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Exceptions to the right to a hearing

Chapter number: 
7
Section: 
Procedure
Last updated: 
31 March 2018
Best Practice Guide to Asylum and Human Rights Appeals
by Mark Henderson and Rowena Moffatt of Doughty Street Chambers
and Alison Pickup of the Public Law Project

7.1 Rule 25(1) requires the Tribunal to hold a hearing in every case, before making a decision which disposes of proceedings, subject to the exceptions set out in that rule.

7.2 This chapter deals with the various exceptions to the right to a hearing of the appeal.

Determination without a hearing

7.3 Rule 25 details the circumstances in which the Tribunal can dispense with a hearing:

–(1) The Tribunal must hold a hearing before making a decision which disposes of proceedings except were--

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

(b) the appellant has not consented to the appeal being determined without a hearing but the Lord Chancellor has refused to issue a certificate of fee satsfaction for the fee payable for the hearing;

(c) the appellant is outside the United Kingdom and does not have a representative who has an address for service in the United Kingdom;

(d) it is impracticable to give the appellant notice of the hearing;

(e) a party has failed to comply with a provision of these Rules, a practice direction or a direction and the Tribunal is satisfied that in all the circumstances, including the extent of the failure and any reasons for it, it is appropriate to determine the appeal without a hearing;

(f) the appeal is one to which rule 16(2) or 18(2) applies; or

(g) subject to paragraph (2), the Tribunal considers that it can justly determine the matter without a hearing.

(2) Where paragraph (1)(g) applies, the Tribunal must not make the decision without a hearing without first giving the parties notice of its intention to do so, and an opportunity to make written representations as to whether there should be a hearing.

(3) This rule does not apply to decisions under part 4 or part 5.

7.5 With respect to rule 25(1)(g), there ought to be no circumstances other than those falling within rule 25(1)(e) where it would be just to dispense with a hearing without the appellant's consent (see Gioshev v SSHD(15801) and R v IAT, ex parte S [1998] Imm AR 252 (para 7.13)).

Failure to comply with directions/rules

7.6 Rule 25(1)(e) empowers the Tribunal to determine the appeal without a hearing but only where 'a party has failed to comply with a provision of these Rules, a practice direction or a direction ' and 'the Tribunal is satisfied that in all the circumstances, including the extent of the failure and any reasons for it, it is appropriate to determine the appeal without a hearing'

7.7 The Tribunal has repeatedly cautioned against overuse of this power. In Meflah [1997] Imm AR 555, the Tribunal stated that:

"where both the appellant and the representative are present at the hearing an adjudicator should exercise extreme caution before deciding to determine an appeal without a hearing because of failure to comply with directions.

In the present case the failure did not go to any essential part of the case and the course taken by the adjudicator is unsustainable. This is not a case in which there is a huge amount of documentary evidence and such documentary evidence as there was, was itself mainly paginated. Further the appellant and his representative being present the omission of a declaration as to whether the appellant was adopting the interview as his evidence and the lack of proof of evidence cannot possibly provide grounds for sending the appellant away without allowing him to present his case. In our view the adjudicator's action in this case was a misuse of the power conferred by the rules. Such misuse is likely to bring the power to give directions into contempt."

7.8 The point was reiterated in MD (good reasons to consider) Pakistan [2004] UKIAT 00197. The Adjudicator had determined the appeal without a hearing because the appellant had failed to comply with directions by producing a witness statement only on the morning of the hearing.

11. Although it may be easy for an adjudicator, faced with an Appellant who has failed to comply with directions and who has not disclosed his case, to forget how important his decision may be it is incumbent upon him to remember his duty... In a case considering the proper application of paragraph 45(2) of the Immigration Asylum and Appeals (Procedure) Rules 2003, Muhammad (01/TH/01223) Mr J Barnes, Vice President, said:-

"...... Adjudicators should be conscious that part of their over-riding duty is to ensure a just disposal. Partly this is because a just disposal will be a final disposal; partly because there is a duty on immigration judiciary to give the most anxious consideration to applications which involve a claim that their makers fear persecution for a Convention reason if returned to [their] own country, or, since the introduction of the Human Rights Act 1998, that [they] will suffer inhuman or degrading treatment contrary to Article 3."

12. The Procedure Rules provide for the oral hearing of an appeal. The Appellant wanted to give evidence and produced a witness statement, albeit late. Adjudicators have a duty to apply the most anxious scrutiny and the high standards of fairness to the Appellant's case.

7.9 The Tribunal emphasised that before an appeal could be determined without a hearing on this basis, it must decide whether there were "good reasons" for considering evidence not filed in accordance with directions pursuant to rule 51(4) of the 2005 Procedure Rules (see the discussion from para 27.8).

7.10 It concluded that

"The Adjudicator had before him an appeal that was listed for hearing. He had a represented Appellant and a representative from the Respondent who, it seems, was ready to go ahead with the hearing. The Procedure Rules show what the Adjudicator should have done when faced with an application to consider evidence that had not been produced in accordance with directions. The adjudicator was quite wrong to consider determining the appeal without a hearing without first satisfying himself that there were no good reason not to admit the statements or that the hearing could not justly go ahead and should not be adjourned.

...[The rule] empowers the [Tribunal] to determine an appeal without a hearing but it will rarely be "appropriate" to do that where at least one of the parties wants a hearing and there is no unfairness to the other in letting a hearing go ahead."

7.11 -7.12 [...]

7.13 The Tribunal should therefore only decide to dispense with a hearing if it is satisfied by reference to the material before it and the nature of the issues that the appeal can be justly determined on the papers. That 'draconian step' will seldom be justified where credibility is in issue and the appellant is present and prepared to give evidence. In R v IAT, ex parte S [1998] Imm AR 252, Sullivan J held that:

"Where the appellant's credibility is in issue and he is present and wishes to give evidence, it would only be in rare cases that a special adjudicator could properly be satisfied that the appeal could be disposed of justly without a hearing."

Hearing the appeal in the absence of a party

7.14 Rule 28 sets out circumstances in which the Tribunal may proceed with a hearing in the absence of a party:

28. If a party fails to attend a hearing the Tribunal may proceed with the hearing if the Tribunal –

(a) is satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing; and

(b) considers that it is in the interests of justice to proceed with the hearing.

7.15 In the past the Procedure Rules obliged the Tribunal to proceed with a hearing if there was no satisfactory explanation for the absence of a party or his representative. Following the decision of the Court of Appeal in FP (Iran) v SSHD [2007] EWCA Civ 13 that this rule was unlawful, the provision was amended so that the Tribunal was merely empowered to determine the appeal without a hearing in the absence of a good explanation for non-attendance. The new rule introduced by the 2014 Rules gives the Tribunal a much broader discretion to decide whether it is in the interests of justice to proceed with the hearing in the absence of a party, provided always that it is satisfied that the party has been notified of the hearing, or that reasonable steps have been taken to notify him of the hearing. If there is no evidence that the appellant has deliberately failed to attend, the Tribunal will usually agree to adjourn the appeal for a short period to enable any explanation to be submitted (para 8.32). It is therefore very important that the representative attend: even if an adjournment is refused in those circumstances, the representative will be entitled to make submissions.

7.16 In Feghali (16602), the Tribunal considered the position where a judge has concluded a hearing in the absence of the appellant but then agreed to consider documentation submitted by the appellant after the hearing. The Tribunal held that it would be open to a judge hearing an appeal in the absence of a party to indicate that he would accept submission of material within a certain period after the hearing. But if he did not do so, and then entertained post-hearing submissions, he was effectively reopening the hearing. He therefore had to reconsider whether to hear from the appellant.

7.17 In light of the severe consequences for the appellant of proceeding in her absence, the Tribunal requires the rule to be complied with strictly. In Khmelkevich v SSHD (00/TH/01718), it stated that

"[The adjudicator] does not say whether or not he is satisfied that due notice of the time and place of the hearing has been given. We have little doubt that it was but, where an asylum seeker is to be deprived of his right to give oral evidence and to have an appeal determined in his absence, it seems to us that it is at least incumbent on the Special Adjudicator to make it clear that the formalities of the rules have been complied with. Secondly, the mandatory sub-rule... applies only if there is no satisfactory explanation for the absence of the party concerned. In this case there manifestly was such an explanation before the Special Adjudicator. There is no suggestion that what was contained in the medical certificate supplied was not accepted by him. Whilst it has in the past been properly considered that a certificate that an appellant is not fit to attend work is not appropriate to explain absence from a hearing, the doctor specifically stated the Appellant was not fit to attend an interview. That is to put the ability to attend anywhere at a very low level and, simply as a matter of common-sense, must extend to a court appearance at which evidence subject to cross-examination is to be given. Whilst we accept that adjudicators must be vigilant in ensuring that explanations for absence are reasonable, this is to impose far too high a duty on the Appellant."

7.18 Note that in deciding to proceed with a hearing in the absence of a party under rule 28, the Tribunal must have regard to the overriding objective set out in rule 2.

7.19 In particular, the rule does not entitle a judge to proceed in the absence of the appellant whenever it is established that she is too ill to attend the hearing. On the contrary, that will normally be good grounds for an adjournment. However, there will come a stage where the prospects of her being well enough to attend within a reasonable period are sufficiently remote to justify proceeding under this provision. In R v SSHD, ex parte Tahir Iqbal (CO/2469/97), Collins J said that:

"[A] balance may, in certain circumstances, have to be drawn between the need for the appellant to be heard in order to be able to put forward his appeal in a proper manner and the need for an appeal to be disposed of in a reasonable time. One can imagine examples where, if he was unfit for a period of years, it would be unreasonable to expect the matter to be deferred. But, as I see it, in considering an adjournment, an Adjudicator must always have in mind fairness to both parties but, in particular in asylum cases such as this, the need for fairness to the applicant to enable him to put forward a meaningful appeal."

7.20 The Presidential Guidance Note on the 2014 Procedure Rules suggests that "where there is no likelihood that the party will be able to attend a hearing within a reasonable period", the Tribunal should consider whether to proceed in the party's absence rather than adjourning (para 8(a)).

7.21 See also applying for an adjournment on the ground that the appellant is unable to attend (paras 8.27–8.33).

Withdrawal of appeals

7.22 Rule 17 provides that:

17.—(1) A party may give notice of the withdrawal of their appeal—

(a) by providing to the Tribunal a written notice of withdrawal of the appeal; or

(b) orally at a hearing, and in either case must specify the reasons for that withdrawal.

(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.

(3) The Tribunal must notify each party in writing that a withdrawal has taken effect under this rule and that the proceedings are no longer regarded by the Tribunal as pending.

7.22A The words "save for good reason", and the requirement to give reasons for the withdrawal, were inserted into rule 17(2) by the 2014 Rules. The Rule previously allowed one party to the appeal (the Home Office) to unilaterally terminate the appeal without conceding the case by agreeing to grant the other party leave to enter/ remain. In its 2013 consultation on proposed amendments to the First-tier Tribunal rules, the Tribunal Procedure Committee proposed amending rule 17(2) so as to give the Tribunal a power to treat the appeal as withdrawn rather than a duty to do so. This proposal was supported by the majority of respondents, but the Home Office opposed the proposal. The Committee stated when it published the 2014 Rules that it had been assured that it was Home Office policy only to withdraw a decision under appeal when it intended to grant leave to enter or remain. The Committee concluded that "in light of the Home Office's clear statement of policy" to that effect , the likelihood of tactically motivated withdrawals was reduced, this being one of the main concerns raised by other respondents to the consultation paper (see paras 63-73 of the Committee's published Reply to the consultation, available on the gov.uk website). It considered that the new requirement imposed on the Home Office to "specif[y] the reasons for the withdrawal of the decision" would "encourage compliance with the Home Office policy".

That clear statement of policy did not reflect the experience of many practitioners. The Home Office has been known to withdraw decisions in the face of compelling evidence only to make the same, or virtually the same, decision months or even years later. In fact, the Modernised Guidance on Appeals published on the same date that the 2014 Procedure Rules came into force resiled from the statement upon which the Committee relied in formulating. It indicated that Presenting Officers should withdraw a decision in order to consider a 'new matter' raised in the appeal if the Tribunal does not agree to an adjournment in order for that 'new matter' to be considered (para 8.2).

In R (Chichvarkin) v SSHD [2011] EWCA Civ 91, the Court of Appeal upheld the decision of the Divisional Court which had observed that:

...the power to withdraw may be exercised if the SSHD genuinely wishes to reconsider in the light of facts and matters advanced by the Appellant or indeed of other relevant matters coming to her attention, including a possible change of policy in the relevant area. The exercise of the power to withdraw is different from seeking an adjournment of proceedings: the latter course is appropriate where the SSHD wishes to maintain the challenged decision and is seeking further material to support her case.

In R (Glushkov) v SSHD and AIT [2008] EWHC 2290 (Admin), Collins J had said (in guidance approved in Chichvarkin) that:

It is clear beyond doubt, in my view, that the Secretary of State must not use the withdrawal power as a tactical exercise to avoid having to apply for an adjournment. She must only use it if she is genuinely of the view that she might change her mind on reconsidering the material that is put before her. It would be a wrongful exercise, and unfair to an appellant, if she were simply to use this power because she wanted more time to deal with the material that was put forward but had no intention of changing her mind as a result of it.

The Home Office's current policy is set out in Guidance for Presenting Officers on Withdrawing Decisions and Conceding Appeals which states, after setting out the passage above from Glushkov, that:

A decision should only be withdrawn where it is clear the decision needs to be reconsidered, and there is a realistic prospect that the decision outcome will be different.

For example, a decision may be withdrawn because:

• there is a clear caseworking error which means that the decision is fatally flawed and a reconsideration of the case could result in a grant of leave

• there has been a clear change in circumstances such as a change in country conditions or a change in policy that means reconsideration of the case may result in a grant of leave

• there is new evidence available, which could, if genuine, result in a grant of leave (see adjournments)

You must not pursue an appeal where it is clear that the decision cannot stand and needs to be reconsidered. Doing so would mean arguing a refusal should be maintained where leave should potentially be granted.

The guidance continues under the heading "adjournments":

An adjournment should be sought where it is not clear that the new evidence or ground will lead to a grant of leave but where it needs to be considered in more detail. An example of this would be seeking an adjournment to check whether a document is genuine where, even if the document was genuine it would not on its own be likely to lead to grant of leave; if it was false that may strengthen the refusal. In these circumstances you must explain to the Tribunal what the new issue or evidence is and request an adjournment to, for example, verify a document. If the adjournment is granted it may also be appropriate to seek costs where the new evidence or issue is raised late.

This approach is consistent with what the High Court said in Chichvarkin that an adjournment is "appropriate where the SSHD wishes to maintain the challenged decision and is seeking further material to support her case."

Where a request for an adjournment is refused the decision should not then be withdrawn. You must record the reasons for seeking an adjournment and the reasons why it was refused in the hearing minute. The Home Office will then consider the minute to decide whether to challenge the refusal of an adjournment or any allowed appeal on procedural grounds.

7.22B In SM (withdrawal of appealed decision: effect) (Pakistan) [2014] UKUT 00064 (IAC) the Upper Tribunal was concerned with whether it should exercise its power under rule 17(2) of its Procedure Rules to allow the Home Office to "withdraw its case" when it had withdrawn the underlying immigration decision.

The Upper Tribunal set out guidance as to the factors relevant to the exercise of its discretion whether to allow an appeal to continue where the underlying immigration decision is withdrawn and the Home Office seeks to withdraw its case. It indicated that it would normally make a 'formal disposal' of the appeal without substantive consideration of the issues, which could either be a decision to dismiss the appeal or (if appropriate, for example because the Home Office had accepted that its original decision was in error) to allow the appeal and make a fee award in the appellant's favour. In ZEI and others (Decision withdrawn - FtT Rule 17 – considerations) Palestine [2017] UKUT 00292 (IAC), the Upper Tribunal agreed that the factors which it said in SM Pakistan would be relevant in deciding whether to give substantive consideration to the appeal are likely to be relevant when the First-tier Tribunal is considering whether to treat an appeal as withdrawn under rule 17(2). Those factors are:

(i) "Secretary of State should normally be primary decision-maker" In SM Pakistan, the Upper Tribunal noted that while the Court of Appeal had treated this as an important factor in Chichvarkin, that was a case in which an asylum claim was made for the first time during an appeal against an immigration decision. It said that "By contrast, where asylum has been raised and fully considered (and rejected) by the respondent, prior to the appeal being instituted, the principle of primary decision-making lying with the respondent does not arise or, insofar as the case for the appellant is subsequently put on a different basis, may not arise to the same extent. In such circumstances, the termination of the current appellate proceedings by formal disposal may well not be appropriate, having regard to the overriding objective and section 104(4B)";

(ii) "whether there are wider public interest reasons, potentially involving persons other than the appellant and his immediate family etc, why it may be desirable to determine the appeal substantively, notwithstanding withdrawal of the appealed decision". This factor is likely to be of less significance in the First-tier Tribunal whose decisions do not have precedent value but the Tribunal noted that an appeal would not be academic to the appellant and his family where the decision had merely been withdrawn and there had been no decision to grant the leave that was sought through the appeal. The possibility of an appeal raising "an important issue of legal principle, statutory construction or practice and procedure" was also identified by McCloskey J in TPN (FtT appeals – withdrawal) Vietnam [2017] UKUT 00295 (IAC) as an example of a circumstance in which the Tribunal may decide not to treat the appeal as withdrawn where the Home Office withdraws its decision.

(iii) "the timing of, and reasons for, the respondent's withdrawal of her decision may be such as to necessitate the Upper Tribunal to embark on a substantive analysis, leading to a fully-reasoned, authoritative decision. In particular, where the reasons for withdrawal of the decision, as articulated by the respondent, indicate that the only legally correct result would be a decision in favour of the appellant (for example, to grant leave to remain on the basis that she meets the relevant requirements of the Immigration Rules), then, in the context of the overriding objective, it may well be appropriate for the Upper Tribunal to bring matters to an end, by a substantive decision in the appellant's favour."

(iv) "whether bad faith ... had been made out"

(v) the views of the parties.

7.22C In ZEI and others (Decision withdrawn - FtT Rule 17 – considerations) Palestine [2017] UKUT 00292 (IAC), the Upper Tribunal gave further guidance as to the approach to be taken by the Tribunal when considering whether to treat the appeal as withdrawn under rule 17(2). The guidance may be summarised thus:

(i) The assumption is that the appeal will be treated as withdrawn. There must be "good reason" for allowing the appeal to proceed. That is not to say that it will be a rare or exceptional course to allow the appeal to proceed.

(ii) The time expended to deciding whether there is a "good reason" should be proportionate, bearing in mind that neither party will be directly affected by the outcome;

(iii) The question is whether there is a "good reason" for the appeal to proceed, not whether there is a good reason for the withdrawal, and the Tribunal has no power to review the reasons for withdrawal. The Home Office must give its reasons for withdrawal, and the Tribunal might properly question those, but the fact that it does not think the reasons are good is not in itself a "good reason" to hear the appeal;

7.22D The Upper Tribunal went on to discuss guidance as to what might, or might not, amount to a "good reason" for allowing the appeal to proceed. It summarised that guidance in the headnote in this way:

(i) The following are not likely to be considered good reasons:

- The parties wish the appeal to proceed.

- The applicant is legally aided and if he has to appeal against a new decision, he will not (or will probably not) be legally aided because the legal aid regime has changed.

- The withdrawal is for reasons the judge considers inappropriate is very unlikely to be a good reason to proceed. An example is that of a Presenting Officer who seeks adjournment of a hearing and when that is refused, withdraws the decision.

- The witnesses are ready to be heard and can only with difficulty or expense be gathered again.

(ii) The following are likely to be capable of being a good reason.

- The appeal regime has changed since the first decision, so that if a new decision is made in the same sense, the rights of appeal will be reduced.

- Undue delay by the respondent.

- The appeal turns on a pure point of law that the judge thinks that even after argument is certainly or almost certainly to be decided in the appellant's favour.

- If there has already been a considerable delay in a decision the appellant is entitled to expect, the fact that children are affected.

7.22E In TPN (FtT appeals – withdrawal) Vietnam [2017] UKUT 00295 (IAC), McCloskey J also emphasised that a decision whether to treat the appeal as withdrawn is a judicial decision which he described as requiring "active and properly informed judicial involvement and decision making" (para 20; see also para 22-25). He considered that "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" (para 23). You should be astute to raise with the Tribunal concerns about whether the Home Office is misusing the process of the Tribunal. Where it is suspected that the decision is being withdrawn as an alternative to seeking an adjournment to consider new evidence, i.e. on a basis directly contrary to the understanding upon which the Tribunal Procedure Committee relied and to the Home Office's published policy, it may well be useful to refer the Tribunal to the Committee's Response to the consultation explaining the thinking behind the final version of the rule as well as the policy. That may support a submission that there is good reason under the rule not to treat the appeal as withdrawn, although it should be noted that in ZEI and others (Decision withdrawn - FtT Rule 17 – considerations) Palestine [2017] UKUT 00292 (IAC), decided a month before TPN by a differently constituted Tribunal, the Upper Tribunal did not think this would in itself be a good reason to proceed (para 19(f)), although on the facts of the case, it held that "the fact that the withdrawal was for a reason that is extremely difficult to justify … helps to show that the effect of the withdrawal is indeed prejudicial rather than merely unfortunate" (para 20). The Tribunal Procedure Committee had also considered introducing a power to reinstate the appeal if leave was not granted and relied on its understanding of Home Office policy in concluding that this also was not necessary for the time being. The alternative, where the Home Office insists that there will be a genuine reconsideration of its decision, and there is no pressing reason to proceed with the hearing, is to grant an adjournment sufficient to enable a genuine reconsideration to take place. As noted above, the current Home Office guidance to Presenting Officers suggests that this is what will be sought where it is not thought likely that leave will be granted as a result of this reconsideration.

7.22F Presidential Guidance Note No. 1 of 2014 lays down a procedure for giving the appellant an opportunity to object to the appeal being treated as withdrawn where the Respondent withdraws the decision appealed against. It states that:

17. Where the respondent withdraws the decision no later than 21 days prior to the hearing (28 days for out of country appeals) a notice will be sent to the appellant asking if there is good reason why the appeal should not be treated as withdrawn. If a response is received, or the time for replying expires without a response, then a judge will be asked to decide if the appeal should be treated as withdrawn. If there is insufficient time to consult the appellant prior to the hearing then the question of whether the appeal will be treated as withdrawn will be considered at the hearing.

18. If a judge decides that the appeal is withdrawn, the judge will mark the appeal file and Record of Proceedings accordingly and take no further action as there will be no appeal pending. No decision or statement of reasons will be produced.

19. In all cases where the appeal is withdrawn, the Tribunal will issue the notice required by rule 17(3).

20. If a judge decides that the appeal is not withdrawn, then the hearing will proceed. The judge will advise the parties of the decision and will record it in the Record of Proceedings with a view that the decision and reasons will be included in any statement of reasons subsequently produced.

This Guidance was referred to with approval by the then President of the Upper Tribunal, McCloskey J, in TPN (FtT appeals – withdrawal) Vietnam [2017] UKUT 00295 (IAC). He noted in particular that in paragraph 17 "correctly, the procedural rights of the appellant are explicitly recognised." In ZEI and others (Decision withdrawn - FtT Rule 17 – considerations) Palestine [2017] UKUT 00292 (IAC), the Upper Tribunal also emphasised the importance of the appellant being given an opportunity to put forward reasons why the appeal should proceed and suggested that 14 days would normally be a reasonable period (para 18). Its view was that if the appellant did not put forward any reasons, the "default" position of withdrawal of the appeal should normally follow (para 17). Note that the Guidance Note indicates that the fact that the appellant wishes to seek a fee award will not normally be regarded as a good reason for refusing to treat the appeal as withdrawn (para 16).

7.23 In relation to withdrawal of the appeal by the appellant, the Guidance Note states that (para 15):

Where an appellant seeks to withdraw an appeal in terms of rule 17, provided the Tribunal is satisfied that the appellant is doing so freely and understands the consequences of the withdrawal, the Tribunal will be satisfied that the appeal is withdrawn. Where an appellant is legally represented and the request to withdraw is made by the representative, the Tribunal will assume that the representative has explained the consequences of the action to the appellant and that this is the intention of the appellant.

In TPN (FtT appeals – withdrawal) Vietnam [2017] UKUT 00295 (IAC), McCloskey J endorsed this Guidance. He held that as with a withdrawal of a decision by the Home Office, where notice of withdrawal is given by or on behalf of an appellant, withdrawal does not automatically follow but requires judicial consideration. He set out the following guidance at para 22:

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

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

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

(iv) 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.

(v) 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.

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

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

(viii) 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.

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

(x) 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.

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

7.24 McCloskey J found that there was no difference in substance between the approach to a withdrawal by an appellant under rule 17(1), and a withdrawal consequent upon the withdrawal of an immigration decision under rule 17(2). In both cases, a judicial decision was required and the Judge would need to consider whether there was good reason for the withdrawal. Written notice of the decision would need to be given; that decision would need to be "composed, signed and dated by the Judge concerned" (para 26); and to give sufficient reasons to enable the parties to understand why the Judge had consented to the withdrawal (para 27).

7.26 The Tribunal in AP (Withdrawals – nullity assessment) Pakistan [2007] UKAIT 00022 said that 'when an application is made to challenge a notice of withdrawal as invalid the Tribunal will then proceed to hear the application' and expressed the test by which it would determine the application as follows:

Based on all of the evidence placed before it, the Tribunal must be satisfied, on the balance of probabilities, that the withdrawal was not the result of a deliberate and informed decision; "in other words, that the mind of the applicant did not go with his act of abandonment [withdrawal]" before concluding that the purported withdrawal was in fact a nullity and the appeal is extant.

7.27 It gave the following 'inexhaustive' reasons for which an application challenging the validity of a withdrawal could succeed:

"(i) The Appellant has had an almost immediate change of mind, which is promptly communicated to a representative, prior to the matter coming for hearing before the Tribunal (as in Adewole);

(ii) A letter or notice purporting to withdraw an appeal has been sent to the Respondent, rather than to the Tribunal itself - (NB. A notice of withdrawal should have no legal validity until the actual notice of appeal is communicated to the Tribunal, either in writing or at a hearing before the Tribunal );

(iii) A withdrawal has been communicated to the Tribunal by a representative without there being clear understanding, or meeting of the minds, between an Appellant and the representative;

(iv) A withdrawal has been communicated to the Tribunal by a representative on the instructions of a Sponsor, (who has completed section 5 of the appeal form), rather than on the actual instructions of the Appellant;

(v) A representative has communicated a withdrawal to the Tribunal in error, either through lack of due care, or simple mistake."

This decision was not referred to by McCloskey J in TPN (FtT appeals – withdrawal) Vietnam [2017] UKUT 00295 (IAC) but the principles set out are consistent with the emphasis which he placed, consistently with the Guidance Note, on the requirement that the appellant is "withdrawing the appeal freely and understands the consequences of withdrawal" (para 22(v)).

7.28 Where it is alleged that a previous representative communicated a withdrawal to the Tribunal in error or without instructions, the former representative should be notified and told that they can write to the Tribunal giving any explanation and appear at the hearing if they wish and a waiver of privilege should be given.

7.29 The Tribunal accepted on the facts of AP's case that there had been a misunderstanding during the interpreting process and although the appellant had signed a notice saying that she withdrew her appeal and that the notice had been translated to her, she did not appreciate the effect of the notice as a result of an interpretation error. In TPN, it was apparently accepted by counsel who appeared at the First-tier Tribunal hearing that he had not had clear instructions from the appellant to withdraw the appeal when he did so, although the basis for the Upper Tribunal's decision to allow the appeal was the failure of the First-tier Tribunal to judge make a judicial decision about whether to accept the appeal.

7.29A In AP [2007] UKAIT 00022, the Tribunal, which at that time was a single-tier tribunal, had said that the appropriate procedure where an appellant wished to challenge a withdrawal as a nullity was to hold a hearing to decide whether to reinstate the appeal. In TPN (FtT appeals – withdrawal) Vietnam [2017] UKUT 00295 (IAC), McCloskey J prescribed a different procedure to challenge a withdrawal accepted by the First-tier Tribunal under Rule 17(3).

7.29B There are two options available to an appellant dissatisfied with a decision to accept a withdrawal under rule 17(3). The first – which McCloskey J described as best practice – is to ask the Tribunal to exercise its powers under Rule 32 to set aside the decision on grounds of procedural irregularity. The Senior President's Practice Statements prescribe that this power can only be exercised by the President of the First-tier Tribunal or a Resident Judge. This is likely to be appropriate in a case such as that in TPN where the appellant has not in fact freely consented to a purported withdrawal made on his behalf.

7.29C The second option is to apply for permission to appeal to the Upper Tribunal on the ground of legal error, including procedural unfairness, in the First-tier Tribunal's decision. TPN (FtT appeals – withdrawal) Vietnam [2017] UKUT 00295 (IAC) confirms that a decision on a withdrawal, being a judicial decision, is appealable to the Upper Tribunal. This was also confirmed by the Upper Tribunal in ZEI and others (Decision withdrawn - FtT Rule 17 – considerations) Palestine [2017] UKUT 00292 (IAC) in relation to decisions to treat an appeal as withdrawn under rule 17(2) where the Home Office has withdrawn the decision. An appeal (rather than a set aside request under rule 32) will normally be the appropriate course if you want to challenge a decision to treat the appeal as withdrawn where the Home Office has withdrawn its decision but it is also sensible to make an application for permission to appeal in a case where the challenge is to the purported withdrawal on behalf of the appellant, if the decision is not set aside within the time limit for appealing to the Upper Tribunal.

Appeals deemed to be abandoned or finally determined

7.30 Rule 16 deals with abandonment of appeals. It provides that:

(1) A party must notify the Tribunal if they are aware that—

(a) the appellant has left the United Kingdom;

(b) the appellant has been granted leave to enter or remain in the United Kingdom;

(c) a deportation order has been made against the appellant; or

(d) a document listed in paragraph 4(2) of Schedule 2 to the 2006 Regulations has been issued to the appellant.

(2) Where an appeal is treated as abandoned pursuant to section 104(4A) of the 2002 Act or paragraph 4(2) of Schedule 2 to 2006 Regulations, the Tribunal must send the parties a notice informing them that the appeal is being treated as abandoned or finally determined, as the case may be.

(3) Where an appeal would otherwise fall to be treated as abandoned pursuant to section 104(4A) of the 2002 Act, but the appellant wishes to pursue their appeal, the appellant must provide a notice, which must comply with any relevant practice direction, to the Tribunal and each other party so that it is received within 28 days of the date on which the appellant was sent notice of the grant of leave to enter or remain in the United Kingdom or was sent the document listed in paragraph 4(2) of Schedule 2 to the 2006 Regulations, as the case may be.

A decision under rule 16(2) may be taken without a hearing: rule 25(1)(f).

7.31 The relevant provisions of Section 104 (as amended by the 2014 Act) provide that:

(4A) An appeal under section 82(1) brought by a person while he is in the United Kingdom shall be treated as abandoned if the appellant is granted leave to enter or remain in the United Kingdom (subject to subsection (4B) ).

(4B) Subsection (4A) shall not apply to an appeal in so far as it is brought on a ground specified in section 84(1)(a) or (b) or 84(3) (asylum or humanitarian protection) where the appellant–

[...]

(b) gives notice, in accordance with Tribunal Procedure Rules, that he wishes to pursue the appeal in so far as it is brought on that ground.

7.32 Section 92(8) has replaced the previous s. 104(4)(b) and provides that an appeal brought from within the United Kingdom will be treated as abandoned if the appellant leaves the UK before it is finally determined, unless it has been certified under s. 94(1) or (7) or s. 94B (see chapter 3 for certification powers). In SR (Algeria) v Secretary of State for the Home Department [2015] EWCA Civ 1375, the Court of Appeal held that an appeal is abandoned under s92(8) only if the appellant leaves voluntarily, and not where she is removed against her will.

7.33 There is no longer (as there once was) any power conferred on the Tribunal to treat an appeal as abandoned because it is satisfied, including by reference to a failure to comply with directions, that the appellant is no longer pursuing the appeal. The deliberate omission of a previous express power strongly suggests that no continuing power can be implied to treat an appeal as abandoned in any circumstances other than those listed in rule 16.

7.33A Note that under s. 104(4B), an appeal may be continued where the appellant is granted leave to remain. Rule 16(3) lays down the procedure to be followed. Under the old appeal provisions, the right of appeal arose only if leave was granted for 12 months or more; under the 2014 appeals provisions apply there is no such limitation. In FA (Iraq) v SSHD [2010] EWCA Civ 696, the Court of Appeal held that the right of appeal against the refusal of asylum where a person was granted 12 months or more leave to remain had to be read as including a right of appeal on humanitarian protection grounds, in order to comply with EU law. This is now expressly provided for in s. 104(4B) as amended by the 2014 Act, where the 2014 appeals provisions apply, so that an appeal can be pursued on both (or either) asylum and humanitarian protection grounds.

7.34 It was established in Gremesty v SSHD (01/TH/00096) [2001] INLR 132 that a "notice informing them that the appeal is being treated as abandoned or finally determined" was appealable to the IAT (which could hear appeals against "determinations", defined in the 2000 Procedure Rules as "the decision of the Appellate Authority to allow or dismiss an appeal and the reasons for that decision"). Although that definition was not kept in the 2003 Procedure Rules, in MM and others (Out of time appeals) Burundi * [2004] UKIAT 00182 the Tribunal considered that there would be a right of appeal against decisions "which confirm that an appeal is at an end, eg in relation to the abandonment or withdrawal of an appeal", a finding which it described as consistent with Gremesty. Under the present system, permission to appeal may be sought to the Upper Tribunal against the First-tier's "decision on the appeal" rather than its determination (Tribunals, Courts and Enforcement Act 2007, s.11). An appeal may not be brought against an "excluded decision", which includes, by art 3(m) of the Appeals (Excluded Decisions) Order 2009, "a procedural, ancillary or preliminary decision". Similar provisions apply to appeal to the Court of Appeal from the Upper Tribunal. Although the question of jurisdiction did not expressly arise in the only reported case on abandonment under the 2007 Act (Vigneswaran (abandonment: s 104(4B)) [2016] UKUT 00054 (IAC)), the Upper Tribunal had no difficulty with the fact that the appellant was appealing against a decision of the First-tier Tribunal that his appeal had been abandoned when he was granted leave to remain.

7.35 Rule 18 provides that:

18.—(1) The Secretary of State must, upon issuing a certificate under section 97 or 98 of the 2002 Act which relates to a pending appeal, provide notice of the certification to the Tribunal.

(2) Where a notice of certification is provided under paragraph (1), the Tribunal must—

(a) notify the parties; and

(b) take no further action in relation to the appeal.

Notice under rule 18(2) may be given without the need to hold a hearing: rule 25(1)(f).

7.36 See chapter 14 for certificates issued under s.97. An asylum/human rights appeal cannot be certified under s.98. Section 98 is in any case repealed by the 2014 Act.