(Immigration and Asylum Chamber)
EG and NG (UT rule 17: withdrawal; rule 24: scope) Ethiopia  UKUT 143(IAC)
THE IMMIGRATION ACTS
Heard at Field House
On 30 October 2012
UPPER TRIBUNAL JUDGE ESHUN
UPPER TRIBUNAL JUDGE GOLDSTEIN
UPPER TRIBUNAL JUDGE PERKINS
SECRETARY OF STATE FOR THE HOME DEPARTMENT
(Anonymity order in force)
For the Appellant: Mr T Eicke QC instructed by Treasury Solicitors
For the Respondent: Ms L Dubinsky, instructed by Birnberg Peirce & Partners
NOTICE OF WITHDRAWAL AND
REASONS FOR THE TRIBUNAL GIVING CONSENT
REASONS FOR THE TRIBUNAL GIVING CONSENT
1 No party to proceedings before the Upper Tribunal is entitled to withdraw its case without permission under rule 17 of the Tribunal Procedure (Upper Tribunal) Rules 2008. A case may be withdrawn with permission but a case is not withdrawn until the Tribunal has notified the parties in writing that permission to withdraw has been granted.
2 The Tribunal is not required to determine an appeal when an appellant’s case has been withdrawn and the respondent has not been given permission to appeal. For administrative purposes an appeal is disposed of by recording that a party’s case has been withdrawn.
3 A party that seeks to persuade the Upper Tribunal to replace a decision of the First-tier Tribunal with a decision that would make a material difference to one of the parties needs permission to appeal. The Upper Tribunal cannot entertain an application purporting to be made under rule 24 for permission to appeal until the First-tier Tribunal has been asked in writing for permission to appeal and has either refused it or declined to admit the application.
1. Hereinafter the appellant is described as “the Secretary of State” and the respondents are described as “the claimants”.
2. We have had the benefit of very full skeleton arguments from both Counsel and a “speaking note” from Ms Dubinsky. They have all been helpful.
3. This is an appeal brought by the Secretary of State against decisions of the First-tier Tribunal in determinations promulgated on 13 December 2011 allowing the claimants’ appeals on human rights grounds with reference solely to Article 3 of the European Convention on Human Rights. The claimants appealed against decisions of the Secretary of State to remove them from the United Kingdom. They are “foreign criminals” as defined by section 32(1) of the UK Borders Act 2007 and, by reason of section 32(4) of the Act, their removal is conducive to the public good. The claimants are citizens of Ethiopia who have been convicted of serious criminal offences leading in each case to sentences of five years’ imprisonment.
4. We set out below the decision of the First-tier Tribunal in each case. It said:
“The certificate under Section 72 of the 2002 Act is upheld.
The exclusion provisions of Article 1(F)(c) of the Refugee Convention and of Articles 12(2) and 12(3) of the Qualifying Directive apply.
There is no effective appeal on asylum grounds.
There is no effective appeal on humanitarian protection grounds.
The appeal is allowed on human rights grounds (Article 3 only).
Anonymity direction is continued.”
5. Section 72 of the Nationality, Immigration and Asylum Act 2002 is a statutory mechanism that gives effect in United Kingdom law to Article 33 of the Refugee Convention. It permits the United Kingdom, even though it is a “contracting state”, to return a refugee to a country where he is at risk when there are reasonable grounds for believing that the refugee is a danger to the security of the United Kingdom. Broadly, article 1(F)(c) of the Refugee Convention and articles 12(2) and 12(3) of the Council Directive 2004/83/EC (the Qualification Directive) disqualify a person from being a refugee if the person has acted in a way inconsistent with the purposes and principles of the United Nations.
6. The First-tier Tribunal was satisfied that the claimants had so conducted themselves that they were not entitled to protection as refugees. Even if they were so entitled then the United Kingdom was entitled to remove them under the terms of the Convention because their presence in the United Kingdom created a risk to security. Further, although perhaps somewhat confusingly on an initial reading, the First-tier Tribunal made clear that although the appeal was allowed on human rights grounds the appeal would not have been allowed with reference to article 8 of the ECHR if it had been dismissed with reference to article 3. If the claimants could have been returned safely then the interference with their private and family lives consequent on removal was proportionate. Neither did the First-tier Tribunal accept that the claimants were entitled to humanitarian protection.
7. However the First-tier Tribunal was satisfied that there was a real risk of the claimants being subjected to torture or inhuman or degrading treatment in the event of their return and therefore for that reason it allowed their appeals.
8. Thus although the claimants failed to establish important elements of their claims their appeals were allowed by the First-tier Tribunal.
9. Each party had a right of appeal, exercisable only with permission, “on any point of law arising” from the decision of the First-tier Tribunal (Tribunals, Courts and Enforcement Act 2007 section 11(1)) (hereinafter “the First-tier Tribunal Rules”). The rules do not provide for cross-appeals but although it is uncommon it is by no means unknown for both parties to seek permission to appeal a decision without either party knowing that the other party has sought permission to appeal. In this case the Secretary of State asked for permission to appeal. The claimants did not.
10. The Secretary of State was given permission to appeal by Upper Tribunal Judge McKee acting as a Judge of the First-tier Tribunal on 30 January 2012. The grounds were widely but imprecisely drawn (not by counsel) and Judge McKee’s grant can only be read as unlimited permission to challenge the decision to allow the appeal with reference to article 3 of the European Convention on Human Rights. Notices that permission had been granted and standard directions were sent out on 21 February 2012.
11. The Secretary of State could not meet the demands of the timetable and applied for further time. By a letter dated 13 March 2012 Principal Resident Judge Southern extended the time for complying with directions to 27 March 2012. This was extended again until 27 April 2012. By a letter dated 27 April 2012 the Secretary of State informed the Tribunal:
“We write to confirm that the Secretary of State withdraws her appeal to the Upper Tribunal in the above matters, and requests that those proceedings therefore be discontinued.”
12. Additionally the letter explained that the Secretary of State accepted that in the absence of assurances from the Ethiopian authorities the forcible return of the claimants to Ethiopia would expose them to a real risk of ill-treatment sufficiently severe for their return to be contrary to their rights under Article 3 of the European Convention on Human Rights and Fundamental Freedoms. It was the intention of the Secretary of State to seek assurances from the Ethiopian authorities to address that risk and then to make a fresh deportation order in each case and to certify that any appeal against such a decision would lie to the SIAC by reason of section 2(1) of the Special Immigration Appeals Commission Act 1997. In short the Secretary of State accepted that the First-tier Tribunal’s decision to allow the appeal was right on the evidence before the Tribunal but the Secretary of State intended to make arrangements to guarantee the claimants’ safety and then to make fresh decisions to remove them.
13. This letter prompted further directions from Principal Resident Judge Southern. They were dated and sent on 27 April 2012. The material parts are paragraphs 3 and 4 which we reproduced below:
“3. Paragraph 17 of the Tribunal Procedure (Upper Tribunal) Rules 2008 provides for a party to withdraw its case before the Upper Tribunal, with the consent of the Tribunal, but there is no provision for a party to withdraw the appeal before the Upper Tribunal. Therefore, the letter referred to above can serve only as notice of withdrawal of the appellant’s case before the Upper Tribunal, which takes effect because the Upper Tribunal now provides for the consent required by paragraph 17(2).
4. Subject to any request received from either party to the contrary by 4.00 pm on 4 May 2012, the Upper Tribunal proposes to treat the determination of the First-tier Tribunal as unchallenged by the appellant so that the appeal before the Upper Tribunal will be dismissed without a hearing and without consideration of the grounds upon which permission to appeal was granted.”
14. This produced a quick response from the claimants’ solicitors. They asked that no decision be made in response to the Secretary of State’s letter for a week so that they could take instructions.
15. By notice dated 3 May 2012 the claimants (the respondents to this appeal) served a document entitled “Grounds on which the respondents rely”. This begins with an introduction explaining that it was made pursuant to rule 24(3)(e) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (herein after “the Upper Tribunal Rules”). Rule 24 is entitled “Response to the Notice of Appeal”. Rule 24(3)(e) requires the respondent to state in the response:
“The grounds on which the respondent relies including (in the case of an appeal against the decision of another Tribunal) any grounds on which the respondent was unsuccessful in the proceedings which are the subject of the appeal, but intends to rely on in the appeal.”
16. Until 27 April 2012 the claimants were expecting a particularised skeleton argument or grounds from the Secretary of State to which they would make a response. It was now apparent that they were not going to receive either of these and the claimants used, or purported to use, the rule 24 Notice to raise a challenge to the First-tier Tribunal’s determination. They had not sought permission to appeal. The claimants contended that the First-tier Tribunal should not have concluded that the claimants had engaged in conduct that deprived them of the protection of the Refugee Convention or the Qualification Directive, or that by reason of their being a danger to security the United Kingdom was entitled to return them even if they were refugees. Further, according to the claimants, the First-tier Tribunal made perverse findings of fact, which the rule 24 Notice identified, including in particular a finding that the claimants had prior knowledge of the criminal intentions of another. The claimants said that the First-tier Tribunal should not have concluded that the claimants’ removal, if it could be achieved without exposing them to a risk of serious ill treatment, was a proportionate interference with their right to family life. Other points were made in a similar vein so that the Notice raised some twelve challenges to the determination. In short it was the claimants’ case that the First-tier Tribunal, save for allowing the appeal with reference to Article 3 of the Convention on Human Rights, agreeing to make an anonymity order and (presumably) accepting that the appellants did not need humanitarian protection, was about as wrong as it could be and the claimants wanted their challenges to the decision to be heard.
17. There was further correspondence and, in due course, directions were given by Upper Tribunal Judge Peter Lane on 7 September 2012. Judge Lane’s directions do not lend themselves to accurate summary and we set them out below in their entirety. He said:
“1. The parties shall prepare for the forthcoming hearing (on 30 October 2012) on the basis that (subject to paragraph 5 below) the scope of that hearing will be to consider (a) whether the Upper Tribunal should consent under rule 17 of the Tribunal Procedure (Upper Tribunal) Rules 2008 to the Secretary of State’s withdrawal of her appeals to the Upper Tribunal; and (b) the respondent’s applications for the appeal to proceed on the basis of the challenges to the First-tier Tribunal’s decision to dismiss the respondent’s appeals on Refugee Convention grounds and Article 3 ECHR grounds.
2 So far as these matters are concerned, the parties will be expected to address the effect, if any, of the Secretary of State withdrawing the immigration decisions, against which the respondents appealed to the First-tier Tribunal. In particular, does such a withdrawal have the effect of bringing the proceedings in the Upper Tribunal to an end because, even if that Tribunal were to find an error of law in the First-tier Tribunal’s Refugee Convention and Article 8 findings and set aside the determinations, there are no longer any Section 82 appeals, so that no substantive remaking of any decisions in those appeals is possible?
3 The parties should also be prepared to address the Tribunal on whether the effect of rule 24(3)(e) is to entitle a party, who could have sought permission to appeal an adverse decision, to wait until the other party has been granted permission to appeal and then in effect put forward their own grounds of challenge by way of rule 24, without the necessity of obtaining permission to appeal.
4 Notwithstanding the above, the parties are directed to consider whether the substantive issue is, in fact, whether SIAC would be invited to regard any findings of fact of the First-tier Tribunal as having a bearing on any appeal to SIAC, given that any SIAC appeal would appear capable being brought on both Article 8 and Refugee Convention grounds. There appears to be no dispute that the First-tier Tribunal’s Article 3 findings should stand (at least as regards the state of affairs as the date of the hearing). On the contrary, it seems to be accepted by the Secretary of State that any SIAC appeal would address the effectiveness of any Ethiopian government assurances regarding the treatment of the respondents on return (see letters of 3 May (BP) and 4 May (TSol).
5 In pursuance of their duty under rule 2(4)(b), in furtherance of the overriding objective, the parties shall use their reasonable endeavours to reach agreed positions regarding paragraphs 1 to 4 above, which for the avoidance of doubt may include agreed proposed changes to the scope of the forthcoming hearing and the issues canvassed in paragraphs 2 to 4 above. The parties shall inform the Tribunal in writing of any such agreed positions and changes, not later than 17 October 2012.
6 No later than 24 September 2012 the parties shall serve on the Tribunal (2 copies) and each other skeleton arguments and authorities relied upon.”
18. At first sight Judge Lane’s direction that the parties should prepare arguments concerning whether the Tribunal should consent to the Secretary of State’s withdrawing her case might appear to sit uneasily with Judge Southern’s Directions. However rule 17(5) of the Upper Tribunal Rules requires the Upper Tribunal to send a Notice to each party in writing that a case or part of a case has been withdrawn and it is our view that the Tribunal’s consent is not given until a formal Notice of Withdrawal has been sent. No such Notice was sent here and it is open to us to withhold the Tribunal’s consent if we so choose. Judge Southern’s directions plainly provided for submissions and consideration before the disposal of the appeal and was no more than an indication of a provisional view.
19. Contrary to the contention in the claimants’ skeleton argument, and, an impression that may have arisen from earlier directions, we find that if we consent to the Secretary of State’s case being withdrawn then withdrawal, confirmed by an appropriate notice, will bring the proceedings to an end.
20. The right to appeal an “immigration decision” (which is defined and does not include every decision that might aggrieve a person seeking permission to be in the United Kingdom) is set out in section 82 of the Nationality, Immigration and Asylum Act 2002. A person seeking to appeal a decision under the European Economic Area Regulations can usually appeal it as if it were an immigration decision (see regulation 26 of the Immigration (European Economic Area) Regulations 2006). A person who wishes to appeal an immigration decision may appeal “to the Tribunal” (section 82(1)). The word “Tribunal” is defined under section 81 to mean the First-tier Tribunal. In this Chamber appeals against decisions of the First-tier Tribunal come before the Upper Tribunal with permission pursuant to section 11 of the Tribunals, Courts and Enforcement Act 2007. The Upper Tribunal’s initial function is to decide if the First-tier Tribunal erred. It if does then it may re-make the decision (see s12(2)(b)(ii)) and if it does that then it is deciding an appeal against a decision (typically) of the Secretary of State rather than a decision of the First-tier Tribunal. Rule 17A of the Upper Tribunal Rules 2008 provides that where an event occurs in a case before the Upper Tribunal that would cause an appeal before the First-tier Tribunal to be abandoned by operation of law (for example where in certain circumstances the claimant leaves the jurisdiction or is granted a permission to remain: s104(4) of the 2002 Act) then the Upper Tribunal shall send a notice telling the parties that “the appeal” is abandoned. It follows that although the Upper Tribunal’s jurisdiction is not created by the 2002 Act its jurisdiction to decide appeals originating under that Act does not always continue if the appeal under the 2002 Act ends.
21. We understand that in other Chambers of the Upper Tribunal an appeal ends if it is withdrawn. Withdrawal disposes of proceedings in a way analogous to “discontinuance” in the Civil Procedure Rules (see Jacobs Tribunal Practice and Procedure LAG 12.52).
22. The procedural rules for First-tier Tribunal Chambers other than the First-tier Asylum and Immigration Tribunal, like rule 17 of the Upper Tribunal Rules, provide for a party withdrawing its “case or part of it”. Rule 17 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 provides for an appellant withdrawing an appeal (rather than a “case or part of it”) suggesting that there is a distinction to be drawn concerning the effect of withdrawing an appeal before the First-tier Tribunal, where withdrawing an appeal brings it to an end, and withdrawing a case, which would not necessarily have this effect.
23. We do not consider that this difference in wording demonstrates such a distinction. Rule 17 of the Upper Tribunal Rules has to accommodate the Upper Tribunal dealing with cases that are not appeals (e.g. judicial review work) and so the difference in the words of Rule 17 of the First-tier Tribunal Rules and the Upper Tribunal Rules can be explained in a way that does mean that there needs to be a difference in the consequences of withdrawing an appeal and withdrawing a case. We see no reason in principle for a case before the Upper Tribunal on appeal from the First-tier Tribunal (Immigration and Asylum Chamber) being treated any differently from appeals from other Chambers and we find that the distinctive wording in the 2005 Rules is a result of the rules’ origins with an earlier Tribunal rather then in any policy to make distinctive provision for immigration and asylum cases.
24. Section 104 of the Nationality, Immigration and Asylum Act 2002 states:
104 Pending appeal.
(1) An appeal under section 82(1) is pending during the period—
(a) beginning when it is instituted, and
(b) ending when it is finally determined, withdrawn or abandoned (or when it lapses under section 99).
[(2) An appeal under section 82(1) is not finally determined for the purposes of subsection (1)(b) while —
(a) an application for permission to appeal under section 11 or 13 of the Tribunals, Courts and Enforcement Act 2007 could be made or is awaiting determination,
(b) permission to appeal under either of those sections has been granted and the appeal is awaiting determination, or
(c) an appeal has been remitted under section 12 or 14 of that Act and is awaiting determination.]
25. Thus an appeal under section 82(1) is pending until it is finally determined, withdrawn or abandoned and, if permission to appeal has been granted, it is not “finally determined” if it is awaiting determination (s104(2)(b) and (c)). Clearly when an appeal that has been brought by the appellant before the Tribunal is withdrawn the s82(1) appeal is no longer pending and neither, we find, is the section 11 appeal because section 11 appeals do not exist independently of the section 82(1) appeals from which they arose. The Secretary of State has no section 82(1) appeal to withdraw or abandon but, although section 104(2) identifies circumstances in which an appeal is not “finally determined”, it does not purport to define the circumstances in which an appeal is finally determined. An appeal that has been withdrawn is not “awaiting determination” for the purpose of section 104.
26. Mindful that civil proceedings can usually be discontinued and that it is the practice of other Chambers of the Upper Tribunal to treat withdrawal as final disposal we are satisfied that withdrawing an appeal with consent when consent is needed is a final disposal for the purposes of section 104(1)(b). In these circumstances an appeal is “finally determined” even though no determination has been issued.
27. We are reinforced in this view by rule 17(3) of the Upper Tribunal Rules which clearly contemplates the reinstatement of a withdrawn appeal. This rule would not make sense if withdrawal, properly understood, was intended to precipitate a determination allowing or dismissing the appeal.
28. It follows that if we permit the Secretary of State to withdraw her case then the appeal before the Upper Tribunal will be finally determined.
29. Ms Dubinsky argued that we should not permit the Secretary of State to withdraw her case because there are points that the claimants want to argue.
30. There was common ground between the parties. They agreed that if the existing decision of the First-tier Tribunal stands then it will be the starting point in any future proceedings before the SIAC. This is because of the ruling in Secretary of State for the Home Department v D (Tamil)  UKIAT 00702* (formerly known as Devaseelan). Although it is for the SIAC to decide how it should conduct its affairs we must make our decision with regard to how we expect it to impact on other possible proceedings. Accordingly we make it clear that we decided the case in the expectation that the First-tier Tribunal’s findings (or any different findings that we were persuaded to make) would be a starting point in any future appeal that the claimants might make in SIAC or elsewhere if the Secretary of State makes a relevant decision.
31. Helpfully the parties further agree that the Secretary of State’s decision to withdraw her appeal does not deprive the Upper Tribunal of jurisdiction to hear the appeal unless consent is given and the case is withdrawn. Any contrary view would nullify the need for the Tribunal to consent to withdraw. This, however, does not deal with point 2 of Judge Lane’s directions. An appeal to the First-tier Tribunal is withdrawn if the decision that it challenges is withdrawn (rule 17(2) of the First-tier Tribunal Rules). However, unlike section 104 of the 2002 Act which provides circumstances in which appeals under section 82 are abandoned by statute, the First-tier Tribunal Rules can only bind the First-tier Tribunal. Thus an appeal before the Upper Tribunal is not withdrawn by reason of the decision to which the appeal relates being withdrawn. If the Upper Tribunal remitted such an appeal to the First-tier Tribunal then it would be withdrawn because that is what the 2005 Rules require.
32. We now come to the central questions in this appeal. Can the claimants properly raise in a rule 24 Notice grounds contending that the First-tier Tribunal was wrong not to allow the appeal for more reasons than it did and, if it can, should the Upper Tribunal deal with them?
33. Mr Eicke said that we have no power except that given us by statute and so we have no power to hear an appeal without permission. Parliament says unequivocally that a right may be exercised only with permission (2007 Act section 13(3)). An application can only be made in writing (First-tier Tribunal Rules, rule 24(1)) and an application for permission cannot be entertained by the Upper Tribunal unless an application has been made first to the First-tier Tribunal (Upper Tribunal Rules 21(2)(b)). Mr Eicke said that it made no sense for provisions that required permission to be obtained before a hearing in writing from a First-tier Judge to be swept aside and replaced by a system that enabled a respondent to an appeal to assert as of right arguments that were raised by the respondent in a notice of appeal which could otherwise only be raised with permission given in response to a written application.
34. Miss Dubinsky contended that appeal rights cannot be lightly displaced but we agree with Mr Eicke that we cannot give ourselves jurisdiction we do not have and it is not for us to create a right of appeal without permission. The claimants cannot appeal the decision of the First-tier Tribunal because they do not have permission to appeal and the Upper Tribunal has no power to give permission to appeal unless the First-tier Tribunal has refused permission (rule 21(2) of the Upper Tribunal Rules).
35. It does not follow from this that there are no circumstances when claimants would be unable to argue that any of the findings adverse to the respondent are wrong or that the First-tier Tribunal erred in law by not allowing the appeal for more reasons than it did but the claimants cannot rely on rule 24 notices as an alternative to seeking permission to appeal.
36. Mr Eicke submitted that a rule 24 Notice was analogous to a Respondent’s Notice under rule 52 of the Civil Procedure Rules. There a party that is seeking permission to appeal from the appeal court must ask for permission and a party that (alternatively) wishes to ask the appeal court to uphold the order of the lower court for reasons different from or additional to those given by the lower court must give notice of that intention. His point was that the need for permission to cross-appeal was well understood in civil proceedings and seeking it was not something that the respondent to an appeal in the Upper Tribunal could be expected to ignore.
37. In many ways the provisions of rule 52 of the CPR are analogous to a rule 24 Notice but they are not the same. Under rule 52.3(2) of the CPR a party that does not have permission to appeal from the lower courts can seek it from the higher court but in the civil courts the failure to secure permission from the lower court (even if through culpable neglect) can be remedied by the higher court but the failure to seek permission to appeal to the Upper Tribunal cannot be corrected by the Upper Tribunal. The First-tier Tribunal must decide a written application for permission to appeal before the Upper Tribunal can be involved (see rule 24(1) of the 2005 Rules and rule 21(2) of the Upper Tribunal Rules). This is a cumbersome procedure once proceedings have begun before the Upper Tribunal. An application in writing can be made at any stage, and a judge deciding a case in the Upper Tribunal could no doubt withdraw and determine a written application for permission to appeal as a judge of the First-tier Tribunal. However if the judge did not extend time (for such an application would almost always be very late) or refused permission to appeal there would no doubt be an application for an adjournment so that the papers could be put before a judge sitting the Upper Tribunal. This, we find, must be the deliberate intention of the rules and rather underlines the importance of a party that needs permission to appeal seeking it in accordance with the prescribe time scales and well before a rule 24 notice would ordinarily be appropriate.
38. Against this background we look carefully at the terms of rule 24 of the Upper Tribunal Rules. Although the rule prescribes a time scale for providing a respondent’s notice and prescribes its contents, the rule does not create a general obligation on a respondent to provide a notice at all. Rather if the respondent chooses to send a notice then rule 24 prescribes its content. In this case directions echo the rule and specify the contents of a Notice rather than insist on one being served.
39. Certain of the requirements are informative rather than controversial, such as stating the respondent’s name and address, whether the respondent wants a hearing and, usefully, whether or not the respondent opposes the appeal. Rule 24(3)(e), it was submitted, assists the appellant. It requires the respondent to state in the response:
“The grounds on which the respondent relies including (in the case of an appeal against the decision of another Tribunal) any grounds on which the respondent was unsuccessful in the proceedings which are the subject of the appeal, but intends to rely on in the appeal.”
40. The 2002 Act provides statutory grounds of appeal to the First-tier Tribunal (see section 84(1)) but the Secretary of State can never appeal to the First-tier Tribunal and so cannot rely strictly on the grounds listed at section 84(1) which are all grounds of appeal against an immigration decision. It follows that “grounds” in rule 24 must have a wider meaning and include any reason relied upon by the parties to support the decision. It does not follow that a respondent can raise a point in a response that should have been raised in the respondent’s own appeal.
41. Ms Dubinsky argued that the rule 24 response permitted her to argue, without seeking permission to appeal, that the First-tier Tribunal should have resolved any point in the claimant’s favour that the claimant relied upon before the First-tier Tribunal. Ms Dubinsky submitted that this rule is incapable of being interpreted in a way that does not assume that a respondent can challenge a First-tier Tribunal’s decision in this manner without permission to appeal having been granted. Ms Dubinsky argued that a respondent who opposes an appeal can be expected, without need for express confirmation, to rely on grounds which were successful before the First-tier Tribunal. It would hardly be informative for an appellant before the First-tier Tribunal who succeeded in persuading the First-tier Tribunal (for example) that a decision was not in accordance with the immigration rules (section 84(1)(a)) to be required to state in a notice that it relied on the same successful ground when responding to an appeal brought by the Secretary of State and the rule makes no such requirement. Rule 24(3)(e) requires the respondent to state if it intends to rely on grounds that were unsuccessful “in the proceedings which are the subject of the appeal” but intends to rely on in the appeal to the Upper Tribunal. Ms Dubinsky submitted that the rule does not make sense unless it is interpreted to mean, without qualification, that there is a right to say that a ground that was unsuccessful before the First-tier Tribunal should have succeeded.
42. When Mr Eicke addressed us on rule 24(3)(e) he tried to circumvent Ms Dubinsky’s submission by emphasising that the claimants were required to identify any grounds on which they intended to rely including grounds “on which the respondent was unsuccessful in the proceedings which are the subject of the appeal”. He said that the words “which are the subject of the appeal” are crucial. The proceedings which are the subject of the appeal were not, he submitted, all the proceedings that were before the First-tier Tribunal, but only the proceedings that were before us and the proceedings before us, were identified by reference to the grant of permission to appeal. Clearly, if he is right, the points relied on by the claimants are excluded because they were not part of that grant.
43. The bright line distinction between the First-tier section 85 appeal and the Upper Tier section 11 appeal suggested by Mr Eicke’s argument is inconsistent with the continuum suggested by section 104(4) of the 2002 Act and by rule 17A of the Upper Tribunal Rules. A section 11 appeal does not continue when a section 85 appeal has been abandoned. Similarly a section 11 appeal does not exist without regard to the section 85 appeal that encapsulated the dispute between the parties. In some ways this is an unattractive line of argument. It follows that we do not accept that the words “in the proceedings which are the subject of the appeal” are limited to the grounds on which permission to appeal has been given. The “proceedings” that are the “subject of the appeal” are those that came before the First-tier Tribunal and it is those “proceedings” that are the subject to further appeal.
44. Ms Dubinsky’s contention that rule 24 is meaningless unless it permits raising any points that failed to impress the First-tier Tribunal, including a point that should have been the subject of an appeal, is attractive but is, we find, wrong.
45. Although section 11 of the 2007 Act extends the right of appeal (with permission and subject to excluded decisions) to an appeal “on any point of law” save for extraordinary cases, a party will not normally be given permission to appeal, and will not be expected to seek permission to appeal, a point that would not make a material difference to the outcome. However that party might still have very good reasons to respond to an appeal by arguing that the First-tier Tribunal should have dismissed or allowed the appeal for reasons other than those given in the Determination or rather for grounds which were unsuccessful in the proceedings that are the subject of the appeal.
46. Suppose a man seeks entry clearance as a husband and suppose that the Entry Clearance Officer finds that he has not shown that he can be either accommodated or maintained in accordance with the rules. A First-tier Tribunal Judge may decide, arguably wrongly, that the husband can satisfy the accommodation requirements but not the maintenance requirements. In that event the judge would dismiss the appeal. The Entry Clearance Office would have no interest in appealing. He is content with the decision to dismiss the appeal. The husband however may want to challenge the decision. He might want to argue that the decision that he did not satisfy the maintenance requirements was wrong in law and he may be given permission to appeal. In that event the Entry Clearance Officer may well want to argue not only that the decision that the husband did not meet the maintenance requirements was right but that the decision that he did meet the accommodation requirements was wrong. In short, without wanting to appeal the decision, the Entry Clearance Officer may want to rely on a ground that failed before the First-tier Tribunal. Rule 24 permits the Entry Clearance Office to give notice of his intention to raise such a point in a reply. In short rule 24 does have a meaning that does not depend on Ms Dubinsky’s premise and we reject the construction that she urged on us. Rule 24 does not create a right of appeal to a party who has not asked for permission to appeal. Rule 24 is not in any way to do with seeking permission to appeal and it is not an alternative to seeking permission where permission is needed. It is to do with giving notice about how the respondent intends to respond to the appeal that the appellant has permission to pursue. If a respondent wants to argue that the First-tier Tribunal should have reached a materially different conclusion then the respondent needs permission to appeal.
47. This is probably more significant in international protection cases than entry clearance cases because an appeal can be allowed on different grounds. An appellant may have shown, for example, alternatively, that he is a refugee, or entitled to humanitarian protection or that removal is contrary to his rights under article 8 of the European Convention on Human Rights. The beneficial consequences of success would be different in each case. For example a person found to be entitled to humanitarian protection may want to argue that he should have been recognised as a refugee whilst the Secretary of State may want to argue that the appeal should only have been allowed with reference to article 8. In such cases both parties would want a result materially different from the one decided by the Tribunal and both should seek permission to appeal.
48. In this case the Secretary of State purported to have withdrawn her appeal and asked us to consent to her withdrawing her case. She did not want to argue before the Upper Tribunal the points on which she had permission to appeal. The claimants could have challenged the findings that they did not like by way of Notice of Appeal. They chose not to do that but to wait until they knew exactly what the Secretary of State was saying in order to consider how they should respond. They were perfectly entitled to do that but the consequences are that they are now far too late to make a timely application to appeal the decision. When considering the claimants’ case we are not considering an appeal but a Notice showing how the claimants intend to respond to an appeal brought by the Secretary of State that the Secretary of State no longer wishes to pursue.
49. We accept that if the Secretary of State makes a further decision the existing decision of the Tribunal may well be relevant to any appeal against that decision. We can say no more than that because we do not know if, or when, any further decision will be made and how similar the claimants’ circumstances will be. It may well be that the starting point for any further decision will include findings adverse to the appellants that they did not seek to challenge by way of appeal. We are confident that if, as may be the case, any future appeal is heard in the SIAC the findings will be given no more weight than they merit.
50. In these circumstances we see no desirable purpose in putting the parties and the public to the expense of a further appeal.
51. It follows that we consent to the Secretary of State withdrawing the appeal. In the circumstances we make no findings on the rule 24 Notice.
52. The claimants are therefore in precisely the position that they have been because the time for seeking permission to appeal has lapsed. The First-tier Tribunal’s decision to allow the appeal shall stand. The claimants have not appealed and the Upper Tribunal will make no finding on their criticisms.
53. Although the claimants did not apply for permission to appeal they indicated that they were ready to make such an application. None of us would have given permission to appeal because we do not think that permission is appropriate at this late stage and especially not now that the Secretary of State wants to withdraw the decision. We see no reason to refuse the Secretary of State permission to withdraw a decision she wishes to withdraw in order that the claimants can seek permission to challenge a finding that they did not seek to challenge when a permission to appeal could have been sought in time.
54. We therefore answer specifically the points raised in Judge Lane’s directions as indicated below.
55. The Tribunal consents to the Secretary of State withdrawing its case from the Upper Tribunal. This is a Notice pursuant to rule 17(5) to inform the parties that the Secretary of State’s decision is withdrawn,
56. The effect of the case being withdrawn from the Upper Tribunal is that the proceedings before the Upper Tribunal are at an end. There is no appeal before the Upper Tribunal to which the claimants can respond and therefore there is no need to decide points raised by the Secretary of State’s notice.
57. A party is not entitled to rely on points raised in a rule 24 Notice. The notice merely records an intention. A party that wants to exercise a right to appeal a decision must obtain the permission required by section 11(3) of the Tribunals, Courts and Enforcement Act 2007.
58. Accordingly with our consent and pursuant to rule 17(5) of the Tribunal Procedure (Upper Tribunal) Rules 2008 this appeal is recorded as “Withdrawn with the consent of the Upper Tribunal”.
59. At the start of the hearing Ms Dubinsky asked us to continue the anonymity order made by the First-tier Tribunal. Mr Eicke neither opposed nor supported the application. The claimants have been convicted of serious criminal offences and we are satisfied that publishing their identity could create a risk to their safety, especially if our decision was reported incompletely. We make an order with reference to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 prohibiting the disclosure or publication of any matter likely to lead members of the public to identify the claimants. When we decided to make the anonymity order we did not know what decision we would make but either we would make a decision that disposed of the appeal, in which case continuing the order would preserve the status quo, or we would make a decision that would lead to another hearing in which case the question of anonymity could be looked at again. Any restraint on publication is always a serious matter and we are not suggesting that withholding the identity of the claimants in any further proceedings will necessarily be justified but the public do not need to know the names of the claimants to understand the highly technical procedural points that are the substance of the appeal before us at this stage. This order is not intended to restrict any reporting on the arguments before us or this Notice (including our reasons) or its substance.
Judge of the Upper Tribunal
Dated 6 February 2012