[2025] UKUT 00351 (IAC)

When we consider the legal principles discussed above, we are left in no doubt that there are not good reasons to permit the respondent to withdraw the concession made at the hearing which resulted in the appeal being summarily allowed. The developments which preceded the hearing were relevant to the assessment of whether the compulsion test was met. This was the central analytical exercise which fell to be undertaken. The only reasonable inference to be drawn from the events which unfolded at the hearing was that a view was taken by the Home Office Presenting Officer of the intensely fact-specific and nuanced evaluative assessment of the compulsion test once possessed of further information which necessarily informed whether the EU National child would be compelled to leave the UK with his primary carer. This cannot be regarded as a hasty or ill-informed decision. It was taken after multiple case management reviews where the legal principles were fully ventilated and came after discussion on the day with a Senior Caseworker.

There was nothing to support the broad submissions made in the context of the error of law proceedings that the concession was founded on a misinterpretation of the applicable Immigration Rules. The procedural obligations on a party seeking to withdraw a concession are such that we are bound to observe that there has been no attempt to provide evidence as to what underpinned the concession. It would be an inferential leap too far to conclude that the concession flowed from a misunderstanding of the Immigration Rules and the applicable legal principles. Mr Tan adjusted the respondent’s position on what had previously been set out in the grounds to be a hard-edged error of law at the heart of the concession. Instead, Mr Tan recognised that the previous grants of leave to the appellant did not function, without more, to exclude her from the legal status she sought. Instead, these grants were merely one facet of a multi-faceted factual analysis going to the broader compulsion test analysis. This was not a case where the law demanded only one answer. In short, the concession was one of fact, rather than one of law (let alone an incorrect concession as to the law). The post-specified date developments of the serious criminal allegation against AJ illuminated whether the child would be compelled to leave if the appellant had been required to do so. The circumstances at the substantive hearing tend to indicate that a dynamic view was taken of the overall evidential landscape.

We are satisfied that there would be significant prejudice to the appellant if the respondent were permitted to withdraw the concession and, consequently, to set aside the decision to allow the appeal. This was a concession which effectively disposed of the entire appeal following a clear position adopted by a party to these adversarial proceedings at a substantive hearing. The concession related to a factual evaluation, not a hard-edged point of law. There is no wider public interest in permitting the respondent to resile from the clear and settled position they adopted at the critical juncture of the substantive hearing of the appeal.

We are satisfied that it would be wholly wrong to permit the respondent to resile from the concession which was made at the substantive hearing, and which effectively brought the proceedings to an end. It inexorably follows that the decision of the First-tier Tribunal did not involve an error of law.