Antonio Troitino Arranz v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | THE HON. MR JUSTICE MCCLOSKEY |
| Judgment Date | 22 August 2017 |
| Neutral Citation | [2017] UKUT 294 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 22 August 2017 |
[2017] UKUT 294 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
The Hon. Mr Justice McCloskey, President
The Hon. Mr Justice Supperstone, sitting as a Judge of the Upper Tribunal
The Hon. Mr Justice McCloskey, President
Upper Tribunal Judge Blum
For the Appellant: Ms L Dubinsky, of counsel, instructed by Birnberg Pierce Solicitors
For the Respondent: Ms J Anderson, of counsel, instructed by the Government Legal Department
Arranz (EEA Regulations — deportation — test)
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(i) The burden of proving that a person represents a genuine, present and sufficiently threat affecting one of the fundamental interests of society under Regulation 21(5)(c) of the EEA Regulations rests on the Secretary of State.
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(ii) The standard of proof is the balance of probabilities.
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(iii) Membership of an organisation proscribed under the laws of a foreign country does not without more satisfy the aforementioned test.
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(iv) The “Bouchereau” exception is no longer good law: CS (Morroco) applied
This is the judgment of the panel to which both members have contributed. At this stage of these appeal proceedings, the sole question for the Upper Tribunal is whether the First-tier Tribunal (the “ FtT”) committed a material error of law within the compass of the permitted grounds of appeal.
The Appellant, Antonio Troitino Arranz, is a Spanish national, aged 59 years. The Respondent, the Secretary of State for the Home Department (the “ Secretary of State”) is the author of the decision underlying this appeal. The impugned decision, which is dated 18 August 2015, notified the Appellant that he would be deported from the United Kingdom under regulation 19(3)(b) of the Immigration (European Economic Area) Regulations 2006 (the “ EEA Regulations”) on the ground of public policy. The reason proffered was that the Appellant was considered to represent “ a genuine, present and sufficiently serious threat to the public ….”.
The underlying legislative instrument is a measure of EU law, namely Directive 2004/38/EC (the “Citizen's Directive”). This, as its long title states, regulates “the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States”. The topic of expulsion from a Member State is addressed in Article 27, which provides:
“1. Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.
2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.
The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.
3 In order to ascertain whether the person concerned represents a danger for public policy or public security, when issuing the registration certificate or, in the absence of a registration system, not later than three months from the date of arrival of the person concerned on its territory or from the date of reporting his/her presence within the territory, as provided for in Article 5(5), or when issuing the residence card, the host Member State may, should it consider this essential, request the Member State of origin and, if need be, other Member States to provide information concerning any previous police record the person concerned may have. Such enquiries shall not be made as a matter of routine. The Member State consulted shall give its reply within two months.
4 The Member State which issued the passport or identity card shall allow the holder of the document who has been expelled on grounds of public policy, public security, or public health from another Member State to re-enter its territory without any formality even if the document is no longer valid or the nationality of the holder is in dispute.”
The United Kingdom transposing instrument is the EEA Regulations 2006. Regulation 19 is the sister provision of Article 27 of the Directive. It provides, under the rubric of “Exclusion and Removal from the United Kingdom”, in material part:
“(3) Subject to paragraphs (4) and (5), an EEA National who has entered the United Kingdom or the family member of such a National who has entered the United Kingdom may be removed if –
…
(b) The Secretary of State has decided that the person's removal is justified on grounds of public policy, public security or public health in accordance with regulation 21 ….”
[Paragraphs (4) and (5) have no application in the present context.]
Regulation 21 is concerned with decisions taken on public policy, public security and public health grounds. It provides:
“(1) In this regulation a “relevant decision” means an EEA decision taken on the grounds of public policy, public security or public health.
(2) A relevant decision may not be taken to serve economic ends.
(3) A relevant decision may not be taken in respect of a person with a permanent right of residence under regulation 15 except on serious grounds of public policy or public security.
(4) A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who-
(a) has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision; or
(b) is under the age of 18, unless the relevant decision is necessary in his best interests, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989.
(5) Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, be taken in accordance with the following principles-
(a) the decision must comply with the principle of proportionality;
(b) the decision must be based exclusively on the personal conduct of the person concerned;
(c) the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;
(d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;
(e) a person's previous criminal convictions do not in themselves justify the decision.
(6) Before taking a relevant decision on the grounds of public policy or public security in relation to a person who is resident in the United Kingdom the decision maker must take account of considerations such as the age, state of health, family and economic situation of the person, the person's length of residence in the United Kingdom, the person's social and cultural integration into the United Kingdom and the extent of the person's links with his country of origin.”
In the context of this appeal, the key provision of Regulation 21 is paragraph (5)(c). The mirror provision in the Directive is Article 27 (2).
It is necessary to analyse the Secretary of State's decision in a little detail. The decision refers to the Order of a Spanish Court dated 07 November 1989 whereby the Appellant was convicted of the murder of 12 civil guards and injury to 43 civil guards and 17 civilians, all perpetrated on 14 July 1986. These offences were committed in the name of the terrorist organisation ETA. The decision letter states:
“In appraising the interests of public policy and security, it is determined that your involvement in these serious offences, as evidenced by the imposition of a custodial sentence of 30 years in Spain, are evidence of your personal conduct constituting a present threat to the requirement of that policy. Therefore your past terrorist conduct itself justifies your deportation.”
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.
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...
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