In the case of ZEI & Ors (Decision withdrawn – FtT Rule 17 – considerations : Palestine) [2017] UKUT 292 (IAC)  the Upper Tribunal, chaired by Mr Ockelton, has considered the application of rule 17 of the procedure rules. This rule provides that where the Home Office withdraws a decision which is under appeal, the appeal will normaly be treated as withdrawn:

17.—(1)    A party may give notice of the withdrawal of their appeal—

(a)     by providing to the Tribunal a written notice of withdrawal of the appeal; or

(b)     orally at a hearing,

and in either case must specify the reasons for that withdrawal.

(2)     The Tribunal must (save for good reason) treat an appeal as withdrawn if the respondent notifies the Tribunal and each other party that the decision (or, where the appeal relates to more than one decision, all of the decisions) to which the appeal relates has been withdrawn and specifies the reasons for the withdrawal of the decision.

(3)     The Tribunal must notify each party in writing that a withdrawal has taken effect under this rule and that the proceedings are no longer regarded by the Tribunal as pending.

The problems with this rule are that

(a) the Home Office misled the Tribunal Procedure Committee when it was being agreed;

(b) it gives one of the parties to litigation the right to terminate the litigation at will;

(c) Home Office Presenting Officers are thought to have to meet performance targets including winning a certain percentage of appeals, which gives an incentive to withdraw decisions which will be hard to defend; and

(d) the fee paid for lodging the appeal cannot be ordered to be repaid to the appellant where an appeal is terminated in this way (although a costs order can probably still be made for unreasonable conduct).

The rule is certainly open to abuse. Experienced lawyers will be all too familiar with circumstances where an appeal takes months to list (waiting times for some appeals stand at 83 weeks), the Home Office Presenting Officer decides to withdraw the decision on the day of the hearing or the day before, the appellant and witnesses have taken time off work and travelled to court, a new decision takes months to make and is another refusal, a new appeal has to be lodged and that then takes months to list. This saga is sometimes then repeated.

One might expect judges to take a strong line against abuse of the justice system and tribunal process in this way. I give you the official headnote:

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.

On the facts of the particular case, the withdrawal was on the day of the hearing and was allegedly because the removal directions were deficient. This was plain wrong in law so there was no real reason for withdrawal of the decision. This was not enough, however:

The fact that the withdrawal was for a reason that is extremely difficult to justify cannot, for the reasons given above, itself be a good reason, but it helps to show that the effect of the withdrawal is indeed prejudicial rather than merely unfortunate.

The only requirement in rule 17(2) is that “reasons” are given for a withdrawal. They do not need to be good or even legally correct reasons. Any reason will do. But if there is “good” reason for the appeal to continue then the judge can decide that the appeal will continue.

Entertainingly, if I read paragraph 16 of the determination correctly, the tribunal suggests that the appeal process is an assymetrical one in favour of the appellant.

The case is at least useful for confirming that there is a right of appeal to the Upper Tribunal against a rule 17(2) decision that an appeal should be treated as withdrawn. For the right of appeal to arise, though, submissions will need to be made by the appellant, triggering an adjudication on the issue by the First-tier Tribunal, and it may require some persistance by an appellant in the face of likely resistance from the tribunal bureaucracy, as was commendably shown in this case.

If costs are incurred in preparing for and attending a hearing where the Home Office then withdraws the decision on the day of hearing itself, or even shortly before, a costs application should certainly be considered. This will be strengthened if there has been pre-hearing correspondence to which the Home Office has failed to respond but belatedly responds on the day of hearing by withdrawing the decision.

The appellant in this case was represented by Richard Drabble QC and Tom Royston, instructed by Wilson Solicitors LLP.