England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/07/2010

Mr Justice Kenneth Parker :

This is the judgment of the Court.

Introduction

1. This is an application for judicial review brought by the Claimants, Evgenyi Chichvarkin and his wife Antonina Chickvarkina, against a decision of the Secretary of State for the Home Department ("SSHD"), dated 26 February 2010, notified to the Claimants on 4 March 2010, by which the SSHD withdrew decisions, which were under challenge in appeals to the Tribunal, to refuse to vary the Claimants' leave to enter or remain in the United Kingdom. The effect of the challenged decision was to end the appeals in the Tribunal. Following the withdrawal of the decision, the SSHD is reconsidering whether she was right to refuse to vary the Claimants' leave to remain or whether their leave to remain should be varied in the light of their claimed need for international protection.
2. In these proceedings the Claimants primarily contend that the SSHD's decision to withdraw was unlawful and of no effect.

The Background to the Challenged Decision

3. The first Claimant, Evgenyi Chichvarkin, entered the UK on 22 December 2008 and the second Claimant, his wife Antonina Chichvarkina, together with their two children, entered on 23 December 2008. All entered as visitors. On 15 January 2009 Mr Chichvarkin was charged in Russia in his absence with offences relating to kidnap and extortion. On 28 January 2009 the Russian court issued a warrant for his arrest.
4. On 11 May 2009 Mrs Chichvarkin applied for variation of her leave to remain as a visitor to leave to remain as a Tier 1 (Investor) Migrant and sought the exercise by the Secretary of State of her discretion to allow this application without the necessary entry clearance. Mr Chichvarkin and the children applied to remain as her dependants. The accompanying statement from Mr Chichvarkin stated that:

"For the avoidance of doubt I wish to state expressly that I am not at this time seeking the UK's protection under the European Convention on Human Rights or on the basis of recognition that I am a refugee within the meaning of the Refugee Convention 1951."

This statement was reiterated in a letter dated 12 May 2009.

5. The application was considered by an official within the "Tier 1 Highly Skilled 7" Section of the UK Border Agency (based in Sheffield) and was refused on 21 August 2009. As had been expressly requested, no consideration was given to the Claimants' protection needs.
6. In refusing the claim the SSHD observed that the Points Based System had been set up to minimise the exercise of discretion and that strict compliance with the rules was necessary. The SSHD stated that where applicants had an alternative available to them, exceptional circumstances did not arise and they should submit applications through the appropriate immigration route. The SSHD had considered the Claimants' current circumstances and the problems that these circumstances might cause if they left the UK, but, as alternative immigration channels were open, the SSHD insisted upon the strict application of the rules.
7. The notices of decision issued to each Claimant and to the children informed them that they had a right of appeal to the Asylum and Immigration Tribunal which, from 15 February 2010, has been constituted as the First Tier Tribunal (Immigration and Asylum Chamber) ("the Tribunal"). The notices further stated that the appeal must be made on one of a number of listed grounds, including that the decision was "not in accordance with the law", that the decision was unlawful "because it is incompatible with [the Claimants'] rights under the [ECHR]" and that "[the Claimants' removal] from the UK as a result of the decision would breach the [UK's] obligations under the 1951 Refugee Convention [or] be incompatible with [the Claimants'] rights under the [ECHR]". The notice further stated that they must "…now inform us of any reasons why [they thought they] should be allowed to stay in this country…and any grounds why [they] should not be removed or required to leave". The Claimants were warned that if such reasons were not given in response to the notice but they later applied to remain on the basis of a reason that could have been so given they might not be able to appeal if the application was refused. The notices further stated that if the reasons for being allowed to remain in the UK changed or new reasons arose, they were required to notify the new matters as soon as possible, and that the ongoing duty to state reasons arose under section 120 of the Nationality, Immigration and Asylum Act 2002 ("the Act").
8. On 7 September 2009 the Claimants appealed against that decision. In the Grounds of Appeal the Claimants stated, in somewhat conditional terms, that:

"For the avoidance of doubt, all the appellants also appeal on the following grounds (applicable if and when it is finally determined that the in-country variation applications were lawfully and rightly rejected):

- removal to Russia from the UK as a result of the decision would be unlawful under section 6 of the Human Rights Act as being incompatible with the appellants' human rights;

- such removal would breach the United Kingdom's obligations under the Refugee Convention."

9. No further detail was given of those grounds other than the assertion that

"the way in which such breaches arise are set out in the supporting evidence on which the appellants rely. As indicated above, SSHD says nothing at all in rebuttal of anything contained therein and is to be taken to have accepted the risks asserted."

10. By letter of 2 October 2009 Mr Chichvarkin told the Secretary of State that

"… he requires the protection of the United Kingdom government and will make a formal asylum application in due course by attending the Asylum Screening Unit …"

"[the Second Claimant] will pursue his formal application (by attending the ASU in Croydon) as soon as can reasonably be arranged."

11. By letter dated 15 October 2009 the UK Border Agency Complaints and Correspondence Standards Performance Directorate (CCSPD) stated that applications for asylum were not accepted by post but that applications must be made in person at the ASU in Croydon.
12. The first directions hearing before the Tribunal took place on 19 October 2009 and the Secretary of State was not represented.
13. In accordance with directions in the appeal before the Tribunal, the Claimants served on the Home Office Presenting Officers Unit the trial bundles consisting of six lever arch files and one ring binder. The vast majority of the evidence in the trial bundles was new evidence first produced on 26 January 2010.
14. The skeleton argument served on the same date reasserted that:

"[the second Claimant] … relies primarily on the one-stop jurisdiction in respect of the Refugee Convention and ECHR. In other words, in the event of winning the appeal on all grounds, he seeks refugee status as the basis on which he remains in the UK.

[the first Claimant's and the children's] position is that they will not require protection unless and until their quest to switch to investor status (plus dependants) fails and/or the circumstances in respect of Russia otherwise deteriorate …

Late evidence may be submitted. It is still hoped that a person (living in Russia, and therefore fearful of giving support) may provide evidence and it is expected that Prof Sakwa will submit a supplementary report. It has not been reasonably possible to obtain these to date. If they do materialise, they will be brief and will be forwarded to SSHD and the tribunal at once." (Emphasis in original).

15. At a directions hearing before the Tribunal on 1 February 2010 the Home Office Presenting Officer stated in error that the Special Cases Directorate of the UK Borders Agency had agreed to consider the claim for asylum despite the fact that the application for asylum had not yet been made. Leading counsel for the Claimants explained that of the six bundles of evidence submitted "half of it is Country Materials and, of what is left, only 1.5 lever arch files contain new material". He also said that if it remained the case that the Treasury Solicitor was not instructed, the appeal would last 5 days, but if not, it was anticipated that the appeal would take 3 weeks. Of this half a day would be spent on the refusal of permission to switch outside the Immigration Rules and the remainder "for the other part".
16. By directions dated 4 February 2010, the Tribunal listed a further directions hearing for 3 March 2010 on the basis that it was expected that progress would have been made in considering the asylum application and that the Respondent would be able to report on the position and give a timeframe within which a decision would be made.
17. By letter of 4 February, 2010 the Asylum Casework Directorate of the UK Border Agency (based in Croydon) wrote to ask for all the evidence that Mr Chichvarkin wished to submit to enable the application to be fully considered and an interview arranged.
18. By letter of 10 February 2010 the Asylum Casework Directorate of the UK Border Agency made good an omission in the earlier letter, informing the Claimants that they would be required to attend the ASU in order to claim asylum.
19. By letter of 18 February 2010 the Claimants said that the approach set out in these letters contradicted the position taken by the Home Office Presenting Officer at the directions hearing on 1 February and confirmed that the first Claimant would not be attending ASU to initiate the normal claim procedure.
20. By a letter dated 26 February 2010 the Asylum Casework Directorate of UKBA notified the Claimants that

"The Secretary of State has decided to withdrawn [sic] the decision of 21 August 2009 to refuse leave to remain in the United Kingdom … for reconsideration."

No further reasons were provided.

21. By letter of 4 March 2010 the Claimants sought reasons for the decision, an indication of what else was required from the Claimants before reaching a decision on the leave applications and an approximate indication of when a fresh decision could be made on those leave applications. A letter before claim was sent on 5 March 2010 requesting a response to the letter of 4 March.
22. On 8 March 2010 the SSHD replied to the following effect. The SSHD had decided to withdraw the decision

"in order to be able to consider the new matters raised by your clients in their grounds of appeal, specifically the claim that requiring them to leave the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 and contrary to the UK's obligations under the 1951 Refugee Convention."

The SSHD continued:

"It is the Secretary of State's position that claims for leave to remain in the UK on that basis should be considered by officials in the first instance, with a statutory right of appeal in the event that the application is refused. He does not accept that such first instance consideration by UK Border Agency officials in any way prejudices your clients, neither does he accept that his decision deprives clients [sic] of any right of appeal that may arise."

23. The SSHD made clear that, if the Second Claimant wished to pursue an asylum application, he was required to visit the ASU and to submit any evidence that he wished to rely on for the purposes of such an application. A new decision would be issued in due course, the SSHD stating:

"Given that your client has not yet lodged an application for asylum, I am not able to forecast when a decision might be taken. However, once an application has been lodged, we would aim to complete our consideration and issue a fresh decision within [3 months]."

24. The SSHD also confirmed that the statement by the Home Office Presenting Officer at the directions hearing on 1 February 2010, to the effect that there was an extant asylum application which was being considered, had been in error.
25. Following the decision to withdraw the original decision, Rule 17(2) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 ("the Rules") applied to the appeal:

"An appeal shall be treated as withdrawn if the respondent notifies the Tribunal 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."

26. The decision to that effect, made by the Tribunal, was notified on 15 March 2010. That decision is not challenged by the Claimants in these proceedings.

The Applicable Legislation

27. Section 120 of the Act simplifies the so-called one-stop procedure previously contained in the Immigration and Asylum Act 1999 (sections 74-77). The section applies to every person who has made an application to enter or remain in the UK or in respect of whom any immigration decision within the meaning of section 82 of the Act (that is an appealable immigration decision) has been taken or may be taken. The SSHD or immigration officer may by notice in writing require that person to state any other reasons or grounds upon the basis of which he wishes, or believes he should be permitted, to enter or remain or not be removed from or required to leave the UK. Then, on an appeal under section 82(1) of the Act, the Tribunal shall treat the appeal as being against any and all appealable decisions against which the appellant has a right of appeal under that provision (see section 85(1), as amended by the Asylum and Immigration (Treatment of Claimants etc) Act 2004, section 26(7), Schedule 2, from 4 April 2005). The Tribunal shall deal, on the one appeal, with all permissible grounds (see section 84(1)) raised by the Appellant either initially as the basis of the original application or in his statement of additional grounds made in accordance with section 120. Such a statement can be made either before or after the appeal was commenced.
28. The concept of an "additional ground" has a wide ambit. It is open to an appellant to contend that an immigration decision is not in accordance with immigration rules relating to a category under those rules raised by the appellant in a one-stop notice but not in the original application that has been refused by the SSHD: AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1076 at [2010] 2 All ER 21. In the context of the present claim it is notable that in AS (Afghanistan) it was not controversial that asylum and human rights grounds can be raised in a one-stop notice (at [2], by Arden LJ, who dissented from the wider approach of the majority on the specific and different issue in the appeal).
29. For completion we should also mention that on an appeal against any immigration decision, and on an appeal under sections 83(2) or 83A(2), on refugee asylum grounds, the Tribunal may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns matters arising after the date of the decision (section 85(4)). (The only exception is an appeal against refusal of entry clearance or refusal of a certificate of entitlement (section 85(5), even if the appeal is on human rights grounds (AS (Somalia) v SSHD [2009] UKHL 32)). This means, for example, that an appellant will succeed on an appeal on the ground that the decision is not in accordance with immigration rules if at the date of the hearing by the Tribunal the appellant fulfils all of the requirements of the rules under which he made his original application even if he did not at the date of the application fulfil all those requirements.
30. Section 96 of the Act limits further or subsequent appeals. An appeal under section 82(1) against an immigration decision ("the new decision") in respect of a person may not be brought if the SSHD or an immigration officer certifies (a) that the person was notified of a right of appeal against another immigration decision ("the old decision"); (b) that the claim or application to which the new decision relates relies on a matter that could have been raised in an appeal against the old decision; and (c) that, in the opinion of the SSHD or immigration officer, there is no satisfactory reason for that matter not having been raised. Secondly, an appeal under section 82(1) against an immigration decision ("the new decision") may not be brought if the SSHD or an immigration officer certifies (a) that the person received a notice under section 120 of the Act by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision; (b) that the new decision relates to an application or claim which relies on a matter that should have been, but has not been, raised in a statement made in response to that notice; and (c) that in the opinion of the SSHD or the immigration officer, there is no satisfactory reason for that matter not having been raised in a statement in response to that notice.

The Grounds of Challenge

31. Mr Fransman QC, on behalf of the Claimants, submitted, as a broad proposition, that in any case where the SSHD did not "concede" an appeal in the Tribunal, the SSHD was not at liberty to withdraw the decision that was challenged in the appeal, unless the conduct of the appellant was "abusive". It appears that by "abusive conduct" Mr Fransman was referring to a situation where an appellant chose not to raise a matter upon which the SSHD could have taken a primary decision, and then raised that matter on an appeal to the Tribunal, for the reason only that the appellant was seeking to obtain a definitive decision sooner than would have been the case if normal procedures had been followed ("queue jumping").
32. The corollary to Mr Fransman's broad proposition would, of course, be that the SSHD, unless she "conceded" the appeal or the Appellant had behaved "abusively" (in the above sense), could never withdraw a decision that was challenged on appeal, even if the SSHD wished to reconsider that decision.
33. The basis of this broad proposition is said to be the applicable legislation regarding the one-stop appeal set out above. The effect of this legislation is clear. Generally speaking, and subject to specific exceptions, the Tribunal has jurisdiction on an appeal to consider grounds of challenge that were not raised at the time of the initial application and that could not have been addressed in the SSHD's initial decision. Where the Tribunal exercises that jurisdiction, it inevitably becomes the primary decision maker in respect of the new grounds of challenge. In the present case it is uncontroversial that, even though the Claimants expressly disavowed making an asylum or human rights claim at the time of Mrs Chichvarkin's application to vary her leave to remain in the UK, the Tribunal was required, if the appeal continued, to make a decision on the Claimants' asylum and human rights claims that were first raised in the course of the appeal against the initial decision.
34. However, in our judgment, it does not logically follow from the fact that the Tribunal would have had jurisdiction (in this case in respect of the asylum and human rights claim) if the appeal had continued, that the SSHD was precluded from taking a decision, otherwise lawful on normal public law grounds, that had the effect of ending the appeal. Mr Fransman argued that such a decision was "in flagrant conflict" with the applicable legislation regarding the one-stop appeal. But that argument simply begs the question. There is nothing in that legislation that compels the Tribunal to exercise a jurisdiction, which it would otherwise have, if the SSHD has taken a decision, lawful on normal public law grounds, to withdraw the initial decision and so, through the Rules, put an end to the appeal.
35. Far from conflicting with the applicable legislation, it appears to us that a decision, otherwise lawful on public law grounds, to withdraw a challenged decision is entirely consistent with the general scheme of the legislation. Under that general scheme it is contemplated that ordinarily the SSHD is the primary decision maker in respect of immigration, asylum and human rights decisions: see, for example, article 4(1) of The Qualification Directive (Council Directive 2004/83); Directive 2005/85 ("the Procedures Directive"), Articles 4(1), 8(2), 12(6) and 39; sections 3(1)(a), 4(1) and 11(1) of the Immigration Act 1971.
36. The primary role of the SSHD was recognised in AS (Afghanistan) where Moore-Bick LJ observed:

"Of course the Secretary of State is normally the primary decision maker in immigration matters, but in practice the Tribunal makes many decisions which are indistinguishable from those made by the Secretary of State and is quite capable of carrying out that function and it is the responsibility of the appellant to ensure that it has all the material it needs to make a decision." (at [84]).

37. As Mr Eicke, who appeared for the SSHD, correctly submitted, this primary role of the SSHD also enables certain decisions to be made more effectively and efficiently. For example, fingerprinting at the asylum interview conducted by the UK Border Agency allows the UK authorities to determine whether an application for asylum, and the applicant, may be transferred to another Member State with which the applicant was linked (under Council Regulation (EC) No 343/2003 of February 2003, "Dublin II"). As primary decision maker, the SSHD may also certify an asylum and/or a human rights claim as "clearly unfounded" (section 94(1A) of the Act), so that the Claimant does not have a suspensive right of appeal, against a relevant consequential adverse immigration decision, whilst remaining in the UK. In the same role the SSHD, on refusing an application, may certify that the decision to refuse asylum was taken on national security grounds (section 97 of the Act), so that no appeal will lie to the Tribunal, but must be brought before the Special Immigration Appeals Commission.
38. We believe also that in many cases the appellate process is itself likely to benefit from a first instance decision by the SSHD: primary findings of credibility (under section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004) may assist the Tribunal in its own deliberations, and a two-stage procedure may enable the issues on the appeal to be more precisely focussed, in each instance promoting the overriding objective, namely,

"to secure that proceedings before the Tribunal are handled as fairly, quickly and efficiently as possible in the interests of the parties to the proceedings and in the wider public interest" (Rule 4).

A favourable decision by the SSHD, of course, obviates the need for an appeal altogether.

39. In the present case the experienced Senior Immigration Judge believed that the initial absence of a primary decision by the SSHD was not especially conducive to the efficient disposition of the appeal. He said:

"…any case like this and any asylum application should better be made to the [SSHD], the whole tenor of the asylum and immigration world is that such application should be made to the [SSHD]… The difficulty is that we are faced at the moment with a 5-day hearing which could either be a waste of time if the application [viz. to the SSHD] had been made and protection is granted or at least the issues could be narrowed, if and when a refusal letter were issued, i.e. credibility which could be an issue or accepted …. The whole system would be in danger of collapsing [if] every appeal would be dealt with in that way where no asylum claim was dealt with by the [SSHD]. (Our emphasis)."

40. The Claimants relied on Sandralingham and Ravichandran v SSHD [1996] Imm AR 97. In that case the Court of Appeal held that the Tribunal, as "an extension of the decision-making process", could, on an asylum/human rights appeal, consider the facts as at the time of the appeal (see paragraph 29 above for the current legislative provision). However, the characterisation of the Tribunal in that way in the relevant context does not, in our judgment, undermine the normal role of the SSHD as primary decision-maker in a two-stage process. Karanakran v SSHD [2000] INLR 122 was also relied upon, but Sedley LJ in his judgment expressly recognised that an asylum application was –

"conducted initially by a departmental officer and then, if challenged, by one or more tribunals" (at [18]).

41. Nor do we find anything in AS (Afghanistan) that would support the contention that the SSHD may not withdraw a decision with a view to reconsideration in her capacity as primary decision maker. On the contrary, in respect of the division of responsibility between the SSHD and the Tribunal, Sullivan LJ observed:

"If there is a concern that the AIT would be overburdened by an increased role as primary decision-maker, the remedy lies in the hands of the Secretary of State: having chosen to require the Appellant to state any additional grounds the Secretary of State should make the necessary administrative and procedural arrangements to enable him to make a decision or decisions on them." (at [107]).

42. It seems to us that "administrative and procedural arrangements" to which Sullivan LJ referred can fairly and properly include the withdrawal of the decision under appeal with a view to reconsideration in the light of facts and matters advanced during the course of the appeal.
43. Mr Fransman suggested that the negation of his broad proposition would be likely to cause significant prejudice to appellants before the Tribunal. We reject that suggestion. If, after reconsideration, the SSHD makes a decision that is favourable to the appellant, the latter will have achieved his objective without having had to incur the further costs of a continuing appeal. If, after reconsideration, the SSHD makes an adverse decision, the appellant will have a right of appeal against such a decision (with the wide import recognised in AS (Afghanistan)), in accordance with the one-stop appellate system. In any reconsideration the SSHD has the opportunity of reviewing the refusal to vary Mrs Chichvarkin's application for leave to remain as a Tier 1 (Investor) Migrant (because the application had to be made outside the UK), in the light of all the matters now advanced to support her claim for international protection. Pending reconsideration and any appeal, the appellant cannot be removed from the UK.
44. Mr Fransman also suggested that in this case Mr Chichvarkin was concerned that the making of an application for asylum/human rights protection would not be sufficiently confidential, as distinct from the privacy that the Tribunal procedure might accord. However, information provided in support of an asylum application and the fact that an application has been made must not be disclosed to the alleged actors of the persecution, and information must not be obtained from the alleged actors of persecution that would result in their being directly informed that an application for asylum has been made by the applicant and would jeopardise the "physical integrity" of the applicant and his dependants, or the liberty and security of his family members still living in the country of origin (HC 395, paragraph 3391A, transposing article 22 of Council Directive 2005/85/EC).
45. We should, for completion, add that we were not at all attracted by Mr Fransman's qualification of his broad proposition by reference to "abusive" conduct. It appears to us that many claimants might hold back on making an immediate asylum/human rights claim to the SSHD from a mixture of motives, including a wish to jump the queue in order to obtain a definitive decision; and some would no doubt contend that they had good reasons for holding back when their real purpose would be to jump the queue. It would add a further layer of complexity to an already complex system, if the SSHD could withdraw a decision only if she was satisfied that the Claimant's reasons for holding back on an asylum/human rights claim were "abusive". The consequential flow of challenges by way of judicial review to an unfavourable ruling from the SSHD on this putative issue could also, without requiring much imagination, be anticipated.
46. For these reasons, therefore, we reject the Claimants' alleged broad proposition. This application then narrows to what we believe is the only relevant issue, namely, whether the exercise of the SSHD's public law power to withdraw the decision was taken for a proper purpose. We note that it is practically an everyday occurrence in the Administrative Court for the SSHD, having given preliminary consideration to a claimant's challenge to a decision by way of judicial review, to withdraw the challenged decision, with a view to reconsideration. In a number of cases a favourable decision follows; but in many instances the SSHD makes a further unfavourable decision but, taking advantage of the reconsideration, she is able to deal more fully and/or accurately with the facts and matters advanced by the claimant. The claimant may accept the new unfavourable decision, but if he restores his challenge in a further claim for judicial review, the proceedings may well be better focussed, and more efficiently and promptly handled, by reason of the procedure followed.
47. The classic statement of the procedural result of a decision to reconsider in the context of judicial review was given by Simon Brown LJ (as he then was) in R v SSHD ex parte Alabi (5 February 1997, unreported):

"Once there is an agreement to reconsider the decision, the judicial review proceedings should be put on hold. No further evidence should be filed and no steps should be taken to bring them to a substantive hearing, the Crown Office being alerted accordingly. The fresh decision should then be reached as soon as possible and, if it is in favour of the applicant, the problem of course resolves. If it is against the applicant, then would be the time at which to review the future course of the outstanding review proceedings. They may or may not be an appropriate vehicle by which to ventilate any fresh challenge. If the parties cannot agree as to that, and the applicant seeks to use a leave already obtained to advance a challenge which the respondent now thinks has become impossible on any basis, that is the point at which the respondent should apply to set aside the leave previously given and to strike out the proceedings. "

48. Mr Fransman argued that the power to withdraw a decision may only be exercised if the decision maker "concedes" that the decision was wrong. We reject that submission. First, it is wholly unsupported by authority, and indeed is in flat contradiction to the long acceptance in judicial review of the legality of withdrawal for the purposes only of reconsideration, without any concession that the first decision was wrong, let alone unlawful. Second, in the context of the relevant statutory appeal, it confuses withdrawal of a decision for reconsideration with deemed abandonment of an appeal under section 104 (4A) of the Act. Thirdly, such a limitation on the exercise of the power to withdraw would collapse the distinction between Rule 18 (dealing with abandoned appeals) and Rule 17 (dealing with withdrawal); impair the effectiveness of Rule 17; and pose substantial practical problems, all of which was recognised by Collins J in R (Nikolay Glushkov) v (1) SSHD, (2) Asylum and Immigration Tribunal [2008] EWHC 2290 (Admin):

"I have a great difficulty with the submission made because it seems to make the distinction between [Rule] 17 and [Rule] 18 somewhat unnecessary and to provide a severe limitation to the effectiveness and point of [Rule] 17(2), in particular, and one asks one's self, "Where is it appropriate to draw the line?" Does the Secretary of State have to say to herself, "It is likely that I will decide in favour of the claimant, the appellant"? Is possibility sufficient or is certainty required? There is nothing in the wording of the rule that suggests that that exercise has to be gone through and, absent the wording from the consultation document, it seems to me that it would be very difficult for a submission, such as was made by Mr Fransman, to get off the ground, certainly having regard to the wording of the rule. After all, it is surely sensible, as a general approach, that if the Secretary of State receives further material which persuades her that it is appropriate to give careful reconsideration because it may be that the original decision will be changed, that that should be done. [17]."

49. In our judgment, 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, but the position that was made clear to me in the course of the hearing is that she is indeed approaching this on the basis that she accepts that the material may result in a change, that there is sufficient to require her to consider it and that it is not a matter that can be dealt with speedily, in the sense that it will take only a few days. [18]"

50. That leaves only the question whether in this case the SSHD withdrew the decision under appeal in order to carry out a reconsideration. On that question, the reasons themselves given for the decision on 8 March 2010 (see paragraph 22 above) and the further evidence on behalf of the SSHD demonstrate conclusively that the power was exercised for a proper purpose. In these proceedings Mr A Smith, an assistant Director of the UK Border Agency, stated in his witness statement:

"As is clear from the above, in the first instance, the Defendant is reconsidering the Tier 1 (investor) application made by the second Claimant and in particular her request for discretion to be applied in the decision. Secondly, the Defendant is considering the claim for international protection now made by the first Claimant.

The Defendant confirms that the immigration decision was withdrawn on 26 February 2010 following the service by the Claimants of an extensive amount of additional evidence from the Claimants and the indication (now acted upon) by the first Claimant that he required international protection and intended to make an application for asylum. The Defendant confirms that she is approaching the new evidence in this case with an open mind and accepts that the new evidence may, once it has been carefully considered, lead her to change her mind in relation to the question whether the Claimants are entitled to leave to remain in the UK and/or that it would be unlawful to remove them from the United Kingdom (on the basis of their need for international protection).

There is no basis to suggest, and the Secretary of State strongly denies, that at any relevant time she approached this new evidence with anything other than an open mind or had already determined that she would not change her mind irrespective of the new evidence.

Pending (a) the outcome of the interview with the first Claimant about his asylum and human rights claims, and (b) her review of the further evidence provided by the Claimants, the Defendant cannot at this stage comment on or predict the outcome of the Defendant's review of the Tier 1 (investor) application or the now made asylum claim.

The Defendant has the power to exercise discretion to allow the second Claimant to make this application as a person only with the immigration status of a visitor, and will do so if it is found to be appropriate following the reconsideration of the investor application

Further, should the first Claimant be found to qualify for a grant of leave as a refugee then he will be informed of this decision in due course."

51. At the hearing Mr Fransman raised a new point that had not previously featured in either the voluminous correspondence in this case or in any of the material prepared for the judicial review. In the interests of economy we invited short written submissions on the point. Mr Fransman submitted that, on a correct interpretation of the legislation, the Claimants could not make an asylum and/or human rights claim after 21 August 2009, that being the date when the SSHD refused the application to vary leave to enter the UK. In our judgment, even if that were the position, it in no way affects the legality of the decision of the SSHD to withdraw the relevant decision. Once the asylum/human rights claim had been raised in the Tribunal, supported as it was by extensive new material, the SSHD had to consider what was the most efficient and effective way forward for dealing with that claim.
52. Having regard to the matters raised, the SSHD decided that she wished to reconsider the decision, and to do so with an open mind. There was, therefore, a real possibility of a new decision that would be favourable to the Claimants; if the decision turned out to be unfavourable, the Claimants would have a one-stop appeal against the decision, and in any event could not be removed from the UK in the meantime. In our judgment, for the reasons already given, that procedure was both consistent with the relevant legislation and in accordance with general principles of public law. We add as no more than a footnote that we had in any event reservations about the new point. Section 3C(4) of the Immigration Act 1971 (which was relied on) does not appear to prevent the making of an application for fresh leave to enter or leave to remain, rather than applications for variations of a person's leave to enter or remain; and JH (Zimbabwe) v SSHD [2009] EWCA 78 is not, in our view, clear authority that the making of an application for asylum/human rights protection is prohibited in the circumstances postulated by the Claimants. However, we stress that this point, belatedly raised, has no bearing on the legality of the challenged decision.
53. As a final matter, the Claimants challenged the validity of Rule 17(2). However, that challenge rested upon the contention that "the decision was taken pursuant to a secondary provision (Rule 17) that is ultra vires the enabling provisions of the 2002 Act". At the hearing Mr Fransman accepted that the power to withdraw was not derived from Rule 17: the power to withdraw arises as a matter of general public law, for the decision maker has the implied power, subject to general principles of public law, to withdraw any decision taken under statute or prerogative, unless such power is excluded. The basis of this ground of challenge has, therefore, fallen away.
54. In any event, what is challenged in these proceedings is the decision of the SSHD, not the decision of the Tribunal. If Rule 17(2) were invalid, the decision of the Tribunal giving effect to it could not stand. However, the Tribunal is not a party to these proceedings, that decision is not challenged, and the issue simply does not arise.
55. For the avoidance of doubt we should add that we were not impressed by the substantive arguments regarding the validity of Rule 17(2). Under section 106 of the Act (before amendment), the Lord Chancellor had the widest power to frame procedural rules for the Tribunal. Rule 17(2) does no more than reflect, within an appeal system, the current and sensible practice in respect of withdrawal of decisions in the context of judicial review, as set out earlier in this judgment. The "withdrawal" of an appeal under Rule 17(2) is distinct from the deemed "abandonment" of an appeal which follows the grant of leave to enter or remain in the UK pursuant to section 104(4A) of the Act and Rule 18 of the Procedure Rules.
56. For the above reasons, this application for judicial review is dismissed.
57. Counsel should seek to agree the terms of the appropriate order for approval by the Court. Any application on a matter not agreed should be made in writing, supported if necessary by short written submissions, and sent to the clerk to Lord Justice Hooper and the clerk to Mr Justice Kenneth Parker by 2.00pm on Tuesday, 20 July 2010.