Case No. UKUT-00294-(IAC)

be defunct in terms of carrying out acts of terrorism, it appears to be functioning at least insofar as it provides logistical support and a welfare role. There was no suggestion that the Appellant was assisted in leaving Spain with multiple false identities and directed to a house in London where an ETA terrorist was residing by any organisation other than ETA, albeit in a welfare role; there was no other credible explanation. In that sense, then, I find the Appellant at least has links to ETA in its non-violent supportive role (albeit still proscribed), even if he cannot be said to be still a member of the organisation, although I make no finding in that regard. Whatever justification the Appellant might have considered entitled him to flee Spain in possession of forged false identities to reside with an ETA terrorist wanted by the Spanish authorities in London, I do not accept that either Article 31 of the Refugee Convention or section 31 of the Immigration and Asylum Act 1999 are authority to legitimise the Appellant’s continued association with ETA and the means by which he facilitated his exit from Spain, entry to the United Kingdom and residence here with an ETA terrorist. ” 30. In the next comparable passage of substance, at [27], the judge, in giving consideration to the argument that the Secretary of State’s decision was flawed as it was based exclusively on the Appellant’s previous convictions, states: “ … but she went on to comment as part of her overall assessment that there was no evidence the Appellant had severed his links to ETA (a proscribed organisation in Spain and in the UK notwithstanding the ceasefire), that the Metropolitan Police had provided copies of the forged identity cards found here in the possession of the Appellant and that he was living in London with an ETA member wanted for terrorist offences in Spain. In such circumstances, I find that leaving aside the Appellant’s claimed motives …. the fact that in all likelihood he left Spain with ETA’s facilitation and supply of numerous false identities and was directed to an address in London where he might live with [LS] is sufficient evidence to satisfy Regulation 21(5)(c). ” The judge then summarises his conclusions on this ground of appeal. These include this omnibus conclusion: “ I find that the Appellant’s personal conduct does represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society in terms of regulation 21(5)(c). ” 31. There are certain objectively demonstrable errors in the two lengthy passages reproduced above. First, the comment that the Appellant did not give oral evidence to acknowledge regret for his terrorist activities is strictly correct. However, there is no recognition of the expressions of regret contained in the Appellant’s witness statements. Second, there was no evidence that the Appellant had departed Spain and entered France “ with multiple false identities ”. This error was repeated. Once again, the judge gave no express consideration to the Appellant’s witness statements. Third, the judge thrice describes LS as an “ ETA terrorist ” and once as a “ ETA member ”. This too is erroneous, as the evidence establishes only that LS is a suspect with alleged ETA links in whom the Spanish authorities are interested. Furthermore, the judge erroneously states that the Appellant’s extradition to Spain relates to the two offences specified in the fourth EAW, overlooking that the Appellant had been judicially discharged in respect of one of these. Finally, no consideration is given to the evidence relating to the Colectivo de Refugiados organisation. 32. Properly analysed and considered in their full context these are not egregious errors. However, they provide some illumination in our task of determining the first ground of appeal. In the course of argument we suggested to counsel that in determining an issue of this kind viz whether the requirements of regulation 21(5)(c) are satisfied it is incumbent on every first instance court or tribunal to discharge the three inter-related duties of engaging with the most important evidence bearing on the issue, making clear findings and expressing sufficient and intelligible reasons for the findings made. As regards both the “ETA issue” and the Appellant’s possession of false identity documents when arrested, we consider that the first of these duties was acquitted. However, for the reasons we shall give, we find ourselves unable to make the same conclusion regarding the second and third, having regard to the key passages in [24], [27] and [28] of the FtT’s decision. 33. The absence of clearly expressed findings coupled with adequate supporting reasons is not fatal per se . That is so because we must nevertheless ask ourselves whether adequate findings and sufficient supporting reasons can be deduced 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. The Burden of Proof Issue 37. Though embedded in Ground 1, this emerged in argument as a discrete ground of appeal. The gist of this ground is that the FtT erred in law by imposing a burden on the Appellant to demonstrate that his personal conduct does not pose a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. While this was formulated as one of the strands, or alternatives, of the main ground of appeal, we consider that it has a free standing status. 38. In the introductory paragraphs of its decision, the FtT, under the rubric “ Burden and Standard of Proof ” states, at [8]: “ The Appellant claims he is at risk of persecution on return to Spain. Alternatively or in addition, that there will be a breach of Articles 5 and 6. The burden is on the Appellant to show as of today’s date that there are substantial grounds for believing that he meets the requirements of the Qualification Regulations. Insofar as the appeal relies upon the 2006 Regulations, the burden is also on the Appellant, the standard being the balance of probabilities .” [Emphasis added.] At the beginning of [24] the judge states: “ I accept that there is no presumption of reoffending. ” This is followed by the passage which we have reproduced in full in [28] above. Next, at [27], the judge makes reference to how the Secretary of State has “ attempted to justify the Appellant’s deportation … ”. This is followed by the passage which we have reproduced at [29] above. 39. The last passage of significance in the context of this ground is at [28] (a): “ Considering the provisions of Regulation 21(5), I find for the reasons I have set out at [21] – [24] above, the Secretary of State has not justified her decision to deport based only upon the Appellant’s previous criminal convictions. ” Followed by [28] (d): “ I find that the Appellant’s personal conduct does represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society in terms of regulation 21(5)(c). ” In a later passage in this paragraph, the FtT adverts to “ … the Appellant’s continued association with ETA and the means by which he facilitated his exit from Spain, entry to the United Kingdom and residence here with an ETA terrorist ”. 40. We link the above passages to [27], where the FtT refers to those parts of the Secretary of State’s decision which highlighted that there was no evidence of severance by the Appellant of his links to ETA, together with the forged identity cards discovered “ in the possession of the Appellant ” and his residing in London “ with an ETA member wanted for terrorist offences in Spain ”. This is followed by the conclusion: “ … the fact that in all likelihood he left Spain with ETA’s facilitation and supply of numerous false identities and was directed to an address in London where he might live with [name] is evidence sufficient to satisfy Regulation 21(5)(c). ” 41. The argument of Ms Dubinsky on behalf of the Appellant invoked the decision of the Court of Appeal in Rosa v Secretary of State for the Home Department [2016] EWCA Civ 14, [2016] 1 WLR 1206 which held, in an EEA Regulations context, that the legal burden of proof rested on the Secretary of State to prove that a marriage was one of convenience, to the standard of the balance of probabilities. Richards LJ, delivering the unanimous judgment of the Court, expressed this conclusion in [24] and elaborated in [25] as follows: “I do not accept Mr Kellar's submission that the burden of proof is a matter for national law alone. The EEA Regulations have to be interpreted and applied in line with the Directive which they implement. Although the Directive is silent as to burden of proof, the Commission's guidance (paragraph 20 above) provides the key to the correct approach under it. Article 35 of the Directive provides that the rights otherwise conferred by the Directive may be refused, terminated or withdrawn in the case of abuse of rights or fraud, such as marriages of convenience. As a matter of general principle, one would expect that the burden of proving that an exception applies should lie on the authorities of the Member State seeking to restrict rights conferred by the Directive – in this case, that it should lie on the Secretary of State when seeking to rely on the existence of a marriage of convenience as a reason for refusing a residence card to which the applicant is otherwise entitled. That is the approach set out clearly in the Commission's guidance, and there is no reason to doubt the correctness of the guidance on the point.” He said further regarding the Commission ’ s guidance, at [26]: “The guidance also shows the subsidiary role that national procedural rules have in this context. As a matter of EU law, the burden of proof lies on the authorities of the Member State seeking to restrict rights under the Directive, but it is for the national court to verify the existence of the abuse relied on, evidence of which must be adduced in accordance with the rules of national law.” The judgment quotes from the Commission’s guidance, at [20] and we were shown a copy of the entire instrument. It is not confined to marriages of convenience. Rather, it extends to several of the discrete subject areas covered by the Citizen’s Directive. 42. Ms Anderson accepted that the legal burden of proof rested on the Secretary of State. She suggested, faintly, that [24] of the FtT’s decision is to be rationalised on the basis that the judge, in effect, was stating that an evidential burden had transferred to the Appellant. She further submitted that in substance and read as a whole, there had been no misdirection by the FtT on this issue. 43. We consider that, logically, the reasoning of the Court of Appeal in Rosa , which was concerned with a decision which would require the removal of the Appellant from the United Kingdom, extends to exclusion and removal decisions made under Regulation 19. We can identify nothing in the Directive, the Regulations or in principle impelling to a different assessment. It follows that the legal burden rested on the Secretary of State of establishing, on the balance of probabilities, that the removal of the Appellant from the United Kingdom was justified on public policy grounds. 44. Two inter-related questions arise. Did the FtT appreciate where the legal burden of proof lay and did it give effect to same in its decision? We have reproduced in [37] – [39] above, the passages in the FtT’s decision bearing most prominently on this issue. The thrust of Ms Dubinsky’s argument is that the error is patent in [8], quoted above, and we should deduce it from the other passages. 45. It is indisputable that the FtT’s first reference to burden of proof – in [8] of its decision - in relation to regulation 21(5) is incorrect. The misstatement here that the Appellant bore the burden of proof, the standard being the balance of probabilities is unambiguous and unqualified. It is not remedied in any other part of the decision. We acknowledge that in [28] (a) the FtT uses language of the Secretary of State not justifying something. The difficulty with this discrete sentence is that, considered in its full context, it is far from clear that this can properly be construed as a recognition of the Secretary of State’s burden of proof sufficient to correct the stark misstatement of the burden of proof in [8] of the decision (see [37] supra). 46. We elaborate thus. The judge had just devoted a lengthy paragraph to considering Ms Dubinsky’s submission that the Secretary of State “ … has attempted to justify the Appellant’s deportation in reliance on ex post facto arguments … ”. We consider that there is some confusion in what follows. It seems to us that this submission was based on arguments advanced by Ms Anderson at the hearing: we refer particularly to [15] – [17] of the FtT’s decision in this context. It might be said that quite substantial swathes of the submissions therein recorded do not readily bear comparison with the text of the Secretary of State’s decision. Be that as it may, the judge, having rehearsed the Appellant’s “ex post facto” argument, turned to the Secretary of State’s decision letter and embarked upon an assessment of this . He rejected the submission that the Secretary of State had, impermissibly, based her decision on the Appellant’s previous convictions. Rather, the judge found, there were clear references to the Appellant’s continuing links with ETA and the recovery of falsified identity documents from his place of residence in London. This was the stimulus for the judge’s conclusion that these two factors were “ sufficient to satisfy regulation 21(5)(c) ”. 47. One of the consequences of this is that the Appellant’s “ ex post facto justification ” challenge was neither considered nor resolved. As we have observed above, the extensive arguments addressed to the FtT by counsel for the Secretary of State, summarised in [15] – [17] of the decision, did indeed purport to add – significantly and substantially so – to the text of the Secretary of State’s decision. It seems to us that the FtT failed to grasp the thrust of the “ ex post facto justification ” argument. In our judgment, it would not have been open to the FtT to allow many of the arguments outlined in [15] – [17] of the decision to influence the conclusion that the regulation 21(5)(c) test was satisfied. However, reading the decision as a whole, it appears to us that this is what occurred. 48. It is also necessary to reflect on the underpinning of the FtT’s conclusion at [28] (a) of its decision. It is underpinned by “ the reasons I have set out at [21] – [24] above ”. This invites the following analysis: (i) Paragraph [21] of the decision is a mixture of a rehearsal of certain submissions advanced in the Secretary of State’s Skeleton Argument, some commentary by the judge on the Secretary of State’s decision letter and, finally, the Appellant’s “ response ” in argument. This paragraph is essentially discursive in nature. It contains no findings or conclusions. (ii) Paragraph [22] consists exclusively of a reference to the decision of the Court of Appeal in R v Benabbas [2005] EWCA Crim 2113 and a lengthy quotation from the report. (iii) Paragraph [23] continues the exercise begun in [22] without making any clear conclusion regarding the governing principle or principles to be applied. (iv) Paragraph [24] has been extensively analysed by us above. 49. We continue our analysis as follows. In the key passages, the FtT began by stating that there was no evidence that the Appellant had addressed the issues which caused him to engage in acts of terrorism. In context and in reality, only the Appellant could have been the source of evidence of this kind. Next, the judge highlighted that the Appellant had not given any oral evidence: in particular, he had not, by oral testimony, acknowledged regret for his crimes. The only evidence suggestive of a lack of potential to reoffend was, the judge said, that of the Appellant’s expert, Mr Woodworth. He highlighted that, furthermore, the Appellant had not testified ETA had not assisted him in leaving Spain and entering the United Kingdom and securing accommodation there. 50. We have acknowledged that it is necessary to consider the decision of the FtT as a whole, rather than in isolated fragments. The key passages in its decision bearing on this ground of appeal are assembled in [24] – [27]. That these passages must be considered in unison is confirmed by the conclusion expressed at the end of [27]. The FtT nowhere refers to the Secretary of State bearing a burden of proof. Reading the decision as a whole, we are satisfied that the essential thrust of the critical passages is that the Appellant had not persuaded the Tribunal that his removal was not satisfied on grounds of public policy. 51. This analysis, in our judgment, follows from the series of failures on the part of the Appellant identified by the FtT: the Appellant failed to formally adopt his witness statements, failed to give oral evidence, failed to testify that he regretted his heinous crimes, failed to testify that he was not assisted by ETA in his flight to the United Kingdom and in securing accommodation there and failed to explain the documents recovered by the police upon his arrest. In our judgment, the FtT applied the wrong legal prism to all of these issues and, ultimately, to the overarching statutory precondition enshrined in regulation 19(3)(b). This constitutes an error of law. The materiality of this error is clear beyond peradventure, as the conclusion expressed at the end of [27] demonstrates. Finally, Ms Anderson’s somewhat tepid submission about a shifting burden of proof was made without reference to supporting authority and we consider that [24] of the FtT’s decision does not bear this analysis in any event. 52. We return to the use of the verb ‘justify ’in two places, in [27] – [28]. This might , in theory, lend some force to the view that the manifest misdirection in [8] was on the road to redemption. However, we decline to adopt this assessment in light of our concerns about [28] (a), elaborated above, which cannot, in our judgment, provide a reliable basis for correcting the clear error of law in [8], coupled with the other aspects of our analysis and construction of the FtT’s decision above.