Tribunal decisions

The decision

Upper Tribunal IA/ 27072/2011
(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Heard at: Manchester
Notice sent
Date heard: 22 August 2013
23 August 2013

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Before

UPPER TRIBUNAL JUDGE DAWSON
UPPER TRIBUNAL JUDGE O'CONNOR

Between

ABDURRAZAGH BANDAGU
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation
For the Appellant: in person
For the Respondent: Mr McVeety senior presenting officer
NOTICE OF WITHDRAWAL AND
REASONS FOR THE TRIBUNAL GIVING CONSENT
1. The appellant is a national of Libya born 10 March 1958. He made an appeal to the First-tier Tribunal against the Secretary of State's decision of the 8 September 2011 refusing to revoke a deportation order made 21 November 2005 made after his conviction for grievous bodily harm on 10 October 2002 for which he was sentenced to 6 years imprisonment.
2. The appellant's appeal to the Asylum and Immigration Tribunal against the deportation order was dismissed on the human rights grounds that had been relied on in a determination dated 14 July 2005.
3. His appeal on asylum and human rights grounds against the further decision refusing to revoke that deportation order was dismissed by the First-tier Tribunal for reasons given in a determination dated 12 January 2012.
4. At a hearing in the Upper Tribunal on 14 May 2013 following the grant of permission to appeal on 1 February 2012, the Secretary of State accepted that there had been error of law in that determination of the FtT which had been challenged as to its findings on Art 8 grounds.
5. The matter then came before us on the 22 August 2013 in order for the decision to be remade. By that stage the appellant was unrepresented however he was accompanied by his wife and three children all of whom intended to give evidence along with two other witnesses.
6. The statement prepared by the appellant to stand as his evidence at the hearing included reference to his name having been put on an Interpol list by the Libyan Authorities in 2006 and this was still posted. Prior to the hearing we had checked this aspect and noted an entry on the Interpol website of a person with the appellant's details and photograph with the indication that he was wanted on charges of importing drugs.
7. Although aware of the Interpol entry, Mr McVeety was unaware that it was going to be an issue in the remaking of the decision. This was understandable in the light of a previous concession by the appellant's advisers on Art 3. We reminded him however of an operational guidance note issued by the then UKBA on 7 September 2012 which had relevance to the issue of the warrant.
8. Although the appellant had not been believed as to the basis of his asylum claim it is incontrovertible that there is an arrest warrant pending which brought into focus paragraph 3.9.11 of the above guidance indicating that where applicants can demonstrate a real risk of imprisonment on return to Libya a grant of Humanitarian Protection is likely to appropriate. There would need to be consideration whether the appellant should be excluded from such protection because of his conduct but also whether in any event removal would amount to Art 3 breach. A further issue that needed to be addressed is whether in the light of the proposal to remove the appellant's family to Thailand, the appellant himself may be removed to this destination although that too would involve consideration of the Thai Authorities extraditing him to Libya.
9. After taking instructions at senior level, Mr McVeety withdrew the decision refusing to revoke the deportation order so that the application for revocation remains pending although the underlying deportation order remains in force. We were satisfied that the appellant understand the effect of this decision and he was content to withdraw his appeal.
10. A party requires permission to withdraw its case before the Upper Tribunal; see rule 17(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 ['2008 Rules']. When considering whether to grant such permission regard must be had to the overriding objective set out in rule 2 of the 2008 Rules. The Secretary of State does not require the permission of the Upper Tribunal to withdraw a decision she has made, even if such decision is the subject of the appeal before the Tribunal. However, whilst an appeal to the First-tier Tribunal is treated as having been withdrawn if the decision it challenges is withdrawn (rule 17(2) of the Asylum and Immigration Tribunal (Procedure) Rules 2005), an appeal before the Upper Tribunal is not so treated. It is for this reason that we gave permission to the appellant to withdraw his case in the Upper Tribunal.
11. This is a Notice pursuant to rule 17(5) of the 2008 Rules to inform the parties that the appellant's case is withdrawn. The effect of the appellant's 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.

Signed:

Upper Tribunal Judge Dawson
Date: 22 August 2013