PA/03638/2015

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The decision




Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03638/2015


THE IMMIGRATION ACTS


Heard at Bradford
Decision & Reasons Promulgated
On 21 September 2016
On 2 December 2016




Before

UPPER TRIBUNAL JUDGE CLIVE LANE


Between

Obied [E]
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent


Representation:

For the Appellant: Miss Pickering, instructed by Ison Harrison
For the Respondent: Mr Diwnycz, Senior Home Officer Presenting Officer

DECISION AND REASONS

1. The appellant, Obied [E], born on 1 July 1975 and is a male citizen of Iraq. The appellant appealed against a decision of the respondent dated 5 December 2014 to deport the appellant from the United Kingdom. The First-tier Tribunal (Judge Hillis), in a decision promulgated on 1 August 2016, dismissed the asylum and human rights (Articles 2/3/8) appeals but allowed the appeal "against the deportation order." Both parties have appealed against that decision although it appears that only the appellant had been granted permission (by Judge Dineen) on 17 August 2016. However, I was assisted by both Miss Pickering of Counsel and Mr Diwnycz (for the respondent) at the Upper Tribunal hearing on 21 September 2016. Both advocates told me that the decision of the First-tier Tribunal was, in their respective opinions, flawed and that the decision needed to be set aside. In particular, both parties consider that the judge erred in law at [49]. Judge Hillis was of the opinion that, pursuant to the Rehabilitation of Offenders Act 1974, the appellant's "nine months' sentence of imprisonment is spent after four years from the end of his sentence." As the respondent's grounds point out, Section 140 of the Legal Aid Sentencing and Punishment of Offenders Act 2012 specifically excludes, for immigration and nationality purposes, the operation of the Rehabilitation of Offenders Act 1974.
2. In addition, I find that the appellant's grounds are well-founded. The judge has not considered paragraph 398 or 399 of HC 395 (as amended). Likewise, the judge incorrectly took account of the possibility of the appellant making an out of country application from Iraq in circumstances where he would have been removed from the United Kingdom by deportation and thereby banned from applying for re-entry in the short term.
3. I set aside the decision of the First-tier Tribunal. Because the entire analysis appears to be faulty, I preserve none of the findings of fact. A new fact finding exercise will need to be undertaken. The appropriate forum for that procedure is the First-tier Tribunal.
Notice of Decision

The decision of the First-tier Tribunal as promulgated on 1 August 2016 is set aside. None of the findings of fact shall stand. The appeal is returned to the First-tier Tribunal (not Judge Hillis) for that Tribunal to re-make the decision.

No anonymity direction is made.


Signed Date 1 December 2016

Upper Tribunal Judge Clive Lane