Key Issue: Procedural Rigour and Withdrawal of Decision Under Appeal in Immigration and Asylum Tribunal Proceedings

Citation: [2024] UKUT 28 (IAC)
Judgment on

Introduction

The case of Secretary of State for the Home Department v Col Maleci addresses several key legal principles within the UK immigration and asylum law framework, especially concerning procedural rigour in tribunal proceedings, the admissibility of late evidence, and the withdrawal of a decision under appeal. The decision explores the balance of fairness, efficiency, and adherence to the procedural rules in relation to the overriding objective of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014.

Key Facts

Col Maleci, having been granted refugee status and Indefinite Leave to Remain (ILR), faced deprivation of his British citizenship by the Secretary of State due to alleged fraud. This decision was challenged, and during tribunal proceedings, the Secretary of State failed to comply with directions regarding the submission of evidence supporting their case. As a result, the evidence was later excluded by the judge, and an attempt by the Secretary of State to withdraw the decision under appeal in order to re-issue it with the excluded evidence included was rejected by the First-tier Tribunal. This decision was appealed to the Upper Tribunal.

The legal principles under scrutiny in this case are centered around the following:

  1. Procedural Rigour and Sanction for Non-compliance: The First-tier Tribunal holds the power to issue directions with sanctions, including the exclusion of evidence for non-compliance, to ensure proceedings adhere to the overriding objective - to deal with cases fairly and justly. The principles set forth in SSHD v SS (Congo) and Others [2015] EWCA Civ 387 guide such decisions. The application of this principle is seen in the exclusion of evidence by the First-tier Tribunal judge and upheld by the Upper Tribunal due to the Secretary of State’s failure to comply with procedural directions.

  2. Rule 17(2) Withdrawal of a Decision Under Appeal: Under Rule 17(2) of the Procedure Rules, the Tribunal must treat an appeal as withdrawn if the respondent (Secretary of State) notifies the Tribunal of the withdrawal of the decision to which the appeal relates. This rule was improperly applied by the First-tier Tribunal judge, who believed he had authority to accept or refuse the withdrawal of the underlying decision. The correct application of Rule 17 is provided in ZEI and others [2017] UKUT 292 (IAC), which underscores that an appeal should generally be treated as withdrawn unless there is a good reason to continue.

  3. ‘Good Reason’ for Permitting an Appeal to Continue Post Withdrawal: As set out in ZEI, the Tribunal can identify ‘good reasons’ for an appeal to continue, despite a decision being essentially nullified by withdrawal. Examples include changes in appeal rights or undue delay by the respondent. In this case, the Upper Tribunal found no good reason to allow the appeal to continue, noting that the respondent’s withdrawal aimed to incorporate previously excluded evidence, which did not prejudice the appellant’s rights or amount to an abuse of process.

Outcomes

The Upper Tribunal set aside the First-tier Tribunal’s decision, finding a legal error in how Rule 17(2) was applied. Furthermore, the Upper Tribunal treated the appeal as withdrawn based on guidance from ZEI, finding that the respondent’s (Secretary of State) withdrawal reason did not adversely affect the appellant’s rights or the proceedings’ integrity.

Conclusion

The Secretary of State for the Home Department v Col Maleci illustrates the importance of adhering to tribunal procedure in advancing a fair and efficient adjudicative process. The case emphasizes that while procedural requirements serve to ensure fairness and proper case management, the principles of justice must not be overlooked. It further clarifies procedural expectations for both litigants and adjudicators in the face of non-compliance with directions, and the proper approach to withdrawing a decision under appeal, reinforcing the primacy of procedure in the administration of justice.

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