Hudson, R (on the application of) v Secretary of State for Home Department & Anor

J U D G M E N T

1. MR JUSTICE BENNETT: The claimant in this case, Newton Hudson, seeks judicial review of the Secretary of State for the Home Department's decisions on 25 February 2005 and 11 March 2005, which I shall call the "first" and "second decision" respectively. The first decision refused the claimant permission to stay in the United Kingdom on the basis of his marriage to Miss Augustas on 5 September 2003. The second decision, which followed the inception of these judicial review proceedings, rejected the assertion that the claimant's removal to Jamaica would breach his rights under Article 8 of the European Convention on Human Rights, and certified under section 94(2) of the Nationality Immigration and Asylum Act 2002 that the claimant's claim in respect of human rights was clearly unfounded. There are subsequent letters which could legitimately be described as decision letters to which I will refer in due course.

2. The claimant is from Jamaica and is a citizen of that country. He unfortunately has a poor record of criminal convictions. On 23 December 1997 he was convicted of assault and bound over for two years. On 15 July 1994 he was convicted of shooting with intent and sentenced to six months' hard labour. On 15 July 1994 he was convicted of illegal possession of a firearm and sentenced to three years' hard labour.

3. In about 2001 the claimant was arrested for the murder of a Jamaican police constable. He was, shortly before September 2001, granted bail. However, he did not keep to his terms of bail, and on 12 September 2001 a bench warrant was issued for his arrest, which is still in force. His co-defendant in the case was convicted and sent to prison for 30 years.

4. On 5 September 2001, that is at the time when the claimant was on bail, he left Jamaica and arrived in this country. He was granted leave to enter as a visitor in order, he said, to visit his cousin. He told the immigration officer that he had four children in Jamaica and would be returning to his job in that country as a forklift truck driver after some three weeks. It is apparent that he did not tell the immigration officer of his previous convictions, and neither did he tell the immigration officer that he had skipped bail on a charge of murdering a police officer.

5. On 24 September 2001 the claimant made an application for further leave to remain. That was refused in January 2002. The claimant appealed, and on 23 July his appeal was dismissed by an adjudicator. On 16 November 2002 the Home Office wrote to the claimant at his last known address, informing him that he was required to leave the United Kingdom. The letter was returned "addressee unknown" and nothing was further heard from the claimant.

6. On 5 September 2003 the claimant married Miss Augustas in this country. On 18 September the claimant was arrested as an overstayer, served with a notice of liability to removal and placed on reporting restrictions. On 9 November 2003, Mr and Mrs Hudson's first child, a girl, was born. On 2 January 2004, the claimant made an application for leave to remain in this country on the basis of his marriage to his wife. The defendant would say that he falsely declared in that application that he had no previous convictions.

7. On 12 November 2004, the second child was born to the claimant and his wife. At this time, or about this time, the claimant's wife became ill. She describes it in her statement of 30 March 2005. On 8 December 2004 the claimant was arrested in connection with drug offences, of which, it is only fair to say, he was subsequently acquitted. This had a serious impact, it would seem, upon the claimant's wife. For she was, on 12 December, admitted to the Queen's Medical Centre. She suffered a mental breakdown and was hospitalised until about the middle of January 2005. Thereafter she was re-admitted for about a week. Indeed, it is said that she was sectioned under the Mental Health Act. This must have placed profound stresses not only upon her relationship with the claimant, but also, of course, in respect of her children.

8. On 1 February 2005 it would appear that the claimant was granted bail until 23 February, when he was acquitted of the charges relating to drugs. He was immediately re-arrested under immigration law. The claimant's application to remain here on the grounds that he had married a British citizen have not been determined. But, on 25 February 2005, a letter was written to the claimant's solicitors in Nottingham, rejecting the claimant's application. Paragraph 364 of the Immigration Rules explains that deportation will normally be the proper course where a person has failed to comply with or has contravened a condition or has remained here without authority. However, he was not within the Immigration Rules, as Miss Richards, for the defendant, has submitted. That is because he did not have leave to enter or remain in the United Kingdom, and because he remained in breach of the Immigration Rules.

9. Accordingly, his application had to be considered under the policy commonly known as DP3/96. That policy provides that, effectively speaking, the applicant could remain here if two conditions were satisfied: the first being where an applicant has a genuine and subsisting marriage with somebody settled in the United Kingdom, and the couple have lived together in this country continuously since their marriage for at least two years before the commencement of the enforcement action; and secondly it is unreasonable to expect the settled spouse, ie in this case Mrs Hudson, to accompany the claimant on removal.

10. It was under that policy, and there is no dispute that that was the correct thing for the Secretary of State to do, that he considered the application of the claimant. It is apparent that the claimant could not come within the policy because his marriage did not pre-date by two years the service of the notice of liability to removal. Nevertheless, the Secretary of State considered whether there were sufficient compassionate grounds to justify the concession to the claimant on the grounds of marriage. In the letter, the Secretary of State's officer wrote as follows:

"It is considered that it would be reasonable to expect both parties to have been aware that your client's precarious immigration status was such that the persistence of their marriage within the United Kingdom would, from the outset, be uncertain. Moreover, although your client's spouse is a purported British citizen, it is believed [she] could reasonably be expected to live in Jamaica. You claim that your client's wife cannot accompany him to Jamaica as she has never left the United Kingdom previously and has never held a United Kingdom passport, in addition to the distance from Jamaica to the United Kingdom and cultural differences between the two countries. It is noted that you have submitted only the purported birth certificate of your client's spouse and an NHS card as evidence of her nationality and residence. You are reminded that birth certificates state quite clearly that they are not evidence of identity. An NHS card is not accepted as proof of nationality. All documents submitted are dated 2003 and as such do not demonstrate three years residence. If your client's spouse is a British citizen as claimed, it is open to her to apply for a passport and to travel to Jamaica with her husband. Failing this, she can remain in this country and support any application that your client might make for entry clearance to return in the appropriate category. It is not accepted that it would be unreasonable to expect Mr Newton's spouse to accompany him or remain here to support an application for him to return.

The couple also claim to have a child who is a British citizen, though you have provided only a birth certificate to support this claim. You have not provided evidence to demonstrate that your client supports or exercises rights of access to this child. At only one year of age she is considered young enough to adapt to life abroad with her parents. Although your client's child's material quality of life in Jamaica may not be to the same standard as it would in the United Kingdom, this is the case with many children brought up in other countries and is not considered a sufficiently compelling factor. When of an age to be independent of her parents she would be able to return to the United Kingdom to take up her right of abode should she wish to do so.

In the circumstances we are not persuaded that the position of your client's family constitutes a sufficiently compelling reason for making an exception to the normal practice of removing those who have remained in the United Kingdom illegally."

11. It was that rejection of the claimant's application that led almost immediately to the institution of judicial review proceedings. No doubt, as a result of the institution of these proceedings, and to what was said in the grounds, the Secretary of State deemed it advisable to consider the rights of the claimant under Article 8 of the European Convention on Human Rights.

12. A further decision letter came into being, ie the second decision letter. That letter, broadly speaking, recounted the history. By this time the Secretary of State did know that another child had been born to the claimant and his wife. Furthermore, the Secretary of State by then did know of the medical history of Mrs Hudson. The application was considered upon the basis that the claims and the evidence submitted by and on behalf of the claimant was credible. However, it was concluded that there were insufficient compassionate circumstances to justify a concession on the grounds of the marriage, and insufficient grounds to effectively trigger the Article 8 rights, or, if they were triggered, that they should be implemented.

13. The Secretary of State considered that it would be no interference with the claimant's family life were the claimant and the two children to go with him to Jamaica for the purposes of making an application to be admitted to the United Kingdom. It is plain that he had regard to the fact that the claimant's private life had been established in this country unlawfully in the knowledge that he had no right to be here and could be removed at any time. His officer recorded how the claimant's rights had to be balanced against the wider rights and freedoms of others in the general public interest.

14. Specifically, consideration, it was said, had been given to the claimant's wife's mental illness. The Secretary of State considered the Pan-American Health Organisation 1999 Country Profile of Jamaica and considered that there were sufficient facilities, both for physical matters and any mental conditions, in Jamaica for the claimant's wife to be adequately cared for. He concluded:

"It is therefore considered that there would be adequate treatment available in Jamaica to both your client and his wife should they choose to utilise it. Your client's medical condition is not sufficiently compelling as to allow him to remain in the United Kingdom unlawfully."

15. Finally, in that letter it was said:

"In addition, your client's human rights claim is one to which section 94(3) of the Nationality Immigration and Asylum Act 2002 applies. This requires the Secretary of State to certify that your client's claim is clearly unfounded unless he is satisfied that it is not clearly unfounded. After consideration of all the evidence available, it has been decided that your client's claim is clearly unfounded. Therefore, it is hereby certified under section 94(2) [of the 2002 Act] that your client's claim is clearly unfounded."

16. On 15 March 2005 the matter came before Bean J, who refused permission on the papers. There then followed two statements: one from Mrs Hudson and one from the claimant. At the very outset of the claimant's statement he asserted that he was innocent of the offence of murdering the police officer with which he had been charged with in Jamaica. He then said in the final paragraph:

"I was afraid then and I am even more afraid of being persecuted; in fact I may never reach court."

In the light of the information that has subsequently been forthcoming, which can be put under the heading, "Persecution", that is a remarkably laconic statement.

17. On 21 March an application to renew was made and the matter came before Gibbs J on 8 April, when he permitted the claimant to make an application to renew, albeit that the application was late. It was at that stage, as I understand it, that the claimant's legal team thought that it would be appropriate to amend the grounds for judicial review. Broadly speaking, the amendment amounted to an assertion that the claimant was unlikely to receive a fair trial, because as he was charged with an offence of murder, and particularly of a police officer, there was a real risk that, if he was convicted, he would be sentenced to death. That assertion then led to a hiatus in the proceedings whilst the Secretary of State, or more accurately the Treasury Solicitor on his behalf, investigated what the position might be depending upon the charges that were finally levelled against the complainant. As a result, various hearings that were going to take place in respect of the permission were adjourned.

18. At about the end of July 2005, a communication was made on behalf of the Director of Public Prosecutions in Jamaica, Mr Kent Pantry QC, to the defendant in relation to the claim. At page 52 of the bundle there appears the following document, signed on behalf of the Director of Public Prosecutions:

" Re: The Deportation or Extradition of Newton Hudson, Jamaican National.

Further to our discussions ... I reviewed the statements and depositions in the relevant file relating to the original charges for which Mr Hudson was before the court in the parish of Clarendon.

I hereby advise that the office of the Director of Public Prosecutions would undertake to prefer indictments only for Illegal Possession of Firearm, Robbery With Aggravation, Burglary and/or Non-Capital Murder against Mr Hudson.

None of the aforementioned charges would attract the death penalty if Mr Hudson was convicted. He would only be liable to a term of years up to life imprisonment if found guilty.

I have had discussions with Mr Kent Pantry QC, the Director of Public Prosecutions, who was seized of the matter and he agreed that this is the procedure that this office would adopt.

The Jamaican Law Enforcement authorities would wish to have Mr Hudson (who had absconded his bail between 14 August 2001 and 10 September 2001 during the preliminary Enquiry) returned to this country and ordered in order to expedite the trial of this matter as soon as possible. This office would be prepared to request Mr Hudson's extradition from the United Kingdom (or to acquiesce to his deportation). Before these arrangements are embarked upon, we would wish to be advised as to his exact status in the United Kingdom as far as Law Enforcement and Immigration authorities are concerned. Your prompt response would be appreciated."

19. That then led, in turn, to a further decision letter of the defendant of 9 August 2005. That letter was of some length and I shall do my best to summarise it. The Secretary of State was required to consider a bundle of four pages short of 300 that had been submitted on behalf of the claimant. So far as a fair trial and the death penalty was concerned, the Secretary of State, as is shown from the letter of 9 August, had regard to the CIPU report of October 2004 about the legal system in Jamaica. He further had regard to various other documents, including newspaper reports. On that basis, and upon particularly the documents submitted on behalf of the Jamaican Director of Public Prosecutions, the Secretary of State concluded that the claimant would receive a fair trial in Jamaica, and that he would not face the death penalty.

20. Further consideration was given to the claimant's medical condition. He apparently suffered from an overactive thyroid gland. Consideration was also given to medical reports from the claimant's wife's general practitioner and her perinatal psychiatric consultant, Dr Murjan. The Secretary of State noted that the claimant's wife was diagnosed with puerperal psychosis and acute schizophrenia-like psychotic disorder, and that, upon release, she did not take her medication, but rapidly improved when she did. So, in all the circumstances, as was set out in that letter, the Secretary of State declined to alter his decisions of March 2005 and maintained the certification that the claimant's claim was unfounded.

21. There was a further letter from the Secretary of State of 19 August 2005, refusing the release of the claimant from detention. But Mrs Sood, counsel for the claimant, rightly conceded, in my judgment, that that really did not impact upon my decision or the Secretary of State's consideration of the claimant's position at all.

22. There then came about this development. On 21 September 2005, two statements came in to being, one from Karen Anderson and one from Rachel Cooke, both Jamaican citizens. Rachel Cooke is the claimant's mother, and Karen Anderson had been a girlfriend of the claimant. The nub of their statements is to this effect: there were one if not two police officers who had threatened to kill the claimant. Miss Anderson speaks of an occasion when the claimant was in police custody. She says she heard Mr Taylor, a police officer, who was standing nearby the claimant and his mother, who was in a state of distress, tell the claimant, "You kill the policeman, but even if you get whey[sic], anywhere me see you a go kill you".

23. Mrs Cooke says that she has heard threats to the life of her son, the claimant. In the year 2000, another policeman called Davis came to her house asking for her son. She told him she did not know where he was. It was said that the policeman, Officer Davis, said to her that, "Anywhere I catch him, I am going to kill him". She also spoke of the occasion witnessed by Miss Anderson.

24. Those statements were served upon the defendant at the end of September. On 7 October, the claimant made a further very short statement of some six paragraphs. He said that he had discussed with his solicitor on 26 August 2005, that is his English solicitor, why he felt his life was in danger from the police in Jamaica and that was why he had fled in September 2001. He told his solicitors that both before and after the preliminary hearing in September 2001 the police had threatened him and he became very afraid for his life.

25. Those three statements then led to yet another decision letter of the defendant of 7 October 2005. Not surprisingly, in my judgment, the Secretary of State or his officer was somewhat incredulous that such material could be produced so late in the day, if indeed it was something that was credible. It was concluded thus in that letter:

"It is considered that the affidavits have been submitted merely to bolster your client's case and to attempt to delay removal even further. They are not significant and add no weight to your client's case. The previous decisions to refuse and certify your client's human rights claims are maintained."

26. On 10 October 2005, the matter finally came before the court for an adjudication upon whether the claimant should have permission to bring judicial review proceedings. Langstaff J, having heard counsel for both parties, decided that permission should be given. There then followed a consent order on 13 October for the filing of all evidence by 28 October and skeleton arguments to be in by certain dates. I have to say that none of those orders were followed, perhaps for good reason or not so good reason -- it does not really make any difference because I have had to consider the new evidence that has been served extremely late in the day. The new evidence consists of a report from a Jamaican lawyer, Mr Dennis Morrison, basically on the subject of extra-judicial killings by members of the security forces in Jamaica, supplemented with the bundle of material about Jamaica produced by Mr Morrison, a medical report concerning the claimant's wife and yet another statement from the claimant.

27. Mr Dennis Morrison is a lawyer practising in Jamaica with the firm Dunn Cox, who are Attorneys-at-Law. I of course accept that he is a man of very considerable experience, and indeed he has been one of Her Majesty's Counsel in Jamaica since 1994. He speaks about the type and circumstances of what are called extra-judicial killings. In the context of, if one can put it colloquially as counsel did, "shoot-outs" between police and gangsters. Perhaps of more relevance in the instant case is his assistance in his report at paragraph 2 about deaths in police custody by untoward means. This is what he says:

"While there have also been reports of such deaths in the past, [there] have by no means been as many as in respect of deaths as a result of "shoot out". A report from the Gleaner in September 1 2005, a leading Jamaican daily newspaper, of two men who went missing after last being seen in police custody. That matter, as far as I am aware, remains unresolved. The most well-known incident of the kind, in what has become known as the "Agana Barrett" case, involved the death while in police custody about 10 years ago of a young man who had been kept in an overcrowded, insanitary lockup and who in fact died of suffocation and dehydration."

28. A medical report dated 11 November 2005 comes from Dr Baruah, a consultant psychiatrist, practising in Nottingham. He has read all the medical reports of Mrs Hudson and had an interview with her on 8 November 2005. That report disclosed -- I do not say that derogatorily in any sense at all -- that the claimant's wife had visited Jamaica, and Mrs Sood confirmed that indeed she had visited Jamaica in about the middle of 2005. It also would appear from that report that Mrs Hudson is not taking her medication which is something not uncommon with psychiatric patients. This, of course, would increase the risk of a relapse or recurrence of her condition that she experienced earlier this year.

29. Dr Baruah's opinion is this:

"Based on the available evidence, I conclude that Mrs Hudson is highly vulnerable and is likely to remain so for another 8 months or so, that is, if she remains clinically free from symptoms until then. If she relapses, she will require special services from a Mother and Baby service. It is not known if such services are available in the part of Jamaica where they may wish to settle. I have already advised her to consult her GP if she requires abnormal perception however transient it may be. Generally, she will require support and assistance in the process of bringing up two children under the age of 3 and I sincerely hope that the court will consider this aspect in detail before drawing any conclusions."

30. The third block of information, if I may call it that, comes from the claimant himself in a statement of 14 November. This basically has two purposes: one to expand upon the threats made by Mr Taylor and Mr Davis, and he gives evidence of the threat made by Mr Davis at the preliminary hearing; the other to speak of, "Extortion of money since arriving in the UK", and he details various conversations that he has had with the police officer, Mr Davis, which would suggest that that officer was trying to extort money from him. He also in his statement says that he was extremely fearful of disclosing all this information in that statement before in fact he did.

31. That further material led, in turn, to yet another decision letter from the Secretary of State in a letter of 17 November. Broadly speaking, I am satisfied that it considered all the material that was then in existence, including all the material to which I have just referred, which was served in early November. Furthermore, it is said that the Director of Public Prosecutions in Jamaica had been involved in the claimant's case and as such:

"... it is considered that with the involvement at such a high level, that your client would be protected from any extra-judicial punishment or killing.

Furthermore, it is known that your client will be met by police upon his arrival in Jamaica and taken directly to custody to await trial. He will be closely supervised throughout his trial to ensure that no harm will come to him."

32. The letter then goes on to refer to another similar case involving a man called Kevin Tyndale, and quotes at length from various newspapers. The Secretary of State therefore concludes:

"This demonstrates that a known criminal can receive a fair trial and protection from the police force, and that he can challenge his conviction on the basis of identification evidence."

33. The letter specifically says that, notwithstanding any question marks that might be placed over the claimant's evidence by reason of its late production, the case had been considered on the basis that his account of events was credible. It noted that the claimant had made no complaint to the Jamaican authorities about the alleged threat, and that the Secretary of State considered that, if such complaints were made, the Jamaican authorities would do their best to investigate.

34. He considered the October 2005 CIPU report, and in particular noted that investigations are made into shooting incidents, albeit it would appear, as Mrs Sood commented in her submissions, that either there is a large backlog or the authorities have not been particularly successful in investigating very many of the allegations of shooting incidents. There are references in the letter to quotes from the various Jamaican newspapers, from which the Secretary of State concluded as follows:

"This information [and that is not just restricted to the newspapers] clearly demonstrates that full investigations are carried out with regards to alleged police shootings and that members of the public can approach and complain about individual officers and that these are dealt with properly. It is also clear that police officers involved in corruption and bribery are disciplined accordingly. It is therefore not accepted that your client is at any risk of being killed as he alleges.

It has been decided to maintain the previous decisions to refuse and certify your client's human rights claims for the reasons given in the earlier decision letters and for the reasons set out above."

35. Mrs Sood's submissions about the first decision letter are these. She accepts, as she has to, that the Secretary of State has a discretion in the matter and that he rightly set out the correct policy. However, her submission is that, first of all, the Secretary of State was not aware of the death of the second child, which indeed he was not at that time; nor, of perhaps more importance, was he aware of the nature of Mrs Hudson's illness or medical treatment. That, she says, are factors which go to the root of the decision-making process and are sufficient to show either that the Secretary of State did not consider all the relevant material matters, or alternatively, if he had, he would have been bound to have made a different decision. Thus, in effect, that his decision was either unlawful or perverse.

36. Miss Richards, on behalf of the Secretary of State, has shown me the policy, which I hope I have accurately set out. She submits that the Secretary of State considered the application in accordance with the policy; the claimant fell outside the terms of the policy, and that, even if the Secretary of State had known about the birth of the second child, and even if he had known about Mrs Hudson's ill-health, that would still not have brought the claimant within the policy because he had not been married for two years before the relevant date.

37. She submitted that there was nothing irrational or unlawful about the decision, and he arrived at the decision properly reached on the material available. If the Secretary of State did not consider certain material, it was nevertheless incumbent upon the claimant to put forward all material that he wished to be considered, but that, as I have said, even if the claimant had put forward all that material, nevertheless the claimant still fell outside the policy.

38. I have considered those arguments. I have no doubt Miss Richards is correct and that the Secretary of State did not act irrationally, unlawfully or unreasonably in coming to the decision that he did on that particular decision letter. I turn now to the second decision letter.

39. Here Mrs Sood says, as I understand it, that, although the Secretary of State purported to address the claimant's rights under Article 8 of the European Convention on Human Rights, the fact that the claimant's wife was seriously ill, that she needed the support of the claimant, was enough for the Secretary of State to have exercised his discretion to conclude that the Article 8 rights were of such importance, if I may put it in that way, that it necessitated him remaining in his country so that he could make an in-country appeal. The breakup of the family, Mrs Sood submitted, that would be entailed by the removal of the claimant to Jamaica was, in the circumstances of this case, wholly disproportionate.

40. Furthermore, so far as the adequacy of mental health facilities in Jamaica was concerned, he, the Secretary of State, had failed to take into account that there either was not or might not be mother and baby units for the mother in Jamaica.

41. Miss Richards helpfully took me through the legislative framework. She has set out, in paragraph 12 of her skeleton argument, section 94 of the 2002 Act. Jamaica is one of the states listed in section 94(4). The crucial statutory provision is contained in section 94(3), which provides:

"If the Secretary of State is satisfied that an asylum claimant or human rights claimant is entitled to reside in a State listed in subsection (4) [Jamaica is so listed] he shall certify the claim under subsection (2) unless satisfied that it is not clearly unfounded."

Sub-section (2) provides:

"A person may not bring an appeal to which this section applies in reliance on section 92(4) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) is or are clearly unfounded."

The claims therein referred to are either asylum claims or human rights claims or both: see section 94(1).

42. Miss Richards then took me on a short journey through the relevant authorities, which I will try and deal with as concisely as I can. The first was R(Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840, a decision of the Court of Appeal, presided over by Lord Phillips MR (as he then was). This was what might be described as a marriage case, ie where an illegal entrant married a lady settled in the United Kingdom. The first passage in the judgments of the Court of Appeal, to which Miss Richards made reference, is contained in paragraph 23 of the judgment of Laws LJ, at just above the letter G, where he said:

"Firm immigration control requires consistency of treatment between one aspiring immigrant and another. If the established rule is to the effect -- as it is -- that a person seeking rights of residence here on grounds of marriage (not being someone who already enjoys a leave, albeit limited, to remain in the UK) must obtain an entry clearance in his country of origin, then a waiver of that requirement in the case of someone who has found his way here without an entry clearance and then seeks to remain on marriage grounds, having no other legitimate claim to enter, would in the absence of exceptional circumstances to justify the waiver, disrupt and undermine firm immigration control because it would be manifestly unfair to other would-be entrants who are content to take their place in the entry clearance queue in their country of origin."

Laws LJ made similar observations in paragraph 26.

43. Lord Phillips, in his judgment, in particular at paragraph 66, addressed a slightly different point, though it is of relevance in the context of the instant case. He said:

"Miss Webber's second point, which is allied to her first, is that it is unreasonably harsh to require the applicant to give up contact with his wife and young children for however long may be needed to process his application at the British High Commission in Pakistan. I would endorse the comments made by Laws LJ in relation to Miss Webber's reliance on R v Secretary of State for the Home Department, Ex p Hashim 12 June 2000 in this context. At the same time there is obvious force in Miss Webber's argument that it will be harsh if the applicant is denied contact with his two young children for a lengthy period. I would hope that this consideration will lead to any application that he may make under paragraph 281 being dealt with with reasonable expedition. I do not consider, however, that the Secretary of State's insistence that the applicant should comply with the same formal requirements as all other applicants seeking an entry visa to join spouses in this country is in conflict with article 8."

44. The refrain in that case was taken up in R(Ekinci) v Secretary of State for the Home Department [2003] EWCA Civ 765, in which in a well-known passage in his judgment at paragraph 17, Simon Brown LJ (as he then was) said this:

"It would be a bizarre and unsatisfactory result if, the less able the applicant is to satisfy the full requirements for entry clearance, the more readily he should be excused the need to apply. The time presently being taken to process entry clearance applications in Germany is, we are told, something under a month. When granting permission to appeal, Sedley LJ said of this appellant's immigration history that 'few claimants come to court with a track record of such prolonged evasion and mendacity'. True it is, as Sedley LJ also observed, that 'the protection of one's human rights is not a reward for virtue and the withholding or dilution of them is not a penalty for vice', but that is not to say that a person's immigration history is an irrelevant consideration when striking the balance between his article 8 rights and the countervailing public interest in maintaining effective immigration control. To my mind it is entirely understandable that the Secretary of State should require the appellant to return to Germany so as to discourage others from circumventing the entry clearance system. One authority which Mr Jacobs put before us was this court's decision in Shala v Secretary of State for the Home Department [2003] EWCA Civ 233. In giving the leading judgment there Keene LJ said at paragraph 10:

12.

'It is important that those without leave to enter or remain should not be able to exploit the procedures so as to be able to prolong their stay in the United Kingdom by making in-country applications for such leave. As Mahmood ... shows, even with a subsisting marriage, a person only here on temporary admission will be required to return home to seek entry clearance, unless there are exceptional circumstances'."

45. The next authority that Miss Richards took me to was Huang v Secretary of State for the Home Department [2005] 3 WLR 488, a decision of the Court of Appeal whose judgment was delivered by Laws LJ. There are various passages in the judgment of the Court of Appeal which Miss Richards says are important. The first appears at paragraph 56 at letter D:

"In our judgment his duty, when faced with an Article 8 case where the would-be immigrant has no claim under the Rules, is and is only to see whether an exceptional case has been made out such that the requirement of proportionality requires a departure from the relevant Rule in the particular circumstances. If that is right, the importance of maintaining immigration control is a prior axiom of the debate before him."

46. At paragraph 59, the Court of Appeal laid emphasis that the case must be "so exceptional on its particular facts that the imperative of proportionality demands an outcome in the appellant's favour, notwithstanding he cannot succeed under the Rules". At paragraph 60, a different, but, in a sense, similar emphasis is placed, where it is said that the case must be "truly" exceptional.

47. Miss Richards submitted shortly as follows, based upon that legislative and authority framework. First, that the claimant and his wife must always have known of the claimant's precarious immigration position. Second, the claimant has family in Jamaica, namely parents and siblings. Third, there is no evidence that the claimant's wife's mental health is such that she could not travel to Jamaica. Indeed, Miss Richards points to the fact that in the early part of this year the claimant's wife went to Jamaica for two weeks. Fourth, she submits that mental health services are available in Jamaica, as has been set out, and that the claimant has not submitted evidence of a lack of mother and baby units.

48. She accepts that it could be said that Mrs Hudson is a vulnerable person, but she is not somebody who cannot move to Jamaica. Overall, Miss Richards submits there is nothing truly exceptional such that it could be said that the certification should be quashed.

49. Before I come to my decision on the merits of the rival arguments, I think it is right for me to continue and just make my views known about the subsequent matters in this case. In my judgment, I consider that there is nothing now in the submission that the claimant is at risk of an unfair trial. It seems to me to have been put beyond all reasonable doubt that the claimant will not suffer the extreme penalty of execution. The document at page 52 has made quite clear that the claimant, if returned to Jamaica, will only face charges that do not carry the death penalty.

50. So far as the threats from police officers are concerned, I accept Miss Richards' submissions that the threats seem to have been sporadic, albeit they must have been extremely unpleasant; and that perhaps Police Constable Davis is more interested in extorting money from the claimant than he is seeking any sort of revenge.

51. The key, in my judgment, as Miss Richards submitted, is whether or not there is sufficient or reasonable protection for the claimant. In that respect, Miss Richards drew my attention to the authority of Horvath v Secretary of State for the Home Department [2001] 1 AC 485. The facts of that case sufficiently appear from the headnote. The applicant was a Roma citizen of Slovakia. He claimed asylum in this country because he feared persecution in Slovakia by skinheads. When the case reached the House of Lords, Lord Hope of Craighead gave the leading speech. At page 494 he said at letter G:

"(3) what is the test for determining whether there is sufficient protection against persecution in the person's country of origin - is it sufficient, to meet the standard required by the Convention, that there is in that country a system of criminal law which makes violent attacks by the persecutors punishable and a reasonable willingness to enforce that law on the part of the law enforcement agencies? Or must the protection by the state be such that it cannot be said that the person has a well-founded fear?"

52. Lord Hope, at page 500, letter G, answered that question in the following terms:

"As regards the third issue, the answer to it also is to be found in the principle of surrogacy. The primary duty to provide the protection lies with the home state. It is its duty to establish and to operate a system of protection against the persecution of its own nationals. If that system is lacking the protection of the international community is available as a substitute. But the application of the surrogacy principle rests upon the assumption that, just as the substitute cannot achieve complete protection against isolated and random attacks, so also complete protection against such attacks is not to be expected of the home state. The standard to be applied is therefore not that which would eliminate all risk and would thus amount to a guarantee of protection in the home state. Rather it is a practical standard, which takes proper account of the duty which the state owes to all its own nationals. As Ward LJ said at p.44G, under reference to Professor Hathaway's observation in his book at p.105, it is axiomatic that we live in an imperfect world. Certain levels of ill-treatment may still occur even if steps to prevent this are taken by the state to which we look for our protection. I consider that the Tribunal in this case applied the right standard when they were considering the evidence."

53. I have also been referred to a passage in the speech of Lord Clyde to very similar effect, at page 510, letter F through to 511, letter D. I hope it will not be thought disrespectful to say that I have read that important passage with care, but I do not intend to set it out in this judgment.

54. Miss Richards submits that the same approach must be, and is, adopted in relation to Article 8 rights under the European Convention on Human Rights. Miss Richards took me through the decision-making letter of 17 November and submitted broadly that the Secretary of State could rationally conclude that there was sufficient protection to meet the necessary standards as set out by Lord Hope and Lord Clyde in the Horvath case. The factors show that there have been fatal shootings by the police, that they are taken seriously by the Jamaican courts, and that systems are in place for the investigation and prosecution of rogue police officers.

55. She further submitted, on the basis of the expert adduced by the claimant, Mr Morrison, that deaths in police custody are nothing like so many as what might be described as killings between the police and gangsters. There is nothing to suggest that they are frequent or that, in the instant case, access will be gained either by Mr Taylor or Mr Davis to the claimant whilst he is in police custody.

56. For her part, Mrs Sood referred me to four authorities, with which I will deal with briefly. The first was R(Husan) v Secretary of State for the Home Department [2005] EWHC 189 Admin, a decision of Wilson J (as he then was). With all respect to Mrs Sood, and even taking into account paragraph 29 of the judge's judgment, I do not consider that that case really in any way assists me.

57. The second authority was Atkinson v Secretary of State for the Home Department [2004] EWCA Civ 846, and in particular passages in the judgment of Scott Baker LJ at paragraphs 34, 35 and 37. Of course, one notices that there is an immediate difference in the facts between that case and the instant case, namely that Mr Atkinson, if he was to be returned to Jamaica, would be at liberty and not in custody, and that it was a case not of potential death in police custody, but potential death as a result of criminal gangs targeting Mr Atkinson because of his perceived political views and because of his perceived homosexuality.

58. The third case is A v Secretary of State for the Home Department [2003] EWCA Civ 175. Mrs Sood referred me, in particular, to paragraph 30 in the judgment of Keene LJ. However, again, there is a significant difference between that case and this, namely in that case there was a real risk that, sooner or later, as Keene LJ put it in paragraph 30:

"... wherever the appellant located herself in Jamaica, the Tivoli Gardens gang would be likely to find her and seek revenge."

59. The final case that Mrs Sood referred me to was R(Djakija) v Secretary of State for the Home Department [2005] EWHC 1394 Admin, a decision of Moses J (as he then was). Again, I have had paragraph 15 that Mrs Sood relies on drawn to my attention by her, but again, with respect, I do not think that, in the instant case, it carries the matter any further. That, as Miss Richards says, was concerned with a person at liberty giving evidence against a former member of the KLA.

60. So, in the light of all those submissions, I return to, and bear in mind in considering, the letter of March 2005, whether or not the Secretary of State was entitled to come to the decision that he did. In my judgment, he plainly was and there are no grounds to impugn the Secretary of State's decision in that letter, as supplemented by the subsequent letters. I am satisfied that he considered all the matters that were put before him. He had a difficult balancing exercise to make between the factors put forward by the claimant on the one part, and on the other by the importance of upholding the immigration laws of this country and not allowing, effectively speaking, the claimant to jump the queue by making an in-country appeal. Broadly speaking, for the reasons put forward by Miss Richards, I find in favour of the Secretary of State on that ground as well.

61. Accordingly, the application for judicial review, although it has been argued, if I may say so, with great skill by Mrs Sood, is dismissed.

62. MISS RICHARDS: My Lord, if I might just enquire if the claimant is publicly funded?

63. MRS SOOD: The claimant is publicly funded.

64. MR JUSTICE BENNETT: I think it is in the bundle actually.

65. MISS RICHARDS: I did not think we had seen it. In that case I do not make any application for costs.

66. MR JUSTICE BENNETT: Very well. No order for costs.

67. MRS SOOD: Except for the public funding assessment.

68. MR JUSTICE BENNETT: Absolutely. I grant that with great pleasure, if I may say so.

69. MRS SOOD: Thank you, very much.