Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/01909/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26 January 2017
On 10 February 2017

Before

UPPER TRIBUNAL JUDGE MCGEACHY

Between

the Secretary of State for the Home Department
Appellant
and

robin Reichelt
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr T Wilding, Home Office Presenting Officer
For the Respondent: Mr A Vaughan, Wilson Solicitors LLP

DECISION AND REASONS
1. The Secretary of State appeals in this case against a determination of Judge of the First-tier Tribunal Davey who in a determination dated 4 November 2016 allowed the appellant's appeal against a decision to refuse to revoke a deportation order. In this determination I will refer to the secretary of State as she was the respondent in the First-tier and to Mr Reichelt as the appellant.
2. The determination is very short. What is the clearest material error in the determination is that the judge, although he makes a brief reference to paragraph 399(b) of the rules in paragraph 2 of the determination and to the term "unduly harsh" in paragraph 21 does not appear to engage either with the provisions of Section 117C of the 2002 Act, nor the Rules. Indeed, he does not appear to place weight or to consider the public interest in the deportation of this respondent who had been involved in a sophisticated and serious crime on the Inland Revenue.
3. The sentencing remarks of His Honour Judge Rawles are detailed and emphasised the way in which the crime, which related to a very substantial sum of money from which the Inland Revenue was defrauded, had been carried out in a cold and calculated way. He noted that the respondent had been a man of good character, noted his business dealings, but considered that his crime was a sufficiently serious one for him to be given a sentence of 45 months: that is on any accounts a substantial sentence.
4. The judge did not engage with that factor, and although Mr Vaughan has argued that the fact that the judge's term of exceptionality or exceptionally in paragraph 22 of the determination meant that he had considered the public interest, that is not evident to me. Moreover, in assessing the issue of unduly harsh the judge on the deportation of the respondent both effectively on himself and on Mr Ainsworth, the judge did not take into account all relevant facts, including the support system there would be for Mr Ainsworth should the respondent be deported. Moreover, he made no reference to the determination of the Immigration Judge who dismissed the appellant's appeal in 2010.
5. There is simply a lack of factual findings in this case as well as a lack of application of the relevant law, which means this determination cannot stand, moreover the lack of findings and engagement with the law is such that, in accordance with the Senior President of Tribunal's Practice Directions I consider this is an appeal which should be heard de novo in the First-tier.
6. I note that the appellant cross appealed claiming that the Judge had erred in not finding that the appellant and Mr Ainsworth would suffer Article 3 ill- treatment if the appellant were returned to Australia. While I can see no merit in that application and therefore refuse it, it is a matter which the appellant may wish to argue before the First-tier when the appeal is heard de novo.

DIRECTIONS
I direct that the appeal be heard de novo at Taylor House with a time estimate of three hours.
No anonymity direction is made.

Signed Date: 9 February 2017

Upper Tribunal Judge McGeachy