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Immigration Appeals where UKBA withdraws original decision may not always be good news for appellant | Immigration Matters

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The Free Movement blog reports on growing trend when appellant advocates appearing before the Immigration and Asylum Chamber of the First-tier Tribunal find that UK Border Agency Presenting Officers withdraw decisions either very shortly before or even at the appeal hearing. Bison Management’s advocates have experienced this on a number of occasions, which have not always been good news for the client fighting an appeal against a refusal by the UK Border Agency (UKBA).

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

Whilst a withdrawal of a decision by the UKBA may seem like a positive development, suggesting that the Agency recognises that the existing decision is unsustainable and wrong, Bison Management has seen examples, for instance on an application by a Romanian applying for a ‘yellow card’ permit to work and study in the UK, where the ‘withdrawn decision’ was later refused for a different reason than the one against which the appeal was earlier lodged.

In most cases of withdrawn decisions the original application is granted rather than refused, but in some instances only after a further delay.

Barristers report on a number of problems with the growing trend of a withdrawn decision as opposed to an undefended appeal where an Immigration Judge allows the appeal against the UK Border Agency’s refusal:

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 For the decision then to be withdrawn and the client to be put back into the bureaucratic limbo of UKBA decision making is deeply frustrating.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 This is particularly so given that in most withdrawn decision cases the Presenting Officer is conceding that the appeal would be allowed if it proceeded.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

 

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

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

If you have been arrested or detained, need any immigration advice or are worried about the new immigration rules or need help with Sponsorship or Tier 1, 2, Tier 4, applying for university if your college has closed, Spouse Visa, ILR/Settlement, Citizenship, Dependant Visa or an appeal against a refusal, or if you have been waiting for a reply from the Home Office for longer than a year, please email: 

info@immigrationmatters.co.uk or visit www.immigrationmatters.co.uk for free immigration news updates.

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