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

The Secretary of State may withdraw an immigration decision under appeal where she genuinely intends to reconsider it in light of new or relevant matters. Withdrawal does not require an admission that the original decision was wrong or unlawful. The power is compatible with the one-stop appeal scheme because the Secretary of State ordinarily remains the primary decision-maker. It must not be used tactically merely to obtain more time while maintaining the original decision.

The claimants challenged the Secretary of State’s withdrawal of decisions refusing variation of their leave to remain. Their Tribunal appeals included newly raised asylum and human-rights grounds. The Secretary of State withdrew the decisions so that those matters, further evidence and the investor application could be reconsidered at first instance. The Tribunal appeals were consequently treated as withdrawn under rule 17(2) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

The claimants argued that withdrawal was unlawful unless the appeal was conceded or their conduct was abusive. They also challenged rule 17(2). The central issue was whether the Secretary of State had exercised a lawful public-law power for the proper purpose of genuine reconsideration.

1. Application dismissed. The one-stop provisions gave the Tribunal jurisdiction to consider the newly raised asylum and human-rights grounds if the appeals continued, but did not prevent lawful withdrawal of the original decisions.
2. The statutory scheme contemplated that the Secretary of State would ordinarily be the primary decision-maker in immigration, asylum and human-rights matters. The Tribunal’s ability to decide additional grounds or later evidence did not alter that ordinary division of responsibility.
3. The Secretary of State had an implied public-law power to withdraw a statutory or prerogative decision. That power was not confined to cases in which she conceded that the decision was wrong.
4. Withdrawal was lawful only where undertaken for genuine reconsideration in light of relevant matters, with an open mind and a real possibility that the decision might change. It was unlawful to use withdrawal tactically merely to obtain an adjournment or more time.
5. The evidence established that the Secretary of State was genuinely reconsidering the investor application and international-protection claims. The procedure was therefore lawful. Rule 17(2) gave procedural effect to withdrawal; the substantive power arose from general public law. The challenge to the rule accordingly did not arise and, in any event, the court was not persuaded that it was invalid.

First-instance judicial review in the Divisional Court of the Queen’s Bench Division. No earlier decision under appeal was stated.