Tribunal decisions

The decision

Asylum and Immigration Tribunal

AP (Withdrawals-nullity assessment) Pakistan [2007] UKAIT 00022

THE IMMIGRATION ACTS

Heard at Manchester, Piccadilly
Determination Promulgated
On 22 November 2006
On 23rd February 2007

Before

SENIOR IMMIGRATION JUDGE MACKEY
Immigration Judge nICHOLSON

Between

Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr A Durrance, of Counsel instructed by Zacharia and Co. Solicitors, Oldham
For the Respondent: Mr T Dillon, Home Office Presenting Officer

Rule 17 of the Asylum and Immigration Tribunal (Procedure) Rules) 2005 provides the basis for withdrawal of appeals. Where a party has withdrawn an appeal there is then nothing before the Tribunal and the matter is at an end. The validity or effectiveness of the withdrawal can be challenged to ascertain whether the “withdrawal” was in fact a nullity. If a challenge is made there will be a hearing, where the Appellant must establish, on the balance of probabilities, that the withdrawal was invalid. [Inexhaustive reasons and guidelines are set out in para 57 (f).] This approach is noted as consistent with the approach to withdrawals (“abandonment”) in r.63.5 of the Criminal Procedure Rules 2005 (S.I 2005 No 384), the Court of Appeal decision in Reg v. Medway [1976] 2 WLR 528, and approach taken by SIAC.
DECISION ON VALIDITY OF WITHDRAWAL AND DIRECTIONS FOR ADJOURNMENT

1. This appeal came before us following directions given by Immigration Judge Nicholson on 17 October 2006:

“DIRECTIONS

1. This appeal number AA/08328/2006 came before Immigration Judge Mr Mulvenna on 8 August 2006 in Manchester. At that time the Appellant was represented by T Solicitors. In a Notice of Decision dated 8 August 2006 Immigration Judge Mr Mulvenna stated that the Appellant had withdrawn the appeal orally at the hearing on 8 August 2006.

2. The Appellant’s new representatives, Zacharia & Co Solicitors, have, by letter of 26 September 2006, sought to argue that the Appellant’s former representatives, TS Solicitors, had no instructions to withdraw the appeal. They now seek to contest that withdrawal.

3. In the appeal of Adewole v SSHD (HX/64696/96) the Immigration Appeal Tribunal stated that –

‘An appeal, which was properly withdrawn, prior to its hearing by an Adjudicator, did not go in to a state of suspended animation; it ceased to exist, and there was no provision in the Immigration Rules for it to be resuscitated’.

The Tribunal went on to state that, in those circumstances, the burden of proof lay upon an Appellant to establish on a balance of probabilities that there had been no proper withdrawal and that the representative had, in effect, acted without the authority or consent of the Appellant when purporting to withdraw an appeal.

In the appeal of El-Tuyeb v SSHD (TH/22187/94) the Immigration Appeal Tribunal stated that:-

‘Where a withdrawal of an appeal is contested, the Adjudicator must allow an opportunity to put the case against withdrawal. This reflects the fundamental principle that each party should be able to put the case before the Adjudicator and the need for this is particularly so where a notice of withdrawal is presented on the day of the hearing. Further, where there is a contested withdrawal, there should be a determination with reasons as to whether the appeal is withdrawn or not.’

4. In the light of these Tribunal decisions it is directed as follows:-

(i) The Appellant’s application challenging the withdrawal of this appeal should be listed for an oral hearing with a time estimate of one hour.

(ii) Witness statements of evidence to be called at the hearing relating to the issue of the contested withdrawal shall be filed at least five days before the hearing, such statements to stand as evidence in chief at the hearing.

(iii) A paginated and indexed bundle of all the documents to be relied on at the hearing, limited to the issue of the contested withdrawal, shall be filed and served no later than five days before the hearing.

(iv) The parties shall file and serve skeleton arguments addressing the issue of the contested withdrawal.

(v) All documents shall be filed in duplicate as the hearing of this issue may be listed for a panel hearing.

(vi) In line with the Tribunal decisions in MM [2004] UKIAT 00182 and SV (Iran) [2005} UKIAT 00160 the Appellant’s representatives shall, no later than five days before the hearing –

(a) Confirm in writing to the Tribunal that they have submitted a copy of their letter of 26 September 2006 to the Appellant’s former representatives T Solicitors.

(b) Confirm in writing to the Tribunal that they have invited T Solicitors to reply directly to the Tribunal before the date of the hearing.

(c) Confirm in writing to the Tribunal that they have sent T Solicitors a signed waiver of the Appellant to any rights of privilege she may have in respect of her communications with T Solicitors on the issue of the contested withdrawal or confirm in writing to the Tribunal why they are not in a position or do not consider it appropriate to require the Appellant to waive any privilege she may have on this issue.”

2. The appellant is a national of Pakistan and claims to have arrived in this country in August 2001 and it appears made initial application for asylum in January 2002. It is unclear whether that application was processed or taken further by her original representatives, the IAS in Manchester. She then lodged another application on 28 April 2006, primarily based on her fears of returning to Pakistan because she has had illegitimate children, who have been born to her while she has been in this country. That application was refused, in a letter from the respondent, dated 16 June 2006. The appellant then lodged an appeal with this Tribunal. When the matter came before Judge Mulvenna, on 8 August 2006, the appellant was then represented by T Solicitors. As noted, Immigration Judge Mulvenna was notified that the appellant had withdrawn her appeal. Subsequent to her short appearance before Judge Mulvenna however she then instructed new representatives, Zacharia and Co. By a letter of 26 September 2006 they sought to argue that the appellant’s former representatives had not been given valid instructions to withdraw her appeal. Accordingly, they sought to contest the withdrawal and continue the appeal.

3. The letter from Zacharia and Co. Solicitors to the Tribunal, dated 26 September 2006, stated:

“The above named has instructed us to take over the care and contact of her asylum matter. Our client’s appeal against the Secretary of State’s decision to refuse her asylum application was listed for an appeal hearing at AIT Bradford on 18 July 2006.

Our client has instructed us that on the day of the appeal hearing she was advised by her previous representative Messrs T Solicitors to withdraw her appeal. Our client clearly did this, however she instructs us that she was not aware of the exact implication of this and thought that her appeal would be heard at a later date. Our client maintained that if she was returned to Pakistan she would be due to her membership of a social group and religious opinion (sic) she further maintains if she is returned to Pakistan she will be considered an adulteress. Pakistan is governed by Shariah law; under Shariah law the punishment for such a person is death by stoning.

Our client’s illegitimate children would become if it is not already common knowledge in Pakistan no doubt as you are aware Pakistan is an extremely patriarchal society, our client would not be able to turn to the State or authorities for protection and as a result fears persecution and believes her life will be at risk in Pakistan (sic)

Given the above and in the interests of natural justice we request that our client’s appeal right be reinstated so that she has the opportunity for her case to be heard. She has a right to a fair trial.

We request that our client be allowed her appeal to be heard as it is of the utmost importance to her given the fact that her life and liberty are at stake.”

4. The preliminary issue as to whether a valid withdrawal had been lodged by the appellant was set down before us as a matter for determination, on the basis that if we found in her favour, the matter would be adjourned for a full hearing of the substantive appeal. The appellant’s new representatives presented a skeleton argument, a statement from the appellant, AP, dated 21 November 2006, a copy of a letter from T Solicitors dated 15 November 2006 addressed to the appellant’s new representatives, a form of authority signed by the appellant dated 8 August 2006 and a copy of the letter sent to Mr T at T Solicitors from Zacharia and Co. dated 9 November 2006. (Mr T’s letter of 15 November 2006 responds to the letter of 9 November 2006). On the date of the hearing we were presented with a handwritten statement by a Mr L, dated 22 November 2006. Both the appellant and Mr L gave evidence before us.

5. In this case the Respondent challenged the invalidity of withdrawal. However, we made it clear at the outset that the Respondent could not concede or agree the issue of validity, as the jurisdiction on the validity or effectiveness of the withdrawal was a matter for the Tribunal.

6. Prior to setting out the evidence from both of the two witnesses it is convenient to set out the questions that were posed by Zacharia and Co to Mr T in the letter of 9 November 2006 and the response to them.

7. The letter from Zacharia and Co of 9 November 2006 stated:

“We shall be grateful if you could confirm in writing to both ourselves and the AIT:

1. Why the appellant’s appeal was withdrawn.

2. Was an official interpreter present?

3. If an interpreter was present then a copy of the invoice paid.

At present we do not think it is appropriate for our client to sign the waiver until we have your letter within seven days.”

8. The letter from T, Solicitors, dated 15 November 2006, states:

“We are in receipt of your letter of 9 November and note what you have to say.

We are enclosing here with a form of authority signed by your client on 8 August 2006, the morning of the asylum appeal hearing. You will be aware that your client had given us instructions on how she had come to be abandoned in this country with her daughter and thereafter given birth to three illegitimate children all to different fathers. At the early morning meeting before the hearing we noticed that one of the persons present, a gentleman previously introduced to us as a neighbour, had a striking resemblance to the copy photograph of her husband’s visa application form. We asked him if he was your client’s husband and he did not demur. We asked our client and the gentleman we took to be her husband to confirm that the children were legitimate children of the marriage. Again the writer recalls there was no objection raised by anybody in the room. Indeed the writer seems to recall that at the end of the meeting just before the writer went to the Manchester hearing centre the gentleman we took to be her husband did confirm his real identity and make some explanation as to why this false claim had been pursued. We might add that when we attended the hearing centre the Home Office Presenting Officer provided us with additional evidence showing evidence of further visa applications made by your client’s husband at time when he was either in Pakistan or in Sweden.

You will see that the form of authority was read over to your client by Mr L. He was not seen as an official interpreter but we have no reason to doubt his ability to properly interpret the contents of the authority form. Moreover we were left in no doubt that your client was fully aware of the gist of the conversation between the writer and the person we took to be her husband.”

9. The form of authority signed by the appellant on 8 August 2006 was as follows:

“To T Solicitors

Form of Authority

I, A P, aka A, hereby request and authorise you to withdraw my appeal against the decision of the Home Office to refuse my asylum claim and to make directions for my removal from this country. I confirm that I have had the opportunity of discussing a copy of a visa application form submitted by my husband to the British High Commission. I recognise that this document is fatal to my case.

I confirm that the contents of this form of authority have been read out to me in my own language and I confirm that I am aware of the consequences of withdrawing this appeal.

Dated 8th Day of August 2006

Signed (signature of appellant)

Through the interpretation of

Signed (signature of Mr L)”

The Appellant’s Evidence

10. A court interpreter, Mr Mohammed Khaliq Sayed – Urdu language, was provided by the Tribunal. After a brief discussion with the appellant he confirmed that they fully understood each other and that the language was Urdu.

11. The appellant then adopted her statement of 21 November 2006, which she agreed had been translated and read over to her. She agreed that it should stand as evidence-in-chief.

12. She was then cross-examined by Mr Dillon. She agreed she had signed the form of authority at T Solicitors on 8 August 2006. Mr L had read it through to her in Punjabi Urdu before she had signed it. However, while it had been explained she did not fully understand its content. She stated that when she went home, with a copy of the form, and discussed the matter with a neighbour she then became aware that the case “was finished and was closed”.

13. When asked why she was not aware that she had signed a withdrawal of her appeal she stated that she did not know what she had signed and thought that Mr T was withdrawing himself from the appeal. It was put to her that, as she agreed it had been read back and there was no statement in it that Mr T was withdrawing his representation. Indeed it was put to her that as there were two references to her withdrawal of the appeal in the form it was difficult to see why she thought the appeal had not been withdrawn. In response she said that she did not understand but considered that she may have to appeal again. She stated that she had been told to “sign, sign or you will be punished-two years.”

14. She was then asked what she had been told by Mr T at the meeting. She explained that she had gone to his office but did not understand what was being said. It had been translated to her that all of her case was false and she had been asked to sign. She stated “I thought Mr T would not do my case”.

15. When asked about Mr T’s statement relating to her alleged “husband” (Mr H), who attended T Solicitors with her, she stated that that man was not her husband and it was only Mr T who stated this.

16. She was asked whether the gentleman, (Mr H), was at court to give evidence at this hearing. She replied that he had left to go to Pakistan the day before and so was not available. She confirmed that Mr L was in attendance and that he had read the statement to her.

17. In re-examination she confirmed that she had signed the form of authority before the hearing that was to take place on 8 August 2006 and understood from it that Mr T was finishing his involvement with her case and that she would have to get another solicitor. It was later in the day that a neighbour read the form of authority/letter to her and told her that it stated the case has been finished. She then decided that she would go to another firm of solicitors.

18. When asked about the letter from Mr T dated 15 November 2006, and the implication that the gentleman, who had attended with her (Mr H), was her husband, she replied that she wanted to go to the court but Mr T had told her that she would be punished. She stated she became confused during five or six minutes of discussions and her “brain did not function”. She stated that she then signed the document.

19. In response to questions from us she stated that she knew Mr L through an acquaintance with his wife, whom she met at their children’s school. She stated that there was no interpreter provided by Mr T and so Mr L came with her to assist, as he had done on one or two occasions in the past. She was happy for Mr L to act for her as interpreter. She explained that her own English was minimal and consisted of only yes and no. We also asked her about a previous statement of some fourteen pages, dated July 2006, which appeared to have been interpreted to her by Mr L. She agreed that she had given the statement of fourteen pages and her story had been explained to the solicitors through “Mr L his wife and somebody else – and whoever took me to the solicitors”. She stated that Mr L did not interpret all of it through to her.

20. For the purpose of clarity we set out her full statement on the withdrawal issue. It states:

“I A P resident of [address] make this statement of truth and say as follows:-

1. I applied for Asylum in the UK and the application was refused. My Asylum appeal was listed to take place on the 18th July 2006. That morning my friend Mr Mr L received a phone call from Mr T asking that we attend his Office at 8.30am to discuss the case.

2. Following his conversation with Mr T, Mr L telephoned me and told me that we need to meet Mr T in his office at 8.30.

3. We arrived at his Office at about 8.30 and went into Mr T’s office. Mr T said that he had seen a photo of my husband and accused me that my husband had accompanied me on a number of occasions at his office. He continued to accuse my friend who had come with me that he was in fact the man in the photo. We were all astonished at what he was saying as this was not true. I was extremely upset and confused. The conversation had to be translated to my by Mr L and because the conversation was going back and forth I was very confused and upset.

4. Mr T then asked what we wanted to do about the appeal hearing. I told Mr L that I wished to proceed with the Appeal. I was then told that if I did and if the court found that I was not telling the truth I would be imprisoned for two years and fined. As I was already upset I didn’t know what to do. I thought that Mr T was withdrawing his representation.

5. I signed what I thought was confirmation that Mr T was withdrawing himself from the appeal not that he was withdrawing the appeal.

6. I later found that Mr T had withdrawn my appeal and I sought further advice.

7. I was not aware that my appeal was being withdrawn and ask that you allow my appeal to be heard.

This statement has been translated to me in the Urdu language and I confirm that I have understood the contents of this statement.

Signed: (signature)

Dated: 21/11/06”

Evidence of Mr L

21. Mr L confirmed his identity by providing us with a copy of his British passport which had been issued in 1997. He explained that he was a self-employed plumber, and was not a professional interpreter, but had learned English over the many years he had been in the United Kingdom. He confirmed his statement and agreed that it should stand as evidence-in-chief. We now set out his statement in full:

“I L resident of [address] make this statement of truth in support of AP’s Asylum Claim and say as follows:-

1. On the day of the Appeal hearing I received a telephone call from Mr T at about 7.45am asking us to attend his office. He had some new evidence which he wanted to discuss.

2. I rang AP and informed her that Mr T had asked us to arrive earlier. We arrived at Mr T’s office at about 8.30, this was myself, AP and Mr H that were present at that meeting.

3. Mr T showed us a document with a photograph of AP’s husband. He explained that her husband had visited the UK and he believed that [ ] was in fact her husband.

4. We explained that his was not her husband and he said that if we proceed with the case we would lose.

5. I explained this to AP but at the same time Mr T said that we would be charged with perjury and could be imprisoned. AP was very upset and confirmed that she wanted to continue with the appeal. She told Mr T that this man was not her husband.

6. Mr T then said he would not continue with this case and that he was going to withdraw from it.

7. I was of the understanding that he was going to withdraw himself from the case. AP had said to him she wished to continue.

8. Mr T then asked AP to sign the paper for the withdrawal we were not aware that he was going to withdraw her appeal.

9. We left the Office and returned home. Mr T said he would forward the papers to the Court.

10. I ask that her Appeal is reinstated as it was not explained to us clearly that her appeal was being withdrawn.

Signed: (signature of Mr L)

Dated: 22-Nov-06”

22. Mr L gave additional evidence to us in court. He confirmed that on 8 August at approximately 8.30am he had arrived, with the appellant, at the office of Mr T. Shortly thereafter he had been advised that it was Mr T’s belief that Mr H (who accompanied them), was the husband of the appellant. He informed us that the appellant had said it was not her husband. Soon after that Mr T left the room and he and the appellant were alone together to discuss the matter. As Mr T had said that he was not willing to go to court Mr L informed her that he thought Mr T was withdrawing from the case. When asked by Mr Durrance if he had been asked to explain the consequences of withdrawing the case, Mr L informed us that he understood from Mr T that the appellant would be tried for perjury, but she had still indicated that she wished to proceed and go to court. He stated that discussion had taken place after the letter of authority had been prepared. He confirmed that he had acted as interpreter of the form of authority but in his explanation to the appellant he had stated he thought Mr T was withdrawing from the case. Therefore he explained to the appellant that she needed to sign the paper.

23. He stated that his relationship with the appellant was that she was a friend of his wife and that their children went to the same school. The relationship between them was a basic and limited one.

24. He went on to state that he was in the plumbing business and had done little other interpretation work and none in relation to other court proceedings.

25. He did confirm that he had explained all of the words in the form of authority but had said to the appellant that Mr T had advised he could not go ahead with the case and therefore was withdrawing from it.

26. In cross-examination Mr L stated that he had been with the appellant on previous occasions to explain what Mr T was saying because the appellant could not speak English. When asked why he arrived at the conclusion that Mr T was withdrawing from the case, rather than the appellant withdrawing her own claim, he stated that he had never been to court before and he just told her that she needed to sign. Asked whether he had met the alleged husband, Mr H, on previous occasions, he advised that he had met him before and that Mr H had been with the appellant and himself on previous occasions. He stayed in the next street to the appellant but he did not know where he was “today”.

27. He was then asked whether he had felt comfortable in translating the fourteen page statement made in July. He explained that he had been there to help the appellant at the earlier meeting when the fourteen page statement was completed as he understood Urdu. In response to questions from us he could not recall whether he had read the whole of the fourteen page statement out to her word for word but agreed he had signed it on the last page.

28. When asked about the questioning of Mr T to the alleged husband, Mr H, he agreed that Mr H had not said anything, at the time, although he had translated on behalf of the appellant to Mr T that she had said she was not married to the other gentleman.

Respondent’s Submissions

29. Mr Dillon submitted that the respondent still had serious concerns about the behaviour and presentation of this formal withdrawal, particularly given that Mr T was an experienced practitioner in this field of the law. It was submitted that in this situation it should be taken that a formal withdrawal had been presented and that the withdrawal should remain in force. The terms of the form of authority document were quite explicit and in fact state on two occasions that the appeal had been withdrawn by the appellant and that she was aware of the consequences. He agreed that Mr L was not a certified interpreter but had clearly been involved in interpreting other documentation, including the fourteen page statement, to the appellant in the past. As the form of authority was such a small statement he said it was unlikely that it could be interpreted as anything else.

30. He referred us to paragraph 52(2) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 which stated that any notice of appeal or application filed with the Tribunal must be completed in English and any other document must be accompanied by a translation in English “signed by the translator to certify the translation is accurate”. He also noted that Rule 52(3) stated the Tribunal was under no duty to consider a document which was not in English or was accompanied by a certified translation.

31. He submitted that whilst not directly applicable to this situation, given the need for a certified translation, if the Tribunal in this case found that we could not accept the form of authority or “withdrawal” had been adequately translated or understood by the appellant, then the same should apply to the fourteen page witness statement of the appellant. Mr Dillon agreed with us that the real issue before us was: “what was the real intention of the appellant in signing the document”.

32. Mr Dillon submitted that Mr T did not consider there was any confusion in the matter and that also it was not helpful that other parties who had been present on the relevant day in August, when the form of authority had been signed, were not now available to give evidence.

The Appellant’s Submissions

33. Mr Durrance submitted, based on the results of the directions hearing set out above and the authorities contained within, that the task before the Tribunal at this time was to establish, on the balance of probabilities, whether or not there was a proper withdrawal. If the withdrawal had been completed without the fully informed consent of the appellant then, in his submission, there was no proper withdrawal.

34. He submitted that the first issue that arose was that of language. In this case an informal interpreter had been used, who did not fully understand the meaning and effect of “withdrawal of representation”, or “total withdrawal of the claim by the appellant”. He submitted that both the appellant and Mr L in their statements, had made this clear. Effectively therefore it was a situation where the appellant did not give consent to her total withdrawal given the interpreter himself thought it was a withdrawal of representation, not of the appellant’s appeal.

35. Secondly, he submitted that the circumstances on the date when the alleged withdrawal was signed were ambiguous. The guidance given in Adewole (HX/64696/96) was of assistance, where it stated that the burden of proof lay on the appellant to establish on the balance of probabilities that there had been no proper withdrawal and that the representative had, in effect, acted without the authority or consent of the appellant when purporting to withdraw the appeal. In this case the appellant has now stated that she contested the document and states she made it clear to Mr T that she wished to proceed with the appeal. Mr L then confirmed this from his evidence, where likewise he considered that she wished to proceed and that it was not withdrawal of the appeal that was being signed, rather a withdrawal of representation.

36. While he acknowledged that Mr T had not been at court to give evidence to us, he considered that this should not affect our ability to reach valid conclusions in this matter as the Tribunal had heard live evidence from the appellant and Mr L. From that, without any reflection at all on Mr T, as it related to issues of translation not professional competence, it was entirely possible for us to conclude that the appellant had not understood what she was signing. There was also no suggestion, in his submission, that there was anything more than a tenuous relationship between the appellant and ML. In this situation Mr T’s evidence should be evaluated in the light of the apparent misapprehension held by him. It showed, in his submissions, the obvious dangers of using unqualified interpreters, particularly those who do not understand any legal concepts or niceties that might be involved. It was thus an apparent situation that Mr T genuinely had a view as to what had been explained to the appellant but, on the balance of probabilities; the informal interpreter used did not accurately translate or interpret Mr T or the form he prepared. Therefore, clearly the appellant did not follow what she was signing.

37. In this situation, he considered there was sufficient evidence to reach the conclusion that the appeal should be reinstated as the withdrawal was not a valid one.

38. We reserved our determination.

The Issues

39. We found the issues before us to be:

(a) From our assessment of the relevant jurisprudence, legislation, Procedure Rules both in Asylum and Immigration cases, and in Criminal proceedings, what is the effect of a withdrawal of an appeal by an appellant?
(b) Can the validity of the withdrawal be challenged before us? If so,
(c) What evidence and standard of proof were required to establish an invalid withdrawal had been lodged by an appellant with the Tribunal?
(d) What other general guidelines could be given for Immigration Judges in assessment of applications that claim purported withdrawals were invalid/ ineffective and that an appeal remains extant?
(e) And finally, if the appeal is extant, what directions, on the further progress of this appeal, at an adjourned hearing or hearings, should be given?

The Statutory Provisions

40. We note firstly the comments of Collins J , then President of the IAT in MNM [2000] UKIAT 00005, paragraphs 15 -17, and that although this is not a situation where Article 6 of the ECHR 1950 applies we should ensure that the every applicant before us obtains a fair hearing. We then move to Section 104(1) and (2) Nationality, Immigration and Asylum Act 2002 which sets out when appeals before this Tribunal are pending, and by inference when they are not. They provide:

“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 sub-section (1) (b) while a further appeal or application under Section 101(2) –

(a) had been instituted and is not yet finally determined, withdrawn or abandoned, …”

41. Thus, statutorily, once “withdrawn” the appeal is no longer pending and is at an end.

The Procedure Rules

42. Rule 17 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 provides:

“Withdrawal of Appeal

17(1) An appellant may withdraw an appeal –

(a) orally, at a hearing; or

(b) at any time, by filing written notice with the Tribunal.

(2) 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.

(3) If an appeal is withdrawn or treated as withdrawn, the Tribunal must serve on the parties a notice that the appeal has been recorded as having been withdrawn.”

43. We note however, at also Rule 59 “Errors of Procedure” which states:

“59(1) Where, before the Tribunal has determined an appeal or application, there has been an error of procedure such as a failure to comply with a Rule –

(a) subject to these Rules, the error does not invalidate any step taken in the proceedings, unless the Tribunal so orders; and

(b) the Tribunal may make any order, or take any step, that it considers appropriate to remedy the error.”

44. The Rules therefore provide that an appellant may withdraw an appeal orally at a hearing, or at any time by written notice with the Tribunal. However the Tribunal is left with a residual power to make any order, or take any other step, that it considers appropriate to remedy an error in procedure.

Commentary and Case Law

45. We note firstly paragraphs 18.104 and 18.105 of Macdonald’s Immigration Law and Practice (Sixth Edition – LexisNexis Butterworths). Paragraph 18.104 relevantly provides:

“All appeals may be withdrawn or abandoned. What are the distinctions between withdrawal and abandonment, and what are the consequences? Withdrawal of an appeal implies a positive act, while abandonment suggests passive failure to prosecute the appeal, or an action incompatible with pursuing it whereby it is deemed abandoned by statute. In the case of a deemed withdrawal, which happens when the decision appealed against is withdrawn, the positive act is that of the respondent rather than the appellant, but the distinction between withdrawal and abandonment vanishes with the concept of “deemed abandonment” when the appellant is granted leave to enter or remain in the UK. Much of the case law deals with the issue of who decides whether an appeal has been withdrawn, how the decision is made, and whether a decision that an appeal has been withdrawn is itself challengeable. …If an appeal is withdrawn or treated as withdrawn, the Tribunal must serve on the parties a notice that the appeal has been recorded as having been withdrawn. Such a notice is not a “determination” within the meaning of the procedure Rules, or a decision on an appeal for the purposes of appeal or statutory review, and could be challenged only by judicial review. It is clear that whether an appeal has been withdrawn is a matter for the Tribunal and the courts, not the Secretary of State. …Now that appeal notices go direct to the Tribunal, there is no reason for withdrawal of appeals to go through immigration authorities. When an appeal is validly withdrawn prior to the hearing, and the withdrawal accepted by the Tribunal, the appeal does not go into a state of suspended animation but ceases to exist, and any determination of the appeal (on the merits) is a nullity.”

46. The provisions of Paragraph 18.105 set out the substantive issue that is before us, when it states:

“The main difficulty in practice has been whether the person withdrawing has the necessary instructions and authority to do so. The general rule that a retainer of a solicitor includes authority to compromise an action or withdraw unless contrary instructions are expressly given, does not appear to apply in immigration appeals, and a solicitor without instructions has been held to have no authority to withdraw an appeal. Where there is authority withdrawal will be effective. …The issue in all cases however is likely to be whether it is clear that the appellant intended to withdraw the appeal. If appellants have signed a letter of withdrawal, the burden is on them to show that they instructed their representative not to present it, or to withdraw it.”

47. The authority cited in Macdonald for the last sentence in paragraph 18.105 is Adewole (18538) (22 September 1998, IAT), and we now turn to that case and confirm the general principles set out within it.

48. The appellant Adewole was a Nigerian who appealed against a ruling of the Immigration Appellate Authority which informed the appellant’s then representatives that the appellant’s appeal against refusal to grant asylum had been withdrawn and that this had taken place following receipt of a letter from the representatives (R and Company) which simply stated; “Kindly withdraw the appeal”. The matter then came before the former Immigration Appeal Tribunal, with a legal chairman and two lay members. It was argued by the appellant that he had signed the original withdrawal document on 6 March 1996, but had rescinded it the following day 7 March 1996, after consulting with some friends and acquaintances at a church meeting. R and Co then, several months later, wrote to the Tribunal making the simple statement above. While the evidence, in the form of affidavits from the appellant, was somewhat confusing, the Tribunal did note that Mr R, of R and Company, was not in fact a solicitor, although he purported to act as such. They came to the conclusion, in the interests of fairness and justice, that the appellant after 7 March 1996 (thus before any notice was given to the Tribunal) did not intend to allow withdrawal of his appeal, previously signed, to stand. The matter was then treated as not having been withdrawn and remitted to the former IAA for determination.

49. The Tribunal chaired by Mr O’Brien Quinn QC considered previous authorities of the Tribunal in Ayse Osman [1993] Imm AR 417, Singh [1991] Imm AR 195 and Ancharaz [1976] Imm AR 49 and appears to approve the findings in these determinations. The Tribunal noted that where it is contended that an appeal has not been validly withdrawn the Tribunal has jurisdiction to consider the matter, and:

“[W]here an Adjudicator decides there is no appeal in being, or where the original Adjudicator holds that an appeal should not be listed, the Tribunal can entertain an application for leave to appeal against that decision.”

From the determination in Singh it was noted relevantly that where the appellant’s solicitors said they were without instructions, and that an appeal should therefore be withdrawn, the Tribunal had held that the solicitors had no authority to withdraw the appeal. On page 4 of the decision the situation was summarised in the following manner:

“The situation in this matter, as we see it, is that, as was held by the Tribunal, in Ancharaz [1976] Imm AR 49, an appeal which was properly withdrawn, prior to its hearing, by an Adjudicator, did not go into a state of suspended animation; it ceased to exist, and there was no provision in the Immigration Rules for it to be resuscitated. Thus, the burden of proof lay upon the appellant to establish on the balance of probabilities, that he had instructed his respondent [should read representative] either not to present the letter of withdrawal, which he had signed, or to have it, in some way withdrawn, in order for him to satisfy us that his original letter of withdrawal had been improperly used by his representative and that it ought to have been cancelled.”

50. We are also referred to a decision in El-Tuyeb (12643) a determination of 30 October 1995 by Legal Chairman, Professor Jackson and two lay members. This also concerned the issue as to whether there had been a valid withdrawal. On the third page of this determination Vice-President Professor Jackson stated:

“We had only this, that where a withdrawal of an appeal is contested, the Adjudicator must allow an opportunity to put the case against withdrawal. This reflects the fundamental principle that each party should be able to put the case before the Adjudicator, and the need for this is particularly so where a notice of withdrawal is presented on the day of the hearing. Further, where there is a contested withdrawal, there should be a determination with reasons as to whether the appeal is withdrawn or not.”

51. A conclusion was reached in that case that the appeal had not been withdrawn and an earlier letter which had been sent to the respondent appeared to have been superseded, leaving the assumption that the appeal was still extant.

52. In an effort to ensure consistency with other areas of the law on the issue of withdrawal, (or abandonment as it is termed in the criminal jurisdiction) we have found helpful guidance in the criminal jurisdiction. In Reg v. Medway [1976] 2 WLR 528 the Court of Appeal ( Lord Widgery CJ, Stephenson LJ, O’Connor, Lawson and Jupp JJ ) in a decision delivered by Lawson J, held that the court had jurisdiction to grant leave to withdraw a notice of abandonment [withdrawal] of either an appeal, or application for leave to appeal, only where the court was satisfied that the notice of abandonment was a nullity, in the sense that the abandonment was not the result of a deliberate and informed decision; and that there was no inherent jurisdiction to grant leave to withdraw a notice of abandonment because of the existence of special circumstances.

53. Medway was a case where the applicant had a history of mental illness, and was convicted of arson offences and breach of a probation order. Contrary to advice of a medical officer he applied to the Full Court for leave to appeal. However, after receiving some advice form his solicitors, he abandoned the application. Later, after consulting different solicitors, he made an application to withdraw the notice of abandonment, on the ground that the single judge who heard the application had overlooked the power of the Court of Appeal to substitute an appropriate sentence, if relevant material became available after sentence had been imposed. The Court of Appeal dismissed the application finding the court had no jurisdiction to grant the application since the abandonment was the result of a deliberate decision. At 545 Lawson J stated:

“The answer to the first question which we have to decide depends upon whether alongside the jurisdiction which undoubtedly, as authorities show, exists to give leave to withdraw an abandonment where it is shown that the circumstances are present which enable the court to say that that abandonment should be treated as a nullity, there coexists an inherent jurisdiction, in other special circumstances, enabling the court to give such leave. We are satisfied and hold that there is no such jurisdiction. In our judgment the kernel of what has been described as the "nullity test" is that the Court is satisfied that the abandonment was not the result of a deliberate and informed decision; in other words, that the mind of the applicant did not go with his act of abandonment. In the nature of things it is impossible to foresee when and how such a state of affairs may come about; therefore it would be quite wrong to make a list, under such headings as mistake, fraud, wrong advice, misapprehension and suchlike, which purports to be exhaustive of the types of case where this jurisdiction can be exercised. Such headings can only be regarded as guidelines, the presence of which may justify its exercise."

54. The Criminal Procedure Rules 2005, (S.I. 2005, No 384, r 63.5) on the issue of withdrawal, (termed “abandonment” in those Rules), adopts the approach that was taken by in Medway, by the Court of Appeal when interpreting the Criminal Appeal Rules 1968 (S. I. 1968 No. 1262 –r.10).

55. In the criminal jurisdiction the Magistrates’ Courts Act 1980, s 111 , provides a right of appeal against a conviction , order, determination or other proceeding that is “wrong in law or is in excess of jurisdiction…” Rule 63.5 of the Criminal Procedure Rules 2005 provides for notice of Abandonment of an appeal stating:

“63.5-(1) Without prejudice to the power of the Crown Court to give leave for an appeal to be abandoned, and appellant may a band on an appeal by giving notice in writing, in accordance with the following provisions of this rule, not later than the third day before the date fixed for hearing the appeal.”

Archbold (2007) at para 2-176 comments:

“The Crown Court cannot entertain an appeal once it has been validly abandoned, unless the abandonment is a nullity by reason of mistake or fraudulent inducement … Nor can the Court reinstate abandoned appeals, unless it is satisfied that the notice of abandonment is a nullity."

56. The approach taken in Medway, and in the current Criminal Procedure Rules, has been adopted by SIAC, in open, but unpublished, decisions.

Conclusions on legal issues

57. We are satisfied therefore, that the legal position in respect of withdrawals in this jurisdiction is as follows:

(a) Rule 17(1) provides the basis upon which an appellant may withdraw an appeal.

(b) Rule 17(2) provides how a respondent notifies the Tribunal an appeal shall be treated as withdrawn, and Rule 17(3) places an obligation on the Tribunal to serve the parties notice that the appeal has been recorded as having been withdrawn.

(c) We consider the previous case law in the former IAT such as Adewole, El-Tuyeb reflect, but perhaps without the clarity desirable, the fundamental principle that if a notice of withdrawal has been given, either orally at a hearing, or by written notice prior to the hearing, the appeal then ceases to exist and is at an end.

(d) The clear guidelines on withdrawal/abandonment given in the criminal jurisdiction both by the Court of Appeal in Medway, and in the Archbold commentary on the Criminal Procedure Rules 2005, set out above, we consider should be adopted as the correct and consistent approach to be taken by this Tribunal.

(e) Accordingly when an application is made to challenge a notice of withdrawal as invalid the Tribunal will then proceed to hear the application. Based on all of the evidence placed before it, the Tribunal must be satisfied, on the balance of probabilities, that the withdrawal was not the result of a deliberate and informed decision; "in other words, that the mind of the applicant did not go with his act of abandonment [withdrawal]" before concluding that the be purported withdrawal was in fact a nullity and the appeal is extant.

(f) Noting the comments of Lawson J in Medway (supra) and without being exhaustive of the reasons why a withdrawal could be found to lack validity, we consider that some guidelines can be given of the types of cases where this can arise, on the balance of probabilities. These are:

(i) The Appellant has had an almost immediate change of mind, which is promptly communicated to a representative, prior to the matter coming for hearing before the Tribunal (as in Adewole);

(ii) A letter or notice purporting to withdraw an appeal has been sent to the Respondent, rather than to the Tribunal itself – ( NB.A notice of withdrawal should have no legal validity until the actual notice of appeal is communicated to the Tribunal, either in writing or at a hearing before the Tribunal );

(iii) A withdrawal has been communicated to the Tribunal by a representative without there being clear understanding, or meeting of the minds, between an Appellant and the representative;

(iv) A withdrawal has been communicated to the Tribunal by a representative on the instructions of a Sponsor, (who has completed section 5 of the appeal form), rather than on the actual instructions of the Appellant;

(v) A representative has communicated a withdrawal to the Tribunal in error, either through lack of due care, or simple mistake.

58. We emphasize that there is no question of “reinstating” an appeal which has been validly withdrawn. Once the withdrawal notice has been given to the Tribunal the appeal is no longer pending before the Tribunal and the Tribunal has no further function; (it is in the Latin form: functus officio). The only possible legal issue remaining is whether the purported withdrawal is in fact a valid one. If it is invalid, then the appeal remains extant and pending before the Tribunal. This point, of course, has important consequences relating to the ability to remove the Appellant and the continuation of any leave he or she may have by virtue of s.3C of the Immigration Act 1971

59. If the withdrawal application is later claimed to be invalid, the matter will be set down by an RSIJ/IJ for a preliminary hearing with appropriate directions to both parties, for the conduct of that preliminary hearing. If the matter is uncontested by the other party it will still be necessary for an RSIJ/IJ to consider all the issues, either in court or on the papers, and to reach a written decision, that the withdrawal is valid or otherwise. The decision, in either case, will then be notified to the parties together with reasons.

60. The issue of privilege between solicitor/barrister and client, and possible waiver can arise in such cases. We consider that in line with MM[2004] UKIAT 00182 and SV(Iran)[2005] UKAIT 00160 there will be a need to direct the new representatives of appellants, in such contested claims, to confirm in writing five days before the preliminary hearing, that:

(a) they have submitted a copy of the letter/statement contesting the validity of the “withdrawal” to the appellant’s former representatives;

(b) they have invited the former representatives to write to the Tribunal directly giving any explanation they wish to provide, before the date of hearing, and to appear at that hearing if they wish to be heard;

(c) they have sent to the former representatives a signed waiver from the Appellant to any rights of privilege he or she may have in respect of communications between them on the issue of the contested withdrawal, or to confirm in writing they are not in a position, or do not consider it appropriate, to require the appellant to waive any privilege he or she may have on this issue.

Decision on appellant’s case

61. Having now reached our conclusions on the correct legal approach we have gone on to make our assessment of the credibility of the witnesses and other evidence before us.

62. We are satisfied on the balance of probabilities that we have no basis to conclude that the appellant and Mr L lacked credibility in the evidence they presented to us. It is clear that the appellant relied on Mr L as an “informal interpreter”. He was the husband of an acquaintance and it appears, accompanied the appellant to the meetings with T Solicitors to assist her with translations of what was said to her and to translate back to Mr T the appellant’s replies/evidence from Urdu to English. While the appellant would logically have been aware that Mr L was not a professional or qualified interpreter, his knowledge of English and experience with the language would, we are satisfied, have been considered by her to be significantly more comprehensive than her own. As such she had no basis to know whether she was receiving valid or invalid interpretations/translations, nor that her own story had been either accurately, or inaccurately, translated from Urdu into English. Our assessment from his evidence to us is that Mr L acted with the best of intentions and that the unfortunate predicament that resulted appears to have come about partly through a lack of funding and inability to use professional interpreters. We are satisfied that an unintentional misunderstanding arose at the office of Mr T on 8 August 2006 and based on the same reasoning, almost certainly in the earlier appointments and interviews that took place and led to the Appellant’s “ 14 page statement” of July 2006.

63. The Appellant and Mr L were consistent in their understanding that Mr T wished to withdraw from the appeal. Their understanding of that was because Mr T considered Mr H, who also attended, was indeed the husband of the appellant, rather than another friend who had come for support. The evidence of Mr L was that he had explained the form of authority to the appellant as constituting a withdrawal from the appeal by Mr T, rather than explaining to her what was actually stated in the form of authority. We are satisfied that Mr L did not do this with any intention to mislead either the appellant or Mr T, but through clear lack of experience, knowledge of the law, and a lack of formal training in English language. His English ability appears to be experiential only, and while it is no doubt proficient in the area of his profession, that profession is not one that is related to the niceties of the law, let alone immigration or asylum law and procedure.

64. In this situation therefore, based upon those factual findings, we conclude that the form of authority dated 8 August 2006 was wrongly translated to her and that she did not intend to withdraw her appeal but merely to note Mr T was withdrawing his representation of her. Thus it was an invalid withdrawal which we find to have no effect in law and should be thus treated as a nullity.

65. We should state however, that in reaching our conclusions this decision should not in any way be seen as an adverse reflection on Mr T or his firm. This was a case where an informal, unqualified interpreter was used, no doubt to save costs. The unfortunate result has been failure to achieve a “meeting of the minds”. It was totally understandable that Mr T would have reached the conclusion that the appellant had agreed to withdraw her appeal, whilst, at the same time, the Appellant, and the informal interpreter, reached a conclusion that Mr T was withdrawing his representation. In point of fact Mr T, in his mind, was with the best of his known understanding, both withdrawing the appellant’s appeal and thus effectively also withdrawing his own representation.

66. We therefore direct that as this appeal is extant and now proceeding, it should do so firstly at a case management review hearing, at which time all the relevant issues outstanding can be identified. Given our findings on the unreliability of Mr L’s interpretation, the Appellant is directed to file and serve a further statement of the evidence in chief she seeks to rely upon in accordance with standard directions.

Signed Date 1st February 2007

Senior Immigration Judge Mackey