TPN v The Secretary of State for the Home Department

Withdrawal of an appeal under rule 17 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 is not automatic. The party proposing withdrawal must give reasons, and an FtT judge must decide whether withdrawal is appropriate. The judge must be satisfied that the appellant acts freely and understands the consequences, and should refuse an incoherent proposal or one founded on a material misunderstanding.

The required notice must record a judicial decision and briefly explain why the reasons for withdrawal were accepted or rejected. Rule 29 governs substantive determinations, not a rule 17 withdrawal decision. A rule 32 set-aside application is normally the preferable first remedy, but it does not restrict the statutory right to seek permission to appeal.

The appellant, an unaccompanied Vietnamese child, had appealed to the First-tier Tribunal against refusal of his asylum claim. At the hearing, counsel sought to withdraw the appeal after an intervention by the judge adverse to its merits. Counsel gave no reasons and lacked authority from the appellant or an authorised agent.

The FtT subsequently sent an unsigned retrospective pro-forma notice stating that there was nothing for the Tribunal to do. The appellant’s solicitors sought to challenge that outcome, including by reference to rule 32. Permission to appeal was granted on the arguable basis that the FtT had committed or permitted a procedural irregularity. The central issue was the judicial role and responsibility in withdrawal of FtT appeals.

1. The appeal was allowed. The FtT’s purported acceptance of withdrawal was set aside for material errors of law, and the asylum appeal was remitted for a rehearing before a differently constituted FtT.

2. Rule 17 creates a judicial process. Although a notice of proposed withdrawal begins the process, it must state reasons and requires active, informed judicial scrutiny. In the relevant parts of rule 17, “the Tribunal” means an FtT judge rather than its administration. The judge must decide whether there is good reason to permit withdrawal; approval is not obligatory.

3. The same essential process applies where the appellant proposes withdrawal and where the Secretary of State withdraws the underlying decision. Scrutiny protects the appellant, detects misuse of process, and serves the public interest. A judge should ordinarily ascertain that withdrawal is free, informed and coherent. Greater vigilance may be required for an unrepresented appellant.

4. Rule 29 is confined to substantive determinations of appeals. However, rule 17(3) requires a judge-composed, signed and dated notice confirming the outcome. Applying the common-law duty to give reasons, the notice must briefly explain why the reasons advanced for withdrawal were satisfactory or insufficient. An unsigned, retrospective and conclusory pro-forma did not meet those requirements.

5. The appellant could alternatively have sought to set aside the FtT decision under rule 32, since the procedural irregularity and interests-of-justice conditions were engaged. That route should normally be exhausted first because it is quicker and cheaper, but section 11 of the Tribunals, Courts and Enforcement Act 2007 does not make it a precondition to seeking permission to appeal. Where both routes are pursued, they should, where feasible, be assigned to the same judge and the rule 32 application determined first.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal, set aside the FtT’s purported withdrawal decision for material errors of law, and remitted the asylum appeal to a differently constituted FtT.
• First-tier Tribunal: Purported to permit withdrawal of the appellant’s appeal and later issued an unsigned pro-forma notice. No lower-court citation was stated.