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Who decides when an immigration appeal ends?

Who decides when an immigration appeal ends?

When someone pursuing an appeal in the immigration tribunal decides that they no longer want the appeal to go ahead, who gets to decide when the appeal comes to an end? The person themselves, the tribunal, or the Home Office?

In July 2017, Mr Justice McCloskey, President of the Upper Tribunal (Immigration and Asylum Chamber) at that time, decided that it is up to the tribunal when an appeal ends. A high-powered bench led by his successor has now overturned this decision.

In Anwar (rule 17(1): withdrawal of appeal) [2019] UKUT 125 (IAC) the current President, Mr Justice Lane, sitting with his Vice-President Mr Ockelton and the President of the First-tier Tribunal Mr Clements, decided that the former President was wrong and that the person who lodged the appeal (referred to as the appellant) gets to decide when the appeal comes to an end.

The process of bringing an appeal to an end is referred to as withdrawal. There are two ways an appeal can be withdrawn: 

  1. The appellant decides they do not want the appeal to continue; or
  2. The Home Office withdraws the refusal decision which is being appealed against

The second scenario is less controversial, so I’ll deal with it first. 

Home Office changes its mind

In this type of scenario the tribunal gets to decide when the appeal comes to an end. This is because the tribunal’s procedural rules require the appeal to be treated as withdrawn unless there is a “good reason” for not doing so. So when the Home Office withdraws its refusal decision, the appeal does not automatically come to an end. The appellant will be asked if there is a “good reason” for the hearing to proceed. The tribunal will then decide whether to treat the appeal as withdrawn. See Colin’s post here for further details.

Although a decision from the tribunal is necessary, it is not necessary for the decision to be issued by a judge. The notice confirming the withdrawal can, where appropriate, be made by the tribunal’s administrative staff.

Appellant changes their mind

It is the other scenario which led to the disagreement between the former and current Presidents of the Upper Tribunal.

The former President was of the view that, because the procedural rules require reasons to be given for a withdrawal, those reasons have to be evaluated and scrutinised by the Tribunal, which will then decide whether or not the appeal goes ahead. The current President disagrees with this interpretation, noting that it creates “an entirely different rule, by means of judicial fiat”. The judgment rejects the suggestion that the requirement to give reasons has this effect:

…the requirement to give reasons does not have the effect of turning rule 17(1) into an application 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.

When an appellant provides the tribunal with a written notification of withdrawal of their appeal they are merely notifying the tribunal of something which has happened. The withdrawal is automatic. It does not require a judge’s approval in order to be effective. The tribunal does not need to evaluate the reasons given or reach any decision.

A notification that the withdrawal has taken effect must be issued. But this is simply a formality; an administrative task which does not require the input of a judge.

Appellant changes their mind about changing their mind 

What if the appellant changes their mind about withdrawing the appeal and decides they want the appeal to proceed after all? Tough luck.

The appellant in the Upper Tribunal case, Mr Anwar, did precisely this. He decided to leave the UK in order to deal with an emergency and, through his representative, notified the tribunal that he wished to withdraw his appeal. Nine days later he changed his mind, telling the tribunal that he no longer needed to leave the UK and that he would like the appeal to be reinstated.

Unfortunately for Mr Anwar, this is not possible. He had validly withdrawn his appeal. As a result, it had ceased to exist and could not be re-instated.

The only exception to this harsh outcome is where it can be shown that the withdrawal was not the result of a deliberate and informed decision. If this is the case the tribunal can considered whether the notification of withdraw is valid.

The Upper Tribunal provides some examples of when this might be the case, quoting from the earlier case of AP (Withdrawals – nullity assessment) Pakistan [2007] UKAIT 22. They include:

  1. The notification is sent to the Home Office rather than the tribunal;
  2. The notification is sent to the tribunal by a representative without there being clear understanding, or meeting of the minds, between the appellant and the representative;
  3. The notification is sent to the tribunal by a representative acting on the instructions of a sponsor, rather than on the actual instructions of the appellant;
  4. A representative sends the notification to the tribunal in error, either through lack of due care, or simple mistake.

If the notification of withdrawal is invalid, it is as if it has never happened. The appeal therefore continues. 

Practical implications 

In my experience an appellant usually decides to withdraw their appeal when they want to make a new application to the Home Office. This could occur where the spouse of a British citizen is able to meet the financial requirement (for instance by the British citizen reaching six months of employment with a salary over £18,600) during the course of the appeal. Or where the appellant reaches ten years’ continuous lawful residence during the course of the appeal and is eligible for indefinite leave to remain under the long residence rules.

An ability to meet provisions of the Immigration Rules which were not met when the Home Office made their original decision is a “new matter” which cannot be considered by the tribunal without the Home Office’s consent. Where such consent is not forthcoming, a new application to the Home Office is required. However a person cannot make a new application whilst their appeal is pending. If they do so, their application is invalid

As such, it is necessary to withdraw the appeal and lodge a new application within 14 days. This is permitted by paragraph 39E of the immigration rules. The application must be submitted within 14 days, which is a tight time-scale.

The clock starts ticking when the appeal comes to an end. Previously this was when the tribunal issued the notice confirming that the appeal is withdrawn. This was because the withdrawal did not take effect until the tribunal had made this decision.

However, now that withdrawal takes effect immediately, the clock will start ticking on the day the appellant sends the notification of withdraw to the tribunal. Any new application will need to be submitted to the Home Office within 14 days of this date. This is not spelled out by the Upper Tribunal but, in practice, it is likely to be the most significant effect of the decision.

The official headnote

(1) Under rule 17(1) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, the decision whether to withdraw an appeal is for the appellant;

(2) That decision does not require judicial approval, in order for it to be effective;

(3) If an issue arises as to whether a withdrawal was, in fact, the appellant’s decision (ie whether it was valid), it is for a judge of the First-tier Tribunal to decide it; as to which, the reasons for withdrawal may assist;

(4) If an issue arises as to whether or not an appellant’s notice of withdrawal was legally valid, the Tribunal should exercise its case management powers so as to decide the matter. This will normally involve holding a hearing. The judge’s task will be to decide on the issue of validity. If the judge’s decision is a substantive decision, as opposed to a “procedure, ancillary or preliminary decision” within the meaning of article 3(n) of the Appeals (Excluded Decisions) Order 2009, the decision will be appealable to the Upper Tribunal;

(5) The decision of Upper Tribunal in TPN (FtT appeals – withdrawal) Vietnam [2017] UKUT 295 (IAC) not followed. The decision in AP (Withdrawals – nullity assessment) Pakistan [2007] UKAIT 00022 followed.

Iain Halliday

Iain Halliday is a solicitor at McGill & Co, a Scottish law firm specialising in immigration and nationality law. He regularly assist clients with applications, appeals and judicial reviews in relation to EEA free movement rights, the right to private and family life and the best interests of the child, the Points Based System applicable to entrepreneurs and international workers, and naturalisation and registration as a British citizen. Iain is a member of the Immigration Law Practitioners’ Association and a member of the Law Society of Scotland's Immigration and Asylum Committee and has been involved in drafting submissions to Parliamentary Committees at both Westminster and Holyrood.

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