[2025] UKUT 00351 (IAC)

The touchstone for considering whether a party should be permitted to withdraw a concession remains the existence of good reasons. This is inseparable from the overall interests of justice and fairness.

The assessment of whether there are good reasons must now be seen through the prism of the recent procedural sea change in this jurisdiction in relation to issues-based reasoning. Tribunal judges depend on, and can legitimately expect, the parties (particularly where a specialist advocate appears on their behalf) to have a firm understanding of their respective factual and legal cases. Consistent with the Senior President of Tribunal’s Practice Direction, that expectation only hardens where a concession is made at a substantive hearing where a professional advocate can be presumed to have fully digested the evidence and to have a working knowledge of the applicable legal principles. A judge may enquire as to the basis on which a concession has been made, but is under no duty to investigate the settled position of a party.

It will generally be more difficult for a party to establish good reason to withdraw a concession which was founded on an evaluative assessment of facts or evidence, for example, a concession that an appellant is a broadly credible witness. An exception to this general approach may be where the concession relates to an objective assessment of risk of persecution or serious harm on return to the country of origin.

An application to withdraw a concession may be more readily found to encompass good reasons if the concession has resulted in a decision which is demonstrably wrong in law. An example may be where a concession has resulted in a manifestly incorrect interpretation of the relevant Immigration Rules.

In the assessment of whether good reasons exist, prejudice to the party who benefitted from the concession is always to be considered. Prejudice will generally harden over time and particularly if an appeal has been wholly decided on the strength of a concession. A concession which effectively disposes of an appeal is an important factor weighing against the existence of good reasons. The withdrawal of such a wholesale concession will often involve significant prejudice to the affected party and the wider interests of justice because it necessarily undermines the principle of finality and legal certainty in final decisions of the tribunal. In adversarial proceedings, the considered position of a party not to contest an appeal weighs heavily. Where there is no prejudice, justice may require a concession to be withdrawn if it should never have been made (Davoodipanah) but bad faith is likely to prove fatal to any application (NR (Jamaica)).

The party seeking to withdraw a concession is under a procedural duty to clearly and expeditiously apply for the tribunal’s permission to do so and must clearly set out their claimed good reasons which will necessarily involve a clear articulation of why the concession was made (supported by evidence if not agreed between the parties), why the concession was wrong and the extent of any prejudice.

If it is decided at a substantive hearing that good reasons exist to permit the withdrawal of a concession, consideration must be given to whether it remains fair to proceed to hear the appeal on the appointed date. In assessing the fairness of proceeding, regard must be had to whether the other party has had sufficient opportunity to meet the case against them as it stands upon the withdrawal of the concession.

Although not an issue arising in this case, in deciding whether a decision involves a material error of law, the Upper Tribunal will not lightly interfere with a decision of the First-tier Tribunal not to permit, or to permit, the withdrawal of a concession. The overall public interest and the implications of a concession being allowed to stand may be relevant to whether a good reason exists (CD (Jamaica))