Yaya Kabia v The Secretary of State for the Home Department

The appellant, who is a citizen of Gambia born on 7 September 1990, appeals against a decision of a panel of the First-tier Tribunal (Judge Osborne sitting with Mr Getlevog, a non-legal member of the Tribunal) who, by a determination promulgated on 19 July 2013, dismissed his appeal against a decision of the respondent that he should be deported. That decision was made by the respondent pursuant to the “automatic deportation” provisions of section 32 of the UK Borders Act 2007. That was because, as the appellant had been convicted of 2 offences of conspiracy to supply Class A drugs and sentenced to 40 months detention in a Young Offenders Institution (he being under 21 years of age at the date of conviction) he was a foreign criminal in respect of whom the respondent was required to make deportation order, such deportation being deemed to be conducive to the public good because of the provision of section 32(4) of the 2007 Act.

The grounds for seeking permission to appeal, drafted by Mr Nicholson with commendable clarity and economy, identify everything that could possible be advanced in challenge to the determination. Those grounds are neatly summarised by First-tier Tribunal Judge Appleyard who said this in granting permission to appeal:

At the beginning of the hearing before us, Mr Nicholson, who has appeared as counsel for the appellant throughout these proceedings, helpfully narrowed the issued to be addressed. First, he acknowledged that although there is ample evidence of the appellant’s mental health difficulties and his continuing receipt of treatment from mental health professionals, there has in fact been no diagnosis of paranoid schizophrenia. At least, it is not possible to find evidence of any such diagnosis in the extensive documentary evidence before us and so he conceded, quite properly, that it was not appropriate for us to proceed on the basis that such a diagnosis had in fact been made.

Secondly, although it was the appellant’s case before the First-tier Tribunal that he did have family life with his mother and sister in the United Kingdom such as to engage the protection of article 8 of the ECHR, and that remains his contention, Mr Nicholson, again quite properly and realistically, accepted that it had been open to the First-tier Tribunal to find that no such family life existed so that any relationship with those adult relatives would fall to be considered as part of the appellant’s private life. Thus, he accepted that finding is unassailable in an appeal to the Upper Tribunal.

Third, it is important to recognise that, although the appellant has been receiving medical treatment for mental health difficulties, he does not fall within any of the exceptions set out in section 33(6) of the 2007 Act. That subsection sets out a range of orders relating to those requiring treatment for mental health issues but the appellant falls within none of those categories. In any event, as is made clear by section 33(7), even if one of these exceptions does apply to a foreign criminal, the consequence of that is not to prevent his deportation. It means only that the “automatic” deportation provision does not apply and there is no presumption applied, one way or the other, as to whether deportation is conducive to the public good. Put another way, in such a case a decision as to deportation will be made in the light of the circumstances of that particular case.

The relevance of this so far as this appellant is concerned is that primary legislation has identified a range of circumstances in which those with mental health difficulties should be considered on a different basis but this appellant does not fall within any of them. That does not mean, of course, that his medical condition is to be disregarded. As was recognised by the First-tier Tribunal, it remains at the very core of his challenge to the deportation decision.

The appellant’s personal and immigration history is well known to the parties and so we do not need to set it out in complete detail. For present purposes the following summary will suffice.

In December 2003 the appellant’s mother was granted leave to enter as the spouse of a person present and settled in the United Kingdom and the appellant and his sister accompanied his mother as dependants, her new husband accepting them even though their biological father remained in Gambia. Thus, on arrival the appellant was just 13 years old. In June 2004 the appellant returned to Gambia with his mother because his own father was seriously ill. His mother returned to the United Kingdom the following month but the appellant stayed in Gambia for about 6 months. Following his father’s death, the appellant’s mother travelled back to Gambia to bring the appellant back to the United Kingdom. This was in December 2004.

However, by this time the appellant’s mother’s marriage had broken down and she and the appellant were refused leave to enter when they arrived back in the United Kingdom. They were granted Temporary Admission and the appellant’s mother submitted an application for leave to remain for compassionate reasons outside the immigration rules. In due course the appellant’s mother and sister were granted leave to remain, until February 2014, but the appellant was refused leave because of his criminal offending.

The First-tier Tribunal, having heard oral evidence from the appellant’s mother and sister, as well as from the appellant himself, set out a detailed account of this history at paragraphs 8 and 9 of the determination and then went on to examine the evidence of the appellant’s mental health difficulties. The judge noted that the appellant received treatment while “sectioned” under the Mental Health Act 1983 on two occasions in 2010. She said:

The First-tier Tribunal Judge noted also that immediately before appearing for sentence for the offences of conspiracy to supply class A drugs the appellant said he had “gone on a bender” the consequence of which he was held in a segregation unit initially following the imposition of a custodial sentence.

The judge then reviewed the circumstances of the appellant’s relatives at the date of the hearing. His mother and sister were now reunited after a period of disruption and, in particular, his sister was “flourishing”. Both indicated a willingness to provide continuing support for the appellant, following his release from detention. The judge reviewed the evidence relating to the support being provided to the appellant by medical professionals and the medication being provided to him. He was being prescribed a now reduced dose of Olanzapine, an anti-psychotic drug. This was not available in Gambia but the evidence indicated that an alternative, Haloperidol, would be available at the Royal Victoria Hospital in Banjul, which was the hospital best placed to provide for the appellant in Gambia. Having said that, the judge accepted that the treatment available to the appellant in Gambia was not comparable to that which would be available to him in this country.

Having directed herself in terms of the guidance to be drawn from GS and EO (Article 3 – health cases) India [2012] UKUT 00397 (IAC) the judge set out these clear findings of fact:

With all this in mind the judge considered the appellant’s claim under article 8 of the ECHR, considered first under the immigration rules applicable, as set out at paragraphs 398 and 399 of HC 395. The judge recognised that in view of her findings in relation to family life the appellant could not succeed on the basis that paragraph 399 applied and so considered paragraph 399A in respect of his private life. The judge concluded, correctly, that the appellant could not succeed under that provision because, despite the young age at which he had arrived he had not, by the relevant date spent at least half his life here. Indeed, he had spent the first 13 years of his life in Gambia, returning there for a further six months or so when his father had become ill.

Having arrived at that position the judge went on to carry out an assessment of the article 8 claim, not within the scope of the immigration rules, but by applying an assessment guided by the five step approach provided by Razgar, R (on the application of) v Sectretary of State for the Home Department [2004] UKHL 27. The judge cannot be criticised for that because in doing so she was following the approach indicated as the correct one by the reported case of MF (Article 8 - new rules) Nigeria [2012] UKUT 393 (IAC) (31 October 2012). As has now been made clear by the Court of Appeal in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192 in fact the rules do provide a complete code and so it is not necessary to look outside them. That is because paragraph 398 provides that:

Put another way, the question being addressed by a decision maker applying the new rules set out at paragraph 398 of HC 395 in considering a claim founded upon article 8 of the ECHR and that being addressed by the judge who carries out what was referred to in MF (Article 8 - New Rules) Nigeria [2012] UKUT 393 (IAC) as the second step in a two-stage process is the same one that, properly executed, will return the same answer.

The new rules speak of “exceptional circumstances” but, as has been made clear by the Court of Appeal in MF (Nigeria), exceptionality is a likely characteristic of a claim that properly succeeds rather than a legal test to be met. In this context, “”exceptional” means circumstances in which deportation would result in unjustifiably harsh consequences for the individual or their family such that a deportation would not be proportionate”.

The new rules relating to article 8 claims advanced by foreign criminals seeking to resist deportation are a complete code and the exceptional circumstances to be considered in the balancing exercise involve the application of a proportionality test as required by the Strasberg jurisprudence: MF (Nigeria) at para 43.

Thus, nothing turns in this case upon the route taken by the judge to her conclusion upon the article 8 claim. This brings us to what we understand to be the main challenge now pursued by Mr Nicholson which is that, in applying her own assessment, the judge erred in applying too high a threshold as she considered there was in fact a requirement of exceptionality. This is because, at paragraph 48 of the determination, the judge said:

The key to a correct understanding of the reasoning of the judge is found, unsurprisingly, in the words used and the way in which she expressed herself in this regard. It is plain, unambiguously, that here she was concerned with the guidance to be drawn from MM (Zimbabwe). That is the unavoidable conclusion from the phrase “with regard to his mental health issues” and the reference in the sentence that follows to MM (Zimbabwe). This was a separate exercise from that which followed in paragraph 49 of the determination, which we set out in full below as here is found a summary of the reasoning that led to the article 8 claim in its entirety, rather than that part of it being considered earlier, being rejected. This assessment was informed by the summary of the appellant’s case set out at paragraph 38 which brought together everything that could be gleaned from the evidence that spoke in the appellant’s favour:

For these reasons we must reject the first challenge to the determination. The judge did not apply an impermissibly high threshold of exceptionality. She carried out a very careful assessment in which she confronted directly everything advanced on the appellant’s behalf and explained why those factors did not outweigh the public interest in deportation.

Nor do we accept that the judge erred in distinguishing the circumstance of this appellant with those on MM (Zimbabwe). There are a number of reasons for doing so. MM had a clear diagnosis of serious mental illness and had been made subject to a transfer order from prison to a suitable hospital pursuant to sections 47 and 49 of the Mental Health Act 1983, that being sufficient to bring him within one of the exceptions in section 33(5) of the UKBA 2007. There was medical opinion to the effect that the fact he would be living with the same close family members he had before would be “protective” because they would notice early signs of relapse and would refer him for early treatment, as they had before. There was no suitable medication available in Zimbabwe. And, perhaps most significantly, there was a finding of fact that

The next challenge we address is that the judge is said to have gone behind the assessment in the pre-sentence report put before the sentencing judge and as a consequence, wrongly, substituted her own assessment of the risk the appellant posed to the community. This is because the author of the pre-sentence report had said:

In our judgment the judge was plainly entitled to depart from the view expressed in the pre-sentence report. It is clear that this conclusion chimed with the sentencing remarks of the judge who imposed what was a lengthy sentence given the appellant’s youth and his guilty plea. The sentencing judge, expressing his fundamental disagreement with the approach of the Probation Officers who had prepared pre sentence reports for the appellant and his co-defendant by saying (in the appellant’s absence as he had been removed from the court after having become disruptive):

Next, the grounds complain that the judge “speculated for herself on the role of cannabis in the likely recurrence of A’s criminal behaviour and ignoring the re-establishment of his family life with both his mother and sister.” As we have observed above, Mr Nicholson does not pursue the second limb of that challenge. He is plainly right to take that approach because such a challenge is simply unarguable. We are unable to accept that the conclusion reached in respect of cannabis use and its consequences was speculative. There was ample evidence to support what was said by the judge. The appellant’s heavy and consistent use of cannabis was clearly associated with his medical condition. “Cannabis dependant syndrome” has been a consistent aspect of the comment made in medical notes. A report before the judge from Dr Chaturvedi, Associate Specialist of the Prison in-reach Team dated 23 January 2012 noted that the Appellant “admitted using cannabis daily”, that “Once released he would go back to using cannabis as it helps him relax and helps him sleep”. The doctor said:

Given the sentencing remarks, taken together with what was said in the pre-sentence report, it was open to the judge to find an association between the appellant’s drug use and his propensity to reoffend, especially in the light of his lack of insight and asserted intention to consume cannabis on his release.

For these reasons we are satisfied that the determination of the First-tier Tribunal discloses no error of law and so shall stand.

The appeal to the Upper Tribunal is dismissed.