Upper Tribunal (Immigration and asylum chamber), 2019-03-05, [2019] UKUT 125 (IAC) (Anwar (rule 17(1): withdrawal of appeal))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Mr C M G Ockelton, Vice President, Mr M A Clements, President, First-tier Tribunal (Immigration and Asylum Chamber) |
| Status | Reported |
| Date | 05 March 2019 |
| Published date | 16 April 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | rule 17(1): withdrawal of appeal |
| Hearing Date | 07 December 2018 |
| Appeal Number | [2019] UKUT 125 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
Anwar (rule 17(1): withdrawal of appeal) [2019] UKUT 00125 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 7 December 2018
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………………………………… |
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Before
THE HON. MR JUSTICE LANE, PRESIDENT
MR C. M. G. OCKELTON, VICE PRESIDENT
MR M. A. CLEMENTS, PRESIDENT,
FIRST TIER TRIBUNAL, IMMIGRATION AND ASYLUM CHAMBER
Between
WASEEM ANWAR
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the appellant: No appearance or representation
For the respondent: Mr P. Deller, Senior Home Office Presenting Officer
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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;
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That decision does not require judicial approval, in order for it to be effective;
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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;
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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 “procedural, 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;
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The decision of Upper Tribunal in TPN (FtT appeals – withdrawal) Vietnam [2017] UKUT 00295 (IAC) not followed. The decision in AP (Withdrawals – nullity assessment) Pakistan [2007] UKAIT 00022 followed.
DECISION AND REASONS
A. Introduction
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How can an appellant withdraw an appeal that is before the Immigration and Asylum Chamber of the First-tier Tribunal? What is the role of the Tribunal in this process? These two questions arise for determination in the present case.
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The appellant is a citizen of Pakistan, born in 1990. He appealed under the Immigration (EEA) Regulations 2006 against the decision of the respondent, on 10 November 2015, to refuse to issue the appellant with a residence card as confirmation of a right to reside in the United Kingdom as the extended family member of a person (his brother in-law) present and exercising Treaty rights in this country.
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On 26 September 2016, the appellant’s representatives, Britain Solicitors, wrote to the First-tier Tribunal as follows:-
“We are instructed by the client that he wants to withdraw his appeal which is pending with the First-tier Tribunal with appeal number EA/00270/2016, as he wants to leave the UK voluntarily. Please update your system and issue IS.52 (Notice of Withdrawal) accordingly.
Your co-operation in this matter will be highly appreciated.”
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On 28 September 2016, the First-tier Tribunal issued a written notification recording the withdrawal.
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On 5 October 2016, Britain Solicitors sent to the First-tier Tribunal “an application to reinstate appeal”. In it, they said:-
“On 26 Sep 2016 we are instructed by the client that he wants to withdraw his appeal as he is leaving the UK voluntarily, further we requested to the Tribunal this withdraw this EA/00270/2016 appeal.
On 03 Oct 2016, we received Notice of Withdrawal “the Appellant has withdrawn the appeal by notice” dated 28 Sep 2016.
On 05 Oct 2016, we are instructed by the client that he wants to proceed further with his appeal in the UK. Previously he had emergency in back home (sic) that’s why he wants to leave this country urgently and now everything is fine and wants to continue his appeal before the FTT (IAC).
In the circumstances, we respectfully request the Tribunal to reinstate his appeal and confirm us in writing. We really apologise for any inconvenience in this matter.
Your cooperation in this matter will be highly appreciated (original emphasis)”.
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On 19 March 2018, First-tier Tribunal Judge Burnett considered the matter. He did so without a hearing, as the appellant had confirmed that he wanted the appeal to be decided in that manner.
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In a careful decision, which included an analysis of the case law we shall address in due course, Judge Burnett found that there was “no evidence that the request for the withdrawal of the appeal was not properly made by Britain Solicitors” (paragraph 17). The judge concluded that the appeal had been withdrawn on 26 September 2016 and that he accordingly had no jurisdiction to consider the merits of the appeal. He therefore dismissed the appeal for want of jurisdiction.
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In his grounds of appeal to the First-tier Tribunal, seeking permission to appeal to the Upper Tribunal, the appellant submitted that since the Notice of Withdrawal of 26 September 2016, was not a judicial decision, bearing a judicial signature, the Notice of Withdrawal was invalid. The appellant relied for this proposition upon the decision of the Upper Tribunal (Hon. Mr Justice McCloskey, President) in TPN (FtT appeals - withdrawal) Vietnam [2017] UKUT 00295 (IAC).
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Permission to appeal to the Upper Tribunal against Judge Burnett’s decision was granted by the First-tier Tribunal. A notice of hearing was sent to the appellant, c/o Britain Solicitors, pursuant to their email of 4 June 2018 to the Upper Tribunal, in which they had said:- “Kindly direct all future correspondence to us”.
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On 29 October 2018, the respondent informed the Upper Tribunal that the appellant had been removed to Pakistan on 1 August 2018 and that the respondent was not aware of his current address.
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At the hearing on 7 December 2018, there was no appearance by the appellant or any representative of the appellant. The appellant had been notified of the hearing, at the correspondence address given by his representatives. In all the circumstances, the Upper Tribunal decided that it was appropriate to proceed in the absence of the appellant.
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We observe that on 22 December 2018, Briton Solicitors (which appears to be the same entity as Britain Solicitors) wrote to the Upper Tribunal to say that, according to their file, the appellant’s address was one in London E13, which had been recorded several years earlier. This communication, however, made no reference to the reason why the appellant had not been represented at the hearing on 7 December. Nor did it engage with whether the appellant had been removed from the United Kingdom.
B. Rule 17 of the FtTIAC Rules
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Rule 17 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (“the FtTIAC Rules”) provides as follows:-
“Withdrawal
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.”
C. Procedure rules concerning withdrawal in other Chambers etc
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The Procedure Rules of other Chambers of the First-tier Tribunal are in markedly different forms. For example, rule 17 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, so far as relevant, reads:-
“(1) Subject to paragraph (2), a party may give notice of the withdrawal of its case, or any part of it –
(a) … by sending or delivering to the Tribunal written notice of withdrawal; or
(b) orally at a hearing.
(2) In the circumstances as described in paragraph (3), a notice of withdrawal will not take effect unless the Tribunal consents to the withdrawal.
(3) The circumstances referred to in paragraph (2) are where a party gives notice of withdrawal –
(a) … in a criminal injuries compensation case;
( b) in a social security and child support case where the Tribunal has directed that notice of withdrawal shall take effect only with the Tribunal’s consent; or
(c) at a hearing.
(4) An application for a withdrawn case to be reinstated may be made by –
(a) the party who withdrew the case;
(b) where an appeal in a social security and child support case has been withdrawn, a respondent.
(5) An application under paragraph (4) must be made in writing and be received by the Tribunal within 1 month after the earlier of –
(a) the date on which the applicant was sent notice under paragraph (6) that the withdrawal had taken effect; or
(b) if the applicant was present at the hearing when the case was withdrawn orally under paragraph (1)(b), the...
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