Case No. UKUT-00294-(IAC)

justifies your deportation. ” 7. The second reason given for the deportation decision is expressed in the following passage: “ Furthermore, there is no evidence that you have severed your links to Basque terrorists …. The Metropolitan Police have provided copies of forged identity cards (which contained your photograph) found at [address] where you were living with a man named …. [who] was wanted in Spain for his involvement in ETA Basque separatist related offences. He was accused of being a member of an armed group and possession of explosives …. [and] on 16 August 2013 [he] was extradited from the United Kingdom to Spain in order to be tried for this matter. ” The decision continues: “ Falsified documents can be used to enable identity, theft, age deception, illegal immigration , terrorism and organised crime . There can be no legitimate reason to hold such documents. Bearing in mind your previous conviction, your possession of these documents and your association with a man implicated in ETA terrorist offences strongly suggests that you present a significant risk of harm to the public. ” Thus the deportation decision was, in substance, based on two grounds. 8. The decision maker then purported to give effect to regulation 21(5)(a) of the EEA Regulations, which stipulates that any deportation decision must comply with the principle of proportionality and details an inexhaustive list of factors to be taken into account: age, state of health, family and economic situation, length of residence in the United Kingdom, social and cultural integration and links with country or origin. This discrete assessment yielded the following conclusion: “ … Given the threat of serious harm you pose to the public, it is considered that your personal circumstances do not preclude your deportation being pursued. It is considered that the decision to deport you is proportionate …. ” It was further noted that there was no evidence that the Appellant was engaged in any form of rehabilitation in the United Kingdom. 9. Next, the Secretary of State’s decision maker considered Article 8 ECHR, in the following terms: “ You have not provided any evidence of Article 8 family life existing in the United Kingdom … It is accepted that you may have developed a degree of private life …. Your deportation is conducive to the public good and in the public interest because you have been convicted of an offence for which you have been sentenced to a period of imprisonment of at least four years. ” The decision maker noted that the deportation provisions of the Immigration Rules – paragraphs A362 and A398 – 399D – and Part 5A of the Nationality, Immigration and Asylum Act 2002 did not apply to the Appellant’s case. However, these had been “ used as a guide for considering your Article 8 claim ”. This exercise entailed posing the question of whether there were very compelling circumstances sufficient to outweigh the public interest underpinning the Appellant’s deportation. The conclusion made was that there were no such circumstances. The European Arrest Warrant 10. By reason of certain aspects of the permitted grounds of appeal, it is necessary to outline some features of the evidential framework. Two of the key components of this framework are the European Arrest Warrant (the “EAW”) and the Appellant’s two witness statements. The background to this evidence is that on 13 April 2011, having served 24 years’ imprisonment with six years’ remission for good behaviour, the Appellant was released from prison. The only evidence of what occurred during the immediately ensuing phase is what is contained in the Appellant’s witness statements. 11. There is no dispute that the Appellant travelled through Spain and entered France. There he remained for an unspecified period. He admits to having procured false identity documents at this stage. Next, equipped with these documents, he travelled to England. Following arrival he resided in London, sharing accommodation with a fellow countryman, whom we shall describe as “LS”, until his arrest on 29 June 2012. 12. The ensuing extradition proceedings in this jurisdiction have become complex and protracted, involving the transmission by the Spanish authorities of a series of EAWs, each replacing its immediate predecessor and three decisions of the Divisional Court: see [2016] EWHC 3029 (Admin) at [3] – [7]. We shall refer only to the current EAW. 13. Sandwiched between the first two Divisional Court decisions was a significant decision of the Grand Chamber of the ECtHR, in Del Rio Prada v Spain [2014] 58 EHRR 37. This was followed by a successful appeal against the second EAW, the issue of a third EAW, an unsuccessful first instance appeal and a successful appeal to the Divisional Court: see Spanish Judicial Authority v Arranz (No 3) [2015] EWHC 2305. This was the impetus for the issue of the fourth – current - EAW by the Spanish Judicial authority 14. The most recent judicial decision is that of the Divisional Court noted in [12] above which upheld the decision of Senior District Judge Riddle, dated 14 June 2016, ordering the Appellant’s extradition to Spain. We were informed that there is at present an undetermined application for permission to appeal to the Supreme Court. 15. The current, operative EAW, is dated 23 October 2015. It contains several references to “ETA”, a proscribed Basque terrorist organisation. It identifies, in section 2, the offences of (a) actively participating in a terrorist organisation or group or being part thereof and (b) falsifying a public, official or commercial document, contrary to specified provisions of the Spanish Codigo Penal. Both offences are punishable by imprisonment. In a later section of the EAW one finds the following detail: “[The Appellant] was set free in accordance with a ruling issued on April 2011 …. Subsequently, the same Division upheld an appeal lodged by the State Prosecutor and ordered the search and arrest of [the Appellant] who went underground and hid, initially, in an unidentified place in Spain. From there, he contacted the terrorist organisation ETA again so they would help him flee from Spain, thus making the search and arrest warrant against him ineffective. By doing so he accepted submission to the terrorist organisation’s instructions regarding what is known as the Group of Refugees [El Colectivo de Refugiados] , a branch that groups ETA militants together in countries other than Spain and France, placing himself at the disposal of ETA … Thus, around 19 April 2011, to evade the search warrant issued against him [the Appellant] sent a photograph of himself to the terrorist organisation ETA’s branch for forging documents [FAL] which belongs to ETA’s logistics department …. [which] forged six Spanish identification documents with his photograph and the following identities …. [names] …. Said documents, analysed by the Forensic Services, were of the same origin as other documents seized from several members of the terrorist organisation … The same documents were found on 29 June 2012 in the possession of [the Appellant] in the house he occupied with another member of the organisation [LS] at [London address] where they were arrested by the British police. ” The text continues: “ In addition, two forged driving permits in the names of [names] both of which had a photograph of [the Appellant] where seized from the latter. Moreover, two European health cards in the name of [names] were also found in his possession. ” Referring to the person with whom the Appellant was living in London, the EAW continues: “ Previously, [LS] had lodged [the Appellant] . Both men followed the guidelines received beforehand from the terrorist organisation ETA, in accordance with the groups internal rules and [its] so-called Protocol for Refugees ”. [“Lodged” in this context denotes providing accommodation.] 16. The EAW then addresses the issue of alleged membership of ETA: “ The presence of [the Appellant] in said place with the aforementioned individual is not a casual circumstance. Rather, it shows that [the Appellant] belongs to the terrorist organisation. The entire process by which an ETA militant goes underground is not due to an independent, individual decision. It obeys the organisation’s internal rules and the so-called Protocol for Refugees …. In the case of [the Appellant] , it meant a reintegration into the terrorist organisation when he was released from prison ”. The EAW then provides an outline of the evidence supporting the allegation that the Appellant is a member of ETA: police reports, the entry and search at the London address, items and documents seized, experts’ reports and police analyses and certain documents recovered from LS when searched in France following his arrest in 2008. 17. The identity of the requesting Spanish judicial authority is of some significance. It is the Juzgado Central de Instruccion (the Central Examining Magistrates’ Court). This indicates that the proceedings in Spain relating to the two offences of which the Appellant is suspected have not proceeded beyond the investigative phase and, in particular, have not reached the stage of indictment or prosecution, for the reason that the Appellant’s presence in the Court is a necessary prerequisite. The Appellant’s Witness Statements 18. In juxtaposing the EAW with the Appellant’s two witness statements, which are dated 01 May 2014 and 12 July 2016 respectively, each of which formed part of the evidence before the FtT, we are conscious that the Appellant did not give evidence at first instance and, hence, neither of these statements has been tested. On the other hand, the FtT stated, in substance, that its determination of the appeal did not turn on these statements: see [5] of its decision. 19. In his first statement the Appellant asserts that upon his release from prison on 13 April 2011 he travelled directly to his daughter’s home in Hendaye, South Western France. He did so in order to avoid the effect of the so-called “Parot” doctrine, which exposed him to the risk of reimprisonment for a considerable period. His flight through Spain to France appears to have been accomplished within a period of some 24 hours. He claims that he entered France without having to display any identification document. His Spanish national identity card, though returned to him by the prison authorities, was out of date. He asserts that he obtained multiple false identity documents from an unidentified person in France at a cost of €600, claiming that he is unaware of any ETA involvement in this exercise. He felt unsafe in France on account of the French/Spanish Governments’ collaboration and, following a clandestine existence there, he entered the United Kingdom on an unspecified date. He was able to make contact with LS in London by virtue of information given to him by a fellow prisoner. He claims that LS was previously unknown to him. 20. In his statements the Appellant asserts that he is no longer a member of ETA. He claims to support the permanent ETA ceasefire and expresses regret for his terrorist activities. The Operative Extradition Decision 21. The second intervention by the Divisional Court noted above was the impetus for the issue of the fourth EAW by the Spanish Judicial Authority, on 23 October 2015. The Appellant appealed. By his decision dated 14 June 2016 the Senior District Judge found that there was no bar to extradition and made the Order culminating in the third of the Divisional Court’s decisions, which is dated 25 November 2016. It is pertinent to note that by this stage the extradition order was confined to the first of the two offences specified in the fourth EAW namely membership of a proscribed terrorist organisation (ETA), the Senior District Judge having discharged the Appellant in respect of the document falsification offence. It is also appropriate to note that in the extradition proceedings, the Appellant’s case relied heavily on the evidence of two experts, Mr Woodworth and Mr Casanova. All of this evidence, with the exception of some modest updating, was laid before the FtT. First Instance Decision 22. The Secretary of State’s decision to deport the Appellant from the United Kingdom was challenged by appeal to the FtT which, in its decision, made three principal conclusions. First, the Appellant will not be “ at risk for a Convention reason ” in the event of his deportation to Spain (the “ Convention ” being the Refugee Convention). Second, the Appellant’s deportation will not involve any breach of Articles 5 or 6 ECHR (contrary to section 6 of the Human Rights Act 1998). Third, the Appellant’s deportation “ … is justified and in accordance with Regulation 19(3)(b) and Regulation 21 of the 2006 Regulations ”. Giving effect to these conclusions, the FtT dismissed the appeal on asylum grounds, under Articles 5 and 6 ECHR and under the EEA Regulations. 23. It is appropriate to highlight certain aspects of the FtT’s decision. This can be conveniently undertaken in list form. The FtT: (a) noted that the Appellant was entitled to the first tier of protection from deportation only, in light of his status under the EEA Regulations; (b) accepted that the Appellant’s witness, Mr Woodworth, is an expert in the realm of Basque and Spanish affairs; (c) stated that the burden of proof rested on the Appellant in certain specified respects and that the standard of proof was the balance of probabilities; (d) acknowledged that the Secretary of State’s decision maker erred in stating that the Appellant’s personal conduct itself warranted his deportation, but considered this immaterial having regard to the decision as a whole; (e) accepted Mr Woodworth’s evidence that ETA is a defunct organisation whose members have engaged in no acts of terrorism since the declaration of its permanent ceasefire in 2011 and that ETA has never posed any threat to the security of the United Kingdom; (f) found that when the Appellant was encountered in London, certain “ false identity documents ” were discovered; that he admitted to using forged documents to evade the UK and Spanish authorities; and that he was living with “ a terrorist who was subsequently convicted of terrorism related offences ”; (g) found that the Appellant had not “ addressed ” or regretted his offending and, linked to this, found that ETA continues to function “ insofar as it provides logistical support and a welfare role ” of which the Appellant had been the beneficiary in his successful transition from Spain to the United Kingdom; (h) further found, on this basis, that the Appellant has continuing links to ETA “ in its non-violent supportive role ”; and (i) made no finding of whether the Appellant is still a member of ETA. 24. The main conclusion of the FtT entailed a finding that the Appellant’s “ personal conduct ” represented a genuine, present and sufficiently serious threat affecting one of the fundamental interests of United Kingdom society under regulation 21(5)(c) of the EEA Regulations. The dismissal of the appeal entailed a rejection of all of the Appellant’s grounds which were, in brief compass, that the Secretary of State’s decision was unlawfully based on the Appellant’s previous convictions alone; amounted to “disguised extradition”; was contrary to the Refugee Convention; infringed the Appellant’s rights under Articles 5 and 6 ECHR; and infringed his rights under Article 47 of the EU Charter. 25. Permission to appeal was sought, and granted, on several grounds (Grounds 1, 2 (in the alternative to 1), and 4-8). These, in essence, resolve to arguable errors of law consisting of a failure to make necessary findings, misdirection in law, failing to apply the correct legal test and inadequate reasoning. We shall concentrate mainly on what we consider to be the two principal grounds of appeal.