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

Under the one-stop procedure, the tribunal must determine all permissible asylum and human-rights grounds if the appeal continues, including grounds raised for the first time during the appeal. That duty does not prevent the Secretary of State from withdrawing an immigration decision for genuine reconsideration or consideration of a new claim as primary decision-maker. Withdrawal is not unlawful merely because it ends the pending appeal. A failure to consider prejudice was an error, but caused no material prejudice and did not justify relief. The challenge to rule 17(2) was unavailable in these proceedings and, in any event, lacked substantive merit.

The appellants challenged the Secretary of State’s withdrawal of refusals of applications to vary leave while their one-stop appeals were pending. They had raised asylum and human-rights grounds for the first time at the appellate stage. The Secretary of State withdrew the decisions to reconsider the investor application and consider the protection claims as primary decision-maker. The tribunal then treated the appeals as withdrawn under rule 17(2) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

The Divisional Court dismissed the application for judicial review: [2010] EWHC 1858 (Admin). The Court of Appeal considered challenges based on the one-stop statutory scheme, section 3C of the Immigration Act 1971, irrationality, prejudice and the validity of rule 17(2).

1. Appeal dismissed. The one-stop scheme requires the tribunal to determine all permissible grounds, including asylum and human-rights grounds raised after the appeal begins, if the appeal continues. AS (Afghanistan) established that position, but did not address the Secretary of State’s power to withdraw the decision under appeal.
2. The Secretary of State has an implied general public-law power, subject to ordinary public-law principles, to withdraw an immigration decision so that the original application can be reconsidered or a new claim considered in light of matters raised during the appeal or other developments. Exercising that power is not inconsistent with the one-stop scheme merely because the withdrawal ends the existing appeal.
3. The withdrawal here pursued a specific and positive purpose. The Secretary of State rationally considered that the investor application and the new protection issues should first be considered by specialist officials, with a fresh right of appeal if the outcome was adverse. The decision was not taken simply to prevent the tribunal acting as primary decision-maker.
4. The court left open the effect of section 3C(4) of the Immigration Act 1971. No decision on that issue was necessary because withdrawal removed any possible relevance of section 3C to the making of a further claim. The withdrawal decision was not premised on any particular interpretation of the subsection.
5. The Secretary of State had failed to take account of the appellants’ alleged prejudice from delay. That was an error, but it was immaterial. The extradition hearing had been adjourned, the Secretary of State could make fresh decisions promptly, and any resulting appeal could be expedited. The court also considered that the statutory bar on extradition pending final determination of an asylum claim, and the possible discretion to adjourn extradition proceedings, reduced the practical prejudice.
6. The challenge to rule 17(2) could not be maintained in proceedings directed only at the Secretary of State’s decision, because the tribunal’s decision applying the rule was not challenged and the tribunal was not a party. In any event, the challenge lacked merit. Section 106 of the Nationality, Immigration and Asylum Act 2002 conferred broad rule-making power, and rule 17(2) reflected sensible withdrawal practice.

1. Court of Appeal (Civil Division): dismissed the appeal against the Divisional Court’s order.
2. High Court of Justice, Divisional Court: dismissed the judicial review application in [2010] EWHC 1858 (Admin).