Tribunal decisions

The decision

IAC-AH-KEW-V3

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/08148/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4 January 2017
On 9 February 2017

Before

UPPER TRIBUNAL JUDGE ALLEN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

BLEDAR MZIU
(anonymity direction not made)

Respondent

Representation:

For the Appellant: Mr K Norton, Senior Home Office Presenting Officer
For the Respondent: Ms D Dhaliwal, instructed by Bedfords Solicitors

DECISION AND REASONS

1. The Secretary of State appeals with permission to the Upper Tribunal against the decision of a Judge of the First-tier Tribunal who allowed the appeal of the respondent Mr Mziu against the Secretary of State's decision of 28 July 2016 refusing his human rights claim. The judge allowed the appeal on the basis that in his view the Secretary of State had applied the wrong Rules and therefore the matter was remitted back to her with a direction to re-make the decision taking the appropriate Immigration Rules into account.

2. In her challenge to this decision the respondent contended that the judge had dismissed the appeal because he had concluded that Mr Mziu was not a "foreign criminal" because he had not been sentenced to twelve months' imprisonment. The point was made this was not an automatic deportation under section 32 of the 2007 Act but a deportation on non-conducive grounds. It was contended accordingly that the decision was in accordance with the law contrary to the judge's findings. Permission to appeal was granted by a Judge of the First-tier Tribunal.

3. Mr Norton relied on the grounds. Ms Dhaliwal, who had appeared below, said that the matter raised in the grounds had not been raised on the day. She said that Mr Mziu faced a real dilemma because either way another decision would be made and he sought finality. He had been hospitalised recently. He preferred that the decision would not be interfered with and that the Secretary of State should make a fresh decision taking proper consideration of his medical circumstances. There had been compelling evidence to the court from the Albanian Ministry of Health that they did not have the facilities to deal with his condition.

4. By way of reply Mr Norton argued that the wrong test had been applied and it was not clear that the same conclusion would have been reached if the right test had been applied.

5. I reserved my decision.

6. The judge concluded that, with regard to the underlying deportation decision, which had been made on 14 January 2016, a person to be deported as a foreign criminal had to be a foreign criminal. However, from the provisions of section 117D(2)(b) of the 2002 Act that the judge quoted, since the appellant had received a sentence of only eleven months for the index offence he was not a foreign criminal since this required him to have been sentenced to a period of at least twelve months. Accordingly the judge concluded that the Secretary of State had applied the wrong Rules.

7. The point is made in the grounds however quoting from the notice of decision, that he was deported on the basis that his deportation was conducive to the public good, and with regard to criteria set out at paragraph 398 of HC 395, this included, in the definition of "foreign criminal" a person who, under section 117D(2)(c)(ii) "has been convicted of an offence that has caused serious harm." It is clear from the decision letter that the appellant's deportation is deemed to be conducive to the public good and in the public interest because he had been convicted of an offence which had caused serious harm. It is relevant also to note, as is set out in the grounds, that part of the definition of "foreign criminal" includes a person who "has been convicted of an offence that has caused serious harm."

8. This was not a matter that was addressed by the judge who limited his consideration to the concept of "foreign criminal" to a person who has been sentenced to a period of imprisonment of at least twelve months. Although I have every sympathy with Mr Mziu's wish to achieve finality in these proceedings, it is necessary that the proper procedures be gone through. The judge's decision cannot be upheld because it is marred by an error of law, and as a consequence the matter will have to be remitted to a First-tier Judge other than the judge who heard the appeal on 14 October 2016, to make a proper determination in the context of the correct legal tests. No doubt all the relevant evidential matters to which Ms Dhaliwal referred will be put before the judge on that occasion so that a proper decision can be reached. As a consequence therefore the disposal of this appeal is that it is allowed to the extent that the matter is remitted for re-hearing before a First-tier Judge in Birmingham.

No anonymity direction is made.

Signed Date

Upper Tribunal Judge Allen