All appellant advocates appearing before the Immigration and Asylum Chamber of the First-tier Tribunal will be familiar with the growing trend for UK Border Agency Presenting Officers to withdraw decisions either very shortly before or even at the appeal hearing. At Renaissance Chambers we are experiencing this many times every week between us, sometimes in rather dubious circumstances, and just last week I had two decisions withdrawn in this way.

Under rule 17(2) of the procedure rules, withdrawal of a decision terminates the appeal in the First-tier Tribunal. Not so in the Upper Tribunal, however, where different procedure rules apply.

On the face of it, the withdrawal of a decision by the UK Border Agency may seem like a positive development. Certainly some clients see it that way. It suggests that the Agency recognises that the existing decision is unsustainable and wrong, and that provides welcome recognition to some clients, who can be very upset at the terms of the decision as much as the actual outcome. It also seems that in at least some examples of withdrawn decisions the outcome is reversed and the original application is granted rather than refused. It is difficult for a barrister to comment on this, though, as we are only briefed for the appeal and rarely find out the ultimate outcome once the matter leaves the court arena.

There are, though, a number of real problems with this growing trend:

1. A client often waits months and months for a decision then for the appeal hearing. For the decision then to be withdrawn and the client to be put back into the bureaucratic limbo of UKBA decision making is deeply frustrating. There is almost nothing the lawyers or the client can do to regain control of the case, which simply disappears back into the depths of the Home Office. Having already incurred all their legal costs and with a risk of having to pay yet more if the decision is ultimately the same, many clients would rather proceed with the appeal and reach a controlled resolution of their case in a reasonable timescale, which is what an appeal offers. This is particularly so given that in most withdrawn decision cases the Presenting Officer is conceding that the appeal would be allowed if it proceeded.
2. A Presenting Officer is supposed to write a note recommending an outcome. However, this recommendation is not binding and there is no guarantee that the same decision will not be re-made, only many months later.
3. As I understand it, the termination of the appeal sacrifices the appeal fee that appellants must now pay and because the appeal was not allowed the Home Office cannot be ordered to repay the fee.
4. Similarly, the client will usually have incurred heavy legal costs by the time that the decision is withdrawn. Sometimes the client will be publicly funded and precious legal aid funds will have been utterly wasted. The tribunal will also have expended considerable public funds listing the case. All these costs are unrecoverable. Or, rather, there is no obvious route to recovering them.
5. The one-sided nature of rule 17(2) whereby one of the parties can terminate the appeal at will is open to abuse. If the appeal is inconvenient for some reason the Home Office can dispose of it, for example if an adjournment request is refused.
6. The process exposes the problematic nature of the relationship between Home Office Presenting Officer and the tribunal. The reason why HOPOs have started to withdraw decisions is because they are monitored on their appeal ‘success’ rate. Several have been quite candid about this with their opponents. They do not withdraw the decision out of regard or kindness to the client – this is a new phenomenon, remember. Tribunal judges should be concerned that advocates before them are monitored on outcomes because it creates a conflict of interest between the advocate’s duty to his or her employer and self interest in preserving his or her employment on the one hand and the duty to the court on the other. This is a reminder that HOPOs are not ‘officers of the court’ and are under no binding legal duty to the court.

The official Home Office line is that a new policy of reviewing decisions five days before a hearing has been started. The reason that decisions are withdrawn on the day or the day before a hearing is because claimant representatives have failed to comply with directions and submit appeal evidence in good time.

Let us for now ignore the irony of anyone at the Home Office complaining of breach of directions. In one of my cases last month the client waited a year for a decision and when it finally came it bore no relation to the application. The issues were clearly flagged up in the grounds of appeal and the directions on service were complied with. The decision was simply incompetent and when it was belatedly allocated to a Presenting Officer the day before the hearing, it was withdrawn at 3pm. In the other case the decision was withdrawn at the hearing because an application by the Home Office to adjourn was refused.

If a complaint to the UK Border Agency with schedule of costs does not lead to compensation, a complaint to the Parliamentary Ombudsman might be more effective. Compensation and costs can be and is awarded by the Ombudsman in suitable cases.