[2025] UKUT 00351 (IAC)

MH (Appendix EU; withdrawal of concession) Albania

Heard at Manchester Civil Justice Centre

THE IMMIGRATION ACTS

Promulgated on 21 August 2025

Before

UPPER TRIBUNAL JUDGE LODATO

UPPER TRIBUNAL JUDGE O’BRIEN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

MH

(ANONYMITY ORDER MADE)

Respondent

Representation:

For the Appellant: Mr Tan, Senior Presenting Officer

For the Respondent: Mr Holmes, counsel instructed by My UK Visas

1. In the definition of “person with a derivative right to reside” in Appendix EU of the Immigration Rules, category (a) does not exclude those who had another form of leave to remain. Instead, it is a factor relevant to the assessment of the compulsion test of whether “the EEA citizen would in practice be unable to remain in the UK if the person in fact left the UK for an indefinite period”.

2. EU11 and EU14 of Appendix EU expressly state that the eligibility conditions must be met at the date of application and in an application made by the required date. This directs the decision-maker to a state of affairs as it existed at particular points of time in the past. However, it is open to a judge, when reaching an evaluative judgement of the facts, to consider subsequent developments which might illuminate whether the compulsion test was satisfied at the relevant time.

3. The following (non-exhaustive) matters are to be considered when an application is made to withdraw a concession:

I. 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.

II. 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.

III. 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.

IV. 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.

V. 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 but bad faith is likely to prove fatal to any application.

VI. 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.

VII. 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.

VIII. 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.

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the respondent, MH, and any member of her family, are granted anonymity.

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

DECISION AND REASONS