Mohamed Al-Anizy, R (on the application of) v The Secretary of State for the Home Department [2017] UKUT 197 (IAC)
[2]The Applicant do have leave to withdraw the above-numbered claim for judicial review.” This draft was not, of course, binding on the Tribunal. There are two fundamental reasons for this. First, in judicial review proceedings it is not open to the parties to dictate the outcome. Rather, the twofold question of whether a remedy should be granted and, if so, in what terms, lies within the discretion of the court or tribunal. Second, the withdrawal of any case before the Upper Tribunal requires the approval of the Tribunal, per Rule 17 of the Tribunals (Upper Tribunal) Rules of Procedure 2008, while Rule 39 designates the Tribunal the arbiter of every proposed consent order. Thus the Tribunal has the duty of adjudicating on the issues of withdrawal and the terms of any withdrawal. BY CONSENT, it is ordered that:- (29). In the event, taking into account the factor of consent, the clear theme of expedition in the parties’ agreed draft order and the possibility that certain evidence having a bearing on the content might not be before the Tribunal, I was persuaded, marginally, to approve this draft. However, what I have said at [27] above conveys a clear message to the Secretary of State and will be of significance in certain future eventualities, including the issue of further proceedings. Should this family find themselves driven to the latter course, the Tribunal will process their case with a high degree of expedition (weeks, not months) and will exercise its discretion in the matters of remedy and costs appropriately. Order (30). The Order of the Tribunal encompasses the following elements:(a) See the passage in quotation marks at [28] above.(b) The Secretary of State will pay the Applicant’s reasonable costs, to be assessed in default of agreement.(c) There shall be detailed assessment of the Applicant’s costs to reflect his publicly funded status in accordance with the Civil Legal Aid (Costs) Regulations 2013.(d) Liberty to apply.(e) Permission to appeal to the Court of Appeal is refused. THE HON. MR JUSTICE MCCLOSKEY PRESIDENT OF THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER 25 April 2017
Cited in 1 later judgment