Upper Tribunal (Immigration and asylum chamber), 2022-03-29, DA/00290/2019
| Jurisdiction | UK Non-devolved |
| Date | 29 March 2022 |
| Published date | 13 April 2022 |
| Hearing Date | 15 February 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | DA/00290/2019 |
Appeal Number: DA/00290/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00290/2019
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On the 15 February 2022 |
On the 29 March 2022 |
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Before
THE HONOURABLE MRS JUSTICE ALISON FOSTER DBE
(SITTING AS A JUDGE OF THE UPPER TRIBUNAL)
UPPER TRIBUNAL JUDGE BLUM
Between
the secretary of state for the home department
Appellant
and
MAXSIMS BOIKOVS
Respondent
Representation:
For the Appellant: Mr. T. Melvin, Senior Home Office Presenting Officer
For the Respondent: Mr. A. Boyd, Temple and Co Solicitors, Glasgow
DECISION AND REASONS
ISSUE
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This is an appeal by the Secretary of State for the Home Department (“SSHD”) against a decision of the First-Tier Tribunal (FTT) promulgated on 26 August 2021. The FTT allowed the Applicant’s appeal against the SSHD’s decision to deport him dated 29 November 2018, supported by supplemental reasons in letters of 3 September 2019 and 30 June 2021.
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The Respondent to this appeal is a national of Latvia who was born on 13 November 1999. Following conviction for grievous bodily harm and other violence and drug-related offences committed between April and November 2017, the SSHD made the removal decision under challenge. The Respondent, who was aged 17 and just 18 at the time of the offending was sentenced to 14 years in a Youth Offenders’ Institution (“YOI”).
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The issue before the judge below was the applicability of the Immigration (European Economic Area) 2016 Regulations (“the Regulations”) to the facts of the case and in particular Regulations 23(6)(b) and 27, governing protections from deportation for EEA nationals. The judge decided, notwithstanding the seriousness of the Respondent’s offending, that his removal was not justified on imperative grounds of public security.
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The SSHD argues that errors of law were made in the decision of the judge of the First-Tier Tribunal which require this tribunal to set aside the determination. She challenges the findings that the Respondent was entitled to “imperative grounds” protection for removal and challenges the FTT’s finding that the SSHD could not show he should nonetheless be removed. She raises an alternative case that the finding that removal was disproportionate also evinced an error of law. Her case is that the conclusions reached by the FTT on the evidence were not open to the judge, were inadequately reasoned, and inconsistent with case law.
FACTUAL BACKGROUND
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As the judge recorded, there was little dispute as to the relevant facts. Given the SSHD’s perversity challenge, it is important to record them carefully, as the judge did.
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The Respondent was born in Latvia on 13 November 1999 moving to the UK with his parents and siblings in about 2004 or 2005 and acquiring a right of permanent residence. He obtained some qualifications at school including a BTEC and NVQ level I and had worked for a short period of time; but, as the FTTJ put it “after that spent his time dealing drugs”. In 2017 the Respondent “set about a course of serious criminal offending, committed in the context of violence between two gangs of drug dealers operating in and around Bedford.”
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The Respondent’s first offences, when he was 17½, were 3 counts of possession of a class A drug with intent to supply, and a failure to surrender to bail. They were the subject of a twelve month referral order in each case. This offending took place in April and June 2017, although it is fair to record, as did the judge, that the Crown Court found likely drug involvement during 2016.
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The Respondent has not been at liberty since about 23 November 2017 following his arrest.
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He was convicted as set out above of the initial offences committed in April 2017. The most serious offence was committed next, on 17 June 2017, although it did not come to trial until January 2019. He stood trial in the meantime, in April 2018, for offences committed in November 2017 and on his plea of guilty to GBH and other offences relating to drugs, the Respondent was sentenced to 20 months detention. The judge set out the following description of that offence from the OASys Report of 6 August 2019:
“At approximately 2:30 PM, the victim … was walking with his partner along Nicholls Road. A vehicle passed him slowly and he recognised Mr Boikovs as the driver. He knew him, as Mr Boikovs had an issue with him as he blamed him for being the offender in a robbery that he was a victim [of] earlier that year. [The victim] was aware Mr Boikovs talked about him as a “dead man walking”. [The victim] stated that as the vehicle passed he [saw] gun signs made at him. He felt threatened and told his partner to walk off, but she refused. The vehicle came to a stop and reversed quickly. Mr Boikovs then drove at him and he fell onto the bonnet. He next recalls waking up on the floor with the car gone. He attended the hospital later that day due to the pain he was in. He sustained broken bones on his left foot, a graze to his right temple, bruised his right hip, lump to his head and grazes to his right arm.”
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On 21 January 2019 the Respondent was convicted of the most serious offences: violent disorder, wounding with intent to do grievous bodily harm, and possession of a bladed article. The judge set out details of the offences from the presentence report thus:
“… The case relates to a number of violent assaults between two distinct groups of drug dealers who are all from guns and gangs backgrounds. The offences are extremely violent in nature and include a number of GBH knife and machete attacks, one of which almost severed the hand of a 16-year old male. This then escalated to the shooting of a rival gang member along with a relative who fled to avoid potentially fatal injuries. Mr Boikovs and Mr Romain are associated with the group A according to the prosecution documents, which operated as the Mild Road gang. The Group C was the Kempston Block gang… The events of 17 June 2017 were described as a reprisal attack by Group A on Group C for [a previous attack]. At about 7:45 PM that day Mr [B] sustained a serious injury to his left hand/wrist, which is described as a life changing injury. CCTV from Hawkins Road, Bedford shows two males identified as Mr Boikovs and Mr Romain entering Hawkins Road and walking towards Elstow Road. Minutes later they are seen running back out of Hawkins Road, Mr Romain having a conversation on his phone and Mr Boikovs holding what appears to be a machete.”
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The judge reflected that the victim was a 16-year-old, and it appeared not to have been established whether Mr Boikovs or Mr Romain, who was some years older, inflicted the machete injury: they were convicted on the basis of a joint enterprise. The judge referred in extenso to the trial judge’s sentencing remarks and the “toxic combination of gang association, the use of knives or guns in the furtherance of their rivalry, and fuelled by the drug trade” as a “blight upon life in this country”. Although gang activity was denied, including by the Respondent, the Crown Court judge was sure this was gang activity and found that the Respondent and Mr Romain were working together as drug dealers within a wider organised structure over a fourteen-month period. The trial judge’s comments made clear the use of a machete was no less serious than the firing of a shotgun because it put somebody’s life in imminent danger: the victim had grievous injuries that could not be overstated. It was clear that the comments concerning the older co-defendant, Mr Romain, applied also to the Respondent. Because of his youth, a sentence of 14 years detention in a YOI was passed as stated, 4 years for violent disorder and 12 months for possession of a bladed article, which sentences were concurrent. The Crown Court judge held the criteria for an extended sentence were met but because of the age of the Respondent, did not impose one. Mr Romain, an adult, was additionally given a 3 year extended sentence, receiving a total of 18 years imprisonment.
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The Respondent did not reply to an invitation to make representations against deportation sent by the SSHD in June 2018. By her decision of 28 November 2018 the SSHD determined pursuant to Reg 23(6)(b) of the Immigration (European Economic Area) 2016 that the Respondent should be deported on grounds of public policy and public security. The Deportation Order was dated 3 May 2019. When the Secretary of State for Justice indicated he was considering an application, now, to transfer the Respondent to a prison in Latvia, the Respondent did make representations, indicating the length of time he had been in the UK, that he did not speak Latvian and that he had no family there. An appeal was lodged, and further reasoning was advanced by the SSHD in support of the removal.
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The SSHD considered the Respondent’s case within the framework of the Regulations. In essence, whilst accepting the Respondent had a right of permanent residence in the UK, at that stage the SSHD did not accept the fact of his residence here for a continuous period of ten years and disputed that the Respondent was entitled to the highest...
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