UTIAC (1) Rule 17 (withdrawal) of the Tribunal Procedure (Upper Tribunal) Rules 2008 does not enable the Upper Tribunal to withhold consent to the withdrawal by the Secretary of State of the decision against which a person appealed to the First-tier Tribunal.
(2) Where such a decision is withdrawn in appellate proceedings before the Immigration and Asylum Chamber of the Upper Tribunal, that Tribunal continues to have jurisdiction under the Tribunals, Courts and Enforcement Act 2007 to decide whether the determination of the First-tier Tribunal should be set aside for error of law and, if so, to re-make the decision in the appeal, notwithstanding the withdrawal of the appealed decision. Such a withdrawal is not, without more, one of the ways in which an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 ceases to be pending.
(3) When re-remaking a decision in a 2002 Act appeal where the decision against which a person appealed has been withdrawn by the Secretary of State, the Upper Tribunal will need to decide whether:-
(i) to proceed formally to dismiss (or, in certain circumstances, allow) the appeal; or
(ii) to determine the appeal substantively, including (where appropriate) making a direction under section 87 of the 2002 Act.
(4) In deciding between (i) and (ii) above, the Upper Tribunal will apply the overriding objective in rule 2 of the 2008 Rules, having regard to all relevant matters, including:-
(a) the principle that the Secretary of State should, ordinarily, be the primary decision-maker in the immigration field;
(b) whether the matters potentially in issue are such as to require the Tribunal to give general legal or procedural guidance, including country guidance;
(c) the reasons underlying the Secretary of State’s withdrawal of the appealed decision;
(d) the appeal history, including the timing of the withdrawal; and
(e) the views of the parties.
Peter Lane, Southern, Dawson UTJJ
[2014] UKUT 64 (IAC)
Bailii
England and Wales
Immigration
Updated: 10 November 2021; Ref: scu.522263
