Anwar (rule 17(1): withdrawal of appeal) Pakistan

Factual and Procedural Background

The appellant, a citizen of Pakistan born in 1990, appealed under the Immigration (EEA) Regulations 2006 against the refusal by the Secretary of State for the Home Department to issue a residence card confirming a right to reside in the United Kingdom as an extended family member. On 26 September 2016, the appellant's representatives notified the First-tier Tribunal of the appellant's wish to withdraw the appeal, citing voluntary departure from the UK. The Tribunal issued a notice of withdrawal on 28 September 2016.

Subsequently, on 5 October 2016, the appellant's representatives applied to reinstate the appeal, stating that the appellant wished to proceed with the appeal after an emergency abroad had been resolved. The First-tier Tribunal Judge Burnett considered the matter without a hearing and found the withdrawal valid, concluding that the Tribunal lacked jurisdiction to consider the appeal's merits, thereby dismissing it for want of jurisdiction.

The appellant appealed to the Upper Tribunal, arguing that the Notice of Withdrawal was invalid as it lacked a judicial signature and was not a judicial decision. The Upper Tribunal proceeded in the appellant's absence at the hearing on 7 December 2018, as the appellant had been removed to Pakistan and had no representation.

Legal Issues Presented

1. How can an appellant validly withdraw an appeal before the Immigration and Asylum Chamber of the First-tier Tribunal?
2. What is the role and extent of the Tribunal's judicial involvement in the withdrawal process under rule 17(1) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014?
3. Whether the First-tier Tribunal's decision that the appeal was validly withdrawn without a judicial decision or reasons was legally correct.
4. Whether the appellant's subsequent attempt to reinstate the appeal after withdrawal is permissible under the FtTIAC Rules.

Arguments of the Parties

Appellant's Arguments

• The Notice of Withdrawal dated 26 September 2016 was invalid because it was not a judicial decision and lacked a judicial signature.
• The appellant relied on the Upper Tribunal decision in TPN (FtT appeals withdrawal) Vietnam [2017] UKUT 295 (IAC) to support the proposition that withdrawal requires judicial approval and reasons.
• The appellant contended that the First-tier Tribunal erred in law by dismissing the appeal without properly considering the validity of the withdrawal as a judicial decision.

Respondent's Arguments

• The respondent argued that under rule 17(1), the decision to withdraw an appeal is for the appellant and does not require judicial approval to be effective.
• The respondent maintained that the First-tier Tribunal's decision that the appeal was validly withdrawn was correct and that the appellant's change of mind after withdrawal does not affect the validity of the withdrawal.
• The respondent noted that the appellant’s attempt to reinstate the appeal is not allowed under the FtTIAC Rules.

Table of Precedents Cited

Court's Reasoning and Analysis

The Upper Tribunal undertook a detailed statutory interpretation of rule 17(1) of the FtTIAC Rules. It concluded that the rule permits an appellant to withdraw an appeal by written notice or orally at a hearing and requires the appellant to specify reasons for withdrawal. However, the requirement to specify reasons does not convert the withdrawal into an application requiring judicial consent. The withdrawal is effective upon the appellant's decision.

The Tribunal rejected the decision in TPN that held judicial approval and reasons were necessary for withdrawal, finding that such a reading improperly adds a consent requirement absent from the rule. The Tribunal emphasized that the juxtaposition of rule 17(1) and (2) demonstrates that withdrawal by appellant and withdrawal of the underlying decision by the respondent are distinct mechanisms with different procedural consequences.

The Tribunal acknowledged that while the Tribunal's administration may request reasons or involve judicial officers in administrative processing, the notification of withdrawal under rule 17(3) is primarily an administrative act, not a judicial decision requiring a signature or detailed reasons.

However, if there is a dispute about the validity of the withdrawal (i.e., whether it was a deliberate and informed decision by the appellant), then a judge of the First-tier Tribunal must decide this issue, usually by hearing evidence. Such a decision on validity is judicial and may be appealed to the Upper Tribunal if substantive.

Applying these principles to the facts, the Tribunal found that the appellant validly withdrew the appeal on 26 September 2016, as he had decided to leave the UK voluntarily. His subsequent change of mind and attempt to reinstate the appeal is not permitted under the rules.

Holding and Implications

DISMISSED

The Upper Tribunal dismissed the appellant's appeal against the First-tier Tribunal's decision, holding that the appeal had been validly withdrawn and that the First-tier Tribunal had no jurisdiction to consider the appeal's merits thereafter. The appellant's attempt to reinstate the appeal after withdrawal is not allowed under the Tribunal Procedure Rules.

The decision clarifies that under rule 17(1) of the FtTIAC Rules, the withdrawal of an appeal is effective upon the appellant's decision and does not require judicial approval or a judicially signed decision. Judicial involvement is limited to determining the validity of a disputed withdrawal. This ruling departs from the interpretation in TPN and affirms a more literal and statutory construction of the procedural rules.

No new precedent beyond the direct effect on the parties was established; the ruling primarily resolves the correct interpretation of withdrawal procedures under the FtTIAC Rules.