SM (Withdrawal of Appealed Decision: Effect) Pakistan [Asylum and Immigration Tribunal]
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Peter Lane |
| Judgment Date | 11 February 2014 |
| Neutral Citation | [2014] UKUT 64 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 11 February 2014 |
[2014] UKUT 64 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Upper Tribunal Judge Peter Lane
Upper Tribunal Judge Southern
Upper Tribunal Judge Dawson
For the Appellant: Mr C. McCarthy, Counsel, instructed by Paragon Law
For the Respondent: Ms J. Isherwood, Senior Home Office Presenting Officer
SM (withdrawal of appealed decision: effect) Pakistan
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(1) Rule 17 (withdrawal) of the Tribunal Procedure (Upper Tribunal) Rules 2008 does not enable the Upper Tribunal to withhold consent to the withdrawal by the Secretary of State of the decision against which a person appealed to the First-tier Tribunal.
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(2) Where such a decision is withdrawn in appellate proceedings before the Immigration and Asylum Chamber of the Upper Tribunal, that Tribunal continues to have jurisdiction under the Tribunals, Courts and Enforcement Act 2007 to decide whether the determination of the First-tier Tribunal should be set aside for error of law and, if so, to re-make the decision in the appeal, notwithstanding the withdrawal of the appealed decision. Such a withdrawal is not, without more, one of the ways in which an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 ceases to be pending.
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(3) When re-remaking a decision in a 2002 Act appeal where the decision against which a person appealed has been withdrawn by the Secretary of State, the Upper Tribunal will need to decide whether:–
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(i) to proceed formally to dismiss (or, in certain circumstances, allow) the appeal; or
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(ii) to determine the appeal substantively, including (where appropriate) making a direction under section 87 of the 2002 Act.
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(4) In deciding between (i) and (ii) above, the Upper Tribunal will apply the overriding objective in rule 2 of the 2008 Rules, having regard to all relevant matters, including:–
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(a) the principle that the Secretary of State should, ordinarily, be the primary decision-maker in the immigration field;
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(b) whether the matters potentially in issue are such as to require the Tribunal to give general legal or procedural guidance, including country guidance;
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(c) the reasons underlying the Secretary of State's withdrawal of the appealed decision;
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(d) the appeal history, including the timing of the withdrawal; and
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(e) the views of the parties.
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Does rule 17 (withdrawal) of the Tribunal Procedure (Upper Tribunal) Rules 2008 require the Secretary of State to obtain the Upper Tribunal's consent, before the Secretary of State may withdraw the decision against which a person appealed to the First-tier Tribunal? What is the effect on appellate proceedings in the Immigration and Asylum Chamber of the Upper Tribunal of the withdrawal by the Secretary of State of that decision? Both questions arise starkly in the present case, which began as long ago as May 2010. As will be seen, they admit of no easy answers.
The appellant, a citizen of Pakistan born on 12 January 1983, said she entered the United Kingdom on 11 April 2006, as a visitor. She claimed asylum on 22 April 2010. The basis of her claim was that the appellant had married a Pakistan citizen in that country, who had subsequently moved to the United Kingdom and whom she came here to see in 2006. Her husband behaved abusively towards her, as a result of which the appellant moved to an address in Nottingham, where she began a relationship with another Pakistan national, bearing him a son on 17 January 2010. Before that, her husband had returned to live in Pakistan. She said she feared that he would kill her, were she to return, for having had another man's baby.
On 11 May 2010 the respondent Secretary of State decided that the appellant should be removed from the United Kingdom, by way of directions, pursuant to section 10 of the Immigration and Asylum Act 1999. The respondent did not believe the assertion that the appellant's husband would be interested in harming her. Alternatively, the respondent considered that it would not be unduly harsh for the appellant to return to a different area of Pakistan.
The appellant appealed against the removal decision and on 30 June 2010, her appeal was heard at Manchester by First-tier Tribunal Judge Cruthers. The judge dismissed the appeal, in a determination served on 5 July 2010.
Permission to appeal to the Upper Tribunal having been granted, on 30 March 2011 Deputy Upper Tribunal Judge Alis dismissed the appellant's appeal, finding that the determination of Judge Cruthers did not contain an error of law. Amongst the grounds advanced before the Deputy Judge were that there had been no consideration by the respondent or the First-tier Tribunal Judge of the best interests of the appellant's son, as required by section 55 of the Borders, Citizenship and Immigration Act 2009; and that the First-tier Judge had also failed to deal with the submission that, if returned, mother and son faced a significant danger of ostracism in Pakistan.
The latter issue caused the Court of Appeal to grant permission to appeal against the Deputy Judge's decision and on 15 November 2011, by consent, the Court ordered the case to be remitted to the Immigration and Asylum Chamber of the Upper Tribunal for a “fresh hearing”. A statement of reasons records that the parties were agreed that the Deputy Judge's decision was “infected by an error of law”, as regards the failure to deal with the issue of ostracism. This was particularly so, given that the judgment in SN (Pakistan) v Secretary of State for the Home Department [2009] EWCA Civ 181 had been placed before the First-tier Tribunal Judge, together with a written argument on the issue. In SN, the Court of Appeal had remitted an appeal to the Upper Tribunal to determine whether “ostracism of a mother with an illegitimate child is a danger in Pakistan”.
On 2 February 2012 Upper Tribunal Judge Gleeson found that the decision of the Deputy Upper Tribunal Judge involved the making of an error of law. She set his decision aside, with the announced intention that the Upper Tribunal would proceed to re-make the decision in the appeal against the immigration decision of May 2010. In this regard, she noted the passage in the statement of reasons where the parties agreed “that the matter should now be remitted to the Upper Tribunal… for it to determine the appeal afresh (subject to the preservation of the factual findings reached by Immigration Judge Cruthers)”.
On 11 June 2013 Upper Tribunal Judge Gleeson gave directions with regard to the filing of certain evidence, in connection with the forthcoming hearing. It appears that information had been supplied on behalf of the appellant, to the effect that a further child was due to be born to her in July 2013, following a number of previous miscarriages. In particular, the directions required information to be filed as to the nationality of the existing son and of the child due to be born in July. It further appears that, at this stage, matters were proceeding on the basis that the appeal might be suitable for the giving of country guidance on the issue of ostracism of women with illegitimate children in Pakistan.
A case management hearing took place on 26 September 2013 before Upper Tribunal Judge Dawson. At that hearing, Ms Isherwood, the Presenting Officer, informed the Tribunal that the respondent wished to withdraw the removal decision of May 2010 (see [3] above), on the basis that it had been made without regard to the respondent's duty under section 55 of the 2009 Act. Counsel for the appellant, Mr McCarthy, however, contended that the consent of the Upper Tribunal was required under Upper Tribunal rule 17, in order for the respondent to withdraw the May 2010 decision; and that such consent should not be granted.
The questions set out in [1] above have arisen with some frequency in this Chamber, since its inception on 15 February 2010. In order to address them, on 7 November 2013, the present panel convened to hear oral submissions from Mr McCarthy and Ms Isherwood, based on their respective skeleton arguments, which had been served in accordance with our directions. At that hearing, it became evident that the Tribunal would be assisted by further written submissions and further directions were, accordingly, given for such submissions to be lodged by 21 November. The Tribunal wishes to acknowledge the quality of the oral and written submissions, which it has received.
At this point, it is necessary to lay out relevant statutory provisions (we underline and put in bold those of particular significance):
“ Immigration and Asylum Act 2002
82. Right of appeal: general
(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal.
(2) In this Part “immigration decision” means–
(a) refusal of leave to enter the United Kingdom,
(b) refusal of entry clearance,
(c) refusal of a certificate of entitlement under section 10 of this Act,
(d) refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain,
(e) variation of a person's leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain,
(f) revocation under section 76 of this Act of indefinite leave to enter or remain in the United Kingdom,
(g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b), (ba) or (c) of the Immigration and Asylum Act 1999 (c. 33) (removal of person unlawfully in United Kingdom),
(h) a decision that an illegal entrant is to be removed from the United Kingdom by...
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