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Mistake of Law - Proportionality
Mistake of Law - Proportionality
We are satisfied that both findings made by the DBS, are established on the balance of probabilities, do not contain material mistakes of fact and amount to Relevant Conduct within the broad definition permitted by the Act.
Given the findings of relevant conduct, it was not a “perverse” decision by DBS to have included the Appellant on the CBL and the ABL. There is a high bar for perversity/irrationality challenges to barring decisions and we are satisfied that the decision to bar was neither perverse nor irrational but one the DBS was entitled to reach.
The decision that it was “appropriate” in all the circumstances to bar GR is outside our jurisdiction to examine but we will always need to consider the proportionality of any barring decision.
We next consider if there was any mistake of law in the barring decisions on the grounds or proportionality.
In summary, the proportionality of DBS’s decisions to include individuals on the barred lists should be examined applying the tests laid down by Lord Wilson in R (Aguilar Quila) v Secretary of Stage for the Home Department [2012] 1 AC 621 at para 45:
…But was it “necessary in a democratic society”? It is within this question that an assessment of the amendment's proportionality must be undertaken. In Huang v Secretary of State for the Home Department [2007] 2 AC 167, Lord Bingham suggested, at para 19, that in such a context four questions generally arise, namely:
is the legislative objective sufficiently important to justify limiting a fundamental right?
are the measures which have been designed to meet it rationally connected to it?
- Heading
- The decision of the Upper Tribunal is to dismiss the appeal of the Appellant
- The Background
- Barring Procedure
- The Respondent’s barring decision dated 29 April 2022
- Appellant’s Grounds of Appeal
- The evidence in the appeal
- The Appellant’s oral evidence
- Cross examination
- Law
- it is satisfied that the person has engaged in relevant conduct, and
- it is satisfied that it is appropriate to include the person in the list
- on any point of law
- If the [ Upper] Tribunal remits a matter to [DBS]6 under subsection (6)(b)–
- a. “on any point of law” (section 4(2)(a) of the Act)
- The parties’ submissions on the grounds of appeal
- Discussion: Findings of Fact and Analysis of grounds of appeal
- Ground 1
- Mistake of fact: second finding of relevant conduct – Finding 2
- Mistake of Law - Proportionality
- are they no more than are necessary to accomplish it?
- Conclusions