Arranz (EEA Regulations - deportation - test : Spain)

Factual and Procedural Background

The Appellant, a Spanish national aged 59, was subject to a deportation decision by the Respondent, the Secretary of State for the Home Department, under regulation 19(3)(b) of the Immigration (European Economic Area) Regulations 2006 (the "EEA Regulations") on grounds of public policy. The decision, dated 18 August 2015, was based on the assessment that the Appellant represented a genuine, present and sufficiently serious threat to public safety due to his past terrorist activities and alleged ongoing links to a proscribed terrorist organisation (ETA).

The Appellant had been convicted in Spain for serious terrorist offences committed in the 1980s and was released from prison in 2011. After release, he travelled through Spain and France, obtaining false identity documents, before arriving in the United Kingdom. He lived in London with an individual suspected of ETA links and was later arrested with forged identity documents in his possession.

The Appellant's deportation decision was challenged before the First-tier Tribunal ("FtT"), which dismissed his appeal. The Appellant then appealed to the Upper Tribunal, which identified material errors of law in the FtT's decision and set it aside. The Upper Tribunal undertook a remade determination following a further hearing. The Appellant was extradited to Spain in May 2017 during the proceedings.

Legal Issues Presented

1. Whether the FtT erred in law by failing to make sustainable findings that the Appellant's personal conduct represented a genuine, present and sufficiently serious threat to the fundamental interests of society under Regulation 21(5)(c) of the EEA Regulations.
2. Whether the legal burden of proof in deportation decisions under the EEA Regulations rests on the Secretary of State to prove, on the balance of probabilities, that removal is justified on public policy grounds.
3. Whether the FtT properly understood and applied relevant evidential and legal principles, including the assessment of the Appellant's association with ETA and possession of forged identity documents.
4. The applicability and current status of the "Bouchereau" exception in EU law concerning deportation decisions based solely on previous convictions.
5. Whether the FtT adequately considered claims related to "judicial engineering" and the risk of unfair trial in Spain under Articles 5 and 6 of the European Convention on Human Rights (ECHR).

Arguments of the Parties

Appellant's Arguments

• No evidence that ETA or Basque militants pose any threat to the United Kingdom or risk of resuming armed conflict.
• No evidence that former ETA prisoners pose any risk of reoffending.
• Past offending cannot alone satisfy the test under Regulation 21(5)(e) for deportation.
• No adequate evidential basis to justify the threat attributed to the Appellant under Regulation 21(5)(c).
• The burden of proof lies with the Secretary of State to justify deportation on public policy grounds.
• The FtT failed to properly engage with or assess the Appellant's written witness statements.
• The "Bouchereau" exception is no longer good law, having been displaced by the Citizens Directive and subsequent case law.
• Concerns regarding "judicial engineering" and the risk of unfair trial in Spain were not properly addressed by the FtT.

Respondent's Arguments

• The Appellant's protracted membership of ETA and involvement in serious terrorist offences justify deportation.
• The Appellant's possession and use of forged identity documents demonstrate willingness and ability to breach UK laws, constituting a threat.
• There is a risk of future reoffending or assistance to ETA fugitives to evade justice.
• Belonging to or assisting a proscribed organisation poses a threat to fundamental societal interests.
• The Appellant's failure to give evidence or be interviewed permits drawing adverse inferences under relevant legislation.
• The "Bouchereau" exception and related case law remain good law.
• The FtT's decision was legally sound and correctly applied the burden of proof.
• The risk of unfair trial in Spain and "judicial engineering" allegations do not displace the extradition and deportation decisions.

Table of Precedents Cited

Court's Reasoning and Analysis

The Upper Tribunal conducted a detailed legal and factual analysis focusing on whether the FtT had correctly applied Regulation 21(5)(c) of the EEA Regulations, which requires that deportation decisions based on public policy be founded exclusively on the individual's personal conduct representing a genuine, present, and sufficiently serious threat to fundamental societal interests.

The Tribunal found that the FtT erred by failing to make clear, reasoned findings and to sufficiently engage with key evidence, including the Appellant's witness statements and expert testimony. The FtT incorrectly placed the burden of proof on the Appellant rather than on the Secretary of State, contrary to established legal principles as clarified in Rosa and other authorities.

The Tribunal accepted expert evidence that ETA is defunct and no longer poses a threat to the UK, and that the Appellant's past conduct was in a context no longer extant. The use and possession of forged identity documents by the Appellant were acknowledged but found insufficient to satisfy the statutory test for deportation, particularly in the absence of evidence of intent to deceive UK authorities or to pose a threat.

The Tribunal also concluded that the FtT failed adequately to address allegations of "judicial engineering" and the risk of an unfair trial in Spain, and misapplied the test for systemic failure under Article 6 ECHR.

Regarding the "Bouchereau" exception, the Tribunal held that it is no longer good law, having been displaced by the Citizens Directive and subsequent case law, and resolved this issue in the Appellant's favour.

Overall, the Tribunal found that the Secretary of State failed to discharge the burden of proof to justify deportation on public policy grounds under the EEA Regulations and that the FtT's decision was vitiated by material errors of law.

Holding and Implications

The Upper Tribunal ALLOWED the appeal and SET ASIDE the decision of the First-tier Tribunal. The Tribunal remade the decision in favour of the Appellant, concluding that the Secretary of State had not established the statutory test for deportation under Regulation 21(5)(c) of the EEA Regulations.

The direct effect of this decision is that the Appellant's deportation on the cited public policy grounds is not justified in law. The decision clarifies the proper application of the burden and standard of proof in such cases and confirms that past convictions alone cannot satisfy the statutory test absent evidence of a genuine, present, and sufficiently serious threat based on personal conduct.

No new legal precedent beyond the application of existing EU and UK law principles was established. The decision reinforces the requirement for clear reasoning and proper engagement with evidence in deportation appeals under the EEA Regulations.