Case No. UKUT-00294-(IAC)

from what the FtT has written. This exercise places the spotlight firmly on the three paragraphs noted immediately above. In the first of these paragraphs there are eight references to ETA. In the second, there are three. Read as a whole and considered in their full context these passages impel to the inescapable conclusion that the judge’s finding that the Appellant poses a genuine, present and sufficiently serious threat affecting one of the fundamental interests of United Kingdom society was based on two aspects of his personal conduct, namely (a) his continuing association with ETA and (b) his possession of false identity documents when arrested. Significantly, the judge did not make a finding that the Appellant’s past offending posed a sufficiently serious threat to one of the fundamental interests of society; rather, he focussed upon the “potential to further offend” (para 24). That being so it is not necessary for us to consider the competing submissions we heard as to whether the decision in Marchon v Immigration Appeal Tribunal [1993] IMAR 384 remains good law. 34. The factual dimension of (a) cannot be criticised, given the evidence of the Appellant’s conduct since his release from prison. There was undoubtedly sufficient evidence to underpin it. However, the overall assessment is unsustainable as it is confounded by expert evidence which the judge clearly accepted: see [23] (e) and [27] above. It follows that this discrete conclusion was irrational. It suffers from the further flaw of being unreasoned. 35. Similarly there is no factual flaw in the second of the judge’s discrete conclusions: leaving aside technical questions relating to the offence of “possession” of something, the evidence that false identity documents were recovered from the property in which the Appellant was residing – or from the Appellant’s person, this detail being unclear - at the time of his arrest was not disputed. However, this represents the beginning and end of the judge’s assessment. There is no examination of any possible risks or consequences associable with this fact, with particular reference to the regulation 21(5) (c) test. Furthermore, the discrete conclusion is entirely unreasoned. It is unsustainable in law in consequence. 36. For the reasons given, the first ground of appeal succeeds.