A v Secretary of State for the Home Department

A tribunal deciding whether a person poses a public-policy or public-security threat may assess circumstantial evidence strand by strand and cumulatively. A possible alternative explanation does not preclude an adverse finding where the balance of probabilities supports it, relevant matters have been addressed, and the conclusion is reasonably open on the evidence. Where an appellant clearly concedes that present risk includes the ability to revive a former organised crime group, the tribunal may decide the present-threat issue on that conceded basis. The judgment does not establish that ability to revive would suffice absent that concession. The appeal nevertheless succeeded on a separate confidential procedural-fairness ground and was remitted.

The Secretary of State decided to deport A, a foreign national spouse of an EEA national who had acquired a permanent right of residence under the Immigration (European Economic Area) Regulations 2006. The First-tier Tribunal allowed A’s appeal. On the Secretary of State’s further appeal, the Upper Tribunal set aside that decision, re-made it, and dismissed A’s appeal.

A appealed to the Court of Appeal against the re-made decision. The appeal included open and confidential material. Ground 1 concerned procedural fairness in relation to confidential matters and was dealt with in a separate closed judgment. The open judgment addressed whether the Upper Tribunal had irrationally assessed circumstantial evidence concerning A’s alleged leadership of an organised crime group, and whether a finding that A could revive the group was sufficient to establish a present threat.

Disposition. For reasons given in the separate closed judgment, the appeal was allowed on ground 1. Grounds 2 and 3 were dismissed in the open judgment. The case was remitted to the Upper Tribunal for rehearing by a differently constituted panel.

1. Ground 2. The Upper Tribunal had conducted a permissible evaluation of circumstantial evidence. It assessed the individual strands of evidence and then considered their combined effect. A possible alternative explanation did not make the reasoning impermissibly speculative. The relevant question was whether, on the balance of probabilities, the conclusion that A was head of the organised crime group was reasonably open on the evidence. The Upper Tribunal had considered the relevant matters and had not erred in law.
2. Ground 3. The statutory framework required a genuine, present and sufficiently serious threat affecting a fundamental interest of society, together with proportionality and reliance exclusively on personal conduct. The judgment referred to [1978] 1 QB 732 and [2015] EWCA Civ 1245, [2016] 1 WLR 1173 in that context.
3. A’s challenge to the revival finding failed because his counsel had clearly conceded before the Upper Tribunal that present risk existed if A could revive the former organised crime group. That concession conditioned the Upper Tribunal’s approach. In its light, findings that the group had existed in the past and that A had the ability to revive it were dispositive of ground 3. The Court did not decide whether ability to revive would independently suffice without the concession.

• Court of Appeal (Civil Division): Allowed the appeal on ground 1 for reasons in a separate closed judgment, dismissed grounds 2 and 3 in the open judgment, and remitted the case to a differently constituted Upper Tribunal panel.
• Upper Tribunal (Immigration and Asylum Chamber): Set aside the First-tier Tribunal’s decision on the Secretary of State’s appeal, re-made the decision in the Secretary of State’s favour, and dismissed A’s appeal against deportation.
• First-tier Tribunal: Allowed A’s appeal against the deportation decision.