Gay Latvian man convicted of shooting police officer loses appeal against deportation

The Inner House of the Court of Session refused the appeal after ruling that the First-tier Tribunal and Upper Tribunal were entitled to conclude that the appellant had not been in the UK for a continuous period of at least a decade and that in any event his imprisonment had the effect of interrupting the period. The court also held that the tribunals had properly considered the human rights of the appellant’s gay partner and whether it was proportionate to expect him to leave the UK to continue their relationship in Latvia, where same-sex couples continue to face discrimination.

Residence

Lady Paton, Lord Drummond Young and Lord Malcolm heard that the appellant Aleksandros Kolosovs, 32, claimed to have entered the UK in 2004 in order to work and study, and to have remained since then.

In 2006 he formed a relationship with a male partner, CA, a British citizen in his late 50s who had lived in the UK all his life.

The court was told that in October 2013 the appellant was convicted of behaving in a threatening or abusive manner likely to cause a reasonable person to suffer fear or alarm, and was sentenced to a Community Payback Order with six months of unpaid work. Weapons used in the offence, which included an airsoft shotgun and ammunition, carbon dioxide canisters and a BB pellet gun with ammunition, were confiscated.

A year later he was convicted of assault to injury after assaulting shooting an on duty police officer twice in the head, for which he was sentenced to one year and eight months imprisonment followed by a 10-month Supervision Order, with the sentence backdated to 13 June 2014, the date when he was remanded in custody.

Deportation order

On 1 May 2015 the Home Secretary issued the appellant with a decision letter to making a deportation order on account of his criminal convictions, namely on the grounds of public policy/public security in accordance with Regulation 19(3)(b) and Regulation 21 of the Immigration (European Economic Area) Regulations 2006.

After appeals to the First-tier Tribunal and the Upper Tribunal were refused, the appellant sought to challenge the order in the Court of Session.

Before the FTT the appellant claimed that he had been in the UK since 2004 and he produced a Home Office letter dated 1 October 2004 headed ‘Accession State Worker Registration Scheme’, which stated that his application had been accepted.

The appellant said he was employed at a factory in August 2004 and worked there for 6-12 months, but there was no documentary evidence to support his claim and the FFT judge found that the Home Office letter, on its own, was not enough to show that the appellant had in fact lived in the UK since 2004.

On that basis the FTT held that the appellant could not come within Regulation 21(4) of the 2006 Regulations as he had not been in the UK for a continuous period of at least 10 years.

His case therefore fell to be considered under Regulation 21(3), and the test was whether deportation was justified by “serious grounds of public policy or security”.

It decided that that test had been satisfied and that the Home Secretary had accordingly been entitled to deport the appellant.

Human rights

The FTT further held that any interference with the right to a private and family life under article 8 of the European Convention on Human Rights, in respect of the both the appellant and his partner, would be “in accordance with the law”, pursued the “legitimate aim” of the maintenance of immigration control, and was “proportionate” in respect of that aim and the seriousness of the appellant’s offences.

The UT upheld the decision of the FTT and further observed that, even if it were assumed that the appellant was in the UK continuously from 2004, it did not follow that he would be entitled to the enhanced protection arising from 10 years’ continuous residence, as the Court of Justice of the European Union in Home Secretary v MG (Portugal) 1 WLR 2441 held that periods of imprisonment could be discounted in assessing whether the 10-year requirement was satisfied.

Error in law

The issues for the Court of Session were whether the FTT and UT had erred in law in failing to hold that the appellant had been lawfully resident in the UK since 2004 and in refusing to admit fresh evidence tendered by the appellant in the course of the hearing before it, in particular a letter from HMRC stating that a registration certificate under the Accession State Worker Registration Scheme had been issued to the appellant on 1 October 2004.

It was also argued that the backdating of the appellant’s sentence to 13 June 2014 interrupted the 10-year period for the purposes of Regulation 21(4)(a) of the 2006 Regulations and that the Upper Tribunal that any “integrating links” forged by the appellant the UK had been “broken” in consequence of the prison sentence.

Further, it was submitted that the UT erred in law in upholding the First‑tier Tribunal’s consideration of CA’s rights under article 8 of the ECHR, having regard in particular to the impact on those rights of socio-political circumstances in the country to which the appellant with might be deported.

Decision

However, the appeal judges held that the tribunals were “fully justified” in coming to the conclusion that the appellant had not been resident in the UK on a continuous basis for ten years and that even if they had been in error, the period had been broken by his custodial sentence.

In relation to the article 8 issue, the court further observed that both tribunals were aware of the appellant’s relationship, and concluded that it was practicable for his partner, if he wished, to go with the appellant to Latvia, which was a signatory to the ECHR.

Delivering the opinion of the court, Lord Drummond Young said: “For the foregoing reasons we conclude that the First-tier Tribunal and Upper Tribunal were entitled to conclude that the appellant had only been resident in the United Kingdom from 2006 onwards, and not earlier, and that the Upper Tribunal was entitled to refuse to admit the new evidence tendered at the hearing before it. We further conclude that, even if the Tribunals had been in error on those matters, the appellant’s imprisonment, which was effective from the date of his remand in custody, 13 June 2014, had the effect of interrupting any integrating links forged by him with the United Kingdom. On that basis, any error of law on the first two issues is immaterial. Finally, we conclude that CA’s Article 8 rights were adequately considered by the Tribunals, and are in any event protected under basic European human rights treaties.”