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Withdrawal of immigration appeals

05 November 2017

These days immigration applicants do not in many cases have the right of appeal to the Immigration Tribunal (formally and correctly known as the "First-Tier Tribunal (Immigration and Asylum Chamber)" if their application is refused. Applicants in for example working visa categories, study visa categories and visitor visa categories no longer have such a right.

In some categories however there still is the right of appeal to the Tribunal: in for example human rights, asylum and European application categories. In categories such as these if the application is refused the applicant can lodge an appeal with the Tribunal and, in the normal course of events, in due course the Tribunal will hear the case and make a decision as to whether the refusal decision was right or wrong. The applicant becomes an "appellant" and other side (ie the Home Office or the Entry Clearance Officer) becomes the "respondent".

Once the appeal has been lodged but has not yet been heard either party can potentially withdraw from the appeal if they wish. In the case of an appellant there could be a variety of reasons for doing this. Their circumstances and situation may have changed, or they may have decided to abandon the appeal so they can make a fresh application, or perhaps they might have to return home for some pressing reason.

In the case of a respondent the likely reason for withdrawing from an appeal is that, after consideration, they have reached the conclusion that they are unlikely to win and they therefore do not want to fight the case. Under previous rules it was not uncommon for the Home Office to "withdraw the decision" (ie withdraw the decision to refuse the application) shortly before the hearing date and, not infrequently, at the actual appeal hearing itself.

When this happened it created a confusing sense of anticlimax, but there was at least the comfort that the likelihood was that the respondent would in due course now grant the visa to the appellant. If the respondent decided to withdraw the decision at the hearing there was nothing that anyone could do about it. The function of the judge in such a situation was merely to record what had happened and that the appeal was now withdrawn and therefore legally dead.

However, there was no guarantee that, after the respondent had withdrawn the decision, they would then grant the visa. It was a likelihood, but no more than that. To put it in a different way, the withdrawal of the decision did not create any absolute legitimate expectation that they would subsequently grant the visa.

This situation was thus to some extent nebulous. But, in any event, a new regime came into effect in 2014. The new regime is contained in the First-Tier Tribunal Procedure Rules 2014, which state that either party may "give notice" to the Tribunal to withdraw the appeal, either in writing before the appeal hearing or orally at the hearing.

But that is no longer necessarily the end of the matter. The Tribunal must "save for good reason" treat the appeal as withdrawn, but with the further condition that the party must "specify the reasons" for the withdrawal.

Another document (the Presidential Guidance Note) throws more light on this. It says that if the appellant seeks to withdraw the appeal and the Tribunal "is satisfied that the appellant is doing so freely and understands the consequences of the withdrawal" then the appeal will be treated as withdrawn. But we get into deep waters here because the rules allow - and this is something quite new - that where the respondent seeks to withdraw the refusal decision the appellant is able to challenge that decision to withdraw the refusal decision.

The intuitive reader might get the impression from this that the Tribunal is now putting itself in the position where it will assess and decide whether an appeal can be withdrawn or not. And they would be right: the magic words appear not in the Procedure Rules but in the Presidential Guidance Note: "If a judge decides that the appeal is not withdrawn, then the hearing will proceed."

This contemplates a surely rather curious scenario where an appeal hearing is held, but against the wishes of one of the parties, who will participate presumably unwillingly.

This is all very interesting, and Mr Justice McCloskey, President of the Upper Immigration Tribunal, made some further interesting observations earlier this year in a case called "TPN (FtT appeals - withdrawal)". (This was, incidentally, a case which dealt not just with the subject of withdrawal of the appeal but also with the issue of where an appeal is withdrawn but without the agreement of the appellant.)

Mr McCloskey’s judgement confirmed that a requested withdrawal of an appeal will not occur "automatically", and he fleshed this out a bit: "The purpose of the judicial scrutiny is to ensure that the appeal is being properly and correctly withdrawn," and, rather more specifically, "for example where the proposed withdrawal lacks coherence or is based on a clear material misunderstanding or misconception".

And elsewhere he said that "the main purpose of judicial scrutiny is to protect the appellant". This sounds nice, but he also said "It has the further purpose of enabling detection of misuse of the process of the Tribunal". On this - which sounds rather more ominous - he did not elaborate. He seems to be suggesting that parties may seek to withdraw an appeal for inappropriate reasons but he did not suggest what any such reasons might be.

In any event, this seems to have become quite a complex area of law, and an area in which you may need good legal advice if it affects you.




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