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A respondent cannot withdraw an appeal, confirms the Upper Tribunal

A respondent cannot withdraw an appeal, confirms the Upper Tribunal

“Be careful what you wish for!”, could be the headline for the case of Ahmed (rule 18; PTA; Family Court materials) Pakistan [2019] UKUT 357 (IAC).

Haseeb Ahmed, a Pakistani citizen, was initially refused an application for leave to remain by the Secretary of State. He won his appeal at the First-tier Tribunal, but the Secretary of State was granted permission to appeal to the Upper Tribunal. Shortly before the date of the appeal hearing, Mr Ahmed’s solicitors wrote to the tribunal asking to withdraw the appeal, so that they could submit a new application for leave to remain for their client.

I do not blame the solicitors for the mistake, which I am sure many would make, but they simply had no appeal to withdraw, as the Secretary of State was the party who appealed.

Instead, the Upper Tribunal treated the request as meaning that Mr Ahmed was no longer going to defend his case and the Secretary of State’s case was unopposed. It then proceeded to rule in the Secretary of State’s favour, finding that the initial refusal of Mr Ahmed’s application for leave to remain was correct. Mr Ahmed was back to square one, but now with two negative decisions against him!

Thankfully in this case, Mr Ahmed went on to apply for permission to appeal to the Court of Appeal, which sent the decision back to the Upper Tribunal. This time, the Upper Tribunal ruled in Mr Ahmed’s favour, finding that the First-tier Tribunal’s decision had been correct. So things could have gone even worse for poor Mr Ahmed…

A second procedural issue which arose in this case was about appeal deadlines. The Secretary of State applied for permission to appeal well out of time. This didn’t seem to have been picked up by anyone until the second Upper Tribunal hearing, when Mr Ahmed’s legal representatives tried to argue that the Secretary of State’s application could not be admitted on that basis. 

The Upper Tribunal found, rather ironically, that it was too late to raise this issue. When a party wants to raise the issue of lateness, they should do it before the Upper Tribunal makes a substantive decision on whether or not the First-tier Tribunal erred in law. 

Last but not least, the tribunal reminds us again of the danger of submitting family court documents without permission, as Rachel explained in detail in her recent post on the issue. In this case, the Upper Tribunal picked up that Mr Ahmed’s legal representatives did not have permission to disclose the documents and wrote to the Designated Family Judge to bring the matter to their attention. Mr Ahmed’s lawyers just need to hope they won’t be found in contempt of the Family Court.

The official headnote

(1) Where P is the respondent to the Secretary of State’s appeal in the Upper Tribunal against the decision of the First-tier Tribunal to allow P’s appeal, P cannot give notice under rule 17 of the Tribunal Procedure (Upper Tribunal) Rules 2008 so as to withdraw his appeal, since P has no appeal in the Upper Tribunal. In such a situation, the giving of notice under rule 17 to withdraw P’s case will, if the Upper Tribunal gives consent, have the effect of leaving the Secretary of State’s appeal to the Upper Tribunal unopposed and therefore may well lead to a reasoned decision from the Upper Tribunal, setting aside the decision of the First-tier Tribunal.

(2) If an application by a party for permission to appeal against a decision of the First-tier Tribunal has been granted by that Tribunal, but the application was made late and time was not extended by the granting judge, the other party may raise the timeliness issue before the Upper Tribunal, as described in Samir (FtT permission to appeal: time) [2013] UKUT 3 (IAC), provided the Upper Tribunal has not reached a substantive decision. The issue may not, however, be raised after the Upper Tribunal has reached such a decision. Rule 6 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 means that the grant of permission by the First-tier Tribunal is to be treated as valid, notwithstanding the procedural irregularity, with the result that the ensuing decision of the Upper Tribunal is, likewise, valid.

(3) If a party intends to rely before the Tribunal on material emanating from proceedings in the Family Court, that party must ensure that the material can be disclosed, without any breach of restrictions on the disclosure of such material. Failure to do so may amount to contempt of the Family Court. Judges in the Immigration and Asylum jurisdiction must be alert to this issue.

Nath Gbikpi

Nath is a solicitor and has worked with Wesley Gryk Solicitors since June 2014. Nath read Development Studies and Politics at the School of Oriental and African Studies (SOAS), before obtaining an MSc in Refugee and Forced Migration Studies at the University of Oxford and an LLB at the University of London.

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