Glushkov, R (on the application of) v Secretary of State for Home Department & Anor

Withdrawal of an immigration appeal under rule 17(2) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 is not confined to cases where the Secretary of State intends to concede the underlying claim. It may be used where genuinely received material requires reconsideration because the original decision might change.

The power must not be used tactically to obtain more time or avoid an adjournment. A challenge will require proper evidence of bad faith or irrationality. Once the decision under appeal has been withdrawn in accordance with rule 17(2), the tribunal has no jurisdiction to continue determining the appeal.

The claimant sought judicial review after the Secretary of State notified the Asylum and Immigration Tribunal, shortly before a substantial asylum appeal, that she was withdrawing the refusal decision under rule 17(2) so that it could be reconsidered in light of late-served evidence.

The claimant argued that withdrawal was available only where the Secretary of State intended to concede the claim, and that the decision was a tactical attempt to avoid an adjournment. The central issues were the proper scope of rule 17(2), the tribunal’s jurisdiction following withdrawal, and whether the Secretary of State’s decision was unlawful or irrational.

1. The claim for judicial review was dismissed. The tribunal was right to conclude that, following withdrawal of the decision under rule 17(2), it had no jurisdiction to determine the appeal.

2. Part 5 of the Nationality, Immigration and Asylum Act 2002 provides for a full factual reconsideration on appeal. Section 104 distinguishes a pending appeal from one that has been withdrawn or abandoned. The distinction is reflected in rules 17 and 18 of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

3. Rule 17(2) contains no requirement that the Secretary of State must have decided to accept the claim. A departmental consultation document could not control the construction of the statutory rule. Withdrawal may properly occur where further material persuades the Secretary of State that reconsideration is required because the original decision might change.

4. The power is subject to an important limitation. It must not be used merely as a tactical means of obtaining more time or avoiding an application for an adjournment. The Secretary of State must genuinely consider that reconsideration may lead to a different decision and must act with reasonable dispatch, particularly where delay may affect vulnerable or elderly witnesses.

5. The claimant had not produced sufficient material to establish bad faith or irrationality. The Treasury Solicitor’s letter could have been clearer, but on a fair reading it implicitly conveyed that genuine reconsideration was intended. The decision was not one which no reasonable Secretary of State could have made.

6. For future cases, a duty judge should not grant permission in this type of urgent judicial review. The proper course is to list the matter for the earliest oral hearing and, if appropriate, make an interim order. This was guidance rather than a basis for the disposition.

7. Costs were awarded to the Secretary of State, limited to preparation of the skeleton argument and the hearing, subject to detailed assessment if not agreed. The court also directed that the names of individuals mentioned in documents on the court file, other than the claimant and Mr Berezovsky, must not be made public.