Secretary of State for the Home Department v Col Maleci

The First-tier Tribunal may direct the filing and service of evidence and may impose a sanction excluding late evidence, provided the action is just. That assessment is informed by the seriousness of the breach, the reason for it, and all the circumstances, including efficient litigation and compliance with orders.

A judge deciding the appeal must exercise the discretion independently. Under rule 17(2), however, the Secretary of State may withdraw the underlying decision. The Tribunal's limited question is whether there is good reason for the appeal nevertheless to continue; it cannot refuse permission for the underlying decision to be withdrawn.

The Secretary of State decided to deprive Col Maleci of British citizenship under the British Nationality Act 1981, alleging fraud, false representation or concealment. In his appeal, the First-tier Tribunal directed the Secretary of State to disclose documents underpinning an Embassy letter. The directions provided for a sanction on non-compliance.

The documents were supplied about four months late, without explanation or an application for relief. The First-tier Tribunal excluded them, purported to refuse the Secretary of State's attempt to withdraw the deprivation decision under rule 17(2), and allowed the appeal.

The Secretary of State appealed. The issues were the exclusion of late evidence and whether the First-tier Tribunal could prevent withdrawal of the underlying decision.

1. Appeal allowed. The First-tier Tribunal made a material error of law by purporting to refuse permission for the Secretary of State to withdraw the deprivation decision. Its decision was set aside and the appeal was treated as withdrawn.

2. Rules 2, 4, 5 and 6 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 empower the First-tier Tribunal to regulate evidence through directions and, where just, exclude evidence for non-compliance. A later judge is not bound by a direction-based sanction, but must exercise the available discretion personally.

3. The First-tier Tribunal judge had independently considered the relevant matters when refusing relief from the sanction. The breach was serious, the evidence was four months late, there was no explanation or timely application, and the judge considered both the importance and eventual availability of the documents. Refusal of relief was within the range of reasonable decisions. The absence of an express reference to the overriding objective did not establish an error.

4. Rule 17(2) distinguishes withdrawal of the underlying decision, which is for the Secretary of State, from the Tribunal's partial discretion to permit an appeal to continue despite withdrawal if there is good reason. The First-tier Tribunal conflated those questions.

5. Remaking the rule 17 issue, the Upper Tribunal held that there was good reason to treat the appeal as withdrawn. The excluded evidence was relevant to any fresh deprivation decision and the respondent would retain the same appeal rights. Ground 3 therefore required no determination.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the Secretary of State's appeal, set aside the First-tier Tribunal's decision, and treated the appeal as withdrawn: [2024] UKUT 28 (IAC).

• First-tier Tribunal: excluded late evidence, refused what it understood to be an application to withdraw the deprivation decision, and allowed the appeal under the British Nationality Act 1981.