ZEI & Ors v The Secretary of State for the Home Department

Under Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, rule 17(2), an appeal will ordinarily be treated as withdrawn when the respondent withdraws the decision under appeal. It should continue only where the appellant identifies a reason sufficiently good to displace that default.

The Tribunal does not determine whether the Secretary of State was entitled to withdraw her decision. It must instead assess the practical prejudice to the appellant. Reduced appeal rights under a later decision may be a good reason. Delay, a virtually certain pure point of law, and the effect on children may also be relevant in the stated circumstances. Legal aid, the parties’ wishes, an inappropriate reason for withdrawal, and witness inconvenience will ordinarily not suffice.

The Secretary of State withdrew the first appellant’s removal decision during a First-tier Tribunal hearing. The First-tier Tribunal treated the appeal as withdrawn under rule 17 and did not determine the appellants’ contention that there was good reason for it to continue.

The appellants obtained permission to appeal after a complex procedural history. While the appeal was pending, the Secretary of State made a further protection decision. That decision gave rise to reduced appeal rights because of amendments to section 82.

The Upper Tribunal considered whether the First-tier Tribunal had erred in treating the original appeal as withdrawn and gave guidance on the proper operation of rule 17(2).

1. Appeal allowed. The First-tier Tribunal materially erred by asking whether the Secretary of State had a valid reason to withdraw her decision, rather than whether there was a good reason for the appeal not to be treated as withdrawn under rule 17(2).

2. Rule 17 establishes a default position: an appeal is generally to be treated as withdrawn once the decision under appeal has been withdrawn. The appellant must identify a reason, or combination of reasons, which the judge considers sufficiently good to justify continuation. The standard is not one of rarity or exceptionality.

3. The Tribunal has no jurisdiction to decide whether the Secretary of State ought to have withdrawn the decision. It has no power to require the Secretary of State to have, or to give, a good reason for withdrawal. Once withdrawal is formalised, the former decision cannot operate against the individual; a replacement requires a new decision and a new appeal.

4. The question whether an appeal should continue can arise only at the appellant’s instance. The appellant must have an opportunity to advance the case for continuation and the Secretary of State an opportunity to answer it. Unless the matter can be addressed at a listed hearing, the ordinary course is fourteen days for the appellant’s submissions and fourteen days for the respondent’s response.

5. The Tribunal approved the relevance of the factors identified in SM (withdrawal of appealed decision – effect (Pakistan)) [2014] UKUT 64 (IAC), while recognising that it concerned a different procedural rule. The guidance was illustrative, not exhaustive. A reduction in appeal rights under a later decision is capable of being a good reason; undue delay may be so where the appellant was entitled to expect a decision; and a pure point of law which is certainly or almost certainly bound to succeed may justify continuation. Children may strengthen a good reason based on delay.

6. In contrast, the parties’ shared wish to continue, the loss of legal aid, a withdrawal thought inappropriate, and the inconvenience or expense of reassembling witnesses will ordinarily not be good reasons.

7. Here the later decision carried substantially reduced appeal rights. That prejudice was a good reason for the original appeal to continue. The First-tier Tribunal’s withdrawal decision was set aside. Sitting also as First-tier Tribunal judges, the Upper Tribunal decided that appeal AA/11525/2014, the related appeals, and AA/00643/2016 remained pending for determination.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal from the First-tier Tribunal’s decision treating AA/11525/2014 as withdrawn, set that decision aside, and determined that the appeal should not be treated as withdrawn.
• First-tier Tribunal: At a hearing on 2 March 2015, treated the appeal as withdrawn following the Secretary of State’s withdrawal of the removal decision.