BAH (EO (Turkey) - Liability to Deport); BAH v Secretary of State for the Home Department

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”).

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 ¹/₂ years at the time of this decision.

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.

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.

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.

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.

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 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.

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...