An illegal immigrant who stabbed a 15-year-old schoolboy to death less than a year after arriving in Britain cannot be deported because he claims to be gay.
The 29-year-old Jamaican was jailed for life aged 16 when he and another schoolboy knifed Abdul Maye to death over a £10 debt outside his school in east London.
A judge at the Old Bailey ordered that he be kicked out of Britain once he had served a minimum of eight years.
Judge Paul Focke told the thug, who cannot not be named for legal reasons: ‘You are a Jamaican national and within months of coming to this country you committed murder.
‘I am of the view that your continued presence in this country will be detrimental to its citizens.’
But the Court of Appeal ruled that he could not be sent back to Jamaica because he could face degrading treatment for being homosexual that would breach his human rights.
In an extraordinary judgment which has provoked outrage, Lord Justice Kay said he believed his mother’s evidence that he was gay – even though the Home Office said he ‘had made no mention of it’ until his first appeal against deportation failed.
The decision is expected to infuriate Home Secretary Theresa May, who has battled to send him home since he was released from prison in 2012.
The judge referred to Article Three in the Human Rights Act, which protects an individual from inhuman or degrading treatment.
Douglas Carswell, Tory MP for Clacton, said: ‘Most people would think this is outrageous. It’s a gross distortion of the concept of justice.
The murderer, referred to only as JR, arrived in the UK in December 2000 when he was 15 on a temporary visa to visit his mother.
An application for leave to stay longer was refused, but the yob remained in the country anyway.
And less than a year later he and a 14-year-old stabbed a fellow schoolboy to ‘save face’ after he humiliated them by refusing to pay a £10 debt – a payment which he owed them for cannabis.
The Old Bailey heard JR, who only has an IQ of 63 – putting him in the lowest two per cent of the population – knifed Abdul in front of his horrified classmates outside Little Ilford Comprehensive School in Manor Park after the victim had just finished a mock GCSE exam on December 7, 2001.
The victim, whose family fled to Britain from the civil war in Somalia in 1995, died shortly afterwards in hospital.
In the weeks beforehand, the schoolboys had threatened to ‘chop’ or ‘stab’ the victim and the Jamaican sprayed him and a friend with CS gas.
The pair were jailed for life in September 2002 and told to serve a minimum of eight years and two months. But this was reduced on appeal to six years and two months with the deportation recommendation set aside.
However, the Secretary of State ordered JR’s deportation in 2009.
The judge said JR spent 11 and a half years in custody before declaring himself gay in April 2012.
The First-Tier Tribunal accepted he was homosexual, and that he would be at risk of 'inhuman or degrading treatment' if returned to Jamaica.
The Upper Tribunal later refused Mrs May's appeal, after hearing JR's mother give evidence that she 'knew all along' that her son was gay.
His 'late disclosure' of his sexuality was said to have been 'prompted by societal attitudes, particularly that of Jamaicans towards gays'.
The barrister argued that 'the claim of homosexuality was contrived and brought as a last resort to avoid deportation.'
But Lord Justice Kay dismissed the appeal, saying the FTT had obviously found JR's mother 'an impressive witness'.
He added: 'I consider that the Upper Tribunal was correct to find no error of law in the FTT's treatment of the issue of homosexuality'.
Mrs May accepted that, if the man was genuinely gay, he could not be deported, and the Upper Tribunal had also found that he 'no longer constitutes a significant danger to the community of the UK.'
The judge went on: 'It follows from what I have said that the Secretary of State's appeal must fail.'
But in a warning to any offenders hoping to avoid deportation by pretending to be gay, he added: 'I should add, however, that this case turns on its specific and quite unusual facts. It should not be seen as providing more general succour to others convicted of grave crimes.'
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