Rule 17 clearly envisages that in general the appeal is to be treated as withdrawn. It will continue only if a good reason is identified for allowing it to proceed despite being an appeal against a decision that will not have effect in any event. The appellant needs the opportunity to advance a case why he considers an appeal should not be treated as withdrawn, and the SSHD needs the opportunity to respond. The Tribunal has no power to require the Secretary of State to give (or even to have) a good reason for her decision.
The list below cannot and should not be regarded as a comprehensive account of all reasons that might be urged on judges, but we trust that as well as giving guidance on the arguments discussed the reasoning may be adapted to other cases.
(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.
Citations:
[2017] UKUT 292 (IAC)
Links:
Jurisdiction:
England and Wales
Immigration
Updated: 31 January 2022; Ref: scu.595799