by Mark Henderson and Rowena Moffatt of Doughty Street Chambers
and Alison Pickup of Asylum Aid
~ Newly Revised 2022 Edition ~
Determination without a hearing
Failure to comply with directions/rules
Hearing the appeal in the absence of a party
Withdrawal of appeals
Appeals deemed to be abandoned
Remote / in person hearings
7.1 Rule 25(1) requires the Tribunal to hold a hearing in every case, before making a decision which disposes of proceedings (including disposing of part of the proceedings – see rule 1), subject to the exceptions set out in that rule.
7.3 Rule 25 details the circumstances in which the Tribunal can dispense with a hearing (hearing is defined by rule 1 to mean an oral hearing and 'includes a hearing conducted in whole or in part by video link, telephone or other means of instantaneous two-way electronic communication'):
–(1) The Tribunal must hold a hearing before making a decision which disposes of proceedings except where--
(a) each party has consented to, or has not objected to, the matter being decided without a hearing;
(b) the appellant has not consented to the appeal being determined without a hearing but the Lord Chancellor has refused to issue a certificate of fee satisfaction for the fee payable for the hearing;
(c) the appellant is outside the United Kingdom and does not have a representative who has an address for service in the United Kingdom;
(d) it is impracticable to give the appellant notice of the hearing;
(e) a party has failed to comply with a provision of these Rules, a practice direction or a direction and the Tribunal is satisfied that in all the circumstances, including the extent of the failure and any reasons for it, it is appropriate to determine the appeal without a hearing;
(f) the appeal is one to which rule 16(2) or 18(2) applies; or
(g) subject to paragraph (2), the Tribunal considers that it can justly determine the matter without a hearing.
(2) Where paragraph (1)(g) applies, the Tribunal must not make the decision without a hearing without first giving the parties notice of its intention to do so, and an opportunity to make written representations as to whether there should be a hearing.
(3) This rule does not apply to decisions under part 4 or part 5 [correcting, setting aside, reviewing and appealing Tribunal decisions and bail, respectively].
7.5 With respect to rule 25(1)(g), there ought to be no circumstances other than those falling within rule 25(1)(e) where it would be just to dispense with an oral hearing without the appellant's consent (see Gioshev v SSHD (15801) and R v IAT, ex parte S  Imm AR 252 (para 7.13) and also R (The Joint Council for the Welfare of Immigrants) v The President of the Upper Tribunal (Immigration and Asylum Chamber)  EWHC 3103 (Admin) (para 7.5C)).
7.5A The Procedure Rules were amended in response to the Covid-19 pandemic to add a temporary rule 4A which is stated to be without prejudice to Rule 25 but provides an additional basis for the Tribunal to make decisions without an oral hearing, without consent of the parties. Rule 4A is due to expire on 25 March 2022, but remains in force at the time of writing. It reads:
4A.—(1) Notwithstanding anything in rule 25 (consideration of decision with or without a hearing) […], the Tribunal may make a decision which disposes of proceedings without a hearing if the Tribunal considers that the conditions in paragraph (2) are satisfied.
(2) The conditions are— (a) the matter is urgent; (b) it is not reasonably practicable for there to be a hearing (including a hearing where the proceedings would be conducted wholly or partly as video proceedings or audio proceedings); and (c) it is in the interests of justice to do so.
(3) This rule does not prejudice any power of the Tribunal to make a decision which disposes of proceedings without a hearing otherwise than under this rule.
Whilst in theory, the new rule 4A permits a hearing without the appellant's consent, in practice few – if any - First-tier appeals have been determined on the papers without the consent of the parties and it is highly unlikely in the vast majority of cases that the three cumulative conditions would be met, particularly given the increasing capability of the Tribunal to hold remote hearings.
7.5B On 19 March 2020, the Senior President of Tribunals published a practice direction on contingency arrangements in the First-tier and Upper Tribunals (Pilot Practice Direction: Contingency Arrangements in the First-tier Tribunal and the Upper Tribunal). It was published for an initial six months and extended on 14 September 2020, with some amendments and again on 18 March 2021 until 18 September 2021. Paragraphs 4 and 5 of the Practice Direction issued in September 2020 refer to decisions on the papers without a hearing. Paragraph 4 stated that 'where a Chamber's procedure rules allow decisions to be made without a hearing, decisions should usually be made in this way, provided this is in accordance with the overriding objective, the parties' ECHR rights and the Chamber's procedure rules about notice and consent.' Guidance on the meaning of paragraph 4 has been given by the Administrative Court (see para 7.5C below). Paragraph 5, which was omitted from the Practice Direction when it was re-issued on 18 March 2021, sets out a triage scheme which Chamber presidents may adopt where, as in the First-tier Tribunal (IAC), paper determinations are possible with the parties' consent. The triage system in paragraph 5 of the Practice Direction was not used by the Tribunal in protection or human rights appeals.
7.5C The principles at common law relevant to when an oral hearing will be necessary as a matter of procedural fairness were explored in the judgment of Fordham J in R (The Joint Council for the Welfare of Immigrants) v The President of the Upper Tribunal (Immigration and Asylum Chamber)  EWHC 3103 (Admin). The case was a challenge to a guidance note applicable in the Upper Tribunal (IAC) which, purporting to rely on the Senior President's Practice Direction, created a presumption that in response to the Covid-19 pandemic, oral hearings would be dispensed with for error of law hearings. The Administrative Court found that the adoption of a 'paper hearing norm' was unlawful, even where no oral evidence was required. Fordham J also gave guidance on possible reasons to require a hearing in the IAC, noting also that given the importance of the issues at stake in the majority of appeals in the IAC, predominantly protection and human rights cases, hearings were likely to be required in all but conceded cases ([7.5]):
The importance of the outcome of a case given its inherent facts, or given that it is a mainstream (contentious, or even a non-obvious, case) where the individual is to be taken to have something useful to contribute, or given features inherent in UTIAC substantive appeals, can all be reasons to require a hearing." ([7.7]).
These principles will apply with more force in the First-tier Tribunal, where oral evidence is the norm and there are usually factual disputes. You should resist any attempt to decide your client's appeal on the papers, even where there is no factual dispute or you do not intend to call oral evidence: given the importance of what is at stake, your client is entitled to a hearing at which oral submissions can be made and the arguments of both parties tested. If your client's case was subject to a decision by the FTT not to conduct a hearing which resulted in a determination disposing of proceedings, an application may be made under rule 32 of the Procedure Rules to set the determination aside (see para 41.50).
7.5D Paragraphs 6-9 of the Senior President's Covid-19 Practice Direction applied where the Tribunal decided that a hearing in a particular case was necessary. They specified that all hearings should be held remotely (that is in any way that is not face-to-face, but which complies with the definition of 'hearing' in the relevant Chamber's procedure rules) where it is reasonably practicable and in accordance with the overriding objective. The same procedure rules apply to remote hearings, including hybrid hearings (that is, a hearing where there are participants attending the hearing in a physical courtroom and participants attending the same hearing remotely as to face-to-face hearings). Remote hearings continue to take place in the First-tier Tribunal, although following the end of Covid-19 restrictions, the circumstances in which this will be appropriate where live evidence is required and, in particular, where credibility is disputed, are likely to be limited.
7.6 Rule 25(1)(e) empowers the Tribunal to determine the appeal without a hearing but only where 'a party has failed to comply with a provision of these Rules, a practice direction or a direction ' and 'the Tribunal is satisfied that in all the circumstances, including the extent of the failure and any reasons for it, it is appropriate to determine the appeal without a hearing'
where both the appellant and the representative are present at the hearing an adjudicator should exercise extreme caution before deciding to determine an appeal without a hearing because of failure to comply with directions.
In the present case the failure did not go to any essential part of the case and the course taken by the adjudicator is unsustainable. This is not a case in which there is a huge amount of documentary evidence and such documentary evidence as there was, was itself mainly paginated. Further the appellant and his representative being present the omission of a declaration as to whether the appellant was adopting the interview as his evidence and the lack of proof of evidence cannot possibly provide grounds for sending the appellant away without allowing him to present his case. In our view the adjudicator's action in this case was a misuse of the power conferred by the rules. Such misuse is likely to bring the power to give directions into contempt.
7.8 The point was reiterated in MD (good reasons to consider) Pakistan  UKIAT 00197. The Adjudicator had determined the appeal without a hearing because the appellant had failed to comply with directions by producing a witness statement only on the morning of the hearing.
11. Although it may be easy for an adjudicator, faced with an Appellant who has failed to comply with directions and who has not disclosed his case, to forget how important his decision may be it is incumbent upon him to remember his duty... In a case considering the proper application of paragraph 45(2) of the Immigration Asylum and Appeals (Procedure) Rules 2003, Muhammad (01/TH/01223) Mr J Barnes, Vice President, said:-
"...... Adjudicators should be conscious that part of their over-riding duty is to ensure a just disposal. Partly this is because a just disposal will be a final disposal; partly because there is a duty on immigration judiciary to give the most anxious consideration to applications which involve a claim that their makers fear persecution for a Convention reason if returned to [their] own country, or, since the introduction of the Human Rights Act 1998, that [they] will suffer inhuman or degrading treatment contrary to Article 3."
12. The Procedure Rules provide for the oral hearing of an appeal. The Appellant wanted to give evidence and produced a witness statement, albeit late. Adjudicators have a duty to apply the most anxious scrutiny and the high standards of fairness to the Appellant's case.
7.9 The Tribunal emphasised that before an appeal could be determined without a hearing on this basis, it must decide whether there were "good reasons" for considering evidence not filed in accordance with directions pursuant to rule 51(4) of the 2005 Procedure Rules (see the discussion from para 27.8).
"The Adjudicator had before him an appeal that was listed for hearing. He had a represented Appellant and a representative from the Respondent who, it seems, was ready to go ahead with the hearing. The Procedure Rules show what the Adjudicator should have done when faced with an application to consider evidence that had not been produced in accordance with directions. The adjudicator was quite wrong to consider determining the appeal without a hearing without first satisfying himself that there were no good reason not to admit the statements or that the hearing could not justly go ahead and should not be adjourned.
...[The rule] empowers the [Tribunal] to determine an appeal without a hearing but it will rarely be "appropriate" to do that where at least one of the parties wants a hearing and there is no unfairness to the other in letting a hearing go ahead."
7.13 The Tribunal should therefore only decide to dispense with a hearing if it is satisfied by reference to the material before it and the nature of the issues that the appeal can be justly determined on the papers. That 'draconian step' will seldom be justified where credibility is in issue and the appellant is present and prepared to give evidence. In R v IAT, ex parte S  Imm AR 252, Sullivan J held that:
Where the appellant's credibility is in issue and he is present and wishes to give evidence, it would only be in rare cases that a special adjudicator could properly be satisfied that the appeal could be disposed of justly without a hearing.
7.13A The approach of the authorities above is consistent with the more recent judgment of Fordham J in R (The Joint Council for the Welfare of Immigrants) v The President of the Upper Tribunal (Immigration and Asylum Chamber)  EWHC 3103 (Admin) which acknowledged that given the importance of the issues at stake in the majority of appeals in the IAC, predominantly protection and human rights cases, hearings were likely to be required in all but conceded cases (see para 7.5C).
7.14 Rule 28 sets out circumstances in which the Tribunal may proceed with a hearing in the absence of a party:
28. If a party fails to attend a hearing the Tribunal may proceed with the hearing if the Tribunal –
(a) is satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing; and
(b) considers that it is in the interests of justice to proceed with the hearing.
7.15 In the past the Procedure Rules obliged the Tribunal to proceed with a hearing if there was no satisfactory explanation for the absence of a party or his representative. Following the decision of the Court of Appeal in FP (Iran) v SSHD  EWCA Civ 13 that this rule was unlawful, the provision was amended so that the Tribunal was merely empowered to determine the appeal without a hearing in the absence of a good explanation for non-attendance. The current rule, introduced by the 2014 Rules, gives the Tribunal a much broader discretion to decide whether it is in the interests of justice to proceed with the hearing in the absence of a party, provided always that it is satisfied that the party has been notified of the hearing, or that reasonable steps have been taken to notify him of the hearing. If there is no evidence that the appellant has deliberately failed to attend, the Tribunal will usually agree to adjourn the appeal for a short period to enable any explanation to be submitted (para 8.32). It is therefore very important that the representative attend: even if an adjournment is refused in those circumstances, the representative will be entitled to make submissions.
7.16 In Feghali (16602), the Tribunal considered the position where a judge has concluded a hearing in the absence of the appellant but then agreed to consider documentation submitted by the appellant after the hearing. The Tribunal held that it would be open to a judge hearing an appeal in the absence of a party to indicate that he would accept submission of material within a certain period after the hearing. But if he did not do so, and then entertained post-hearing submissions, he was effectively reopening the hearing. He therefore had to reconsider whether to hear from the appellant.
7.17 In light of the severe consequences for the appellant of proceeding in her absence, the Tribunal requires the rule to be complied with strictly. In Khmelkevich v SSHD (00/TH/01718), it stated that
[The adjudicator] does not say whether or not he is satisfied that due notice of the time and place of the hearing has been given. We have little doubt that it was but, where an asylum seeker is to be deprived of his right to give oral evidence and to have an appeal determined in his absence, it seems to us that it is at least incumbent on the Special Adjudicator to make it clear that the formalities of the rules have been complied with. Secondly, the mandatory sub-rule... applies only if there is no satisfactory explanation for the absence of the party concerned. In this case there manifestly was such an explanation before the Special Adjudicator. There is no suggestion that what was contained in the medical certificate supplied was not accepted by him. Whilst it has in the past been properly considered that a certificate that an appellant is not fit to attend work is not appropriate to explain absence from a hearing, the doctor specifically stated the Appellant was not fit to attend an interview. That is to put the ability to attend anywhere at a very low level and, simply as a matter of common-sense, must extend to a court appearance at which evidence subject to cross-examination is to be given. Whilst we accept that adjudicators must be vigilant in ensuring that explanations for absence are reasonable, this is to impose far too high a duty on the Appellant.
7.19 In particular, the rule does not entitle a judge to proceed in the absence of the appellant whenever it is established that she is too ill to attend the hearing. On the contrary, that will normally be good grounds for an adjournment. However, there will come a stage where the prospects of her being well enough to attend within a reasonable period are sufficiently remote to justify proceeding under this provision. In R v SSHD, ex parte Tahir Iqbal (CO/2469/97), Collins J said that:
"[A] balance may, in certain circumstances, have to be drawn between the need for the appellant to be heard in order to be able to put forward his appeal in a proper manner and the need for an appeal to be disposed of in a reasonable time. One can imagine examples where, if he was unfit for a period of years, it would be unreasonable to expect the matter to be deferred. But, as I see it, in considering an adjournment, an Adjudicator must always have in mind fairness to both parties but, in particular in asylum cases such as this, the need for fairness to the applicant to enable him to put forward a meaningful appeal."
7.20 The Presidential Guidance Note on the 2014 Procedure Rules suggests that "where there is no likelihood that the party will be able to attend a hearing within a reasonable period", the Tribunal should consider whether to proceed in the party's absence rather than adjourning (para 8(a)).
7.21 See also applying for an adjournment on the ground that the appellant is unable to attend (paras 8.27–8.33).
7.22 Rule 17 provides that:
17.—(1) A party may give notice of the withdrawal of their appeal—
(a) by providing to the Tribunal a written notice of withdrawal of the appeal; or
(b) orally at a hearing, and in either case must specify the reasons for that withdrawal.
(2) The Tribunal must (save for good reason) treat an appeal as withdrawn if the respondent notifies the Tribunal and each other party that the decision (or, where the appeal relates to more than one decision, all of the decisions) to which the appeal relates has been withdrawn and specifies the reasons for the withdrawal of the decision.
(3) The Tribunal must notify each party in writing that a withdrawal has taken effect under this rule and that the proceedings are no longer regarded by the Tribunal as pending.
7.22A The words "save for good reason", and the requirement to give reasons for the withdrawal, were inserted into rule 17(2) by the 2014 Rules. The Rule previously allowed one party to the appeal (the Home Office) to unilaterally terminate the appeal without conceding the case by agreeing to grant the other party leave to enter/ remain. In its 2013 consultation on proposed amendments to the First-tier Tribunal rules, the Tribunal Procedure Committee proposed amending rule 17(2) so as to give the Tribunal a power to treat the appeal as withdrawn rather than a duty to do so. This proposal was supported by the majority of respondents, but the Home Office opposed the proposal. The Committee stated when it published the 2014 Rules that it had been assured that it was Home Office policy only to withdraw a decision under appeal when it intended to grant leave to enter or remain. The Committee concluded that "in light of the Home Office's clear statement of policy" to that effect, the likelihood of tactically motivated withdrawals was reduced, this being one of the main concerns raised by other respondents to the consultation paper (see paras 63-73 of the Committee's published Reply to the consultation, available on the gov.uk website). It considered that the new requirement imposed on the Home Office to "specif[y] the reasons for the withdrawal of the decision" would "encourage compliance with the Home Office policy". That clear statement of policy did not reflect the experience of many practitioners. The Home Office has been known to withdraw decisions in the face of compelling evidence only to make the same, or virtually the same, decision months or even years later.
7.22AA In R (Chichvarkin) v SSHD  EWCA Civ 91, the Court of Appeal upheld the decision of the Divisional Court which had observed that:
...the power to withdraw may be exercised if the SSHD genuinely wishes to reconsider in the light of facts and matters advanced by the Appellant or indeed of other relevant matters coming to her attention, including a possible change of policy in the relevant area. The exercise of the power to withdraw is different from seeking an adjournment of proceedings: the latter course is appropriate where the SSHD wishes to maintain the challenged decision and is seeking further material to support her case.
7.22AB In R (Glushkov) v SSHD and AIT  EWHC 2290 (Admin), Collins J had said (in guidance approved in Chichvarkin) that:
It is clear beyond doubt, in my view, that the Secretary of State must not use the withdrawal power as a tactical exercise to avoid having to apply for an adjournment. She must only use it if she is genuinely of the view that she might change her mind on reconsidering the material that is put before her. It would be a wrongful exercise, and unfair to an appellant, if she were simply to use this power because she wanted more time to deal with the material that was put forward but had no intention of changing her mind as a result of it.
7.22AC The Home Office's current policy is set out in Withdrawing Decisions which states, after setting out the passage above from Glushkov, that:
A decision should only be withdrawn with a view to granting leave. You do not have to be certain that leave will be granted, but you must be genuinely of the view that it might.
For example, a decision may be withdrawn because:
• there is a clear caseworking error which means that the decision is fatally flawed
• there has been a clear change in circumstances such as a change in country conditions or a change in policy
• there is new evidence available, which when assessed on the appropriate standard as genuine, leads to the conclusion that the decision to refuse is no longer sustainable and a grant of leave or status, subject to security and other checks, is now appropriate also…
You must not pursue an appeal where it is clear that the decision is not sustainable, and you are genuinely of the view that leave may be granted.
The guidance continues under the heading "adjournments":
An adjournment should be sought where it is not reasonably clear that the new evidence or ground will lead to a grant of leave but where it needs to be considered in more detail. An example of this would be seeking an adjournment to check whether a document is genuine where, even if the document was genuine, it would not on its own be likely to lead to grant of leave; if it was false that may strengthen the refusal. This approach is consistent with what the High Court said in Chichvarkin (2010) EWHC 1858 that an adjournment is "appropriate where the SSHD wishes to maintain the challenged decision and is seeking further material to support her case."
In these circumstances you must explain to the Tribunal what the new issue or evidence is and why an adjournment is necessary. If the adjournment is granted it may also be appropriate to seek costs where the new evidence or issue was raised late.
Presenting staff should only refer matters back to a decision-making area where they are mandated to do so or it is clear that specialist or additional knowledge from the decision maker will benefit the consideration and that knowledge cannot reasonably be obtained by the presenting officer. For details see: Approval to withdraw a decision or concede an appeal.
Where a request for an adjournment is refused the decision should not then be withdrawn. You must record the reasons for seeking an adjournment and the reasons why it was refused in the hearing minute. You should then present the Secretary of State's case. After the hearing, the Home Office will consider the minute to decide whether to challenge the refusal of an adjournment or any allowed appeal on procedural grounds.
7.22AD The Home Office Rights of Appeal guidance states that presenting officers should not withdraw the decision under challenge where an adjournment to consider a "new matter" is refused. It directs presenting officers to the Withdrawing Decisions guidance and states that decisions can only be withdrawn in line with that policy (p.28).
7.22B In SM (withdrawal of appealed decision: effect) (Pakistan)  UKUT 00064 (IAC) the Upper Tribunal was concerned with whether it should exercise its power under rule 17(2) of its Procedure Rules to allow the Home Office to "withdraw its case" when it had withdrawn the underlying immigration decision. The Upper Tribunal set out guidance as to the factors relevant to the exercise of its discretion whether to allow an appeal to continue where the underlying immigration decision is withdrawn and the Home Office seeks to withdraw its case. It indicated that it would normally make a 'formal disposal' of the appeal without substantive consideration of the issues, which could either be a decision to dismiss the appeal or (if appropriate, for example because the Home Office had accepted that its original decision was in error) to allow the appeal and make a fee award in the appellant's favour. In ZEI and others (Decision withdrawn - FtT Rule 17 – considerations) Palestine  UKUT 00292 (IAC), the Upper Tribunal agreed that the factors which it said in SM Pakistan would be relevant in deciding whether to give substantive consideration to the appeal are likely to be relevant when the First-tier Tribunal is considering whether to treat an appeal as withdrawn under rule 17(2). Those factors are:
(i) "Secretary of State should normally be primary decision-maker" In SM Pakistan, the Upper Tribunal noted that while the Court of Appeal had treated this as an important factor in Chichvarkin, that was a case in which an asylum claim was made for the first time during an appeal against an immigration decision. It said that "By contrast, where asylum has been raised and fully considered (and rejected) by the respondent, prior to the appeal being instituted, the principle of primary decision-making lying with the respondent does not arise or, insofar as the case for the appellant is subsequently put on a different basis, may not arise to the same extent. In such circumstances, the termination of the current appellate proceedings by formal disposal may well not be appropriate, having regard to the overriding objective and section 104(4B)";
(ii) "whether there are wider public interest reasons, potentially involving persons other than the appellant and his immediate family etc, why it may be desirable to determine the appeal substantively, notwithstanding withdrawal of the appealed decision". This factor is likely to be of less significance in the First-tier Tribunal whose decisions do not have precedent value but the Tribunal noted that an appeal would not be academic to the appellant and his family where the decision had merely been withdrawn and there had been no decision to grant the leave that was sought through the appeal. The possibility of an appeal raising "an important issue of legal principle, statutory construction or practice and procedure" was also identified by McCloskey J in TPN (FtT appeals – withdrawal) Vietnam  UKUT 00295 (IAC) as an example of a circumstance in which the Tribunal may decide not to treat the appeal as withdrawn where the Home Office withdraws its decision.
(iii) "the timing of, and reasons for, the respondent's withdrawal of her decision may be such as to necessitate the Upper Tribunal to embark on a substantive analysis, leading to a fully-reasoned, authoritative decision. In particular, where the reasons for withdrawal of the decision, as articulated by the respondent, indicate that the only legally correct result would be a decision in favour of the appellant (for example, to grant leave to remain on the basis that she meets the relevant requirements of the Immigration Rules), then, in the context of the overriding objective, it may well be appropriate for the Upper Tribunal to bring matters to an end, by a substantive decision in the appellant's favour."
(iv) "whether bad faith ... had been made out"
(v) the views of the parties.
7.22C In ZEI and others (Decision withdrawn - FtT Rule 17 – considerations) Palestine  UKUT 00292 (IAC), the Upper Tribunal gave further guidance as to the approach to be taken by the Tribunal when considering whether to treat the appeal as withdrawn under rule 17(2). The guidance may be summarised thus:
(i) The assumption is that the appeal will be treated as withdrawn. There must be "good reason" for allowing the appeal to proceed. That is not to say that it will be a rare or exceptional course to allow the appeal to proceed.
(ii) The time expended to deciding whether there is a "good reason" should be proportionate, bearing in mind that neither party will be directly affected by the outcome;
(iii) The question is whether there is a "good reason" for the appeal to proceed, not whether there is a good reason for the withdrawal, and the Tribunal has no power to review the reasons for withdrawal. The Home Office must give its reasons for withdrawal, and the Tribunal might properly question those, but the fact that it does not think the reasons are good is not in itself a "good reason" to hear the appeal;
7.22D The Upper Tribunal went on to discuss guidance as to what might, or might not, amount to a "good reason" for allowing the appeal to proceed. It summarised that guidance in the headnote in this way:
(i) The following are not likely to be considered good reasons:
- The parties wish the appeal to proceed.
- The applicant is legally aided and if he has to appeal against a new decision, he will not (or will probably not) be legally aided because the legal aid regime has changed.
- The withdrawal is for reasons the judge considers inappropriate is very unlikely to be a good reason to proceed. An example is that of a Presenting Officer who seeks adjournment of a hearing and when that is refused, withdraws the decision.
- The witnesses are ready to be heard and can only with difficulty or expense be gathered again.
(ii) The following are likely to be capable of being a good reason.
- The appeal regime has changed since the first decision, so that if a new decision is made in the same sense, the rights of appeal will be reduced.
- Undue delay by the respondent.
- The appeal turns on a pure point of law that the judge thinks that even after argument is certainly or almost certainly to be decided in the appellant's favour.
- If there has already been a considerable delay in a decision the appellant is entitled to expect, the fact that children are affected.
7.22E In TPN (FtT appeals – withdrawal) Vietnam  UKUT 00295 (IAC), McCloskey J also emphasised that a decision whether to treat the appeal as withdrawn is a judicial decision which he described as requiring "active and properly informed judicial involvement and decision making" (para 20; see also para 22-25). He considered that "the main purpose of judicial scrutiny is to protect the appellant. It has the further purpose of enabling detection of any misuse of the process of the Tribunal. Each of these purposes furthers the public interest" (para 23). You should be astute to raise with the Tribunal concerns about whether the Home Office is misusing the process of the Tribunal. Where it is suspected that the decision is being withdrawn as an alternative to seeking an adjournment to consider new evidence, i.e. on a basis directly contrary to the understanding upon which the Tribunal Procedure Committee relied and to the Home Office's published policy, it may well be useful to refer the Tribunal to the Committee's Response to the consultation explaining the thinking behind the final version of the rule as well as the policy. That may support a submission that there is good reason under the rule not to treat the appeal as withdrawn, although it should be noted that in ZEI and others (Decision withdrawn - FtT Rule 17 – considerations) Palestine  UKUT 00292 (IAC), decided a month before TPN by a differently constituted Tribunal, the Upper Tribunal did not think this would in itself be a good reason to proceed (para 19(f)), although on the facts of the case, it held that "the fact that the withdrawal was for a reason that is extremely difficult to justify … helps to show that the effect of the withdrawal is indeed prejudicial rather than merely unfortunate" (para 20). The Tribunal Procedure Committee had also considered introducing a power to reinstate the appeal if leave was not granted and relied on its understanding of Home Office policy in concluding that this also was not necessary for the time being. The alternative, where the Home Office insists that there will be a genuine reconsideration of its decision, and there is no pressing reason to proceed with the hearing, is to grant an adjournment sufficient to enable a genuine reconsideration to take place. As noted above, the current Home Office guidance to Presenting Officers suggests that this is what will be sought where it is not thought likely that leave will be granted as a result of this reconsideration.
7.22F Presidential Guidance Note No. 1 of 2014 lays down a procedure for giving the appellant an opportunity to object to the appeal being treated as withdrawn where the Respondent withdraws the decision appealed against. It states that:
17. Where the respondent withdraws the decision no later than 21 days prior to the hearing (28 days for out of country appeals) a notice will be sent to the appellant asking if there is good reason why the appeal should not be treated as withdrawn. If a response is received, or the time for replying expires without a response, then a judge will be asked to decide if the appeal should be treated as withdrawn. If there is insufficient time to consult the appellant prior to the hearing then the question of whether the appeal will be treated as withdrawn will be considered at the hearing.
18. If a judge decides that the appeal is withdrawn, the judge will mark the appeal file and Record of Proceedings accordingly and take no further action as there will be no appeal pending. No decision or statement of reasons will be produced.
19. In all cases where the appeal is withdrawn, the Tribunal will issue the notice required by rule 17(3).
20. If a judge decides that the appeal is not withdrawn, then the hearing will proceed. The judge will advise the parties of the decision and will record it in the Record of Proceedings with a view that the decision and reasons will be included in any statement of reasons subsequently produced.
This Guidance was referred to with approval by the then President of the Upper Tribunal, McCloskey J, in TPN (FtT appeals – withdrawal) Vietnam  UKUT 00295 (IAC). He noted in particular that in paragraph 17 "correctly, the procedural rights of the appellant are explicitly recognised." In ZEI and others (Decision withdrawn - FtT Rule 17 – considerations) Palestine  UKUT 00292 (IAC), the Upper Tribunal also emphasised the importance of the appellant being given an opportunity to put forward reasons why the appeal should proceed and suggested that 14 days would normally be a reasonable period (para 18). Its view was that if the appellant did not put forward any reasons, the "default" position of withdrawal of the appeal should normally follow (para 17). Note that the Guidance Note indicates that the fact that the appellant wishes to seek a fee award will not normally be regarded as a good reason for refusing to treat the appeal as withdrawn (para 16).
7.23 In relation to withdrawal of the appeal by the appellant, the Guidance Note states that (para 15):
Where an appellant seeks to withdraw an appeal in terms of rule 17, provided the Tribunal is satisfied that the appellant is doing so freely and understands the consequences of the withdrawal, the Tribunal will be satisfied that the appeal is withdrawn. Where an appellant is legally represented and the request to withdraw is made by the representative, the Tribunal will assume that the representative has explained the consequences of the action to the appellant and that this is the intention of the appellant.
In Anwar (rule 17(1): withdrawal of appeals)  UKUT 00125 (IAC) Lane J disagreed with the earlier decision of McCloskey J in TPN (FtT appeals – withdrawal) Vietnam  UKUT 00295 (IAC) to confirm that for appellants (as opposed to the Home Office withdrawing the underlying decision), judicial consent is not required for withdrawal to be effective. He set out the following guidance at :
(a) the decision whether to withdraw the appeal is for the appellant;
(b) that decision does not require judicial approval, in order for it to be effective;
(c) if an issue arises as to whether a withdrawal was, in fact, the appellant's decision (ie whether it was valid), it is for a judge of the First-tier Tribunal to decide it; as to which, the reasons for withdrawal may assist.
Following Anwar, the approach of McCloskey J in TPN to appellant withdrawals (which had held that as with a withdrawal of a decision by the Home Office in rule 17(2), withdrawal by an appellant under rule 17(1) does not automatically follow but requires judicial consideration) is discredited.
7.24 Lane J in Anwar  UKUT 00125 (IAC) considered the relevance of the requirement to 'specify the reasons for [the] withdrawal' and noted that the requirement 'makes it plain that the giving of reasons is not a precondition for withdrawal. The withdrawal has taken place but the Tribunal is entitled to be told why' (see ). The Tribunal then set out the purpose of the requirement in rule 17(1) to specify reasons, namely that it 'provides a mechanism whereby the Tribunal can see whether the withdrawal is a valid one,' noting that it relates to the Tribunal's function under rule 17(3) of notifying each party in writing that withdrawal has taken effect' (at ).
41. What happens if the notice of withdrawal is not accompanied by reasons? As with any failure to comply with a requirement of the FtTIAC Rules, the Tribunal has power under rule 6 to take such action as it considers just, which may include waiving the requirement or requiring the failure to be remedied. In practice, the Tribunal's administration can be expected to request reasons, where none have been provided.
42. The Tribunal's response to the reasons given – or the failure to give reasons – will depend upon the nature of the case, including what is known about the appellant. If, for example, the appellant is a child (as in TPN), the Tribunal is likely, through the mechanism of rule 6, to insist upon seeing reasons, before issuing a notification under rule 17(3).
43. In some cases, the Tribunal's administration may well arrange for the matter to be put before a judge or a person exercising delegated judicial functions under rule 3. However, the fact that a judge or such a person may be involved in the process at this point does not mean that any resulting rule 17(3) notification must therefore be regarded as a "full-blown" judicial decision. It remains merely a notification of something that has happened without the Tribunal's input. It is, in other words, "of a formal or administrative nature", within the meaning of rule 3(1).
45. Where the Tribunal considers that the reason given for withdrawal raises an issue as to whether the appellant's notice of withdrawal is, in fact, legally valid, in the sense described by the AIT in AP; or where it is subsequently asserted that the notice of withdrawal was not validly given in that sense, then the Tribunal should exercise its case management powers under rule 4 so as to decide the matter. At this point, the matter lies unarguably in the purely judicial realm. The task for the judge is to pronounce on the issue of validity. This will normally involve holding a hearing, as occurred in AP. It may, however, involve dealing with the matter without a hearing, such as happened in the present case, where Judge Burnett was informed by the appellant's solicitors that they were content for the matter to be decided without a hearing. Judge Burnett was aware that rules 25 and 29 applied because he was engaged in a process that could result in a decision disposing of proceedings (as indeed it did).
7.25A As such, questions of the legal validity of a notice of withdrawal (as opposed to the withdrawal itself) are a judicial matter, requiring determination – usually at a hearing – and may, if it is properly characterised as a substantive decision (as opposed to procedural, ancillary or preliminary for the purposes of article 3(n) of the Appeals (Excluded Decisions) Order 2009) be appealable to the Upper Tribunal (see Anwar at ).
7.26 The Tribunal in Anwar  UKUT 00125 (IAC), therefore, endorsed the approach in AP (Withdrawals – nullity assessment) Pakistan  UKAIT 00022 that 'when an application is made to challenge a notice of withdrawal as invalid the Tribunal will then proceed to hear the application' and expressed the test by which it would determine the application as follows:
Based on all of the evidence placed before it, the Tribunal must be satisfied, on the balance of probabilities, that the withdrawal was not the result of a deliberate and informed decision; "in other words, that the mind of the applicant did not go with his act of abandonment [withdrawal]" before concluding that the purported withdrawal was in fact a nullity and the appeal is extant.
"(i) The Appellant has had an almost immediate change of mind, which is promptly communicated to a representative, prior to the matter coming for hearing before the Tribunal (as in Adewole);
(ii) A letter or notice purporting to withdraw an appeal has been sent to the Respondent, rather than to the Tribunal itself - (NB. A notice of withdrawal should have no legal validity until the actual notice of appeal is communicated to the Tribunal, either in writing or at a hearing before the Tribunal);
(iii) A withdrawal has been communicated to the Tribunal by a representative without there being clear understanding, or meeting of the minds, between an Appellant and the representative;
(iv) A withdrawal has been communicated to the Tribunal by a representative on the instructions of a Sponsor, (who has completed section 5 of the appeal form), rather than on the actual instructions of the Appellant;
(v) A representative has communicated a withdrawal to the Tribunal in error, either through lack of due care, or simple mistake."
7.28 Where it is alleged that a previous representative communicated a withdrawal to the Tribunal in error or without instructions, the former representative should be notified and told that they can write to the Tribunal giving any explanation and appear at the hearing if they wish and a waiver of privilege should be given.
7.29 The Tribunal accepted on the facts of AP's case that there had been a misunderstanding during the interpreting process and although the appellant had signed a notice saying that she withdrew her appeal and that the notice had been translated to her, she did not appreciate the effect of the notice as a result of an interpretation error. In TPN  UKUT 00295 (IAC), it was apparently accepted by counsel who appeared at the First-tier Tribunal hearing that he had not had clear instructions from the appellant to withdraw the appeal when he did so. The Upper Tribunal in Anwar  UKUT 00125 (IAC) noted to this effect that:
the actual decision of the Upper Tribunal in TPN was manifestly correct. The First-tier Tribunal had been given information, shortly after the purported withdrawal of the appeal, which demonstrated that the supposed withdrawal made by Counsel at the hearing, was, in fact, invalid because it had been made entirely without instructions (at ).
7.29A In AP  UKAIT 00022, the Tribunal, which at that time was a single-tier tribunal, had said that the appropriate procedure where an appellant wished to challenge a withdrawal as a nullity was to hold a hearing to decide whether to reinstate the appeal. In TPN (FtT appeals – withdrawal) Vietnam  UKUT 00295 (IAC), McCloskey J prescribed a different procedure to challenge a withdrawal accepted by the First-tier Tribunal under Rule 17(3).
7.29B There are two options available to an appellant dissatisfied with a decision to accept a withdrawal under rule 17(3). The first – which McCloskey J described as best practice – is to ask the Tribunal to exercise its powers under Rule 32 to set aside the decision on grounds of procedural irregularity. The Senior President's Practice Statements prescribe that this power can only be exercised by the President of the First-tier Tribunal or a Resident Judge. This is likely to be appropriate in a case such as that in TPN where the appellant has not in fact freely consented to a purported withdrawal made on his behalf.
7.29C The second option, available only if a judicial determination on validity is made, is to apply for permission to appeal to the Upper Tribunal on the ground of legal error, including procedural unfairness, in the First-tier Tribunal's decision. The Upper Tribunal in ZEI and others (Decision withdrawn - FtT Rule 17 – considerations) Palestine  UKUT 00292 (IAC) confirmed that an appeal to the Upper Tribunal would lie in relation to decisions to treat an appeal as withdrawn under rule 17(2) where the Home Office has withdrawn the decision. An appeal (rather than a set aside request under rule 32) will normally be the appropriate course if you want to challenge a decision to treat the appeal as withdrawn where the Home Office has withdrawn its decision and in circumstances where a decision on validity of a an appellant withdrawal under rule 17(1) is a substantive one (and, therefore, not an excluded decision for the purposes of section 11(5) of the Tribunals Courts and Enforcement Act 2007).
7.30 Rule 16 deals with abandonment of appeals. It provides that:
(1) A party must notify the Tribunal if they are aware that—
(a) the appellant has left the United Kingdom;
(b) the appellant has been granted leave to enter or remain in the United Kingdom;
(c) a deportation order has been made against the appellant; or
(d) a document listed in paragraph 4(2) of Schedule 2 to the 2006 Regulations has been issued to the appellant.
(2) Where an appeal is treated as abandoned pursuant to section 92(8) or 104(4A) of the 2002 Act …, the Tribunal must send the parties a notice informing them that the appeal is being treated as abandoned.
(3) Where an appeal would otherwise fall to be treated as abandoned pursuant to section 104(4A) of the 2002 Act…, but the appellant wishes to pursue their appeal, the appellant must provide a notice, which must comply with any relevant practice direction, to the Tribunal and each other party so that it is received within 28 days of the date on which the appellant was sent notice of the grant of leave to enter or remain in the United Kingdom ….
7.31 The relevant provisions of Section 104 of the 2002 Act provide that:
(4A) An appeal under section 82(1) brought by a person while he is in the United Kingdom shall be treated as abandoned if the appellant is granted leave to enter or remain in the United Kingdom (subject to subsection (4B) ).
(4B) Subsection (4A) shall not apply to an appeal in so far as it is brought on a ground specified in section 84(1)(a) or (b) or 84(3) (asylum or humanitarian protection) where the appellant–
(b) gives notice, in accordance with Tribunal Procedure Rules, that he wishes to pursue the appeal in so far as it is brought on that ground.
7.31A The Tribunal has found that insofar as leave is granted, a human rights appeal will be treated as abandoned even if an appeal was not pending at the point at which leave was granted: Aziz (NIAA 2002 s 104(4A): abandonment)  UKUT 00084 (IAC). This is because a 'human rights claim' for the purposes of s84(1)(c) of the 2002 Act refers to a claim that removal (or exclusion) from the UK would be unlawful under s6 of the Human Rights Act 1998. Where leave is granted, removal (or exclusion) is not envisaged and, as such, the Tribunal has no jurisdiction.
7.32 Section 92(8) has replaced the previous s.104(4)(b) and provides that an appeal brought from within the United Kingdom will be treated as abandoned if the appellant leaves the UK before it is finally determined, unless it has been certified under s. 94(1) or (7) or s. 94B (see chapter 3 for certification powers). In SR (Algeria) v Secretary of State for the Home Department  EWCA Civ 1375, the Court of Appeal held that an appeal is abandoned under s92(8) only if the appellant leaves voluntarily, and not where she is removed against her will.
7.33 There is no longer (as there once was) any power conferred on the Tribunal to treat an appeal as abandoned because it is satisfied, including by reference to a failure to comply with directions, that the appellant is no longer pursuing the appeal. The deliberate omission of a previous express power strongly suggests that no continuing power can be implied to treat an appeal as abandoned in any circumstances other than those listed in rule 16.
7.33A Note that under s. 104(4B), an asylum or humanitarian protection appeal (but on an appeal brought on human rights grounds only) may be continued where the appellant is granted leave to remain. It is no longer necessary (as was the case before the 2014 Act) for leave to have been granted for 12 months or more. Rule 16(3) lays down the procedure to be followed. Insofar as there has been a failure to follow the procedure, including the time limit, in rule 16(3), this should not necessarily lead the Tribunal to automatically treat the appeal as abandoned. The case management powers in rule 4, which include the power to extent the time for complying with any rule, practice direction or direction, would appear to permit the Tribunal to extend time retrospectively to permit an appellant to comply with the procedure in rule 16. That notice given in accordance with s104(4B) has the effect of retrospectively causing the appeal to have been pending throughout, and validating any act by either Tribunal that was done without jurisdiction prior to its service has been confirmed by the Upper Tribunal in MSU (S.104(4b) notices) Bangladesh  UKUT 00412 (IAC). MSU also confirmed that time can be extended for the purpose of service of the s104(4B) notice.
7.34 It was established in Gremesty v SSHD (01/TH/00096)  INLR 132 that a "notice informing them that the appeal is being treated as abandoned or finally determined" was appealable to the IAT (which could hear appeals against "determinations", defined in the 2000 Procedure Rules as "the decision of the Appellate Authority to allow or dismiss an appeal and the reasons for that decision"). Although that definition was not kept in the 2003 Procedure Rules, in MM and others (Out of time appeals) Burundi *  UKIAT 00182 the Tribunal considered that there would be a right of appeal against decisions "which confirm that an appeal is at an end, eg in relation to the abandonment or withdrawal of an appeal", a finding which it described as consistent with Gremesty. Under the present system, permission to appeal may be sought to the Upper Tribunal against the First-tier's "decision on the appeal" rather than its determination (Tribunals, Courts and Enforcement Act 2007, s.11). An appeal may not be brought against an "excluded decision", which includes, by art 3(m) of the Appeals (Excluded Decisions) Order 2009, "a procedural, ancillary or preliminary decision". Similar provisions apply to appeal to the Court of Appeal from the Upper Tribunal. Although the question of jurisdiction did not expressly arise in Vigneswaran (abandonment: s 104(4B))  UKUT 00054 (IAC), the Upper Tribunal had no difficulty with the fact that the appellant was appealing against a decision of the First-tier Tribunal that his appeal had been abandoned when he was granted leave to remain.
7.35 Rule 18 provides that:
18.—(1) The Secretary of State must, upon issuing a certificate under section 97 or 98 of the 2002 Act which relates to a pending appeal, provide notice of the certification to the Tribunal.
(2) Where a notice of certification is provided under paragraph (1), the Tribunal must—
(a) notify the parties; and
(b) take no further action in relation to the appeal.
7.37 Following the outbreak of the Covid-19 pandemic in March 2020, the Tribunal has conducted many hearings remotely. Initially, these were limited to CMRHs, however, remote video conferencing technology (the Tribunal's Cloud Video Platform ('CVP')) is now more widely used in substantive hearings. It will be important to discuss the hearing options with your client and for you to take a view and advise her of the potential pit falls of having a remote hearing. Given the importance of what is at stake for her, and the highest standards of fairness which are required in asylum and human rights appeals, it is particularly important that your client should be put in a position to take an informed view of the risks and benefits before agreeing to a remote hearing. The decision of whether or not to hold a remote hearing is a judicial one which will take account of the personal circumstances of the appellant in order to ensure a fair hearing and that the best evidence is given. In the Senior President of Tribunals' Annual Report 2021, the President of the First-tier Tribunal (IAC) said the following on the Tribunal's ongoing use of remote hearings:
We will continue to research the effects of video hearings on outcomes and court users and of remote working on our judges. I seriously consider the many reports that remote video hearings take longer and cause more judicial fatigue. However, those must be balanced against the reports I receive suggesting many court users prefer remote hearings, finding them less stressful, cheaper and more efficient. There are clear benefits to using remote hearings 'in appropriate cases', but I remain vigilant in ensuring that they are properly identified.
7.38 You will need to consider the practicalities of your client giving evidence remotely. Discuss with your client what access she has to a good internet connection and how reliable any technology she would need to use is (mobile phone, tablet, laptop). Importantly, discuss what is available to her in terms of a suitable location. This will need to be free from distractions (children or other dependents, or house mates in shared accommodation) but you will also need to ensure that your client would not be at risk or her evidence compromised in attending the hearing from home. This may particularly be the case where you suspect your client remains living in an exploitative situation, which may be particularly prevalent in cases involving human trafficking and modern slavery. Your client will need to be free to speak the truth and not fear being overheard.
7.39 If it is not possible for your client to give evidence from home, you may want to consider whether you can facilitate this from your offices. During the pandemic, many offices have been closed or not had sufficient cleaning, space or other facilities to permit this to be undertaken safely. Additionally, clearly, it is the Tribunal's role to enable the hearing to take place. Concerns have been raised about pressure being applied to representatives by the Tribunal to facilitate hearings from their offices. You should resist any attempt to do so: the Tribunal clearly cannot force representatives to enable hearings from their offices. Whilst you may want to facilitate a hearing where it is possible in certain cases – it may be that your client will feel more comfortable in your office if she is already familiar with it than she would at the tribunal - it will generally be more appropriate for the Tribunal to facilitate a hybrid hearing in such cases, whereby your client attends the hearing centre to give evidence, whilst some or all of the other participants attend remotely. See further para 31.19.
7.39 Beyond practicalities of remote hearings, there are also certain cases where a remote hearing will never be appropriate due to the vulnerabilities of your client, in particular due to her age or mental or physical impairment or ill health. Where you suspect this is the case, it will be useful to seek further evidence on the question of the nature of the hearing. This may be from a treating mental health professional or, if you have already instructed an expert to prepare an MLR you should ask your expert to comment additionally on the question of whether a remote hearing would be appropriate in your client's case. If your client is a minor and if she has a good relationship with her social worker, it may be useful to obtain a letter from Social Services about how evidence should be given based on their experiences of your client's ability to participate effectively or otherwise in video conferencing.
7.40 Finally, when advising your client it is important to be aware of the general research on the effects of remote hearings on assessment of credibility and the overall outcomes of hearings. The research shows that there a negative effects from the loss of "co-presence" including a statistically significant negative impact on the likelihood of an appeal being allowed (see Jo Hynes's article "Remote Hearings in the immigration tribunal: what could go wrong"). Therefore, whilst a remote hearing may enable your client's case to be heard more quickly, it will be necessary to balance other important considerations which in some cases will weigh heavily in favour of a face-to-face hearing.