R Omar Yarbo v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Ms D. Gill |
| Judgment Date | 09 July 2014 |
| Neutral Citation | [2014] EWHC 2250 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3788/2013 |
| Date | 09 July 2014 |
[2014] EWHC 2250 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms D. Gill
(Sitting as a Deputy High Court Judge)
Case No: CO/3788/2013
Mr Omar Yarbo in person
Mr David Mankell (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 11 June 2014
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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:
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.
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.
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.
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.
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."
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".
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...
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