[2024] UKUT 00028 (IAC)

It is apparent from the extract of the judge’s decision set out at [18] above that the judge believed the Presenting Officer was making an application to withdraw the appellant’s decision pursuant to rule 17 of the Procedure Rules. The heading for this section of the judge’s decision was “The second Issue in Court – The Withdrawal Application.” The judge purported to refuse the withdrawal application. The judge reasoned that allowing the withdrawal would “simply reward failure”, that the “potential consequences” for the respondent “would be significant”, that allowing the appellant to withdraw would be “an abuse of process”, and that there would be “considerable prejudice to the [respondent]”.

The Presenting Officer was relying upon rule 17(2) of the Procedure Rules. This states:

The Presenting Officer provided a reason for the withdrawal of the underlying decision. According to the judge’s decision the withdrawal was made “… with a view to re-making the decision so as to incorporate the evidence now available.”

In ZEI and others (Decision withdrawn - FtT Rule 17 – considerations) Palestine [2017] UKUT 00292 (IAC) the Upper Tribunal considered and gave guidance in respect of rule 17(2). The headnote of ZEI reads:

Under rule 17(2) the First-tier Tribunal has a partial discretion whether to treat the appeal as withdrawn. This is distinct from the appellant’s decision to withdraw the underlying decision that gave rise to the appeal. The appellant’s grounds of appeal essentially contend that the judge conflated the issue of the withdrawal of the underlying decision, which is a matter exclusively for the appellant, with the limited circumstances in which an appeal can continue (upon the establishment of a ‘good reason’) even when the underlying decision is withdrawn.

The respondent contends that the judge did not prevent the appellant from withdrawing her underlying decision and instead gave reasons why the appeal should continue despite the withdrawal of the underlying decision. This, with respect, is not consistent with the language actually used by the judge. At [29] the judge expressly referred to the consequences of “allowing withdrawal”. This suggests that the judge thought he had power to refuse to allow the appellant to withdraw her decision, which he was purporting to exercise. In the same paragraph the judge considered the consequences “were withdrawal permitted.” At [30] the judge considers that “allowing withdrawal” would amount to an abuse of process. The judge concludes the same paragraph by expressing his view that “allowing withdrawal” would cause considerable prejudice to the respondent. We are satisfied that the judge erroneously believed that he was empowered to permit or refuse the appellant to withdraw her underlying decision, and that he failed to consider whether there was good reason to allow the appeal to continue despite the fact that the underlying decision has been withdrawn.

We are satisfied that the judge’s legal error requires the decision to be set aside pursuant to s.12 of the Tribunals, Courts and Enforcement Act 2007.

Pursuant to s.12(4)(a) & (b) of the Tribunals, Courts and Enforcement Act 2007 the Upper Tribunal can, when remaking a decision of the First-tier Tribunal which has been set aside, make any decision which the First-tier Tribunal could make if the First-tier Tribunal were re-making the decision, and it may make such findings of fact as it considers appropriate. We have considered with care the arguments advanced on behalf of the respondent, both before the First-tier Tribunal and at the Upper Tribunal hearing, that there is a good reason to allow the appeal to proceed despite the underlying decision having been withdrawn. We note in particular the argument that treating the appeal as withdrawn would allow the appellant to side-step her failure to comply with directions by simply issuing a new decision that incorporates the excluded documentary evidence. We also note the view of the First-tier Tribunal judge that this would amount to an abuse of process, and the judge’s conclusion that this would cause “considerable prejudice to the [respondent]”.

We note in general that an appeal is to be regarded as withdrawn unless a good reason has been identified. We are guided by the headnote in ZEI which contains examples of what are not likely to be considered good reasons. This includes the withdrawal being for reasons the judge considers ‘inappropriate’, the example given relating to a Presenting Officer who seeks an adjournment who, when refused, withdraws the decision. We consider the decision of the Presenting Officer before the First-tier Tribunal to withdraw the decision to enable a new decision to be made that incorporates previously excluded evidence to be similar in nature to the example given in ZEI. The excluded evidence is clearly relevant to any consideration of the lawfulness of the appellant’s deprivation decision. Nor is there any apparent prejudice to the respondent. Unlike the appellant in ZEI, there will be no change in the respondent’s appeal rights. He will still be able to appeal any new decision to deprive him of his citizenship status. We are satisfied there is a good reason to treat the appeal as withdrawn.