TPN (Anonymity Direction Made) v The Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | THE HON. MR JUSTICE MCCLOSKEY |
| Judgment Date | 21 July 2017 |
| Neutral Citation | [2017] UKUT 295 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 21 July 2017 |
[2017] UKUT 295 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
THE PRESIDENT, The Hon. Mr Justice Mccloskey
For the Appellant: Mr J Packer, Advocate, of Duncan Lewis & Co Solicitors
For the Respondent: Mr J Jollife, of counsel, instructed by Government Legal Department
TPN (FtT appeals — withdrawal) Vietnam
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(i) The public law character of appeals to the FtT is reflected in the regulatory requirement governing the withdrawal of appeals that any proposed withdrawal of an appeal must contain the reasons for the course mooted and must be judicially scrutinised, per rule 17 of the FtT Rules and rule 17 of the Upper Tribunal Rules.
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(ii) Judicial evaluation of both the withdrawal of an appellant's appeal and the withdrawal of the Secretary of State's case or appeal is required.
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(iii) Every judicial determination of an appellant's proposal to withdraw an appeal or the Secretary of State's proposal to withdraw requires a brief outline of the reasons for the decision. The purpose of the judicial scrutiny is to ensure that the appeal is being properly and correctly withdrawn.
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(iv) Judicial scrutiny will normally result in the mooted withdrawal of the appeal being perfected by transmission of the notice to the parties required by Rule 17(iii). However, this will not occur automatically: for example where the proposed withdrawal lacks coherence or is based on a clear material misunderstanding or misconception.
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(v) The outcome of the judicial scrutiny should be briefly reasoned.
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(vi) Rule 29 of the FtT Rules is confined to the substantive determination of appeals.
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(vii) The power of the FtT to set aside a decision under Rule 32 is exercisable only by the FtT President and the Resident Judges.
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(viii) In cases where an unsuccessful appellant has a choice, best practice dictates that an application to set aside the impugned decision of the FtT under Rule 32 be first exhausted in advance of the lodgement of an application for permission to appeal to the Upper Tribunal. Where both species of challenge are lodged simultaneously, it will be sensible to assign them to the same Judge where feasible.
This appeal raises certain questions of some importance relating to the withdrawal of appeals to the First-tier Tribunal (“FtT”) and, in particular, the judicial role and responsibility in this process.
Before the FtT, counsel representing the Appellant sought to withdraw his client's appeal against the decision of the Respondent, the Secretary of State for the Home Department (the “Secretary of State”), whereby the application for asylum of the Appellant, a national of Vietnam now aged 13 years, was refused. The assembled evidence is sufficiently satisfactory and in its key aspects uncontroversial to enable the following outline of events in the FtT to be formulated:
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(a) As indicated, the Appellant, a minor then aged 13 years, was represented by counsel instructed by the Appellant's solicitors. There was also a representative of the instructing solicitors in attendance. Counsel was centrally involved in the events which unfolded.
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(b) The actions of counsel were evidently precipitated by an intervention on the part of the FtT Judge unfavourable in terms to the merits of the appeal. What counsel did was clearly motivated by this.
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(c) Counsel then applied to have the appeal withdrawn. No reasons were provided. The FtT Judge sanctioned this course.
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(d) Counsel did not have the authority of either the Appellant or any duly authorised agent of the Appellant for this course.
The salient aspects of the FtT Judge's conduct of the hearing at first instance are outlined above. To this summary it is necessary to add one further feature of some significance. The outcome of the hearing was not recorded in any order, decision or other document bearing the Judge's name or signed by the Judge. It was, rather, recorded in a HMCTS pro-forma (Form IA55), dated 24 November 2016 (six days post-hearing) and addressed to the Appellant's solicitors. This document contains all the basic, formal details pertaining to the appeal and, under the rubric “Notice”, states:
“The appellant was represented at the hearing, his Counsel took the view to withdraw perfectly and legitimately, in these circumstances there is nothing for the tribunal to do. Solicitors should take it up with Counsel.”
This form makes provision for signature by the “Clerk to the First-tier Tribunal”. However, it bears no person's signature. As the text reproduced above indicates, the document was completed reactively and retrospectively.
The context in which the aforementioned Form IA55 was completed becomes clear when one identifies what preceded and precipitated it, namely a letter dated 18 November from the Appellant's solicitors to the FtT “for the attention of” the Judge concerned. This states, so far as material:
“We write further to the above matter and the full hearing listed today that was withdrawn by Counsel ….
We hereby confirm that we were not consulted about this. Counsel withdrew the appeal without our authorisation ……
The Appellant had his foster carer, his social worker, the foster carer's senior social worker and another witness all in attendance. …….
We submit that for something as important as an asylum and human right's appeal for an unaccompanied minor, aged 13 years old, we would not have withdrawn his appeal in those circumstances.”
The letter then raises the issue of the decision being set aside under Rule 32 ( infra) on the basis that this would be in the interests of justice or on the ground of procedural irregularity. The response which this stimulated, in Form IA55, does not address this discrete application and does not purport to determine it. This is unfortunate, not least because of the clear indications that the response was prepared either by or under the direction of the Judge concerned.
I interpose the following at this juncture. Initially Instructed counsel has not had instructions to represent the Appellant since the FtT hearing. Counsel has, however, clearly been most cooperative and, so far as I can determine, candid in his interaction with the Appellant's solicitors. This is deserving of some credit, in a context of professional embarrassment and possible disciplinary action. If and insofar as there is any enquiry into the events summarised in [2] above in another forum, I emphasise two things. First, this summary is based on the evidence available to this tribunal. Second, it does not purport to bind any other court or tribunal and, as a matter of law, does not have this effect in any event.
Permission to appeal to this Tribunal was, properly, granted in the following terms:
“The grounds requesting permission to appeal to the Upper Tribunal argue that the Judge erred in allowing the withdrawal …
It is arguable that the Judge committed or permitted a procedural or other irregularity”.
As a result of the case management steps taken in this forum, the issues have crystallised and, ultimately, clear and focussed arguments, both written and oral, by Mr Packer (on behalf of the Appellant) and Mr Jolliffe (on behalf of the Secretary of State) have been presented. I commend both representatives for the quality of their written and oral advocacy.
The following are the salient provisions of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (the “FtT Procedural Rules”). I begin with the overriding objective which, by no coincidence, sits proudly at the apex of this regulatory regime and requires neither introduction nor reproduction for the purposes of this decision: see Rule 2. Next, I highlight the broad and flexible case management powers enshrined in Rule 4 and the equally wide ranging directions provisions of Rule 5. It is also appropriate to take into account Rule 6(1), which provides:
“An irregularity resulting from a failure to comply with any requirement in these Rules, a practice direction or a direction does not of itself render void the proceedings or any step taken in the proceedings.”
The withdrawal of appeals to the FtT is regulated by certain specially tailored provisions. Rule 17 is the main vehicle:
“(i) 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.
(ii) 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.
(iii) 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.”
Rule 29 provides:
“(i) The Tribunal may give a decision orally at a hearing.
(ii) Subject to rule 13(2) (withholding information likely to cause serious harm), the Tribunal must provide to each party as soon as reasonably practicable after making a decision (other than a decision under Part 4) which disposes of the proceedings-
(a) a notice of decision stating the Tribunal's decision; and
(b) notification of any right of appeal against the decision and the time within which, and the manner in which, such right of appeal may be exercised.
(iii) Where the decision of the Tribunal relates to-
(a) an asylum claim or a humanitarian protection claim, the...
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