Case No. UKUT-00294-(IAC)

26. In this section of our judgment we consider the following grounds of appeal: no finding of identification of genuine, present threat (Ground 1), together with misdirection as to the evidence and facts (Ground 4). In addition we shall consider the burden of proof issue forming part of Ground 1. 27. The main ground of appeal is that the FtT made no sustainable finding that, in the language of regulation 21(5) of the EEA Regulations, the Secretary of State’s decision was - “… based exclusively on the personal conduct of the [Appellant] …. [representing] …. a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. ” This omnibus formulation (ours) encompasses the several inter-related strands and alternatives of which this ground consists, both as pleaded and as developed in argument. 28. The evidence of one of the two Appellant’s experts, Mr Woodworth, is of particular relevance to this ground. Mr Woodworth’s report formed part of the documentary evidence assembled and was supplemented by his oral testimony. Mr Woodworth’s evidence on what we term the “ETA issue” is ascertainable from the following passages in his most recent report: “ I am as certain as it is possible to be about such things that ETA’s terrorism has now ended permanently …. There is no active ETA left to join …. ” At [17] of its decision the FtT comments: “ It was the evidence of Mr Woodworth, in particular at [114] – [115], [177] and [184] of his report, that ETA is a defunct terrorist organisation. None of the high profile ETA prisoners have [sic] returned to violence. Further, there is no evidence that any ETA terrorist has returned to violence since ETA declared its permanent ceasefire, nor is there any active violent organisation for them to join if they wished to do so. No serious observer of the Spanish security scene believes that ETA will ever launch a new campaign of terrorism. Mr Woodworth is as certain as it is possible to be about such things that ETA’s terrorism has ended permanently …. ETA has never operated in the United Kingdom or Northern Ireland in any way that involves risk to UK citizens or our security forces. Mr Woodworth is of the opinion that ETA activity here is limited to some of its members taking refuge in or moving through the UK utilising false documents possibly provided by ETA in order to avoid detection and extradition to Spain. ” 29. Following this passage the FtT reminded itself that the deportation of the Appellant “ … must be justified on grounds of public policy, public security or public health in accordance with Regulation 21(5) ”. In the next five paragraphs the judge rehearses some of the arguments developed by the parties’ respective counsel. This is followed by the key paragraph in his decision, [24]: “ I accept that there is no presumption of reoffending. Nevertheless, 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 only evidence to suggest a lack of potential to further offend is not by way of rehabilitation … but the view of Mr Woodworth that ETA is a defunct organisation and its terrorism has come to an end on a permanent basis. While ETA might 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