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Burden of proof is not on deportee, despite tribunal’s best efforts
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Burden of proof is not on deportee, despite tribunal’s best efforts

In SA v Secretary of State for the Home Department [2018] CSIH 28, the Inner House considered an appeal from the Upper Tribunal concerning a deportation order against a Romanian national. The two main issues were:

  • the burden of proof in EEA deportation cases
  • whether the First-tier Tribunal had got the legal test for EEA deportation cases wrong

SA had entered the UK in 2013. He was convicted of vandalism. He also had three previous convictions in Romania for theft and possession of an offensive weapon. The Secretary of State issued a deportation order. On appeal, the First-tier Tribunal’s judgment stated:

In respect of the deportation appeal the burden of proof is on the appellant.

The Home Office accepted that the burden of proof in EEA deportation cases was on it to justify why deportation was proportionate: SSHD v Straszewski [2015] EWCA Civ 1245.

On appeal the Upper Tribunal seemed to underplay the problem with this passage of the First-tier Tribunal’s decision:

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.

In addition, the First-tier Tribunal had said that the question which needed to be determined was whether the conduct of the appellant represented a “genuine and sufficiently serious threat” affecting one of the fundamental interests of society.

Eagle-eyed readers will see the problem; the word “present” is missing. Why is such an omission fatal? In EEA deportation cases, the crux of the issue is considering whether there is likely to be a risk of re-offending. This is one of the key distinctions between the EEA deportation regime and the deportation of non-EEA nationals.

The Secretary of State argued that the previous convictions demonstrated a propensity to re-offend, but the Inner House was not persuaded. It pointed out that the offence in the UK (breaking a window) was “wholly dissimilar” to the offending in Romania. The vandalism offence was in itself “not a particularly serious offence” as had been expressly accepted by the First-tier Tribunal. In any event, the convictions in Romania were more than ten years old.

Ultimately, all the uncertainty proved to be too much for the court and it concluded that deportation was disproportionate in the circumstances.

It was interesting to see that the Inner House disapprove of the Upper Tribunal’s blasé approach about the passage being “an immaterial slip”. It’s concerning that the Upper Tribunal did not take a tougher approach, especially when some of these decisions may literally be a matter of life and death for the appellant involved.

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Surprising as it may seem, this happens all too often. One particular case which springs to mind is an appeal my firm made against a refusal of a visit visa (back when they were still possible). In that case, the judge had expressly stated that he was satisfied all the reasons for refusal had been addressed but went on to dismiss the appeal. It turned out that he meant to allow the appeal! Something of this nature could quite correctly be noted as “an immaterial slip” but where a “slip” is a material error of law and infects the reasoning of the Tribunal, it can no longer be categorised as a “slip”.

This makes it all the more crucial that any decisions are scrupulously considered to see whether there are adequate grounds to appeal.

This is especially so given the length of time it can take to resolve such proceedings. The procedure and process for bringing appeals or raising judicial reviews in the Court of Session in Scotland can take an agonisingly long amount of time. The Upper Tribunal’s decision in this case was taken in October 2016 with the decision being given in April 2018, a year and a half later. That is a long time to be told that smashing a window is not enough to justify deportation.


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