Over the years, the CJEU has carved out a special status for those bad EU citizens whose extreme crimes totally transgress the laws of the host member state. For example, in Professor Dimitry Kochenov’s excellent new book EU Citizenship and Federalism: The Role of Rights, Loïc Azoulai advances a formidable analysis by exposing the dichotomy between “good citizen” cases such as Carpenter (C-60/00) and Zambrano (C-34/09) and “bad citizen” cases such as P.I. (C-348/09) who serially sexually abused his partner’s daughter and M.G. (C-400/12) who was convicted of child abuse. Indeed, as Azoulai explains, there is an element of Dr Jekyll and Mr Hyde in the picture and bad citizens symbolise “the unavailability of each and every mode of integration into society”. In Tsakouridis (C-145/09), the CJEU held that organised crime representing “a serious evil … fraught with social and economic danger to mankind” must not be allowed to “directly threaten the calm and physical security of the population as a whole or a large part of it.” Importantly, bad behaviour is considered to undermine the “feeling of Union citizenship”. Antonio Troitiño Arranz is a Spanish national. He did not violate the values of the UK by breaching the criminal law. His crimes were directed at his home state. But since he used to be an ETA terrorist he was perceivably “bad” nonetheless.
His expulsion was sought from the UK because of his conviction for the murder of 12 civil guards and injury to 43 civil guards and 17 civilians, all perpetrated on 14 July 1986, for which he was reportedly sentenced to a total of 2,746 years in prison. The home office considered his personal conduct to be a genuine, present and sufficiently serious threat to the British public. His appeal involved the interpretation of article 27(2) of Directive 2004/38/EC and the corresponding provision located in regulation 21(5)(c) of the Immigration (European Economic Area) Regulations 2006. Giving guidance, McCloskey J allowed Arranz’s appeal and explained that the burden of proof in relation to the test in regulation 21(5)(c) rests on the home office. The president judged that the standard of proof is the balance of probabilities. Moreover, the test is not met by mere membership of an organisation proscribed under the laws of a foreign country and applying the tribunal’s decision in CS (Morocco) the Bouchereau (30/77) exception is no longer good law. After serving 24 years’ imprisonment, Arranz was mistakenly freed from prison on 13 April 2011 with six years’ remission for good behaviour.
He fled Spain with the aid of ETA’s El Colectivo de Refugiados, or the Group of Refugees. He entered France through Spain and, using ETA’s network, obtained six false Spanish identity documents for €600 and used them to enter the UK on an unspecified date. Until his arrest on 29 June 2012, he lived in London with his comrade LS who too is of interest to Spain because of terrorism and was extradited in August 2013. Since ETA is a proscribed Basque terrorist organisation, Spain’s authorities repeatedly sought Arranz’s extradition. A string of decisions were made in that regard and the most recent judgment of the Divisional Court upheld Arranz’s extradition and he was extradited to Spain on 5 May 2017.
The home office decided that Arranz’s offences and 30-year custodial sentence evidenced that his personal conduct constituted a present threat and his past terrorist conduct alone justified deporting him. The decision-maker found no evidence that Arranz severed his links to Basque terrorists. His association with LS demonstrated otherwise. The forged identity documents in his possession facilitated theft, age deception, illegal immigration, terrorism and organised crime. In that light, little doubt existed that he presented a significant risk of harm to the public and his personal circumstances did not bar deportation, which was clearly proportionate. Arranz explained in his evidence that he supported the permanent ETA ceasefire. He expressed regret for his terrorist activities and said his membership of ETA had ceased.
One of Arranz’s experts, Mr Woodworth, explained that “ETA’s terrorism has now ended permanently” and said “there is no active ETA left to join” as it was now defunct and had never operated in the UK. However, Arranz’s personal conduct was still held to represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society under regulation 21(5)(c). The FtT rejected the argument that the decision-maker’s use of his previous convictions alone amounted to “disguised extradition”.
The tribunal said three things. First of all, Arranz would not be not be put at risk impinging on the Refugee Convention 1951 if he were deported to Spain. Secondly, his deportation would not give rise to any breach of either article 5 or article 6 of the ECHR resulting a breach of section 6 of the Human Rights Act 1998. Finally, his deportation was justified and in accordance with regulation 19(3)(b) and regulation 21 of the 2006 Regulations. The FtT thus dismissed the appeal on asylum grounds, under articles 5 and 6 of the ECHR and under the 2006 regulations.
Error of Law
Arranz submitted that the FtT’s findings were unsustainable, especially given that in the language of regulation 21(5) the decision needed to be based exclusively on his personal conduct and needed to represent a genuine, present and sufficiently serious threat affecting one of society’s fundamental interests. An embedded but discrete ground of appeal – identified by McCloskey J as “free standing” – arose as to the burden of proof because the FtT imposed a burden on Arranz to demonstrate that his personal was not a threat to UK society.
It was also argued that the Spanish Judicial Authority used “judicial engineering” by repeatedly seeking Arranz’s extradition in an unmeritorious manner. These actions aimed to appease an outcry in Spain about the early release of ETA terrorists. The government vowed to use whatever means necessary to return Arranz to prison and Spain’s judiciary was bound to treat him unfairly.
The Upper Tribunal
The appeal succeeded on the first ground. The UT found a series of objectively demonstrable errors in the FtT’s decision. Even though Arranz did not give oral evidence, the judge failed to recognise the expressions of regret contained in his witness statements. The FtT, which focused on the “potential to further offend”, was wrong to insist that Arranz fled Spain “with multiple false identities”. Moreover, it was “erroneous” to thrice describe LS as an “ETA terrorist” and once as an “ETA member” because the evidence only established that LS is just suspected of ETA links and the Spanish authorities are interested in him.
Notably, the FtT was also confused about the offences on which Arranz’s extradition was sought and the judge failed to consider evidence tendered relating to the Colectivo de Refugiados organisation. Even though the errors were “not egregious” and the absence of clearly expressed findings coupled with adequate supporting reasons was not fatal per se, the absence of any examination of any possible risk analysis in line with the facts vitiated the judge’s assessment. This meant that the discrete conclusion was “entirely unreasoned” and “unsustainable in law”.
As held in Rosa  EWCA Civ 14, in the context of the EEA Regulations the legal burden rested on the home office to prove the threat posed by Arranz. The point is amplified by the Supreme Court’s recent decision in Sadovska  UKSC 54 (see here). The UT found that the legal burden rested on the UK authorities to establish, on the balance of probabilities, that Arranz’s removal from the UK was justified on public policy grounds.
Nowhere did the FtT refer to the home office bearing the burden of proof and the judge’s treatment was misconceived. The judge griped that Arranz failed to (i) formally adopt his witness statements (ii) give oral evidence (iii) testify that he regretted his heinous crimes (iv) testify that he was not assisted by ETA in his flight to the UK and in securing accommodation there and (v) explain the documents recovered by the police upon his arrest. Rejecting the home office’s counterpoints regarding a “shifting standard of proof”, the UT held that:
51. … In our judgment, the FtT applied the wrong legal prism to all of these issues and, ultimately, to the overarching statutory precondition enshrined in regulation 19(3)(b). This constitutes an error of law. The materiality of this error is clear beyond peradventure, as the conclusion expressed at the end of  demonstrates.
The appeal was also argued on the basis that the FtT misunderstood the evidence and the UT held that there was a duty on the FtT to engage with the Arranz’s two written witness statements. Notably, the judge referred to these in the singular as one statement. Overall, the cumulative nature of the errors had a “substantial hue”. Despite his commendable “alertness” the judge had also misunderstood the decision in Spanish Judicial Authority v Arranz (No 3)  EWHC 2305 (Admin) and the “judicial engineering” point. Therefore, his decision (i) was expressed in bald and unreasoned terms (ii) failed to engage with the Divisional Court’s judgment and (iii) was irreconcilable with Puceviciene v Lithuanian Judicial Authority  EWHC 1862 (Admin) where Lord Thomas LCJ expressly highlighted that Arranz (No 3) provides rare insight into the problems of “judicial engineering … in the context of the very special circumstances of that unusual case.”
Arguments on a fair trial in Spain were subsumed by the UT’s conclusion on “judicial engineering”. However, in breach of EM (Eritrea)  UKSC 12, the FtT also erred by applying a “systematic failure” test to the Spanish judiciary’s discharge of their duties in a fair and impartial manner. The simple test for the FtT, which it failed to formulate and apply, was whether there were substantial grounds for believing that there was a real risk of a breach of Arranz’s rights under articles 5 and 6 of the ECHR, article 47 of the CFR and the Refugee Convention upon expulsion to Spain. In light of all these errors of law, the FtT’s decision was set aside and remade.
Remaking the Decision
Arranz stood to gain both practical and reputational advantage if his deportation appeal succeeded and so despite his extradition the appeal was not academic. Examining regulation 21 of the 2006 Regulations and article 27 of the Citizens’ Directive side by side, the UT reiterated that the onus of proof rests on the home office and the standard of proof is the balance of probabilities. Undisputedly, indeed, the genuine present and sufficiently serious threat of offending posed by Arranz had to arise in the UK and not elsewhere. His extradition to Spain had been sanctioned because of his alleged continuing association with ETA.
Expert evidence tendered by Professor Silke suggested that Arranz was a “fringe”, and not a “core”, former member of a terrorist cell who in light of his age fell into the low risk of reoffending category. But he accepted that “one size does not fit all”. Accepting his main evidence, the UT found him to be an “impressive witness” whose thesis was not unorthodox or controversial.
The home office stuck to its guns and repeated its line of argument about Arranz’s possession of false documents and the threat he posed to society’s interests by virtue of his membership of a proscribed organisation. Four counterpoints rebutted these claims, namely (i) no evidence exists regarding ETA or Basque militants having ever posed a threat to the UK or have any motive to do so in future times (ii) nothing suggested that ETA or Basque militants pose any risk of resuming armed conflict (iii) no evidence pointed to former ETA prisoners posing any risk of reoffending in any form and (iv) Arranz’s previous convictions cannot as a matter of law be construed to indicate a propensity to reoffend within the meaning of regulation 21(5)(e). If anything, there was a paucity of evidence pointing to the threat contemplated by regulation 21(5)(c). Moreover, Arranz’s extradition rendered the possession of false documents irrelevant. It would thus be illogical to think that he would use false documents again in the future and the statutory test remained unmet by any past use and possession.
The UT rejected the government’s submission – invoking JS (Sudan)  EWCA Civ 1378 – that the burden of proof was not important to the appeal’s outcome. However, the authority assisted on the issue of evaluative judgment. Under regulation 21(5)(c), the tribunal must “make a predictive evaluative assessment of future events based on the relevant factual matrix.” Clearly, there was a measure of truth in the point that immigration document fraud is a serious offence. It not only impinges on the maintenance of firm immigration control and society’s economic interests, but potentially also threatens public order and national security. The key question was whether taken together with his past terrorism, Arranz’s use of false documents matched the statutory test.
As for the El Colectivo de Refugiados issue, it was clear that interaction with the group enabled Arranz to secure false documents and facilitate his entry into the UK where he lived with LS. On the other hand, the experts viewed Colectivo as “peaceful”. Indeed, the organisation operates openly in France without proscription and provides solidarity and support to released ETA prisoners. Any arguments made against him on that score were rather pointless and flimsy.
Given the especially brutal, heinous and savage nature of Arranz’s crimes, the risk of him reoffending was a natural ally of the expelling UK authorities. However, the UT accepted the “abstract theory” devised by Professor Silke in his evidence. Using the theory – without actually interviewing or assessing Arranz – Silke posited that:
… in a post-conflict situation a politically motivated offender who has previously committed heinous crimes is unlikely to reoffend in a comparable way or at all.
The belief was consistent with Mr Woodworth’s detailed written evidence, which, of course, had never been challenged by any competing expert evidence acting on behalf of the home office.
Since ETA’s activities have no linkage to the UK whatsoever in the near, medium and long-term future, the group posed no threat to the UK with the upshot that Arranz’s past personal conduct in terrorist activities and active membership of a proscribed organisation in Spain were incapable of constituting a genuine, present and sufficiently serious threat affecting one of the fundamental interests of the UK. Equally, nothing suggested that a defunct terrorist outfit such as ETA would rise out of dormancy to resurrect itself or that Arranz’s future conduct would mirror his past engagement in terrorism. Finally, even if ETA renewed its terrorist campaign, no evidence existed that it would conduct terrorist operations in, or affecting, the UK.
In 2006, the Spanish Supreme Court devised the “Parot Doctrine” to deny persons convicted of serious crimes specific rights granted by Spanish law which operate by limiting or reducing the maximum allowed term of imprisonment. Arranz submitted that resort to using forged documents to flee Spain solely for the purpose of avoiding further incarceration was justified because his further imprisonment would be unlawful by virtue of the ECtHR’s decision in Del Rio Prada v Spain  58 EHRR 37.
Del Rio Prada concerned an ETA member who had taken part in numerous terrorist attacks from 1982 until her detention in 1987. Prison sentences exceeding 3,000 years were passed on her. The Grand Chamber held that the penalty applicable to the applicant and the length of her prison sentence had been changed retrospectively (in breach of article 7 of the ECHR), that her detention had not been lawful (in breach of article 5) and the court indicated (under article 46) that she should be released at the earliest possible date.
Observably, the home office’s submissions suffered from a series of flaws. The belief that Arranz intended to deceive UK authorities with the false documents was unsubstantiated and misconceived. Immigration document fraud could, in certain circumstances, in principle satisfy, or contribute to satisfying, the test in regulation 21(5)(c) but the assessment remained a function of “scale, impact, motive, context and the relevant prevailing public interests, bearing in mind that these are not immutable.” In Arranz’s case, his past conduct and possession of false documents were insufficient to find against him. If he were to return to the UK to resume his residence then the evidential foundation to satisfy the test was quite feeble. The UT considered it preposterous to presume that he would use his knowledge of weapons and terrorist training in a mercenary way to target the UK.
Complaints about the fact that Arranz was not cross-examined failed to assist the home office. Neither did the point that he did not accept his past deeds and failed to apologise for the fact that he was a terrorist and showed no genuine remorse for his horrendous actions. According to the UT, such statements and apologies might even have placed him into the category of “self-serving” appellants and the admissions contended for would not have attracted any significant weight. Arranz also complained about the exception created by Bouchereau where it was held that:
29. Although, in general, a finding that such a threat exists implies the existence in the individual concerned a propensity to act in the same way in the future, it is possible that past conduct alone may constitute such a threat to the requirements of public policy.
This treatment was endorsed by the Court of Appeal in Marchon v IAT  Imm AR 384. Arranz submitted that, because of being overruled by Nazli (C-340/97) and the Citizens’ Directive, the approach is unrepresentative of the current state of EU law. The UT applied the points articulated in SSHD v CS (Morocco) (DA/00146/2013, currently unreported) and resolved the matter in Arranz’s favour. Noting the deficiencies of the Bouchereau exception, in CS (Morocco) it was held that (i) the language of the judgment was prima facie irreconcilable with the clear language of article 3(2) of the 1964 Directive (ii) the reasoning behind the conclusion was sparse and opaque (iii) no ready link existed between the court’s judgment and the UK government argument or AG Warner’s opinion and (iv) the Bouchereau exception became extinct after the advent of article 20 TFEU and/or the Citizens’ Directive. No reasons existed to depart from these findings and the exception is therefore no longer good law.
The UT ultimately subscribed to the view that despite all his terrible terrorism and mass murdering ways, Arranz was not inherently “bad” because his actions were driven by a political ideology that had all but ceased to exist except perhaps in name. So his case can be readily distinguished from the awaited judgment in Franco Vomero (C-424/16, see here) where an Italian national committed homicide in the UK by strangling his housemate with electrical flex and bashing him on the head with a hammer while drunk and continued to reoffend after his release from imprisonment. In Vomero, among other questions, the CJEU will answer the Supreme Court’s query regarding whether enhanced protection under article 28(3)(a) of the Citizens’ Directive depends upon the possession of a right of permanent residence within article 16 and article 28(2). (Needless to say, Theresa May’s ambivalent half-in half-out stance on the CJEU’s future jurisdiction must be dually frustrating for both pro and anti-Brexit voters.)
Of course there is a lot to take away from the present case. For example, under the three-tier system of protection created by the Citizens’ Directive, Arranz, a fugitive from Spanish justice, succeeded in his deportation appeal on baseline protection. From that angle, he was more “good” Mr Hyde than “bad” or “evil” Dr Jekyll. Thus in relation to the increasing threshold for expulsion he did not need to rely on the “serious grounds” test contemplated by article 28(2) for permanent residents or the enhanced protection test requiring “imperative grounds of public security” for expulsion envisaged by article 28(3)(a).
Equally, as practitioners and observers will know only too well, most immigration judges simply pounce on the opportunity to dismiss appeals where the appellant or any witnesses were not present (or “not bothered”) to give oral evidence. “I cannot imagine that, on its own, the statement will generally cut much ice with the tribunal,” is how Lord Wilson explained his sentiments in Kiarie and Byndloss  UKSC 42 (see here) where in relation to the “deport first, appeal later” policy he held that deporting an appellant in advance of an appeal is unlawful as it prevents him from presenting his case properly. Therefore, in light of the overall atmosphere of negativity prevalent in the tribunal system, McCloskey J’s treatment of the “evidence” in Arranz’s witness statements and the UT’s attachment of weight to their contents is also rather refreshing.
On the present state of the law, applying MC (Essa Principles Recast)  UKUT 520 (IAC), proportionality only needs to be considered in cases where the threat is present. However, subsequent to the enactment of the Immigration (European Economic Area) Regulations 2016, the test in old regulation 21(5)(c) is now propounded in new regulation 27(5)(c) and incorporates additional variables into the equation by allowing the person’s past conduct to be taken into account and further stipulating that “the threat does not need to be imminent”.