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Cite as: [2018] ScotCS CSIH_28, [2018] CSIH 28

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2018] CSIH 28

XA90/17

Lady Paton

Lord Brodie

Lord Glennie

OPINION OF THE COURT

delivered by LADY PATON

in the appeal

against

SECRETARY OF STATE FOR THE HOME DEPARTMENT

13 March 2018

Appellant: K H Forrest; Drummond Miller LLP

Respondent: Webster; Office of the Advocate General

Appellant

Respondent

Appeal concerning the deportation of an EEA national

[1] The decision of the First-tier Tribunal (“FTT”) dated 16 August 2016 demonstrates an

apparent confusion in relation to two significant matters.

[2] First, the question of onus of proof. It is accepted that the burden of proof was on the

Secretary of State (SSHD v Straszewski [2016] 1 WLR 1173 paragraph 12). However, at

paragraph 9 of its decision, the FTT states: “In respect of the deportation appeal the burden

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of proof is on the appellant”. The UT observes at paragraph 9 of its decision dated

31 October 2016:

“Reading the [FTT’s] decision fairly and as a whole, the reference at paragraph 9 to a

burden of proof on the appellant is only a standard recital which has been left

unrevised, and is not part of the decisive passages. It is an immaterial slip.”

We cannot agree. In our opinion, the FTT’s proposition in paragraph 9 of its decision

influenced its whole approach to the decision-making process, causing confusion.

[3] The second significant matter is that, at paragraph 14, the FTT refers to the question

whether the personal conduct of the appellant represents “a genuine and sufficiently serious

threat” affecting one of the fundamental interests of society. But the relevant regulation,

regulation 21(5)(c) of the Immigration (European Economic Area) Regulations 2006, speaks

of “a genuine, present and sufficiently serious threat.” In other words, the FTT has omitted

a material word, namely “present”. This, combined with the previous point, results in a

background of uncertainty when considering the framework within which decisions were to

be made.

[4] Had these been the only issues, we would have been minded to allow the appeal and

remit the case to a freshly-constituted FTT. But matters do not end there. The appellant has

been in the United Kingdom since 2013. He is in employment. He pays tax. He has an

ongoing relationship with a UK national and is clearly involved to a considerable extent

with her extended family, although some questions about the relationships within that

extended family are raised in the FTT decision. The matter which brought the appellant to

the attention of the Secretary of State was a conviction at Hamilton Sheriff Court for

vandalism, with what was described by the FTT as “a domestic abuse aggravator”. The

appellant was fined £100. In paragraph 16 of the FTT’s decision there is a little more detail

about the offence, based on the evidence of the appellant’s partner. That detail is as follows:

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“The evidence was to the effect that there was an argument between the appellant

and her sister and she was present. The appellant was outside and exchanging

words with her sister and then the appellant broke the window.”

[5] The FTT considered the resultant conviction for vandalism in the light of the

appellant’s previous convictions in Romania, listed in the Secretary of State’s decision letter

of 2 June 2016 at pages 1-2. Those convictions were: 2001, theft; 2003, theft; 2004, illegal

possession in public places of offensive weapons. What the FTT had before it was evidence

of the breaking of a window in the context of a domestic argument, attracting a fine of £100.

The FTT at paragraph 16 refers to this as involving “a conviction for an offence against a

person”. That is not in fact borne out by the conviction itself, which was for vandalism and

was based on the evidence referred to above, ie the breaking of a window in the context of a

domestic argument.

[6] The relevant regulation which the FTT had to apply was regulation 21 of the 2006

regulations. Regulation 21(5) provides:

“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;

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.”

[7] Mr Webster on behalf of the Advocate General pointed to the index offence taken

with the previous Romanian convictions as demonstrating a propensity to reoffend

involving violence. That was the approach and conclusion adopted by the FTT in

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paragraph 16 of its decision. However, in our opinion, that approach and conclusion was

irrational for four reasons. First, the offence of causing damage to property does not suggest

any propensity to commit violence against a person. Secondly, the offence of causing

damage to property does not suggest any likelihood of a recurrence of the type of offending

which took place in Romania. In fact, the Romanian offences are wholly dissimilar. Thirdly,

the index offence was, as the FTT itself recognises, “not a particularly serious offence”

(paragraph 16 of its decision). Fourthly, the Romanian offences were more than 10 years

old.

[8] Accordingly, having regard to the information before the FTT, we consider that it

was not open to it to find that the personal conduct of the appellant represented “a genuine,

present and sufficiently serious threat affecting one of the fundamental interests of society”

(regulation 21(5)(c)). In addition, it is our view that deportation in these circumstances

would be wholly disproportionate, contrary to regulation 21(5)(a). Accordingly we are of

the opinion that the UT erred in law in (i) failing to regard the confusion over onus and the

omission of the word “present” as not constituting a material error of law; (ii) failing to

hold the irrationality argument to have foundation.

[9] The questions in law posed in the appeal are as follows:

1. Whether the UT materially erred in law?

2. Whether the FTT materially erred in law?

For the reasons given above, we answer both questions in the affirmative. Given our

decision on the ground of irrationality, it would serve no purpose to remit this case to

another tribunal. We therefore allow the appeal and we quash the deportation order.