Factual and Procedural Background
On 16 June 2015, the Secretary of State for the Home Department decided to issue a deportation order against the Appellant. The Appellant successfully appealed this decision to the First-tier Tribunal ("the FTT"). However, on further appeal by the Secretary of State, the Upper Tribunal ("the UT") set aside the FTT's decision and re-made it, deciding in favor of the Secretary of State and dismissing the Appellant's original appeal against deportation. The Appellant now appeals to this court against the UT's decision on the re-making of the FTT decision; the setting aside of the FTT's decision itself is not challenged.
During the re-making procedure, after the main oral hearing, the UT was made aware of further confidential matters. The non-confidential issues were addressed in an open decision ("the Main Decision"), while the confidential matters were the subject of a closed decision ("the Confidential Decision"). Due to the nature of the appeal involving both decisions, the hearing before this court was held in private. This open judgment addresses issues that can be discussed without harming public interest in confidentiality, with remaining matters dealt with in a separate closed judgment. An anonymity order applies to the proceedings.
The Appellant is a foreign national and spouse of an EEA national resident in the United Kingdom, who had acquired permanent residence rights under the Immigration (European Economic Area) Regulations 2006 ("the 2006 Regulations"). Under regulations 19(3) and 21(3) of the 2006 Regulations, removal decisions for such persons can only be made on serious grounds of public policy or public security, and must comply with proportionality, be based exclusively on the individual's personal conduct, and involve a genuine, present, and sufficiently serious threat to fundamental societal interests.
The Secretary of State's deportation decision was based on the finding that the Appellant was the head of an Organised Crime Group ("the OCG"). The UT's appeal issue was whether the Appellant was or had been the head of the OCG and had the ability to revive it, involving questions of the OCG's continued existence and the Appellant's involvement.
The UT found that the OCG existed at least up to 2014 and that it was sufficient that the Appellant had the ability to revive the OCG, without needing to find whether it still existed at the time of deportation. The UT examined various strands of evidence and concluded cumulatively that the Appellant was the head of the OCG. It further found that this position represented a genuine, present, and sufficiently serious threat to public policy or security under the 2006 Regulations.
The Confidential Decision material did not undermine the Main Decision findings. On all material, the UT concluded that the Appellant's removal was justified and proportionate, dismissing his appeal against deportation.
The court was asked to consider three grounds of appeal: (1) procedural fairness regarding confidential matters (addressed in the closed judgment), (2) alleged irrationality in the UT's conclusion that the Appellant was head of the OCG, and (3) alleged error in concluding a present threat based on the Appellant's ability to revive the OCG without establishing propensity. The appeal succeeded on ground 1, resulting in a remittal to the UT for re-hearing, rendering detailed consideration of grounds 2 and 3 unnecessary but briefly addressed here for background.
Legal Issues Presented
- Whether the UT erred procedurally in handling confidential matters, affecting procedural fairness.
- Whether the UT's conclusion that the Appellant was head of the OCG was irrational or flawed.
- Whether the UT erred in law by concluding that the Appellant posed a present threat based solely on the ability to revive the OCG without establishing a propensity to do so.
Arguments of the Parties
Appellant's Arguments
- Ground 2: The UT failed to apply a sufficiently rigorous approach to the evidence, engaging in impermissible speculation and making adverse findings where alternative reasonable explanations existed. The UT did not properly weigh individual strands of evidence and failed to consider relevant factors, rendering its conclusion irrational.
- Ground 3: The UT erred by relying on the Appellant's ability to revive the OCG as sufficient to establish a present threat. It was necessary to demonstrate a propensity to act in a threatening manner, which was not shown.
Secretary of State's Arguments
- Ground 2: The conclusion that the Appellant was head of the OCG was rationally open to the UT as fact-finder, based on circumstantial evidence that was mutually supportive. The UT properly weighed the evidence and did not speculate impermissibly.
- Ground 3: The UT's approach was justified, especially given the Appellant's concession that the risk to public policy includes the ability to revive the OCG. The findings were consistent with established legal principles and evidence.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Bah v Secretary of State for the Home Department [2012] UKUT 196 (IAC) |
Requirement for a stringent approach to evidence assessment in deportation cases involving public policy/security. |
Referenced to support the need for careful evaluation of circumstantial evidence without speculation. |
| Farquharson v Secretary of State for the Home Department [2013] UKUT 146 (IAC) |
Emphasis on avoiding speculation and only drawing adverse inferences when no reasonable alternative explanation exists. |
Applied to assess whether the UT's findings were rational and supported by the balance of probabilities. |
| R v Exall (1866) 176 ER 850 |
Analogy of circumstantial evidence strands forming a rope to establish a fact. |
Used to illustrate the UT's approach in cumulatively assessing evidence to support its conclusion. |
| R v Bouchereau [1978] 1 QB 732 |
Requirement that present threat to public policy/security generally requires propensity to act threateningly. |
Referenced in discussion of the necessity to establish a genuine, present threat beyond past conduct. |
| Straszewski v Secretary of State for the Home Department [2015] EWCA Civ 1245, [2016] 1 WLR 1173 |
Clarification of the standards for assessing present threat and proportionality in deportation decisions under EEA Regulations. |
Supported the legal framework applied by the UT in assessing the deportation decision. |
Court's Reasoning and Analysis
The court recognized that the UT was not bound by the FTT's findings but would generally adopt them unless there was good reason not to. The UT conducted its own fact-finding, particularly addressing errors of law in the FTT's ultimate findings. The UT found that the OCG existed at least until 2014 and that the Appellant was the head of the OCG based on multiple strands of circumstantial evidence, including recorded conversations, interactions with associates, and evidence of influence and control over subordinates.
The UT also found that even if the OCG was no longer operative, the Appellant had the capacity to revive it, which the court accepted as sufficient to establish a present threat under the relevant regulations. The court noted that this approach was influenced by a concession made on the Appellant's behalf before the UT.
Regarding ground 2, the court rejected the Appellant's submissions that the UT's conclusion was irrational or speculative, finding that the UT properly weighed the evidence and reached a conclusion reasonably open to it. For ground 3, the court held that the UT did not err in law by relying on the Appellant's ability to revive the OCG as constituting a present threat, given the concession and legal principles.
However, the court allowed the appeal on ground 1, relating to procedural fairness on confidential matters, which necessitated remittal for re-hearing. The court agreed with the parties that this outcome rendered detailed consideration of grounds 2 and 3 unnecessary, though it addressed them briefly for completeness.
Holding and Implications
The court ALLOWED the appeal on ground 1 concerning procedural fairness in confidential matters and DISMISSED grounds 2 and 3 challenging the UT's factual and legal conclusions.
As a consequence, the case is remitted to the Upper Tribunal for re-hearing by a differently constituted panel. The decision directly affects the parties by requiring reconsideration of the appeal with proper procedural safeguards regarding confidential information. No new legal precedent was established by this decision.