Yarbo v Secretary of State for the Home Department  EWHC 2250 (Admin); (2014) PLLR 102
Queen’s Bench Division, Administrative Court, Ms D. Gill 9 July 2014
The claimant failed to establish that his Article 8 claims created exceptional circumstances outweighing the public interest in his deportation, where his only family was an estranged sister and he could not show that he had no ties to his country of nationality.
(1) The claimant, a Gambian national, challenged the defendant’s decision to certify his Article 8 claim appealing his removal directions from the UK as clearly unfounded under section 94(3) of the Nationality, Immigration and Asylum Act 2002. The effect of the certification is that the claimant may only seek to challenge the defendant’s decision after he has left the UK.
(2) The claimant entered the UK with his mother at age 11 on a visitor visa, and he was left to be raised by his sister, who was already present in the UK.
(3) He was convicted of handling stolen goods in 2008 at the age of 17, and was briefly sectioned under the Mental Health Act in 2009. His claim for asylum was refused shortly thereafter, followed by a failed application for voluntary return.
(4) The claimant was sentenced to 2 years imprisonment for robbery (amongst other offences) in 2011, which led to the defendant’s making a deportation order against him.
(5) Despite finding that very serious reasons were needed to deport someone in the claimant’s position, the First Tier Tribunal dismissed the claimant’s appeal and found that deportation was proportionate under the circumstances. The FTT did not find that the relationship between the claimant and his sister amounted to family life within the meaning of Article 8(1), as the claimant’s sister had ordered him to leave her house and their relationship had not always been close. The FTT also rejected the contention that the claimant and particularly his sister had no contact with their mother, and did not accept that the claimant would be returning to a country in which he had no family. The FTT had serious concerns about the claimant’s criminal history, and did not accept that his sister was a stabilising influence in his life.
(6) The claimant was detained in immigration custody on 15 March 2013 and directions were set for his removal on 29 March 2013. On 26 March 2013, representations were made to the defendant requesting the deportation order be revoked and removal deferred pending receipt of a report from a forensic psychiatrist. This report found that the claimant had some of the characteristics of dissocial personality disorder, with a medium risk of harm to others. The report found that his risk of re-offending would be significantly reduced by structured activity.
(7) The claimant made further submissions in March 2013 based on his human rights claims, which were certified on 23 April 2013 as being clearly unfounded. The claimant was convicted of several new criminal charges since the filing of the new case.
(8) HELD: The claim was dismissed. The claimant did not meet the relevant exception to the Immigration Rules para 399A(b), as he could not show that he had no ties to Gambia, and there were no exceptional circumstances outweighing the public interest in his deportation. The defendant's decision to certify the claimant's representations under Article 8 as clearly unfounded and her decision to maintain that certification decision were lawful.
(9) The claimant could not count periods of imprisonment as parts of his periods of residence in the UK. When the relevant periods were subtracted, the claimant had been in the UK for less than half of his life at the time of the relevant decision. Thus, he could not meet the first limb of paragraph 399A(b).
(10) He could not satisfy the second limb of 399A(b) because he had not provided the defendant with any material or evidence to depart from the findings of the FTT on the question of his ties to Gambia.
(11) The court then moved on to the question of whether any exceptional circumstances were present that outweighed the public interest in his deportation. The court found that consideration should be given to the claimant’s risk of re-offending, and the state’s interest in deportation will have greater weight under the post 9 July 2012 rules. The only new evidence on risk was the psychiatrist’s report, which was ambivalent on whether the claimant had a dissocial personality disorder and noted a significant chance of reoffending if the claimant did not enter a structured programme upon his release. The claimant’s article 8 claim would be bound to fail in an appeal, and the certification was proper.
(12) The claimant may only pursue his appeal against the refusal to revoke the deportation order under section 32(5) of the 2007 Act after he has left the United Kingdom. On these facts, the FTT was bound to make the conclusion that it did.
 – Calculation of periods of residence  – Ties to country of nationality  – Risk of re-offending  – State’s interests in balancing test  – Special or exceptional circumstances  – Human rights arguments unfounded  – Conclusion