“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or public health from another Member State to re-enter its territory without any formality even if the document is no longer valid or the nationality of the holder is in dispute.”
“(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 on20th 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 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.”
“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] on16 August 2013 [he] was extradited from the United Kingdom to Spain in order to be tried for this matter.”
“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.”
“… Given the threat of serious harm you pose to the public, it is considered that your personal circumstances do not preclude your deportation being pursued. It is considered that the decision to deport you is proportionate ….”
“You have not provided any evidence of Article 8 family life existing in the United Kingdom … It is accepted that you may have developed a degree of private life …. Your deportation is conducive to the public good and in the public interest because you have been convicted of an offence for which you have been sentenced to a period of imprisonment of at least four years.”
“[The Appellant] was set free in accordance with a ruling issued on April 2011 …. Subsequently, the same Division upheld an appeal lodged by the State Prosecutor and ordered the search and arrest of [the Appellant] who went underground and hid, initially, in an unidentified place in Spain. From there, he contacted the terrorist organisation ETA again so they would help him flee from Spain, thus making the search and arrest warrant against him ineffective. By doing so he accepted submission to the terrorist organisation’s instructions regarding what is known as the Group of Refugees [El Colectivo de Refugiados], a branch that groups ETA militants together in countries other than Spain and France, placing himself at the disposal of ETA … Thus, around19 April 2011 , to evade the search warrant issued against him [the Appellant] sent a photograph of himself to the terrorist organisation ETA’s branch for forging documents [FAL] which belongs to ETA’s logistics department …. [which] forged six Spanish identification documents with his photograph and the following identities …. [names] …. Said documents, analysed by the Forensic Services, were of the same origin as other documents seized from several members of the terrorist organisation … The same documents were found on29 June 2012 in the possession of [the Appellant] in the house he occupied with another member of the organisation [LS] at [London address] where they were arrested by the British police.”
“In addition, two forged driving permits in the names of [names] both of which had a photograph of [the Appellant] where seized from the latter. Moreover, two European health cards in the name of [names] were also found in his possession.”
“The presence of [the Appellant] in said place with the aforementioned individual is not a casual circumstance. Rather, it shows that [the Appellant] belongs to the terrorist organisation. The entire process by which an ETA militant goes underground is not due to an independent, individual decision. It obeys the organisation’s internal rules and the so-called Protocol for Refugees …. In the case of [the Appellant], it meant a reintegration into the terrorist organisation when he was released from prison”
“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 …. ”
“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.”
“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 orsection 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.”
“… 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 ….
“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).”
“The Appellant claims he is at risk of persecution 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.]
“I accept that there is no presumption of reoffending.”
“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.”
“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).”
“… 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).”
“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.”
“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 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 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.”
“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.”
“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.”
“… 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.”
“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.”
“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.”
“It follows that we consider the judge was wrong. We must therefore allow the appeal and discharge the Appellant.”
“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 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: …”
“In summary, the evidence I have been asked to consider does not disclose a systematic failure on the part of the Spanish judiciary to discharge their duties in a fair and impartial manner.”
“(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. (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.”
“There is a clear risk of further resort to false documents if the Appellant wished to evade the UK authorities on any return in the future and the harm from possession and use of forged identity documents is unarguably significant and sufficient to meet the limited requirement in the EEA context where only the basic rights apply.”
“Overall, the available elements suggests strongly that reoffending rates for released terrorist prisoners is [sic] low. The terrorist reoffending rates are certainly much lower than the levels typically seen with ordinary, non-terrorist prisoners. This trend applies both in the context of releases where a related conflict is still ongoing and where the conflict has ended or entered a significant peace process. It is important to acknowledge, however, that some reoffending does occur, although the level of reoffending is typically much lower than we would normally expect with most released prisoners.”
“Drawing together the various strands we summarise our evaluation of the Bouchereau decision in these terms. First, the conclusion expressed in [29] is prima facie irreconcilable with the clear language of Article 3(2) of the 1964 Directive. Second, the reasoning underpinning the conclusion is sparse and opaque. Third, the conclusion cannot be readily linked to either the argument of the United Kingdom Government or the opinion of the Advocate-General. Fourth, neither the legal regime to which the Bouchereau decision belongs nor its modern incarnation has any application to the expulsion of third country nationals such as the Respondent. Finally, in our judgment, the Bouchereau principle has not survived the advent of Article 20 TFEU and the Citizens’ Directive, either singly or in combination.”