In a curious turn of events, the Home Office wrote to the Tribunal Procedure Committee late last year to ‘fess up to having mislead the committee about Home Office policy on withdrawal of decisions. This is an issue we’ve covered before on Free Movement because under the old procedure rules this could cause huge inconvenience to appellants and was wide open to abuse by the Home Office. Only today, for example, the presenting officer I was against was instructed to apply for an adjournment and if not granted then to withdraw the decision and try and kill the appeal that way.
In short, the Home Office had told the committee that “withdrawals should only occur where the intention is to grant”. The TPC now say in an unusual document released on 8 January 2015 that this information informed the drafting of rule 17(2) of the new procedure rules for the First-tier Tribunal Immigration and Asylum Chamber, which reads:
(2) The Tribunal must (save for good reason) treat an appeal as withdrawn if the respondent notifies the Tribunal and each other party that the decision (or, where the appeal relates to more than one decision, all of the decisions) to which the appeal relates has been withdrawn and specifies the reasons for the withdrawal of the decision.
Turns out the Home Office policy basically says nothing of the sort and there are many other reasons why the Home Office might seek to withdraw a decision. Such as if an adjournment application is refused, for example. Happily, the new rule 17(2) enables judges to press ahead with determining an appeal even if the Home Office does withdraw a decision, which is exactly what happened in my case this morning.
It may be that the clear ‘steer’ in the new rule 17(2) towards an appeal being treated as withdrawn is amended in future to more neutral language more in line with the overriding objective.