OA158382012

This is an appeal by the appellant against a decision of the First-tier Tribunal issued on 28 November 2013 dismissing his appeal against the respondent�s decision of 26 June 2012 to make a deportation order under the provisions of s.32(5) of the UK Borders Act 2007 following the appellant�s conviction on 28 February 2012 at Carlisle Crown Court of fraudulent embezzlement for which he was sentenced to 1 year 6 months� imprisonment. Permission to appeal was refused by the First-tier Tribunal but granted by the Upper Tribunal on 24 June 2014.

On 13 August 2014 DUTJ Garratt found that the First-tier Tribunal had erred in law such that its decision should be re-made on human rights grounds only. His reasons were as follows:

On 24 th June 2014 Upper Tribunal Judge Pitt gave permission to the appellant to appeal against the determination of Judge of the First-tier Tribunal Lobo in which he dismissed the appeal on all grounds against the decision of the respondent to make a deportation order against him on the basis that Section 32(5) of the UK Borders Act 2007 applied.

Mr Hart confirmed reliance upon the grounds I have summarised above. He emphasised that the judge failed to consider that the appellant would remain in the United States and his children in the United Kingdom rather than wrongly identifying (paragraph 26(o)) the issue as the disadvantage which the children would suffer if they moved to America.

In conclusion Mr Hart emphasised the decision of the Upper Tribunal in Sanade and Others (British children � Zambrano � Dereci) [2012] UKUT 48 (IAC) emphasising that the appellant�s wife had not thought of going to the United States. On this basis an incorrect proportionality assessment had been made.