Case No. UKUT-00294-(IAC)

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. Other Grounds of Appeal 53. We have addressed above what we consider to be the principal grounds of appeal. While remaining grounds appear to us supplementary in nature we shall consider them in the interests of finality and certainty. 54. Grounds 5, 6 and 7 of the grounds of appeal challenge the judge’s findings in relation to the issue of “judicial engineering” and the risk of the Appellant not receiving a fair trial in Spain. We shall consider the points that arise under these grounds under the four sub-headings set out below. (i) Misunderstanding The Evidence 55. This element of the challenge to the decision of the FtT is encapsulated in the grounds of appeal in these terms: “ The Designated Immigration judge materially misdirected himself as to the evidence and facts. He held that the Appellant is currently sought by the Spanish authorities in relation to the forgery of official documents. He clearly considered that it was uncontroversial that the Appellant had obtained false documents in Spain. He also held that there was ‘no suggestion’ that any group other than ETA had furnished the Appellant with the forged identity documents with which the Appellant was arrested in London or directed him to another former ETA militant on the run in London. All this was either incorrect or in dispute. ” In argument emphasis was placed on the evidence relating to the Colectivo de Refugiados organisation, its undisputed peaceful aims and methods, its non-proscribed status in France and what is said about it in the EAW. 56. The riposte of Ms Anderson on behalf of the Secretary of State is, in summary, that the decision in E v Secretary of State for the Home Department; R v Secretary of State for the Home Department [2004] EWCA Civ 49; [2004] QB 1044 is not satisfied; there is a distinction to be made between the evidence of Mr Woodworth recited in [42] of the FtT’s decision and the content of the EAW; the FtT’s findings about the Appellant’s flight from Spain through France to the United Kingdom and his subsequent settlement in this jurisdiction accord with the Appellant’s own statements; and that no material error of fact which could constitute a material error of law is demonstrated. The E & R test is formulated at [63] of the report in these terms: “In our view, the CICB case points the way to a separate ground of review, based on the principle of fairness. It is true that Lord Slynn distinguished between "ignorance of fact" and "unfairness" as grounds of review. However, we doubt if there is a real distinction. The decision turned, not on issues of fault or lack of fault on either side; it was sufficient that "objectively" there was unfairness. On analysis, the "unfairness" arose from the combination of five factors: i) An erroneous impression created by a mistake as to, or ignorance of, a relevant fact (the availability of reliable evidence to support her case); ii) The fact was "established", in the sense that, if attention had been drawn to the point, the correct position could have been shown by objective and uncontentious evidence; iii) The claimant could not fairly be held responsible for the error; iv) Although there was no duty on the Board itself, or the police, to do the claimant's work of proving her case, all the participants had a shared interest in co-operating to achieve the correct result; v) The mistaken impression played a material part in the reasoning.” And at [66]: “Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of CICB. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal's reasoning.” 57. The overlapping nature of this ground of appeal is confirmed by reference to [31] above. This does not, however, deprive this ground of its free standing character. The evidence bearing thereon includes the Appellant’s two statements (outlined in [10] – [15] above). The FtT highlighted, twice, that the Appellant had not given evidence in that forum. First, at [5]: “ The Appellant declined to give oral evidence, nor did he adopt his statements, which inevitably affects the weight I can place upon that evidence, although for reasons I will explain, in my view, nothing material turns upon it. See [24] below. ” Next, at [24]: “ … There was no evidence that the Appellant has addressed the issues which caused him to engage in acts of terrorism. The Appellant did not adopt his statement, nor did he give oral evidence, for example, to acknowledge regret for his terrorist activities. ” The description of the Appellant’s written evidence in the singular (“ statement ”) is, of course, erroneous. 58. We consider that there was a duty on the FtT to engage with the Appellant’s two written statements. In [5] the judge, correctly, recognised the existence of this duty and the related duty to assess the weight to be attributed to this evidence. However, this represents the beginning and end of this discrete exercise. In what follows in the decision, there is no engagement with the statements, no assessment of their weight and no associated findings with supporting reasons. Our assessment is that this failure is to be evaluated in conjunction with the factual errors identified above. Individually, the factual errors are not egregious in nature. However, collectively they assume a more substantial hue. We add to this the further failure on the part of the FtT which we have just identified. This assessment impels to the conclusion that this ground of appeal is also established. (ii) Misunderstanding the Second Divisional Court’s Decision 59. This ground of appeal draws attention to certain passages in the decision of the Divisional Court in Spanish Judicial Authority v Arranz (No 3) [2015] EWHC 2305 (Admin). The context is ascertainable from [20] – [26] of the judgment of the Court, delivered by the Lord Chief Justice. In these passages, consideration is given to the ground of appeal which is termed, in shorthand, “ judicial engineering ”. The substance of this ground, in very brief compass, was that the EAW should be set aside on the ground that it was the product of submission, or surrender, by the Spanish Judicial Authority to pressure from and the expectations of the Spanish public and State. In common law terms, the asserted vitiating factor was improper motive. In human rights terms, the vitiating factor advanced was an apprehended breach of Articles 5 and 6 ECHR, in contravention of section 6 of the Human Rights Act 1998. The Lord Chief Justice outlined the supporting evidence, the sources whereof were Mr Woodworth and the Spanish lawyer, Mr Casanova. 60. Having set the context, we now identify those passages upon which this ground of appeal is promoted: Paragraph 27 “We ourselves have very carefully considered the evidence that was before the Senior District Judge. In addition we have also taken into account the failure of the Spanish Judicial Authority to terminate the underlying Spanish proceedings relating to EAW1, in breach of their express undertaking to this court. However, as we explain at paragraph 39 below, the Spanish Judicial Authority has remedied that matter. As is apparent from the Senior District Judge's careful and considered judgment, he was also very concerned at the evidence put before him and the weight it carried.” Paragraph 28 “ Nonetheless, despite the careful and meticulous argument of Mr Summers QC, we cannot conclude that the Senior District Judge was wrong in the conclusion he reached on the evidence. He had the benefit of hearing the witnesses and of carefully weighing that testimony. We cannot in those circumstances see, on well established principles, that he came to a decision that was not open to him on the evidence. It would not therefore be the proper function of an appellate court to set his findings aside. In the result therefore this particular submission fails …”. We interpose here paragraph 39 of the judgment: “Our view was communicated to the Spanish Judicial Authority who immediately took action to bring the proceedings in Spain in respect of the original sentence to an end. The documentation has been provided to the court and to the appellant. It is accepted that the proceedings in respect of the conviction are at an end. The issue on specialty therefore no longer forms a bar to extradition. ” 61. The final passage invoked by the Appellant in support of this ground relates to the issue of whether there was a bar to extradition under section 12A of the 2003 Act on the basis that a decision to prosecute the Appellant had not been made in Spain. The Spanish Judicial Authority had formally certified that no prosecution decision had been possible on the ground that by reason of the Appellant’s absence from Spain, the preliminary investigation (“ Instruccion ”) phase could not be concluded. The Divisional Court stated, at [56]: “ It is clear in our view that, where evidence is adduced which shows that a means of examination of a defendant is possible either through the use of the Mutual Legal Assistance Convention or otherwise before the decision to prosecute is made, then it is for the requesting European judicial authority to prove by adducing evidence to the requisite standard of proof that the test in s.12A(1)(b)(ii) has been met. In the present case the Spanish Judicial Authority has given no reasons. On the face of it, on the evidence before the court, it therefore has not shown that the sole reason for the decision to prosecute not having been made is the appellant's absence from Spain.” This was a prelude to the particular passage on which the Appellant places much reliance. Paragraph 60 “It seems to us, following the decision in Kandola , that the Senior District Judge was wrong on the facts of this case to act on the unreasoned statement of the Spanish judge. (1) Proper evidence had been adduced before the court that there was a means of examining the appellant in the United Kingdom; therefore the sole reason for the decision to prosecute not having been made was not his absence from Spain. (2) There are real concerns about the delay in this case. The matter with which the appellant is charged relates to events in April 2011 and further delay would not be acceptable. (3) It would not have been difficult for the Spanish Judicial Authority to have responded on this point. It could easily set out its reasons, taking into account that the purpose of s.12A was to ensure that there would be no delays. (4) It is inexplicable in these circumstances why the Spanish Judicial Authority did not seek to take advantage of the invitation which we extended to put in evidence during the course of the appeal. We are very concerned that our invitation was expressly declined on the instructions of the CPS, in contradistinction to acceptance by the Spanish Judicial Authority of the need to terminate the proceedings underlying EAW1. (5) In the light of these matters and of evidence which we have considered under the first issue, "judicial engineering", and the concerns we have expressed, the failure to answer the simple points raised by Mr Casanova cannot be accepted in this particular case. (6) Even if Kandola was wrongly decided (which we think it was not) and the usual position is that it is permissible to accept the unreasoned statement of a judicial authority, it would not in the circumstances of this case be appropriate to accept the unreasoned statement of the Spanish Judicial Authority.” Followed by, at [61]: “It follows that we consider the judge was wrong. We must therefore allow the appeal and discharge the Appellant.” 62. The Appellant’s argument also invokes the decision of the Divisional Court in Puceviciene v Lithuanian Judicial Authority [2016] EWHC 1862 (Admin) and, in particular, [72]: “There may be, in what we would anticipate would be very rare cases, circumstances in which mutual trust and confidence has broken down, or where there is cogent evidence of bad faith or of abuse. In those circumstances, it may well be appropriate to go behind the answers and seek more information. Spanish Judicial Authority v Arranz [2015] EWHC 2305 (Admin) provides a rare example of the problems, there described as "judicial engineering", which justify that different approach, and what it says should be read in the context of the very special circumstances of that unusual case.” [Per Thomas LCJ] The correctness of this principle was not disputed in the arguments advanced to us. 63. In evaluating this ground of appeal, we consider it appropriate to identify the duty resting on the FtT. In our judgment, the FtT was under a duty to, firstly, consider and, secondly, understand correctly the judgment of the Divisional Court considered extensively in [60] – [61] above. Was this twofold duty discharged? The answer turns mainly on what the FtT stated in [35] of its decision. Having acknowledged the discrete argument of Ms Dubinsky on this issue, the FtT stated: “ I do not accept … nor was it demonstrated to me that the Lord Chief Justice expressed such concern in the manner Ms Dubinski claims. See [72] of Vanda Puceviciene . ” The FtT is to be commended for its alertness to the necessity of confronting this submission and resolving it. However, we consider that its conclusion suffers from three material flaws. The first is that it is expressed in bald and unreasoned terms. The second is that it fails to engage with the passages in the Divisional Court Judgment highlighted above. The third is that it is irreconcilable with [72] of Vanda Puceviciene , to which the FtT made express reference. 64. The materiality of these flaws cannot be gainsaid having regard to the formulation of the Appellant’s grounds of appeal to the FtT. We conclude that this ground is also made out. (iii) The FtT’s Treatment of the “Judicial Engineering” Evidence 65. While this discrete ground of appeal overlaps somewhat with that addressed in [59]–[64] above, we consider that its contours and content suffice to endow it with a free standing existence. 66. Evidentially, the colourful and evocative term “judicial engineering” can be traced to Jacobo Tteijelo Casanova, a Spanish lawyer whose evidence to the Senior District Judge in the extradition proceedings was both written and oral and whose written statement formed part of the evidence considered by the FtT. In his written statement, Senor Casanovo gave consideration to, inter alia , the phenomenon of “ ingeneria judicial ”. As his evidence makes clear, this phrase was first coined, in public, by the Spanish Home Secretary (El Ministerio del Interior). This issue was also addressed in the written and oral evidence of the Appellant’s expert, Mr Woodworth. The gist of this ground of appeal is that the FtT failed to engage adequately with this evidence and failed to give adequate reasons for rejecting it. 67. We have, in [63] – [64] above, diagnosed a material error of law in the FtT’s treatment of this discrete issue. The thrust of this ground of appeal may properly be viewed through the prism which we have formulated in [32] above. In short, it is based upon the inter-related first instance Tribunal’s duties of engagement with material evidence, making appropriate findings and providing sufficient and intelligible reasons. 68. The key passages in the decision of the FtT bearing on this ground of appeal are found at [38] – [46]. It is not insignificant that this section of the judgment has the title “Articles 5, 6 and Refugee Convention”. It begins at [30]. We have considered this section in its entirety and in conjunction with all that precedes it. 69. In [38] of its decision, upon which much of the spotlight is thrust, the FtT records: “ The Appellant has made grave allegations against the Spanish judiciary and authorities supported by the expert evidence of Mr Woodworth who gives specific examples of ‘judicial engineering’ or bad faith with regard to ETA cases: … ” This is followed by ten subparagraphs, each containing instances of the phenomenon espoused in the evidence of the experts. This is followed by, in [39] – [41], a further recitation of parts of Mr Woodworth’s evidence. In [43] the FtT repeats its earlier acknowledgement of Mr Woodworth’s expertise, while observing that he is not a lawyer. Considered in its full context, the significance of this observation is at best opaque. In [44] the FtT focuses exclusively on the topic of persecution . In [44] and [47] the FtT articulates the conclusion that the deportation of the Appellant will not give rise to any breach of his rights under Articles 5 and 6 ECHR. 70. The FtT purported to base its decision on this discrete challenge on “ the reasons … set out … ”. There is no identifiable reasoning in [43] – [45] of its decision. In [46], the FtT refers to “ complex historic, cultural and political issues which require equally complex academic study inappropriate to my analysis on the discrete issues before me ”. This is followed by a reiteration of the Tribunal’s recognition of Mr Woodworth’s expertise and some undeveloped references to the scope for discussion relating to the IRA and the interface between academic historians and Tribunals. In our judgment none of this amounts to a proper engagement with the “judicial engineering” evidence. Nor are there any identifiable findings. Absent the latter, the lack of supporting reasons follows virtually as a matter of course. In the passages in question, one finds nothing more than bare and unreasoned conclusions.