Antonio Troitino Arranz v Secretary Of State for the Home Department

For deportation under Immigration (European Economic Area) Regulations 2006, the Secretary of State bears the legal burden of proving, on the balance of probabilities, that the person’s conduct represents a genuine, present and sufficiently serious threat to a fundamental interest of United Kingdom society.

The assessment is predictive and evaluative. It must rest on the person’s conduct, its context, present realities and future probabilities. Past terrorist offending, association with an organisation proscribed abroad, and historic use of false identity documents do not, without sufficient evidence of a present future threat in the United Kingdom, meet the test. The Bouchereau exception is no longer good law.

Antonio Troitino Arranz, a Spanish national formerly convicted in Spain of grave ETA-related terrorist offences, appealed against the Secretary of State’s decision to deport him on public-policy grounds under regulation 19(3)(b) of the Immigration (European Economic Area) Regulations 2006.

The First-tier Tribunal dismissed the appeal. It found that his association with ETA-related support arrangements and forged identity documents established a genuine, present and sufficiently serious threat. It also rejected his objections based on the Refugee Convention, Articles 5 and 6 of the ECHR, and Article 47 of the EU Charter.

The Upper Tribunal set aside that decision for material errors of law and remade the appeal after the appellant had been extradited to Spain. The central issue was whether the Secretary of State had proved a qualifying present threat to fundamental interests of United Kingdom society.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside for material errors of law. The Upper Tribunal remade the decision and allowed the appeal.

2. The legal burden under regulation 21(5)(c) rested on the Secretary of State, not the appellant. The applicable standard was the balance of probabilities. The First-tier Tribunal had unambiguously placed that burden on the appellant, and its reasoning showed that the error was material.

3. The regulation 21(5)(c) inquiry required a predictive evaluative assessment of a genuine, present and sufficiently serious threat to a fundamental interest of the United Kingdom. It had to be based on the appellant’s personal conduct and on the relevant factual matrix as a whole.

4. The Secretary of State had not proved such a threat. ETA no longer posed a present or realistically foreseeable threat to the United Kingdom. The appellant’s historic terrorist conduct belonged to a context which no longer obtained. His association with the peaceful Colectivo de Refugiados and with LS did not establish that he was harbouring a fugitive or obstructing justice.

5. Historic use and possession of forged identity documents could, depending on scale, impact, motive, context and prevailing public interests, contribute to the statutory test. On the evidence, however, the documents had been used to escape anticipated unlawful reimprisonment in Spain. There was no evidential basis for predicting future document fraud or other qualifying offending in the United Kingdom.

6. The First-tier Tribunal had also failed adequately to engage with the written evidence, the evidence of alleged judicial engineering, and the correct test for prospective breaches of Articles 5 and 6 ECHR. A systemic-failure or flagrancy threshold was not applicable to transfer between ECHR Contracting States.

7. Following SSHD v CS, the Tribunal held that the Bouchereau exception had not survived the Citizens’ Directive and Article 20 TFEU.

• Upper Tribunal (Immigration and Asylum Chamber): The First-tier Tribunal’s dismissal was set aside for material errors of law. The Upper Tribunal remade the decision and allowed the appeal.
• First-tier Tribunal: Dismissed the appeal against deportation under regulation 19(3)(b) of the Immigration (European Economic Area) Regulations 2006.