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1 Withdrawing decisions and conceding appeals Guidance for presenting officers. Version 2.0
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Withdrawing decisions and conceding appeals Guidance for presenting officers. Version 2.0
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Contents Contents ..................................................................................................................... 2
Withdrawing decisions and conceding appeals .......................................................... 3
Version control and contacts .................................................................................. 4
Pre- hearing checks for appeals. ................................................................................ 5
Sustainable decision making ...................................................................................... 6
Adjournments ............................................................................................................. 7
New grounds or reasons in appeals cases ................................................................. 8
Approval to withdraw a decision ................................................................................. 9
Notifying withdrawals to the Tribunal ........................................................................ 10
Concessions in an appeal ........................................................................................ 11
Withdrawn decisions where the appeal continues .................................................... 12
Costs where withdrawals or concessions are being made ....................................... 13
Withdrawing decisions: checklist for presenting officers........................................... 14
Withdrawing decisions: checklist for senior caseworkers ......................................... 16
Withdrawing decisions: checklist for administrative staff .......................................... 17
Updating CID with appeals information .................................................................... 18
CID – Admin events screen layout ........................................................................... 19
Withdrawing decisions on CID for appeals cases .................................................... 20
Template letter: withdrawing decisions at the First-Tier Tribunal ............................. 22
Template letter: withdrawing decisions at the Upper Tribunal .................................. 23
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Withdrawing decisions and conceding appeals This guidance advises presenting officers when it would be appropriate to withdraw a decision or concede a case that is being appealed. It replaces all other guidance on these issues. The guidance takes into account the changes to the procedure rules from 20 October 2014 and the changes to the appeals system introduced by the Immigration Act 2014. Related content Contents Related external links First tier procedural rules The Tribunal Procedure (Upper Tribunal) Rules 2008.
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Version control and contacts This page tells you about the current version of the guidance for presenting officers withdrawing decisions and conceding appeals and who to contact if you have any queries. Contacts If you have any questions about the guidance and your line manager or senior caseworker cannot help you or you think that the guidance has factual errors then email the appeals policy team If you notice any formatting errors in this guidance (broken links, spelling mistakes and so on) or have any comments about the layout or navigability of the guidance then you can email the guidance rules and forms team. Clearance Restricted not for disclosure Below is information on when this version of the guidance was cleared:
• version 2.0 • published for Home Office staff on 4 June 2015 • this version approved by Official sensitive - this information has been
removed as it is restricted for internal Home Office use • approved on 1 June 2015
End of restricted section Changes from last version of this guidance This version updates the policy on when a decision which is being appealed should be withdrawn or conceded and includes updates introduced by changes to the Tribunal Procedure (First-tier Tribunal (Immigration and Asylum Chamber)) Rules. Related content Contents Related external links First tier procedural rules The Tribunal Procedure (Upper Tribunal) Rules 2008.
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Pre- hearing checks for appeals. This page sets out the pre- hearing checks process for presenting officers to take prior to the appeal hearing. Presenting officers should follow the process below:
1. Do you have a respondent’s bundle (which should include the decision under appeal)? • if not, obtain it for file and (if necessary) serve on appellant / representative
and Tribunal - in entry clearance cases CRS should be checked for service before the entry clearance officer (ECO) is asked to provide a bundle
• if yes, is the bundle complete? • if not, obtain and serve missing documents
2. Do you have an appellant’s bundle?
• if yes, go to the checks in step 3 below • if no, contact appellant/ representative and request it is served on the
presenting officers unit (POU) immediately by fax or e-mail.
3. Consider whether the decision is sustainable as described in the section on
sustainable decision making. You should also consider whether new reasons for refusal need to be given as described in the section on new grounds or reason.
4. Inform all parties of any changes to the case in line with the guidance on
sustainable decision making or new grounds or reason.
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Sustainable decision making This page tells you the consideration you must give to decide whether the decision under appeal is sustainable.
In the case of Glushkov SSHD (2008) EWHC 2290 Collins J said:
“it is clear beyond any doubt, in my view, that the Secretary of State must not use the withdrawal power as a tactical exercise to avoid applying 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 has no intention of changing her mind as a result of it.” A decision should only be withdrawn where it is clear the decision needs to be reconsidered, and there is a realistic prospect that the decision outcome will be different. For example, a decision may be withdrawn because:
• there is a clear caseworking error which means that the decision is fatally flawed and a reconsideration of the case could result in a grant of leave
• there has been a clear change in circumstances such as a change in country conditions or a change in policy that means reconsideration of the case may result in a grant of leave
• there is new evidence available, which could, if genuine, result in a grant of leave (see adjournments)
You must not pursue an appeal where it is clear that the decision cannot stand and needs to be reconsidered. Doing so would mean arguing a refusal should be maintained where leave should potentially be granted. For the process to follow when withdrawing a decision refer to the “Checklist for presenting officers when withdrawing decisions” Related content Contents Related external links
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Adjournments This page tells you about the circumstances when a presenting officer must seek an adjournment of the appeal. The guidance on sustainable decisions sets out when you should withdraw a decision. In accordance with that guidance when you are confronted with a new issue or evidence, which if genuine may lead to a grant of leave, you should normally withdraw the decision. In circumstances where the reason for withdrawing the decision is that the new evidence or issue is raised late it may be appropriate to seek costs. An adjournment should be sought where it is not clear that the new evidence or ground will lead to a grant of leave but where it needs to be considered in more detail. An example of this would be seeking an adjournment to check whether a document is genuine where, even if the document was genuine it would not on its own be likely to lead to grant of leave; if it was false that may strengthen the refusal. In these circumstances you must explain to the Tribunal what the new issue or evidence is and request an adjournment to, for example, verify a document. If the adjournment is granted it may also be appropriate to seek costs where the new evidence or issue is raised late. This approach is consistent with what the High Court said in Chichvarkin that an adjournment is “appropriate where the SSHD wishes to maintain the challenged decision and is seeking further material to support her case.” Where a request for an adjournment is refused the decision should not then be withdrawn. You must record the reasons for seeking an adjournment and the reasons why it was refused in the hearing minute. The Home Office will then consider the minute to decide whether to challenge the refusal of an adjournment or any allowed appeal on procedural grounds. Related content Contents Related external links
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New grounds or reasons in appeals cases This page tells you about what to do when there are new grounds or reasons that could have been relied upon in the refusal letter which have not been raised. An appealable decision should not be withdrawn simply because better or stronger reasons for refusal could be given. Where you or another decision maker identifies other grounds for refusal you should raise these in a supplementary refusal letter. Where you consider there are other grounds for refusal then you must discuss this with the Appeals, Litigation and Subject Access Request Directorate (ALS) SCW. If the ALS SCW agrees that new grounds should be raised then you must liaise with the original decision maker about a supplementary refusal letter. The letter should be issued as soon as possible, and in any event, within 28 days of the notice of appeal from the Tribunal in order to comply with Rule 24 (2) of the First- tier procedural rules. In addition to the supplementary refusal letter, where new grounds are raised, according to Rule 24 (2), you must issue a statement which sets out whether the appeal is conceded and, if not, the grounds for continuing to contest the appeal. The statement of grounds must also be issued within 28 days of the appeal notice being sent from the Tribunal, in order to comply with the First- tier procedural rules. If it is not possible to meet the time limits you must issue the supplementary refusal letter and the statement of grounds as soon as possible. When doing this you should seek an extension of time. Where it is not possible to comply before the hearing you must raise the new reasons at the hearing. If the judge raises the fact that the procedure rules have not been met, you must explain the reasons why this did not happen. You can remind the judge that under rule 4 of the procedure rules there is a power to extend or shorten the time for complying with any rule, practice direction or direction. It will be for the judge to decide whether they will allow any new reasons to be raised. An appealable decision should not be withdrawn where the judge refuses to admit the new ground/reasons, the appeal should be argued on the existing grounds unless the decision is unsustainable.
Related content Contents Related external links
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Approval to withdraw a decision This page tells you about getting approval if you want to withdraw a decision in an appeals case. Decisions to withdraw/concede must be approved by an Appeals, Litigation and Subject Access Request Directorate (ALS) SCW or G7, except in criminal casework (CC), Special Cases Directorate (SCD) or Border Force cases. In these cases you must consult and seek approval as below:
• withdrawal of CC decisions must be approved by a G7 in CC • withdrawal of SCD decisions must approved by a SCD SEO or Grade 7 • withdrawal of Border Force decisions must be approved by an HMI (or SEO) in
the relevant casework team
You must not approach CC, SCD or Border Force to propose withdrawal/concession without first being authorised to do so by an ALS SCW. All authorisations/approvals must be recorded in the notes screen on CID. Related content Contents Related external links
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Notifying withdrawals to the Tribunal This page tells you how to notify the Tribunal and the appellant when a decision under appeal is being withdrawn. Once a withdrawal decision has been made, you should complete the withdrawal decision letter setting out the reasons why the decision is being withdrawn and what will happen next and send to the appellant’s representatives or the appellant if they are unrepresented. You should copy the letter to the relevant Tribunal by fax or e-mail if available. Unless the Tribunal informs the Home Office that the appeal hearing is not going ahead you must still attend and should at the outset inform the judge and the appellant that the decision has been withdrawn. You must explain why that decision has been taken and what will happen next. Regardless of the outcome of the appeal the withdrawal of the decision is effective and so a new decision will be required. Related content Contents Related external links
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Concessions in an appeal This page tells you about concessions in an appeal and when it might be appropriate to make them. You may make concessions during the appeal where appropriate and justified by the evidence. It will not normally be appropriate to concede an appeal at the outset of a hearing as if the decision is unsustainable it should be withdrawn. If after hearing the evidence you consider that it is appropriate to concede the appeal you should ask for a brief adjournment to consult with an Appeals, Litigation and Subject Access Request Directorate (ALS) SCW. When conceding an appeal you are accepting that the appeal should be allowed. If there is more than one ground of appeal you must make clear whether you are conceding all grounds of appeal or only one ground of appeal. This is important as for example, the leave granted in a protection claim is different from the leave granted in a human rights claim. An applicant may want to continue with their remaining ground(s) of appeal if only one ground is being conceded. In respect of the ground you are conceding you should make it clear to the Tribunal that this means you are accepting that the refusal decision is wrong and that there are no other known reasons for refusal so the appeal should be allowed. You should not say that leave will be granted only that the decision will be remade because, for example, post hearing checks for example, criminal record checks might be made post appeal and disclose another reason for refusal or there may be a change of circumstances from the point where the appeal is allowed and when the decision is remade which would mean that a grant of leave was no longer appropriate. Related content Contents Related external links
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Withdrawn decisions where the appeal continues This page tells you about cases when the decision under appeal is withdrawn and the appeal continues. The First tier procedural rules allow for an appeal to continue even when the underlying decision has been withdrawn. Rule 17 (2) states that: “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”. This brings the First-tier Tribunal procedure rules in line with Upper Tribunal Rules which has a similar provision at 17 (2) of The Tribunal Procedure (Upper Tribunal) Rules 2008. To minimise the likelihood of an appeal being listed and to comply with the procedural rules it is important that you provide the Tribunal with clear reasons why the decision is being withdrawn. In the case of SM (Pakistan) 2014 UKUT 64 the Tribunal gave guidance as to when an appeal should continue where the decision has been withdrawn. One of the principles is that “regard should be had to the principal, that the respondent should ordinarily be the decision maker in the immigration field.” You should refer to SM in any case where the decision has been withdrawn and notwithstanding this the Tribunal is minded to proceed to a hearing. If the appeal does proceed you must test any evidence which has not been accepted and make clear in submissions what issues (if any) are disputed. As the decision will have been withdrawn, there will need to be a fresh decision on the application, whatever the outcome of the hearing. In making that decision the Home Office will have to have full regard to any findings made by the Tribunal unless the appeal is challenged. Related content Contents Related external links
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Costs where withdrawals or concessions are being made This page tells you about costs in appeals cases where the decision is being withdrawn or the appeal is being conceded. The First tier procedural rules introduces a new power to award costs at the First-tier Tribunal. Costs at the first tier Tribunal You must explain to the Tribunal the reasons why the decision is being withdrawn or the appeal conceded. You should be prepared for the possibility of an application for costs being made against the Home Office. If that happens you must ask the Tribunal to allow you to make written submissions on costs. Related content Contents Related external links
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Withdrawing decisions: checklist for presenting officers This page tells you about the checklist presenting officers should follow when a decision under appeal is being withdrawn Where you identify a decision you believe to be unsustainable, you must discuss this with your local Appeals, Litigation and Subject Access Request Directorate (ALS) SCW (or nominated deputy) at the earliest opportunity, see Approval to withdraw a decision. If your local ALS SCW (or nominated deputy) is unavailable, you must seek authority to withdraw (or to propose withdrawal of a CCD / SCD / Border Force case) from another ALS SCW. Where your ALS SCW authorises proposing withdrawal of a CCD / SCD / Border Force case, you must discuss the proposal with the relevant person on the case working team at the earliest opportunity. You must notify your ALS SCW of the outcome of your discussions with the case working team. Where withdrawal is authorised, you must
1. Notify the Tribunal and the appellant’s rep / appellant in writing that the decision has been withdrawn and the case will be reconsidered (NB where resources allow, this action can be completed by the Admin Team). See Template letter for withdrawing a decision.
2. Update the following fields on the appeals screen on CID: • Hearing Outcome (Withdrawn pre-hearing), • Outcome Date (date withdrawal is accepted by the Tribunal withdrawal) • Presenting Officer (name of PO), and PO Team • also, ensure that the Appeal Outcome field is updated as ‘Withdrawn by
UKBA’ and that the Appeal Outcome Date is entered and matches the Hearing Outcome Date (date the withdrawal is accepted by the Tribunal)
3. Update CID admin events with the main reason for the withdrawal. 4. Generate and complete Doc Gen template ICD.4496 to show case details,
detailed reasons for withdrawal, authorisation as required and required action/leave to be implemented. If the case is an entry clearance case, any documents from the appellant’s bundle which the entry clearance officer (ECO) will require to make a fresh decision should also be identified in the note. The note should be signed off with your name, unit and telephone number.
5. Print a copy of the Refusal Withdrawal Proforma (ICD 4496) from Doc Gen and attach it to the left-hand side of the file as a minute:
• for in-country cases: you must return the file to the case working team
within 48 hours of the withdrawal
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• for out-of-country cases: you must identify any papers that the ECO would require to make a new decision, request that admin staff scan those papers and the Refusal Withdrawal Proforma (ICD 4496) from Doc Gen, forward the scanned documents by e-mail to the relevant ECO, and place a note on CID to confirm the action taken - you must then return the file to the Await Determination/Post-Hearing Hold
Where authority to withdraw is not given you must continue with the appeal as instructed by your ALS SCW Related content Contents Related external links
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Withdrawing decisions: checklist for senior caseworkers This page tells you about the checklist senior caseworkers should follow when they receive a proposal to withdraw a decision. The checklist below sets out the process an Appeals, Litigation and Subject Access Request Directorate SCW must follow when they receive a withdrawal proposal, they must:
• check CID notes to identify whether withdrawal has already been refused and if so, why?
• consider all of the evidence. • either refuse or authorise withdrawal (or authorise proposal of withdrawal to
CCD / SCD / Border Force) accordingly
Where the ALS SCW authorises a withdrawal or receives notification from a presenting officer that CCD / SCD / Border Force has authorised a withdrawal, the ALS SCW must record the withdrawal on the local withdrawal spreadsheet. Where withdrawal is refused, the ALS SCW must place a note on CID stating ’I have considered the withdrawal proposal made by (insert PO’s name) on (insert date) and refused it for the following reasons: (insert reasons).’ Once a week (day and time to be decided the G7s), all ALS SCWs must upload their weekly withdrawals to the Withdrawal Spreadsheet Master Copy in the Appeals Info Folder on the Transfer2 Drive. Where SCWs have authorised withdrawals which would have been presented in a hearing centre other than their local one, these withdrawals should be uploaded to the corresponding Presenting Officers Unit. Related content Contents Related external links
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Withdrawing decisions: checklist for administrative staff This page tells you about the checklist the presenting officer units’ administrative staff should follow where an appeal has been withdrawn. When admin staff receive the IA 52 (FTT) or IA 142 (UTT) withdrawal notice from the Immigration and Asylum Chamber, they must scan the notice to local Presenting Officers Unit Team folders. For in-country cases: admin staff should check that the presenting officer (PO) has fully updated the appeals screen on CID (see point 2. on the checklist for presenting officers when withdrawing decisions’). If the PO has not updated the appeals screen fully or correctly, admin staff should backfill/amend accordingly and send an email notification to the relevant PO and SEO/SCW Team Manager. They should also check that the file has been sent to the relevant casework team. For out-of-country cases: Admin staff should check that the appeals screen on CID has been fully updated by the PO. If the PO has not updated the appeals screen fully or correctly, admin staff should backfill/amend accordingly and send an email notification to the relevant PO and SEO/SCW Team Manager. They should email/forward the IA 52 notice to the ECO/Post. Related content Contents Related external links
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Updating CID with appeals information This page tells you about the appeals maintenance screen on CID and how to access Admin events. CID – Appeals Screen Guide
(1) Appeal outcome: Withdrawn by UKBA. (2) Outcome date: Date the Immigration and Asylum Chamber (IAC) is notified of the withdrawal. (3) Hearing outcome: Withdrawn pre hearing. (4) Outcome date: Date IAC accepts that the appeal is withdrawn.
4 3
2 1
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CID – Admin events screen layout
To make a new entry in Admin Events select the appropriate ‘event type’ (2). A list of event types can be seen by pressing ‘F9’. The date, user and unit details will be populated automatically. Related content Contents Related external links
2
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Withdrawing decisions on CID for appeals cases This page tells you about the options on CID to record the reasons for withdrawing a decision. Option Admin Event Use Notes 1.1
AL Decision – withdrawn – Article 8
To record withdrawal of a decision where there has been a caseworking error or change in policy in considering the Article 8 claim.
1.2
AL Decision – withdrawn – caselaw
Where there has been a change in policy following caselaw
1.3
AL Decision – withdrawn – statute
Where there has been a change in the law.
1.4
AL Decision – withdrawn – policy
Where there has been a change in policy
1.5
AL Decision – withdrawn – evidence missed
Where the caseworking error is not considering evidence.
1.6
AL Decision – withdrawn – evidential flexibility
Where the caseworking error is the failure to apply policy.
1.7
AL Decision – withdrawn – inadequate evidence forgery
This code should not be used for withdrawals.
1.8
AL Decision – withdrawn – inadequate evidence 320 grounds
This code should not be used for withdrawals.
1.9
AL Decision – withdrawn – invalid removal directions
Where this is a caseworking error
1.10
AL Decision – withdrawn – refusal unclear
1.11
AL Decision – withdrawn – new evidence
Where the new evidence could lead to a grant of leave.
1.12 AL Decision – withdrawn – other
CID Admin Event Options – Post Appeal for UKVI Where a decision is withdrawn and leave is granted then the decision to grant leave must be recorded in the usual way on CID.
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Where a decision is withdrawn and on reconsideration a decision is taken to re-refuse the new decision must be recorded on CID. Related content Contents Related external links
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Template letter: withdrawing decisions at the First-Tier Tribunal This page tells you about the template letter you can use to tell the First-tier Tribunal that you are withdrawing a decision. [Recipient’s name] [First address line] [Second address line] [Town/city Postcode] [Country]
[Enter date] Dear [Name] Re: [Name of applicant. Date of birth, country of origin] HO Ref, I am writing to inform you that having reviewed the decision on your application on behalf of the Secretary of State I have decided to withdraw the decision [date of decision].You will be notified of the new decision in due course. The reason for withdrawing the decision is [insert reason(s)] This letter is being copied to the Tribunal. Yours sincerely, [Sign off] [Author’s name] [Position/title] D [00000 000 000] E [[email protected]]
Yours faithfully
On behalf of the Home Office Related content
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Contents Related external links Template letter: withdrawing decisions at the Upper Tribunal This page tells you about the template letter you can use to tell the Upper Tribunal that you are withdrawing a decision. The Upper Tribunal Your Ref
(Immigration and Asylum Chamber) Our Ref
Field House
15 Breams Buildings
London
EC4A 1DZ Date
Dear Sirs RE {Insert Name and date of birth of other Party} On behalf of the Home Office I give notice of the withdrawal of its case in accordance with Rule 17 (1) of the Tribunal Procedure (Upper Tribunal) Rules 2008. The reason for doing so is: I have decided that the immigration decision of {insert date} relating to {insert name} is incorrect and the immigration decision is being withdrawn so it can be reconsidered (give brief reasons). (Insert name) will be notified of the new decision. The Tribunal is reminded of the principle set out in SM (Pakistan) 2014 UKUT 64, that where the appealable decision has been withdrawn, in deciding whether to hear the appeal substantively, regard should be had to the principle that the respondent should ordinarily be the decision maker in the immigration field. I should be grateful if you would confirm whether the Upper Tribunal consents to the withdrawal. This letter has been copied to the {insert details of Party or their representative} Yours faithfully Related content Contents Related external links
