A judge's decision to allow a convicted drug dealer who abandoned his children the right to stay in Britain over his “human rights” is at the centre of mounting political protest.
Hesham Mohammed Ali won an appeal against moves by Theresa May, the Home
Secretary, to deport him because of his crimes.
He convinced a judge he had a “family life” which had to be respected because
he had a “genuine” relationship with a British woman – despite already having
two children by different women with whom he now has no contact.
Ali also mounted an extraordinary claim that his life would be in danger in
his native Iraq because he was covered in tattoos, including a half-naked
Western woman – a claim which was only dismissed after exhaustive legal
examination.
In his decision to let Ali stay, the immigration judge said he was not taking
into account new guidelines introduced by the Home Secretary last week, in an
attempt to stop spurious human rights cases being brought by criminals to
prevent their deportation.
The Home Office has said it was “disappointed” by the ruling, while MPs said
it showed there was an urgent need 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.”
Dominic Raab, the Tory MP who is campaigning for human rights reform, said of the case: “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.”
Priti Patel, the Tory MP, 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 spent thousands of pounds of taxpayers’ money trying to have Ali deported, fighting his initial appeal – which was eventually set aside – and a second hearing.
The two key elements of his claim were his “family life”, and the danger his tattoos would pose if he was deported to Iraq.
During that hearing the court went to great lengths to consider the issue of Ali’s tattoos, with Judge Jonathan Perkins describing the issue as “problematic”. He 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 “irregularly” by a people-smuggling gang in 2000, when he was 24, and has never been in this country legally. Two years after arriving he made an asylum claim which was refused, as was a subsequent appeal. However, for reasons which are unknown, he was not deported and continued to live in Britain.
He 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.
Just over a year later he was convicted of another offence at Snaresbrook Crown Court in London but this time it was more serious – possessing Class A drugs with intent to supply – and he was jailed for four years. Under immigration laws any foreign national jailed for a year or more should be subject to automatic deportation.
Within months of his sentencing, 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.
The drug dealer was released on bail in January 2009. Deportation proceedings began again in 2010, and Ali again lodged an appeal. He told the court he would be in danger if he was returned to Iraq because he was so Westernised.
Allowing him to stay at the second hearing, Judge Perkins said he was impressed by evidence from Ali’s girlfriend, Cy Harwood, 31, a Londoner who has trained as a beautician. They met in 2005.
The judge ruled that Ali’s deportation would have a very damaging effect on her and would be a breach of the couple’s rights under Article 8.
“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 judge also detailed the claim that tattoos, and Ali’s claim that he had become Westernised, would put him in danger in Iraq.
“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 fiancee’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.”
Alan George, a specialist on Iraq who appeared for Ali, told the court he was not aware of any examples of Muslims being persecuted because of their tattoos but he added that “tattoos would be considered un-Islamic and a tattoo of a semi-naked woman particularly objectionable”.
He suggested it would be difficult for Ali to pray because Muslim ritual requires him to bathe and expose his body.
Describing the 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 said 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 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
“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.”
Dominic Raab, the Tory MP who is campaigning for human rights reform, said of the case: “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.”
Priti Patel, the Tory MP, 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 spent thousands of pounds of taxpayers’ money trying to have Ali deported, fighting his initial appeal – which was eventually set aside – and a second hearing.
The two key elements of his claim were his “family life”, and the danger his tattoos would pose if he was deported to Iraq.
During that hearing the court went to great lengths to consider the issue of Ali’s tattoos, with Judge Jonathan Perkins describing the issue as “problematic”. He 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 “irregularly” by a people-smuggling gang in 2000, when he was 24, and has never been in this country legally. Two years after arriving he made an asylum claim which was refused, as was a subsequent appeal. However, for reasons which are unknown, he was not deported and continued to live in Britain.
He 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.
Just over a year later he was convicted of another offence at Snaresbrook Crown Court in London but this time it was more serious – possessing Class A drugs with intent to supply – and he was jailed for four years. Under immigration laws any foreign national jailed for a year or more should be subject to automatic deportation.
Within months of his sentencing, 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.
The drug dealer was released on bail in January 2009. Deportation proceedings began again in 2010, and Ali again lodged an appeal. He told the court he would be in danger if he was returned to Iraq because he was so Westernised.
Allowing him to stay at the second hearing, Judge Perkins said he was impressed by evidence from Ali’s girlfriend, Cy Harwood, 31, a Londoner who has trained as a beautician. They met in 2005.
The judge ruled that Ali’s deportation would have a very damaging effect on her and would be a breach of the couple’s rights under Article 8.
“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 judge also detailed the claim that tattoos, and Ali’s claim that he had become Westernised, would put him in danger in Iraq.
“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 fiancee’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.”
Alan George, a specialist on Iraq who appeared for Ali, told the court he was not aware of any examples of Muslims being persecuted because of their tattoos but he added that “tattoos would be considered un-Islamic and a tattoo of a semi-naked woman particularly objectionable”.
He suggested it would be difficult for Ali to pray because Muslim ritual requires him to bathe and expose his body.
Describing the 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 said 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 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
