Upper Tribunal (Immigration and asylum chamber), 2007-02-23, [2007] UKAIT 22 (AP (Withdrawals, nullity assessment))
| Jurisdiction | UK Non-devolved |
| Judge | Mr A R Mackey, Mr J Nicholson |
| Status | Reported |
| Date | 23 February 2007 |
| Published date | 19 March 2007 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 22 November 2006 |
| Subject Matter | Withdrawals, nullity assessment |
| Appeal Number | [2007] UKAIT 22 |
Asylum and Immigration Tribunal
AP (Withdrawals-nullity assessment) Pakistan [2007] UKAIT 00022
THE IMMIGRATION ACTS
|
Heard at Manchester, Piccadilly |
Determination Promulgated |
|
On 22 November 2006 |
On 23rd February 2007 |
|
|
|
Before
SENIOR IMMIGRATION JUDGE MACKEY
Immigration Judge nICHOLSON
Between
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr A Durrance, of Counsel instructed by Zacharia and Co. Solicitors, Oldham
For the Respondent: Mr T Dillon, Home Office Presenting Officer
Rule 17 of the Asylum and Immigration Tribunal (Procedure) Rules) 2005 provides the basis for withdrawal of appeals. Where a party has withdrawn an appeal there is then nothing before the Tribunal and the matter is at an end. The validity or effectiveness of the withdrawal can be challenged to ascertain whether the “withdrawal” was in fact a nullity. If a challenge is made there will be a hearing, where the Appellant must establish, on the balance of probabilities, that the withdrawal was invalid. [Inexhaustive reasons and guidelines are set out in para 57 (f).] This approach is noted as consistent with the approach to withdrawals (“abandonment”) in r.63.5 of the Criminal Procedure Rules 2005 (S.I 2005 No 384), the Court of Appeal decision in Reg v. Medway [1976] 2 WLR 528, and approach taken by SIAC.
DECISION ON VALIDITY OF WITHDRAWAL AND DIRECTIONS FOR ADJOURNMENT
1. This appeal came before us following directions given by Immigration Judge Nicholson on 17 October 2006:
“DIRECTIONS
1. This appeal number AA/08328/2006 came before Immigration Judge Mr Mulvenna on 8 August 2006 in Manchester. At that time the Appellant was represented by T Solicitors. In a Notice of Decision dated 8 August 2006 Immigration Judge Mr Mulvenna stated that the Appellant had withdrawn the appeal orally at the hearing on 8 August 2006.
2. The Appellant’s new representatives, Zacharia & Co Solicitors, have, by letter of 26 September 2006, sought to argue that the Appellant’s former representatives, TS Solicitors, had no instructions to withdraw the appeal. They now seek to contest that withdrawal.
3. In the appeal of Adewole v SSHD (HX/64696/96) the Immigration Appeal Tribunal stated that –
‘An appeal, which was properly withdrawn, prior to its hearing by an Adjudicator, did not go in to a state of suspended animation; it ceased to exist, and there was no provision in the Immigration Rules for it to be resuscitated’.
The Tribunal went on to state that, in those circumstances, the burden of proof lay upon an Appellant to establish on a balance of probabilities that there had been no proper withdrawal and that the representative had, in effect, acted without the authority or consent of the Appellant when purporting to withdraw an appeal.
In the appeal of El-Tuyeb v SSHD (TH/22187/94) the Immigration Appeal Tribunal stated that:-
‘Where a withdrawal of an appeal is contested, the Adjudicator must allow an opportunity to put the case against withdrawal. This reflects the fundamental principle that each party should be able to put the case before the Adjudicator and the need for this is particularly so where a notice of withdrawal is presented on the day of the hearing. Further, where there is a contested withdrawal, there should be a determination with reasons as to whether the appeal is withdrawn or not.’
4. In the light of these Tribunal decisions it is directed as follows:-
(i) The Appellant’s application challenging the withdrawal of this appeal should be listed for an oral hearing with a time estimate of one hour.
(ii) Witness statements of evidence to be called at the hearing relating to the issue of the contested withdrawal shall be filed at least five days before the hearing, such statements to stand as evidence in chief at the hearing.
(iii) A paginated and indexed bundle of all the documents to be relied on at the hearing, limited to the issue of the contested withdrawal, shall be filed and served no later than five days before the hearing.
(iv) The parties shall file and serve skeleton arguments addressing the issue of the contested withdrawal.
(v) All documents shall be filed in duplicate as the hearing of this issue may be listed for a panel hearing.
(vi) In line with the Tribunal decisions in MM [2004] UKIAT 00182 and SV (Iran) [2005} UKIAT 00160 the Appellant’s representatives shall, no later than five days before the hearing –
(a) Confirm in writing to the Tribunal that they have submitted a copy of their letter of 26 September 2006 to the Appellant’s former representatives T Solicitors.
(b) Confirm in writing to the Tribunal that they have invited T Solicitors to reply directly to the Tribunal before the date of the hearing.
(c) Confirm in writing to the Tribunal that they have sent T Solicitors a signed waiver of the Appellant to any rights of privilege she may have in respect of her communications with T Solicitors on the issue of the contested withdrawal or confirm in writing to the Tribunal why they are not in a position or do not consider it appropriate to require the Appellant to waive any privilege she may have on this issue.”
2. The appellant is a national of Pakistan and claims to have arrived in this country in August 2001 and it appears made initial application for asylum in January 2002. It is unclear whether that application was processed or taken further by her original representatives, the IAS in Manchester. She then lodged another application on 28 April 2006, primarily based on her fears of returning to Pakistan because she has had illegitimate children, who have been born to her while she has been in this country. That application was refused, in a letter from the respondent, dated 16 June 2006. The appellant then lodged an appeal with this Tribunal. When the matter came before Judge Mulvenna, on 8 August 2006, the appellant was then represented by T Solicitors. As noted, Immigration Judge Mulvenna was notified that the appellant had withdrawn her appeal. Subsequent to her short appearance before Judge Mulvenna however she then instructed new representatives, Zacharia and Co. By a letter of 26 September 2006 they sought to argue that the appellant’s former representatives had not been given valid instructions to withdraw her appeal. Accordingly, they sought to contest the withdrawal and continue the appeal.
3. The letter from Zacharia and Co. Solicitors to the Tribunal, dated 26 September 2006, stated:
“The above named has instructed us to take over the care and contact of her asylum matter. Our client’s appeal against the Secretary of State’s decision to refuse her asylum application was listed for an appeal hearing at AIT Bradford on 18 July 2006.
Our client has instructed us that on the day of the appeal hearing she was advised by her previous representative Messrs T Solicitors to withdraw her appeal. Our client clearly did this, however she instructs us that she was not aware of the exact implication of this and thought that her appeal would be heard at a later date. Our client maintained that if she was returned to Pakistan she would be due to her membership of a social group and religious opinion (sic) she further maintains if she is returned to Pakistan she will be considered an adulteress. Pakistan is governed by Shariah law; under Shariah law the punishment for such a person is death by stoning.
Our client’s illegitimate children would become if it is not already common knowledge in Pakistan no doubt as you are aware Pakistan is an extremely patriarchal society, our client would not be able to turn to the State or authorities for protection and as a result fears persecution and believes her life will be at risk in Pakistan (sic)
Given the above and in the interests of natural justice we request that our client’s appeal right be reinstated so that she has the opportunity for her case to be heard. She has a right to a fair trial.
We request that our client be allowed her appeal to be heard as it is of the utmost importance to her given the fact that her life and liberty are at stake.”
4. The preliminary issue as to whether a valid withdrawal had been lodged by the appellant was set down before us as a matter for determination, on the basis that if we found in her favour, the matter would be adjourned for a full hearing of the substantive appeal. The appellant’s new representatives presented a skeleton argument, a statement from the appellant, AP, dated 21 November 2006, a copy of a letter from T Solicitors dated 15 November 2006 addressed to the appellant’s new representatives, a form of authority signed by the appellant dated 8 August 2006 and a copy of the letter sent to Mr T at T Solicitors from Zacharia and Co. dated 9 November 2006. (Mr T’s letter of 15 November 2006 responds to the letter of 9 November 2006). On the date of the hearing we were presented with a handwritten statement by a Mr L, dated 22 November 2006. Both the appellant and Mr L gave evidence before us.
5. In this case the Respondent challenged the invalidity of withdrawal. However, we made it clear at the outset that the Respondent...
To continue reading
Request your trial