Upper Tribunal Immigration and Asylum Chamber

[2025] UKUT 00351 (IAC)

Fecha: 09-Jun-2025

Appeal to the Upper Tribunal

Appeal to the Upper Tribunal

The respondent applied for permission to challenge the lawfulness of the decision on a single ground of appeal, namely, that the judge had misapplied the requirements of the EU Settlement Scheme when seen against the reported decisions of the European Court of Justice and the Court of Appeal. It was argued that the judge did not explain how the appellant met the requirement to have had a derivative right to reside at 11pm on the specified date, 31 December 2020, nor for the required continuous qualifying period. A foundation of this argument was that the appellant had a different form of leave to remain with the grants made under Appendix FM in 2016 and 2019. For these reasons, it was suggested that the judge was wrong to have acted on the respondent’s concession at the hearing.

On 27 February 2025, Upper Tribunal Judge Blundell granted permission for the grounds to be argued. The following observations were made in granting permission:

The Secretary of State’s grounds of appeal raise an important and arguable point of law. In circumstances in which it was expressly conceded by the Presenting Officer that the Immigration Rules were met, it might be thought (as it was by Judge Saffer in refusing permission at first instance) that the judge cannot have erred in law, or that the respondent cannot be heard to assert such an error. Here, however, the respondent submits that the judge was required to consider the correctness of the concession by reference to the plain requirements of the Immigration Rules. The respondent submits that any such consideration on the part of the judge would have established that the concession was improperly made because the appellant held leave under Appendix FM between 2016 and 2022 and was not a person with a Zambrano right to reside at the time of the UK’s withdrawal from the EU.

Whilst proceedings before the IAC are undoubtedly adversarial (see, for example, Hima v SSHD [2024] EWCA Civ 680, there is support for the contention that a judge is not bound to accept a concession on a question of law: Bahamas International Trust Co Ltd v Threadgold [1974] 1 WLR 1514, HL. Whether the concession in this case falls into that category, and whether the respondent should be entitled to withdraw it on appeal (as to which AK (Sierra Leone) v SSHD [2016] EWCA Civ 999; [2017] Imm AR 319 is evidently pertinent) are matters which must now be considered by the Upper Tribunal.

10.

At the error of law hearing, we expressed our concern that both parties had served their written arguments late and in breach of directions. The lateness of these written submissions did not assist us in our timely preparation for the hearing. We heard detailed and helpful oral submissions from Mr Tan and Mr Holmes for which we extend our gratitude. We address any submissions of significance in the discussion section below.