Yarbo, R (on the application of) v Secretary of State for the Home Department

A human rights claim may be certified as clearly unfounded only where it is bound to fail. If there is a legitimate view on which the claim may succeed, certification is unlawful. Where the claim concerns deportation under the post-9 July 2012 Immigration Rules, the tribunal must first consider whether paragraphs 399 or 399A apply. If they do not, it must conduct the proportionality exercise required by article 8, asking whether exceptional circumstances provide compelling reasons outweighing the public interest in deportation. The seriousness of the offence is reflected in paragraph 398, but the future risk of reoffending and harm remains separately relevant. The weight of those factors is fact-sensitive.

The claimant, a Gambian national who arrived in the United Kingdom aged 11, challenged decisions certifying his article 8 human rights claim as clearly unfounded under section 94(3) of the Nationality, Immigration and Asylum Act 2002. He had received a two-year sentence for robbery and was subject to a deportation order. His earlier appeal against deportation had been dismissed by the First-tier Tribunal on 14 May 2012.

The defendant maintained the certification after considering further representations and a psychiatric report addressing personality traits, cannabis-related psychosis, rehabilitation and risks of reoffending and harm. The central issue was whether, on the material before the defendant by 16 May 2013, the claim was bound to fail before the First-tier Tribunal applying the amended Immigration Rules.

1. Certification test. The court applied the approach in ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6. The court had to form its own view whether the claim had a realistic prospect of success. If any legitimate view of the facts or law could support success, the claim was not clearly unfounded.
2. Application of the Immigration Rules. Paragraph 398(b) applied because the claimant had received a sentence of at least 12 months but less than four years. Paragraphs 399(a) and 399(b) did not apply because there was no evidence before the defendant of a child or a qualifying partner. Paragraph 399A(b) did not apply because, after deducting periods of imprisonment, the claimant had not spent at least half his life continuously in the United Kingdom and had ties with the Gambia through family and language.
3. Following MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192, the amended Rules formed a complete code. Where paragraphs 399 and 399A did not apply, the court had to consider whether exceptional circumstances, assessed through article 8 proportionality, provided compelling reasons outweighing the public interest in deportation.
4. The seriousness of the offending was addressed by paragraph 398, but the future risk of reoffending and harm remained relevant to the proportionality assessment. Dr Dow’s report did not materially assist the claimant: the diagnosis was uncertain, the risk assessment was qualified by conditions not shown to exist, and there was no evidential basis for departing from the earlier findings about his proposed accommodation and associates. The report also did not establish untreated mental health problems causing the relevant offending.
5. The claimant had provided no material undermining the First-tier Tribunal’s earlier findings about his United Kingdom circumstances, family ties and risk. His claim was therefore bound to fail. The decisions of 23 April and 16 May 2013 were lawful. The claim was dismissed. The claimant could appeal against refusal to revoke the deportation order only after leaving the United Kingdom.

The judgment records that the First-tier Tribunal (Immigration and Asylum Chamber) dismissed the claimant’s appeal against the deportation order on 14 May 2012. The claimant became appeal-rights exhausted on 24 May 2012. The present judicial review claim was dismissed by the High Court.