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Rewarding failure: Home Secretary permitted to withdraw decision under appeal following failure to admit excluded evidence
The Upper Tribunal has approved a situation where the Home Secretary failed to comply with appeal directions to the point that the First-tier Tribunal ordered that evidence be excluded, and then in response to that sought to withdraw the decision under challenge. The case is Maleci (Non-admission of late evidence)  UKUT 00028 (IAC).
I found the headnote for this case slightly bizarre in that it omits any mention of the Home Secretary’s use of withdrawals of decisions in order to end appeals, which is quite a large and important part of the decision.
Mr Maleci entered the UK in 1997 and was granted refugee status and indefinite leave to remain as a Kosovan national in 1999. He applied for naturalisation in 2004 and this was granted in 2005. On 26 October 2021 the Home Secretary gave notice of her decision to make an order to deprive Mr Maleci of his British citizenship on the basis that it was obtained by fraud, false representation or concealment of a material fact.
In support of the decision, the Home Secretary provided a copy of an undated letter from the British Embassy in Tirana saying that checks had found there was no Kosovan national with the name and date of birth provided by Mr Maleci. Checks with the Albanian government had found someone with the same name but a date of birth exactly five years earlier than the one provided by Mr Maleci. A photo from the Albanian database matched a photo of Mr Maleci in Home Office records.
Mr Maleci’s appeal
Mr Maleci appealed the decision. Following a request by his lawyer, the First-tier Tribunal made an order for the Home Secretary to provide further documents including correspondence between the British Embassy and the Albanian and Kosovan governments. The assertions made in the Embassy’s letter were based on these documents. An extension of time application was made and granted, however the documents were not provided with no further explanation or application made by the Home Secretary.
The tribunal then made further directions, accompanied by a sanction for failure to comply, that the Home Secretary would not be permitted to rely on the documents or any assertion made in relation to them. Again, there was no compliance, no explanation and no application to extend time.
An order was made stating that the Home Secretary would not be permitted to rely on the documents or any assertions made that were based on them. The Home Secretary did not challenge this direction, but over four months later several of the documents were uploaded to the tribunal’s case management system without further explanation.
At the hearing, the Home Office Presenting Officer sought to have the evidence admitted. When this was rejected, they tried to withdraw the decision under challenge with a view to remaking the decision in reliance on the additional evidence. Withdrawal of the decision would have ended the appeal.
The judge rejected this, saying that withdrawal of the decision “would in my judgment simply reward failure”. The presenting officer then declined to cross-examine “or make a closing speech of any significance”. He accepted that without the excluded evidence there was little to rely on. The appeal was allowed.
The Home Secretary’s appeal
The Home Secretary appealed against the judge’s purported refusal to allow her to withdraw the decision under challenge, on the basis that this was a power the judge did not have, as opposed to the limited discretion the judge did have to decide whether or not the appeal should continue.
The Upper Tribunal held that the judge had wrongly believed that he could allow or refuse permission to the Home Secretary to withdraw the decision under challenge “and that he failed to consider whether there was good reason to allow the appeal to continue despite the fact that the underlying decision has been withdrawn”.
In relation to the second point, referring to ZEI and others (Decision withdrawn – FtT Rule 17 – considerations) Palestine  UKUT 00292 (IAC), the Upper Tribunal said that rule 17(2) of The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 “clearly envisages that in general the appeal is to be treated as withdrawn”.
The Upper Tribunal set out a non-comprehensive list of what would and would not be a good reason for the appeal to continue. It was expressly stated that where the withdrawal of the decision is for reasons the judge considers inappropriate. this is “very unlikely to be a good reason to proceed”. The example given was where a presenting officer seeks adjournment of a hearing and when refused, withdraws the decision under challenge.
The Upper Tribunal set aside the First-tier Tribunal’s decision.
If you want to ruin your day, do go and read the full list of reasons that the Upper Tribunal does not consider sufficient to prevent the Home Office from withdrawing an appeal at the hearing. This decision may well lead to more abuse of rule 17 withdrawals at appeal hearings where the Home Office does not gets its way.