Yarbo, R (on the application of) v Secretary of State for the Home Department [2014] EWHC 2250 (Admin)

Case No CO/3788/2013[2014] EWHC 2250 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 9 July 2014
Before
Ms D. GILL(Sitting as a Deputy High Court Judge)
Between
THE QUEEN on the application of OMAR YARBOClaimantSECRETARY OF STATE FORDefendantTHE HOME DEPARTMENTDefendant
Mr Omar Yarbo in person for in personMr David Mankell (instructed by Treasury Solicitor) for DefendantHearing Hearing dates: 11 June 2014
JudgmentMs D. Gill :
[1]This claim for judicial review began as a challenge to the lawfulness of directions set on 15 March 2013 to remove the claimant from the United Kingdom on 19 March 2013. It now stands as a challenge to the defendant’s decision of 23 April 2013 (upheld in a further decision of 16 May 2013) to certify the claimant’s human rights claim (article 8 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms) as clearly unfounded under section 94(3) of the Nationality, Immigration and Asylum Act 2002 (the “2002 Act”). The effect of the certification (if upheld) is that the claimant may only bring an appeal against the defendant’s decision of 23 April 2013 (upheld on 16 May 2013) to refuse to revoke the deportation order after he has left the United Kingdom.[2]The claimant’s further representations of 7 February 2014 and 5 June 2014 (raising for the first time his alleged relationship with a Ms. Alex Ross said to be pregnant with his child) and the defendant’s decision of 21 March 204 responding to the representations of 7 February 2014 are not part of this challenge. The impending three-month deadline for challenging the decision of 21 March 2014 was pointed out to the claimant at the hearing on 11 June 2014.

Immigration history and factual background

[3]The claimant is a national of the Republic of the Gambia (the Gambia), born on 14 January 1991. He was eleven years old when he arrived in the United Kingdom with his mother and sister on 8 June 2002. He entered the United Kingdom as a visitor, with a visa valid until 6 December 2002. On an undetermined date in 2002, his mother returned to the Gambia leaving him in the care of his older sister (Ya Fatou Senneh) who was already in the United Kingdom.[4]On 4 September 2008, the claimant was convicted of an offence of handling stolen goods at Camberwell Green Juvenile Court and sentenced to 100 hours’ community punishment order. He failed to attend the community service.[5]In April 2009, the claimant was sectioned under section 2 of the Mental Health Act 1983. On 1 May 2009, he was discharged following treatment for cannabis-induced psychosis but re-admitted to hospital due to homelessness on 2 May 2009. He was discharged on 8 May 2009 and placed in temporary respite care whilst accommodation issues were being addressed. He left respite care on 14 May 2009.[6]On 13 May 2009, the claimant claimed asylum. His claim was refused and certified on 15 July 2009 under section 94(3) of the 2002 Act. On 26 March 2010, he applied for voluntary return. This application was refused on 31 March 2010.[7]On 4 February 2011, the claimant received his first custodial sentence at Inner London Crown Court. He was sentenced to one month’s imprisonment for failing to surrender to custody at the appointed time. On 12 May 2011, he was fined £100 at Greenwich Magistrates’ Court for interfering with a vehicle.[8]The offence which led to the deportation order being made was his conviction on 17 June 2011 at Inner London Crown Court of an offence of robbery, failing to surrender to custody and breaching a community order. He received a total sentence of 2 years’ imprisonment.[9]On 14 May 2012, the claimant’s appeal against the deportation order was dismissed by the First-tier Tribunal (Immigration and Asylum Chamber) (FtT) (First-tier Tribunal Judge Rothwell and Mr. A. F. Sheward) (hereafter the “panel”). The claimant became appeal rights exhausted on 24 May 2012. Efforts were then made to document him.[10]On 8 March 2013, the claimant was granted immigration bail. On 15 March 2013, he was re-detained and directions were set for the claimant’s removal to the Gambia on 29 March 2013. The removal failed due to logistical problems.[11]However, in the meantime, representations were made to the defendant by letter dated 26 March 2013 requesting that the deportation order be revoked and removal deferred pending receipt of a report from a Dr. Joanna Dow, a Forensic Psychiatrist. This request was the subject of the first decision challenged. Dr. Dow’s report dated 5 May 2013 was served on the defendant on 7 May 2013. This report is the subject of the second decision challenged.[12]Since then, and as stated above, the claimant has made further representations and submitted further documents, on 7 February 2014 and 5 June 2014. However, in the meantime, he has also been convicted of further criminal offences. On 13 October 2013, he was convicted at Newcastle Magistrates’ Court of two charges of theft and one of possession of cannabis. He was given a twelve month’s community order sentence comprising twelve months of supervision and 80 hours’ unpaid work. He was also ordered to pay a victim surcharge.

The determination of the claimant's appeal in May 2012:

[13]The panel heard oral evidence from the claimant and his sister (Ya Fatou Senneh). It did not accept the evidence of both that their relationship had always been close, noting, in particular, that they had not always lived together; that the sister did not support the claimant from March 2009 when she “kicked [him] out of her house” because “her house was beginning to become dangerous for her son as there were many people in her area in the UK who hated [the claimant]” and also because he had been stabbed. The panel found there were concerns on the part of the claimant's sister for the safety of her son as there were issues relating to the dangerousness of the claimant and his associates.[14]The panel had evidence that the claimant had lived with a girlfriend from early 2010 until the commission of the offence of robbery, indicating (in the panel's view) that, by early 2010, he was making his own decisions about his family and private life and living independently from his sister. By the date of the hearing before the panel, the claimant and his girlfriend were no longer in a relationship.[15]On the evidence before it, the panel did not accept that the relationship between the claimant and his sister amounted to family life within article 8(1). It found that they could maintain their relationship by visits to the Gambia or third countries and by modern methods of communications.[16]The panel did not accept that the claimant and especially his sister had no contact with and did not know the whereabouts of their mother. It found on the evidence that the claimant's sister was in contact with her mother, if not the claimant too. It did not accept that the claimant would be returning to a country where he had no family. The panel noted that the first language of the Gambia was English.[17]The panel considered that robbery was a serious offence, noting that the sentencing remarks of the judge showed that the starting point for the offence in question for an adult was four years and that the claimant had received a sentence of two years on account of his age and his guilty plea. The sentencing judge had also remarked that the offence of robbery showed an escalation of the seriousness of the claimant’s offences, noting:
“Four people engaging in the robbery of a small business is something which is bound to cause real fear and distress. When you and your friends decided to rob this small business, they were engaging in extremely anti-social behaviour.”
[18]The pre-sentence report dated 7 June 2011 stated that the claimant’s risk of re-offending was medium. In evidence before the panel, the claimant said that he had only pleaded guilty at the door of the court as he did not want to go through the process of being found guilty and receiving a heavier sentence. The panel considered that this showed that the claimant’s concern was only for himself; he had no concern for the victims of his crime; and, as stated by the author of the pre-sentence report, the claimant identified himself as the victim, having said in evidence before the panel “it is this country that has taught [me] to commit crimes.” The panel agreed with the writer of the pre-sentence report that the claimant “normalises criminal behaviour”. It considered that the claimant ought to have had more victim empathy given that he had been the victim of a kidnap in early 2010. It did not accept the claimant's evidence that he was remorseful and that he had committed crimes because he was “young and stupid”.[19]The panel considered that there was no evidence that the claimant had changed sufficiently since the pre-sentence report was written. To the contrary, it noted that the claimant had made an admission in his witness statement before the panel that, by the end of 2009, he was dealing in drugs to make money, although it went on to find that the risk of re-offending had not changed since the conviction for robbery. On release, he would return to his sister but there was no evidence that he would be returning to a different area. The panel did not accept that his sister was a stabilising influence on the claimant’s life, as she had been unable to control him from the age of 14 onwards and was even fearful of the danger he posed to her son. The panel noted that there was no cogent evidence before it that showed that the claimant had done anything to minimise his risk of re-offending and his danger to the public.[20]The panel considered the private life of the claimant and the criteria inÜner v Netherlands App 46410/99 [2006] ECHR 873, Maslov v Austria 23 June 2008 [2009] INLR 47, Masih(deportation – public interest – basic principles) Pakistan [2012] UKUT 00046 (IAC) and other cases. The panel noted that the claimant was 21 years old and had been in the United Kingdom since 2002 from the age of 11 years. It accepted that he had lived a large portion of his life in the United Kingdom, but it also noted that most of his residence was unlawful.[21]The panel reminded itself that very serious reasons were needed to deport someone in the position of the claimant. When balancing all of the factors in favour of the claimant against the public interest regarding the risk of re-offending and the need for deterrence, the panel concluded on all of the evidence in the case that the deportation of the claimant was proportionate. It therefore dismissed his appeal on article 8 grounds.

The report of Dr Dow dated 5 May 2013

[22]Dr Dow was commissioned to produce her report by Sutovic & Hartigan Solicitors who were acting for the claimant in May 2013. The defendant has not taken issue with her expertise. She is a registered medical practitioner approved under section 12(2) of the Mental Health Act 1983 and a specialist registrar in forensic psychiatry.[23]In Dr. Dow’s opinion, the claimant had “traits consistent with a Dissocial Personality Disorder”, which she described as a mental and behavioural disorder as defined by the International Classification of Mental and Behavioural Disorders, ICD 10 (F60.2). The dysfunctional traits in his personality can be understood in terms of disrupted childhood attachments (to all intents and purposes being abandoned by his mother with little explanation); the lack of a father figure; and moving to an alien environment in his formative years.[24]In Dr Dow’s opinion, the characteristics of a Dissocial Personality Disorder that the claimant demonstrated were his reduced capacity to experience guilt or profit from experience; and his tendency to offer plausible rationalisations for the behaviour that had brought him into conflict with society. However, she considered that there were other features present that suggested that he did not have all of the diagnostic features; notably, his ability to maintain a long-term intimate relationship; the fact that he showed remorse for his offending and a desire to change; as well as his ability to express empathy towards the victims of his offending.[25]Dr. Dow was of the opinion that there was clear evidence that the claimant’s use of cannabis caused psychotic symptoms and that, at the time of his admission to hospital, his symptoms were characteristic of “Psychotic Disorder due to Psychoactive Substances: Cannabinoids (ICD10 F12.5)” which was treated with antipsychotic medication. This, together with his subsequent abstinence from cannabis had led to a good recovery. At the date of Dr Dow’s report, the claimant did not exhibit any psychotic symptoms.[26]Dr Dow considered that, at his interview with her, the claimant had demonstrated a good understanding of the negative impact that cannabis had on his mental health. His account to her was that since the realisation that cannabis had directly contributed to his first admission to hospital, he had abstained from cannabis use. He had also expressed his determination to remain abstinent.[27]With regard to his risk of re-offending, Dr Dow stated as follows:
“From my assessment of [the claimant] and an analysis of the OASys factors pertinent to his re-offending, I am of the opinion that if he engages in education or gainful employment to provide him with structured activities and boost his sense of purpose and self esteem; has recourse to financial support; and gains appropriate accommodation away from his antisocial peer group - his risk of re-offending would be significantly decreased. Currently, if returned to the community, he would have a 1:3 statistical risk of conviction for general re-offending in the following 12 months.”
[28]With regard to his risk of serious harm to others, where serious harm was defined as death or serious physical injury, physical or psychological, Dr Dow said as follows:
“I rate the current risk as medium (where medium is defined as: there being identifiable indicators of risk of harm, the offender has the potential to cause harm but is unlikely to do so unless there is a change in circumstances, e.g. loss of accommodation, a lapse back to drug or alcohol misuse). From my assessment and the evidence available to me I am of the opinion that the risk of serious harm to others would be mainly if he were to return to associating with a pro-criminal peer group. [The claimant] showed a reasonable degree of insight into this and demonstrated an apparent determination to stay from this lifestyle. It is also likely that if he were to return to smoking cannabis the risk of harm to others would increase in the context of paranoia and persecutory ideation which may lead to confrontation.”
[29]In relation to the claimant’s family history, Dr Dow stated (inter alia) (at para 16):
“[The claimant] said he has four older brothers all of whom were living in Germany when he was growing up in Gambia and who remain there. He has occasional telephone contact with them but otherwise keeps in touch via social networking sites. He also has one older sister Fatou, about 12 years his senior, who lives in the UK and has British citizenship. He lived with his sister after his arrival in the UK. He said he was close to his sister’s son (his nephew) ‘I watched him grow up’.”

The relevant principles

[30]Since the claimant’s appeal in May 2012, amendments have been made to the Immigration Rules with effect from 9 July 2012 (HC 194) that govern appeals against deportation orders and refusals to revoke deportation orders. In any appeal before the FtT, the FtT would be bound to apply these Immigration Rules.[31]The findings of the panel would be a starting point, to the extent that such findings are relevant to any applicable Rules, pursuant to the guidance in Devaseelan * [2002] UKIAT 00702, [2003] Imm. A.R 1. The FtT would consider the report of Dr. Dow in its consideration of the new Rules, to the extent that the report is relevant to any issues to be considered in connection with any applicable new Rules.[32]In reaching my decision on the certification issue, Mr Manknell agreed that I had to reach my own view on the question whether, on the material before the defendant as at the date of the second decision, the claimant’s article 8 claim was one that was bound to fail in an appeal before the FtT, applying the approach that the FtT would have to apply if there was an appeal and as explained above. The following extracts from the speech of Lord Phillips of Worth Matravers in ZT (Kosovo) v. SSHD [2009] 1 WLR 348, [2009] UKHL 6, explain the correct approach to the certification issue: “22. The test of whether a claim is 'clearly unfounded' is a black and white test. The result cannot, for instance, depend upon whether the burden of proof is on the claimant or the Secretary of State, … in R(L) v Secretary of State for the Home Department [2003] EWCA Civ 25; [2003] 1 WLR 1230, paragraphs 56 to 59 I put the matter as follows. ‘56 … 57 … the decision-maker will(i) consider the factual substance and detail of the claim,(ii) consider how it stands with the known background data,(iii) consider whether in the round it is capable of belief,(iv) if not, consider whether some part of it is capable of belief,(v) consider whether, if eventually believed in whole or in part, it is capable of coming within the Convention. If the answers are such that the claim cannot on any legitimate view succeed, then the claim is clearly unfounded; if not, not. 58 … If on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded...’ 23. Where, as here, there is no dispute of primary fact, the question of whether or not a claim is clearly unfounded is only susceptible to one rational answer. If any reasonable doubt exists as to whether the claim may succeed then it is not clearly unfounded. It follows that a challenge to the Secretary of State's conclusion that a claim is clearly unfounded is a rationality challenge. There is no way that a court can consider whether her conclusion was rational other than by asking itself the same question that she has considered. If the court concludes that a claim has a realistic prospect of success when the Secretary of State has reached a contrary view, the court will necessarily conclude that the Secretary of State's view was irrational.” ‘56 …[33]The relevant Immigration Rules are set out below. By way of an overview, it is plain that the sentence the claimant received on 17 June 2011 brings him within para 398(b) of the Immigration Rules. Applying the judgment of the Court of Appeal in MF (Nigeria)v SSHD [2013] EWCA Civ 1192, the first step for the FtT would be to consider whether para 399 or 399A apply. If either applied, then the new rules implicitly provide that deportation would be contrary to article 8. If neither applied, the concluding words of para 398 require consideration of whether there were exceptional circumstances to outweigh the public interest, there being a presumption (para 396 of the Immigration Rules) that the public interest requires deportation. 34. The relevant Immigration Rules:
“390. An application for revocation of a deportation order will be considered in the light of all the circumstances including the following: (i) the grounds on which the order was made; (ii) any representations made in support of revocation; (iii) the interests of the community, including the maintenance of an effective immigration control; (iv) the interests of the applicant, including any compassionate circumstances. 391. In the case of a person who has been deported following conviction for a criminal offence, the continuation of a deportation order against that person will be the proper course: (a) in the case of a conviction for an offence for which the person was sentenced to a period of imprisonment of less than 4 years, unless 10 years have elapsed since the making of the deportation order, or (b) in the case of a conviction for an offence for which the person was sentenced to a period of imprisonment of at least 4 years, at any time, unless, in either case, the continuation would be contrary to the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees, or there are other exceptional circumstances that mean the continuation is outweighed by compelling factors. 396. Where a person is liable to deportation the presumption shall be that the public interest requires deportation. It is in the public interest to deport where the Secretary of State must make a deportation order in accordance with section 32 of the UK Borders Act 2007. 398. Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and (a) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years; (b) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or (c) the deportation of the person from the UK is conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law, the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors. 399. This paragraph applies where paragraph 398 (b) or (c) applies if – (a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and (i) the child is a British Citizen; or (ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case (a) it would not be reasonable to expect the child to leave the UK; and (b) there is no other family member who is able to care for the child in the UK; or (b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK, or in the UK with refugee leave or humanitarian protection, and (i) the person has lived in the UK with valid leave continuously for at least the 15 years immediately preceding the date of the immigration decision (discounting any period of imprisonment); and (ii) there are insurmountable obstacles to family life with that partner continuing outside the UK. 399A.This paragraph applies where paragraph 398(b) or (c) applies if – (a) the person has lived continuously in the UK for at least 20 years immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK; or (b) the person is aged under 25 years, he has spent at least half of his life living continuously in the UK immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.” (i) the grounds on which the order was made; (ii) any representations made in support of revocation; (iii) the interests of the community, including the maintenance of an effective immigration control; (iv) the interests of the applicant, including any compassionate circumstances. (a) in the case of a conviction for an offence for which the person was sentenced to a period of imprisonment of less than 4 years, unless 10 years have elapsed since the making of the deportation order, or (b) in the case of a conviction for an offence for which the person was sentenced to a period of imprisonment of at least 4 years, at any time, unless, in either case, the continuation would be contrary to the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees, or there are other exceptional circumstances that mean the continuation is outweighed by compelling factors. (a) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years; (b) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or (c) the deportation of the person from the UK is conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law, the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors. (a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and (i) the child is a British Citizen; or (ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case (a) it would not be reasonable to expect the child to leave the UK; and (b) there is no other family member who is able to care for the child in the UK; or (b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK, or in the UK with refugee leave or humanitarian protection, and (i) the person has lived in the UK with valid leave continuously for at least the 15 years immediately preceding the date of the immigration decision (discounting any period of imprisonment); and (ii) there are insurmountable obstacles to family life with that partner continuing outside the UK. (a) the person has lived continuously in the UK for at least 20 years immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK; or (b) the person is aged under 25 years, he has spent at least half of his life living continuously in the UK immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.”
[34]As to the meaning of “exceptional circumstances” in para 398, the Court of Appeal said in MF (Nigeria) said:
“42. At para 40, Sales J [in R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin)] referred to a statement in the case law that, in “precarious” cases, “it is likely to be only in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of art 8”
. This has been repeated and adopted by the ECtHR in near identical terms in many cases. At paras 41 and 42, he said that in a “precarious” family life case, it is only in “exceptional” or “the most exceptional circumstances” that removal of the non-national family member will constitute a violation of article 8. In our view, that is not to say that a test of exceptionality is being applied. Rather it is that, in approaching the question of whether removal is a proportionate interference with an individual’s article 8 rights, the scales are heavily weighted in favour of deportation and something very compelling (which will be “exceptional”) is required to outweigh the public interest in removal. In our view, it is no coincidence that the phrase “exceptional circumstances” is used in the new rules in the context of weighing the competing factors for and against deportation of foreign criminals. 43. The word “exceptional” is often used to denote a departure from a general rule. The general rule in the present context is that, in the case of a foreign prisoner to whom paras 399 and 399A do not apply, very compelling reasons will be required to outweigh the public interest in deportation. These compelling reasons are the “exceptional circumstances”. 44. We would, therefore, hold that the new rules are a complete code and that the exceptional circumstances to be considered in the balancing exercise involve the application of a proportionality test as required by the Strasbourg jurisprudence….”

The defendant’s decisions

[35]The first decision was made without sight of the report of Dr Dow. After Dr Dow’s report was received by the defendant, it was considered and dealt with in the second decision.[36]The defendant considered the findings of the panel in line with the judgment in Devaseelan, as the starting point. Having set out the findings of the panel, the defendant noted (para 30 of the first decision) that the Immigration Rules had been amended (as set out above) since the determination in that appeal. The defendant considered the claimant’s article 8 rights in the light of these new Immigration Rules, concluding (inter alia) as follows: i) Para 399(a) did not apply because there was no evidence to suggest that the claimant had a child in the United Kingdom. ii) Para 399(b) did not apply because there was no evidence that the claimant had a partner in the United Kingdom. iii) Para 399A did not apply for the following reasons. Whilst it was not disputed that the claimant arrived in the United Kingdom in 2002, aged 11, and that he was aged 22 years and 3 months at the date of the decision, a period of one year fell to be discounted as a result of his then current period of imprisonment and a further period of one month in respect of the first custodial sentence in 2011. Thus, the defendant concluded that the claimant had not spent at least half of his life immediately preceding the immigration decision in the United Kingdom. The defendant considered that the claimant had ties to the Gambia given that the panel had found that the claimant’s mother was resident in the Gambia and that nothing had been submitted to challenge that previous finding. In addition, the defendant considered that the official language in the Gambia was English and that the claimant should therefore be able to re-integrate into society in the Gambia.[37]In relation to the report of Dr Dow, the defendant considered that Dr Dow’s opinion that the claimant was not then suffering from any form of mental illness did not support the representations made on his behalf that he was suffering from a mental health condition or that his mental health was such that the generic framework that applied in assessing the future risk of re-offending could not be used in his case. Furthermore, the panel’s conclusions on risk were made in May 2012, less than a year previously. As the claimant had remained in detention under immigration powers during the intervening period, he had been unable to address his offending behaviour and it was not clear what changes had happened in the interim.[38]In any event, the defendant considered that, even if Dr Dow considered that the risk of harm and re-offending had reduced since the claimant’s last appeal, this was not a factor to which much weight is attached given the new Immigration Rules.[39]Pursuant to para 398 of the Immigration Rules, the defendant considered whether there exceptional circumstances, concluding that there were no exceptional circumstances to outweigh the state’s interests in deportation and noting that there was a presumption in favour of deportation. The claimant’s relationship with his sister had been considered by the panel and no further evidence had been provided to address the panel’s finding.[40]The defendant therefore maintained the certification of the claim under section 94(3) of the 2002 Act. Although the first and second decisions deal with whether the representations advanced on the claimant's behalf amount to a fresh claim under para 353 of the Immigration Rules, Mr. Manknell submitted that the sole issue for me to decide was whether the certification under section 94(3) was lawful. I agree that consideration of this issue will dispose effectively of all issues in this case.

The claimant’s case as presented by his previous representatives

[41]The claimant’s most recent grounds are the amended grounds dated 21 May 2013. There is also a skeleton argument that was served on his behalf by Ealing Law Centre (who were representing him by then) for the hearing of the renewed permission application on 23 July 2013.[42]His case as presented in these documents may be summarised as follows: i) The panel had held against the claimant the fact that he identified himself as a victim, lacked empathy and normalised criminal behaviour. In doing so, it was unaware that these were identifiable elements of his Dissocial Personality Disorder. ii) Dr Dow’s report identifies that the claimant now presents with maturity, showing insight into his mental health, his use of cannabis and his previous anti-social behaviour. These are positive factors with regard to the assessment of risk. iii) It was therefore open to a reasonable judge of the FtT to conclude that the defendant had not established very serious reasons for deporting the claimant to the Gambia. It would not be proportionate to deport the claimant given that untreated mental health concerns and behaviour had influenced his anti-social behaviour and led to his offending behaviour. iv) The defendant had acted unlawfully and unreasonably in certifying the claimant’s case, given that very serious reasons were required to deport the claimant as he had spent his formative years in the United Kingdom as per Maslov v Austria.

The claimant’s case at the hearing

[43]The claimant said that, as he has not been released from his sentence of imprisonment and has been held in immigration detention, he has not had an opportunity to demonstrate that he has changed and that the risk of re-offending and risk of harm had reduced. Given that his risk had now reduced, it was unfair for the defendant to say that a lower risk of re-offending and risk of harm did not attract much weight.[44]His main ground for challenging the defendant’s decisions was that he arrived in the United Kingdom as a minor and grew up in the United Kingdom. He did not come to the United Kingdom of his own accord. He said that he came within the terms of para 399(b) as he was under the age of 25 years and had lived at least half of his life in the United Kingdom. He had no ties in the Gambia. He does not have any contact with his mother in the Gambia; his sister has never told him that she was in contact with his mother. He would have no financial support or a job in the Gambia, nor a house in which to live. He would therefore be unable to stay in contact with his brothers in Germany and his sister in the United Kingdom. He does not know anything about life in the Gambia, having grown up in the United Kingdom. He has obtained qualifications in the United Kingdom. He does not even know the language in the Gambia.

Assessment

[45]In any appeal before the FtT, the FtT would be bound to conclude as follows in relation to paras 398 and 399 and 399A of the Immigration Rules for the reasons given below: i) Para 398(b) applies because the claimant received a sentence of imprisonment of less than 4 years but at least 12 months on 17 June 2011. ii) Para 399(a) does not apply because there was nothing before the defendant at the date of her decisions to suggest that the claimant had a child. iii) Para 399(b) does not apply because there was nothing before the defendant at the date of her decisions to suggest that the claimant had a genuine and subsisting relationship with any partner in the United Kingdom, it being the case that representations that he did have a partner (Ms. Alex Ross) were only made in the completed “Statement of Additional Grounds” received by the defendant on 7 February 2014. iv) Para 399A(a) does not apply because the claimant had not lived continuously in the United Kingdom for at least twenty years immediately preceding the decisions sought to be challenged, having first arrived on 8 June 2002.[46]Thus, the claimant focused on the provisions of para 399A(b). For this para to apply, the claimant would need to satisfy both limbs i.e. that he was a person aged under 25 who had spent at least half of his life living continuously in the United Kingdom immediately before the decisions sought to be challenged and that he had no ties (including social, cultural or family) in the Gambia. He cannot satisfy either limb for the following reasons:[47]In relation to the first limb of para 399A(b), para 399A(b) specifically provides for periods of imprisonment to be deducted from the period of residence in the United Kingdom. Accordingly, in the instant case, the period of imprisonment of 1 year and 1 month (1 year for the robbery and 1 month for the breach of the community order) would have to be deducted from the period of 11 years residence in the United Kingdom (from June 2002 until May 2013), with the result that the qualifying period of continuous residence would be just under ten years, which represented less than half of his age as at the date of the second decision (22 years and 4 months).[48]The claimant cannot satisfy the second limb of para 399A(b) because he had not provided the defendant with any material or evidence to depart from the findings of the previous panel on the question of his ties in the Gambia. All of the arguments he advanced before me had essentially been considered by the panel save that the panel was not aware that he had four siblings in Germany with whom he maintained contact via social networking sites and occasional telephone calls. Far from assisting him, that evidence weakened his case, especially given that there was nothing before the defendant to call into question the panel’s finding that his mother was in the Gambia. In relation to the claimant's argument that his sister had not told him that she was in contact with his mother, the panel was plainly aware that it did not have evidence that the claimant was also in contact with his mother. However, there was nothing before the defendant to undermine the defendant’s reliance on the panel's finding that the fact that his sister was in contact with his mother meant that he had ties in the Gambia. He said that he did not know the language in the Gambia. However, the panel found that language used in the Gambia was English.[49]Thus, the FtT would be bound to conclude, as the defendant did, that para 399A(b) did not apply.[50]Accordingly, the focus of the enquiry shifts to the question, whether the material presented to the defendant as at the date of the second decision was such that an appeal might have been allowed by the FtT on the basis that there were exceptional circumstances that outweighed the public interest in deportation (para 398).[51]In this respect, the defendant’s view is that, even if the risk of harm and risk of re-offending had been reduced since the claimant’s appeal, this was not a factor that attracted much weight under the Immigration Rules. In essence, the defendant’s position is that consideration of the risk of harm and the risk of re-offending was subsumed within para 398(a), (b) and (c), that is to say, if a case fell within para 398(a), (b) or (c), the deportation of the individual was conducive to the public good, irrespective of the future risk of re-offending or the future risk of harm.[52]I have some difficulty with this interpretation. I would agree that consideration of the weight to be attached to the state’s interests in relation to the seriousness of the offence(s) that precipitate deportation action is subsumed within para 398(a), (b) and (c). However, that is a different issue from the risk of re-offending and the risk of harm. Two individuals who receive the same sentence for the same offence may present entirely different risks of re-offending and risk of harm. Common sense and a sense of fairness dictates that the different risks that each present should be taken into account in deciding whether each should be deported. More importantly, the future risk of re-offending and the risk of harm were relevant considerations in the traditional (i.e. pre-9 July 2012) approach to assessing the proportionality of a decision to deport.[53]Given that there is no express provision in the new Immigration Rules for the risk of re-offending and the risk of harm to be considered and that the Court of Appeal stated in MF (Nigeria) that the exceptional circumstances to be considered in the balancing exercise involve the application of a proportionality test as required by the Strasbourg jurisprudence, it must follow that these factors are to be considered in relation to whether there are exceptional circumstances.[54]However, that is not to say that a given case will yield the same answer pre-9 July 2012 and post-9 July 2012. It is clear from the authorities that the state's interests attract greater weight under the new Rules. Precisely how low the risk of re-offending and/or the risk of future harm that an individual must present in order for these factors, taken with his other circumstances, to amount to compelling circumstances so as to outweigh the state's interests will always be a question of fact. However, it is not something I need to decide in the instant case.[55]This is because Dr Dow's report was the only new evidence about the claimant’s future risk since the determination of the panel. However, her report can make no difference to his case, as she was ambivalent as to whether he did in fact suffer from a Dissocial Personality Disorder, saying that he had traits that were consistent with the disorder but he also had other features that would be against such a diagnosis. In addition, she acknowledged that she had no means of verifying the claimant’s expressed determination to abstain from drug abuse. Importantly, her opinion that the claimant had a 1:3 statistical risk of conviction for general re-offending in the following twelve months if returned to the community at the date of her report was qualified, in that the said risk of re-offending only applied if the claimant engaged in education or gainful employment; had recourse to financial support; and gained appropriate accommodation away from his anti-social peer group. There was nothing in the material before the defendant at the date she decided to maintain her certification decision that showed that these factors applied.[56]Dr Dow's opinion of the risk of serious harm was that “the risk of serious harm to others would be mainly if he were to return to associating with a pro-criminal peer group”. However, there was nothing before the defendant when she made her decisions to justify departing from the findings of the panel that the claimant would be returning to his sister on release and that she was not a stabilising influence on him as she had been unable to control him from the age of 14 onwards.[57]Thus, Dr Dow's report does not assist the claimant.[58]The claimant’s case as presented by his previous representatives includes the submission that it would not be proportionate to deport him given that untreated mental health concerns and behaviour had influenced his anti-social behaviour and led to his offending behaviour. This submission is untenable, given that the claimant was treated in 2009; there is nothing to show that he subsequently required treatment; and that the offences for which he received sentences of imprisonment post-dated his hospital treatment. There is nothing in Dr Dow’s report which shows that the claimant suffered from untreated mental health concerns at the dates of the offences for which he received sentences of imprisonment or that any such concerns led to his offending behaviour. As stated above, her report did not give a firm diagnosis of Dissocial Personality Disorder even as at the date of her examination of the claimant.[59]The panel had already considered the fact that the claimant had grown up in the United Kingdom, having arrived as a minor, and that very serious reasons were required to deport him. The claimant presented no new evidence to the defendant about his circumstances in the United Kingdom or in the Gambia. He has merely reiterated the case made to the panel which it has already considered.[60]Thus, the FtT would be bound to conclude, as the defendant did, that there were no exceptional circumstances that outweighed the public interest in deportation under para 398.[61]For all of these reasons, the claimant’s article 8 claim is bound to fail in an appeal before the FtT that is based on the material that was before the defendant as at 16 May 2013, the date she decided to maintain the decision of 23 April 2013 to certify his human rights claim as clearly unfounded under section 94(3) of the 2002 Act.[62]Whilst I have reached this conclusion on the basis of the material before the defendant as at the date of the second decision, the claimant has committed two separate offences of theft and one offence of possession of a quantity of cannabis on 2 October 2013, when he was released on licence. This would tend to show that Dr Dow’s assumptions were misplaced. At the hearing before me, he said (as he said in evidence before the panel about his earlier offending), that he committed the offences in October 2013 because he was “young and stupid”.

Conclusion

[63]The defendant’s decision on 23 April 2013 to certify the claimant’s representations in relation to article 8 as clearly unfounded and her decision on 16 May 2013 to maintain that certification decision were lawful. The claim is therefore dismissed. Accordingly, the claimant may only pursue his appeal against the refusal to revoke the deportation order make on 17 February 2012 under section 32(5) of the 2007 Act after he has left the United Kingdom.