[2024] UKUT 00028 (IAC)

At the substantive hearing on 5 December 2022 the respondent was represented by Mr Timpson, and the appellant by Mr Royle, Presenting Officer. The judge was invited to make a preliminary decision as to whether the appellant could rely upon the late evidence produced on 25 August 2022. The judge considered the parties competing submissions, including the appellant’s submission that although the documentary evidence was late it had been available to the respondent since August 2022, and that the documentary evidence had not taken the respondent by surprise as it was specifically requested by him. The appellant also submitted that the purpose of the earlier directions was to ensure that the evidence was before the Tribunal, and this had been achieved.

The judge decided as follows:

Following the preliminary decision the Presenting Officer, in the judge’s words, “… sought to withdraw the decision via rule 17 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014”. This was with a view to remaking the decision incorporating the evidence that the judge excluded. The judge was “urged” by Mr Timpson to refuse the application on the basis that no good reason existed to allow the withdrawal.

The judge decided to refuse to allow the appellant to withdraw. The judge reasoned as follows:

“29.) Allowing withdrawal would in my judgment simply reward failure. All of the factors considered when deciding to exclude the late evidence were also taken into account here. The reality was, were withdrawal permitted the [Appellant] would re-issue the decision in the same terms as before. However, she would then no doubt serve the evidence I have excluded here. Arguably, nothing could then prevent reliance upon it. Without commenting on the strength or otherwise of any human rights argument the [Respondent] might have, the potential consequences for him would be significant. rely on evidence the Tribunal had excluded [sic].

30.) That evidence was of central importance to the case. The consequence of failing to serve it as directed had been made clear. To borrow language used in another jurisdiction, allowing withdrawal would in my judgment be an abuse of process. In reaching this decision, I bore in mind ZEI –

“Consideration of an application by the appellant will include examination of the reason behind the SSHD's decision but not exclusively; the Tribunal is also required to look at the impact on the appellant.”

“In the present case, as we have recorded above, Mr Deller was evidently persuaded by reasons (b) and (c). Reason (b) is not a good one, but there is no doubt that reason (c) applies. A new decision has been made but because of the date of the new decision, the appeal rights are substantially less. The appellant is thus prejudiced by the withdrawal. The fact that the withdrawal was for a reason that is extremely difficult to justify cannot, for the reasons given above, itself be a good reason, but it helps to show that the effect of the withdrawal is indeed prejudicial rather than merely unfortunate. We identify the fact that the new decision carries reduced rights of appeal as a good reason for allowing the appeal against the old decision (and thus governed by the old appeals provisions) to proceed.”

Although the above reflects a situation somewhat different to that here, the end result in my view of allowing withdrawal would be the same – considerable prejudice to the Appellant.”

Following the judge’s decision the Presenting Officer, “… opted not to cross-examine the [Respondent] or make a closing speech of any significance.”

Under the heading “Discussion and conclusions”, the judge stated:

“35.) Although it is acknowledged by Mr. Timson the burden of proof remains on the [Respondent] in this appeal, there lies a burden on the [Appellant] to demonstrate the condition precedent been met [sic]. In court, Mr. Royle frankly accepted without the excluded evidence there was very little he might rely on.

36.) I agree. If one takes the late evidence away, the “British embassy letter” contains nothing more than unsubstantiated allegations. That leaves only the evidence uploaded alongside the Home Office review on 29th July, 2022. Without the excluded evidence to provide a foundation, the supplemental information about people applying for visit visas becomes essentially meaningless.

37.) The condition precedent cannot therefore be met. There is no real evidence, absent that excluded, to show the [Respondent] used fraud, made a false representation or concealed a material fact in seeking naturalised status. Any findings made by the Respondent are, given my judgment in relation to the late evidence, not supported.

38.) That finding means I need not proceed to consider the second part of the test set out in Ciceri – relating to human rights issues and whether deprivation would constitute a disproportionate breach thereof.”

The judge “granted” the appeal.