lived in the UK legally for ‘more than half’ their life, if they are ‘socially and culturally integrated in the UK’ and if there are ‘very significant obstacles’ to their integration in the country to which it is proposed they be deported. All three things must be present to provide grounds for appeal. AB was undocumented until he was twelve, more than half his life. He could make the case that he was ‘socially and culturally integrated’, but the Home Office tends to argue that criminality negates integration, and in this instance the judge agreed.

AB’s lawyers enlisted me as an expert witness before his appeal was heard in the hope that I’d add weight to their argument on the last of the three grounds, the obstacles to his integration in Jamaica. I’ve been conducting research into the lives of deported people there for several years and have published a book on the subject. Like other expert witnesses – social workers, psychiatrists, language experts – I’m actually employed to serve the tribunal, not to advocate for those appearing before it or their lawyers. I’m a ‘country of origin information expert’, tasked with providing objective information on conditions in Jamaica. But whenever I write expert reports, I worry that a judge or presenting officer will Google me and find articles in which I say what I really think: that all deportations are unjust and borders should be abolished.

The appellants’ lawyers sometimes suggest edits and amendments to my reports, indicating where I stray too close to advocacy. But AB’s case was strong enough without that. He didn’t know where he would live in Jamaica or how he would find work. ‘Deportee’ is a profoundly stigmatising label. My opinion was that he would be unable to integrate and would be at significant risk of harm. The Home Office argued that my report was ‘not objective’. Two weeks after the hearing the judge returned his determination: the deportation order was upheld (AB’s lawyers are considering a challenge to the European Court of Human Rights).

The categories of the immigrant and the criminal are often conflated, but paranoia about the ‘foreign criminal’ began in earnest in 2006, when the Home Affairs Select Committee was told that more than a thousand foreign prisoners had been released since 1998 without being considered for deportation (as they should have been under existing policy). Charles Clarke was replaced as home secretary by John Reid, who described the Home Office as ‘not fit for purpose’. Non-citizens with criminal records found themselves facing deportation. Current prisoners without British citizenship were identified, and when their sentences ended were held in prisons and detention centres, sometimes for years, while the Home Office tried to deport them. No other country in Europe allows for indefinite immigration detention and in practice most long-term detainees are ‘foreign criminals’ (during the first wave of Covid almost all of those held in detention had criminal records). Before 2006, the UK deported around a thousand ex-offenders a year; in 2008, this increased to more than five thousand a year. The figure fell sharply during the pandemic, though there were still 130 charter flights carrying people being deported in 2020, including one to Jamaica in November that year with thirteen ‘serious foreign criminals’. One of the arguments made in favour of UK withdrawal from the European Convention on Human Rights is that it would expedite the deportation of such people – the same sentiment was behind the ‘deport first, appeal later’ policy introduced by Theresa May when she was home secretary (visa overstayers face ‘enforced returns’; ‘deportation’ is reserved for criminals).

I also worked on the case of RN, a Jamaican national whose family had moved to the UK in 2001, when he was three. A deportation order was issued against him in 2016, after he was given a twelve-month sentence for affray and possession of an offensive weapon (a knife) in a public place. He appealed immediately, but his case wasn’t heard until January 2020. Between the ages of 18 and 22 he was in legal limbo, unable to work or claim benefits. His mother had applied for leave to remain in 2004, but was granted only temporary leave, and not until ten years later, in 2014. Initial decisions on immigration applications, including asylum, usually take around a year, but can take much longer. Most are rejected. Some applicants are given a right of appeal, which means they have two weeks to send an outline of the grounds of their appeal to the immigration court. They then come within the remit of the immigration tribunal and must wait around eighteen months for a trial hearing. Their case is heard in the First Tier Tribunal; if that judge finds against them, they can challenge the decision in the Upper Tribunal, but only on the basis that the First Tier judge made an error of law.

Individuals who aren’t given a right of appeal will often try to gather further submissions for a fresh application. The Home Office decision on the validity of further submissions can take even longer, though officials act far more swiftly when individuals are booked on deportation flights (one lawyer told me that in the run-up to a flight he filed an application and received a full decision the same day, a process that normally takes more than a year). If the Home Office doesn’t accept that the submissions constitute a fresh claim, the appellant can apply for a judicial review, which offers another route to the immigration tribunal. All of this takes time – it’s not uncommon for appellants to be marooned in the system for years.

When his day in court finally came, RN travelled from Bristol to the immigration tribunal in Newport with his girlfriend, his mother, his younger brother and a friend, all of whom were cross-examined. RN’s barrister argued that the risk of his re-offending was low, that forced separation from his partner, mother and siblings would be disproportionate and that he would struggle to make a life in Jamaica. The presenting officer stressed RN’s history of offending and argued that he would be able to rely on his support network to find work and housing in Jamaica. The hearing didn’t last much more than an hour. The judge delivered his written determination two weeks later. ‘Having weighed all the factors in the balance,’ he concluded, ‘I find that his deportation is proportionate.’ RN appealed, arguing that the obstacles to his integration in Jamaica hadn’t been properly considered (i.e. the judge had made an error of law). The Upper Tribunal agreed and sent the case back to the First Tier Tribunal, where, eighteen months later, another judge ruled in RN’s favour. My report – which outlined the difficulties faced by people deported to Jamaica and their vulnerability to crime and violence – had proved crucial. RN would not be deported.

I keep writing these reports in the hope of another such outcome. On a good day, I enjoy sifting through the information, identifying the key details in a family history, noting the places where a Home Office decision relies on outdated or false information about conditions in Jamaica. I see reams of prison files, school and college certificates, the ‘offender assessment system’ reports used by probation officers. There are often photographs, inky scans of appellants with their partners and children, dressed up for birthday outings and anniversaries. RN’s file had several pictures of him as a child – with his mother, his little brother, his classmates – as well as more recent ones of him and his girlfriend, edited using Snapchat filters to show them covered in pink hearts or wearing Minnie Mouse ears.

Then there are the witness statements, not only from the appellants and their families but from former employers, sports coaches, pastors. I’ve lost count of the number I’ve read from young children saying: ‘Please don’t take daddy away.’ Witness statements are often written with real care, over several drafts, in a register quite different from that of official decisions and judgments. People want to get them right because it feels important, a chance to respond to the sentencing remarks made by criminal judges and the reports by police and prison officers. Sometimes there are six or seven witness statements. But it’s not clear how much difference they make.

RN began his witness statement by saying ‘2015 was a bad year for me and I made a lot of mistakes … I was homeless for a while. I was only sixteen going on seventeen. I felt angry, sad, and I felt like it was me against everyone or everyone against me. I was very angry and lonely.’ He listed the offences he had been charged with that year: common assault for a fight at school, possession of drugs, and burglary for breaking into his church to sleep. He had also been arrested after a fight with his girlfriend. He went on to explain why he had been caught carrying a knife on three occasions. Like most people who carry knives, RN claimed he did it for his own protection. Just before his eighteenth birthday, he had been ‘rushed’ by a group of young men; the stab wounds left him in intensive care for five days. A year later, he was in a nightclub when a fight broke out between his friends and another group. He was stabbed in the chest, puncturing his lung and missing his heart by half an inch. RN said that carrying a knife was a response to these events: ‘Both stabbing incidents have made me paranoid and wary of the outside world. I have a lot of scars on my body … the nerves in my hand are also messed up. I am scared to get into a situation like that again.’

In 2020, while his deportation appeal was being passed between the First Tier and Upper Tribunals, RN was again sent to prison for carrying a knife. A few weeks before his arrest, the police had sent him a letter notifying him of a threat to his life. ‘Your personal safety is now in danger,’ the letter read. ‘Information has been received that you are involved in a conflict and others intend to cause you harm.’ The Met use a ‘gangs violence matrix’ to identify and score those they deem at risk from gang violence in London, as well as its perpetrators. But, as RN wrote in his witness statement, ‘All they said was that there was a threat to my life, they did not give me any further information. I asked them what the next step was and what we can do, but they didn’t give me any advice at all.’ So he took to carrying a knife again. A few weeks later, the police stopped and searched him, as they often did, and he was arrested.

RN knew that if convicted he would be sent to prison again and, at the end of his sentence, quite possibly deported to Jamaica. But he had just been told his life was in danger. The police claimed he was in a gang, which he disputed. It can be difficult to know how the police determine gang membership, and the designation is disproportionately used to criminalise young black men. In a study published in 2016, the criminologists Patrick Williams and Becky Clarke wrote that while only a fraction of ‘serious youth violence’ offences in London and Manchester were committed by black people (27 per cent and 6 per cent respectively), most of those on the gang matrices in both cities were black (72 per cent and 81 per cent respectively). RN said that he ‘never understood why the police thought I was part of a gang … To me these were people I had known since primary school.’

The deported people I’ve met in Jamaica told me similar things: they claimed they were targeted by the police on the basis of those they associated with. Some of them were charged and convicted under joint enterprise: in other words, for crimes, including murder, committed by others. Despite the Supreme Court ruling in 2016 that the law had taken a ‘wrong turn’ and that joint enterprise was being used inappropriately, there has been no decline in convictions under the protocol. Like RN, many of those convicted have spent time in care. RN’s witness statement ends: ‘I am only 22 years old; I just want to live like a normal 22-year-old.’

Most successful appeals require the appellant to make a convincing display of victimhood. But neither AB nor RN had essential caring responsibilities. They didn’t have disabilities or psychiatric diagnoses. Many migrant advocates choose to focus on ‘foreign criminals’ who have been convicted of immigration offences, such as working illegally or using false documents, and emphasise the exploitative practices of traffickers and unscrupulous employers. But most of the deportation cases I see involve convictions for selling drugs, and many involve violence. I have written reports for individuals who claim to be bisexual – LGBT applicants from Jamaica have a better chance of receiving asylum than most other groups – and have seen the kind of questioning they’re subjected to when courts try to determine their sexuality. It’s also increasingly common for young men facing deportation to claim to be victims of modern slavery. The definition has expanded from women forced into sex work to include victims of labour trafficking more widely (for instance, Vietnamese men brought to the UK to work on marijuana farms) as well as young people who sell drugs as part of ‘county lines’ networks. In all these cases, the strict opposition between force and consent doesn’t hold, but there are small openings for those making legal claims. The home secretary, Suella Braverman, said in October that people were ‘gaming the system’ by claiming to be victims of trafficking. Migrant and labour organisations responded by pointing out that more than 90 per cent of trafficking claims were found to be genuine. The number of people in immigration detention who claimed to be victims of trafficking quadrupled between 2017 and 2021. It isn’t surprising that their lawyers should seek to use such experiences in their appeals.

The government recognises the possibility of persecution by a foreign state, organised criminal groups or people traffickers. But for the many people let down and mistreated by institutions of the British state – social services, education authorities, police officers, prison guards, health officials – redress is elusive. Consider the case of DS, who was born in Jamaica and came to the UK in 2003 at the age of nine. He committed his first offence when he was fifteen. In 2014, aged twenty, he received a six-year sentence for possession of Class A drugs, possession of a bladed article, theft and blackmail. A year later, he contracted TB meningitis in prison and had to undergo surgery to relieve the build-up of fluid on his brain. He was then detained under immigration powers for fourteen months while the Home Office tried to remove him to Jamaica. The illness and surgery left him with memory loss, poor concentration, headaches, partial blindness, motor difficulties and incontinence. DS lodged a civil claim against the British state, since he had contracted the disease in its care. But the Home Office refused to grant him leave to remain. He spent more than four years living in detention or detained at his mother’s house, unable to work and without access to public funds. After several rounds of appeals, he was finally granted leave to remain in 2021.

Deportation policies make much of the idea that law-abiding citizens are threatened by outsiders and interlopers. This doesn’t correspond to reality. As RN’s lawyers pointed out, ‘he was not raised as Jamaican. Neither he nor his mother speaks patois. The family he sees in the UK is a mix of cultures, mainly African, but with white British cousins too.’ Many of the cases I’ve seen contain accounts from white stepmothers, partners, colleagues and friends, stories that point to the muddled co-existence of racism and mutuality in contemporary Britain.

My reports can’t do justice to this; by necessity they are full of oversimplifications and crude references to endemic violence. For privately funded cases, I write the reports pro bono; for the rest I am paid up to £1000. Lawyers who go to the effort of commissioning expert reports usually also apply for exceptional legal aid funding. I keep the money I receive in an emergency fund to send to friends in Jamaica, deported people who are rebuilding their lives on the island. Money from the legal aid authority has paid for chickens and a coop for Denico in St Elizabeth, a motorbike and a driving licence for Chris in Kingston, and the restocking of Lorna’s market stall in Maypen. I don’t let the balance get close to zero – you never know when the next hurricane will hit.