Samir Pasha and Naga Kandiah, human rights lawyers based out of London, UK, discuss the implications of Jamaican deportation by the UK Home Office...
A mere 9 months after the previous attempt of the UK government to deport en masse to Jamaica, the Home Office yet again attempted to deport Jamaican nationals, some of whom either came as children to the UK, have established families in the UK or fear for their life should they be returned to Jamaica. Old habits die hard in the Home Office it seems and it is perhaps due to the systematic incompetence or the institutional racial bias that continues to present itself inside tribunals and courtrooms.
Notwithstanding that the UK government has a legal duty to ensure that no one is deported to a place where their life might be endangered, the constant targeting of Jamaican nationals who as a community have a long-standing history in the UK of countless contributions to British culture from writers and musicians to the shared contribution of sacrifice as soldiers in the British army during both world wars, it is again disappointing that lawyers and activists have to beat the same drum to make the Home Office realize that hastiness in deportation is not always in the best interest of the UK.
There have been repeated appeals by lawyers and diplomats to the Home Office to review their deportation policy on Jamaican nationals who came to the UK as children, who have known no other life than in the UK, and for them, Jamaica is almost an alien place which many have little to no familial ties and are in some circumstances caught up in the violence that occurs when a stranger lands in a place where everyone knows everyone else. This has thankfully yielded some positive results with Jamaican diplomats achieving an ‘understanding’ with the Home Office on halting the deportation of Jamaican nationals who came to the UK as children. This has not changed the law, merely created an informal understanding that requires the Home Office to continue to act in good faith.
Acting in good faith is one thing that the Home Office seems to lack in the tribunal and court system. There have recently been cases of Jamaican national deportation cases that have slowly amassed where it has been shown that the Home Office has at some point ignored litigation protocol or substantive legal precedent, or even crucial human rights evidence, issuing deportation orders, only for them to be halted last minute by a higher tribunal which has pointed out that the Home Office acted in error. The errors such as ignoring further submissions have resulted in the Home Office accepting their behavior, but far from apologizing, these acts of errors and omissions have not been characterized by the court as misleading the court. In some cases, the judges have sought to gloss over the incompetence of the Home Office by stating that the error was not a deliberate attempt to mislead the court. The stark reality is that the Home Office continually makes errors to a point that they cease being anomalies and represent systemic conduct of incompetence and deliberate misleading. It should come as no surprise that if a client’s legal representative made such errors or omissions – in such continuous patterns- the judge may be minded to consider misconduct allegations. So why should the Home Office be given such benefit of the doubt?
The continual glossing over of the Home Office’s conduct in crucial human rights cases inevitably gives strength to the notion that the Home Office is not only institutionally racist but also untethered. This further fuels the discontent and anger amongst the Jamaican community that should they be served with a deportation order they would have an uphill struggle to attain the same level of justice that would be given to other community members; thus further creating distance between the Home Office and the Jamaican community.
Whilst it may be relatively easier for Afghan or Iraqi applicants to contest on human rights grounds that they cannot be deported to their home countries, it is just as difficult to persuade the Home Office of the same for Jamaica. This despite the fact that in 2019 at least 5 Jamaican deportees had been killed within a year, and further tragedies that have been inflicted upon some of the British spouses, partners, and children of Jamaican deportees who moved to Jamaica in the hopes of continuing their private life as a family, only to be killed. The Home Office has continued to brazenly issue deportation orders to Jamaican nationals that have partners or children in the UK, having little regard to the psychological impact of breaking the family unit.
The impact of deportation of a parent on a child has to be considered by law under Section 55 Borders, Citizenship and Immigration Act 2009. This means that the Home Office during its discharge of immigration duties must have regard to the need to safeguard and promote the welfare of the child in the UK. This duty to consider the welfare of the child is inadequately assessed by the Home Office and the recent case of KB (Jamaica) v Secretary of State for the Home Department  EWCA Civ 1385 has reiterated that an assessment has to be carried out that is ‘adequately informed and specific to the individual child as a person distinct from the offending parent’. This assessment of the child involved in a deportation case is not adequately carried out as the Home Office repeatedly ignores the potential harm that could face a child if their parent is deported within the context of Section 31(9) Children Act 1989, which includes ‘[…] impairment of health or physical, intellectual, emotional, social, or behavioral development.’ But then again, why would the Home Office attempt to take its assessment seriously for children of Jamaican nationals when it believes that deportation to Jamaica would not be ‘unduly harsh’? The simple answer is that it does not need to perform such adequate assessments on such children. This is because the Home Office believes in its guidance that unduly harsh circumstances would include cultural barriers or barriers that cannot be overcome or would ‘present very severe hardship’.
Therefore, the misfortune of Jamaica is that due to its shared history with the UK as a colony, sharing arts, culture, and state language of English, the children of Jamaican nationals are resigned to not being considered for assessment under the unduly harsh rules and so their emotional, social and behavioral impact is ignored by the Home Office during its discharge of deportation duties.
Jamaican nationals facing deportation are therefore misfortunate to have so much shared history and culture with the UK as their family unit is more readily able to be broken by the Home Office. Whilst other commonwealth countries may have found their deep colonial relationship advantageous with the UK, for families with Jamaican partners and parents, it has become a poisoned chalice that systematically works against their favor in deportation proceedings.
Samir Pasha is a lawyer specializing in Human Rights and Criminal Law. He qualified as a barrister and was a Middle Temple Scholar recipient, a Human Rights Law Association bursary winner for his work in the West Bank, occupied Palestinian Territory, and holds a masters from the University of Oxford specializing in the Modern South Asia.
Naga Kandiah is a Human Rights and Public Law solicitor. He has also worked with war crime witnesses and victims of torture. Mr. Kandiah also regularly represents vulnerable clients with severe mental or physical health issues, having successfully acted for clients in complex asylum, deportation, and entry clearance appeals.
Suggested Citation: Samir Pasha and Naga Kandiah, Jamaican Deportation Action and The UK Home Office, JURIST – Professional Commentary, December 11, 2020, https://www.jurist.org/commentary/2020/12/samir-pasha-naga-kandiah-uk-jamaica-deportations/.
This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at firstname.lastname@example.org.
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