In A v Secretary of State for the Home Department  EWCA Civ 858, in a rare feat, the Court of Appeal has allowed an appellant’s appeal against deportation but doesn’t tell us why.
The background of the case is that in 2015, the Home Office decided to deport Mr A, the spouse of an EEA citizen living in the UK. It needed to show that the decision to deport was on the basis of “serious grounds of public policy or public security”. Officials argued that A was the head of an organised crime group, a conclusion with which the Upper Tribunal agreed.
At the end of the hearing, the tribunal “had its attention drawn to further, confidential matters” which ended up being addressed in a special closed judgment. The Court of Appeal allowed the appeal based on a challenge to the procedural fairness of the issues in the closed judgment, so in effect we will never know what was said.
One other interesting point arose which was not directly addressed. The Upper Tribunal said it had to decide whether the organised crime group was still in existence and if not, whether A had the “ability” to revive it. This was challenged on the basis that an “ability” was not enough; it needed to be shown that A posed a “present” threat and had a propensity to act in a way that amounted to that. The Court of Appeal side-stepped this issue but it is an important point which is likely to arise again.