The government has received a blow to its plans to deport about 50 people to Jamaica after one of two legal actions to try to halt the scheduled flight succeeded.
The court of appeal made the ruling in an emergency out-of-hours hearing on Monday night, ordering the Home Office not to remove anyone scheduled to be deported from two detention centres near Heathrow on the 6.30am flight to Jamaica on Tuesday
There has been a problem with the O2 phone network in the Heathrow detention centres since last month so many detainees have not been able to exercise their legal right to contact their lawyers.
The Home Office says those being deported are criminals but campaigners say some were only children when they moved to the UK.
The detainees, who the Home Office says are foreign criminals and are being held at two centres near Heathrow Airport, were due to be flown to the Caribbean island on Tuesday morning.
Earlier a high court judge refused an emergency application to halt the charter flight. Mr Justice Mostyn refused an application from Duncan Lewis solicitors on behalf of 13 Jamaican-born men due to be put on the flight leaving the UK at 6.30am.
The lawyers argued that the home secretary, Priti Patel, had acted unlawfully by forcing the men on to the plane, had breached human rights legislation and denied them adequate access to legal advice.
Their application to the high court to halt the flight added that the Home Office’s announcements in the media and in parliament about the charter flight would make the men being deported a “public spectacle” if they were returned to Jamaica, and place them at risk.
The grounds for the refusal have not yet been made public. The court of appeal was asked to consider the judicial review. The out of hours ruling came late on Monday night.
The Court of Appeal reached a different decision.
Lady Justice Simler ordered the Home Office not to remove anyone “unless satisfied (they) had access to a functioning, non-O2 SIM card on or before 3 February”.
Bella Sankey, director of Detention Action, said: “We are delighted with this landmark decision which is a victory for access to justice, fairness and the rule of law.
“On the basis of this order from our Court of Appeal we do not believe that anyone currently detained at the Heathrow detention centres can be removed on the flight. We understand that this will apply to at least 56 people.”
More than 150 politicians and peers had written to the prime minister calling on him to stop the deportation.
Two of the young men who had been set to be deported were convicted of drugs offences as teenagers and say they have no link to Jamaica, having left the country at a young age.
Tajay Thompson, who was convicted of possessing Class A drugs with intent to supply as a 17-year-old, has been given a reprieve.
He served half of a 15-month sentence in 2015 and, now 23, he had told Sky News: “It’s not like I’m a rapist or a murderer, I’ve made a mistake when I was 17 and it’s now going to affect my whole life.”
Mr Thompson was brought to the UK as a five-year-old and lives with his mother and younger brother in south London.
He has only been to Jamaica twice on holiday since and said: “I feel like I was born here. Jamaica is not my country.”
His mother Carline Angus said she feared for her son’s safety if he was deported.
She told Sky News: “Sending a person back to Jamaica to live is totally different from going on holiday.
“The minute you reach back home you are a deportee, your life is in jeopardy. You’d be lucky to survive six months there because you became an easy target. So there’s no way he can survive. Tajay knows no one there.”
Mr Thompson filed a separate legal challenge and is now able to remain in detention in the UK while his lawyers work to keep him here indefinitely.
Akiva Heaven, 22, who served around four years for a drugs offence and was released in May 2018, said: “I’ve done my sentence already, I’ve done my crime, done my time as they would say.
Now, I’m getting a double punishment.
Mr Heaven said he fears for his life if he is forced to return to a place where he has no relatives and no memories.
Nottingham East Labour MP Nadia Whittome organised the letter to Boris Johnson and said deportations should be stopped until a report into the Windrush controversy is released.
She said: “The fact is that many of the individuals in question have lived in the UK since they were children and at least 41 British children are now at risk of losing their fathers through this charter flight.
“The government risks repeating the mistakes of the Windrush scandal unless it cancels this flight and others like it until the Windrush Lessons Learned Review has been published and its recommendations implemented.”
Windrush campaigner and Labour MP David Lammy urged the government to reassure MPs that there were no British nationals on the flight.
He added: “People watching see the way that this government holds with such disrespect the contribution of West Indian, Caribbean and black people in this country. When, when will black lives matter again?”
The Windrush generation were named after the ship that brought migrants to the UK from the Caribbean in 1948.
Commonwealth citizens who arrived in the UK before 1973 were automatically granted indefinite leave to remain but many of them were not given any documents to confirm their status.
In recent years, some have been denied access to services, held in detention or removed, despite living legally in the country for decades.
Reacting to Ms Whittome’s request last week, Boris Johnson said: “The people of this country will think it right to send back foreign national offenders.”
Last year, 29 convicted criminals were deported to Jamaica on the first deportation flight since the Windrush scandal.
The Home Office previously said that under the UK Borders Act 2007, a deportation order must be made where a foreign national has been convicted of an offence and received a custodial sentence of 12 months or more.
Possible exceptions include where this would breach human rights or the UK’s obligations under the Refugee Convention.
A Home Office spokesman has previously said: “The planned charter flight to Jamaica is specifically for removing foreign criminals.
“Those detained for removal include people convicted of manslaughter, rape, violent crime and dealing Class A drugs.”
The Home Office has not responded to recommendations from the former prisons ombudsman Stephen Shaw or to a leak from the Windrush Lessons Learned review, which suggested that foreign national offenders who had lived in the UK for most of their lives should not face automatic deportation.
Last year the Guardian revealed that at least five men had been murdered after their deportation to Jamaica. One of the five was Dewayne Robinson, 37.
It has emerged that Robinson was the cousin of Akeem Finlay, 30, one of those who is facing enforced return to Jamaica on Tuesday after a GBH conviction. Finlay came to the UK at the age of 10.
Months before Robinson’s murder on 4 March 2018 after his deportation from the UK, another of Finlay’s cousins was murdered. “The men involved in the murders of my cousins have warned our family not to return to Jamaica or we will be murdered too,” said Finlay.
The Windrush scandal
The Windrush scandal saw many of those who had arrived in Caribbean countries between 1958 and 1971 detained or deported despite having the right to live in the UK for decades.
The Home Office plans to deport 50 people to Jamaica on 11th February.
Cancel the flight until the Lessons Learned Review is published and its recommendations implemented, or risk repeating the Windrush scandal.
Over 170 colleagues and I wrote urging the Prime Minister to act. pic.twitter.com/cubfqsBPwx
— Nadia Whittome MP (@NadiaWhittomeMP) February 9, 2020
The fallout prompted criticism of the government’s “hostile environment” approach to immigration and led to the resignation of Amber Rudd as home secretary in 2018.
Answering queries on the publication date of the Windrush report – known as the Lessons Learned Review – Mr Foster said as it was an independent review and ministers could not compel it to be produced by a particular date.
Earlier, more than 170 cross-party MPs said in a letter that they have “grave concerns” about the Home Office’s deportation plan and called on the government to cancel all further deportations until the Windrush report was published.
Labour MP Nadia Whittome, who organised the letter, said the government “risks repeating the mistakes of the Windrush scandal unless it cancels this flight”.