Case No. UKUT-00295-(IAC)

[2013] UKUT 641 (IAC) I consider that the judicially composed notice of decision under Rule 17(3) must contain an outline of why the decision has been made. The TPC, in my estimation, cannot have contemplated a bare, perfunctory, conclusionary pro-forma. 27. What, in principle, will this require of the Judge? Context being everything, one immediately contrasts a decision of this genre with the substantive determination of an appeal. The key to answering this rhetorical question lies mainly, in the requirement enshrined in Rule 17(1)(b) that the “ reasons ” for the proposed withdrawal be provided by the moving party. I consider that, in all cases, the notice required by Rule 17(3) should explain why the FtT has decided that the reasons put forward are sufficient and satisfactory – or, as the case may be, are not. In the typical case nothing elaborate or unduly burdensome will be required of the Judge. Precisely the same analysis applies to a Notice of Decision under Rule 17(3) belonging to the Rule 17(2) scenario viz withdrawal by the Secretary of State of the underlying decision. 28. I apply my construction of Rule 17 to the factual matrix of this appeal in the following way. I do not accept that bare pro-forma notice to the Appellant and his legal representatives in the form which was sent in this case was compliant with either the letter or the spirit of the FtT Procedural Rules. The reason for that is that neither discloses any proper judicial consideration or any proper judicial act or judicial decision. Added to this the elementary requirement of a judicial signature has not been observed. The decision of the FtT is unsustainable in law on this ground alone. It suffers from the further, free standing infirmity that, in contravention of Rule 17, no reasons for the proposed withdrawal of the appeal were provided. It must be set aside in consequence. 29. The broader point of practice raised by this appeal is whether an appeal to the Upper Tribunal in this kind of context is appropriate. I am satisfied that it is. What occurred at first instance was in breach of the express and implied requirements of the Rules to the extent that the decision of the First-tier Tribunal is unsustainable in law. That per se renders it vulnerable to challenge on appeal to the Upper Tribunal. The related point of practice raised is whether one has a choice between appealing to the Upper Tribunal and applying to the First-tier Tribunal for an order setting aside the decision under Rule 32. My decision on that issue is as follows. 30. In this context it is necessary to be alert to the Practice Statement of the Senior President of Tribunals dated 13 November 2014. This, in recognition of the important consequences flowing from a set aside decision under Rule 32, confines this power to the FtT President and the various Resident Judges. From this it follows that individual Judges throughout the regions must be alert to refer cases to the Resident Judge where appropriate. It is worth emphasising that Rules 32 – 36 must be considered in unison. Rule 36, a paradigm illustration of a sensible procedural provision in the world of Tribunal litigation, is of particular importance. It is also appropriate to highlight the distinction between the setting aside discretionary power contained in Rule 32 and the separate, self-contained discretionary review power contained in Rules 34 and 35. It is probably uncontroversial to suggest that a heightened alertness to the setting aside and review powers of the FtT will reduce the number of grants of permission to appeal to the Upper Tribunal. 31. Rule 32, which is rooted in section 9 of the Tribunals, Courts and Enforcement Act 2007, provides an alternative to an appeal in certain prescribed circumstances. That option is available if and only if the conditions enshrined in Rule 32 [2] are satisfied. These conditions are rehearsed in disjunctive terms. In the case of the present kind I accept Mr Jollife’s submission that Rule 32(2)(d) namely “some other procedural irregularity in the proceedings” is engaged. However, the breadth and elasticity of Rule 32(1)(a) (“ the Tribunal considers that it is in the interests of justice to do so ”) must be acknowledged. It seems to me that this provision is also engaged in the context of this appeal. 32. A right of appeal to the Upper Tribunal is conferred by statute. It is correctly characterised as a right to apply for permission to appeal to the second instance level: see VOM [2016] UKUT 410 (IAC). Any curtailment or limitation on the exercise of that right must be evident in the statutory language provided. There is no curtailment or limitation, express or to be implied, in section 11 of the 2007 statute ( supra ) to the effect that an appellant must exhaust the Rule 32 option before pursuing an appeal to the Upper Tribunal. 33. It follows that in a context such as the present an appellant has a choice. Best practice dictates that the Rule 32 avenue should be pursued first, principally it is a quicker and cheaper mechanism. However, a failure to observe best practice does not deprive the Appellant of their statutory right of seeking to pursue an appeal to the Upper Tribunal asserting an arguable error of law in the decision in question. That threshold will be judicially determined, as in every case, by an application for permission to appeal. In cases of doubt representatives may wish to adopt the cautious course of making an in-time application for permission to appeal to the Upper Tribunal whilst simultaneously applying to the FtT to set aside its decision under Rule 32 within the time limit specified. The former application should make clear that adjudication thereon will not be required if the latter application is determined in a manner suitable to the Appellant. The appropriate choreography will be for the FtT to determine the Rule 32 application first. At a practical level, the assignment of both applications to the same Judge would make much sense. DECISION 34. I conclude that the breaches of the express and implied requirements of Rule 17 identified above constitute material errors of law. The decision of the FtT is set aside in consequence. I remit the appeal to a different constitution of the FtT for rehearing.