When I have been faced with the prospect of a case not going our way, I have advised clients that they should consider withdrawing an appeal and reapplying rather than having a negative decision that could be adverse to the client in future applications. This is even more so where the court casts doubts about the credibility of the appellant, documentary evidence or witnesses that support the appellant’s case.
The court are now charged with considering the reasons for the withdrawal of an appeal. The procedure rules now provide the following:
- The public law character of appeals to the First Tier Tribunal is reflected in the regulatory requirement governing the withdrawal of appeals that any proposed withdrawal of an appeal must contain the reasons for the course mooted and must be judicially scrutinised, per rule 17 of the First Tier Tribunal Rules and rule 17 of the Upper Tribunal Rules.
- Judicial evaluation of both the withdrawal of an appellant’s appeal and the withdrawal of the Secretary of State’s case or appeal is required.
- Every judicial determination of an appellant’s proposal to withdraw an appeal or the Secretary of State’s proposal to withdraw requires a brief outline of the reasons for the decision. The purpose of the judicial scrutiny is to ensure that the appeal is being properly and correctly withdrawn.
- Judicial scrutiny will normally result in the mooted withdrawal of the appeal being perfected by transmission of the notice to the parties required by Rule 17(iii). However, this will not occur automatically: for example where the proposed withdrawal lacks coherence or is based on a clear material misunderstanding or misconception.
- The outcome of the judicial scrutiny should be briefly reasoned.
- Rule 29 of the First Tier Tribunal Rules is confined to the substantive determination of appeals.
- The power of the First Tier Tribunal to set aside a decision under Rule 32 is exercisable only by the First Tier Tribunal President and the Resident Judges.
- In cases where an unsuccessful appellant has a choice, best practice dictates that an application to set aside the impugned decision of the First Tier Tribunal under Rule 32 be first exhausted in advance of the lodgement of an application for permission to appeal to the Upper Tribunal. Where both species of challenge are lodged simultaneously, it will be sensible to assign them to the same Judge where feasible.
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