Upper Tribunal (Immigration and Asylum Chamber)

 

 

 

Upper Tribunal

(Immigration and Asylum Chamber)

 

Bah (EO (Turkey) – liability to deport) [2012] UKUT 00196(IAC)

 

the immigration Acts

 

 

Heard at Field House	Determination Promulgated
On 20 March 2012
	…………………………………

 

Mr. Justice Blake, President

Upper Tribunal Judge Southern

Upper Tribunal Judge Gill

 

Between

 

Mr. Mohammed Rahim Bah

Appellant

And

The Secretary of State for the Home Department 

Respondent

 

Representation:

 

For the Appellant: Mr. C Jacobs, of Counsel, instructed by Howe & Co. Solicitors

For the Respondent: Mr. S Singh, of Counsel, instructed by the Treasury Solicitor

 

 

In a deportation appeal not falling within section 32 of the UK Borders Act 2007, the sequence of decision making set out in EO (deportation appeals: scope and process) Turkey [2007] UKAIT 62 still applies but the first step is expanded as follows:

 

i)             Consider whether the person is liable to be deported on the grounds set out by the Secretary of State. This will normally involve the judge examining:-

 

a.                Whether the material facts alleged by the Secretary of State are accepted and if not whether they  are made out to the civil standard flexibly applied;

b.                Whether on the facts established viewed as a whole the conduct character or associations reach such a level of seriousness as to justify a decision to deport;

c.                In considering b) the judge will take account of any lawful policy of the Secretary of State relevant to the exercise of the discretion to deport and whether the discretion has been exercised in accordance with that policy;

 

ii)           If the person is liable to deportation, then the next question to consider is whether a human rights or protection claim precludes deportation. In cases of private or family life, this will require an assessment of the proportionality of the measures against the family or private life in question, and a weighing of all relevant factors.

 

iii)         If the two previous steps are decided against the appellant, then the question whether the discretion to deport has been exercised in accordance with the Immigration Rules applicable is the third step in the process. The present wording of the rules assumes that a person who is liable to deportation and whose deportation would not be contrary to the law and in breach of human rights should normally be deported absent exceptional circumstances to be assessed  in the light of all relevant information placed before the Tribunal.

 

 

DETERMINATION AND REASONS

 

Introduction

 

1. This is a determination to which each member of the panel has contributed. The appellant is a 25-year old national of Sierra Leone who has been living lawfully in the United Kingdom since the age of seven. He appeals with permission against the determination promulgated on 15 February 2011 of the First-tier Tribunal (Designated Immigration Judge Appleyard, Immigration Judge C. A. Parker and Mr. M E Olszewski)) (hereafter referred to as the panel) dismissing his appeal against the decision of the Secretary of State of 8 July 2008 to make a deportation order against him by virtue of section 3(5) of the Immigration Act 1971 (“the 1971 Act”). The panel dismissed the appellant's appeal on human rights grounds (Article 8 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”)) and under paragraph 364 of the Statement of Changes in the Immigration Rules HC 395 (as amended) (“the Immigration Rules”).

 

2. The appellant arrived in the United Kingdom on 24 September 1993, aged seven years. He was a dependant on his mother’s application for asylum. On 18 October 1999, he and his family were granted indefinite leave to remain in the United Kingdom. On 9 March 2005, he made an application for naturalisation as a British citizen which the Secretary of State refused. In evidence before the panel, he claimed that he was in a relationship with a Ms. M and that the couple had a son (hereafter referred to as S) who was born in December 2007 and was accordingly seven months old at the time of the Secretary of State’s decision and 4 ½  years  at the time of this decision.

 

The Secretary of State’s decision

 

3. The reasons given by the Secretary of State for her decision are set out in the notice of the decision dated 8 July 2008, served on 10 July 2008, and a letter dated 8 December 2008 addressed to the appellant's former representatives. The reasons given referred to the appellant's criminal convictions, which we set out at Appendix A to this determination. He was convicted on a total of thirteen occasions of eighteen offences, offences which ranged from disorderly behaviour, possession of cannabis, offering to supply cannabis, assault on a constable, using threatening, abusive or insulting words, driving without a licence and driving whilst disqualified. The sentences passed ranged between fines (of £30 and upwards) to a community order for twelve months, a community rehabilitation order for 18 months and one sentence of imprisonment for a period of five weeks which was suspended for two months. It can fairly be said, both from the type of offence and the sentence passed, that each individual offence was relatively minor in nature.

 

4. The Secretary of State took the view that, whilst a single minor offence might not be regarded as giving rise to particular concern, the appellant had established a record of persistent offending and that sanctions imposed by the Courts had had little or no effect upon his conduct. The Secretary of State also relied upon information received from the Metropolitan Police, according to which the appellant had been identified as a member of a South London gang, called the “Anti-Showermen”. This gang was said to have access to firearms and drugs and to be involved in serious disorder. On the totality of the evidence, which was not limited to the appellant’s convictions but also his character, conduct and associations, the Secretary of State concluded that the appellant had posed, and will continue to pose, a serious risk to the community and that his deportation was conducive to the public good.

 

5. In support of the contention that the appellant was associated with a violent criminal gang the Secretary of State relied, inter alia, upon incidents involving the appellant which had not resulted in any charges being brought or criminal convictions; statements of evidence from police officers describing “Operation Swale”, “Operation Alliance” and “Operation Bite;” and the results of checks made with the criminal intelligence system (Crimint) under the appellant’s name and his street name of ‘MO’. Twelve reports were identified and relied on, five of which linked the appellant directly to the Anti-Showermen gang, although the reports themselves were not disclosed in evidence or (we were informed) to the Secretary of State in these proceedings.

 

6. The witnesses who gave evidence before the panel included three police officers who described how intelligence is gathered and assessed and who confirmed that, based on such intelligence, including evidence obtained from police indices (namely, “CRIS” reports, Crimint, and the Police National Computer (PNC)), the appellant was a clear and present danger to the community. They described allegations of crimes said to have been committed by the appellant (para 35 of the determination). On occasions, he was charged and convicted. On other occasions, charges were brought but not pursued. At other times, he was not charged at all. The police witnesses were cross-examined extensively on the appellant's behalf but, when asked to reveal their sources, refused to do so, on the ground that it was necessary to protect those sources.

 

7. The appellant also gave evidence before the panel about the allegations of crime against him, saying that the police had invented allegations against him, that he was a victim of police victimisation, and he had no knowledge of some of the individuals with whom he was seen, that he had only met some other individuals on the isolated occasions recorded by the police and/or that he did not know certain individuals were members of a gang. In submissions before us, Mr. Jacobs argued that, as a person living in New Cross, the fact that the appellant may have been associated with people who were themselves involved with gangs was not relevant unless there was also evidence that he was involved himself with the activities of the gang.

 

The panel’s decision

 

8. The panel found that the PNC record, printed on 1 December 2008, provided an accurate record of the appellant's criminal convictions. It also found that the appellant had involved himself in all the non-convicted criminality detailed in the evidence of the police witnesses. It rejected the explanations given by the appellant or advanced on his behalf, that the police officers had embellished their accounts or fabricated the intelligence. The panel accepted the evidence of the police witnesses that the impact of potential disclosure of sources may result in serious threats to their life.

 

9. The panel found that the appellant was a member of the Anti-Showermen gang, that the gang had access to and had used firearms, committed serious acts of violence including murder, attempted murder and robberies, and was engaged in the sale of crack cocaine, heroin and cannabis. The panel was satisfied that the appellant had been involved in such activities and that his PNC record may not reflect this criminality because the police were unable to secure evidence which proved his guilt beyond reasonable doubt in the criminal jurisdiction. It found that the appellant was well aware of the character of his associates (para 349), rejecting his explanations that he did not know the individuals with whom he had been seen, or that he did not know they were members of a gang, or that he had only met them on those isolated occasions recorded by the police. It said that it had reached these findings on the evidence as a whole, including the CRIS reports, Crimint and other police intelligence, the sources for which were not disclosed. It said it bore in mind that the weight to be given to material from anonymous sources may be necessarily limited but it nevertheless decided to attach weight to the evidence from the sources. It found that the appellant was highly likely to re-offend.

 

10. In relation to the Article 8 claim, the panel found that the appellant's relationship with Ms. M was not as close as had been claimed. It rejected the explanations advanced by the appellant and Ms. M for their non-cohabitation when they had the chance to do so. It found that Ms. M. was the sister of a gang member and that she was fully aware of the appellant's activities. It found that the appellant was not S’s primary carer. It accepted that the appellant had private and family life in the United Kingdom. Whilst it accepted that the appellant had been in the United Kingdom for some eighteen years, it did not find that there were any other positive aspects within his claimed private life. He had failed to contribute to society in terms of any employment whatsoever.  He did not respect the law. His private life centred on criminal conduct and gang membership. His involvement in gun and violent crime was harmful to the community and it had impacted on his family. On at least two occasions, S had been present at times of frightening incidents at the family home. These included shootings at the property and disturbances arising out of difficulties caused by the appellant and his family. This private life mingled with his family life. It found that there was no reason why both Ms. M and S could not go with the appellant to Sierra Leone, as he was a child of an age at which it would be easy, with support from his parents, to adapt to a new situation. The panel said that it could not say that it was necessarily in the best interests and wellbeing of S to remain in the United Kingdom with his parents as they may continue to expose him to criminality. For these and other reasons, the panel found that there were very serious reasons to justify the appellant's expulsion, that his deportation would be conducive to the public good and proportionate and that, in relation to para 364, there were no exceptional circumstances which were sufficient to outweigh the presumption in favour of deportation.

 

The appeal to the UT

 

11. The principal issues which arise in this appeal case are

 

1. whether a decision to make an individual liable to deportation is subject to appellate scrutiny. In particular:-

 

i) whether the Secretary of State has an onus to establish the facts on which the decision was based; and

 

ii) whether the exercise of the discretion that on the true facts the individual is liable to deportation should be exercised differently.

 

2. the approach to be adopted when the Secretary of State wishes to rely upon evidence of an individual's activities (actual or potential) which fall short of criminal conduct or which have not resulted in criminal convictions. We consider this under the following sub-headings:

 

(i) admissibility of hearsay evidence, evidence from undisclosed or anonymous sources; and

 

(ii) the applicable standard of proof.

 

 

The legislative scheme

 

12. In order to answer these questions we must first examine the statutory basis for  decisions of this kind and the appellate power in respect of them. Section 3, sub-sections (5) and (6), of the 1971 Act set out when a person is liable to deportation[1]. A person is liable to deportation in three circumstances:-

 

a. if the Secretary of State deems his deportation to be conducive to the public good, or

b. if another person to whose family he belongs is or has been ordered to be deported, or,

c. in the case of an individual who is over 17 years of age and convicted of an offence punishable with imprisonment, a court has recommended his deportation. Para 363 of the Immigration Rules is to the same effect.

 

13. If a person is liable to deportation, section 5(1) of the 1971 Act states that the Secretary of State may make a deportation order against him; that is, the Secretary of State has a discretion as to whether to make a deportation order[2].

 

14. Section 82(1) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) provides a right of appeal against an immigration decision. By section 82(2) such decisions include (j) a decision to make a deportation order under section 5(1) of the 1971 Act.[3]

 

15. By section 84(1) of the 2002 Act the grounds of appeal include:  “(e) that the decision is not in accordance with the law; and f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules”.

 

16. From 20 July 2006, paragraph 364 as amended by HC 1337, reads as follows (excluding transitional provisions that are inapplicable):

 

“364. Subject to paragraph 380, while each case will be considered on its merits, where a person is liable to deportation the presumption shall be that the public interest requires deportation. The Secretary of State will consider all relevant factors in considering whether the presumption is outweighed in any particular case, although it will only be in exceptional circumstances that the public interest in deportation will be outweighed in a case where it would not be contrary to the Human Rights Convention and the Convention and Protocol relating to the Status of Refugees to deport. The aim is an exercise of the power of deportation which is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects. … .” 

 

17. In the present appeal, the substantive issue raised by the appellant is whether the Secretary of State can indeed demonstrate that he is the member of the dangerous gang that he is alleged to be. If she can there would be a powerful case to justify deportation: both in assessing whether deportation is a justified and proportionate interference with the enjoyment of the family and private life of the appellant and  (once the human rights claim has been considered) whether there is any reason to depart as a matter of general discretion from the presumption under the current version of the Immigration Rules.

 

18. If, on the other hand, this allegation cannot be substantiated, then the case for deportation is significantly weakened and indeed the factual basis for the Secretary of State’s conclusion that the appellant was liable to deportation and therefore should be deported would be substantially undermined.

 

19. The present appeal does not concern automatic deportation cases under section 32 of the UK Borders Act 2007 (“the 2007 Act”). If a person is a “foreign criminal” as defined in section 32(1), the effect of section 32 is that the deportation of the individual is conducive to the public good for the purposes of section 3(5)(a) of the 1971 Act (see MK (deportation – foreign criminal – public interest) Gambia [2010] UKUT 281 (IAC)). Accordingly, in automatic deportation cases, no question can arise as to whether the individual is liable to deportation and/or the lawfulness of the Secretary of State's decision to make a deportation order against him.

 

20. In EO (Deportation appeals: scope and process) Turkey [2007] UKAIT 00062, the AIT said that, where a decision to make a discretionary deportation order was made on or after 20 July 2006, the Tribunal should first confirm that the appellant is liable to deportation (either because the sentencing judge recommended deportation or because the Secretary of State has deemed deportation to be conducive to the public good); if so, it should secondly consider whether deportation would breach the appellant’s rights under the Refugee Convention or the ECHR; if not, thirdly consider para 364. The guidance given by the AIT in EO (Turkey) was not commented upon by the Court of Appeal when the case went on appeal to it in EO (Turkey) v SSHD [2008] EWCA Civ 671.

 

21. In relation to the first step (whether an individual is liable to deportation), the AIT in EO (Turkey) said this, at paragraphs 31 to 34:

 

“The process of decision-making and the process on an appeal

 

31. It is clear from both s3(5) and (6) of the 1971 Act, and from paragraphs 363-364 of the Immigration Rules that the first question for a decision-maker is whether an individual is liable to deportation. So far as concerns a person who has been recommended for deportation by a criminal court, his liability for deportation has been effected by the sentencing judge. The liability for deportation as a member of the family of a deportee is parasitic upon a deportation decision made in respect of another person.  But the liability to deportation on “public good” grounds needs a little elaboration.  Contrary to what might be supposed, it is clear throughout that the liability to deportation does not arise from an individual’s misconduct.  It arises from the Secretary of State taking a view: a person is liable to deportation under s3(5)(a) if the Secretary of State deems his deportation to be conducive to the public good.  In cases of this sort, therefore, the first stage is the process by which the Secretary of State decides that a person’s deportation is conducive to the public good.  It is that decision of the Secretary of State which renders the individual liable to deportation. 

 

32. Now both that decision and the decision of a sentencing judge to recommend deportation are decisions importing a discretion.  But they are not appealable.  The decision that a person is liable to deportation (as distinct from the decision that he is to be deported) is not a decision listed in s82(2).  So whatever view is taken of the meaning of s84(1)(f), an appellant has no scope for arguing that the discretion exercised in rendering him liable to deportation should have been exercised differently. 

 

33. If the person is liable to deportation for one of the reasons set out in s3(5) and (6) (and summarised in paragraph 363), the next question is whether he should be deported.  This, as we have said, is again a discretionary decision.  It is to be made under s5(1) but on the basis of paragraph 364.

 

34. On an appeal, the Tribunal ought to consider first, whether the appellant is liable to deportation.  In view of what we have already said about that, this means that the Tribunal will need to check that the Secretary of State has deemed his deportation to be conducive to the public good, or he is the family member of a person who is to be deported, or he has been recommended for deportation by a criminal court.  The Tribunal ought then to go on to consider whether the appellant’s deportation would breach any right of his under the Refugee Convention or the European Convention on Human Rights: if it would, there is no power to deport him, and, on its face, paragraph 364 does not apply to him.  It is only if an appellant is liable to deportation, and not prevented by one of the Conventions from being deported, that the exercise of the discretion under paragraph 364 comes into the matter at all.”

 

22. In EO (Turkey) itself, there was no issue about the factual basis by which the appellant was liable to deportation: he was a failed asylum seeker who had no leave to remain in the United Kingdom; he had committed an offence of sexual assault and had been recommended for deportation by the trial judge. EO (Turkey) accordingly does not address the resolution of the present problem where the appellant seeks to challenge the factual basis on which the Secretary of State reached the conclusion both that he was liable to deportation and should be made the subject of a deportation decision. In any event, in the light of the submissions we have heard and the authorities we have been referred to, we consider that the last sentence in paragraph 32 of EO (Turkey) is too broadly stated and should no longer be followed, for the reasons given below.

 

Issue 1 – i) Appellate scrutiny of the factual foundation of liability to deportation

 

23. There seems little doubt that under the statutory regime in force before the enactment of the 2002 Act, an appellant could challenge the basis on which the Secretary of State concluded that he was liable to deportation and should be made the subject of a deportation decision.  Perhaps the most authoritative exposition of the law is to be found in the decision of the House of Lords in the case of SSHD v Rehman [2001] UKHL 47, [2003] 1 AC 153. This was a national security case which was heard before the Special Immigration Appeals Commission (“SIAC”) under the provisions of the Special Immigration Appeals Commission Act 1997, where the right of appeal reflected those set out in the 1971 Act.

 

24. Lord Slynn of Hadley said (at para 8):

 

“8. The 1971 Act contemplates first a decision by the Secretary of State to make a deportation order under section 3(5) of that Act, in the present case in respect of a person who is not a British citizen “(b) if the Secretary of State deems his deportation to be conducive to the public good”. There is no definition or limitation of what can be “conducive to the public good” and the matter is plainly in the first instance and primarily one for the discretion of the Secretary of State. The decision of the Secretary of State to make a deportation order is subject to appeal by section 15(1)(a) of the 1971 Act……”

 

25. Lord Slynn then went on to describe the exclusion of the right of appeal in cases in national security cases and the subsequent judgment of the European Court of Human Rights in Chahal v United Kingdom (1996) 23 EHRR 413 that the advisory procedure which was set up under the 1971 Act in lieu of a right of appeal did not provide an effective remedy within Article 13 of the ECHR which led to the removal of the exclusion of the right of appeal in national security cases. His Lordship then said (at paras 10 and 11):

 

“10.  Section 4(1) of the [Special Immigration Appeals Commission Act 1997 (the 1997 Act)] provides that the Commission:

 

“(a) shall allow the appeal if it considers— (i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case, or (ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently, and (b) in  any other case, shall dismiss the appeal.”

 

11. It seems to me that on this language and in accordance with the purpose of the legislation to ensure an “effective remedy”, within the meaning of article 13 of the European Convention, that the Commission was empowered to review the Secretary of State's decision on the law and also to review his findings of fact. It was also given the power to review the question whether the discretion should have been exercised differently. Whether or nor the discretion should have been exercised differently will normally depend on whether on the facts found the steps taken by the Secretary of State were disproportionate to the need to protect national security”.

 

26. In our judgment, in these passages, Lord Slynn made it clear that, whilst it is for the Secretary of State in the first instance to decide whether an individual's deportation is conducive to the public good and whether to exercise the discretion to make a deportation order, the appellate body has jurisdiction to consider the exercise of discretion to make a deportation order and in doing so can consider for itself whether an individual’s deportation is conducive to the public good.

 

27. We do not consider that the changes in the statutory language in the rights of appeal since 2001 should lead us to a different conclusion:

 

i) First, under both the 1971 Act and the 2002 Act the decision under appeal is the decision to make a deportation order rather than any prior decision that a person is liable to deportation.

 

ii) Second, the approach in SIAC applying the Rehman case has remained the same despite the amendments to the SIAC Act 1997 so that the right of appeal under section 2 of that Act reflects section 82 of the 2002 Act.

 

iii) Third, section 85(6) gives the Tribunal broad powers to “consider evidence about any matter which it thinks relevant to the substance of the decision” and such a power would be emasculated if the Tribunal was unable to consider for itself the factual basis on which the decision to deport was made (namely what it is that makes the appellant liable to the exercise of the power).

 

iv) Fourth, by section 86(3) the Tribunal:-

 

 “must allow the appeal in so far as it thinks that-

a) a decision against which the appeal is brought is not in accordance with the law (including any immigration rules) or

b) a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently”.

 

Even if both the factual evaluation and the exercise of judgement that leads the Secretary of State to conclude that a person is liable to deportation are conceptually different from the decision to deport a person, they cannot in our judgment be entirely separated from it and an assessment that a person is liable to deportation is part of the decision to deport and certainly “a discretion exercised in making a decision” to deport as indeed the Secretary of State’s reasons for making the present decision demonstrate. 

 

28. Further, we note our view coincides with that of an established textbook in this field.  Para 12.26 of Immigration Law & Practice, Fourth edition (2008), by David Jackson, George Warr, Julia Onslow-Cole and Joseph Middleton, states:

 

“Deportation conducive to the public good

 

12.26 There is no objectively established pre-requisite on which liability on this ground is  based. It is for the Secretary of State to show both the prerequisite for the power exists and, if so, that the power to deport should be exercised. In order to deport, the Secretary of State must establish that the facts are such that the power to deport exists….”

 

29. In his written submissions in response to two questions posed by the Tribunal. In issuing directions for this case  Mr Singh for the Secretary of State had submitted as follows:

 

“Q What if anything does the respondent have to establish to the satisfaction of the appellate body before it can be determined that the appellant’s deportation is conducive to the public good?

 

1. The respondent submits that there is nothing as such that she needs to establish. The correct approach is that set out in EO [Turkey]…

 

Q What is the standard of proof to be applied to anything that the respondent has to establish?”

 

A As there is nothing for the respondent to establish, the question of the relevant standard of proof does not arise.”

 

30. We explored the matter in oral argument and in the light of the observations in the SIAC cases. Mr. Singh agreed that the approach in EO (Turkey) should be amended. We are grateful for his revised submissions to the effect that:

 

i)                the Secretary of State’s decision to deport an individual is taken when the factual foundation for it is such that she considers that the threshold for deportation action on conducive to public good grounds is reached.

 

ii)              On appeal, the Tribunal decides for itself whether on the facts found that deportation is conducive to public good and that, in reaching its decision, the Tribunal is not bound by the Secretary of State’s view of the seriousness of the offences in question.

 

iii) Where  any assertion of fact by the Secretary of State material to the assessment of whether deportation is conducive to the public good  is in dispute, it must be established by her on the civil standard of the balance of probabilities.

 

31. We agree with these three propositions. A decision to deport a person who is not a British citizen is founded on a certain assessment of facts and a view taken that conduct character and associations revealed by that factual assessment reach a standard that makes deportation appropriate subject to a human rights claim or other relevant considerations in opposition to the decision. It is clear that the Secretary of State may be called on to justify her assessment of the factual foundation for the decision, if disputed. It therefore follows that the Tribunal can reach a different decision as to whether a person is liable to deportation.  We will give further consideration to the standard of proof below. We recognise that all this would need to be done if the deportation decision was challenged on human rights grounds but we conclude it can and may also be done irrespective of a response to deportation based on the human rights of an appellant. As a matter of first principles, common law fairness, statutory construction and the application of the SIAC case law, the Secretary of State is not entitled to merely declare that a person is liable to deportation and require that assessment to be accepted by the appellate body without scrutiny. We do not understand that the AIT in EO (Turkey) was considering such matters, but if this was not the case, this part of the decision needs reconsideration and revision as set in paragraph 68 below.

 

Issue 1 – ii) Appellate scrutiny of the exercise of discretion

 

32. So far we have been concerned with the factual foundation of an assessment that deportation is appropriate, but it follows from our conclusion that the decision that someone should be deported involves the exercise of a discretion that he is liable to deportation means it is open to the Tribunal to conclude that the discretion should be exercised differently. If the Secretary of State were to conclude that a long term lawfully resident and settled migrant should be deported because of a sequence of parking fines, the Tribunal would be entitled to conclude that even if the factual predicate was established, the threshold of seriousness was not met to justify the exercise of this power.

 

33. In the present case, one submission that was addressed to us by Mr Jacobs apart from the sufficiency of the evidential basis for the decision was that it was inconsistent with the Secretary of State’s published policy. We accept that one reason why a Tribunal judge may decide that a different view should be taken from the Secretary of State as to whether a person is liable to deportation is where such a decision is contrary to the terms of an applicable policy.

 

34. The Secretary of State has a policy in respect of discretionary deportation which sets out the circumstances in which she will consider it appropriate to treat an individual as liable to deportation and to make a decision to deport. This is set out in Chapters 11 to 15 of the Enforcement Instructions and Guidance, last updated 25 January 2010. The relevant chapters are Chapter 12 and an unnumbered chapter which appears between Chapters 14 and 15, which are both reproduced at Appendices B and C to this determination.

 

35. It is clear from the policy that, in cases which do not fall under the automatic deportation provisions, the Secretary of State may decide that an individual's deportation is conducive to public good if:

 

(a) (para 12.1 of Chapter 12) he has been convicted of one serious offence; or

 

(b) (para 12.1 of Chapter 12) he has several convictions for less serious crimes which, taken together and weighed against any compassionate circumstance, merit deportation; or

 

(c) (first paragraph of the unnumbered chapter) from 1 August 2008, he has been convicted in the United Kingdom and received a custodial sentence of any length for any one of the offences relating to the supply of Class A, B or C drugs that are listed in that chapter.

 

36. It follows therefore that a single criminal conviction for one “serious offence” , the sentence for which does not attract the automatic deportation provisions, may nevertheless justifiably lead to deportation action on “conducive to the public good” grounds. Several convictions for less serious crimes may also justify deportation on “conducive to the public good” grounds.

 

37. Mr. Jacobs submitted that both under the Secretary of State’s policy and under the general principles circumscribing the exercise of the power to deport as conducive to the public good the appellant's criminal convictions were not such as to justify the deportation action. He submitted that deportation action could only be taken on the basis of proven past conduct and could not be taken as a precautionary or preventative measure except in national security cases, where the SIAC procedure applies.

 

38. We accept further that where there is an applicable policy a failure to act in accordance with it or to explain a departure from it, may mean that the decision is not in accordance with law, applying general public law principles. However, we conclude that this decision was neither contrary to policy nor some implicit limitation of when a decision can be made that a person is liable to deportation on conducive grounds.

 

39. First, the terms of the policy itself, make clear that a criminal conviction is not a prerequisite for a decision that deportation is conducive to the public good. This is because the policy specifically states (with our emphasis):

 

“The Secretary of State may decide that a person’s deportation is conducive to the public good if (amongst other things):

 

  ♦ he has been convicted of a serious offence or has a series of comparatively minor convictions and where the court did not recommend deportation;

 

  ♦ he has obtained indefinite leave to remain by deception (but see also: Administrative Removal Procedures chapter 51)”

 

40. Properly construed, the further elaboration of the Secretary of State's policy (Appendices B and C to this determination) merely sets out the approach the Secretary of State will take where an individual has been convicted of criminal offences. It does not say anything about the approach the Secretary of State will take in other cases, nor does it state that deportation action is not considered appropriate unless an individual has been convicted at least once. In any event, in this case, even apart from the allegation of gang membership, this appellant has a sequence of convictions that cumulatively could have brought him within the ambit of the policy even if it were to read as circumscribing the exercise of the power.

 

41. Second, the body of case law on public good deportation has included authoritative statements that conduct such as entering a marriage of convenience or using other forms of deception can constitute conduct that can result in a lawful decision to deport irrespective of whether there has been a criminal conviction (see R v Immigration Appeal Tribunal ex parte Cheema and others [1982] Imm AR 124 at 131; R v Abdul Karim [1986] Imm AR 428 at 430-434; Immigration Appeal Tribunal v Patel [1988] Imm AR 434).

 

42. Third, we conclude that the distinction between national security and other cases where continued presence may be said to endanger the public is not as clear cut as Mr Jacobs submits. Until the passage of the Special Immigration Appeals Commission Act 1997, the power to deport in security cases was the same as in other classes of public good deportation; it was simply the right of appeal that was excluded. The power was exercised without judicial disapproval in cases where a person had been acquitted of serious criminality (see Re Amanullah Khan [1986] Imm AR 485 at 488).  In the case of Chahal that led to the passage of the Special immigration Appeals Commission Act 1997, there had no been criminal charges brought (see [1993] Imm AR 362).  This was also the situation pertaining in the case of Rehman (above), the first decision that went on appeal under the SIAC Act 1997.

 

43. In national security cases, the individual's deportation must be conducive to the public good on national security grounds. In other cases, it is not necessary to show that deportation is conducive to the public good on national security grounds, as long as it is shown that deportation is conducive to the public good.

 

44. In Rehman at 17 Lord Slynn said that:

 

“This is an area where it seems to me particularly that the Secretary of State can claim that a preventative or precautionary action is justified. If an act is capable of creating indirectly a real possibility of harm to national security it is in principle wrong to say that the state must wait until action is taken which has a direct effect against the United Kingdom”.

 

45. In our view, it does not follow, from the mere fact that Rehman was a national security case, that deportation action on a preventative or precautionary basis is precluded in other cases. As we have said, there is nothing in section 3(5) and (6) and 5(1) of the 1971 Act that requires there to have been any convictions at all. It would be absurd to imagine that a person susceptible to the power to deport who announced an intention to cause harm to members of the public could not be made the subject of a decision to deport until he or she had either been prosecuted for the threat or carried out the act threatened. Deportation of aliens is a measure that pursues the legitimate aim of prevention of crime and disorder under Article 8 (2) of the European Convention on Human Right, and that is an aspect of preventative rather than penal justice.

 

Issue 2 - proof of allegations of conduct

 

46. In the instant case, the Secretary of State wishes to rely upon information about the individual's actual or potential activities and connections which fall short of criminal conduct or which have not resulted in any criminal convictions but which the Secretary of State considers makes an individual liable to deportation and justifies the exercise of the discretion to make a deportation order. In other words, the Secretary of State considers that, in the light of the individual's character, conduct and/or associations, his deportation is conducive to the public good. It is possible that this may arise even where the intended deportee does not have any criminal convictions at all.

 

47. The question then arises whether, in an appeal before the Tribunal, the Secretary of State is permitted to rely upon allegations of criminal conduct which have not resulted in criminal proceedings even if this involves the admission of hearsay evidence and evidence from unnamed or undisclosed sources or anonymous sources. Here, the panel permitted the Secretary of State to rely upon the evidence of police officers who, in turn, relied upon the evidence of sources which the officers refused to disclose in evidence, thus diminishing  the appellant’s ability to test the evidence. If such evidence is admissible, what is the approach the Tribunal should adopt in assessing the evidence and the standard of proof to be applied in determining whether any allegations of criminal conduct are proven? We turn to consider these questions in turn.

 

(i) Admissibility of hearsay evidence, evidence from undisclosed or anonymous sources

 

48. The starting point is rule 51 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (the FTT Procedure Rules), which insofar as relevant provides:

 

“51 Evidence

(1) The Tribunal may allow oral, documentary or other evidence to be given of any fact which appears to be relevant to an appeal or an application for bail, even if that evidence would be inadmissible in a court of law.

(7) Subject to section 108 of the 2002 Act, the Tribunal must not take account of any evidence that has not been made available to all the parties.“

 

49. The strict rules of evidence which apply in civil or criminal courts do not apply in proceedings before the First-tier Tribunal. It is evident from rule 51(1) that the only criteria for the admissibility of evidence is whether it is relevant.  It is a further well recognised principle of law that the police and other authorities charged with investigating crime and protecting the public or sections of it, are not required to disclose the identity of an informant.  Lord Diplock in D v NSPCC [1978] AC 171 at 218 put it thus:

 

“By the uniform practice of the judges which by the time of Marks v. Beyfus, (1890) 25 QBD 494, had already hardened into a rule of law, the balance has fallen on the side of non-disclosure except where upon trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence. In that case, and in that case only, the balance falls on the side of disclosure.”

(See also the discussion in Cross and Tapper on Evidence 12th edition (2010) p488 et seq).

 

50. In V v Asylum and Immigration Tribunal [2009] EWHC 1902 (Admin), delivered on 24 July 2009, Hickinbottom J. considered rule 51(7). In that case, the Secretary of State wished to rely upon evidence that the claimant was a member of a criminal gang and, in particular, evidence of his involvement in the murder of a 15-year old person in 2006, the brandishing of a sawn-off shotgun earlier in the evening of that murder, three spent convictions and criminal intelligence which purportedly showed the claimant as being associated with criminal gangs. Hickinbottom J. concluded that it was open to the Secretary of State to rely upon evidence showing that the claimant, even if he did not commit the murder, was associated with those who did and that it was not an abuse for the Secretary of State to rely upon evidence from anonymous witnesses and from official intelligence, saying, at para 46 of the judgment, that evidence from anonymous sources inevitably lost considerable weight by being anonymous and, in part, hearsay, thus preventing any direct challenge to the relevant witnesses. However, his Lordship said that he could not say that the evidence must inevitably be given no weight by the Tribunal or that to admit the evidence at all would inevitably deny the claimant a fair hearing.

 

51. At para 29 of his skeleton argument, Mr. Jacobs contends that V was a permission decision and hence not binding. The argument that V was merely a permission decision is misconceived, as it is clear that the case was a rolled up hearing, at which his Lordship granted permission to judicially review but dismissed the substantive application. Whether a decision of an Administrative Court judge in a rolled up hearing is strictly binding on the Upper Tribunal, is not something we need resolve in this hearing, but at the very least a reasoned decision on the point is highly persuasive and should be followed by this Tribunal unless it can be said to be plainly wrong (R. v Manchester Coroner, ex parte Tal (1985) QB 67). This decision is clearly not plainly wrong and we agree with it and follow it.

 

52. The sub-ordinate argument in the same paragraph of the skeleton argument, that V can be distinguished on the ground that the Secretary of State's case in V was not primarily based upon undisclosed intelligence, is also misconceived, as this goes to the weight to be given to the evidence relied upon by the Secretary of State; it does not justify excluding relevant evidence.

 

53. We are not aware of any authority for the proposition that evidence which is relevant must nevertheless be excluded if it is hearsay evidence or it is based, directly or indirectly, on evidence from unnamed or anonymous sources or if it leads to difficulties for the appellant in dealing with it. Mr. Jacobs cannot rely on jurisprudence relating to the right of fair trial in Article 6 of the ECHR (see Al-Khawaja and Taheery v United Kingdom (Application Nos. 26766/05 and 22228/06) (2012) 54 EHRR 23, [2012] Crim L R 375) because it is well established that deportation proceedings are neither criminal proceedings nor involve the determination of a civil right or obligation (Maaouia v France (Application No. 39652/98) (2001) 33 EHRR 42).

 

54. Clearly, these matters affect the weight to be given to such evidence - the greater the difficulty in assessing its reliability the less the weight that can properly be given to it. Moreover, whether or not the proceedings come within Article 6, in our judgment, they need to meet minimum standards of fairness in order to be in accordance with the law.

 

55. However, both these considerations are separate from the admissibility of the evidence. Indeed, rule 51 suggests that the only criteria for admissibility or otherwise is whether the evidence is relevant and has been made available to both parties. The question is whether an individual's deportation is conducive to the public good. The Tribunal is entitled to have regard to such evidence before it as is relevant to that question, giving such weight as it considers appropriate bearing in mind the quality of the evidence and the difficulty in challenging it when it is hearsay evidence or from anonymous sources. We do not accept that the admission of such evidence would deny an appellant a fair hearing.

 

56. Although rule 51(1) of the FTT Procedures Rules states that the Tribunal “may allow ……. evidence which appears to be relevant….”, this does not  in our judgment confer a power or discretion to exclude relevant evidence that was provided in time on the basis that it presents difficulties for the appellant in challenging it. Indeed in civil proceedings the general rule is that relevant evidence is admissible and there is no power to exclude such evidence (see Cross and Tapper on Evidence 12^th edition (2010) p64 -74).

 

57. Mr. Jacobs sought to draw an analogy between the procedure which is available in the criminal jurisdiction for the Crown to apply for material to be withheld from the defendant in certain cases where the public interest requires it, for example, in order to protect sources of information. There is an established procedure for this process in the criminal jurisdiction, which provides safeguards to avoid the risk of an unfair trial or miscarriage of justice. He also sought to draw an analogy with deportation decisions made on national security grounds, appeals against which are heard before SIAC. SIAC appeals often lead to “open” and “closed judgments”. The “closed” judgments concern evidence which has not been disclosed to the appellant but which he is able to test through his special advocate. These analogies are misconceived. Proceedings before the First-tier Tribunal and the Upper Tribunal are not criminal proceedings or SIAC appeals. Not only is it the case that there is no provision for evidence to be admitted by a judge of the First-tier Tribunal which is not disclosed to all parties (except in relation to section 108 of the 2002 Act which is not relevant for present purposes), rule 51(7) expressly prohibits a judge from taking into account evidence which has not been made available to all parties.

 

58. Our conclusion  in relation to the admissibility of such evidence is in line with the decision of the Upper Tribunal in MB (admissible evidence; interview records) Iran [2012] UKUT 00019 (IAC), heard on 6 February 2012 but reported since the hearing before us. For completeness we note rule 15(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (the Upper Tribunal Procedure Rules) states:

 

“(2) The Upper Tribunal may —

 

(a) admit evidence whether or not —

(i) the evidence would be admissible in a civil trial in the United Kingdom; or

(ii) the evidence was available to a previous decision maker; or

 

(b) exclude evidence that would otherwise be admissible where —

(i) the evidence was not provided within the time allowed by a direction or a practice direction;

(ii) the evidence was otherwise provided in a manner that did not comply with a direction or a practice direction; or

(iii) it would otherwise be unfair to admit the evidence.”

 

59. In our judgment rule 15(2)(b)(iii) does not confer a discretion on the Upper Tribunal to exclude relevant evidence which could not be excluded by the First-tier Tribunal. The sub rule is to be read in context as dealing with the manner in which the new material comes to be relied upon. Overall rule 15(2) is dealing with cases where the material was served too late, in breach of directions or as a result of some other procedural failing that would make its receipt unfair.

 

 

(ii) The standard of proof

 

60. As we have said above, the fact that evidence is hearsay evidence and/or that it emanates from unnamed or anonymous sources so that the extent of the appellant’s ability to challenge allegations made against him is diminished, are all factors which affect the weight to be given to the evidence. The Tribunal, when assessing this evidence, should bear these difficulties in mind.

 

61. Mr Jacobs submitted that a criminal standard or a high civil standard of proof was engaged as the liberty of a lawfully resident alien was imperilled by the decision under challenge. Again we are assisted by the judgment in Rehman in which the following passages are relevant:

 

Lord Slynn:

 

“22. Here the liberty of the person and the practice of his family to remain in this country is at stake and when specific acts which have already occurred are relied on, fairness requires that they should be proved to the civil standard of proof. But that is not the whole exercise. The Secretary of State, in deciding whether it is conducive to the public good that a person should be deported, is entitled to have regard to all the information in his possession about the actual and potential activities and the connections of the person concerned. He is entitled to have regard to the precautionary and preventative principles rather than to wait until directly harmful activities have taken place, the individual in the meantime remaining in this country. In doing so he is not merely finding facts but forming an executive judgement or assessment. There must be material on which proportionately and reasonably he can conclude that there is a real possibility of activities harmful to national security but he does not have to be satisfied, nor on appeal to show, that all the material before him is proved, and his conclusion is justified, to a "high civil degree of probability". Establishing a degree of probability does not seem relevant to the reaching of a conclusion on whether there should be a deportation for the public good.

 

23. Contrary to Mr Kadri's argument this approach is not confusing proof of facts with the exercise of discretion—specific acts must be proved, and an assessment made of the whole picture and then the discretion exercised as to whether there should be a decision to deport and a deportation order made.

 

Lord Steyn:

 

“29. That brings me to the next issue. Counsel for the appellant submitted that the civil standard of proof is applicable to the Secretary of State and to the Commission. This argument necessarily involves the proposition that even if the Secretary of State is fully entitled to be satisfied on the materials before him that the person concerned may be a real threat to national security, the Secretary of State may not deport him. That cannot be right. The task of the Secretary of State is to evaluate risks in respect of the interests of national security. Lord Woolf expressed the point with precision as follows, at p 1254, para 44:

 

"in any national security case the Secretary of State is entitled to make a decision to deport not only on the basis that the individual has in fact endangered national security but that he is a danger to national security. When the case is being put in this way, it is necessary not to look only at the individual allegations and ask whether they have been proved. It is also necessary to examine the case as a whole against an individual and then ask whether on a global approach that individual is a danger to national security, taking into account the executive's policy with regard to national security. When this is done, the cumulative effect may establish that the individual is to be treated as a danger, although it cannot be proved to a high degree of probability that he has performed any individual act which would justify this conclusion. Here it is important to remember that the individual is still subject to immigration control. He is not in the same position as a British citizen. He has not been charged with a specific criminal offence. It is the danger which he constitutes to national security which is to be balanced against his own personal interests."

 

The dynamics of the role of the Secretary of State, charged with the power and duty to consider deportation on grounds of national security, irresistibly supports this analysis. While I came to this conclusion by the end of the hearing of the appeal, the tragic events of 11 September 2001 in New York reinforce compellingly that no other approach is possible.”

 

62. The question of the standard of proof, discussed in Rehman, was recently considered by SIAC (chaired by Mitting J) in Ekaterina Zatuliveter v SSHD [2011] UKSIAC 103/2010, at paras 5 to 8, which read: 

 

“5. Rehman does not provide a definitive answer to the question posed by this case. For present purposes, it definitively established three propositions: it was an error of law to hold that the decision of the Secretary of State had to be justified by individual facts proved to a high degree of probability; in assessing future risk, the Secretary of State was entitled, and the Commission was obliged, to take into account all relevant material, including that not proved to any particular standard; and great weight must always be given to the views of the Secretary of State and her security advisors on matters of national security. (Per Lord Slynn at paragraphs 22 and 26, per Lord Steyn at paragraph 29, per Lord Hoffmann at paragraphs 48, 49 and 57, per Lord Clyde at paragraph 63 and per Lord Hutton at paragraph 65). The House was, however, divided on the question of the standard of proof by reference to which past events should be established. Lords Slynn and Steyn stated that “when specific acts which have already occurred are relied on, fairness requires that they should be proved to the civil standard of proof”: paragraphs 22 and 27. Lords Hoffmann and Clyde considered that the task of the Commission was ordinarily to determine whether or not there was a factual basis for the Secretary of State’s decision and whether her opinion was one which could reasonably be entertained: paragraphs 54, 57 and 63. Lord Hutton can be taken either to have agreed with both propositions or, expressly, with neither. Accordingly, save for the correction of the error of requiring past fact to be determined to a high degree of probability, Rehman does not determine the approach which should be adopted to past facts; nor does it determine the approach of the Commission to the assessment of future risk where that risk is solely dependent upon what has occurred in the past – as in this case.

 

6. We must therefore return to first principles to determine the approach which we should take. We start with two considerations, of which the first derives from the speeches in Rehman and the second is based on the experience of the Commission since Rehman: the ultimate task of the Commission is evaluative; and the circumstances which give rise to a decision to deport or exclude on conducive grounds for reasons of national security are many and varied – as is the evidence, information and intelligence upon which we make our evaluation. This suggests that a degree of flexibility of approach may be required. Experience has shown us that attempting to make findings of past fact on balance of probabilities is invariably a good starting point. In every case since Rehman (apart from certification cases, in which there was a statutory threshold of reasonable suspicion) we have been able to make findings of past fact on balance of probabilities; but it is not impossible to envisage circumstances in which a decision to deport or exclude would be upheld even where no such finding adverse to an appellant could be made. For example, a decision to exclude a possible assassin, based only on information provided in good faith by a friendly state, could be upheld even if the factual basis for the reporting could not be established on the balance of probabilities. In such a case, a decision adverse to an appellant would be more likely to be made if he did not participate constructively in the appeal – as sometimes happens. A significant feature of Rehman’s case was that he does not appear to have done so. In such cases, Mr. Glasson’s suggested tests, which are derived from two sources - the wording of Article 1F of the Refugee Convention and the approach of tribunals to claims of past persecution by those seeking asylum – might be appropriate: they are tests to be applied in circumstances in which the facts cannot always readily be determined. It does not follow that the same tests should apply in a case in which the evidence, information and intelligence deployed by the Security Service is matched by a constructive response, supported by detailed evidence, by an appellant. In such a case, we may well be able to reach secure findings of fact upon which our evaluation can be made. In some cases, the exercise can closely resemble the traditional approach of a court determining a civil case (albeit under unusual procedural rules).

 

7. This case falls into the latter category. We have been able to make findings of fact on the balance of probabilities on critical questions and, having done so, to reach a confident conclusion about the basic question of fact: is the appellant a Russian agent?

 

8. In answering that question and in evaluating the risk, if any, posed by the appellant to national security, we have not adopted the self-denying ordinance proposed by Lord Hoffmann in Rehman in paragraph 57 of his speech. We do not, with respect, accept his founding premise that the Secretary of State “has the advantage of a wide range of advice from people with day to day involvement in security matters which the Commission, despite its specialist membership, cannot match”. For the reasons explained in paragraphs 3 – 11 of Al-Jedda SC/66/2008, 7th April 2009, we believe that we are able to, and do, give more careful and detailed scrutiny to the risk posed by an individual appellant to national security than the Secretary of State can reasonably be expected to do. We have routinely applied the approach favoured by Lord Woolf, at paragraph 44 of his judgment in Rehman and Lords Slynn and Steyn in paragraphs 22 and 23 and 30 of their speeches. We will adopt the same approach in this case.”

 

63. Although Mitting J considered that Rehman does not provide a definitive answer as to the applicable standard of proof in relation to past acts, it is nevertheless clear that it does not provide support for the proposition that a standard of proof higher than the civil standard of the balance of probability applies, even if such past acts are alleged to be of criminal conduct. We reject Mr. Jacobs’ argument to this effect. However, relying upon the judgments of Lords Slynn and Steyn, we consider that any specific acts that have already occurred in the past must be proven by the Secretary of State, and proven to the civil standard of a balance of probability.  The civil standard is flexible according to the nature of the allegations made, see House of Lords in Re B [2008] UKHL 35, and a Tribunal judge should be astute to ensure that proof of a proposition is not degraded into speculation of the possibility of its accuracy.

 

64. As to the assessment of future risk based on past conduct, we conclude the panel was right to apply a standard of reasonable degree of likelihood. The judgment in Rehman suggests that, where an assessment of the future risk is being made, something less than the civil standard of the balance of probability applies (see, in particular, para 22). We say this because it suggests that deportation will be conducive to the public good if the cumulative effect of the material before the Tribunal is such that, after considering the individual's own personal circumstances, the Tribunal proportionately and reasonably concludes, on the whole of the material before it as to the past and the future, that the individual's deportation is conducive to the public good.

 

65. We summarise our conclusions as follows. We are satisfied that where the Secretary of State seeks to exercise the power to make a deportation decision against a person who is not a British citizen or otherwise exempt under the Immigration Acts, she must first identify the factual basis for the exercise of the power in the decision letter or amplified reasons for the decision; second, where the factual basis is contested she must satisfy the Tribunal of the factual basis on the balance of probabilities. Third, any material relevant to meet that standard may be received by the Tribunal whether it is hearsay or a summary of information held by others, if it is supplied in time and in accordance with case management directions but the weight to be attached to such material will depend on its nature, the circumstances in which it was collected or recorded, the susceptibility of the informant or original informant to error, and the extent to which the appellant is able to comment or rebut it.

 

66. At this point there is a significant distinction between proceedings in the Tribunal and before SIAC. The rules make no general provisions for secret hearings in the Upper Tribunal, and any material that the Secretary of State seeks to rely on before the Tribunal in support of the decision to deport ought to be disclosed to the appellant and his representatives. Although we have not heard full argument of the issue we do not consider that rule 14 (2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 applies to this class of case and  enables the Secretary of State to produce to the Tribunal and rely on material that is not to be provided to the appellant or his legal representatives. We recognise that in a variety of Tribunal appeals, the Tribunal may need to direct that information that is confidential or would cause harm if a party knew about it, the Tribunal may direct its non disclosure if “having regards to the interests of justice, that it is proportionate to give such a direction” (see Jacobs ‘Tribunal Practice and Procedure’ 2009 at 493-496).  However, in our judgment it is contrary to the interests of justice for the Secretary of State to discharge the evidential burden to establish the factual basis for the exercise of the power to deport in the public interest, by submitting material to the tribunal that is not disclosed to the appellant or his advocate. There is no such power in the First-tier Tribunal where non-disclosure is restricted by rule 54(2) to the circumstances set out in section 108 of the 2002 Act (methods of detection of forged documents). In other cases the Secretary of State will have to use the SIAC procedure or any other deviation from the basic rules of fairness permitted by primary legislation.

 

67. In any event we clarified in advance of the hearing that neither the First-tier Tribunal nor ourselves have been party to any material that has not been provided to the appellant. The issue in the remaining part of this determination will be whether the material that was before the panel was such that they were entitled to reach the findings they did upon it. Before turning to that analysis, however, we propose to set out the steps to determine a conducive deport appeal and in doing so we broaden the guidance previously given in EO (Turkey).

 

Conclusions on the appellate jurisdiction in conducive appeals

 

68. The sequence of decision making set out in EO (Turkey) still applies but the first step is expanded as follows:

 

i)                Consider whether the person is liable to be deported on the grounds set out by the Secretary of State. This will normally involve the judge examining:-

 

a.     Whether the material facts alleged by the Secretary of State are accepted and if not whether they  are made out to the civil standard flexibly applied;

b.     Whether on the facts established viewed as a whole the conduct character or associations reach such a level of seriousness as to justify a decision to deport;

c.      In considering b) the judge will take account of any lawful policy of the Secretary of State relevant to the exercise of the discretion to deport and whether the discretion has been exercised in accordance with that policy;

 

ii)              If the person is liable to deportation, then the next question to consider is whether a human rights or protection claim precludes deportation. In cases of private or family life, this will require an assessment of the proportionality of the measures against the family or private life in question, and a weighing of all relevant factors.

 

iii)            If the two previous steps are decided against the appellant, then the question whether the discretion to deport has been exercised in accordance with the Immigration Rules applicable is the third step in the process. The present drafting of the rules assumes that a person who is liable to deportation and whose deportation would not be contrary to the law and in breach of human rights should normally be deported absent exceptional circumstances to be assessed by the Tribunal in the light of all relevant information placed before them.

 

Applying this approach to the instant case:

 

69. For the reasons we have given above, we are satisfied that the panel did not err in law in permitting the Secretary of State to rely upon the evidence of the police witnesses and reports, which was based on hearsay evidence, including the evidence of unnamed or anonymous sources. The panel did not err in law in permitting the Secretary of State to rely upon allegations of conduct which either fell short of or had not resulted in criminal convictions. It is plain that, in its assessment of the evidence, the panel acknowledged that the fact that the evidence relied upon was hearsay evidence from anonymous sources reduced the weight that should be given to it. It is plain that, in reaching its findings of fact, it took a global approach to all of the evidence before it, assessing the credibility of the appellant's explanations. It gave very full reasons for not finding him at all credible and rejecting his explanations.

 

70. The panel made its findings as to the appellant's involvement in past acts on a standard of proof higher than the civil standard of the balance of probability. The fact that it applied a higher standard of proof than was necessary does not give rise to any material error of law in its determination of this appeal.

 

71. It is also plain that, in assessing whether the appellant's deportation was conducive to the public good, the panel’s assessment was forward looking. For example, at para 419, the panel said that the appellant's involvement in gun, knife and other violent crime is potentially extremely harmful to the communities the police seek to protect; and, at para 417, it said that the appellant was a significant ongoing risk to the public. The panel considered the case against the appellant as a whole and, taking a global approach, it found that it could proportionately and reasonably conclude that the appellant's deportation was conducive to the public good. The panel was correct to apply the approach commended by the House of Lords in Rehman even though this was not a case where the conduct or associations were said to imperil national security.

 

72. Once the panel accepted the Secretary of State’s case that the appellant was closely associated with a violent gang it was entitled to conclude that his character conduct and associations was sufficiently serious to make him eligible to deportation subject to the assessment of his human rights claim.

 

Subordinate arguments

 

73. In our judgment, many of the remaining arguments advanced on the appellant’s behalf were misconceived. We have already dealt with those of a general nature above (for example, in relation to ground 1 and much of ground 2). We will now deal with the case-specific arguments, to the extent we consider it necessary to do so. We do not intend to deal with the minute detail of each argument or every nuance of each ground.

 

74. A fundamental misconception in much of the skeleton argument is the notion that the panel erred in relying upon evidence that had not been disclosed to the appellant. As we have made clear, the Tribunal received no evidence that had not also been disclosed to the appellant. No attempt was made to deal with the fact that rule 51 of the FTT Procedure Rules specifically provides for evidence to be admitted if relevant and even if it would be inadmissible in a court of law. As we have said above, there is no power to exclude relevant evidence provided the other party has had an adequate opportunity to consider it. As the Tribunal was not party to material the appellant was unaware of, there was no need to consider special procedures to allow his interests to be represented.

 

75. Furthermore, the grounds ignore the fact that the Secretary of State disclosed to the panel and the appellant all of the evidence that was in her possession and upon which she based her decision to deem the appellant's deportation to be conducive to the public good and to exercise her decision to issue a deportation order against him. Clearly, there was undisclosed intelligence because the names of the sources of information and the content of the reports had not been disclosed. However, this was intelligence which the Metropolitan Police had not disclosed to the Secretary of State. There was no question of the Secretary of State relying upon evidence before the panel that had not been fully disclosed to the appellant.

 

76. Para 12 of the skeleton argument refers to the “necessarily limited weight a reasonable Tribunal could give to undisclosed evidence ….. and the appellant's submissions as to the quality of the evidence”. It asserts that it is unclear how the Tribunal could reasonably come to such a conclusion. These assertions simply ignore the fact that the Tribunal specifically acknowledged, at para 372, that the weight to be given to evidence from anonymous witnesses may be necessarily limited. The panel said that it had considered the evidence with anxious scrutiny and it said that it had applied a global approach to the evidence. Contrary to that which is asserted at para 14 of the skeleton argument, the panel did determine the extent of the future risk. At para 371, it found that, on the balance of probabilities, the appellant was likely to re-offend. At para 417, it found that he posed “a significant ongoing risk to the public and indeed to those with whom he is closely associated, having regard to the shooting at his property, the shooting of the cousin [X] and the use of CS gas to subdue the appellant whilst his son was present”. At para 419, it found that he was “involved in criminality which extends beyond his own criminal convictions. His involvement in gun, knife and other violent crime is extremely harmful to the communities the police seek to protect”.

 

77. Para 15 of the skeleton argument asserts that it is unclear what standard of proof the panel applied to the findings at paras 344, 349, 353, 370 and 373. We make two points. In the first place, it is inappropriate to focus on isolated passages. The determination should be read as a whole. When read as a whole, it is evident that the panel found that it was satisfied, even to a “high degree of probability” that the appellant's criminal activities were as had been outlined to it in the Secretary of State's evidence and that he is a gang member whose activities were as had been urged upon the panel by the Secretary of State (see, for example, para 368). It is plain therefore that the panel applied at least the civil standard of the balance of probabilities. At para 358, it said that it found the appellant to be a gang member who had involved himself in all the non-convicted criminality detailed in the evidence of the three police witnesses.

 

78. Contrary to what is asserted in para 25 of the skeleton argument in relation to ground 3, the appellant could and did challenge the evidence relied upon by the Secretary of State. The determination describes the lengthy cross-examination of the police witnesses and the explanations the appellant advanced to rebut the evidence of the Secretary of State. The panel plainly considered all of the evidence in the round and with anxious scrutiny, acknowledging that the weight to be given to the material from anonymous witnesses may necessarily be limited. It noted (para 354) that there were multiple intelligence reports before it which indicated that the appellant was a member of the Anti-Showermen gang with access to firearms and who deals in drugs. It noted that the intelligence reports indicated that the appellant has targeted rival gang members and has been targeted himself. It found that these reports were highly unlikely to all have been made up. That was a finding that was fully open to it on the evidence, for the reasons it gave. The assertion at para 43 of the skeleton argument, that the Secretary of State contended before the panel and the panel accepted that the reports relied upon by the Secretary of State stand unchallenged and unchallengeable, is simply wrong, for the reasons we have already given.

 

79. Reliance upon rule 13(1)(c) of the FTT Procedure Rules (paras 42 and 49 of the skeleton argument) is misconceived. The material that was in the possession of the Secretary of State and relied upon by her was all disclosed. Mr. Singh confirmed this to be the case and Mr. Jacobs accepted he had no reason to believe otherwise.

 

80. There is no substance in ground 4, which asserts, in essence, that the panel materially erred in the weight it attached to the undisclosed intelligence. Questions of weight are for the tribunal of fact to assess. It was for the panel to decide what weight to give to the evidence that was before it.

 

81. There is no substance in ground 6, which asserts that the panel's approach to the evidence was so uniformly dismissive of every aspect of the appellant's case that it called its objectivity into question. This is another way of saying that the panel was biased. However, the specific arguments marshalled in support of this serious allegation of bias amount to little more than expressions of disagreement with the panel's reasoning and an attempt to re-argue the case. The panel drew inferences from the evidence it was entitled to draw; it did not speculate; it did not misapprehend the evidence. When read as a whole, it manifestly gave adequate reasons for its findings; it did not need to identify and comment upon every piece of evidence, giving reasons for accepting or rejecting it.

 

The human rights claim

 

82. We turn to ground 5, which concerns the Article 8 assessment. To the extent that the challenge to the panel's assessment of the Article 8 claim is based on arguments we have dealt with above, we rely upon what we have said above.

 

83. The panel cited a great deal of the jurisprudence on the application of the Article 8 balance in deportation appeals. They heard submissions in January shortly before the decision of the Supreme Court in ZH (Tanzania) [2011] UKSC 4 had been pronounced. By a supplementary note following the hearing the decision was drawn to their attention but they did not receive detailed submissions on how it applied. It did not have the assistance of the decision of Court of Justice of the European Union (CJEU) in Case C-34/09 Ruiz Zambrano [2011] ECR 1-0000 8 March 2011 or the recent decision of the Upper Tribunal in Sanade and others (British children - Zambrano – Dereci) [2012] UKUT 00048 (IAC).

 

84. As for the appellant personally the panel concluded that respect for his private life established over 18 years lawful residence and as a very young person was outweighed by his persistent history of offending that continued  when he became an adult and the serious adverse nature of his character conduct and associations. They concluded (para 414):

 

“there are very serious reasons to justify the Appellant’s expulsion. These range from his educational failure, long term unemployment, association with criminals, criminal convictions, proximity to shootings, the exposure of his family to gang culture and its implications, contempt for United Kingdom criminal and immigration law and a clear statement of refusal to accept any form of assistance that might in any way improve his private and family life”.

 

85. As for his relations with his partner, as has already been noted the panel did not find her credible and rejected the reasons put forward as to why they did not live together when they had the opportunity to do so. They concluded that the couple were not as close as they claimed. In any event the partner was the sister of a gang member. They were satisfied that she was fully aware of the appellant’s activities. In the circumstances the panel was entitled to attach little weight to this relationship.

 

86. Before us it was the impact of the appellant’s removal on S that has been stressed. But again the subsequent case law has not undermined the panel’s conclusions. They noted that the appellant was not the child’s primary carer, the appellant did not live in a family unity with the child, and the appellant’s conduct had exposed the child to danger at times.  The child was very young at the date of the decision to deport and even now. In any event the serious nature of the appellant’s conduct meant that the child’s right to have regular contact with his father in the United Kingdom was outweighed by the strength of the public interest in deporting him.

 

87. Whilst with the benefit of the subsequent jurisprudence it is unlikely that the panel would have concluded as they did that it was reasonable for the mother and child to follow the appellant to Sierra Leone, given their status as British citizens who could not be expected to be required to leave the United Kingdom or European Union, this has no impact on the overall outcome for the reasons given above. If deportation was likely to lead to separation of father and son, that separation was justified and proportionate in the particular circumstances of this case, particularly in the light of the factors discussed by the panel summarised at our para 10 above.

 

88. Reliance in the skeleton argument upon the evidence of Ms. M ignores the fact that the panel did not find Ms M credible (para 408), and said that her evidence was riddled with inconsistencies (para 303). It gave adequate reasons for reaching these findings, when the determination is read as a whole.

 

89. We agree with Mr. Singh that reliance on Gul v Switzerland (1996) 22 EHRR 93 does not help the appellant, given that Gul indicates that there is a presumption of family life between a father and his child and the panel accepted that there was family life between the appellant and S to that extent (para 322).

 

90. In response to para 84 of the skeleton argument, the panel correctly pointed out that it did not need to isolate every piece of evidence and explain what it made of every such piece. When read as a whole, the panel made adequate findings of fact and gave adequate reasons.

 

91. Reliance in the skeleton argument upon Maslov v Austria [2009] INLR 47 ECHR does not assist the appellant, given that it is plain that the panel did consider and apply the guidance in Maslov (see paras 414 to 419).

 

92. The remainder of ground 5 amounts to a disagreement with the panel’s findings, dressing up as assertions of errors of law by the panel arguments which are in reality mere disagreements.

 

93. For all of the above reasons, we have concluded that the panel's decision on the appeal did not involve the making of any material error on a point of law such that it falls to be set aside.

 

94. Mr. Jacobs informed us that the appellant, Ms. M and S are now all living together. This is post-hearing evidence, which we cannot take into account absent any material error of law. In any event, the mere fact that the parties decided to live together after the panel’s determination was promulgated does not, of itself, mean that there is genuine family life between the appellant and Ms. M, given the serious adverse assessment of credibility against both the appellant and Ms. M and the threat of the deportation appeal hanging over the appellant's head.

 

Conclusions:

 

The making of decision of the First-tier Tribunal did not involve the making of an error on a point of law.

 

The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

 

We do not make such an anonymity order.

 

Signed

 

Upper Tribunal Judge Gill Date: 1 June 2012

 

Appendix A

 

The appellant’s criminal convictions

 

 

The appellant's convictions are:

 

10.07.03 Referral order for three months for disorderly behaviour (Juvenile Court)

 

19.04.04 Fined £30 for possession of cannabis (Class C) and failure to surrender to custody (Juvenile Court)

 

19.05.04 Fined £40 for possession of cannabis (Class C) (Juvenile Court)

 

27.04.05 Fined £60 for possession of cannabis (Class C) and fined £40 for failure to surrender to custody at the appointed time (Magistrates’ Court)

 

19.05.05 Conditional discharge for eighteen months for possession of cannabis (Class C) (Magistrates’ Court)

 

06.03.06 Community order twelve months (100 hours’ unpaid work) for possession of cannabis (Class C) and community order (100 hours’ unpaid work) for breach of a conditional discharge (Magistrates' Court).

 

16.03.06 Community rehabilitation order eighteen months for offering to supply Class C drugs (cannabis) (Crown Court). On 12 January 2009 order varied to six months’ conditional discharge.

 

21.04.06                      Fined £100 and one day served for possession of cannabis (Class C).

 

21.04.06 Suspended imprisonment of five weeks, suspended for two months for assault on a constable (Magistrates’ Court).  Twelve months’ supervision requirement.

 

07.07.06 Fined £50 for possession of cannabis (Magistrates’ Court).

 

09.11.06 Fined £100 or one day (served) under the Public Order Act for having used threatening, abusive or insulting words (Magistrates’ Court)

 

16.05.08 Fined £100 or one day served in respect of each possession of Class C drugs (cannabis), driving without a licence and without insurance and disqualified from driving for six months (Magistrates’ Court).

 

21.08.08 Revocation of community order as a result of a breach of a community order.

 

12.01.09 Six months conditional discharge to run concurrently in respect of a breach of a community rehabilitation order and an offence contrary to s4 Public Order Act.

 

 

 

Appendix B

 

Chapter 12 - Enforcement Instructions and Guidance, last updated 25 January 2010. 

 

“12. Section 3(5) (a) - Deportation on conducive grounds

 

The Secretary of State may decide that a person’s deportation is conducive to the public good if (amongst other things):

 

♦ he has been convicted of a serious offence or has a series of comparatively minor convictions and where the court did not recommend deportation;

 

♦ he has obtained indefinite leave to remain by deception (but see also: Administrative Removal Procedures chapter 51)

 

12.1. Deportation following a conviction

There are many reasons why a Court may decide not to recommend deportation under section 3(6), most commonly because its attention was not drawn to its powers in this respect or the judge decided to leave the matter to the Secretary of State. Consideration will be given to deportation on conducive grounds if the person has one conviction for a serious crime or several convictions for less serious crimes which, taken together and weighed against any compassionate circumstances, merit deportation. The fact that a court has decided not to make a recommendation does not debar the Secretary of State from taking such action himself but would be taken into account in consideration of the case.

 

12.2. Obtaining indefinite leave to remain by deception

Where there is clear evidence that a person obtained, prior to 1 October 1996, settlement by deception, refer to the relevant casework section. The standard of proof must demonstrate a high degree of probability. See also: Administrative Removal Procedures for cases where the deception was practised after 1 October 1996.

 

12.3.1 Criminal Casework - Consideration for Non EEA Nationals

Relevant considerations

Where the criminal case deportation criteria is met the presumption is that the person’s continued presence in the UK is not conducive to the public good. However it is still necessary to consider the offences committed (and previous convictions), the circumstances of them, the judge’s sentencing remarks and any other reports, and decide, in the light of these, whether this presumption still stands.

Relevant factors that must be taken into account include:-

♦ Age: Where the person is aged under 18, is unaccompanied (or has family here with indefinite leave), and no adequate reception and accommodation arrangements exist in the country of origin (through the presence of family or otherwise). In such circumstances deportation should normally be deferred until the person turns 18.

 

♦ Length of residence in the UK: Where the person has been resident in the United Kingdom for 25 years or more (not counting periods in custody), unless he has been convicted of a serious offence.

♦ Strength of connections to the UK: Where the person has spent the majority of their formative years (from 0-10 years old) in the UK and has been resident here since.

 

♦ Links with country of origin: Where the person has no family in their country of origin, doesn’t speak the language, and has not lived in that country for a significant period.

 

♦ Domestic circumstances: Where the person is married or in a civil partnership or has children (including children living with or in regular contact with the person) and there are insurmountable obstacles to the family accompanying them. Refer to paragraph 6.2 of the API on Article 8 for information on insurmountable obstacles.

 

The factors that must be considered here are not limited to what would be relevant under the Human Rights Act. However it will only be in exceptional circumstances that the public interest might be outweighed by compassionate circumstances where the deportation would be lawful under the Human Rights Act.”

 

Appendix C

 

Unnumbered chapter between Chapter 14 and Chapter 15 of the Enforcement Instructions and Guidance, last updated 25 January 2010. 

 

“Important changes to our deportation policy

As of 1 August 2008, we will now consider for deportation a new category of foreign national offender. From this date, non-EEA nationals who are convicted in the UK and receive a custodial sentence of any length for an offence relating to the supply of class A, B or C drugs* will be considered for deportation. This is in addition to those already considered for deportation.

Where the sentence imposed is 12 months or more, the duty to deport will remain under the automatic deportation provisions of the UK Borders Act 2007. Where the provisions of the UK Borders Act 2007 do not take effect, cases will be assessed under the provisions of the Immigration Act 1971.

* Misuse of Drugs Act 1971 (c.38)

1.                s. 4(2) or (3) (production and supply, including offer to supply, of controlled drugs);

2.                s. 20 (assisting in or inducing commission outside United Kingdom of an offence punishable under a corresponding law);

3.                s. 5(3) (possession with intent to supply)

 

4. s.19 (incitement)

 

5. s.6 (cultivation of cannabis).

 

6. s.8(a) (occupying or managing premises where the production or attempted production of a controlled drug is knowingly permitted on those premises)

 

7. s. 8(b) (occupying or managing premises where the supply, or attempted supply, of or the offer to supply a controlled drug is knowingly permitted on those premises)

 

Customs and Excise Management Act 1979 (c.2)

8. s. 50(2) or (3) (improper importation)

9. s. 68 (1) and (2) (improper exportation),

10. s.170 (fraudulent evasion)

in connection with a prohibition or restriction on importation or exportation having effect by virtue of section 3 of the Misuse of Drugs Act 1971 (c. 38);

Other Laws

11. s.19 of Criminal Justice (International Co-operation) Act 1990 (using ship for illicit traffic in controlled drugs);

12. s.12 of the Criminal Justice (International Co-operation) Act 1990 (manufacture or supply of substance specified in Schedule 2 to that Act). (Note: this offence relates to drug precursors as opposed to controlled drugs as defined by the Misuse of Drugs Act 1971]

13. s.1 of the Criminal Law Act 1977 (c. 45) or Article 9 of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 (S.I. 1983 1120 (N.I. 13)), or in Scotland at common law, of conspiracy to commit any of the offences listed at para 1-12 above;

14. s.1 of the Criminal Attempts Act 1981 (c. 47) or Article 3 of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983, or in Scotland at common law, of attempting to commit any of the offences listed at para 1-12 above;

15. Part 2 Serious Crime Act 2007 (encouraging and assisting) any of the offences listed at para 1-12 above *;

16. Common law offences (includes aiding, abetting, counselling or procuring the commission of any of the offences listed above at para 1-12 above);

* yet to be commenced by Members of the jury”