Belfast Telegraph

Monday 15 September 2014

Foreign sex offender wins damages

A foreign criminal jailed for a serious sex offence against a schoolgirl has won the right to damages for a breach of his human rights

A foreign criminal jailed for a serious sex offence against a schoolgirl has won the right to damages for a breach of his human rights after the Court of Appeal ruled that he was held in custody too long following unsuccessful moves to deport him.

The 25-year-old man, Jumaa Kater Saleh, was part of a group of five men who lured under-age girls to a house for sex.

Saleh comes from the Darfur area of Sudan and was detained for just over two years while the Home Secretary attempted to deport him after he completed his four-year criminal sentence in a young offenders' institution.

The appeal judges said today that eight months of his detention was "unreasonable and unlawful" and he was entitled to damages because of Home Office administrative delays before it was decided that he could not be deported on human rights grounds.

The court ruled: "His past criminal offending, of itself, cannot be any justification for implementing or extending his time in immigration detention".

The judges said the administrative delays were unaccounted for - "the lack of any explanation makes difficult to hold that the period of detention was reasonable".

Saleh, who went to live in Leicester after his release, successfully appealed against a ruling by Deputy High Court judge Philip Mott QC in January this year dismissing his compensation claim on all grounds.

Lord Dyson, Master of the Rolls, sitting with Lord Justice McFarlane and Lady Justice Sharp, unanimously ruled his appeal must succeed and sent the case back to London's High Court to decide how much he should be paid in damages, if the figure cannot be agreed between the Home Office and Saleh's lawyers.

In the lead ruling, Lord Justice McFarlane said Judge Mott had made "significant errors" when he rejected the claim.

The appeal judge described how Saleh arrived in the UK in November 2004, hidden in the back of a lorry. Then apparently aged 16, the immigration authorities immediately discovered his presence in the UK and he claimed asylum.

His claim was based on the fact that he was a member of the Zaghawa tribe from Darfur and his family were subjected to intolerable treatment by the majority population of the area.

It was rejected in January 2005 on the basis that it was "vague, unsubstantiated and lacking in detail".

Because of his youth, he was given discretionary leave to remain in the UK until his 18th birthday, which was assumed to fall in October 2006.

He made a further application to remain in the UK for "humanitarian protection", and the immigration authorities told him his claim would be considered under the Legacy Programme in due course.

But on May 5 2007 "the most significant event" in his chronology occurred, said Lord Justice McFarlane, and he was arrested and charged with serious sexual offences against children.

From that date he remained in custody. He was convicted of two "sample" offences of sexual activity with a 13-year-old schoolgirl on February 21 2008, and on May 8 that year sentenced to four years in a young offenders' institution.

The judge said: "He, together with four others, had lured schoolgirls to a house for the purposes of sexual activity. The three girls involved were aged 13 or 14."

Saleh was sentenced on the basis that they were planned offences, and he knew the girl's age. The judge who sentenced him expressly said that "the three girls were targeted by the group of five males" and recommended that Saleh be deported.

The trial judge remarked that all three girls were "clearly disturbed and vulnerable, far from mature for their years and had been targeted by the group".

Saleh was automatically regarded as a candidate for deportation under the UK Borders Act 2007 as a foreign criminal.

He was released from his prison sentence in May 8 2009, but continued to be detained for a further two years pending further consideration as to whether he should be deported.

By the end of March 2010, UK Border Agency records showed his case had been reviewed by a senior caseworker who concluded the evidence failed to show Saleh was Sudanese. A decision letter refusing him permission to remain in the UK was sent to him on August 12 2010.

The decision letter triggered a right of appeal. On February 23 2011, a first-tier immigration tribunal concluded there was "overwhelming evidence" that Saleh was a Zaghawan from Darfur, and his appeal against automatic deportation was allowed on human rights grounds.

In particular he won his case on Article 3 of the European Convention on Human Rights, which protects him against deportation to a country where he could face inhuman and degrading treatment.

The appeal judge said it had already been accepted "that if Saleh was a non-Arab Darfuri then, because of what was known of the likely treatment of members of that ethnic group in Sudan, it would not be possible to enforce his automatic deportation".

The judge also said case law meant that people facing deportation could only be held under immigration laws while there was a realistic prospect of removal, and it was unlawful to continue holding them because of unreasonable delays in processing their cases.

Saleh had remained on immigration detention for some 15 months pending consideration of whether he should be deported.

During the 12-month period, from August 2009 to August 2010, when his bid to avoid automatic deportation was under consideration, "administrative activity" in the case was "unaccounted for".

The judge said: "The secretary of state has wholly failed to file any evidence purporting to provide an account for those periods."

The decision whether to exempt Saleh from automatic deportation was a serious and important decision that should not have been rushed - "but it required processing in a proportionate manner having regard to the fact that Saleh was deprived of his liberty for the duration of the decision making period".

The judge ruled: "It is plain to me that at least two thirds of the 12 month period, and therefore eight months, can only be seen as falling on the unreasonable side of the line, and I would therefore hold that eights months of the total period of 15 months in immigration detention was unreasonable and therefore unlawful".

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