Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-003765
First-tier Tribunal No: PA/04233/2020

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 10 September 2026

Before

UPPER TRIBUNAL JUDGE McWILLIAM

Between

OB
(Anonymity order made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: LIP
For the Respondent: Ms J Isherwood, Senior Home Office Presenting Officer and Mr A Basra, Senior Home Office Presenting Officer

Heard at Field House on 19 May 2026 and 11 August 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. The appellant is a foreign criminal and a citizen of Jamaica. His date of birth is 6 September 1975. He has been convicted of serious sexual offences for which he has served a lengthy term of imprisonment. He is excluded from the Refugee Convention because his presence in the United Kingdom constitutes a danger to the community.
2. The F-tT anonymised the appellant. I have decided to maintain the order having regard to the Upper Immigration and Appeals Chamber Anonymity Guidance (Guidance Note 2022 No 2: Anonymity Orders and Hearings in Private). I am mindful that open justice requires, as a general rule, that the courts must conduct their business publicly unless this would result in an injustice. The law requires anonymity to be respected where there have been allegations of a sexual nature pursuant to s.1 of the Sexual Offences (Amendment) Act 1992 for a victim or alleged victim of a sexual offence listed in s.2 of the Act. Section 1 provides that “no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the person against whom the offence is alleged to have been committed”. Pursuant to s.1 this case requires anonymity of the appellant so as to protect the identity of his victims. In any event, having balanced the fear of harm to the appellant and the harm to the public interest in the operational integrity of the asylum system more widely as the result of the disclosure against the principle of open justice, I conclude that an anonymity is justified. I emphasise that the fact that the appellant has committed criminal offences is not a reason which justifies the making of an anonymity order.
3. The respondent made an order to deport the applicant on 13 July 2018. The appellant appeals against deportation because he says it would breach his rights under Articles 3 and 8 of the ECHR.
4. Article 3 states that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment”. Unlike Article 8 (protection of family and private life), Article 3 is an absolute non-derogable right. There is no balancing of competing interests to be considered when determining an appeal under Article 3. Protection against treatment protected under it is absolute. Properly applying the law an appellant’s criminality or character has no part to play in the assessment. There is no dispute between the parties about the proper application of the law. For the purposes of Article 3 the appellant’s criminality and the risk he poses to the public is not material. Properly applying the law, for reasons which I will go onto explain, I allow the appeal under Article 3.
5. I have to make a decision on the evidence that is before me on which the parties rely. While the SSHD sought to persuade me that the position has improved for gay men returning to Jamaica and has had ample time and opportunity to advance her case, there was no up-to-date persuasive evidence to support an improvement of any consequence since DW (Homosexual Men - Persecution - Sufficiency of Protection) Jamaica CG [2005] UKAIT 00168 was decided. Moreover, the SSHD has withdrawn the Country Policy and Information Note Jamaica: Sexual Orientation and Gender Identity version 2.0 February 2017 (the CPIN) with no plans to replace it. I was told by Ms Isherwood that it was not considered a priority despite the relevant country guidance case dating back to 2005. For the reasons that I will explain, the evidence relied on by the SSHD to support a meaningful change in circumstances was lacking.
6. It follows that I do not have to determine Article 8 (as the appeal is allowed under Article 3), however, if this were not the case, I would have no hesitation in finding that the balance weighs firmly in favour of deportation for reasons which I explain in my decision.
The hearing
7. The hearing took place over two days. The appellant gave evidence and he was cross-examined at length by Mr Basra. I heard lengthy submissions from Ms Isherwood and the appellant.
8. The appellant, a LIP, relies on a number of documents which he has forwarded to the Tribunal throughout the proceedings which include at least two skeleton arguments and a document which lists sources. The most recent document (“Summary Skeleton Argument”) is dated 7 August 2026 and was uploaded onto CE file on 10 August 2026. With this the appellant submitted a letter from the Criminal Cases Review Commission (CCRC) dated 29 July 2026 from a case review manager informing the appellant that review of his criminal case has been passed to the commissioners for a decision. The letter says that the decision will be prioritised due to the length of time that the CCRC has had his application and because of the forthcoming hearing relating to the appellant's deportation.
9. The appellant relies on the bundle that was before the F-tT which was reproduced in the composite bundle (CB). The respondent relies on a position statement and skeleton argument (RSA). The respondent relies on a bundle which is called the Case Law and Background Material Bundle which I will call the Authorities Bundle (AB).
The appellant’s criminality
10. On 24 October 2013 the appellant was convicted at Basildon Combined Court of two counts of raping a female over 16 years and sentenced on 15 August 2014 to 5 years imprisonment on both counts to be served concurrently. He was also ordered to sign the Sex Offenders Register (SOR) for life.
11. On 24 October 2014 at Basildon Crown Court, the appellant was convicted of historical sex offences for the attempted rape of a female under 16 years, rape of a female over 16 years and penetrative sex by a person over 16 on an adult relative over 18. The victim was the appellant’s sister. For these offences, he was sentenced on 17 February 2015 to 10 years imprisonment for the attempted rape, 13 years imprisonment for rape, and 2 years imprisonment for the offence of penetrative sex against an adult relative. The sentences were to run concurrently.
12. In respect of the latter convictions, when sentencing the appellant on 17 February 2015 the judge said as follows: “You are a manipulative bully, using the complainant, complaints and threats to control her. You’re a man who’s already been convicted of two counts of rape against your wife, and even that conviction, when it came out, you sought to justify and try to say that it was now subject to appeal: another lie that trips so easily from your tongue. I have no doubt you will continue to minimise and blame others for this conviction, page 25 of your OASys report dated 7 March 2025 notes, “It would appear that [OB] also managed to manipulate his family to ensure that they did not believe his sister which led to his first arrest for these offences against her to be dropped”” (CB/237).
13. The author of the OASys report of 7 March 2025 (“the OASys report”) assessed the appellant as presenting a medium risk of serous harm to children, the public and known adults (CB/242).
The background
14. The respondent served the appellant with a deportation order on 13 July 2018. On 23 July 2018 the appellant made a claim for asylum on the basis that he is at risk on return to Jamaica as a bisexual man. The application was refused by the respondent on 27 July 2020. The respondent certified appellant’s asylum claim pursuant to s.72 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) because he has been convicted of a particularly serious offence and his presence in the United Kingdom constitutes a danger to the community.
15. The appellant appealed against the respondent’s decision. The First-tier Tribunal (F-tT) found that the appellant failed to rebut the presumption that he poses a danger to community and therefore his appeal was dismissed on asylum grounds. F-tT Judge Swaney found that the appellant was bisexual and concluded that he is leading a gay lifestyle in the UK and would do in Jamaica. The F-tT found that the appellant would be at risk on return because those who are perceived as being gay are at risk in Jamaica.
The error of law
16. The respondent appealed against the decision of the F-tT on a number of grounds. I found that one of the grounds had been made out. I found that the judge erred when assessing risk on return because her approach to the country guidance and background evidence was too simplistic. The guidance in DW together with the more recent background evidence required a nuanced assessment of risk. I set aside the decision of the F-tT to allow the appeal.
The issues
17. There are preserved findings; namely, (1) the appellant is bisexual and (2) he will live openly as a gay/bisexual man in Jamaica. The issue before me is whether the appellant’s deportation breaches Article 3 (if I had found that this was not so I would have to consider whether the public interest in deportation outweighed any breach of the appellant’s rights under Article 8).
DW (Homosexual Men - Persecution - Sufficiency of Protection) Jamaica CG [2005] UKAIT 00168
18. DW is the relevant country guidance case. The headnote reads as follows:
Men who are perceived to be homosexual and have for this reason suffered persecution in Jamaica are likely to be at risk of persecution on return. Men who are perceived to be homosexual and have not suffered past persecution may be at risk depending on their particular circumstances. The Secretary of State conceded that, as a general rule, the authorities do not provide homosexual men with a sufficiency of protection. There are likely to be difficulties in finding safety through internal relocation but in this respect no general guidance is given.
19. The tribunal said as follows:
78. Every case will turn on both credibility and its particular circumstances. What happened to an individual before he left Jamaica will be important. If it is found that he suffered what amounted to past persecution then Demirkaya principles will assist him. If he did not, his task will be the more difficult, but not necessarily impossible. Factors to be taken into account include the extent to which an individual has been identified as homosexual, how widely spread is that perception, the extent of past acts of discrimination, harassment and violence, the extent to which an individual would present as homosexual (for example through dress, behaviour or demeanour), the extent to which he associates with other homosexuals, whether he is a homosexual prostitute, and the extent to which he is perceived to flout what many people in Jamaica regard as the norm of acceptable heterosexual behaviour.
79. With the possible exception of affluent gay men it is likely that a man who is thought to be homosexual will be at risk of homophobic intolerance, harassment and ill-treatment. The difficulty is in assessing whether this is likely to cross the threshold of persecution. It is clear that some of those who are perceived to be homosexual have suffered to this extent, what is not clear is how many. On the one hand it is likely that the most public and violent attacks will be reported, whilst on the other those who, understandably, decided not to complain to the police may also be reluctant to risk the consequences of press or other publicity. Whilst past persecution is probative of current risk the 31 opposite is not necessarily the case. An individual who has not suffered past persecution may yet be at risk. There is no clear test to indicate when the threshold may be crossed. Homophobic violence is unpredictable. The acceptance by the Secretary of State of the absence of a sufficiency of protection is a vital factor. A man who is perceived to be homosexual and, as a consequence, has suffered past persecution is, unless there has been a material change in his circumstances, likely to be at risk of persecution and infringement of his Article 3 human rights in Jamaica. A man who is perceived to be homosexual but has not suffered past persecution may also be at risk depending on his particular circumstances including, for example, the extent to which it is believed that he suffered threats before departure and will behave on his return.
80. It is not likely that an individual who is at risk of persecution or infringement of his human rights because he is perceived to be homosexual will be able to obtain protection from the authorities. The ability to relocate safely was not fully argued before us. It was effectively, although not specifically, conceded by the Secretary of State in this appeal. It may be an issue which requires full argument or a definitive view from the Secretary of State. Mr Sobers evidence appears to suggest that it is not readily available although other material makes it clear that it does occur. For the purposes of this appeal, we accept that the Secretary of State does not seek to argue that internal relocation is available to this appellant
The appellant’s evidence
20. The appellant relies on two witness statements in these proceedings. The first is dated 14 March 2025 and more recently following my direction the appellant submitted a statement dated 26 March 2026. He also gave oral evidence at length and was cross-examined. His evidence can be summarised.
21. The appellant has lived legally in the UK since July 2003. He first arrived on a visit visa to see his family and to attend interviews for a senior teaching role. He was accepted and was eventually given a work permit. He was joined by his ex-wife and children as dependents. The appellant was then granted indefinite leave to remain. He's lived lawfully in the UK most of his life. He is socially and culturally integrated.
22. The appellant is well-known in Jamaica. He was a teacher, musician, lecturer, adjudicator, examiner and national competition organiser. He worked with the Jamaica Cultural Development Commission (JCDC) at national level. He was head of music at major schools and performed at national and international music festivals. He studied at Edna Manley College of Visual and Performing Arts and at Northern Caribbean University. He worked in the community and did charity work. He attended international lectures and performed live music at big events which were seen across the world on behalf of the Seventh Day Adventist Church which is a vast organisation. He directed and conducted choirs as well as acting as a backing and solo musician.
23. In the UK he undertook graduate studies and completed an MA at London Metropolitan University after coming to the United Kingdom. He is a senior teacher and involved in several charities and community leader in Southend. He is involved in all aspects of community life in Southend.
24. The appellant would face very significant obstacles to reintegration living an openly gay life in Jamaica. He fears his family on return to Jamaica. He is from a large and well-known family spread across Jamaica, the UK, the USA and Canada. His family is religious and believe that homosexuality is a sin. Members of the appellant’s extended family have told him that he should be killed or take his own life so that his family will not be embarrassed. The family feels shame and it will not protect the appellant should he return. His father's family is strongly influenced by Jamaican culture, and many members of the family have told the appellant that if he returns as a bisexual man, he will be killed. Some of the members of the appellant's extended family have been involved in violence and have been to prison. The appellant would not give details of the perpetrators because he believes that they can carry out threats. The appellant believes that he is on a list of people who should not return to Jamaica. One cousin has made threats to kill him. He says that he is not only at risk from strangers but from his own family. His father had written death threats that had been made to the appellant however copies of these were lost by the prison service.
25. In Jamaica he is known as “Batty Man”. Friends associated with similar groups to the appellant were killed. People he was known to be with have been killed. He was perceived as being gay in Jamaica before he came out. He was attacked in Jamaica before coming to the UK. When the appellant was a child he was raped. His mother did not report the matter to the police. She was religious and ashamed. They moved to another community nearby, but he was raped by the same person there too.
26. Before coming to the UK, the appellant tried to live a “godly life”. He married his wife and they have two children.
27. The appellant has post-traumatic stress disorder (PTSD), and he is a “seriously ill person”. He has a history of PTSD anxiety and suicidal ideation. He has attempted suicide more than eight times while in prison and three times after he was released. He is prescribed medication. Deportation to Jamaica would be devastating on his mental health. There is also a lack of free treatment for mental health problems.
28. The appellant has an adult son and daughter in the UK. His son is vulnerable and needs the appellant's support. He raised both of his children with whom he has a close relationship. Whilst their mother does her best the appellant carries the “heavy burden”. Since his release from prison the appellant has tried hard to resettle his children. The appellant’s PTSD worsened which led to suicidal attempts and other “unpleasant issues”. His daughter's mental health began to suffer.
29. The appellant is not able to include a lot of pictures of his daughter as they are “triggering”. His son was devastated when the appellant was incarcerated and it took a while for him to process what had happened. The appellant’s ill health and convictions had a negative effect on his son's mental health, and he had a severe mental health breakdown. His son had to be sectioned by the police which was devastating. Should he be removed, this would have a devastating effect on his son and exacerbate his mental health problems.
30. The appellant plans to marry his partner, JB, this year. JB has indefinite leave to remain The appellant did not ask his family to attend court and give evidence. JB’s mother is a victim of domestic abuse. He did not want to put his family through another hearing. His removal would create justifiably harsh consequences for the appellant and his family. His partner has threatened to take his own life and is currently in counselling. Others will suffer if the appellant is deported. The appellant’s children are vulnerable because of their mental health. They are both British citizens and have lived here since 2003.
31. The hearing before the F-tT caused the appellant to have a breakdown. He would rather die in the UK than be killed in Jamaica. His suicidal ideation has returned he has nothing to return to in Jamaica.
32. The appellant’s family situation is very complicated. His mother is deceased. She was a teacher. His siblings (a brother and a sister) live abroad. He has an aunt in America. There is no family in Jamaica who would want to be close to the appellant. He is close to his father in the UK; however, this is conditional on the appellant’s sexuality. He has an agreement with his father that he will cut him out completely if he “continues to be gay”. His father does not have the appellant’s address in Canary Wharf where he lives with JB.
Submissions
33. Ms Isherwood contended that the appeal should be dismissed under Article 3. She submitted that the appellant was not credible. He has introduced new evidence about persecution from his family. His evidence is unsupported.
34. Ms Isherwood did not ask me to depart from the DW. She said that the appellant’ appeal should be dismissed properly applying DW. She contended that the more recent evidence supported that the position has improved for LGBTQ+ people in Jamaica. She submitted that the appellant is affluent and will have the support of his family.
35. Miss Isherwood said that the appeal should be dismissed under Article 8. She drew my attention to the appellant's partner and family not attending the hearing to give evidence.
36. The appellant submitted that there has been no change in circumstances since the case of DW which properly applied would lead to a conclusion that he would be at risk. He said that he had received direct death threats. He has a public profile and cannot return anonymously to Jamaica. He has already been perceived as a gay man whilst in Jamaica. He has no family or friendship network which could support him in Jamaica. Removal would breach Article 8. He has family and private life in the UK.
Findings
Risk from family
37. While I accept that the F-tT accepted the appellant’s sexuality and evidence about how he would live in Jamaica, the findings made by the judge in respect of Article 3 were limited to these issues. The appellant’s partner attended the hearing and the judge found that he was credible. I had the benefit of hearing the appellant’s evidence which he gave at length. I find that he was an unimpressive witness. He has sought to exaggerate and embellish his evidence throughout these proceedings. His evidence has evolved. At times, he has sought to obfuscate evidence about his family in Jamaica. Much of what the appellant says is unsupported. His evidence about his achievements and character is unsupported. I find that the appellant has, at best, grandiose ideas of himself and is at times delusional. The evidence of his musical accomplishments, fame throughout Jamaica and further afield, accomplishments as a teacher and charitable deeds within the community is wholly unsupported. The photographic evidence shows him playing musical instruments with others. It purports to show him meeting the Queens High Representative; however, this evidence does not support the extensive claims made by the appellant. I find that his evidence is not credible. I attach weight to the comments made by the sentencing judge with which I concur, having heard the appellant give evidence over an extensive period. There is no cogent evidence that the appellant has a public profile in Jamaica or anywhere else.
38. The appellant in evidence listed what he said were his contributions to the wider community including support given to the LGBTQ+ community centre in Southwark. Moreover, he said amongst other things that whilst he was in prison he was given a role to go round to each wing and check on the welfare of vulnerable prisoners. The evidence is unsupported. There is nothing in the OASys report that support this. On the contrary, it is noted in the report that the appellant was investigated by the police for an alleged rape against another prisoner. While I accept he was not convicted of an offence, the report mentions that there was information to suggest that he had an influence over younger prisoners. The only reasonable inference to draw from the entry is that the influence was negative. I do not accept that the appellant is a person who makes a positive contribution to society. I find that the appellant has fabricated evidence to present himself as a charitable person who cares for others.
39. On the basis that the appellant is a bisexual man, I accept that there are aspects of his case which are supported by the background evidence. Moreover, while the respondent says that the appellant has not provided evidence of past persecution, he mentioned past persecution in his asylum interview. He said that he was regularly hit with sticks and was hit with a bottle. He was beaten up when he was aged eighteen by a group of men with weapons. They called him Batty Man (Q33 and Q34). I have considered what the appellant said in the interview in the round. Whilst I have great reservations about much of what the appellant says, considering this evidence in the context of the background evidence as a whole, it is credible that the appellant who has been found to be bi-sexual by the F-tT would have been perceived as gay and that as a result he would have been subject to attacks. I accept that he was attacked, applying the lower standard of proof.
40. I accept the appellant’s evidence about his family and their disapproval of his sexuality because it is entirely in keeping with the background evidence. I accept that they are religious and reasonably likely to be homophobic. I accept that some members of his family are hostile towards him. This is consistent with the background evidence. I note however that his evidence has evolved over time and become convoluted. He has exaggerated the extent of hostility from his family. I do not accept the appellant’s evidence of family members having made threats. The appellant has failed to provide a coherent or consistent account of risk presented by his family. The appellant in his asylum interview did not mention specific threats from his family. He said that the risk was from the community. Moreover, his evidence is that his family in the UK visited him in prison.
41. I do not accept the appellant’s evidence of written threats having been made, copies of which he said were sent to him and lost by the prison service. The evidence supports that some belongings of the appellant have been lost by the prison service, but it is unclear why the appellant was not able to obtain copies of the originals. The appellant produced a document which established that he was awarded £1600 in a case in which it was found that there was a breach of his Article 8 rights. However, he said that this was a different case to the one in which he was awarded £60,000 as a result of the MOJ losing his documents. He did not provide any support for this. He said that the evidence lies in F-tT case management directions. He did not have the directions on which he relied to hand. I note that the F-tT made many directions as the case dragged on for at least four and a half years. None of the directions that I have had sight of refer to the lost documents. In any event, the evidence may support that documents were lost; however, there is nothing to establish what the lost documents comprised. Moreover, a judge’s case management directions are not findings of fact made after consideration of the evidence.
42. The appellant said in his asylum interview that in 2013 that after his wife discovered that he was having an affair with a man and after the appellant was convicted of raping her, she told her mother in Jamaica that the appellant was bi-sexual. However, the appellant in his interview said that he feared the community and not his family. In the appellant’s representations to the respondent dated 17 September 2018, he said that he feared for his life on return to Jamaica as a bi-sexual because it is against the law. In a statement which is not dated, but in response to the Stage 1 Deportation decision, the appellant says that he is at risk because his wife has divulged details of his sexuality to other teachers and former community.
43. The appellant’s evidence of risk from family has escalated in his most recent witness statement of 26 March 2026. He claims that members of his father’s family have told him he will be killed and even goes as far as stating that some members of his extended family have been involved in violence in the past and some have been to prison. He said that he was reluctant to give details of these relatives because he believes that they are capable of carrying out threats. He claimed that he has been threatened by a (unnamed) cousin. He also claimed for the first time in this statement that he has an Uncle Lenny who is a Justice of the Peace and who is connected to the police and a respected elder in the Seventh-day Adventist Church who has national and international influence. His claims are far-fetched and unsupported. Considering the evidence as a whole, I do not find that the screenshots of messages from alleged family members are reliable. In cross-examination he was asked when his family in Jamaica last threatened him. In response he said that it was “it's complicated” which I find to be an evasive response.
44. It may well be the case, and it would not be at all surprising, that there is hostility from family members towards the appellant following his convictions, but this is not how the appellant advanced his case.
45. Whist it is possible that the appellant had a partner who has been killed in Jamaica because of his sexuality, I find his evidence that he is associated with people who have been killed generally and that he is on a “hit list” unsupported.
46. At the start of the second day of the hearing the appellant said that he had a video recording relating to an attack on him by cousins in the UK on 28th of May 2026. Ms Isherwood had not had the opportunity to view the recording and the appellant understood that it was very late in the day to make an application to adduce it as evidence. He did not make an application to adduce it. He gave oral evidence about the alleged attack which was vague. I do not accept that he was subject to a verbal attack by cousins on 28th May 2026. As I have said I do not rule out that there is hostility from some family members in Jamaica as a result of his convictions; however, I do not accept that he has established that he is at risk from his family in Jamaica as a result of his sexuality. Indeed, the appellant has the support of his father brother and one of his sisters. His attempt to establish that their support is conditional on him not being gay/bisexual I find to be another fabrication.
Risk generally
47. Having found that the appellant has not established that he is at risk from his family in Jamaica, I will go on to consider whether there is a generally risk from the wider society. The parties made submissions and referred me to various documents and reports. I will engage with their submissions in my findings.
48. While the respondent has withdrawn the CPIN it was not withdrawn until relatively recently. Ms Isherwood informed me on 19 May 2026 that it had been archived due to age and the passage of time and that it had not been prioritised for an update. It had not been withdrawn when the appeal was before the F-tT on 29 April 2025. It is in the AB (AB/252). The evidence on which the respondent relied on was in all material respects is consistent with the CPIN. I note the following paragraphs (AB/256):
2.3.1 Consensual sex between adult males is proscribed by law; prosecutions are rarely pursued although no official statistics are available
2.3.2 In general there is no real risk of state persecution as the authorities do not actively seek to prosecute LGBT persons and there is no real risk of prosecution even when the authorities become aware of such behaviour.
2.3.3 Jamaica is a deeply homophobic society and there are reports of LGBT persons facing a high level of both physical and sexual violence from non-state agents (and some rogue state agents) and many live in constant fear. LGBT persons are targeted for mob violence, ‘corrective rape’, extortion, harassment, forced displacement and discrimination, and are taunted, threatened, fired from their jobs, thrown out of their homes, and suffer ill treatment including being beaten, stoned, raped, or killed.
49. Both parties addressed me at length on the report of 21 October 2021 entitled “Not Safe at Home” (the NSAH report)). Ms Isherwood drew my attention to AB/96 which makes a distinction between those who live in poor areas and those who live in affluent areas;
“High levels of violent crime, public mistrust of police, low levels of crime reporting, low prosecution rates, and a perception that the criminal justice system is skewed against the poor are widespread in Jamaican society. However, LGBT Jamaicans—especially those who are poor and unable to live in safer, more affluent areas—are particularly vulnerable to violence.
50. This paragraph must be read in context. The situation maybe worse for those who are poor and unable to live in safer affluent areas; however, the report says that LGBTQ+ Jamaicans are particularly vulnerable to violence and many living constant fear. The report says that they are taunted, threatened, fired from their jobs, thrown out of their homes, beaten, stoned, raped and even killed. The report says that between 2009- 2012, J- FLAG, a Jamaican LGBTQ+ rights organisation recorded two hundred and thirty-one incidents of attacks against LGBTQ+ people including home invasions, physical assaults and mob attacks. The report goes on to refer to field research conducted by Human Rights Watch in April and June 2013. The findings support that more than half LGBTQ+ people have been victims of some form of violence and that whilst nineteen people had reported the crimes to the police formal statements were taken in eight cases only. Victims were aware of arrests by police in only four of the fifty-six cases documented and twenty-six of those who had experienced violence said they did not report crimes due to a fear of retaliation.
51. Ms Isherwood draw my attention to the NSAH report (AB/97) which supports that the police have taken some steps to address homophobic and transphobic violence and that in 2011 the Jamaican Constabulary force launched a policy on diversity which was developed in consultation with J-FLAG and which requires police to ensure that LGBTQ+ people and other vulnerable groups can safely file police reports. She drew my attention to the report on the situation of human rights in Jamaica which is referred to at AB/97 and which found that discrimination as opposed to persecution based on sexual orientation, gender identity and gender expression is widespread. However, the extract of the report relied on is not in context. The report goes on at the same page to state that police protection remains inadequate and that this is among several factors that contribute to the specific vulnerability of LGBTQ+ people. At section 2.4.4 of the CPIN (AB/258) is stated that despite the procedures that the government has put into place (the policy on diversity and having acknowledged the need for targeted anti-discrimination legislation), the government has so far failed to prevent and protect against violence and discrimination or to punish the perpetrators of crimes against LGBTQ+ persons. This was the position in 2017.
52. Ms Isherwood drew my attention to AB/98 of the NSAH report which states that in the last three years a number of LGBTQ+ activists have come out publicly, in media or as lawyers or litigants in two major court cases challenging anti-gay discrimination and that LGBT people are also increasingly reporting incidents of hate crime. However the report goes on to state that despite these public and private initiatives the Jamaican government still offers little in practical terms to prevent and protect against violence and discrimination or to punish the perpetrators of crimes against LGBTQ+ people. The report at the same page states that Jamaica has neither comprehensive anti-discrimination legislation nor specific legislation prohibiting the discrimination on the grounds of sexual orientation or gender identity and that serious rights abuse is based on sexual orientation and gender identity continue and justice for these crimes remains elusive.
53. At AB/99 of the NSAH report it is stated that meaningful progress will require a deeper commitment to equality particularly by the police and strong leadership from Jamaica’s government in the face of intense public resistance to any type of legal reform that would uphold the rights of LGBTQ+ people.
54. Ms Isherwood relied on prosecutions rarely being pursued in 2014 (AB/103). However, the same paragraph goes on to state that nevertheless the laws have a real and negative impact. The law criminalises sexual intimacy between men and offers legal sanction to discrimination against sexual and gender minorities and that in a context of widespread homophobia gives social sanction to prejudice and helps to create a context in which hostility and violence is directed against LGBTQ+ people. It also goes on to state that laws have been used by the police to extort money from adults engaged in consensual homosexual sex. It is said that those arrested are rarely if ever prosecuted however gay men who are “outed” risk violence and other abuse by community members.
55. The NSAH report supports that the media reflects and fuels widespread homophobia in Jamaica society and examples are given of homophobic articles (AB/107). It is said that a number of popular Jamaican musicians perform and produce music that contains inflammatory lyrics and examples are given.
56. The NSAH report supports a mistrust by the LGBTQ+ community of the police (AB/110). It states that physical and sexual violence including severe beatings and even murder is part of the lived reality of many LGBTQ+ people in Jamaica. The NSAH report says that Human Rights Watch interviewed seventy-one self-identified LGBTQ+ people and the interviews elicited fifty-six accounts of physical violence that took place between 2006 and 2013 experienced by forty-four LGBTQ+ people, the vast majority of which appeared to be directly as a result of their sexual orientation or gender identity. J-FLAG recorded two hundred and thirty-one incidents of attacks against LGBTQ+ people between 2009 and 2012 which included home invasions, physical assaults and mob attacks. It is said that the number of homophobic attacks is likely to be underreported. The report lists six serious incidents which were reported during a four-month period in 2013 (AB/114). There were reports of mob violence and arson attacks on LGBTQ+ people and verbal abuse. There is support for the police failing to act despite the JCF policy on diversity which was launched in 2011. It is said that the police themselves are sometimes perpetrators of violence and extortion from LGBTQ+ people and that there is evidence of failure to intervene, investigate and arrest.
57. Ms Isherwood referred me to the Charter of Fundamental Rights and Freedoms (constitutional amendment) 2011 (“The Charter”) at AB/228 which she contended supports that the situation in Jamaica has changed since the appellant left in 2003. She submitted that there has been a change in attitude. Certainly, the Charter gives certain rights and freedoms to Jamaican people including the right to freedom of expression and freedom from discrimination on certain grounds. It gives the right to respect for and protection of private life. However, there is no specific reference to sexuality. In any event, the Charter must be considered in the context of the existing criminal law.
58. Ms Isherwood relied on the “Report of the Working Group on the Universal Periodic Review” relating to Jamaica which is a document from the Human Rights Council reporting from the period 22 February-19 March 2021 (AB/282) Ms Isherwood took me to §93 of the report which in summary states that Jamaica has reiterated that its constitution provided for the respect of the rights of all persons without distinction and that all persons were afforded equality before the law. It refers to the Diversity Policy promulgated in 2011. I note that one of the recommendations amongst others is to investigate exhaustively, prosecute and punish cases of torture and gender-based violence and against other vulnerable groups such as lesbian, gay, bisexual, transgender and intersex persons and guarantee access to justice and reparation for victims (see §[107.57]). Ms Isherwood relied on a US State Department Report on Human Rights in Jamaica dated 2023 (AB/304). She drew my attention to LGBTQI+ advocates having reported an increase in attacks against LGBTQI+ individuals by criminals utilising online dating apps to lure victims into situations where LGBTQI+ persons were robbed, beaten, sexually assaulted, and sometimes killed. It states that the government took positive steps to improve law enforcement treatment of and government services to victims. However, this is one finding amongst many documented in the report. Read as a whole the document does not support a meaningful change. I summarise the findings as follows:
a. Significant human rights issues included extensive gender-based violence laws criminalising conceptual same-sex sexual conduct between adults although the government did not enforce the law during the year
b. Crimes involving violence targeting lesbian, gay, bisexual, transgender, queer or intersex persons the government did not take credible steps to identify and punish officials who may have committed human rights abuses
c. Allegations of abuse were particularly frequent at juvenile detention centres and prisoner on prisoner violence was common including severe violence against prisoners targeted for their perceived lesbian, gay, bisexual transgender, queer, or intersex identity
d. The law criminalised conceptual sexual conduct between men with penalties of up to ten years in prison with hard labour
e. Attempted sexual conduct between men was also criminalised with penalties up to seven years in prison
f. Physical intimacy, or the solicitation of such intimacy, between men, in public or private was punishable by two years in prison under gross indecency laws
g. The inter- American Commission on human rights stated the law legitimised violence towards LGBTQI+ persons. There were no credible efforts to rescind anti- LGBTQI+ discriminatory laws.
h. The NGO Quality for all Foundation reported that during the year it received 18 complaints of violence against LGBTQI+ persons a number similar to previous years. Many of the cases reported during the year occurred in prior years.
i. The underreporting of violence against LGBTQI+ persons was a problem since many victims were reluctant to go to the police due to expected inaction by the police.
j. A local NGO reported government officials, including police, had improved their response to LGBTQI+ rights violations.
k. The law did not prohibit discrimination by state and non-state actors based on sexual orientation, gender identity or expression or sex characteristics. LGBTQI+ individuals experience discrimination in many areas.
l. The law did not recognise LGBTQI + couples, nor did it grant them rights equal to those of other persons.
m. LGBTQI+ advocates reported churches, families, and other faith-based organisations employed coercive psychological measures in attempts to “convert” LGBTQI+ individuals and there were no laws specifically prohibiting these practises.
n. There were no legal restrictions on LGBTQI + gatherings or on freedom of expression on LGBTQI+ issues.
59. Ms Isherwood took me to the Annual Report for 2023 for the Equality for All Foundation (EFAF) which is a human rights and social justice organisation which advocates for the rights of LGBT people in Jamaican (AB/404). The organisation is said to promote social change by empowering the LGBTQ+ community to build tolerance for and acceptance of the LGBTQ+ community by the wider Jamaican society and the vision of the organisation is said to be the creation of a Jamaican society that respects and protects the human rights and inherent dignity of all individuals irrespective of their sexual orientation. The organisation commemorated its twenty fifth year of “relentless advocacy for the rights and inclusion of the LGBTQ+ community in Jamaica” . Miss Isherwood relied on section 5.1.2 of the CPIN in which it is said that the Guardian newspaper reported in August 2015 Jamaica’s first pride event to support a change in attitude (AB/265.)
60. I have considered the background evidence relied on by the parties and highlight the most relevant. Overall, it supports some change in societal views towards acceptance of LGBTQ+ people. The evidence of this includes the occurrence of the first Pride event in 2015. I find that the respondent has cherry-picked excerpts which are capable, when read in a vacuum, of supporting a meaningful change; however, when the evidence is read as a whole, this is not the case. The Diversity Policy established in 2011 may have brought about some change in police response, but the evidence does not support that it has brought about a meaningful reduction in violence or police protection. Similarly, the evidence does not support that the Charter has guaranteed rights and freedoms for LGBTI+ people in Jamaica. EFAF has been in existence for twenty-five years and predates DW. Moreover, at best it supports some shift in societal attitudes, but not meaningful change. While the law is rarely enforced, there is no sign that it is to be repealed. Moreover, the appellant does not fear criminalisation. I accept that the law has a negative impact on the perpetration of violence against LGBTQI+ and how that is dealt with by the police and considered by wider society.
61. I have considered the respondent’s position about the appellant living openly at § 15 of the RSA; however, looking at the findings of the F-tT there is nothing to support that the appellant’s bi-sexual/gay lifestyle in the UK has been of a conservative nature. The F-tT found that the appellant has, since the end of his marriage, been living a gay lifestyle entering only into relationships with other men (see §89). The evidence before the judge which she accepted was that the appellant was living with his partner in an openly gay relationship which has been disclosed to various parties (see §94). Having considered the appellant’s partner’s witness statement and photographs of the appellant his partner, his partner’s family and friends in various social situations, she accepted that the appellant and his partner present to the world as a couple and are openly gay (see §95). The judge found that the appellant would be afraid of leading an openly gay lifestyle in Jamaica because he believes that he will be persecuted or seriously harmed if he were to openly express his sexuality in Jamaica (see §96). The judge properly HJ (Iran) v SSHD [2010] UKSC 31 where the Supreme Court held that no one should be expected to conceal their sexual orientation in order to avoid persecution. When the judge referred to living openly in Jamaica, she meant that the appellant would wish to live in Jamaica as he has been in the UK. It misrepresents the preserved findings of the judge that the appellant’s “actions in the UK have been conservative” and “he has not flouted his sexuality as a choice”. The finding is not dependant on the existence of his relationship with JB who gave evidence before the F-tT.
62. I am satisfied that the appellant has been the subject of attacks in the past which was motivated by the perception that the appellant is gay. This is probative but not determinative of risk. The Tribunal in DW said that an individual who has not suffered persecution may yet be at risk. Had these attacks not occurred, I find the appellant would still be at risk. The SSHD in DW did not take any point in respect of sufficiency of protection and it was not argued by the respondent in that case that the appellant could relocate within Jamaica.
63. The background evidence supports that wealth could be a mitigating risk, considering §77 of DW. Like his evidence generally, the appellant’s evidence about his family’s economic circumstances is inconsistent and it has changed. The appellant described his family as affluent to his probation officer. He has control with others in a catering business in the UK. The respondent has not relied on the accounts from the business. The appellant stated that owns a house with his ex-wife. He said that he lives in rented accommodation with his partner. He also has a rental properly that he says was given to him after he was released from prisons (he was not probed about why he still has rights to the property as he is not living in it). He said that his son lives in the property. His evidence is that he is lower middle class. The appellant has been consistent about his mother being a teacher and I accept that he is educated. I find that the appellant comes from an educated middle-class background. Looking at the background evidence, I do not find that the appellant has wealth that could materially protect him when living openly as a bisexual man as the F-tT found he would on return. The background evidence does not support that a middle-class professional income would be sufficient to alleviate the significant risk of homophobic violence against a bisexual man living an openly gay lifestyle to a meaningful extent. The term affluent is relative. While I do not accept that the appellant will be homeless or without funds as he claimed, I take into account that the expert before the Tribunal in AW whose evidence was accepted stated that a gay man with wealth and status will be tolerated if he is not openly gay. The F-tT has found that he will leave openly and the evidence relied on by the respondent does not support that there has been an improvement that would make material difference in this appellant’s case.
64. The appellant has already been identified gay in Jamaica before coming to the UK. He has been harassed and attacked in Jamaica. The F-tT found that he would present as a gay man, live a gay lifestyle and associate with other gay men on return.
65. The appellant will be perceived as gay, and it is likely in those circumstances taking into account the appellant’s profile that he will be at risk of homophobic intolerance, harassment and ill-treatment which would amount to an infringement of his Article 3 ECHR rights.
66. It is accepted by the respondent that the appellant was diagnosed with PTSD. While the appellant says that he is seriously ill, there has been no coherent ground of appeal under Article 3 on health grounds. Save the accepted diagnosis, I find that the claims of ill health and suicidal ideation made by the appellant are in the main unsupported. From the case management directions made by the F-tT,it is apparent that the appellant that the appellant's appeal had been outstanding since 31 July 2020, a period approaching 4 ½ years. It was stated that the appeal had not reached a final hearing because the appellant asserted that his mental health is too poor to allow him to participate in a hearing. The judge noted that to date there had been no medical evidence provided to demonstrate that the appellant lacked capacity or that he is not fit to give evidence or otherwise not fit to participate in the appeal process. It was noted that the appellant had been given numerous opportunities to provide such evidence.
Article 8
67. As the appellant’s appeal is allowed under Article 3, there is no need for me to determine a free-standing appeal under Article 8 ECHR. However, I make the following observations.
68. The appellant’s adult children’s evidence dates to 2018 in response to the respondent indicating an intention to deport the appellant. There is no more recent evidence. Whilst JB attended the hearing before Judge Swaney, I do not accept the appellant’s explanation for the absence of evidence from him or his family generally. The appellant stated that he would not put his family through another hearing; however, this is not credible bearing in mind his evidence about the impact of his removal on them. Moreover, even if it were the case that he was trying to protect them from the stress of giving evidence, there is no reason why they have not produced up-to-date witness statements. In the circumstances, if the appellant’s family felt as he claimed about his removal, it is inconceivable that they would not support his appeal. I informed that appellant on the first day of the hearing that it may be necessary for me to consider the appeal under Article 8, giving him the opportunity to produce evidence. There is no evidence to support the appellant’s claims about the impact of the hearing before the F-tT on members of his family. I do not accept that the appellant at the date of the hearing has a relationship with his adult children. I find that there is no evidence of an ongoing relationship with JB. I find the appellant has concocted a family life claim to bolster his case.
69. As already noted, this case dragged on for four and a half years in the F-tT during which time the judge repeatedly issued directions to assist the appellant, a LIP, with the preparation of his case. The appeal was delayed mainly as a result of the appellant’s claims about his mental health. Notwithstanding the assistance given to the appellant by the judge to enable him to participate in the proceedings, he did not submit the medical evidence to support his claims. I find that the appellant intentionally delayed the hearing of his case with spurious claims about his health.
70. I note that there is an entry in the OASys report relating to JB. There is a reference to the appellant being engaged to JB who was then aged 20 and concerns having been raised by his school friends about the appellant’s behaviour including dangerous driving and initiating sexual conversations with JB’s friends. There were also concerns raised around JB being vulnerable. I note from the OASys report that whilst the offences were motivated by sexual gratification, there were also elements of power and control over the victims. Moreover, the appellant has disclosed having a relationship with a 17-year-old boy whom he was teaching to play the piano.
71. The comments of the sentencing judge about the appellant are illuminating. Having heard him give evidence I reach the same conclusion about his character. In the absence of risk under Article 3, I would have no hesitation in dismissing the appeal under Article 8. The OASys report presents a negative picture of the appellant who has at no time accepted responsibility for his heinous crimes. The author of the report states that the appellant portrayed himself as the as the victim and that he was unable to show remorse. The appellant remains a risk to the public.
72. There is nothing positive to say about the appellant’s presence in the UK. His philanthropic claims are fictional. He presents a risk to children and young people. Hopefully he will not be placed in a position of trust in the future. The appellant’s deportation is in the public interest and the only rational conclusion that could be reached on the evidence, in the absence of a risk under Article 3, is that any breach of the appellant’s rights under Article 8 would not come close to outweighing the public interest in his deportation.
73. I have taken into account the letter from CCRC. However, as it stands the appellant is a foreign criminal and serious offender. It is not material to my decision.

Notice of Decision
74. The appeal is allowed on Article 3 grounds.

Joanna McWilliam

Judge of the Upper Tribunal
Immigration and Asylum Chamber

8 September 2026