Cuban Five Free and Welcome Here
The following article about the Cuban Five concerning the case of R (on the application of Sehwerert) v ECO Cuba  EWCA Civ 1141was first published in Socialist Lawyer, the magazine of the Haldane Society of Socialist Lawyers.
Cuban Five Free and Welcome Here
The case of the Cuban Five (or Miami Five) is an example of international working class solidarity at its best. The Cuban Five were members of an intelligence network (La Red Avispa, or The Wasp Network) set up by the Cuban government to infiltrate far-right terrorist groups in the USA who were carrying out attacks on Cuban soil, primarily against tourist targets. They successfully penetrated several such organisations and are treated in Cuba as heroes for their role in preventing bombings and other attacks against civilians.
The lives of the Cuban Five at times read like an adventure story. René Gonzalez convinced the Americans that he had defected from Cuba by stealing a plane, zig-zagging across the ocean while flying low to avoid radar, and landing in Florida on an empty fuel tank. Gerardo Hernández trained as a diplomat before assuming a false identity as the Puerto Rican ‘Manuel Viramóntez’ and slipping into the USA. Their cover in the USA was maintained for years.
But the last adventure for the Five began on 12 September 1998 when FBI agents broke down their doors, swooping in to arrest them in dawn raids. Placed on trial for a range of offences, primarily relating to espionage – but also, in the case of Gerardo Hernández, conspiracy to murder – the Five never stood a chance. Tried by a jury drawn from Miami, the most hostile environment conceivable to alleged Cuban spies, and slandered throughout the trial by local media paid by the US government for the purpose, the Five were inevitably convicted of all charges. Despite a set of initially successful appeals based on the political nature of their trials their convictions were eventually upheld and they began long prison sentences, and their quest for justice.
Throughout their imprisonment an international solidarity campaign developed, in the UK principally through the Cuba Solidarity Campaign and Voices for the Five. The campaign was taken up by trade unionists and socialists throughout the world, and in the UK in particular. The Haldane Society for its part played a role in promoting an International Commission of Inquiry held at the Law Society, which inquired into their trial and the conditions of their detention. It was attended by many noted international jurists, and exemplified the efforts on the international stage to achieve justice for the Five.
Having served his sentence, René Gonzalez was released from prison in 2011 and was permitted to return to Cuba permanently in 2013 on condition of surrendering his joint-US citizenship. Fernando González was released on 27 February 2014. Both men joined the international campaign of solidarity for the remaining members of the Five.
Playing his role in the campaign for the release of his comrades, René Gonzalez sought to attend the International Commission of Inquiry in London, but was refused entry by the UK’s Entry Clearance Officer (“ECO”) based in Havana on the grounds of his conviction, which had resulted in a prison sentence of more than four years. The Immigration Rules (para 320(2)(b)) provided that this was a bar to his entry to the UK, unless he could show exceptional circumstances or a breach of the European Convention on Human Rights. The Home Office guidance suggests that ‘exceptional circumstances’ includes reliable evidence that the conviction was politically motivated.
A further application was made for him to enter the country, this time supported by a number of MPs and Lords, and with a specific invitation to speak in Parliament. Again, this was rejected by the ECO on the same grounds.
This was the start of a year-long litigation process. Having exhausted administrative appeal routes, an application for judicial review was made. This was supported by a number of MPs as interveners, including Jeremy Corbyn and John McDonnell. Permission for judicial review having initially been refused, permission was granted to appeal to the Court of Appeal on the grounds of the serious constitutional issues that the case raised in terms of the clash between the will of the executive, and the desires of parliamentarians.
The case was heard in the Court of Appeal on 20 October 2015. René and the MPs were represented pro bono by solicitors from Duncan Lewis and Public Interest Lawyers respectively, and by barristers from Mansfield Chambers. On behalf of René it was argued that the invitation to speak in Parliament, coupled with the international concern about the political nature of his conviction, amounted to exceptional circumstances, such that preventing his entry to the UK would amount to a breach of the ECHR. On behalf of the interveners it was also argued that MPs have a right under the ECHR Article 10 to receive information relevant to the exercise of their functions, and that this right is to be accorded particular weight due to its instrumental importance in a democratic society: to deny them the right to speak to René one to one would amount to a breach of that Article 10 right.
In the course of oral argument it unexpectedly emerged that the decision to deny entry to René was in fact taken not by the ECO in Cuba, but by the Home Secretary herself, who directed the ECO to refuse entry to René. This only underlined what we had always known: that rather than being a strict adherence to the Immigration Rules by an anonymous civil servant, the decision to deny René entry to the UK was an unashamedly political decision.
On 10 November 2015 the court handed down its decision. In a unanimous judgment the court granted permission for judicial review, and then allowed the claim, holding that there had in fact been a breach of Article 10 by the Secretary of State. In doing so, the court did not feel the need to place any reliance on the position now occupied by some of the interveners as members of the Opposition front bench. This point is likely to be of great assistance to applicants for entry clearance if similar circumstances arise in future.
During the course of the litigation the remaining three members of the Five (Gerardo Hernández, Antonio Guerrero, and Ramón Labañino) were granted presidential commutations of sentence, and were sent back to Cuba in an exchange of political prisoners (as a condition of the commutation Antonio Guerrero was required to renounce his US citizenship.) Happily, all members of the Cuban Five are now free in Cuba. They are immensely grateful for the solidarity shown to them by people from around the world. In Cuba, they are heroes. In the UK, thanks to the tireless efforts of certain Labour MPs and others, they are now welcome.
Stephen Knight is a barrister at Mansfield Chambers and a part of the Interveners’ legal team. He is a member of the Executive Committee of the Haldane Society.
The Cuba Solidarity Campaign, who were involved in instructing the legal team from Mansfield Chambers for Rene and the Interveners, are currently organising the Miami Five Freedom Tour 2016. They need to raise £30,000 to pay for international flights, UK travel, accommodation and living expenses for the Five and their families (12 people) to come to Britain
You can find details of how to contribute on the website of the Cuba Solidarity Campaign.