Waseem Anwar v The Secretary of State for the Home Department

How can an appellant withdraw an appeal that is before the Immigration and Asylum Chamber of the First-tier Tribunal? What is the role of the Tribunal in this process? These two questions arise for determination in the present case.

The appellant is a cit izen of Pakistan , born in 1990 . He appealed under the Immigration ( E EA ) Regulations 2006 against the decision of the respondent, on 10 November 2015, to refuse to issue the appellant with a residen ce card as confirmation of a right to reside in the United Kingdom as the extended family member of a person ( his brother in-law) present and exercising T reaty rights in this country.

On 26 September 2016, the appellant’s representatives , Britain Solicitors, wrote to the First-tier Tribunal as follows:-

On 28 September 2016, the First-tier Tribunal issued a written n otification recording the withdrawal.

On 5 October 2016, Britain Solicitors sent to the First-tier Tribunal “an application to reinstate appeal”. In it, they said:-

On 19 March 2018, First-tier Tribunal Judge Burnett considered the matter . He did so without a hearing , as the appellant had confirmed that he wanted the appeal to be decided in that manner .

In a careful decision, which included an analysis of the case law we shall address in due course, Judge Burnett found that there was “no evide nce that the request for the withdrawal of the appeal was not properly made by Britain Solicitors” (paragraph 17) . The judge concluded that the appeal had been withdrawn on 26 September 2016 and that he accordingly had no jurisdiction to consider the merits of the appeal. He therefore dismissed the appeal for want of jurisdiction.

In his grounds of appeal to the First-tier Tribunal , seeking permission to appeal to the Upper Tribunal, the appellant submitted that since the Notice of Withdrawal of 26 September 2016 , was not a judicial decision, bearing a judicial signature, the Notice of Withdrawal was invalid. The appellant relied for this proposition upon the decision of the Upper Tribunal (Hon. Mr Justice McCloskey, President ) in TPN ( F t T a ppeals - w ithdrawal ) Vietnam [2017] UKUT 00295 (IAC).

Permission to appeal to the Upper Tribunal against Judge Burnett’s decision was granted by the First-tier Tribunal. A n otice of heari ng was sent to the appellant, c/o Britain Solicitors, pursuant to their email of 4 June 2018 to the Upper Tribunal , in which they had said:- “Kindly direct all future correspondence to us” .

On 29 October 2018, the respondent informed the Upper Tribunal that the appellant had been removed to Pakistan on 1 August 2018 and that the respondent was not aware of his current address.

At the hearing on 7 December 2018, there was no appearance by the appellant or any representative of the appellant . The appellant had been notified of the hearing, at the correspondence address given by his representatives. In all the circumstances, the Upper Tribunal decided that it was appropriate to proceed in the absence of the appellant.

We observe that on 22 December 2018, Briton Solicitors (which appears to be the same entity as Brit ai n Solicitors) wrote to the Upper Tribunal to say that, according to their file, the appellant’s address was one in London E13 , which had been recorded several years earlier. This communication, however, made no re ference to the reason why the appellant had not been represented at the hearing on 7 December. Nor did it engage with whether the appellant ha d be en removed from the United Kingdom.

Rule 17 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (“the FtTIAC Rules”) provides as follows:-

The Procedur e Rules o f other Chambers of the First-tier Tribunal are in markedly different form s . For example, rule 17 of the Tribunal Procedure (First-tier Tribunal ) (Social Entitlement Chamber) Rules 2008, so far as relevant, reads :-

The releva nt rule governing withdrawals in the General Regulatory Chamber of the First-tier Tribunal is very similar , save that the requirement for the Tribunal to give its consent is not confined to any particular category of appeal. So too is rule 17 of the Tribunal Procedure (Upper Tribunal) Rules 2008, save that the consent of the Upper Tribunal is not needed in relation to withdrawal of an application for permission to appeal.

Rule 22 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) R ules 20 13 is somewhat different:-

each party has consented to, or has not objected to, the matter being decided without a hearing;

an asylum claim or a humanitarian protection claim, the Tribunal must provide, with the notice of decision in paragraph (2)(a), written reasons for its decision;

any other matter, the Tribunal may provide written reasons for its decision but, if it does not do so, must notify the parties of the right to apply for a written statement of reasons.

In AP (W ithdrawals – nullit y assessment) Pakistan [2007] UKAIT 0002 2 , the Asylum and Immigration Tribunal (Senior Immigration Judge Mackey and Immigration Judge Nicholson) w as required to determine, as a preliminary issue, whether a valid withdrawal of an appeal had taken place in an asylum appeal. The relevant procedur e rule at that time was r ule 17 of the Asylum and Immigration Tribunal (Procedur e ) Rules 2005:-

The AIT took note of what McDonald’s Immigration Law & Practice (6 ^th Edition) had to say about withdrawal and abandonment :-

The AIT also looked at the position in other jurisdictions:-

At paragraph 57, the AIT set out its conclusions:-

At paragraph 58, the AIT emphasised that there was no question of “re-instating” an appeal that had been validly withdrawn because once the withdrawal notice had been given to the Tribunal, the appeal was no longer pending before the Tribunal and that Tribunal had no further function. Accordingly:-

Having heard evidence, the AIT concluded, that, in the case before it, the appellant had suffered from various failures in the translation of relevant documentation. The appellant did not intend to withdraw her appeal but merely to note that her solicitor was withdrawing his representation. The A IT, accordingly, found that the r e “was an invalid withdrawal which we find to have no effect in law and should be thus treated as a nullity” (p aragraph 64).

In the present case, Judge Burnett paid close attention to the AIT’s decision in AP . However, he also had before him the decision of McCloskey J , President of the Immigration and Asylum Chamber of the Upper Tribunal, in TPN (FtT appeals – withdrawal) Vietnam [2017] UKUT 00295 (IAC), a decision taken by reference to the current rules regarding withdrawal ; namely, rule 17 of the FtT IAC Rules . As we have seen, the appellant relied upon TPN for his contention that, in the present case, the notice of w ithdrawal issued by the First-tier Tribunal was invalid and that, accordingly, Judge Burnett had been wrong in law to find he had no jurisdiction to determine the appeal on a substantive basis.

In TPN , counsel acting for the thirteen year old appellant who was appealing against the decision to refuse his international protection claim, withdrew the appeal at the appeal hearing before a First-tier Tribunal Judge. Counsel d id not provide the judge with any reasons for the withdrawal but the judge nevertheless sanctioned the withdrawal.

Following the hearing, a member of the Tribunal ’ s a dministrative staff issued form IA55, recording the withdrawal . By that time, however, the appellant’s solicitors had informed the First-tier Tribunal that counsel had acted without instructions. In apparent response to this information , form I A 55 , as issued by the Tribunal, contained the statement : “counsel took the view to withdraw perfectly and legitimately, in these circumstances there is nothing for the Tribunal to do. Solicitors should take it up with counsel”.

Having set out the relevant procedur e rules, McCloskey J turned to the Presidential Guidance issued by the First-tier Tribunal on the subject of withdrawal :-

The substantive parts of the decision in TPN were as follows:-

Rule 17 of the FtT Pr ocedural Rules establishes two mechanisms for withdrawing an appeal, namely the provision of a written notice of withdrawal or oral withdrawal at a hearing. I consider that the rule makers clearly had two distinct scenarios in contemplation, namely withdrawal in advance of a hearing, in writing and withdrawal on the day of hearing. In both instances, the central stipulation in rule 17 is uncompromising. The reasons for the withdrawal “ must ” be specified. This is expressed as a mandatory requirement, subject to no exceptions.

This mandatory requirement points up and reflects some of the hallmarks of tribunal litigation. Proceedings in tribunals involve the determination of the respective legal rights and obligations of the citizen and the State. The administration of justice in tribunals has, by long established tradition and culture, been designed to provide swift, uncomplicated and inexpensive adjudication. Litigants sometimes have no legal advice or representation and, on occasion, have representatives who may not necessarily be appropriately skilled or experienced in the relevant field of law. Furthermore, tribunal litigation, particularly in the discrete field of immigration and asylum, does not lend itself to the consensual resolution mechanisms of mediation or other forms of conciliation. Finally, at the first tier level, the appellant is always the citizen.

I consider that the TPC would have been alert to the various features of Tribunal proceedings highlighted above in devising Rule 17. The Committee was, presumptively, operating in the real world of tribunal proceedings. In my judgement many of the factors highlighted explain why the TPC considered judicial oversight and decision necessary in the matter of withdrawing appeals. Furthermore the TPC, in my view, clearly had in contemplation the need for judicial evaluation of the question of whether the Secretary of State’s withdrawal of the underlying decision should not operate to preclude judicial adjudication of for example an important issue of legal principle, statutory construction or practice and procedure. Fundamentally, I consider that rule 17 envisages and requires active and properly informed judicial involvement and decision making.

I develop this analysis as follows. The phrase “ the Tribunal ” is employed several times in the Rule 17 regime. Indeed – unsurprisingly – it appears repeatedly throughout the FtT Procedural Rules. It is undefined. In some contexts, “ the Tribunal ” denotes the administrative organisation of this judicialised entity. In others, it plainly denotes a judge of the Tribunal. Rule 17 provides a convenient illustration of this important distinction. The requirement to provide to the Tribunal a written notice – enshrined in Rule 17(1)(a) – clearly entails the provision of the document required to the Tribunal’s administration in the ordinary case. Similarly, the duty imposed on “ the Tribunal ” to provide the notification required by Rule 17(3) clearly envisages an act on the part of the Tribunal’s administration. However, I consider that in all other material respects the words “ the Tribunal ” in Rule 17, denote a judge of the FtT.

I elaborate on the above analysis in my outline of what Rule 17 means and requires, most conveniently formulated in tabular form:

An appeal can only be withdrawn by, or on behalf of, the appellant.

The requirement to provide the tribunal with the reasons in support of a proposed withdrawal clearly envisages that there will be judicial consideration.

If reasons are not provided, proper judicial consideration and oversight are not possible.

The combined effect of the notice provisions in Rule 17(i), the requirement of judicial oversight in Rule 17(ii) and the notice to be given in accordance with Rule 17(iii) is that the notice given by the appellant is the first step in the Rule 17 withdrawal process.

The best guidance available to the FtT judge in performing this function is what is contained in the Presidential Guidance Note ( supra ): the judge must be satisfied that the appellant is withdrawing the appeal freely and understands the consequences of withdrawal. This will not be so if, for example , it lacks coherence or is based on a material misunderstanding or misconception.

In practice, enhanced judicial vigilance is likely to be required in cases where the appellant is unrepresented.

The reasons must be such as to persuade the FtT Judge that the course proposed is appropriate.

In determining whether withdrawal is appropriate, the Judge will take into account ( inexhaustively ) that Tribunal proceedings do not partake of the essential characteristics of private law inter- partes litigation, with the result that withdrawal requires, in effect, judicial adjudication.

Fundamentally, the FtT Judge must be satisfied that there is good reason for the withdrawal.

There is no obligation on the FtT Judge to approve the proposed withdrawal. Quite the reverse: Rule 17 plainly contemplates that a proposal to withdraw may be refused.

Fundamentally, where the withdrawal of an appeal is proposed, this takes the form of an application to the tribunal requiring a judicial decision.

The exercise of juxtaposing Rule 17(i) and (ii) is instructive. Their phraseology is not identical. However, I consider that, in substance , they are indistinguishable. In both cases notice must be given, the notice must incorporate reasons, judicial scrutiny is then applied and the appropriate outcome follows. Withdrawal of the appeal is neither automatic nor preordained. I consider that in both cases the main purpose of judicial scrutiny is to protect the appellant. It has the further purpose of enabling detection of any misuse of the process of the Tribunal. Each of these purposes furthers the public interest.

The above analysis is fortified by the free standing provision in Rule 17(2) which is directed to the scenario where the Secretary of State decides to withdraw the decision under appeal. A decision of this kind is not binding on the FtT. Rather, it too requires judicial oversight and decision. This will entail scrutinising the reasons given for the withdrawal of the underlying decision and the evaluation of whether there is “ good reason ” not to permit the withdrawal of the appeal .

Thus every withdrawal of an appeal under Rule 17 requires a judicial decision. I can finding nothing in either the language of the Rule or the ascertainable underlying intention pointing to any other persuasive analysis or construction. The next question which I address is whether Rule 29 of the FtT Procedural Rules applies to a judicial decision under Rule 17. Rule 29 requires that a formal notice of decision must be provided. Where (as in the present case) an asylum claim or humanitarian protection claim is involved, this notice must incorporate or annex “ written reasons for its decision ” – per Rule 29(3)(a). In all other cases, the FtT must either provide written reasons or notify the parties of their right to apply for same – per Rule 29(3)(b).

Notably, Rule 17 contains no reference to Rule 29, while Rule 29 contains no reference to Rule 17. The analysis that Rule 29 is directed to the substantive determination of appeals is readily made. In my judgment, the contemplation of the TPC was that Rule 17 would operate as a discrete, free standing regime. This analysis is fortified by the significant contrast between Rule 17(3) and Rule 29(3) and (6). Thus the question ultimately becomes: what does Rule 17(3) require? Given my conclusion that the “notification” mandated by Rule 17(3) must be the product of judicial consideration and decision, it is impossible to escape the further conclusion that the notice to be given under Rule 17(3) must be composed, signed and dated by the Judge concerned. Second, having regard to the common law principles rehearsed in extenso in MK (Duty to Give Reasons) Pakistan [2013] UKUT 641 (IAC) I consider that the judicially composed notice of decision under Rule 17(3) must contain an outline of why the decision has been made. The TPC, in my estimation, cannot have contemplated a bare, perfunctory, conclusionary pro-forma.

What, in principle, will this require of the Judge? Context being everything, one immediately contrasts a decision of this genre with the substantive determination of an appeal. The key to answering this rhetorical question lies mainly, in the requirement enshrined in Rule 17(1)(b) that the “ reasons ” for the proposed withdrawal be provided by the moving party. I consider that, in all cases, the notice required by Rule 17(3) should explain why the FtT has decided that the reasons put forward are sufficient and satisfactory – or, as the case may be, are not. In the typical case nothing elaborate or unduly burdensome will be required of the Judge. Precisely the same analysis applies to a Notice of Decision under Rule 17(3) belonging to the Rule 17(2) scenario viz withdrawal by the Secretary of State of the underlying decision.

I apply my construction of Rule 17 to the factual matrix of this appeal in the following way. I do not accept that bare pro-forma notice to the Appellant and his legal representatives in the form which was sent in this case was compliant with either the letter or the spirit of the FtT Procedural Rules. The reason for that is that neither discloses any proper judicial consideration or any proper judicial act or judicial decision. Added to this the elementary requirement of a judicial signature has not been observed. The decision of the FtT is unsustainable in law on this ground alone. It suffers from the further, free standing infirmity that, in contravention of Rule 17, no reasons for the proposed withdrawal of the appeal were provided. It must be set aside in consequence.

The broader point of practice raised by this appeal is whether an appeal to the Upper Tribunal in this kind of context is appropriate. I am satisfied that it is. What occurred at first instance was in breach of the express and implied requirements of the Rules to the extent that the decision of the First-tier Tribunal is unsustainable in law. That per se renders it vulnerable to challenge on appeal to the Upper Tribunal.

The first thing to acknowledge is that the actual decision of the Upper Tribunal in TPN was manifestly correct. The First-tier Tribunal had been given information , shortly after the purported withdrawal of the appeal , which demonstrated that th e supposed withdrawal made by Counsel at the hearing, was, in fact, invalid because it had been made entirely without instructions. The factual matrix was, in short, very like that discussed in paragraph 18.105 of the 6 ^th Edition of MacDonald , as set out in the decision of AP . T he First-tier Tribunal should have undertaken a judicial evaluation of whether the purported withdrawal was valid.

Given its author, the decision in TPN deserves great respect. W e have , however, reluctantly but firmly concluded that TPN misconstrues rule 17 of the FtT IAC Rules . Our reasons are as follows.

In TPN, the President made reference to the Tribunal Procedure Committee which, pursuant to section 22 of the Tribunals, Courts and Enforcement Act 2007, makes procedure rules for the First-tier Tribunal and the Upper Tribunal. Schedule 5 to that Act contains further provision for such rules, including th at they are to be made by statutory instrument.

The FtTIAC Rules are, accordingly, delegated legislation and, as such, subject to ordinary principles of statutory construction.

One such principle is that words in a statute or statutory instrument should be given their ordinary meaning. Applying that principle , rule 17(1) can readily be seen to do two things; namely –

it enables a n appellant to withdraw their appeal, either by written notice or orally at the hearing; and

it requires the appellant to specify reasons for that withdrawal.

The requirement to give reasons does not have the effect of turning rule 17(1) into an applicatio n to the Tribunal to give its consent to the withdrawal. The requirement to “specify the reason for that withdrawal ” makes it plain that the giving of reasons is not a precondition for withdrawal. The withdrawal has taken place but the Tribunal is entitled to be told why.

If withdrawal under rule 17 of the FtTIAC Rules had been intended by the drafter to be subject to consent, then it is inconceivable that the rule would not have said so in terms. As we have seen, such a requirement is contained in the procedur e rules of other C hambers of the First-tier Tribunal an d in the Upper Tribunal Rules .

We must, therefore, reluctantly disagree with those findings in paragraph 22 of the decision in TPN which suggest the contrary; in particular, (vii) which requires the reasons to be “such as to persuade the FTT judge that the course propose d is appropriate ” ; (ix) which requires the FTT judge to be satisfied “that there is good reason for the withdrawal ” ; (x) which holds that rule 17 “plainly contemplates the proposal to withdraw may be refused”; and (xi) which speaks of a “form of … application to the Tribunal requiring a judicial decision”. None of th ese findings can be properly derived from rule 17. On the contrary, w hat TPN purports to do is create an entirely different rule , by means of judicial fiat .

We are fortified in our construction of rule 17(1) by the fact that the role of reasons in rule 17(2) is significantly different. There, the use of the word “if” makes the duty of the Tribunal to treat an appeal as withdrawn contingent upon the respondent doing two things; namely:-

n otifying the tribunal when each of the party that the decision… has been withdrawn; and

s pecifying the reasons for withdrawal.

At paragraph 23 of TPN , the President regarded the juxtaposition of rule 17(1) and (2) as demonstrating that “ in substance , they are indistinguishable” (original emphasis). We respectfully disagree. In our view, the juxtaposition of paragraphs (1) and (2) of rule 17 underscores the impermissibility of reading rule 17(1) in the way described in TPN .

Another principle of statutory interpretation is that recourse should not normally be had to background materials relating to the legislation in question un less the legislation is ambiguous or would lead to an absurd result, if read literally, Since, however, we are disagreeing with the decision in TPN , we set out in the A ppendix to our decision an extract from the published Reply of the Tribunal P rocedure C ommittee to the R esponse to the Committee’s C onsultation Paper on the proposed new FtT IAC Rules (October 2014).

As can be seen from th e extract , the Committee’s discussion of the requirement to give reasons in rule 17 focused entirely on rule 17(2). There is, so far as we are aware, nothing in the Reply to support the construction of rule 17(1) contained in TPN .

The purpose of the requirement in rule 17(1) to specify reasons for an appellant’s withdrawal is precisely that which was identified in the 6 ^th e dition of MacDonald ’s Immigration Law & Practice and which was elaborated by the AIT in AP . Th e requirement provides a mechanism whereby the Tribunal can see whether the withdrawal is a valid one. It rel ates to the Tribunal’s function under rule 17(3) of notifying each party in writing that withdrawal has taken effect.

What happens if the notice of withdrawal is not accompanied by reasons? As wit h any failure to comply with a requirement of the FtTIAC Rules, the Tribunal has power under rule 6 to take s uch action as it considers just, which may include waiving the requirement or requiring the failure to be remedied. In practice, the Tribunal’s administration can be expected to request reasons, where none have been provided.

The Tribunal’s response to the reasons given – or the failure to give reasons – will depend upon the nature of the case, including what is known about the appellant. If, for e xample, the appellant is a child (as in TP N ), the Tribunal is likely, through the mechanism of rule 6, to insist upon seeing reasons, before issuing a notification under rule 17(3).

In some cases , the Tribunal’s administration may well arrange for the matter to be put before a judge or a person exercising delegated judicial functions under rule 3. However, the fact that a judge or such a person may b e involved in the process at this point does not mean that any resulting rule 17(3) notification must therefore be regarded as a “ full-blown ” judicial decision. It remains merely a notification of something that has happened without the Tribunal’s input. It is , in other words, “of a formal or administrative nature”, within the meaning of rule 3(1).

The problems that arise if one concludes otherwise are, we consider, exposed by paragraphs 26-29 of TPN . If all rule 17(3) notifications are treated as reasoned judicial decisions, which dispose of proceedings in the First-tier Tribunal, then it is difficult to see why the requirements of rules 25 and 29 of the FtTIAC Rules should not apply to them. In paragraph 26 of TPN , the President nevertheless considered that “the contemplation of [the Tribunal P rocedure Committee] was that rule 17 would operate as a discret e, freestanding regime”. We agree. However, the interpretation adopted by TPN leaves it unclear on what principled basis rules 25 and 29 are to be disregarded .

Where the Tribunal consid ers that the reason given for withdrawal raise s an issue as to whether the appel lant’s notice of withdrawal is , in fact, legally valid , in the sense described by the AIT in AP ; or where it is subsequently asserted that the notice of withdrawal was not validly given in that sense, then the Tribunal should exercise its case man agement powers under rule 4 so as to decide the matter. At this point, the matter lies unarguably in the purely judicial realm. The task for the judge is to pronounce on the issue of validity. This will normally involve holding a hearing, as occurred in AP . It may, however, involve dealing with the matter without a hearing, such as happened in the present case, where Judge Burnett was informed by the appellant’s solicitors that they were content for the matter to be decided without a hearing. Judge Burnett was aware that rules 25 and 29 applied because he was engaged in a process that could result in a decision disposing of proceedings (as indeed it did).

So, in summary, our conclusions on rule 17(1) are as follows:

How the ensuing decision on the validity of withdrawal may be challenged will depend upon whether it falls to be categorised as an excluded decision for the purposes of section 11(5) of the 2007 Act. In the present case, Judge Burnett reached what can only properly be categorised as substantive decision, rather than a “procedural , ancillary or preliminary decision”, within the meaning of article 3 (n) of the Appeals ( E xcluded D ecisions) Order 2009. Accordingly, his decision that he did not have jurisdiction in the appeal , which resulted from his conclusion that the appellant had validly withdrawn that appeal on 26 September 2016, was appealable to the Upper Tribunal.

We consider it plain that Judge Burnett’s decision was correct. The appellant had validly withdrawn his appeal because he had decided to leave the United Kingdom. The fact that he later changed his mind could not affect the validity of that withdrawal. As the request from his solicitors disclosed, what the appellant was in fact attempting to do was to reinstate his appeal. But, as we have seen, that is not a course which is allowed under the FtTIAC Rules .

The m aking of the decision by the First-tier Tribunal did not involve the making of an error on a point of law. The appeal, is accordingly, dismissed.