Yaya Kabia v The Secretary of State for the Home Department

The Immigration Rules governing an Article 8 deportation claim by a foreign criminal are a complete code. Where paragraphs 399 and 399A do not apply, paragraph 398 requires a proportionality assessment which weighs all relevant factors against the public interest in deportation.

“Exceptional circumstances” is not an additional legal threshold. It describes the likely character of the rare case in which deportation would produce unjustifiably harsh consequences for the individual or family and would therefore be disproportionate.

A tribunal does not err merely by considering Article 8 through the formerly described second stage outside the Rules if it has in substance undertaken the same proportionality balance. It may also reach its own risk assessment where the evidence, including sentencing remarks, supports departure from a pre-sentence report.

The appellant, a Gambian national, appealed against a First-tier Tribunal decision dismissing his appeal against deportation under the automatic deportation provisions. He had received a 40-month sentence for conspiracy to supply Class A drugs.

His principal case was that his mental-health difficulties, the inferior psychiatric support available in Gambia, and his private and family life in the United Kingdom made deportation disproportionate under Article 8. The First-tier Tribunal found that treatment in Gambia would not be comparable but that the public interest in deportation prevailed.

The appeal raised whether the First-tier Tribunal had applied an impermissible test of exceptionality, wrongly distinguished MM (Zimbabwe) [2012] EWCA Civ 279, and wrongly assessed the risk of reoffending.

1. Appeal dismissed. The First-tier Tribunal made no error of law and its determination stood.

2. Paragraph 398 of HC 395, read with paragraphs 399 and 399A, provides a complete code for Article 8 claims resisting deportation by foreign criminals. Following MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192, the reference to exceptional circumstances requires the ordinary Strasbourg proportionality balance. All factors relevant to proportionality must be weighed against the public interest in deportation.

3. The First-tier Tribunal’s use of the previously described second stage outside the Rules did not affect the result. The question at that stage and the question under paragraph 398 are the same and, if properly performed, produce the same answer.

4. The First-tier Tribunal had not imposed an impermissibly high threshold of exceptionality. Its reference to MM (Zimbabwe) concerned the particular argument based on mental health. Its ultimate reasoning assessed all relevant private-life and medical factors, including the poorer treatment available in Gambia, and rationally concluded that they did not outweigh the public interest in deportation.

5. MM (Zimbabwe) was materially different. That case involved a diagnosed serious mental illness, statutory mental-health arrangements, protective close-family support, unavailable medication, and an established link between mental health and offending. Those features were absent or materially different here.

6. The First-tier Tribunal was entitled to assess the appellant as posing at least a medium risk to others. The conclusion was supported by the sentencing judge’s remarks, the seriousness of the offending, the evidence about cannabis use, and the appellant’s lack of insight.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal and upheld the First-tier Tribunal’s determination.
• First-tier Tribunal: by a determination promulgated on 19 July 2013, dismissed the appellant’s appeal against deportation under UK Borders Act 2007.