Lincoln Farquharson v The Secretary of State for the Home Department

Where removal is resisted under Immigration Rules paragraph 395C and article 8, disputed allegations of past conduct relied on by the Secretary of State must be proved on the civil balance of probabilities. A criminal charge which has not resulted in conviction is not a criminal record, but the underlying conduct may nevertheless be established by admissible evidence.

The assessment of future risk is made on the whole material and requires a reasonable degree of likelihood. Police intelligence or crime reports may be used, but the respondent must disclose sufficiently transparent and timely material. The Tribunal must ensure that the appellant has a fair opportunity to study, challenge and answer it.

The appellant, a Jamaican national, had remained in the United Kingdom without leave after his student leave expired. The Secretary of State refused his application for leave based on private and family life and decided to remove him. She relied substantially on allegations of violence and rape which had led to arrests and charges but no British convictions.

The First-tier Tribunal dismissed the appeal after admitting a police witness statement served on the day of the hearing, without the underlying CRIS material. The Upper Tribunal held that this was procedurally unfair, set aside that decision and remade the appeal after receiving the police reports, oral evidence and further evidence about the appellant's family life.

The central issues were whether the alleged conduct was proved, whether it showed a future risk to vulnerable women, and whether removal was proportionate under article 8.

1. The appeal was dismissed on remaking. The First-tier Tribunal's decision was set aside because its refusal of an adjournment after the late service of material evidence deprived the appellant of a fair opportunity to answer the Secretary of State's case.

2. In a removal appeal, as in a deportation appeal, the Secretary of State must prove disputed past conduct on the balance of probabilities. That requirement applies even where the conduct did not result in a conviction. A criminal charge alone is not a criminal record, but the underlying acts may be proved as relevant conduct.

3. The Tribunal adopted the approach in Bah (liability to deportation) [2012] UKUT 196 (IAC). The assessment of future harm is prospective and is made by evaluating the whole material for a reasonable degree of likelihood. The Tribunal must not reduce proof of past conduct to speculation.

4. CRIS reports were capable of being evidence of the complaints, arrests, responses and police actions recorded in them. They did not, without more, establish the truth of a recorded witness account. On the evidence, the Tribunal found that the appellant had assaulted a former partner and had engaged in non-consensual sexual conduct in incidents 3 and 4. His treatment of women supported a real risk of future harm, particularly to vulnerable women.

5. The respondent should disclose the relevant underlying police documents, rather than rely on a bare witness statement referring to them. The documents must be served in sufficient time for an appellant to prepare a response, and the judge must secure a fair hearing. The Tribunal also observed that a detained person facing serious allegations should readily receive legal aid where justice requires representation.

6. Removal interfered with the appellant's private life with his mother and relatives, but the interference was justified under article 8(2). Effective immigration control and protection of vulnerable women were weighty public interests. The appellant's adult family ties and his mother's future need for assistance did not outweigh those interests.

• Upper Tribunal (Immigration and Asylum Chamber): The Tribunal set aside the First-tier Tribunal's dismissal for material procedural unfairness and remade the appeal, dismissing it.
• First-tier Tribunal: First-tier Tribunal Judge Clayton dismissed the appeal after declining an adjournment and receiving late police evidence. The Upper Tribunal held that the hearing had been unfair.