Kabia (MF: para 398 - "exceptional circumstances")

JurisdictionUK Non-devolved
Judgment Date15 October 2013
Neutral Citation[2013] UKUT 569 (IAC)
CourtUpper Tribunal (Immigration and Asylum Chamber)
Date15 October 2013

[2013] UKUT 569 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)



Upper Tribunal Judge Southern

Upper Tribunal Judge Coker

Yaya Kabia
Secretary of state for the Home Department

For the Appellant: Mr J. Nicholson instructed by Greater Manchester Immigration Aid Unit

For the Respondent: Mrs M. Morgan, Senior Home Office Presenting Officer

Kabia (MF: para 398 — “exceptional circumstances”)

(1) 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 Strasbourg jurisprudence: MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192 at para 43.

(2) 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.

(3) 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 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:

“The grounds…. contend that the appellant has a diagnosis of paranoid schizophrenia and needs support of medication and medical professionals, and of his family, and there is a lack of adequate treatment and support in Gambia. The panel found the treatment would not be adequate in Gambia and saw this to be significantly in favour of the appellant. However, the panel then failed to make conclusive findings because of errors applying the wrong threshold of “exceptionality”, not adequately addressing case law and failing to deal properly with evidence. In so doing the panel erred in coming to wrong conclusions on the appellant's criminality and misdirected itself on submissions based on MM (Zimbabwe) [2012] EWCA Civ 279. It is further contended that the Tribunal erred in distinguishing the appellant's case too harshly from MM. Beyond that, for various reasons, the panel erred in its treatment of the evidence.”


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 Appellant himself described feelings of intense hopelessness during this period – he was not able to access further education because of his immigration status – his family had broken up in circumstances which he could not control or influence and it had culminated in him being detained under the Mental Health Act.

The Appellant accepted that he had begun smoking cannabis at a relatively early age and the medical opinion of all of those involved in the Appellant's care was that this could have exacerbated his mental health problems. Within his sentencing remarks His Honour Judge Everett took a more robust approach stating:-

“I can only have some limited sympathy for him in the medical condition that he has because it was in fact a drug related psychosis, using cannabis, which has caused him mental health problems.””


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...

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