SM v The Secretary of State for the Home Department

The Secretary of State may withdraw an immigration decision without the Upper Tribunal’s consent. Rule 17 of the Tribunal Procedure (Upper Tribunal) Rules 2008 regulates withdrawal of a party’s case, not the Secretary of State’s underlying immigration decision.

Withdrawal does not end a pending appeal under section 82 of the Nationality, Immigration and Asylum Act 2002. The Upper Tribunal retains its error-of-law and re-making jurisdiction and may allow or dismiss the appeal, with a direction where appropriate.

On re-making, the Tribunal may make a formal disposal or decide the appeal substantively. It must apply the overriding objective, considering primary decision-making, the need for general or country guidance, the reason and timing of withdrawal, the appeal history, and the parties’ views.

The appellant, a Pakistani national, appealed against a May 2010 removal decision. Her asylum claim included a risk of harm and social ostracism in Pakistan as the mother of a child born outside her marriage.

The First-tier Tribunal dismissed the appeal. The Upper Tribunal initially found no error of law, but the Court of Appeal later remitted the case for a fresh hearing because the issue of ostracism had not been addressed. While the appeal was awaiting re-making in the Upper Tribunal, the Secretary of State withdrew the removal decision, acknowledging that it had not considered the best interests of the appellant’s child under section 55 of the Borders, Citizenship and Immigration Act 2009.

The central issues were whether that withdrawal required consent under rule 17 and what effect it had on the Upper Tribunal’s appellate jurisdiction and disposal of the appeal.

1. Rule 17 did not require consent. The appeal was not disposed of formally. Rule 17 of the Tribunal Procedure (Upper Tribunal) Rules 2008 concerns withdrawal of a party’s case; it does not empower the Upper Tribunal to prevent the Secretary of State withdrawing the underlying immigration decision. Clear statutory language would be required to impose such a fetter on the executive’s immigration functions.

2. Jurisdiction survived withdrawal. Under section 12 of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal remained obliged to decide whether the First-tier Tribunal had erred in law. If it set that decision aside, it retained jurisdiction to re-make the section 82 appeal. Section 104 of the Nationality, Immigration and Asylum Act 2002 exhaustively identifies how an appeal ceases to be pending; withdrawal of the appealed decision is not one of those events.

3. The appeal was not necessarily academic. Sections 104(4B) and 104(4C), which preserve specified asylum and discrimination grounds after a grant of leave, assume that the original adverse decision can still be determined under section 86. Accordingly, withdrawal did not prevent the Tribunal from allowing or dismissing the appeal or, if appropriate, making a direction under section 87.

4. Disposal on re-making. The Tribunal may formally dismiss an appeal after withdrawal, or exceptionally allow it where costs and the withdrawal’s reasons justify that course. It may instead determine the appeal substantively. The choice is governed by the overriding objective and requires regard to the Secretary of State’s ordinary role as primary decision-maker, any need for legal, procedural or country guidance, the reasons and timing of withdrawal, the appeal history, and the parties’ views.

5. Here, the late withdrawal acknowledged a defect concerning the child’s best interests, while the unresolved asylum issue could warrant country guidance. Formal disposal was therefore declined. As neither party was ready for a substantive country-guidance hearing, the appeal was adjourned for three months and listed thereafter for case management.

• Upper Tribunal (Immigration and Asylum Chamber): This panel held that the Secretary of State’s withdrawal did not require consent and did not remove the Tribunal’s jurisdiction. It declined formal disposal and adjourned the re-making appeal.
• Court of Appeal: On 15 November 2011, by consent, remitted the matter to the Upper Tribunal for a fresh hearing because the issue of ostracism had not been addressed.
• Upper Tribunal (Immigration and Asylum Chamber): On 30 March 2011, Deputy Upper Tribunal Judge Alis dismissed the appellant’s appeal, finding no error of law in the First-tier Tribunal’s determination.
• First-tier Tribunal: Judge Cruthers dismissed the appeal in a determination served on 5 July 2010.