[2024] UKUT 00028 (IAC)

The appellant advanced three grounds of appeal.

The first ground asserted that, in excluding the evidence filed and served on 25 August 2022, the judge misdirected himself in law in a manner that amounted to procedural unfairness. The judge erroneously considered himself bound by the earlier directions, failed to appreciate that he could depart from those earlier directions, and failed to invoke or apply the overriding objective in the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. It was submitted that the judge failed to explain how the principles of fairness and justice was served by the exclusion of evidence in respect of which the respondent had been aware for four months, and that in concluding that there was “no new information before the Tribunal which might have allowed the direction to be reconsidered in some way” the judge failed to have regard to the substance of the new evidence which had not been before Judge Frantzis. The appellant contended that Judge Frantzis’ direction of 14 April 2022 was in any event unlawful as the First-tier Tribunal had no jurisdiction to interfere with the appellant’s decision under appeal. It was argued that the effect of the direction was to “effectively edit” the key reasoning in the appellant’s underlying decision, which was contrary to the Supreme Court’s decision in Begum v SSHD [2021] UKSC 7.

The second ground contends, in reliance on ZEI and others (Decision withdrawn – First-tier Tribunal Rule 17 – considerations) [2017] UKUT 292 (IAC); [2017] Imm AR 1355, that the judge misdirected himself in his approach to the appellant’s indication that she was withdrawing her underlying decision. The appellant did not need the permission of the First-tier Tribunal to withdraw her decision as that Tribunal “must” treat the decision as withdrawn in the absence of a “good reason”. Even if a “good reason” is articulated and the First-tier Tribunal retained jurisdiction by not treating the decision as withdrawn, this did not change the fact that the decision had been withdrawn. The retained jurisdiction over the appeal would be against a former decision that was no longer operative against the individual to whom it was addressed. The First-tier Tribunal therefore had no power to prevent the appellant from withdrawing her decision.

The third ground contends that the judge misdirected himself in determining that the condition precedent of dishonesty in s.40 (3) of the 1981 Act had not been met, and/or by providing no or inadequate reasons as to why the appellant had acted unlawfully in relying on the assertions within the Embassy letter given that it expressly confirmed the source of those assertions.

The Upper Tribunal granted permission on all grounds.

At the ‘error of law’ hearing the Upper Tribunal panel considered a rule 24 response dated 29 March 2023 provided by the respondent, and the submissions of Mr Clarke and Mr Timson. We reserved our decision.