Upper Tribunal (Immigration and asylum chamber), 2019-06-20, DA/00253/2015
| Jurisdiction | UK Non-devolved |
| Date | 20 June 2019 |
| Published date | 16 August 2019 |
| Hearing Date | 22 May 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | DA/00253/2015 |
Appeal Number: DA/00253/2015
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00253/2015
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 20 November 2017, 31 January 2018, 22 May 2018 and by way of written submissions up to and including 19 November 2018 |
On 20 June 2019 |
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Before
THE HONOURABLE MR JUSTICE MORRIS
DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN
Between
The secretary of state for the home department
Appellant
and
A
(ANONYMITY DIRECTION MADE)
Respondent
Representation:
For the Appellant: Jonathan Hall QC and David Blundell, instructed by
the Government Legal Department
For the Respondent: Declan O’Callaghan, and, subsequently, David Jones instructed by Irving & Co, Solicitors
DECISION AND REASONS
Introduction
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By decision promulgated on 18 September 2017 (“the UT Decision”) we allowed an appeal by the Secretary of State for the Home Department (“the Secretary of State”) against the decision of the First Tier Tribunal (“the FTT”) promulgated on 7 July 2016 (“the FTT Decision”) and set it aside, pursuant to s.12(2)(a) Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”). We further indicated that we intended, pursuant to our power under s.12(2)(b)(ii) of the 2007 Act, to re-make the decision.
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This is our decision on re-making. Our decision comprises this decision (“the Main Decision”) and a second, confidential, decision (“the Confidential Decision”). The former is to be read in conjunction with the latter.
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For ease of reference, we attach hereto as “Annex A” a copy of the UT Decision and as “Annex B” a copy of the FTT Decision. References to the UT Decision are to “UT §” and to the FTT Decision to “FTT §”. In these Decisions, the terminology and abbreviations in the UT Decision are adopted. The anonymity direction made at UT §1 remains in place. For the purposes of these Decisions, and to reflect the position before the FTT, we refer to A as the Appellant, with the Secretary of State as the Respondent.
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In accordance with UT §106, and following further directions made by order dated 20 October 2017, we received, in the period up to 20 November 2017, further written and oral submissions in relation to the re-making decision.
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For the reasons given in this Main Decision and in the Confidential Decision, the Appellant’s appeal against the Secretary of State’s decision to remove him, dated 16 June 2015, is dismissed.
Summary of the case
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On 16 June 2015 the Secretary of State decided to make a deportation order against the Appellant on the grounds that he was the head of the A Organised Crime Group (“the OCG”). The deportation order and the appeal to the FTT are summarised at UT §§3 to 6. The background facts of the case are at UT §9 to 17. The relevant people involved are identified at UT §9, 10 and 12.
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The FTT Decision itself is summarised at UT §7 and explained in greater detail at UT §§18 to 41. (The conclusions of the FTT themselves are at FTT §§144 to 154.)
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The basis of the appeal to this Tribunal is summarised at UT §8 and the parties’ submissions at the error of law hearing are at UT §§42 to 57. Our conclusions on error of law are at UT §104, referring back to the earlier paragraphs there identified. In summary, we found that the FTT erred:
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in relation to specific issues, requiring proof to a higher standard than that of the balance of probabilities;
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in failing to take account of material evidence and/or findings of fact on material matters;
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in not resolving an issue of fact in relation to a material matter;
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in making inconsistent findings.
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In particular, the FTT erred in its approach to the first two “Abi” conversations in March 2014, the “dream” conversation, the Z Road shooting, the Appellant’s association with B, events relating to D, the evidence of AS and the Appellant’s hidden wealth.
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The issue on the appeal, both before the FTT and now before us, is whether the Appellant is the head of the A OCG or was in the past the head of the A OCG and has the ability to revive the OCG. That involves two questions: (1) whether the OCG continued to exist at the relevant time and (2) the Appellant’s involvement in the OCG.
The approach to re-making
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Section 12(4) of the 2007 Act provides that, in re-making the decision, we may make any decision which the FTT could make if the FTT were re-making the decision and may make such findings of fact that we consider appropriate.
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W e have before us the documentary evidence that was before the FTT. We have not heard further oral evidence. With one exception (to which we refer to in paragraph 16 below), the evidence before us is the same as the evidence that was before the FTT. The record of the oral evidence before the FTT is available to us, although in fact neither party seeks to rely upon it.
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It is common ground that whilst we are not bound by the findings of fact made by the FTT, where, as here, the FTT has heard the oral evidence and reached conclusions, we can and should accept those findings, unless there is good reason not to do so. Nevertheless we are entitled to look at the entirety of the evidence before us, even if not expressly referred to in the FTT Decision. In fact, at various points each party invites us in some instances to adopt the FTT’s findings and in others to disagree with, or to add to, the FTT’s findings.
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In general our approach on this re-making is, in principle and ultimately, to make our own findings. Nevertheless we will adopt the FTT’s findings – particularly findings of primary fact – unless there is good reason not to do so. Of course, since we have already concluded that the FTT erred in law in certain important respects, and in particular in relation to its ultimate findings of fact, we make our own findings, both on those matters, and in relation to matters relevant to those findings.
The course of the re-making
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At an oral hearing on 20 November 2017 the parties put forward their respective cases on the re-making of the FTT Decision.
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Prior to the hearing the Appellant had applied to adduce further evidence. In the result, we admitted into evidence a determination of the First Tier Tribunal (Tax Chamber) concerning tax assessments made against the Appellant’s wife (“The Tax Chamber judgment”). This is addressed in paragraphs 59 to 62 below. As regards a further undated witness statement from the Appellant himself, whilst we did not admit this into evidence, we accept that UT §17 wrongly stated that at the trial in January 2015 the jury did not reach a verdict in respect of the Appellant and that, in fact, the Appellant was acquitted by a majority. Further by order of 20 October 2017, we had refused to admit the Appellant’s further evidence concerning the meeting on 29 January 2014 (to which we refer at paragraph 26 below), pointing out that the question of who had organised that meeting was not relevant and had never been in issue in the proceedings.
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Two days after the conclusion of the oral hearing, a further matter was drawn to our attention. This matter is the subject of the Confidential Decision. This Main Decision addresses the issues considered at the oral hearing on 20 November 2017.
The Parties’ submissions
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In general, the Appellant relies upon his skeleton argument for the hearing, and his closing written submissions, before the FTT dated April and June 2016 respectively. He submits in summary, that we are not bound by the FTT findings of fact; and other passages in the FTT Decision require careful scrutiny. The Secretary of State must establish that the Appellant was the head of the OCG, yet in three years of surveillance material there is no one saying that he was. Cumulatively, the evidence cannot support the conclusion that the Appellant occupied such a high position in the OCG.
The Secretary of State relies upon his outline closing submission from the FTT hearing in June 2016 and a further skeleton for the re-making dated 15 November 2017. He submits that having regard to the FTT’s findings of fact and their true significance, and in the continuing absence of any alternative explanation, the Secretary of State has made out...
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