[2025] UKUT 00089 (IAC)

We refuse consent for the withdrawal of the claim. As far as relevant Rule 17 of the Tribunal Procedure Rules is as follows:

“Withdrawal

17.

—(1) Subject to paragraph (2), a party may give notice of the withdrawal of its case, or any part of it—

(a)

by sending or delivering to the Upper Tribunal a written notice of withdrawal; or

(b)

orally at a hearing.

(2)

Notice of withdrawal will not take effect unless the Upper Tribunal consents to the withdrawal except in relation to an application for permission to appeal.

(3)

A party which has withdrawn its case may apply to the Upper Tribunal for the case to be reinstated.

(4)

An application under paragraph (3) must be made in writing and be received by the Upper Tribunal within 1 month after—

(a)

the date on which the Upper Tribunal received the notice under paragraph (1)(a); or

(b)

the date of the hearing at which the case was withdrawn orally under paragraph (1)(b).

(5)

The Upper Tribunal must notify each party in writing that a withdrawal has taken effect under this rule.

…”

By analogy Ms Knorr referred to the procedure for discontinuing proceedings set out in Part 38 of the Civil Procedure Rules and to the Administrative Court guide (2024) which states that a claim may be ended by filing a notice of discontinuance and serving it on all parties. The Civil Procedure Rules bring to an end any claim without any requirement for the consent of the Court save in the very limited circumstances set out in Part 38.2. In McDonald v Excalibur & Keswick Groundworks Ltd [2023] 1 W.L.R 2139 Nicola Davies LJ referred to the time limit within which a defendant can apply to have a Notice of Discontinuance set aside and the discretion which should be exercised so as to give effect to the overriding objective of dealing with the case justly and at a proportionate cost. Ms Knorr submits that a similar approach should be adopted by the Tribunal and the Tribunal should only refuse consent and force the applicant to pursue the claim where there is an abuse of process or other egregious conduct.

Ms Knorr submits that the withdrawal of the claim is consistent with the indication given by Underhill LJ that the parties give careful consideration as to the future of the judicial review claim. The Court of Appeal has reached a decision as to the Article 3 and 8 claims and said that some further delay is lawful. There is now nothing to be gained by continuing this claim and there is no wider point of public interest that needs to be determined by the Tribunal. The parents, Ms Knorr submits, have co-operated throughout and will continue to co-operate. The children continue to face disruption and the applicants have nothing to gain by seeking to delay matters.

Here, Ms Knorr submits the claim was issued at a time when the respondent had not made any decision. There was evidence of harm being suffered by the children and the underlying claim was pleaded on the basis of the respondent’s failure to grant entry clearance to reunite the children with their parents. Mr Knorr submits the decision of the Court of Appeal setting aside the decision of the Upper Tribunal and refusing the application for interim relief makes it clear that the pursuit of reunification in France can in principle justify the interference with the Article 8 rights where there is a reasonable prospect of reunification being achievable within the timeframe of the family proceedings. Underhill LJ however made it clear that nothing said in his judgment should inhibit the Court in the family proceedings from making any decision that it believes appropriate.

Ms Knorr submits the local authority acknowledges that its focus is on the children and its position is that it is still gathering evidence in circumstances where it remains unclear where the family can be reunited. She submits that for reasons that are not clear the respondent has now had a sudden change in direction and issued a decision before the proceedings before the Family Division have been concluded.

It is clear that it is open to the applicants to withdraw their claim but that is not to say that the claim is thereby withdrawn. Rule 17(2) makes clear the withdrawal does not take effect unless the Upper Tribunal consents to the withdrawal except in relation to an application for permission to appeal.

In claims where the Civil Procedure Rules apply the court’s consent is only required in limited circumstances. In general, the service of a notice of discontinuance served in accordance with the Civil Procedure Rules brings the claim to an end with liability for costs as set out in Part 38.6. A defendant may apply to have the notice of discontinuance set aside as set out in Part 38.4. In McDonald the Court of Appeal held that the court has a broad discretion to set aside a notice to give effect to the overriding objective and r.38.4 did not impose a particular test. Nicola Davies LJ said:

“36.

CPR 38.4 provides a procedure and a time limit for a defendant to apply to have a Notice of Discontinuance set aside. In approaching applications to set aside a Notice, the court has a discretion which should be exercised so as to give effect to the overriding objective of dealing with a case justly and at a proportionate cost. In Sheltam Rail Company (Proprietary) Ltd v Mirambo Holdings Ltd [2008] EWHC 829 (Com) at para 34 Aikens J stated in respect of CPR 38.4(1) :

"The working of the Rule does not impose any particular test that has to be satisfied before the court will set aside a notice of discontinuance that has been issued under 38.2(1) without the court's permission…"

37.

Henderson J (as he then was) in High Commissioner for Pakistan in the United Kingdom v National Westminster Bank [2015] EWHC 55 (Ch) stated at para 46:

"… I consider that the court should approach an application to set aside a notice of discontinuance under CPR rule 38.4(1) on the basis that the court has a discretion which it should exercise with the aim of giving effect to the overriding objective of dealing with the case justly and at proportionate cost. If the facts disclose an abuse of the court's process that will, no doubt, continue to be a powerful factor in favour of granting the application but it would, in my view, be wrong to treat abusive process as either a necessary or an exclusive criterion which has to be satisfied if the application is to succeed."

38.

Given the breadth of the discretion accorded to the court to set aside a Notice of Discontinuance, coupled with the fact that a claimant can discontinue as of right subject to limited exceptions, in my view the Judge was right to state that there need to be powerful reasons why a Notice of Discontinuance should be set aside. Further, I agree with the reasoning of Lavender J in Shaw and May J in Mabb that evidence of abuse of the court's process or egregious conduct of a similar nature is required on an application which has the effect of depriving a claimant of his right to discontinue.”

In McDonald the Court was not persuaded that the notice of discontinuance should be set aside where the notice of discontinuance had only been filed to stop the claim being struck out and had unfairly deprived the defendant of his entitlement to costs. The Tribunal Rules are not circumscribed or prescriptive in the same way as the Civil Procedure Rules. There is no unqualified right to withdraw a case with costs consequences. The consent of the Tribunal is required in every case except where the notice of withdrawal relates to an application for permission to appeal.

Here, the applicants have reflected upon the decision of the Court of Appeal and Ms Knorr submits the claim before us is now academic. It is common ground between the parties that it is now well established that Courts should not opine on academic or hypothetical issues in public law cases other than in exceptional circumstances where there is good reason in the public interest for doing so and because of their potentially wider implications.

Ordinarily the Tribunal will have little difficulty in reaching the conclusion that it should consent to the withdrawal where there is nothing to be gained by the case proceeding when notice of withdrawal of the case or any part of it is given. That might be described as the ‘default position’. It is not however inconsistent with the rules and the purpose of the rules for the Tribunal to refuse consent if it considers it appropriate in all the circumstances.  An abuse of the Tribunal’s process is a powerful factor for refusing consent to withdraw but given the breadth of the discretion in the Tribunal Rules it would be wrong to treat abuse of process as either a necessary or an exclusive criterion.

Any challenge to the delay in reaching a decision upon the applications for Entry Clearance now falls away since the respondent has reached decisions. The question whether the respondent’s decisions are unlawful under section 6 of the Human Rights Act 1998 will now be a matter for the FtT to consider. We accept, as Ms Knorr submits, that the respondent’s decisions on the individual facts and merits, based on the circumstances as at the date of the hearing of the appeal, can be looked at in detail and in the round by the FtT Judge. We accept it would be quite wrong for a Court or Tribunal of supervisory jurisdiction to intervene prematurely in that process for which Parliament has provided.

The applicants’ pleaded claim for judicial review is not, however, simply that the respondent’s failure to make a decision upon the applications for entry clearance made by the parents is unlawful. Although the delay in reaching a decision is implicit in the Grounds for Review, Ms Knorr accepted in her submissions before us that the claim as pleaded by the applicants goes further than that. That is demonstrated by what is said in paragraph [44] of the Grounds for review

“…Here, reunion in the UK would plainly be the most adequate means, indeed the only means, for the development of family life and it is apparent from KCC and the SSHD’s correspondence that both public authorities have been aware from the outset that the parents must come to the UK to join the children…”(our emphasis).

The applicants’ pleaded case is, as Ms Knorr acknowledged, that nothing less than the grant of Entry Clearance will do in these circumstances. It is in that context that the applicants were seeking a declaration that the respondent’s failure to admit the parents to the UK is unlawful and in breach of Articles 3 and 8 ECHR and in breach of the respondent’s duty under s55 of the 2009 Act.

There is in our judgment a good reason in the public interest for the Tribunal to address the applicants’ pleaded case because of the potentially wider implications that arise from such claims. It is clear that claims such as this must proceed relatively quickly given they concern separation of a family and any delay is inimical to the best interest of children. The grounds for review have not evolved in light of the decision of the Court of Appeal or the decisions upon the applications for Entry Clearance but there remains a strong public interest in the Tribunal addressing the fundamental claim made by the applicants that the only way of averting a breach of the Article 3 and 8 rights of the family is to grant Entry Clearance and or for the Tribunal to make a declaration that the respondent’s failure to admit the parents to the UK is unlawful.

We accept, as Sir James submits, that this is a case of importance for two particular reasons:

The decision of the Court of Appeal was concerned only with the specific question of whether the respondent should be ordered to admit the parents to the UK in the context of an order for interim relief. The Court of Appeal referred to the ongoing proceedings before Family Division and considered the evidence relied upon by the applicants as to the background, the applications for entry clearance and the effect of separation on the children. The Court of Appeal also referred extensively to the evidence relied upon by the respondent regarding ongoing discussions with the French authorities and officials regarding reunification of the family in France. Having set aside the orders made by the Upper Tribunal for interim relief, the Court of Appeal referred to the evidence relied upon by the respondent and the high level discussions between the Home Office and the French Ministry of the Interior regarding reunification in France and the analysis of the risk that could result from obtaining permission to enter and remain in the UK in these circumstances.

We have been provided with a statement from Anne Nerva dated 6 January 2025, the Service Manager in the East Kent Children in Care Service. The statement is provided on behalf of the interested party and addresses the interested party’s statutory obligation under section 22(3) of the Children Act 1989. The statement exhibits much of the evidence that was previously before the Court of Appeal and that which has been relied upon by the interested party in the parallel proceedings before the Family Division. In summary, the interested party seeks to explore the return of the children to France. Anne Neva states:

“That is because on the information available it does not appear to be accepted that the parents can lawfully enter the UK (albeit it is accepted that there is uncertainty about this)…”

Anne Nerva refers to the ongoing communications with the French authorities via a Senior Case Manager at the International Child Abduction & Contact Unit (“ICACU”) regarding the services and assistance that would be available to the children in the event that the children were to return to France. Anne Nerva states that as matters stand, the interested party does not know when it will receive the further information it needs from the French Authorities to enable it to reach a final view on whether reunification of the children with their parents in France or the UK would be in their best interests. Delay is not in the best interests of the children but equally, neither is an uninformed decision. Anne Nerva concludes:

“30.

To date, given the continued positive indications the Home Office received from French authorities about the ability of the children to enter France and the uncertainty about the outcome of the judicial review proceedings in the Upper Tribunal, KCC has sought to assess whether reunification in France is in the best interests of the child. It does not, however, rule out reunification in the UK if the evidence shows that it would be in the children’s best interests.”

Clarity about the outcome of the claim for Judicial Review is therefore likely to assist the interested party to reach its conclusions as to the best interests of the children and the position it adopts in the proceedings before the Family Division.

As we have said, an abuse of the Tribunal’s process is a powerful factor for refusing consent to withdraw. We accept the withdrawal of the claim is not an attempt to abuse the Tribunal’s process. It is consistent with the observation made by Underhill LJ in the Court of Appeal that the parties will no doubt give careful consideration to the future of the judicial review proceedings, and the view of the respondent until recently that the applicants should withdraw the claim.

In his judgment Underhill LJ referred to the evidence filed by the parents to rebut the suggestion that they had sought to conceal their whereabout, the reasons why the children should not be returned to France and the position of the Kurdish community in France. Underhill LJ accepted that there is a reasonable prospect of reunification in France being achievable within the timeframe of the family proceedings; and that being so, it would be wrong to undermine the process now by requiring the respondent to admit the parents. He said that the only obvious reason reunification might not be possible within that timeframe, or something close to it, would be if the parents fail to co-operate with the authorities in France. Underhill LJ acknowledged that the parents would prefer to be admitted to the UK, but said that does not mean that they will not choose to seek asylum in France if it becomes clear that that is the surest way of achieving early reunification with their children. We do not go as far as to say that there is evidence that the applicants are trying to ‘game the system’ in the way claimed by the respondent. The parents’ position appears to be that although they maintain that reunification in the UK is in their children’s best interests, they remain willing to co-operate in exploring the potential for reunification in France. There are however features of the parents’ conduct that has caused us some concern.

It is appropriate in all the circumstances for the Tribunal to refuse to consent to the withdrawal and to address the applicants pleaded that on its merits, the respondent’s failure to admit the parents to the UK is unlawful and in breach of Articles 3 and 8 ECHR and in breach of the respondent’s duty under section 55 of the 2009 Act.