The Secretary of State for the Home Department v EG & Anor

A respondent’s notice under rule 24 does not create a substitute right of appeal. A party seeking a materially different outcome from that reached by the First-tier Tribunal must obtain permission to appeal under the statutory scheme.

Under rule 17 of the Tribunal Procedure (Upper Tribunal) Rules 2008, a party may withdraw its case only with the Tribunal’s permission. Withdrawal takes effect only when the Tribunal gives written notice. Once an appellant’s case is withdrawn with consent, the Upper Tribunal proceedings are finally disposed of. The Tribunal need not determine the withdrawn appeal or decide matters raised only in a respondent’s rule 24 notice.

The Secretary of State appealed against First-tier Tribunal determinations promulgated on 13 December 2011. The First-tier Tribunal had rejected the claimants’ asylum and humanitarian-protection claims, but allowed their appeals on Article 3 grounds because return to Ethiopia would expose them to a real risk of prohibited ill-treatment.

After obtaining permission to appeal, the Secretary of State accepted that the Article 3 conclusion was correct on the evidence then available and sought to withdraw her Upper Tribunal case. The claimants had not sought permission to appeal. They nevertheless served a rule 24 notice challenging the findings on refugee status, exclusion, security, factual matters and Article 8.

The central issues were whether consent should be given to the withdrawal and whether rule 24(3)(e) permitted the claimants to challenge unsuccessful parts of the First-tier Tribunal’s decision without permission to appeal.

1. The Secretary of State’s case was withdrawn with the Tribunal’s consent. Rule 17 of the Tribunal Procedure (Upper Tribunal) Rules 2008 does not permit unilateral withdrawal. Permission is required, and withdrawal becomes effective only when the Tribunal notifies the parties in writing. The Tribunal gave that consent and issued the required notice.

2. The consensual withdrawal finally disposed of the Upper Tribunal proceedings. An Upper Tribunal appeal arising from a statutory immigration appeal does not continue independently once the appellant’s case has been withdrawn with consent. It is therefore unnecessary to determine the grounds on which permission had been granted. The First-tier Tribunal’s determination accordingly remained in force.

3. Rule 24(3)(e) concerns notice of the grounds on which a respondent intends to resist the appeal that is before the Upper Tribunal. It permits a respondent, where appropriate, to rely on a ground which failed below in order to uphold the existing outcome. It does not permit a respondent to seek a materially different result without permission to appeal.

4. The claimants’ proposed challenges sought a materially different outcome, including success on Refugee Convention and Article 8 grounds. They therefore required permission to appeal. They had neither sought nor obtained it, and the Upper Tribunal could not entertain an application for permission unless the First-tier Tribunal had first been asked in writing and had refused permission or declined to admit the application. No findings were made on the rule 24 notice.

5. The Tribunal continued anonymity protection under rule 14. It recorded the appeal as withdrawn with the consent of the Upper Tribunal.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was recorded as withdrawn with the Tribunal’s consent: [2013] UKUT 143 (IAC).
• First-tier Tribunal: Determinations promulgated on 13 December 2011 allowed the claimants’ appeals on Article 3 grounds only. Their asylum, humanitarian-protection and Article 8 claims did not succeed.