Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos: UI-2024-004631
UI-2024-004632
UI-2024-004633
UI-2024-004634

First-tier Tribunal Nos: PA/66913/2023
PA/66915/2023
PA/66919/2023
PA/66921/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 12 March 2025

Before

THE PRESIDENT, MR JUSTICE DOVE
UPPER TRIBUNAL JUDGE RUDDICK

Between

SM
CM
AM
MM
(ANONYMITY DIRECTION MADE)
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms V. Easty, instructed by Wilson Solicitors
For the Respondent: Ms. A. Everett, Senior Home Office Presenting Officer

Heard at Field House on 20 January 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellants are granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellants, likely to lead members of the public to identify them. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The appellants appeal with permission against the decision of First-tier Tribunal Judge Nightingale (“the Judge”), dated 27 August 2024, to treat their appeals against the respondent’s refusal of their protection claims as withdrawn in accordance with Rule 17(2) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (“the First-tier Tribunal Procedural Rules”).
2. On 23 October 2024, Upper Tribunal Judge Gleeson made an anonymity order in this matter on the grounds that the second, third and fourth appellants are minors and because this is an international protection appeal.
3. The appellants are accepted to be of Kurdish ethnicity. The first appellant says that he was born in Iran in 1986 and lived there until 2002 or 2003, when he moved with his parents to Iraqi Kurdistan. He says that he was born to Iraqi parents and has always held only Iraqi nationality. The respondent has declined to make a finding as to the first appellant’s nationality but has considered his protection claim as if it were accepted that he is a citizen of Iraq.
4. The second, third and fourth appellants are his sons from his first marriage to HN, a Kurdish citizen of Iraq. They were born in January 2011, December 2013 and September 2016. The eldest was born in Iraqi Kurdistan and the younger two were born in Denmark, where their parents were pursuing protection and human rights claims. The parents divorced in 2017.
5. On 14 May 2022, the first appellant married an Iranian Kurdish woman whom he had met in the UK. She was granted refugee status on 8 February 2024, as was the couple’s daughter, who was born in the UK in 2023.
The first appellant’s travel history
6. We begin with the first appellant’s travel history, which ultimately led the respondent to withdraw her decision refusing all four appellants’ protection claims.
7. The first appellant and HN fled Iraq in March 2011 and claimed asylum in Denmark in October of that year. They made several protection and human rights claims, but in 2017 the last of them was refused. In the same year, the first appellant and his first wife divorced.
8. In July 2020, the first appellant left Denmark, while the children remained behind in their mother’s custody. He arrived in the UK on 12 July 2020 after travelling by small boat and informed the respondent that he wished to claim asylum. The respondent conducted an “Initial Contact and Asylum Registration Questionnaire” (commonly called a “screening interview”) at Yarl’s Wood IRC on 15 July 2020, and the claim was given the port reference number SP/5346005. A chronology submitted by his representatives says that the respondent certified the claim on third country grounds on 23 October 2020 before agreeing on 14 January 2021 to consider it in the UK.
9. The first appellant says that in 2021, his ex-wife contacted him and told him that she had remarried and asked him to take custody of their children. On 16 November or 16 December 2021 (both dates appear in the papers before us), he travelled by lorry to Germany to meet her and collect the children. He then returned to the UK with the children, again travelling by small boat.
10. He and the children have remained in the UK since that time.
11. On 27 December 2021, the respondent conducted a second screening interview with the appellant at the Kent Intake Unit. The claim was given a port reference number reflecting the location where it had been registered, beginning “KIU”. The interview record includes an extensive discussion of the first appellant’s travel history up until that point, including that he had entered the UK in July 2020 but then travelled to Germany on 16 November 2021 to collect his children. There were 11 separate questions on this subject in the travel history section of the questionnaire. He also mentioned in answer to a separate question that he had last seen his ex-wife 7-8 days prior to the interview, in Germany. When he was asked, “It appears that you may have had the opportunity to claim asylum one or more times on your way to the UK. Why didn’t you?”, the interview record shows that he answered, “I did claim in the UK.”
12. On 20 September 2022, the appellant completed a detailed witness statement with the assistance of his solicitors. There is no record of precisely when this was submitted to the respondent, but it was prior to his substantive interview, at which the respondent referred to it. This contained a section entitled “Bringing children to UK”, in which the first appellant stated, inter alia, “I left the UK on 16 December 2021 to go to Germany to meet [HN] and bring my children to the UK […] I stayed in Germany for one day and then travelled to France and then by boat to the UK with my children.”
13. In June 2023, the appellant was asked to complete an online “Asylum Continuation Questionnaire” (“ACQ”), and on 28 September 2023, his substantive interview took place. The record of that interview carries the KIU port reference number for the 2021 claim. On neither occasion was he asked any further questions about his travel history. In representations dated 11 October 2023, however, the appellants’ solicitors sent a letter of representations to the respondent that began, confusingly, with the statement, “Our client is a Kurdish Iraqi national. He arrived in the UK on 12 July 2020 and claimed asylum on arrival” and later added, “Our client travelled to the UK in 2020 and his 3 sons joined him here in December 2021.”
The appellants’ asylum claims
14. The respondent was not asked for the basis of his claim when he arrived in July 2020, but in December 2021 he said that he was a Christian and also that he was at risk because of a “tribal problem” with his ex-wife’s paternal uncle, who had wanted her to marry one of his relatives. He set out further details of his protection claim in his 20 September 2022 statement and his June 2023 ACQ, and at his substantive interview. He has maintained that he is at risk of serious harm from his first wife’s tribe, because they married against her family’s wishes, that his children are at risk because they would be considered illegitimate, and that they all would also be at risk as Christians. He further said that, more recently, his ex-wife had travelled back to Iraq and made complaints against him to the police.
15. The second, third and fourth appellants entered the UK with the first appellant in December 2021, and they were registered as dependants on his asylum claim. In accordance with the “Family Asylum Claims” process adopted by the respondent following the decision of the Supreme Court in G v G [2021] UKSC 9, the respondent has repeatedly asked the first appellant if they had any protection needs distinct from his own. The record of his December 2021 screening interview shows that he answered:
“They would be killed by my ex-wife’s paternal uncle because he would kill them as he would say they are illegitimate. Also I am a Christian.”
Subsequently, in his June 2023 questionnaire and at his substantive interview, the first appellant confirmed that the risk his children faced in Iraq was the same as the risk he faced.
Identity documents
16. The first appellant said in his September 2022 statement and at his substantive interview that he had an Iraqi birth certificate and identity card, but they were with the Danish authorities. He also said in his September 2022 statement that his eldest son (the second appellant) had never had an Iraqi birth certificate, because he and his first wife were in hiding from her family when he was born. In his June 2023 questionnaire, he added that none of his children had ever had Iraqi identity documents. The representations of 11 October 2023 also noted that none of the appellants had passports and that the children “have no Iraqi identification and have never had any.” The children’s “lack of any identity documents” was said to create a real risk of treatment in breach of Article 3 ECHR.

The refusal decision
17. On 30 November 2023, the appellants’ asylum claims were refused in a single decision letter, bearing the KIU port reference number from 2021. This began, “Your protection claim (asylum application) made on 27th December 2021 under the Family Asylum Claim process has been refused.” Although it referred to the screening interview of December 2021 and the witness statement of September 2022, it did not discuss the first appellant’s departure from the UK in late 2021.
18. The respondent accepted the first appellant’s account of having eloped with HN and having been threatened with violence by her family but found that he would not be at risk on return for this reason, because of both the lapse of time and his gender. State protection and internal relocation would also be available. She rejected his claim to have converted to Christianity on credibility grounds. She further found that the first appellant’s mother or uncle could meet him on return to Iraq and assist him in obtaining replacement identity documents.
19. There were three references to the children. The respondent rejected the first appellant’s claim that they would be at risk of harm because they were illegitimate, citing a law that criminalised “the extreme harming of children”. She then found that they did not meet the residency requirements necessary for their father to qualify for leave to remain as a parent under Appendix FM. Finally, she noted the first appellant’s claim that one of the children had a speech problem and suffered from mental stress but found that this did not meet the threshold for an Article 3 claim set out in AM (Article 3, health cases) Zimbabwe [2022] UKUT 131 (IAC) and that “appropriate medical treatment” would be available. There was no comment on the children’s ability to obtain Iraqi identity documents.
The appellants’ appeal
20. The appellants appealed. The respondent’s Appeal PF1 form, dated 30 November 2023 but clearly generated after the appellants gave notice to appeal on 20 December 2023, bore the 2021 KIU reference number. It set out the first appellant’s “Immigration History” as follows:
“Exited Iraq in March 2011
Passed through: Turkey, Italy, Denmark (claimed and refused asylum), Germany, France
First arrived in UK on 12th July 2020 via small boat
Exited UK briefly to retrieve dependants on 16th November 2021, by lorry
Dependants were brought to the UK by the claimant
Claimed asylum on 12th July 2020
Asylum refused on 30th November 2023”
21. The respondent’s bundle contained both the December 2021 screening interview and the September 2022 statement, which, as noted above, discussed the first appellant’s travel history at length.
22. The appellants uploaded their skeleton argument on 19 April 2024 and a 195-page appeal bundle the following day. Only two aspects of those submissions and that evidence are relevant here. The first is that that the appellant’s arrival in the UK in July 2020 and his departure and return in late 2021 were detailed in a Chronology and referred to in the first paragraph of the skeleton argument and in the first appellant’s appeal statement. The appellant’s bundle also included the record of his 15 July 2020 screening interview.
23. Secondly, the skeleton argument, the first appellant’s appeal statement and the expert report of Dr Alison Pargeter all asserted that if the appellants returned to Iraq, the children would be in a more difficult position than their father because they had never had Iraqi identity documents. There were particular difficulties, outlined by Dr Pargeter in detail, arising out of the fact that the neither the parents’ marriage nor their divorce nor the second appellant’s birth in Iraq had been registered and none of the children had been issued with Iraqi birth certificates.
24. The respondent was directed to file a Respondent’s Review by 28 May 2024, and was reminded of these directions on 1 June 2024. On 10 July 2024, the respondent wrote to the First-tier Tribunal in the following terms:
“This matter has been reviewed ahead of the scheduled hearing. […]
“In the light of the review, it has been concluded the decision to refuse is no longer appropriate and the immigration decision is therefore withdrawn.
“This is because the Appellant has declared within his bundle that he entered the UK on 12 July 2020 and claimed asylum on arrival. He then exited the UK on 16 November 2021 and collected his dependent sons, before returning by small boat.
“As the Tribunal is no doubt aware that the Appellant by exiting the UK has abandoned his claim for Asylum. Had we been aware of this matter we would have taken action prior to now. As the Appellant abandoned his asylum application, by leaving the UK, this decision has now been withdrawn and therefore this case should not proceed further. We would ask that you take action based on the information provided today.
“It is requested HMCTS accepts the decision as withdrawn and vacates the appeal hearing.”
25. On the following day, the respondent wrote to the first appellant informing him that “Your asylum application, made on 27 December 2021, has been withdrawn.” The respondent wrote:
“Your application was initially refused on 30 November 20203, however, during the pre-appeal process, it has come to light that you left the UK after lodging your asylum claim on 27 December 2021, therefore the decision to refuse your asylum application is considered defective. Consequently, your decision has been withdrawn under Paragraph 333C of the Immigration Rules, which states that anyone who has left the UK prior to the conclusion of their asylum application may have their application withdrawal [sic].
“If your claim included dependants and they have not made an asylum claim in their own right their claim as a dependant of you has also been considered to have been withdrawn.”
26. Also on 11 July 2024, the Tribunal issued a “Notice of Abandonment”, purporting to be under section 104 (4A) of the Nationality, Immigration and Asylum Act 2002 (“the NIAA 2002”). This provides that an appeal “brought by a person while he is in the United Kingdom shall be treated as abandoned if the appellant is granted leave to enter or remain in the United Kingdom.”
27. There was further correspondence between the parties and between the parties and the Tribunal, during which the respondent reconsidered and maintained her decision to withdraw the refusal decision, and the appellant made submissions to the Tribunal about why there was good reason not to treat the appeals as withdrawn. The appeals were then listed for a Case Management Review Hearing on 20 August 2024 and on 27 August 2024, following that hearing, the Judge decided to treat the appeals as withdrawn.
The Judge’s decision
28. The Judge began her consideration at [6] by setting out the text of Rule 17(2) and directing herself to ZEI and Others (Decision withdrawn – FtT Rule 17 – considerations) Palestine [2017] UKUT 00292 (IAC), which she described as including “a non-exhaustive list of good reasons for which an appeal should continue despite the decision being withdrawn.” She noted that the guidance in ZEI had been approved in Maleci (Non-admission of late evidence) [2024] UKUT 00028 (IAC), before setting out the legal position in the following terms:
“The respondent does not require the permission of the First-tier Tribunal to withdraw her decision and there is no requirement for a “good reason” to be given for withdrawal. If a reason is given, then the First-tier Tribunal “must” treat the decision as withdrawn. The question is whether the appeals should be regarded as withdrawn and whether there is a good reason for the appeal to be considered notwithstanding the withdrawal of the decision under appeal.”
29. At [8]-[14], the Judge set out the representatives’ submissions, and at [15]-[21], she gave her reasons for treating the appeals as withdrawn. These were:
(i) The Tribunal’s jurisdiction was limited, and it must treat the decision as withdrawn “if the respondent specifies the reasons for withdrawal”, even if those reasons were factually or legally unsound. She then added that “It was made clear in ZEI and in Maleci that the reasons for the withdrawal of the respondent’s decision are largely irrelevant to any decision for an appeal to continue irrespective of withdrawal.” [15].
(ii) Although the list of factors set out in ZEI was not exhaustive, it did provide guidance. One factor in the list was whether the appellants’ appeal rights would be substantially less in any subsequent appeal. She considered that this would not occur on the facts of these appeals, because although the appellants would have to go through the fresh claim procedure, it was “not clear that any new decision made would […] have reduced rights of appeal.” If it did, moreover, the appellants would have the option of bringing a challenge by way of judicial review, which “was the correct forum for challenges of this nature” [16].
(iii) The respondent’s delay both in deciding the claim and engaging with the appeal was “unfortunate”, but it was “not out of the ordinary” or “unusual” at present. Nor was it “undue”, “[i]n view of the nature of the issues raised, substantively, in this claim” [17].
(iv) Any finding that further delay would have an adverse impact on the children would be speculative. She began by reminding herself that the first appellant “Left the United Kingdom in order to collect these three children to bring them into the United Kingdom to become dependent upon his claim. A decision was clearly taken within this family to separate these three children from their younger sister and the first appellant’s wife; both of whom were left behind.” (This was a mistake; the wife and sister were in the UK, living in the same hotel). There was no evidence of the impact of this separation on the children or of anything in their current situation that was “averse” to their welfare. They were being cared for by their father, were housed (the Judge had recorded at [10] their counsel’s reliance on the fact that they were living together in a single hotel room) and were in education [18].
(v) The Judge noted that the respondent’s withdrawal decision had been taken “very late” in the proceedings and was both in breach of published policy and based on a “mistaken premise”. However, the respondent had been directed to reconsider that decision and she had maintained it. It was up to the appellants to decide whether to challenge it [19]. The clear implication is that the Judge considered the lateness, lawfulness or rationality of the respondent’s decision to be relevant only to a challenge to the decision itself (which it was accepted was outside her jurisdiction) and not relevant to whether there was good reason for the appeals to continue.
(vi) Finally, the Judge declined to treat the children’s appeals any differently from their father’s. The respondent had treated all four claims as a single “family claim”, because they all arose out of the same factual matrix and, as a result, all four claims had been treated as withdrawn. Although the reason for withdrawing the decision may not, in fact, have applied to the children, she had “no jurisdiction to prevent the withdrawal of the respondent’s decision providing a reason is given. That reason does not need to be a good reason.” [20].
The grounds of appeal
30. On 20 September 2024, the appellants applied to the First-tier Tribunal for the Judge’s decision to be set aside under Rule 32 of the First-tier Tribunal Procedural Rules. Resident Judge Froom refused that application on 23 September 2024.
31. Also on 20 September 2024, the appellants applied for permission to appeal to the Upper Tribunal. The appellants appealed on three grounds:
(i) “Failure to consider the impact of a fresh claim on future appeal rights.” The Judge should have considered whether the appellants would be entirely deprived of their appeal rights, because they would not be entitled to a right of appeal under para. 353 of the Immigration Rules unless they provided new material that was significantly different from their original claim or the respondent concluded that the claims should not have been treated as withdrawn.
(ii) “Failure to consider the minor Appellants[‘] claims correctly.” There were material differences between the first appellant’s claim and the children’s claims, namely that the children had never had any Iraqi identity documents. The particular impact this would have on them had been raised in a country expert report, in the first appellant’s appeal statement, and in pre-decision representations. Their appeals could therefore stand independently of their father’s, and the Judge had erred by treating them identically. The grounds also raised a separate argument related to the Article 8 aspects of the children’s claims, but Ms Easty abandoned that argument at the outset of the hearing before us and we say no more about it.
(iii) “Undue delay”. In considering whether there had been undue delay by the respondent, the Judge had erred by considering the wrong period. The undue delay was not with regard to the respondent’s decision-making or the appeal process as a whole. The undue delay was between the date the respondent first became aware that the first appellant had left the UK, which was 27 December 2021 at the latest, and her decision of 10 July 2024 to treat his asylum claim as withdrawn. This was not only a period of 2.5 years, but it also included the entire asylum and appeal process, up to the Respondent’s Review. Moreover, the Judge should have considered that the respondent had given no reason for this delay.
32. In a decision dated 2 October 2024, First-tier Tribunal Judge Dixon granted the appellants permission to appeal on all grounds.
The hearing
33. At the hearing before us, we had a composite bundle of 396 pages, prepared by the appellants. There was no Rule 24 response from the respondent, and there were no skeleton arguments.
34. At the outset of the hearing, Ms Easty informed us that on 11 September 2024, the appellants had sent a Pre-Action Protocol letter to the respondent challenging the lawfulness of the withdrawal decision. On 25 September 2024, the respondent had replied, saying that she would reconsider the matter and make a new decision within three months, i.e. by 25 December 2024. No new decision had yet been made. Ms Everett informed us in turn that her understanding was that the respondent had not yet accepted that the withdrawal decision had been erroneous. She asked for an adjournment because she had no instructions about how this pending reconsideration affected the respondent’s position in this appeal. Ms Easty opposed the adjournment request, pointing out that even if the respondent did conclude that she had been wrong to withdraw the refusal decision, the First-tier Tribunal’s decision to treat the appeals as withdrawn would still stand.
35. We rose to consider the matter, and we decided to proceed. We were ready to decide the question of whether the Judge had erred in deciding to treat the appeals as withdrawn, regardless of whether the respondent ultimately reversed her decision to withdraw the refusal decision.
36. We then heard able submissions from both representatives, which we have taken into account in making our decision, and which we will refer to where appropriate in our discussion below.
The Legal Framework: Rule 17(2) of the First-tier Tribunal Procedure Rules
37. Rule 17 of the First-tier Tribunal Procedure Rules provides as follows:
“17.—(1) A party may give notice of the withdrawal of their appeal—
(a) by providing to the Tribunal a written notice of withdrawal of the appeal; or
(b) orally at a hearing,
and in either case must specify the reasons for that withdrawal.
“(2) 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.
“(3) The Tribunal must notify each party in writing that a withdrawal has taken effect under this rule and that the proceedings are no longer regarded by the Tribunal as pending.”
38. Because Rule 17(2) requires the Tribunal to treat the appeal as withdrawn in the absence of a “good reason” not to do so, it has been described as creating a “partial discretion”. Maleci at [56]. By contrast, Rule 17(2) of Tribunal Procedure (Upper Tribunal) Rules 2008 (“the Upper Tribunal Procedure Rules”) contains no such limitation on the Tribunal’s discretion, providing instead that:

“(2) Notice of withdrawal will not take effect unless the Upper Tribunal consents to the withdrawal except in relation to an application for permission to appeal.”
39. Nonetheless, the First-tier Tribunal’s discretion remains a broad one. Indeed, in ZEI at [13], the Upper Tribunal accepted that the guidance governing the application of Rule 17(2) in the Upper Tribunal set out in SM (withdrawal of appealed decision: effect) Pakistan [2014] UKUT 00064 (IAC) was “likely to be applicable” in the First-tier Tribunal as well.
The Tribunal’s limited jurisdiction to act as a “new decision-maker”
40. The appropriate exercise of the Tribunal’s powers under Rule 17 requires consideration of the extent of the Tribunal’s jurisdiction: what power does the Tribunal have to determine an immigration, asylum or human rights matter, and when is it appropriate to exercise that power in the absence of an extant decision by the respondent?
41. Section 86 of the NIAA 2002 requires the Tribunal to determine any matter raised as a ground of appeal or, with reference to Section 85(2), in an appellant’s section 120 statement. As recently reaffirmed by the Supreme Court in CAO v Secretary of State for the Home Department (Northern Ireland) [2024] UKSC 32:
38. This means that an appeal to the FTT is a full appeal in which the FTT is itself required to determine the merits of any such claim as made by the person appealing, on the basis of evidence adduced in the FTT itself and having regard to the circumstances applicable at the time of the hearing in the FTT […]. This is a jurisdiction which is different from judicial review or an appeal confined to an error of law, where the object is to check whether the original decision-maker has made an error of law in arriving at its decision on the basis of the evidence available to it and having regard to the circumstances applicable at the time of the original decision.
39. Since on an appeal the FTT looks at matters afresh on the basis of new evidence and makes its own decision it acts as an extension of the immigration decision-making process in human rights cases […] The important point is that it acts as a new decision-maker and takes responsibility for its own determination regarding the breach or otherwise of rights under the 1951 Refugee Convention, the applicability of humanitarian protection and of lawfulness under section 6 of the HRA. Section 6(1) provides that "[i]t is unlawful for a public authority to act in a way which is incompatible with a Convention right". This duty applies both to the Secretary of State and to the FTT itself, which is included in the definition of public authority for the purposes of that provision: section 6(3)(a). Accordingly, when the FTT makes its own determination it is obliged to ensure that its determination complies with, among other things, the Convention rights of an appellant.
42. As long as the Tribunal is considering a matter within its jurisdiction, therefore, it must determine it, and in doing so, it can act as “a new decision-maker”. “Thus, whilst the original decision is relevant, the FTT exercises its own independent jurisdiction and is not a reviewing court”: see CAO at [46]. In a human rights appeal, the Tribunal is “the new primary decision-maker.” [48] This strongly points against any presumption, in general, that the Tribunal should not determine an appeal in the absence of an extant decision by the respondent. To the extent that previous guidance regarding the continuation of an appeal relied on respect for the principle that the respondent should normally be the primary decision-maker (SM at [50], citing R (on the application of Chichvarkin) v Secretary of State for the Home Department [2010] EWHC 1858 [35]), this guidance must now be viewed with some caution, at least in protection and human rights appeals. It may continue with more force in appeals that do not implicate the Tribunal’s obligations under section 6 of the HRA, such as those challenging decisions made under the EUSS, but that is not an issue we need to reach in this decision.
43. Nonetheless, Section 85(6) of the NIAA 2002 precludes the Tribunal from considering a “new matter” without the respondent’s consent, although whether something constitutes a “new matter” is for the Tribunal to determine. Mahmud (S85 NIAA 2002 – “new matters”) [2017] UKUT 488 (IAC).
The best interests of children
44. Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the respondent to discharge her immigration functions having regard to the need to safeguard and promote the welfare of children in the UK. It does not apply to the Tribunal’s exercise of its functions. Nonetheless, the Tribunal is required to treat the best interests of children as a primary consideration by article 8 and section 6 of the HRA: see CAO at [63-64]. At least where there is a link between a child’s article 8 rights and the continuation of an appeal – for example, where there is evidence that treating the appeal as withdrawn may delay the reunification of a child with a family member – this will need to be taken into account as a primary consideration when deciding whether there is good reason to continue.
The ending of appeals
45. Because Rule 17(2) deals with the issue of when the Tribunal should treat an appeal as withdrawn, the statutory framework set out at section 104 of the NIAA 2022 is also relevant, as reflected in the Upper Tribunal’s detailed consideration of this framework in SM at [29]-[34], [70].
46. Section 104 provides as follows:
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 purpose of subsection (1)(b) while—
(a) an application for permission to appeal under section 11 or 13 of the Tribunals, Courts and Enforcement Act 2007 could be made or is awaiting determination,
(b) permission to appeal under either of those sections has been granted and the appeal is awaiting determination, or
(c) an appeal has been remitted under section 12 or 14 of that Act and is awaiting determination.
(4A) An appeal under section 82(1) brought by a person while he is in the United Kingdom shall be treated as abandoned if the appellant is granted leave to enter or remain in the United Kingdom (subject to subsection (4B)).
(4B) Subsection (4A) shall not apply to an appeal in so far as it is brought on [a ground specified in section 84(1)(a) or (b) or 84(3) (asylum or humanitarian protection)] where the appellant—
(b) gives notice, in accordance with Tribunal Procedure Rules, that he wishes to pursue the appeal in so far as it is brought on that ground.
47. As noted in SM at [29], “Section 104 is plainly intended by the legislature to be a comprehensive statement of the ways in which appeals brought under section 82 may be brought to an end,” and these ways do not include the respondent’s withdrawal of her decision. There is nothing in the statutory framework, therefore, that points towards a presumption that an appeal should be treated as withdrawn for that reason.
The overriding objective
48. In both the First-tier Tribunal and Upper Tribunal Procedure Rules, Rule 2(3) requires the Tribunal to seek to give effect to the overriding objective, both in interpreting the other procedure rules and in exercising the powers conferred by them. The overriding objective must, therefore, be a key consideration in any decision applying Rule 17(2).
49. The overriding objective, as set out at Rule 2, is “to deal with cases fairly and justly”, including by, more specifically,:
(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties and of the Tribunal;
(b) avoiding unnecessary formality and seeking flexibility in the proceedings;
(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;
(d) using any special expertise of the Tribunal effectively; and
(e) avoiding delay, so far as compatible with proper consideration of the issues.
Guidance
50. Having regard to the principles set out above, we reiterate the overarching guidance set out in SM that the decision must be taken by having regard to “all relevant matters” and applying the overriding objective set out at Rule 2: see SM at [Headnote 4]. An appellant is not required to demonstrate “special reasons” for the appeal to continue: see SM at [49] All that is required is a “good” reason, not a compelling or exceptional one: see ZEI at [14].
51. The facts of the appeal before us, however, lead us to conclude that there is a need for further guidance about what may constitute a “good reason”. The Immigration and Asylum Chamber of the First-tier Tribunal has a limited jurisdiction, in which one of the parties to the proceedings is always the same and certain legal, factual and procedural issues regularly recur. This makes it possible to identify matters that are likely, or unlikely, to be relevant to exercising the power conferred by Rule 17(2) consistently with the broad principles outlined above, and so as to further the overriding objective. It is trite, however, that the exercise of any judicial discretion must be based on the facts of the individual case, and as Ms Everett acknowledged at the hearing before us, there is a significant difference between whether a matter is unlikely to be a good reason and whether it is precluded from consideration altogether. We reiterate, therefore, that what follows must not be treated as prescriptive, or as a checklist.
52. As reflected in the discussion below, moreover, “good reason” for an appeal to continue may arise out of a holistic assessment of the interaction of a range of factors in play in the case being considered, rather than because of a single factor, viewed in isolation.
I. The respondent’s reason for withdrawal
53. This was identified as a relevant consideration both in SM at Headnote [4](c) and [61] and in ZEI at [18]. This is not because the Tribunal has the power to prevent the respondent from withdrawing her decision because it disagrees with her reason for doing so; it plainly does not. It is critical to reiterate that the Tribunal is not exercising any jurisdiction over the substance of the respondent’s conclusion that the decision should be withdrawn. The merits of the substance of that decision are not for the Tribunal to determine. However, the nature of the respondent’s reason may be directly relevant to aspects of the overriding objective, including dealing with cases proportionately, using the Tribunal’s expertise effectively, and avoiding delay. It is also likely to be relevant to the assessment of the impact of the withdrawal on the appellant and on the best interests of any relevant children.
54. If the respondent has withdrawn her decision because she has formed the view that it may be wrong in substance and she may need to remake it, this may indicate that it would be a disproportionate use of the resources of the Tribunal or the parties for the appeal to continue. This consideration may need to be balanced, however, against other considerations outlined below, such as the extent and impact of any foreseeable delay.
55. If the respondent has withdrawn the decision so that she can remake it taking into account a “new matter”, this will make it less likely that there is good reason for the appeal to continue, because the Tribunal’s jurisdiction would be limited.
56. By contrast, if the respondent seeks merely to correct a technical defect in the decision – such as the identification of the wrong removal destination at the end of the letter or a reference to the incorrect standard of proof – but there is no indication that the substance of the decision may be different, this may point towards there being good reason for the appeal to continue: see SM at [77] (noting that there was no indication that the respondent had changed her view about the appellant’s entitlement to refugee status). In this scenario, continuing with the appeal will further the overriding objective of avoiding delay.
57. Whether the respondent intends to make a substantively different decision or simply to correct a technical error will also be relevant to whether to take into account evidence of specific obstacles the appellant will face in presenting the appeal a second time, such as the non-availability of witnesses. The less likely that the next appeal will be a rerun of the current appeal, the less relevant such factors will be. As noted in ZEI at [19](g), the Tribunal should not assume that the next decision will be not only be a refusal, but also for the same reasons, requiring the presence of the same witnesses.
II. The timing of the withdrawal
58. The fact that the refusal decision has been withdrawn very late in the day may weigh in favour of there being good reason for the appeal to continue. Here, furthering the overriding objective of dealing with the appeal proportionately requires taking into account the resources that the Tribunal and the parties have already devoted to addressing and considering the underlying issues, especially where the issues are likely to remain the same in any future appeal.
III. The issues before the Tribunal
59. The fact that the respondent intends to remake the decision in substance does not, however, necessarily mean that there is no good reason for the appeal to continue. The issues in the appeal may be ones that the Tribunal has the expertise to determine for itself, and the Tribunal may already have before it the evidence necessary to do so, either because the appeal turns on a question of law (see ZEI at [19](e)) or the because the respondent has already concluded her fact-finding process (see SM at [52], which recognises the relevance of whether the respondent has already conducted a full asylum interview), or because any new evidence (such as a clear change in country conditions or personal circumstances) is not in dispute.
60. Even where further fact-finding is required, the Tribunal may be in a position to conclude that fact-finding for itself, as the new primary decision-maker: see CAO at [46]-[48]. In a departure from ZEI at [19](f), we do not consider that the possibility that a Presenting Officer will decline to participate any further in the hearing if the appeal goes ahead should be allowed to weigh against continuing. In the first place, although this does occur in practice as reflected in Maleci at [19], it would not be in accordance with the respondent’s published policy.1 Secondly, we are confident that this would not be a routine occurrence, as the respondent will be aware of her duties to assist the Tribunal and to respect its decisions, unless and until they are challenged by way of an appropriate application to the Upper Tribunal. Finally, even if a Presenting Officer did refuse to participate in the appeal, the Tribunal is accustomed to determining appeals without the assistance of a Presenting Officer, and has in place long-established guidance about how to do so fairly and justly. MNM v Secretary of State for the Home Department [2000] UKIAT 00005
61. The position may be different, however, where the Tribunal has a more limited jurisdiction, most obviously in appeals against deprivation of citizenship status. See: Chaudhry v Secretary of State for the Home Department [2025] EWCA Civ 16. Where the appeal turns on issues with regard to which the Tribunal’s task is to review the respondent’s decision on public law grounds, this will be an academic exercise if the decision is no longer extant. Following the decision of the Court of Appeal in Chaudhry, however, this will not necessarily be the case in all deprivation appeals.
62. There is no principled difference here between cases in which the respondent withdraws with the intention of granting leave and cases where she withdraws with the intention of refusing it. The question is whether the Tribunal is in a position to fairly and justly “bring matters to an end”. SM at [61].
IV. Whether the respondent’s reason is flawed
63. Rule 17(2) does not require the respondent to give a good reason for withdrawing her decision, but it does require her to give a reason. The fact that the Tribunal has no jurisdiction to prevent the withdrawal does not mean that the Tribunal cannot make findings about whether the reason given is a good one for the purposes of exercising its jurisdiction under Rule 17(2). The Tribunal routinely makes findings about issues that it does not have the jurisdiction to determine, such as whether a person has been a victim of modern slavery (MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9 [11]), whether they meet the requirements for a grant of leave under the Immigration Rules (OA and Others (human rights; 'new matter'; s.120) Nigeria [2019] UKUT 00065 (IAC) [27]), or whether the respondent’s proposed interference with their Article 8 rights is unlawful (Charles (human rights appeal: scope) [2018] UKUT 00089 (IAC) [59]). What matters is whether the findings on those issues are relevant to an issue the Tribunal does have the jurisdiction to determine, such as, in the examples above, whether a person is a refugee or their removal would violate Article 4 ECHR, or the weight to be given to the public interest in their removal from the UK.
64. If the Tribunal concludes that the respondent’s reason is irrational or otherwise unlawful, this is capable of being relevant to its determination of the issue that it does have the jurisdiction to determine, namely, whether there is good reason for the appeal to continue. This will be particularly likely to be the case if the error is obvious. This is because the foreseeable outcome of such a flawed withdrawal is that it will eventually be reversed, but only after further delay and further expense on all sides. There will also be a complex question, as Ms Easty raised in the hearing before us, of what the appellant’s route back into the First-tier Tribunal would then be. Continuing with the appeal in such cases may further the overriding objective by acting flexibly, using the resources of the parties and the Tribunal proportionately, and avoiding delay, rather than waiting for a satellite litigation to run its course.
V. The respondent’s conduct
65. The question of whether the respondent’s reason is flawed must not be confused with whether the respondent’s conduct of the appeal has been reasonable. In recent years, the Tribunal has become increasingly robust in insisting that the parties before it comply with their obligations under Rule 2(4) and with the Procedure Rules more generally. See, for instance, Maleci at [38]-[47]. This does not mean, however, that every Procedure Rule should be directed towards this purpose. The purpose of Rule 17(2) is to allow appeals to continue to be heard, where there is good reason for that to happen. Its purpose is not to punish or discourage poor behaviour by the parties. For that purpose, Rule 9 is likely to be a more appropriate tool. The respondent’s conduct, on its own, is therefore unlikely to be a good reason under Rule 17(2). See ZEI at [19](f).
66. Nonetheless, there is an important distinction between whether something is unlikely to be relevant and whether it is precluded from consideration. In SM, the Upper Tribunal specifically held that bad faith or irrationality on the part of the respondent, although likely to be rare, could be taken into account under Rule 17(2) if it were made out. SM at [63].
VI. Delay
67. Rule 2(2)(e) of the First-tier Tirbunal Procedure Rules identifies avoiding delay as one aspect of the overriding objective. We have touched on it above as potentially weighing in favour of continuing an appeal where there is no indication that the respondent’s future decision will be substantially different.
68. Delay may also be relevant to the question of whether treating the appeal as withdrawn will have an adverse impact on the appellant, which was identified as a relevant consideration in ZEI at [18]. The more significant the delay in the resolution of the appellant’s immigration or nationality status after the decision is sent back to the respondent for remaking or the more adverse the impact of the delay on the appellant, the more this factor will weigh in favour of the continuation of the appeal.
69. This will be a particularly fact-sensitive question, requiring consideration of the claimed vulnerabilities and current circumstances of the appellant and any dependants, and how those would be affected by the decision. Of course, at this stage, the Tribunal will not have made any findings, and some or all of the facts may be in dispute, and the Rule 17(2) decision cannot be turned into a mini-determination of the underlying appeal. It may be necessary to take into account the basis of the appellant’s claim, before being able to determine whether that claim is made out. Any delay involving children or vulnerable adults is inherently more likely to be of concern, and it may also be helpful to consider what the appellant seeks in the appeal. Delay in the case of a child seeking to be reunited with a parent, for example, may be more of concern than delay in regularising the status of a long-term overstayer who is being supported financially by friends and family.
70. What is relevant here is the impact of any further delay. Delay in the respondent’s initial decision-making is only likely to be relevant where it increases the impact of any further delay that may be caused by treating the appeal as withdrawn. The question is whether the appeal should continue, not whether the appellant otherwise has reason to complain about the respondent’s conduct.
71. A second type of delay that may be relevant is the delay in the withdrawal decision itself, between when the underlying reason for withdrawal arose and when the respondent acted upon it. If the decision is withdrawn late in the day, it may be in the interests of the overriding interest of proportionality for the appeal to proceed (see [58] above). Here, too, it is necessary to distinguish between good reasons for the appeal to continue and reasons to be dissatisfied with the respondent’s conduct.
VII. The impact of withdrawal on the appellant
72. Other than delay, an adverse impact on the appellant should not be assumed. The effect of the respondent withdrawing her decision will normally be that a decision remains to be made, and the appellant’s legal position will be preserved. This will be the case for an appellant who was in possession of leave under Section 3C of the 1971 Act, for example, or who is entitled to Asylum Support; para. 27 of the Immigration Rules protects the position of child applicants who turn 18 while an application is pending.
73. The appeal before us is unusual in that the respondent has withdrawn the refusal decision but does not intend to make a new decision. The appellants’ claims will not be treated as if they are still awaiting a decision, and their legal position will not be preserved. The Tribunal cannot prevent the practical consequences of an appellant’s claim being no longer treated as pending – the loss of rights to Asylum Support, for example, or of 3C leave and, with it, a right to work – but those consequences may make the impact of a delay in resolving an appellant’s claim more serious than they otherwise would have been.
74. In SM at [63], the Upper Tribunal expressed the view that there might be good reason for continuing if there had been a significant legal change since the withdrawn decision that would result in the appellant no longer meeting the Immigration Rules. Although since SM, an appeal can no longer be allowed on the basis that the refusal decision was not in accordance with the Rules, the appellant’s ability to meet the rules remains a relevant consideration, as noted above at [63]. The recent increases in the financial thresholds for family life applications, for example, might have a significant impact on the outcome of a future appeal.
75. In ZEI at [19](c) and [20], the Upper Tribunal found that there would be good reason for the appeal to continue if the appellant’s appeal rights against a future refusal would be “substantially less”. In ZEI, the parties and the Tribunal were in agreement that the reductions to rights of appeal made by the Immigration Act 2014 meant that there was good reason for that appeal to continue.
76. Another example of where the appellant’s significantly reduced future appeal rights may weigh in favour of continuing is where, as here, the appellant will be required to make “further submissions”. The refusal of further submissions does not generate a right of appeal to the Tribunal unless the respondent considers that both of the requirements of para. 353 of the Immigration Rules are met: (i) that the further submissions “had not already been considered” and (ii) that “taken together with the previously considered material, [they] created a realistic prospect of success” on appeal.
77. It is not clear to us that the withdrawal of the refusal decision would necessarily mean that any evidence submitted prior to that decision would be treated as not having been “considered”. At the hearing before us, Ms Everett submitted that it was a matter of common sense that it would be, because, having withdrawn the refusal decision it would not be open to the respondent to treat an appellant’s evidence as having been considered at all. Ms Everett’s submission has considerable force as a matter of common sense, but its legal foundation is not as clear. We have not been taken to any authorities about what it means for submissions to have been “considered” for the purposes of para. 353. An appellant’s future right of appeal might therefore fall at the first hurdle.
78. Even if the claim were treated as not having been considered, and the first prong of the test were met, the appellant’s right of appeal to the First-tier Tribunal would still depend on the view of the respondent’s caseworker as to the claim’s prospects of success on appeal. If the caseworker formed the view that the claim did not have a realistic prospect of success and therefore that there was no right of appeal, this could only be challenged by way of an application for judicial review, where the caseworker’s view would prevail unless it were Wednesbury unreasonable.
79. This is a significantly more circumscribed right of appeal than in an initial protection or human rights claim, where the right of appeal is normally automatic. Here, the most common reason for being denied a right of appeal is that the respondent has certified the claim as “clearly unfounded” under section 94 of the NIAA 2002. This is not only a higher threshold for the respondent to reach, but it also involves the respondent taking the facts alleged “at their highest”, which is not the case under para. 353. In any challenge to the certification, moreover, the Upper Tribunal will have the jurisdiction to decide for itself if the claim is bound to fail. See, generally, ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6; R (Yogathas) v Secretary of State for the Home Department [2002] UKHL 36.
Summary
80. Pursuant to Rule 17(2) of the First-tier Tribunal Procedure Rules, when the respondent to an appeal before the First-tier Tribunal notifies the Tribunal and each other party that she has withdrawn the decision (or decisions) to which the appeal relates, she must specify her reasons for having done so. The Tribunal must then treat the decision as withdrawn. The Tribunal has no jurisdiction to prevent the respondent from withdrawing her decision.
81. After the respondent has withdrawn her decision, the Tribunal continues to have the jurisdiction to decide for itself whether the appeal should also be treated as withdrawn, or whether there is “good reason” for it to continue. This is a broad discretion; all that is required is a good reason, not a compelling or exceptional one.
82. In deciding whether there is good reason for an appeal to continue, the Tribunal must take into account all relevant factors in the individual case, and seek to further the overriding objective set out at Rule 2 of the First-tier Tribunal Procedure Rules. The Tribunal should also take into account any other general legal principles that arise in the case, such as, in human rights appeals, the requirements of section 6 of the Human Rights Act 1998 and the best interests of children.
83. A “good reason” for an appeal to continue may arise out of a holistic assessment of the interaction of a range of factors in play in the case being considered, rather than because of a single factor, viewed in isolation.
84. The exercise of any judicial discretion must be based on the facts of the individual case, but the following considerations may be relevant:
(i) The respondent’s reason for withdrawal. If the respondent has withdrawn her decision because she has formed the view that it may be wrong in substance and she may need to remake it, this may indicate that it would be a disproportionate use of the resources of the Tribunal or the parties for the appeal to continue. This may be particularly the case if she intends to take into account a “new matter”. By contrast, if there is no indication that the substance of the decision may be different, this may point towards there being good reason for the appeal to continue. In this scenario, continuing with the appeal will further the overriding objective of avoiding delay.
(ii) The timing of the withdrawal. The fact that the refusal decision has been withdrawn very late in the day may weigh in favour of there being good reason for the appeal to continue. Here, furthering the overriding objective of dealing with the appeal proportionately requires taking into account the resources that the Tribunal and the parties have already devoted to addressing and considering the underlying issues, especially where the issues are likely to remain the same in any future appeal.
(iii) The issues in the appeal. There is more likely to be good reason for an appeal to continue where the issues in the appeal are ones that the Tribunal has the expertise to decide for itself on the evidence before it. There is less likely to be good reason to continue where the appeal turns on issues with regard to which the Tribunal’s task is to review the respondent’s decision on public law grounds.
(iv) Whether the respondent’s reason for withdrawal is legally or factually flawed. If the Tribunal concludes that the respondent’s reason is irrational or otherwise unlawful, the Tribunal cannot prevent the withdrawal of the decision. However, it may take this into account when deciding whether there is good reason for the appeal to continue, particularly where the error is obvious. This is because the foreseeable outcome of such a flawed withdrawal is that it will eventually be reversed, but only after further delay and further expense on all sides.
(v) Delay. The overriding objective of avoiding delay may weigh in favour of allowing an appeal to continue where there is no indication that the respondent’s future decision may be different, and the Tribunal is able to fairly and justly decide the matter on the evidence before it. Other relevant considerations will be whether awaiting a new decision from the respondent will involve a significant delay in resolving the appellant’s status, and what the impact of that delay will be on the appellant.
(vi) The impact of withdrawal on the appellant. Other than delay, other potentially relevant impacts may be a reduction in appeal rights in a future appeal or reduced prospects of success due to specific and identifiable differences in the legal or factual matrix within which any future appeal will be determined.
85. If the Tribunal considers that the respondent has acted unreasonably in withdrawing the decision, an order for costs under Rule 9(2) is likely to be a more appropriate response than continuing the appeal. The respondent’s conduct is not, however, something that can never be taken into account. As noted above, in view of the broad discretion inherent in the term “good reason”, this guidance must not be treated as prescriptive.

Applying these principles to the matter before us
86. We find that the Judge erred in three ways that have been raised in the grounds.
87. First, we find that the Judge’s consideration of whether the appellants’ appeal rights would be reduced involved a misdirection in law. The respondent’s decision to treat the appellants’ protection and human rights claims as withdrawn dictated that any future protection and human rights claims would be considered in the “further submissions” process. The consequence is that their appeal rights would be reduced.
88. Ms Easty submitted that the appellants’ further submissions were unlikely to meet the first part of the test set out at para. 353, because they may have little to add to the evidence they have already submitted. For the reasons set out above, we are not persuaded by Ms Everett’s submission that, having withdrawn her reasons for refusal, the respondent would be required to treat that evidence as not having been considered. The respondent’s guidance is equivocal, saying only that where a previous claim has been treated as withdrawn pursuant to para. 333C, “further submissions may succeed on the first test as the content may not have been considered previously”: see Further submissions, Version 11.0 (17 July 2023), p. 42. Moreover, even if the appellants’ claim were treated as not having been previously considered, they would still need to meet the second part of the test, and for the reasons set out above at [76] to [79], we consider that this would constitute a meaningful reduction in their rights of appeal.
89. Second, we find that the Judge erred in her approach to the children’s appeals. Here, she was clearly constrained by the belief that the rationality or lawfulness of the respondent’s decision was not something she could take into account. For the reasons set out above, this was a misdirection in law.
90. Third, the Judge erred in taking into account only the delay in the respondent’s overall decision-making, rather than the delay in the withdrawal decision. As set out above, that a decision is withdrawn very late in the appeal process is capable of contributing to there being good reason for an appeal to continue, in furtherance of the overriding objection of proportionality.
91. We find that these errors were material, particularly when taken together, because we cannot say that the decision would inevitably have been the same had they not been made.
92. The Judge’s decision to treat the appeals as withdrawn contained a material error of law and is set aside.
Remaking the decision
93. It was agreed at the appeal before us that if we found that the Judge’s decision must be set aside, we should proceed to remake it.
94. We find that there is good reason for the appeals to continue. This is because of the combined effect of the factors we identify below.
95. In the first place, the respondent’s reason for withdrawing her decision is based on obvious errors of both fact and law. There can be no question of the appellant having left the United Kingdom since making the asylum claim that is the subject of this appeal. He made an asylum claim on 12 July 2020, which he implicitly withdrew by leaving the country in November or December 2021. On his return, however, he made a new asylum claim, as reflected in the fact that the respondent conducted a second “Initial contact and asylum registration” interview with him on 27 December 2021 and assigned his claim a new reference number based on where that interview was conducted. It was that claim, with that reference number, that he was interviewed about on 28 September 2023 and that the respondent refused on 30 November 2023, leading to this appeal.
96. The first appellant has done nothing to implicitly or explicitly withdraw that second claim, nor does the respondent now continue to maintain that he has. Paragraph 333C - the rule under which the respondent seeks to treat his claim as withdrawn - simply does not apply on these facts.
97. Even if the respondent had only become aware of the first appellant’s departure from the UK shortly before the appeal hearing, as she claimed in her submissions to the Tribunal on 10 July 2024, the lawful response would not have been to treat the current asylum claim as withdrawn and to decline to make any further decision on it. According to the respondent’s Further submissions guidance, a protection claim made after a person has left the UK and returned cannot simply be disregarded. It must be treated as “further submissions”, which the respondent has a legal obligation to determine. She cannot simply decline to consider the claim, as she intends to do here.
98. Secondly, even if it were open to the respondent to treat the first appellant’s claim as withdrawn, it was irrational for her to treat the children’s claims as automatically withdrawn as a result. The irrationality of treating claims as withdrawn because of an event that occurred before the claims were even made is obvious. Moreover, the respondent has an obligation to consider for herself whether protection claims made by family members are all made on the same basis, taking into account all of the evidence before her and not simply the parents’ opinion on the question. This is clear from the underlying purpose of the Supreme Court’s decision in G v G, which was to ensure that the UK complied with its non-refoulement obligations towards the children of asylum-seekers. It is also confirmed in the respondent’s own guidance.2 In this case, the children have squarely raised a protection need that is distinct from their father’s, namely, the risk of ill-treatment in violation of Article 3 ECHR as a result of their never having had Iraqi identity documents.
99. These legal and factual flaws in the respondent’s reasons for withdrawal are obvious, and the fact that the respondent has already agreed to reconsider her withdrawal decision (albeit without admitting any error) reinforces us in the conclusion that it is unlikely to survive judicial scrutiny. We consider this a good reason for the appeals to continue now. It is in the interest of the overriding objective, in particular because it would mean using the Tribunal’s expertise to determine the issues it is required to determine, in a matter in which it already has before it all of the necessary evidence to do so. To await the outcome of separate public law litigation would be to display undue formalism rather than acting flexibly, and to accept additional, avoidable expenditure of resources on all sides and avoidable delay.
100. We further consider that the delay that would arise if these particular appeals are treated as withdrawn is likely to be considerable. The respondent does not intend to make a new decision, but intends to wait for the appellants to lodge a fresh claim. Without enquiring into the details of the respondent’s current processing times, we consider it likely that the appellants’ protection and human rights claims will be finally determined, one way or another, much sooner by continuing with this appeal.
101. That potential for delay is a good reason for the appeals to continue, when considered together with the current situation of the children of the family. According to the evidence before the First-tier Tribunal, the three child appellants were living together in a single hotel room, while their half-sister was living together with their father and stepmother in the room next door. It is clearly in the children’s best interests for these protection claims to be resolved sooner rather than later, so that the family can begin to build a normal life together, either in the UK or elsewhere.

Notice of Decision
The Judge’s decision of 27 August 2024 is set aside. We substitute our decision not to treat the appeals as withdrawn.
The appeals are remitted to the First-tier Tribunal for a full hearing on all issues, before any judge other than Judge Nightingale.

E. Ruddick

Judge of the Upper Tribunal
Immigration and Asylum Chamber

6 March 2025