'Disrespectful of the rule of law'?

In Maleci (Non-admission of late evidence) [2024] UKUT 00028 (IAC) the Upper Tribunal, chaired by the President, has sought to address a long-running problem in both tiers of the Immigration and Asylum Chamber: the Home Office’s failure to comply with directions or co-operate in proper case management. 

The judgment follows a theme which the UT recently also addressed in Lata [2023] UKUT 00163 (IAC) and TC Zimbabwe [2023] UKUT 00164 (IAC), in which stress was laid on procedural rigour and the importance of the parties – specifically the SSHD – engaging appropriately in the pre-hearing process in the FTT and complying with case management directions.

This most recent decision has implications for everyone involved before the FTT. 

Questions may however arise as to whether the outcome will do anything to discourage poor behaviour.

The relevant framework includes r.17(2) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014:

The Tribunal must (save for good reason) treat an appeal as withdrawn if the respondent notifies the Tribunal and each other party that the decision […] to which the appeal relates has been withdrawn and specifies the reasons for the withdrawal of the decision.

There is no doubt that the SSHD has the power to withdraw a decision under appeal, but it is clear from r.17(2) that:

(i) if the SSHD does withdraw her decision, that does not necessarily mean the FTT has to treat the appeal as withdrawn – the FTT can, in some circumstances, proceed to determine the appeal despite the SSHD’s withdrawal of the underlying decision;

(ii) the default position is that the FTT should treat the appeal as withdrawn, and it is only if ‘good reason’ can be identified for not doing so that the FTT should allow the appeal to proceed; and

(iii) the onus is on the appellant to identify ‘good reason’ for allowing the appeal to proceed.

It should be uncontroversial that a decision by the SSHD to withdraw a decision under appeal is subject to the usual constraints of public law, and that, because in doing so the SSHD can restrict or at least postpone the appellant’s access to a court, the SSHD can only exercise his power to withdraw if he does so fairly and for a proper purpose.  The requirement to ‘specif[y] the reasons for the withdrawal’ may be intended as a way of ensuring that the SSHD does have a proper purpose.  The SSHD should not, in other words, be able to take advantage of his special position as primary decision-maker so as to manipulate the appellate process to his advantage. 

It was no doubt with those considerations in mind that the Divisional Court ruled as it did in R (Chichvarkin) v SSHD [2010] EWHC 1858 (Admin), building on the decision of Collins J in R (Glushkov) v SSHD & AIT [2008] EWHC 2290 (Admin). For context, Mr Chichvarkin is a Russian businessman opposed to President Putin who had been refused leave to remain under Tier 1 of the point-based system, along with his wife. The Chichvarkins hadn’t previously claimed asylum, but they appealed against the refusal partly on asylum grounds (as was then permissible).  They then served a significant amount of further evidence relating to risk on return to Russia, following which the SSHD withdrew the refusal of further leave to remain, saying he wanted to reconsider in light of this evidence.  The Chichvarkins sought judicial review of that withdrawal.

At [46] the Court said that the only real question was ‘whether the exercise of the SSHD’s public law power to withdraw the decision was taken for a proper purpose’, adding at [49] 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. Collins J recognised in Glushkov that the power in question should be used to allow a genuine reconsideration, not to avoid applying for an adjournment of proceedings:

“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. I do not understand that the contrary would have been argued on behalf of the Secretary of State […].”

Perhaps unsurprisingly on the facts, the Court ruled that the power had been used lawfully.  The Chichvarkins appealed to the Court of Appeal, but unsuccessfully.

It isn’t hard to see why the Court in both Glushkov and Chichvarkin should have taken that view: the SSHD should be subject to the same judicial controls as all other parties, and shouldn’t be able to use his unique position in order to side-step proper case management.  What applies to adjournments would, it’s reasonable to think, apply to other aspects of case management.

Indeed, the SSHD’s own policy, Withdrawing decisions, Guidance for Presenting Officers, cites the above passage from Glushkov at p5 and then tells Home Office staff (my emphasis):

A decision [under appeal] 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.

It gives examples such as ‘a clear change in circumstances’ or fresh evidence, and adds at p6: 

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. 

It refers to Chichvarkin, in the passage reproduced above, and then explains the procedure for seeking an adjournment.  However it stresses that if an adjournment is refused, the Presenting Officer ‘should then present the Secretary of State’s case’, and adds (surely quite reasonably) that a view can be taken, where necessary, on whether to seek permission to appeal on the basis that an adjournment should have been granted.  No green light is given to Presenting Officers to withdraw a decision because an adjournment has been refused (or because another case management decision has gone against the SSHD).

In Maleci itself, the SSHD’s failure to comply with directions appears to have been serious and no doubt frustrating for all concerned. The appeal was against a decision to deprive Mr Maleci of British citizenship under s.40(5) of the British Nationality Act 1981, i.e. on the grounds of ‘fraud, false representation, or concealment of a material fact’.  (The UT has previously determined, not altogether uncontroversially, that such appeals are governed by public law principles, i.e. that the Tribunal must decide whether the SSHD’s decision was reached lawfully, not whether it was a correct decision.)

The appellant claimed to be from Kosovo, but the SSHD alleged that he was Albanian.  In the UT’s words at [3], ‘The decision was supported by an undated letter issued by the British Embassy, Tirana (the Embassy letter)’, which claimed that ‘checks’ had revealed that ‘someone with the same name, but whose date of birth was “21 May 1973”, was included on the Albanian National Civil Register’ and that ‘a photograph from an Albanian government database […] matched a photograph of [Mr Maleci] held on Home Office records’.

After lodging his appeal in October 2021, the appellant repeatedly asked for copies of documents corroborating the claims made in the Embassy letter.  The extent of the SSHD’s failures can be read in the judgment, but essentially, successive directions were made by the FTT, none of which the SSHD either complied with or tried to challenge.

The SSHD was warned that in the event of further non-compliance, he ‘will not be permitted to relying [sic] on these documents or any assertions made in relation to these documents’, and when he still did not respond, the FTT finally confirmed by directions dated 4 June 2022 that the SSHD could not in fact rely on the documents. 

Eventually on 25 August 2022, over six months after first being directed to comply, the SSHD burst into action, uploading certain documents – it isn’t clear if this was some or all of those which he’d been directed to produce – but without explaining his failure to do so sooner, or seeking an extension of time, or applying for relief from sanctions.

At a hearing on 5 December 2022, FTT Judge Jepson ruled as a preliminary matter that the evidence in question should be excluded.

Thereupon the Presenting Officer withdrew the decision under appeal.  The FTT Judge purported to refuse to allow this and the appeal continued. The Presenting Officer, it is recorded, ‘opted not to cross-examine [Mr Maleci] or make a closing speech of any significance’.  Perhaps unsurprisingly, since the SSHD had no evidence bar the uncorroborated Embassy letter, the appeal against deprivation of citizenship was allowed.

The SSHD then sought and was granted permission to appeal to the UT on three grounds of varying degrees of clarity, essentially:

1. that the FTT Judge had erred in treating the earlier directions as binding and failing to exercise his own discretion as to the exclusion of the evidence;
2. that the FTT had no power to prevent the SSHD from withdrawing his decision and that the correct question had been whether the appeal should proceed despite that withdrawal; and
3. that the FTT’s reasoning was inadequate to show that the SSHD had acted unlawfully in relying on the Embassy letter.

Under ground 1, the UT stressed at some length the importance of procedural rigour in immigration proceedings, noting at [47] that:

we are satisfied that the First-tier Tribunal is empowered to issue directions regulating the filing and service of evidence in proceedings which provide sanctions in the event of non- compliance that lead to the exclusion of evidence if the Tribunal considers this to be ‘just’. This is necessary to ensure that proceedings are conducted in accordance with the overriding objective. Non-compliance with directions imposing specified time limits may impact on judicial and administrative resources, on the ability of the other party to participate fully in the proceedings, and could delay the administration of justice. It is also disrespectful of the judicial process and the rule of law. Parties must appreciate that if they fail to comply with directions they run the risk that the Tribunal will refuse to consider evidence that is not provided in accordance with those directions.

Applying those principles to the facts, the UT – whilst expressing the view that the earlier directions of the FTT should not have been expressed in mandatory terms which might have been seen as tying the hands of the Judge at the hearing – upheld the Judge’s decision to exclude the SSHD’s corroborating evidence as a decision ‘within the range of reasonable conclusions open to him’.  (It might have been argued that the question was whether excluding the evidence was fair, and that fairness is for the reviewing court to determine for itself objectively, rather than being a question of what it was reasonable for the Judge below to think was fair, but this point doesn’t seem to have been taken and may have made no difference on the facts, which were unpromising from the SSHD’s perspective.)

As to ground 2, the FTT Judge is found at [57] to have erred in confusing the question whether the SSHD was able to withdraw his decision with whether the appeal should proceed notwithstanding that withdrawal (although since the UT had just accepted that the Judge did consider all relevant matters, it might have decided that this was simply an error of language rather than substance).

Going on to decide for itself whether the appeal should have proceeded, the UT was guided by its earlier decision in ZEI (Decision withdrawn - FtT Rule 17 – considerations) Palestine [2017] UKUT 00292 (IAC).  There the UT had set out a list of considerations as to what might or (more often) might not be a good reason for permitting an appeal to continue after the underlying decision was withdrawn. The headnote includes the following:

[That 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.

Absent from this list is any reference to the SSHD having an improper purpose for withdrawing the decision in question. Glushkov and Chichvarkin, which do stress that point, and indeed seem to reach a very different view over refusals of adjournments, are unmentioned. 

Applying ZEI to the facts before it in Maleci, the UT considered that the example given in the earlier case of a Presenting Officer who withdraws a decision after being refused an adjournment provided a useful parallel which pointed against allowing the appeal to continue:

We consider the decision of the Presenting Officer before the First-tier Tribunal to withdraw the decision to enable a new decision to be made that incorporates previously excluded evidence to be similar in nature to the example given in ZEI. The excluded evidence is clearly relevant to any consideration of the lawfulness of the appellant’s deprivation decision. Nor is there any apparent prejudice to the respondent. Unlike the appellant in ZEI, there will be no change in the respondent’s appeal rights. He will still be able to appeal any new decision to deprive him of his citizenship status. We are satisfied there is a good reason to treat the appeal as withdrawn. [60]

Again, Glushkov and Chichvarkin are not mentioned in Maleci.  (These are not particularly obscure cases, incidentally: they are cited in the relevant paragraph of Macdonald’s Immigration Law and Practice.)

Nor, perhaps even more surprisingly, does anyone, including the Home Office representative, appear to have drawn the Tribunal’s attention to the policy guidance cited above, which indicates that withdrawals should be undertaken only if it is possible that a favourable decision may follow.  The SSHD was not apparently intending to reinstate Mr Maleci’s citizenship (the equivalent to granting leave in an ordinary immigration appeal) and it is not obvious how the withdrawal was consistent with his policy.

Mr Maleci may also not have agreed that there was no prejudice to him in refusing to let his appeal continue, given not only the inevitable delay but also that the SSHD was being given a chance to side-step the FTT’s directions which Mr Maleci himself would not have had.

It is true that Glushkov and Chichvarkin involved challenges by way of judicial review to the SSHD’s withdrawal of the respective decisions, but it is hard to see why a party should have to seek judicial review of a decision to withdraw, with a view to pursuing a pending appeal, when there is another remedy available by way of persuading the FTT to allow the appeal to proceed under rule 17. Therefore whilst it is also true that the FTT cannot quash a withdrawal by the SSHD, as a judicial review court could, it can insist on the appeal continuing notwithstanding the withdrawal, which amounts in practice to the same thing. 

Courts and tribunals do, uncontroversially, have the power to protect themselves against abuses of their own process and to prevent unfairness: in Hunter v Chief Constable of West Midlands Police [1981] UKHL 13, Lord Diplock referred to ‘the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it’. The Court in both Glushkov and Chichvarkin clearly regarded it as unlawful for the SSHD to withdraw a decision in order to avoid seeking an adjournment, and the UT in Maleci (in this respect surely correctly) regarded such a scenario as raising materially the same issues as one where the SSHD was seeking to avoid the consequences of his own failure to comply with directions.

It is therefore not apparent how a failure to abide by the criteria explained in Chichvarkin (and the SSHD’s own policy guidance) cannot be at least relevant to the question under r.17, or why withdrawing a decision for an improper purpose would not potentially constitute a ‘good reason’ for allowing the appeal to continue.

What is clear is that the demands of procedural rigour will in future be invoked against all parties, including appellants. Appellants’ representatives would therefore be well advised to:

• always comply, where possible, with the Tribunal’s directions
• seek amendment or variation of any directions promptly, if and when it seems that there may be difficulty in complying with them
• where that is not possible, apply for an extension of time before, not after, any deadlines expire
• explain clearly why any non-compliance has happened and seek relief from sanctions, bearing in mind of course the likely importance of the proceedings to the appellant (and perhaps to family members or others).

More broadly, the UT, whilst stressing the importance of procedural rigour and respect for the judicial process and the rule of law, has left open the door for the SSHD – and only the SSHD – to ignore these. 

Since it is only the SSHD who has the power to avoid complying with directions by tactically bringing the appeal to an end, that seems to create a lopsided appellate process.  It is true of course that appellants in immigration proceedings are generally not fixed with the faults of their representatives, which provides some protection, but the faults will not always be attributable to representatives.

What remains to be seen is whether allowing the SSHD this freedom will encourage, rather than undermining, the objectives the Tribunal understandably wishes to promote.