Waseem Anwar v The Secretary of State for the Home Department

Under rule 17(1) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, an appellant withdraws an appeal by giving the prescribed notice. Judicial consent is not required for the withdrawal to take effect.

The requirement to specify reasons enables the Tribunal to identify whether the notice was validly authorised. It does not convert withdrawal into an application requiring judicial approval. If validity is disputed, the First-tier Tribunal must use its case-management powers to determine that issue, normally at a hearing. A validly withdrawn appeal cannot be reinstated merely because the appellant later changes their mind.

Waseem Anwar appealed against the refusal of a residence card under the Immigration (EEA) Regulations 2006. His solicitors gave written notice that he wished to withdraw the appeal because he intended to leave the United Kingdom voluntarily. The First-tier Tribunal recorded the withdrawal.

Shortly afterwards, the solicitors sought to reinstate the appeal, stating that the appellant had changed his mind. First-tier Tribunal Judge Burnett held that the withdrawal was valid and dismissed the appeal for want of jurisdiction. The appellant contended that, under TPN (FtT appeals – withdrawal) Vietnam [2017] UKUT 00295 (IAC), the notice was invalid because it lacked a judicial decision and signature.

The central issue was whether rule 17(1) requires judicial approval before an appellant’s withdrawal takes legal effect.

1. Appeal dismissed. The First-tier Tribunal made no error of law in holding that the appeal had been validly withdrawn and that it had no jurisdiction to determine its merits.

2. Rule 17(1) gives the appellant the decision whether to withdraw an appeal. On its ordinary meaning, it both permits withdrawal by written notice or orally at a hearing and requires reasons to be specified. The requirement for reasons does not make their adequacy a precondition of a legally effective withdrawal, nor does it require the Tribunal’s consent.

3. The contrast with procedure rules in other Tribunal chambers, which expressly require consent, confirmed that rule 17(1) contains no such requirement. The Tribunal therefore declined to follow TPN (FtT appeals – withdrawal) Vietnam [2017] UKUT 00295 (IAC), insofar as it treated every appellant withdrawal as an application requiring a reasoned judicial decision.

4. Reasons serve a different function. They may reveal whether the purported withdrawal was truly the appellant’s deliberate and informed decision. Consistently with AP (Withdrawals – nullity assessment) Pakistan [2007] UKAIT 00022, where validity is in issue the First-tier Tribunal must determine it through its case-management powers, normally after a hearing. That determination is judicial; a routine notification under rule 17(3) is merely formal or administrative.

5. Judge Burnett correctly found that the solicitors had been authorised to withdraw the appeal. The appellant’s subsequent change of mind did not invalidate that withdrawal. There is no procedure under these Rules for reinstating an appeal that was validly withdrawn.

6. A decision determining withdrawal validity may be appealable where it is substantive rather than a procedural, ancillary or preliminary excluded decision. Judge Burnett’s jurisdictional decision was substantive and was therefore appealable to the Upper Tribunal.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appellant’s appeal and upheld the First-tier Tribunal’s conclusion that the appeal had been validly withdrawn.

• First-tier Tribunal (Immigration and Asylum Chamber): Judge Burnett found that the appellant’s solicitors had validly withdrawn the appeal and dismissed it for want of jurisdiction.