Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2017] CSIH 42

XA100/16

 

Lady Paton

Lord Drummond Young

Lord Malcolm

OPINION OF THE COURT

delivered by LORD DRUMMOND YOUNG

in the appeal to the Court of Session under section 13 of the Tribunals, Courts and Enforcement Act 2017

by

ALEKSANDRS KOLOSOVS

Appellant

against a decision of the Upper Tribunal (Immigration and Asylum Chamber) dated 19 January 2016

 

Appellant:  Bovey QC;  Drummond Miller LLP

Respondent:  Maciver;  Office of the Advocate General

6 July 2017

Background

[1]        The appellant is a national of Latvia, born on 7 August 1984.  He claims to have entered the United Kingdom in 2004 in order to work and study, and to have remained since then.  He formed a relationship with a male partner, CA, in 2006.  On 3 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 were confiscated;  these were described as an airsoft shotgun and ammunition, carbon dioxide canisters and a BB pellet gun with ammunition.  On 14 October 2014 he was convicted of assaulting a police officer in the execution of his or her duty and assault to injury.  For that offence he was sentenced to imprisonment for 1 year and 8 months and was subjected to a Supervision Order for a further 10 months.  That sentence was backdated to 13 June 2014, the date when the appellant was remanded in custody;  we observe that this is the normal manner in which a court deals with a remand in custody when it passes sentence.  The assault involved the use of a BB pellet gun, which was confiscated along with its ammunition.  The sentencing sheriff noted that the appellant had shot the victim twice in the head with the BB gun;  the pellets had to be surgically removed from the victim’s scalp.  The sheriff described the attack as “calculated, cowardly and vicious”.

[2]        On 1 May 2015 the Home Secretary issued the appellant with a decision to make a deportation order on account of his criminal convictions.  The decision letter stated that the deportation order was to be made on grounds of public policy/public security in accordance with Regulation 19(3)(b) and Regulation 21 of the Immigration (European Economic Area) Regulations 2006.  The Home Secretary had written to the appellant on 11 December 2014 notifying him of her intention to make such an order.  In response he had submitted representations as to why he should not be deported.  Notwithstanding those representations, the Home Secretary decided in favour of deportation.

[3]        The appellant appealed against the decision to deport him to the First‑tier Tribunal, which on 27 August 2015 refused his appeal.  The appellant then appealed to the Upper Tribunal, but that appeal was refused on 19 January 2016.  The appellant has now appealed to the Court of Session against the decision of the Upper Tribunal under section 13 of the Tribunals, Courts and Enforcement Act 2007.

 

Legislation
[4]        The argument for the appellant is in large part founded on provisions of the Immigration (European Economic Area) Regulations 2006.  Those Regulations have been superseded by the Immigration (European Economic Area) Regulations 2016, but it is the earlier version of the Regulations that is material in the present case.  Part 4 of the 2006 Regulations deals with inter alia the removal of persons from the United Kingdom.  Regulation 19(3) is in the following terms:

“[A] person who has been admitted to, or acquired a right to reside in, the United Kingdom under these Regulations may be removed from the United Kingdom if –

…

(b) he would otherwise be entitled to reside in the United Kingdom under these Regulations but the Secretary of State has decided that his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21”.

 

Regulation 21 provides as follows:

“(1) In this regulation a ‘relevant decision’ means an EEA decision taken on the grounds of public policy, public security or public health.

 

…

 

(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….

 

(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”.

 

An EEA decision is defined in Regulation 2 as including a decision concerning a person’s removal from the United Kingdom.  Thus Regulation 21 applies to the decision to deport the present appellant.

[5]        A distinction is drawn in Regulation 21 between EEA nationals who have resided in the United Kingdom for a continuous period of at least 10 years prior to the decision to deport and persons, whether or not EEA nationals, who have not resided in the United Kingdom for such a period.  In the latter case, in accordance with Regulation 21(3), a decision to deport may be taken on serious grounds of public policy or public security.  In the former case, by contrast, in accordance with Regulation 21(4), a decision to deport may only be taken on imperative grounds of public security.  That amounts to substantially enhanced protection.  The primary issue in the present case is whether the appellant falls into the first of these categories or the second.  The First‑tier Tribunal concluded that the appellant was not entitled to the enhanced protection conferred by Regulation 21(4), and decided his case on that basis (paragraph 8).

[6]        The Immigration (European Economic Area) Regulations 2006 are based on Directive 2004/38/EC of the European Parliament and Council, dated 29 April 2004.  In the preamble to the Directive, matters of general consideration are stated at paragraphs (23) and (24).  It is acknowledged that the expulsion of Union citizens on grounds of public policy or public security is a measure capable of causing serious harm to individuals who have availed themselves of rights under the EU Treaty, and that the scope for such measures should therefore be limited in accordance with the principle of proportionality.  Furthermore, the greater the degree of integration in the host member state, the greater the degree of protection against expulsion should be.  Article 16 of the Directive provides that EU citizens who have resided legally for a continuous period of five years in a host member state are to have a right of permanent residence.  Articles 27 and 28 set out restrictions on the right of residence on the grounds of public policy, public security or public health.  Article 27.1 provides that member states may restrict the freedom of residence of EU citizens “on grounds of public policy, public security or public health”.  Article 27.2 states that such measures should comply with the principle of proportionality and should be based exclusively on the personal conduct of the individual concerned.  Previous criminal convictions should 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”.

[7]        Article 28 deals with protection against expulsion, and enumerates a number of considerations that should be taken into account before making a decision to expel an EU citizen.  Article 28.2 provides that an expulsion decision may not be taken against an EU citizen with a right of permanent residence “except on serious grounds of public policy or public security”.  That is the test that is contained in Regulation 21(3) of the 2006 Regulations.  Article 28.3 of the Directive provides that an expulsion decision may not be taken against EU citizens who have resided in the host member state for the previous 10 years unless the decision is “based on imperative grounds of public security, as defined by Member States”.  That test is repeated in Regulation 21(4) of the 2006 Regulations.  It is apparent that the UK legislation is in accordance with the relevant EU Directive.

 

Decisions of the First-tier Tribunal and Upper Tribunal
[8]        The First‑tier Tribunal heard oral evidence from the appellant and from CA;  this is narrated in its decision.  In the course of his oral evidence the appellant denied responsibility for the offence of police assault of which he was convicted on 14 October 2014.  We observe that it would require very strong evidence before a judge of the First‑tier Tribunal, acting in a deportation case, could contradict the verdict of a criminal court in such a matter, which has obviously been arrived at on a thorough consideration of the available evidence judged against the standard of proof beyond reasonable doubt.  In the present case the judge of the First‑tier Tribunal accepted that the appellant had been guilty of the offence in question, and took account of the remarks made by the sentencing sheriff, who had been troubled by the appellant’s attitude towards the offence.  The judge of the First‑tier Tribunal made the following findings (paragraph 7 of its decision of 27 August 2015):

“The appellant has claimed that he has been in the United Kingdom since 2004. In support of this claim the Appellant has produced a Home Office letter dated 1 October 2004 headed ‘Accssion State Worker Registration Scheme’. The letter advises the Appellant that his application has been approved and he is now registered in terms of the Scheme. The letter is addressed to the Appellant c/o Crosslee PLC based in Halifax, West Yorkshire. In oral evidence the Appellant claimed that he started work at the White Knight tumble dryer factory in Halifax in August 2004. He said that he worked there for 6-12 months and then changed jobs. If that is the case then it is very difficult to understand why there is no documentary evidence of this claimed employment. If the Appellant had not retained evidence of this claimed employment, then it should not have been difficult for him to contact the company and request a letter to assist his case. Furthermore, this claimed employment is not listed on the Appellant’s CV. The Home Office letter of 1 October 2004, on its own, is insufficient to satisfy me that the Appellant has in fact lived in the United Kingdom since 2004. When I consider all the evidence in the round, including [CA’s] evidence in respect of his relationship with the Appellant since 2006, I come to the conclusion that the Appellant has lived in the United Kingdom since 2006. [The Home Secretary’s representative] said that she accepted that the appellant has been here since that date”.

 

[9]        On the basis of those findings the First‑tier Tribunal held that the appellant could not come within Regulation 21(4) of the 2006 Regulations as he had not been in the United Kingdom for a continuous period of at least 10 years.  His case therefore fell to be considered under Regulation 21(3), and the relevant test was whether deportation was justified by “serious grounds of public policy or public security” (paragraph 8).  The First‑tier Tribunal decided that that test had been satisfied and that the Home Secretary had accordingly been entitled to deport the appellant.  The appellant had committed serious criminal offences in the United Kingdom (paragraph 16), and it was found that if he were allowed to remain he posed a genuine present and sufficiently serious threat to the interests of public policy and public security.  On that basis deportation was justified under Regulation 21.  It was accepted (paragraph 17) that deportation of the appellant to Latvia would potentially engage Article 8 of the European Convention on Human Rights, in respect of both the appellant and his partner.  Nevertheless, the Tribunal’s conclusion was that any interference would be in accordance with the law;  it pursued the legitimate aim of the maintenance of immigration control.  The interference with private life was proportionate in respect of that aim and the seriousness of the appellant’s offences.  Furthermore, the appellant’s most recent private life had taken place while he was in prison.

[10]      The Upper Tribunal referred at the outset of its decision (paragraph 3) to the question of whether the appellant was entitled to the enhanced level of protection under Regulation 21(4) or merely the ordinary level under Regulation 21(3).  They held that, even if it were assumed that the appellant was in the United Kingdom continuously from 2004 and exercising Treaty rights, it did not follow that he would be entitled to the enhanced protection arising from 10 years’ continuous residence (paragraph 25).  Reference was made to the decision of the Court of Justice of the European Union in Home Secretary v MG (Portugal), [2014] 1 WLR 2441, where it was held that periods of imprisonment might be discounted in assessing whether the 10‑year requirement was satisfied under Article 28 of the Directive 2004/38/EC.  The first task of the appellant was to show an error of law by the First‑tier Tribunal.  On that matter, the judge of the First‑tier Tribunal had noted the Home Office letter of 1 October 2004 informing the appellant that his application had been approved under the “Accession State Worker Registration Scheme”, but there was a discrepancy between that letter and the CV provided by the appellant, in which the earliest period of employment in the United Kingdom was stated as being from February to July 2005.  On that basis the judge had concluded that the Home Office letter of 1 October 2004 was, by itself, insufficient to show that the appellant had lived in the United Kingdom since 2004.  That was a conclusion which the judge had been entitled to reach upon the evidence before him for the reasons which he gave.  There was no error of law.

[11]      The Upper Tribunal added that the burden of proof was upon the appellant to establish residence in the United Kingdom; consequently any deficiency in the evidence would not lead to a finding that the appellant was in the United Kingdom.  Furthermore, the First‑tier Tribunal was entitled to reject the appellant’s evidence on the question of whether he had lived in United Kingdom since 2004.  He was entitled to have regard to the paucity of the documentary evidence relating to the period of alleged residence before 2006, including a lack of evidence from HMRC for this period as well as the apparent discrepancy between the CV and the Home Office letter.  The appellant had attempted to lodge a letter from HMRC (discussed at paragraph [15] below) dealing with the payment of NICs, but the absence of that from the evidence before the First‑tier Tribunal did not amount to an error of law.  In particular, it did not amount to an error sufficient to vitiate the decision of the First‑tier Tribunal (paragraph 34).

[12]      The Upper Tribunal further observed that, even if the appellant were able to show 10 years’ continuous residence in the United Kingdom, it did not follow that he would necessarily be entitled to the enhanced level of protection provided in Regulation 21(4)(a).  Although a decision was not required, in a case where the appellant had been convicted on two separate occasions of offences involving BB firearms, that was an indication that he had not respected the values of the society of the host member state, as reflected in its criminal law.  In that way any integrating links forged with the host member state would have been broken (paragraphs 28 and 38).

 

Issues
[13]      The appeal against the decision of the Upper Tribunal raises four issues.

1. Whether on the evidence available to it the First‑tier Tribunal had erred in law in failing to hold that the appellant had been lawfully resident in the United Kingdom since 2004, or at least 2005; and by extension whether the Upper Tribunal had erred in law in upholding the decision of the First‑tier Tribunal.
2. Whether the Upper Tribunal had erred in law in refusing to admit fresh evidence tendered by the appellant in the course of the hearing before it, and 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.
3. Whether any error falling under either of the two foregoing categories was material in the light of the following factors: (i) the backdating of the appellant’s sentence to 13 June 2014, which is the date upon which he was remanded in custody in connection with the charges leading to his imprisonment on 24 November 2014, and in particular whether a backdated sentence interrupts the 10 year period that is relevant for the purposes of Regulation 21(4)(a) of the 2006 Regulations; (ii) whether the extent to which a prison sentence interrupts the 10‑year period is absolute or a matter of circumstances; (iii) the finding by the Upper Tribunal that any integrating links forged by the appellant the United Kingdom had been broken in consequence of the prison sentence.
4. Whether the Upper Tribunal erred in law in upholding the First‑tier Tribunal’s consideration of CA’s rights under Article 8 of the European Convention on Human Rights, 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.

 

Residence
[14]      The first issue relates to the finding of the First-tier Tribunal that the appellant’s residence in the United Kingdom only began in 2006.  In arriving at that finding, the First‑tier Tribunal considered the whole of the material placed before it, as is apparent from the passage in its decision quoted at paragraph [8] above.  It had regard in particular to the appellant’s oral evidence and that of CA, and also to the Home Office letter of 1 October 2004 dealing with the appellant’s employment in the United Kingdom.  In upholding the First‑tier Tribunal’s decision, the judges of the Upper Tribunal noted that the First‑tier Tribunal had been entitled to have regard to the relative lack of documentary evidence for the period before 2006 and to draw inferences from the absence of such evidence.

[15]      For the appellant it was submitted that, although the letter of 1 October 2004 was addressed to the appellant “c/o Crosslee PLC”, the appellant had given oral evidence that he worked at the White Knight tumble dryer factory in Halifax, through an employment agency, Flame Employment, and that the White Knight business was owned by Crosslee PLC.  It was further submitted that the Home Office letter of 1 October 2004 had been accompanied by a certificate, to which the First‑tier Tribunal had not referred;  the certificate recorded the appellant’s employer as “Flame Employment c/o Crosslee Plc”, and gave the job start date as 9 August 2004.  It is correct that the First‑tier Tribunal does not refer to the certificate as such, but merely to the letter from the Home Office of the same date.  Nevertheless we cannot regard this failure as material.  The certificate and the letter were issued on the same date, it would appear simultaneously;  consequently it is likely that the First‑tier Tribunal would have both the certificate and the letter.  The First‑tier Tribunal rejected the appellant’s evidence on his employment in 2004 primarily on the ground that it was difficult to understand why there was no documentary evidence of the claim of employment at the White Knight factory:  see paragraph 7 of the Tribunal’s decision, quoted at paragraph [8] above.  The Tribunal pointed out that if the appellant had not retained evidence of his claimed employment it should not have been difficult for him to contact his employer and request a letter to assist his case.  That seems to us to be obvious.  The same applies to the alleged link between Crosslee PLC and the White Knight business.  The First‑tier Tribunal further relied on the fact that the claimed employment with White Knight was not listed in the appellant’s CV.  The Tribunal were obliged to proceed on the basis of the evidence before them, and that is exactly what they did.  For these reasons we are of opinion that the lack of any express reference to the Home Office certificate is immaterial, and neither that failure nor any failure to consider possible ownership of White Knight by Crosslee amounts to an error of law.

[16]      Furthermore, the Upper Tribunal observed (at paragraph 29) that the appellant’s CV had stated that he had been employed by White Knight from February to July 2005, and that after July 2005 on his own evidence the appellant was not employed again until February 2006.  The judge of the First‑tier Tribunal had stated that the appellant had produced no documentary evidence relating to any employment in 2004, and no such evidence was noted on the appellant’s CV.  On that basis, we are of opinion that the Tribunals were fully justified in coming to the conclusion that the appellant had not been resident in the United Kingdom, at least on a continuous basis, until 2006.  Continuity of residence is of course essential to establish the period of 10 years’ residence required for the enhanced protection in Regulation 21(4)(a).

 

Evidence
[17]      The Upper Tribunal refused to admit new evidence consisting of a letter from HMRC dated 25 October 2015, which stated that the appellant had “12 qualifying years up to 5 April 2015”.  A “qualifying year” was defined as a year in which sufficient NICs have been paid or credited to count towards benefits.  Under Rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules (SI 2008/2698) the Upper Tribunal had the power to admit this letter.  Under that rule, however, a party who wishes to have new evidence considered should send or deliver a notice to the Upper Tribunal and to any other party. In this case no such notice was sent or delivered.  The Upper Tribunal has a dispensing power that permits it to overlook lack of compliance with the Rules.  It did not exercise the dispensing power. It is apparent, however, that no reason was advanced for the absence of that information at the hearing before the First‑tier Tribunal, and the burden of establishing the appellant’s claim lay on him and his advisers.  Furthermore, the Upper Tribunal had regard to the earlier decision in MM v Home Secretary, [2014] UKUT 00105 (IAC), in which the issue of procedural fairness is discussed at length with particular reference to whether a mistake as to the availability of particular evidence might amount to an error of law.  The Upper Tribunal concluded (paragraph 34) that in the circumstances of the present appeal any mistake as to the availability of evidence was not such as to amount to unfairness sufficient to vitiate the decision of the First‑tier Tribunal.  In those circumstances, we are not persuaded that the Upper Tribunal erred in law in refusing to receive this letter.

[18]      Moreover, the letter in question merely indicated that the appellant had paid modest NICs during the tax years 2004/05 and 2005/06:  £434.21 in the former and £177.61 in the latter year.  That indicates that the appellant was present in the United Kingdom during at least part of the years in question, but the low amount of the contributions tends to indicate that he was not in full-time employment throughout the year.  Thus the information about NICs does not demonstrate continuous residence during the period in question.  For this reason we consider that the letter was of very limited materiality.  This reinforces the view that the Upper Tribunal did not err in law in refusing to receive the letter.

 

Sentence
[19]      The appellant is only entitled to the enhanced protection accorded by Regulation 21(4)(a) of the Immigration (European Economic Area) Regulations 2006 if he has been continuously resident in the United Kingdom for 10 years prior to the decision to remove him.  The decision to deport the appellant was intimated to him on 1 May 2015.  The effect of a sentence of imprisonment on continuity of residence for the purpose of legislation passed to implement Directive 2004/38/EC (which includes the 2006 Regulations) was considered by the Court of Justice of the European Union in Home Secretary v MG (Portugal), supra.  The Court held that the 10‑year period of residence necessary for the grant of the enhanced protection provided for in Article 28(3)(a) of the Directive must be calculated by counting back from the date of the decision ordering a person’s expulsion (paragraph 24).  The 10‑year period of residence referred to in that provision must in principle be continuous, calculated by counting backwards in that way (paragraph 28). The Court then commented:

“32 Since the degree of integration of the persons concerned is a vital consideration underpinning both the right of permanent residence and the system of protection against expulsion measures established by Directive 2004/38, the reasons making it justifiable for periods of imprisonment not to be taken into consideration for the purposes of granting a right of permanent residence or for such periods to be regarded as interrupting the continuity of the period of residence needed to acquire that right must also be borne in mind when interpreting Article 28(3)(a) of that Directive.

 

33 It follows that periods of imprisonment cannot be taken into account for the purposes of granting the enhanced protection provided for in Article 28(3)(a) of Directive 2004/38 and that, in principle, such periods interrupt the continuity of the period of residence for the purposes of that provision”.

 

Those statements are in our opinion of importance.  They indicate that periods of imprisonment do not normally count towards the 10-year period of residence that is necessary to obtain enhanced protection under Regulation 21(4)(a) of the 2006 Regulations.

[20]      The Court in MG went on to consider the practical details of the calculation of the 10‑year period (paragraphs 34‑38).  The 10 year period must in principle be continuous, and an overall assessment of the situation must be made at the precise time when the question of expulsion arises.  Periods of imprisonment may, together with other relevant factors, be taken into account by national authorities to determine “whether the integrating links previously forged with the host member state have been broken, and thus for determining whether the enhanced protection provided for in that provision will be granted” (paragraph 36).  Furthermore, a period of imprisonment is in principle “capable both of interrupting the continuity of the period of residence for the purposes of [Article 28(3)(a) of the Directive] and of affecting the decision regarding the grant of the enhanced protection provided for thereunder, even where the person concerned resided in the host member state for the 10 years prior to imprisonment” (paragraph 38).  It follows that a sentence of imprisonment, at least of a significant nature, may in some cases be capable of negating the effects of 10 years’ continuous residence even after that period has expired.

[21]      In the present case the appellant was sentenced to 1 year and 8 months’ imprisonment following his conviction on 14 October 2014, but his sentence was backdated to 13 June 2014, the date when he was originally remanded in custody.  In our opinion the effective date of that sentence is 13 June 2014.  The remand in custody resulted from a judicial act, and the period spent in custody on remand was in accordance with usual practice counted towards the sentence for the underlying offence.  At the material time the appellant would normally have been released when he had served half of his sentence, which would occur on 13 April 2015.  The appellant’s contention is that he has been continuously resident in the United Kingdom since August 2004.  The 10 year period must, however, be assessed by counting backwards from the decision to deport, made on 1 May 2015.

[22]      During that 10 year period, the appellant had been in custody between 13 June 2014 and, probably, 13 April 2015.  On that basis the continuous 10‑year period had been broken.  Moreover, it was broken as a result of a sentence for a relatively serious offence, police assault using a weapon.  The victim of the assault required surgical treatment.  Furthermore, it was not the appellant’s first conviction for an offence involving a similar weapon.  It is not to the point that the weapon, a BB gun, was not the most serious;  it was still capable of causing serious injury, and could not be construed as an “adult toy”, as the appellant apparently contended.  On this basis, and in accordance with the principles laid down in the European Court of Justice in MG, we are of opinion that the effect of the sentence was to break the appellant’s integrating links with the United Kingdom.  The Upper Tribunal referred to the decision in MG (paragraphs 25 et seq), and noted specifically that, even if the appellant had succeeded in showing 10 years’ continuous residence in the United Kingdom, it did not necessarily follow that he would have been entitled to the enhanced protection from expulsion (paragraphs 28 and 38:  see paragraph [12] above).  In our opinion that opinion was fully justified, albeit that it was expressed on an obiter basis.  For this reason we are of opinion that, even if the First‑tier Tribunal and Upper Tribunal had been in error on the other arguments presented to them, such error was not material, as the requirements of the 10 year period had not been met.

 

Article 8
[23]      The last argument for the appellant was based on the rights of his partner, CA, under Article 8 of the European Convention on Human Rights.  It was contended that the Upper Tribunal had not considered CA’s Article 8 rights, as they were obliged to do: see Beoku‑Betts v Home Secretary, [2008] UKHL 39;  [2009] 1 AC 115.  CA was described as a British citizen in his late 50s who had lived in the United Kingdom all his life.  The question arose as to whether it was proportionate to expect him to leave his life in the United Kingdom to maintain his relationship with the appellant.  He did not speak Latvian.  Furthermore the Latvian Constitution had been amended to provide expressly that marriage is between a man and a woman, in order to prevent the recognition of same‑sex marriage.  The Latvian Parliament had voted against an amendment to the labour law which would have prevented discrimination on the basis of sexual orientation, even though such a provision had been a condition of Latvia’s accession to the European Union in 2004.  It was contended that the First‑tier Tribunal had failed to consider the position of the appellant and CA.

[23]      The First‑tier Tribunal expressly considered the relationship between the appellant and CA (paragraph 14).  It found that the relationship was genuine, nevertheless, CA had stated that he was hoping to retire early, and the Tribunal concluded that there were few obstacles to the appellant and CA’s going to Latvia and for their family life to continue there.  The Upper Tribunal rejected an argument that the First‑tier Tribunal had not taken adequate account of the relationship between the appellant and CA (paragraph 36).  The Upper Tribunal noted that the First‑tier Tribunal had taken account of all the factors presented to it, including the relationship between the applicant and CA.

[24]      In our opinion it cannot be said that the Upper Tribunal erred in this respect.  Both Tribunals were aware of the relationship, and concluded that it was practicable for CA, if he wished, to go to Latvia with the appellant.  That appears to us to be a reasonable and proportionate conclusion.  The appellant founded on the treatment of same‑sex relationships in Latvia.  Nevertheless, Latvia is a signatory to the European Convention on Human Rights, and as a member of the state of the European Union it is bound by the Charter of Fundamental Rights of the Union.  The Convention and the Charter ensure that proper human rights standards are maintained; if necessary the legislation in a particular country can be challenged before either the European Court of Human Rights or the Court of Justice of the European Union.  Furthermore, in the submissions for the appellant stress was placed on the fact that there was no scope for same‑sex marriage in Latvia, but it was not suggested that the appellant and CA were in either a civil partnership or a same‑sex marriage. Consequently that contention does not appear material.

 

Conclusion
[25]      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.  We accordingly refuse the appeal.