Mohammed Rahim Bah v The Secretary of State for the Home Department

In a discretionary deportation appeal, the Tribunal must scrutinise the factual basis on which the Secretary of State considers deportation conducive to the public good. Contested past acts must be proved by the Secretary of State to the flexibly applied civil standard. The Tribunal must then assess, on the whole material, whether the person’s conduct, character or associations justify deportation.

Relevant hearsay and disclosed anonymous-source evidence is admissible. Its reliability and the appellant’s ability to challenge it affect weight, not admissibility. Future risk is evaluative and may be assessed on a reasonable degree of likelihood. The Tribunal must then consider human rights and, if deportation is not precluded, the applicable Immigration Rules and exceptional circumstances.

The appellant, a Sierra Leone national who had lived lawfully in the United Kingdom from childhood, appealed against the First-tier Tribunal’s dismissal of his challenge to a deportation order made under section 3(5) of the Immigration Act 1971.

The Secretary of State relied on persistent offending, police intelligence and alleged membership of a violent criminal gang. The appellant challenged the factual foundation for deportation, the use of hearsay and anonymous-source material, the standard of proof, and the proportionality of deportation under Article 8.

The central issue was the scope of appellate scrutiny in a discretionary, conducive-to-the-public-good deportation appeal, and the evidential approach required where alleged conduct had not produced convictions.

1. Appeal dismissed. The First-tier Tribunal had made no material error of law. Its findings that the appellant was involved with a violent gang, posed an ongoing public risk, and was liable to deportation were open to it.

2. The sequence in EO (Deportation appeals: scope and process) Turkey [2007] UKAIT 00062 remained applicable, but its first stage required expansion. The Tribunal must determine disputed material facts, decide whether the established conduct, character or associations reach the necessary seriousness, and consider whether the Secretary of State acted consistently with any lawful policy.

3. The Secretary of State cannot merely assert that a person is liable to deportation. Where the factual basis is contested, she must establish past acts on the flexibly applied balance of probabilities. The Tribunal may reach its own conclusion on whether deportation is conducive to the public good and whether discretion should be exercised differently.

4. Relevant evidence, including hearsay and evidence derived from unnamed or anonymous sources, is admissible if disclosed to both parties. Its limitations go to weight. The Tribunal must assess its quality, reliability, origin and the appellant’s ability to answer it. It may not rely on material withheld from the appellant outside a statutory procedure permitting that course.

5. Assessment of future risk is a forward-looking evaluative judgment. It does not require proof to the civil standard of every future possibility. On the evidence as a whole, the First-tier Tribunal was entitled to find a reasonable degree of likelihood of reoffending and to conclude that deportation was conducive to the public good.

6. The Article 8 interference, including separation from the appellant’s child, was proportionate in light of the serious public-interest findings. Any error in suggesting that the child and mother could be expected to accompany the appellant to Sierra Leone did not affect that conclusion.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appellant’s appeal and held that the First-tier Tribunal had made no material error of law.
• First-tier Tribunal: by a determination promulgated on 15 February 2011, dismissed the appeal against the Secretary of State’s decision of 8 July 2008 to make a deportation order under section 3(5) of the Immigration Act 1971.