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Home Office lose appeal against drug dealer illegal immigrant who wins right to remain in UK | Immigration Matters

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The Home Office has lost another high profile appeal after an Immigration Judge allowed a convicted drug dealer, who abandoned his children, the right to stay in Britain on “human rights” family life grounds.

This week Hesham Mohammed Ali won his appeal against a Home Office deportation order by Theresa May, the Home Secretary, who wanted him removed from the UK because of his crimes.

But Ali’s immigration appeals legal team convinced an Upper Tribunal Immigration Judge he had a human right to “family life” in the UK based on evidence of a “genuine” relationship with a British woman, even though he has two children by different women with whom he now has no contact.

Ali also claimed in his appeal grounds that his life would be in danger in his native Iraq because he had “tattoos”, one of which was of a half-naked Western woman. This claim was dismissed after exhaustive legal examination.

Summing up his decision to allow Ali’s appeal to stay in the UK, the Immigration Judge said he was not taking into account new guidelines introduced by the Home Secretary last week, which were meant to stop “spurious” human rights cases being brought by criminals to block deportation.

The Home Office said it was “disappointed” by the ruling, but some MPs are calling for an urgent review to stop abuse of human rights laws.

“Foreigners who commit serious crimes should be deported, regardless of whether they have family in the UK,” a spokesman said.

“We are disappointed with this judgment and that is why this Government will bring forward primary legislation to prevent foreign nationals remaining in the UK through abuse of the Human Rights Act.”

Conservative MP Dominic Raab, who is campaigning for human rights reform, said: “It is bad enough a convicted drug dealer cheating deportation because he has a girlfriend.

“But it’s even worse that our elastic human rights laws consume government time and money fighting such ludicrous claims. The shifting human rights goalposts have encouraged a ‘try it on’ culture at taxpayers’ expense.”

Another Conservative MP Priti Patel said: “The right to family life has been completely abused in this case. It’s clear this individual has no regard for proper family life and the upbringing of his children, as he has no relationship with either of the mothers let alone either of his children themselves.

“It is wrong for hard-working British taxpayers to be footing the bill for cases like this. It is further evidence that our human rights laws need to be reviewed immediately.”

The Home Office has spent thousands of pounds of British taxpayers’ money trying to deport Ali whilst fighting his initial appeal, which was set aside, and a second hearing. This is on top of the legal aid (free legal costs funded by the British tax payer) bill for Ali’s lawyers.

The main thrusts of the appeal were the Article 8 “family life” claim, and the danger his tattoos would pose if he was deported to Iraq.

The court had to consider in detail the issue of Ali’s tattoos, with Judge Jonathan Perkins describing the issue as “problematic”. The Judge asked whether Ali, 36, had considered having the tattoos removed and heard evidence from an expert witness on whether Iraqi people were victimised for having body art.

Ali was “brought” to Britain illegally by a people-smuggling gang in 2000, when he was 24, and has never had any legal right to remain in this country.

He made an asylum claim two years after arriving, which was refused, as was a subsequent appeal. However, The Home Office failed to deport him and continued to live in Britain and subsequently build a family life.

Ali had a child with an Irish woman and then another son with a woman from Liverpool but has no contact with either child, the Upper Tribunal Immigration and Asylum Chamber heard.

In November 2005 he was convicted of possessing Class A and Class C drugs, and fined.

A year later he was convicted of another offence at Snaresbrook Crown Court in London for the more serious offence of possessing Class A drugs with intent to supply, and was jailed for four years. Under immigration laws any foreign national jailed for a year or more should be subject to automatic deportation.

The Home Office told Ali they would attempt to deport him but because there was “confusion” over his true nationality, the case was allowed to lapse.

For some reason known only to the authorities, the convicted drug dealer was released on bail in January 2009 rather than being deported.

Deportation proceedings began again in 2010, and Ali again lodged an appeal claiming he would be in danger if he was returned to Iraq because he was so “Westernised”.

At the second hearing, Judge Perkins allowed him to stay stating that he was “impressed by evidence” from Ali’s girlfriend, Cy Harwood, 31, a Londoner who has trained as a beautician. The couple met in 2005.

The Immigration Judge at that time ruled that Ali’s deportation would have a very damaging effect on his girlfriend and would be a breach of the couple’s rights under Article 8 of the convention on human rights.

“Destroying an important relationship in the light of a reformed criminal who was last in trouble over six years ago is, I find, just too much and I am satisfied that an exception is made out,” he said.

The claim that tattoos, and Ali’s claim that he had become Westernised, would put him in danger in Iraq, were also considered by the Judge.

“He described himself as ‘covered in tattoos’ including a half-naked Western woman on his chest, a sea horse and star on his arm and his fiancée’s name ‘Cy’ surrounded by stars on his hand.

“He was asked if he could refer to any evidence to confirm his alleged fear that being tattooed would be a sign of the infidel in Iraq. His answer was vague. He referred to watching videos on YouTube. He said that people with tattoos get stoned or harmed.”

Describing the tattoo issue as “problematic”, Judge Perkins said: “I have had to think carefully about this but the appellant had not given any indication that he had any objection to trying to conceal the tattoo or have it removed.

“[The tattoo on Ali’s hand] might prompt inquiry but as it is a central feature of the appellant’s case that he is now a devout Muslim I am not persuaded there is a real risk of a tattoo doing more than prompting curiosity which would be satisfied by his sincere explanation about the strength of his religious convictions.”

Ali told the court that he worked as a wrestling promoter and had also been a professional dancer. At one stage he passed an audition to work for Simon Cowell, the music impresario, but “he was arrested before he was able to take advantage of that opportunity,” the court heard.

Judge Perkins added that he was deliberately not taking into account the Home Secretary’s changes to the immigration rules.

“I do not arrive at this conclusion by considering the rules in their amended form which purports to introduce aspects of Article 8 expressly into the rules,” he said.

“They do not assist me with the proper application of the appellant’s human rights. My decision is in accordance with binding jurisprudence.”

The Telegraph claims that the case raises new concerns over the arguments sometimes put forward by foreigners who are seeking to stay in Britain, such as the Bolivian man whose case was first reported in The Sunday Telegraph in 2009.

Camilo Soria Avila argued that he should not be deported partly because he and his boyfriend had bought a pet cat, Maya, and joint ownership of the animal added weight to his case that he enjoyed the “right to family life” in Britain.

The immigration tribunal ruled that sending Mr Avila, 36, back to Bolivia would breach his human rights because he was entitled to a “private and family life” with his British boyfriend Frank Trew, 49, and joint ownership of a pet was evidence that he was fully settled in this country.

Does this mean that all someone who wants stay in the UK, having overstayed illegally, has to do is have a tattoo or buy a cat with their partner? Well, sadly for all overstayers this is not the case.

Applications for settlement or further leave to remain based on family life relationships or human rights are refused by the Home Office all the time.

Contrary to the protestations of the popular press, not all human rights, article 8 or family life refusals are overturned on appeal at the First Tier Tribunal.

Last week the Home Office announced that the full right of appeal for family visitor visa applicants refused leave to enter the UK after June 2013 will be removed.

If you have been arrested or detained, need any immigration advice or are worried about the new immigration rules or need help with Sponsorship or Tier 1, 2, Tier 4, applying for university if your college has closed, Spouse Visa, ILR/Settlement, Citizenship, Dependant Visa or an appeal against a refusal, or if you have been waiting for a reply from the Home Office for longer than a year, please email: 

info@immigrationmatters.co.uk or visit www.immigrationmatters.co.uk for free immigration news updates.

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