Upper Tribunal Immigration and Asylum Chamber

[2025] UKUT 00351 (IAC)

Fecha: 09-Jun-2025

The caselaw on concessions

39.

Senior tribunals and courts have, on a number of occasions, considered the principles which fall to be applied when a party seeks to withdraw a concession which had been previously made in the proceedings. Below, we seek to draw out the key substantive and procedural themes which have emerged from those decisions and arrive at our own conclusions about the non-exhaustive factors which should be considered when a tribunal judge is faced with such an application.

40.

In Carcabuk & Bla v SSHD 00/TH/01426, the Immigration Appeal Tribunal (Collins J and Judge Ockelton) heard two appeals together with a view to providing authoritative guidance (see [2]) as to the approach which should be adopted when the respondent to an appeal has tacitly or expressly conceded that an appellant was credible about important factual matters. The implications for procedural fairness were stark where an appellant chose not to give oral evidence in reliance on such a concession. For present purposes, important observations were made about the principles at stake, at [11] and [12(4) & (6)] (other observations were made in relation to the procedure to be adopted in such a situation which we will come to later):

[11] It is in our judgment important to identify the precise nature of any so-called concession. If it is of fact (for example that a particular document is genuine or that an event described by the appellant or a witness did occur), the adjudicator should not go behind it. Accordingly, if facts are agreed, the adjudicator should accept whatever is agreed. Equally, if a concession is clearly made by a HOPO that an appellant is telling the truth either generally or on specific matters, the adjudicator may raise with the HOPO his doubts whether the concession is appropriate but, if it is maintained, he should accept it. But there is all the difference in the world between a concession and a failure to challenge. The former will bind the adjudicator, the latter will not. Furthermore, any concession can be withdrawn so that, for example, the case before the Tribunal can be presented in a different way to that before the adjudicator. It is open to a HOPO to withdraw a concession made before an adjudicator before the hearing is concluded, but the appellant must be given a proper opportunity to deal with the new case against him and unless there is good reason for the withdrawal such as the discovery of fresh material we doubt that the adjudicator should permit any adjournment which such withdrawal would be likely to necessitate. […]

[…]

[12(4)] A HOPO may make any concession before an adjudicator. If he does, the adjudicator may ask him to reconsider it if he believes it may be wrong to make it. But the adjudicator must always bear in mind that the appellant may have prepared his case on the basis of the concession and so must ensure, if he persuades the HOPO that he should not make it, that the appellant is not prejudiced. In reality, HOPOs should not make concessions unless sure that they should be making them.

[…]

[12(6)] A concession can be withdrawn but, if a HOPO seeks to do this, the adjudicator must be satisfied that the appellant will not be prejudiced if the hearing continues and should only allow an adjournment if persuaded that there was good reason to have made and to withdraw the concession.

41.

A senior panel of the Immigration Appeal Tribunal returned to this subject in SSHD v Opacic 01TH00850 where it had been effectively conceded in the tribunal below that all of the elements which tended to establish the necessary requirements for international protection were made out in the two unrelated appeals. The respondent sought to withdraw those concessions in reliance on Carcabuk. At [22], the applications to withdraw the concessions were refused for the following principled reasons:

[22] […] Both Carcabuk & Bla, as we have noted above, concerned concessions about credibility. We see a clear distinction between concessions about matters that form part of the issues before an Adjudicator, such as credibility, questions whether or not a person has been tortured, whether they have been arrested and similar such issues, as being significantly different from a situation where all the elements which entitle an appellant to succeed have been conceded. Mr Gulvin, in our view quite rightly, accepted that the same concession had been made in the appeals before us as in Pantic, and that this amounted to a concession of the appeal in its entirety. There is never any obligation upon the Secretary of State to concede all or any part of an appeal. The point is made at sub paragraph 4 on page 6 of Carcabuk & Bla that the Presenting Officer should not make concessions unless sure that they should be making them. Any concession only of course relates to the particular case in issue, and clearly Mr Wilkie was doing no more in Eantin than conceding that particular appeal. Equally Mrs Heard in the appeals before us was conceding the appeals in both of those cases. Where an appeal has been conceded in its entirety, as in these cases, we do not consider that such a concession can be withdrawn, and we see nothing in Carcabuk & BIa that leads us to any contrary view. It is not in our view a matter that can be cured by a subsequent giving of notice to an appellant that the concession is withdrawn. In our view the effect of a concession where the factual and legal basis of the appeal have been conceded is such as to preclude the Home Office from going back on that concession and seeking to re-open the issues.

42.

Next, the Court of Appeal considered the relevant principles in SSHD v Davoodipanah [2004] EWCA Civ 106. In these proceedings, the respondent conceded at first instance that the international protection appeal ought to succeed if the appellant were found to be credible about the key parts of her narrative. Drawing on Carcabuk, Kennedy LJ said this at [22]:

[22] It is clear from the authorities that where a concession has been made before an adjudicator by either party the Immigration Appeal Tribunal can allow the concession to be withdrawn if it considers that there is good reason in all the circumstances to take that course. […] Obviously if there will be prejudice to one of the parties if the withdrawal is allowed that will be relevant and matters such as the nature of the concession and the timing may also be relevant, but it is not essential to demonstrate prejudice before an application to withdraw a concession can be refused. What the tribunal must do is to try to obtain a fair and just result. In the absence of prejudice, if a Presenting Officer has made a concession which appears in retrospect to be a concession which he or she should not have made, then probably justice will require that the Secretary of State be allowed to withdraw that concession before the Immigration Appeal Tribunal. But, as I have said, everything depends on the circumstances, and each case must be considered on its own merits.

43.

The analysis of Kennedy LJ in Davoodipanah was the platform used by Goldring LJ to expand upon the principles to be considered in NR (Jamaica) v SSHD [2009] EWCA Civ 856, a case in which there has been a series of shifting and contingent concessions made about discrete issues in a protection appeal. At [12] of his judgment, the following matters were held to be of importance in the assessment of whether a concession should be allowed to be withdrawn:

[12] As Kennedy LJ makes clear, the Tribunal may in its discretion permit a concession to be withdrawn if in its view there is good reason in all the circumstances for that course to be taken. Its discretion is wide. Its exercise will depend on the particular circumstances of the case before it. Prejudice to the applicant is a significant feature. So is its absence. Its absence does not however mean that an application to withdraw a concession will invariably be granted. Bad faith will almost certainly be fatal to an application to withdraw a concession. In the final analysis, what is important is that as a result of the exercise of its discretion the Tribunal is enabled to decide the real areas of dispute on their merits so as to reach a result which is just both to the appellant and the Secretary of State.

44.

Much like NR (Jamaica), in CD (Jamaica) v SSHD [2010] EWCA Civ 768, the Court of Appeal considered whether the respondent should have been permitted to withdraw concessions, against the backdrop of several shifts of position, made in the context of a protection appeal brought by a foreign criminal convicted of attempted murder. While the respondent was criticised for its conduct of the proceedings, it was found that an application to withdraw a concession should have succeeded on the facts. Moses LJ referred, at [27]-[28], to the restraint which must be exercised before a decision is taken to reverse a decision of a specialist tribunal not to permit a concession to be withdrawn, even if the senior court might have reached a different view on the application. A decision to refuse to allow a concession to be withdrawn could only succeed if found to be irrational in a public law sense. Moses LJ found the decision to refuse to allow concessions to be withdrawn to be irrational for the reasons he gave at [30]:

[30] Secondly, in my judgment it erred as a matter of law, and not merely as a matter of weight, in failing to have regard to the consequences of refusing the withdrawal of the concession. The consequence would be that, contrary to AB, no consideration would be made as to risk on return or the reasonableness of internal relocation. On the contrary, a man convicted of a very serious crime, where he had been convicted of shooting a man with intent to kill, would be permitted to remain in this country contrary to the clear statutory presumption raised in Section 3 (5) of the Immigration Act 1971. Nowhere in the decision of the tribunal does it seem to me that those consequences are properly identified and weighed. Of course, as I have mentioned, the tribunal did refer to the consequences at paragraph 10 and again at paragraph 14, but what they did not, in my judgment, reflect in their decision was the failure to consider the consequence. The real issues in the case raise the question of protecting the public interest in this country which ex hypothesi would not be protected were this man to remain in this country. That might be inevitable were he to be at risk of a breach of his rights enshrined in Article 2 and Article 3, but in reaching that conclusion it was incumbent upon the tribunal to acknowledge that real public interest.

45.

A number of the authorities discussed above were summarised by Jackson LJ in AK (Sierra Leone) v SSHD [2016] EWCA Civ 999. In his survey of the decided cases, he particularly emphasised the observations of Elias LJ in Koori v SSHD [2016] EWCA Civ 552 where he said this at [31] of that judgment:

[31] I would accept that if there had been a considered and lawful decision to deem the seven year rule to be satisfied, the Secretary of State should not be allowed to resile from that decision. An administrative body cannot keep revisiting decisions which affect individual rights: there must be finality, at least unless there is a powerful public interest to the contrary.

46.

Jackson LJ went on to refuse to entertain the respondent’s continuing efforts to resile from a concession that all three limbs of the statutory private life exception of s.117C(4) of the 2002 Act. In doing so, he said this at [48]-[49]:

[48] It follows that the concessions made by the Home Office Presenting Officer were such as to determine the entire appeal. The First-tier Tribunal Judge, as he was entitled to do, accepted those concessions. That was the end of the case.

[49] I do not need to go so far as to say that in such circumstances the Secretary of State could never appeal to the Upper Tribunal, but on the facts of this particular appeal, it seems to me quite unjust that the Secretary of State, having conceded on all points, should be entitled to resurrect her case and withdraw the concessions which she had made. As Mr Fortt rightly concedes, the Upper Tribunal gave no good reason for allowing the Secretary of State to take that course.

47.

In AM (Iran) v SSHD [2018] EWCA Civ 2706, Simon LJ found, at [57(5)], that a First-tier Tribunal Judge ought to have inquired as to the foundation for a concession going to the objective risk of persecution on return to Iran which appeared to be out of step with binding country guidance.

48.

The authorities indicate that there is likely to be wider scope to permit a concession to be withdrawn if the concession was productive of an error of law. In a different legal context, the House of Lords in Bahamas International v Threadgold 1 WLR 1514 held (at 1525G):

In a case which turns, as this one does, upon the construction to be given to a written document, a court called upon to construe the document in the absence of any claim for rectification cannot be bound by any concession made by any of the parties as to what its language means. This is so even in the court before which the concession is made; a fortiori in the court to which an appeal from the judgment of that court is brought. The reason is that the construction of a written document is a question of law. It is for the judge to decide for himself what the law is, not to accept it from any or even all of the parties to the suit; having so decided it is his duty to apply it to the facts of the cases. He would be acting contrary to his judicial oath if he were to determine the case by applying what the parties conceived to be the law, if in his own opinion it was erroneous.

49.

The Supreme Court applied this principle in a contracts appeal: Armstead v Royal & Sun Alliance Insurance Co Ltd [2025] AC 406. At [46] of their judgment, Lord Leggatt and Lord Burrows JJSC held: “[i]t would be inappropriate to decide this appeal in reliance on a concession that we did not think was legally correct”.

50.

Returning to the immigration and protection jurisdiction, the Court of Appeal in Rauf v SSHD [2019] EWCA Civ 1276 reached a similar conclusion about what might be termed a hard-edged matter of interpretation of the relevant part of the Immigration Rules. In a matter which related to the period in which an individual could seek to find a fresh educational institution to pursue his studies, Sir Ernest Ryder, Senior President, did not consider the court to be bound by a concession for the following reason, at [29]:

[29]Putting to one side any more sophisticated examination of the law, Mr Turner could not have got past first post in any complaint that a concession which was simply an erroneous reading of the Immigration Rules which is mandatory and a proper reflection of the legislation has any prospect of not being withdrawn in the circumstance where there was no prejudice. There was no prejudice on the facts of this case because, on his own case, the best Mr Rauf could have achieved was 60 days grace and he had already had 7 months of the same.

51.

A point to similar effect was made by Richards LJ in SU (Pakistan) v SSHD [2017] 4 WLR 175, an appeal which involved a challenge to a deportation decision. At [65], he said this:

[65] It was the UT itself that raised the eﬀect of paragraph 391 with the Secretary of State’s representative. Its decision at para 17 records that the representative conceded, in the light of paragraph 391, that he could not argue that continuation of the deportation order was the proper course, with the result (as it appeared to the UT) that the appeal against the refusal to revoke the deportation order should succeed under the Rules. A concession apparently made on an inapplicable paragraph raised for the ﬁrst time by the tribunal itself cannot restrict the right to appeal on grounds that the relevant provisions and principles had been ignored or misapplied, […].

52.

A common thread can be discerned from a number of authorities in the immigration and protection jurisdiction where the Secretary of State has succeeded in departing from a concession which went to an objective assessment of risk. Good reasons to permit a withdrawal of a concession were found to exist in AM (Iran), Davoodipanah and NR (Jamaica). In all of these proceedings, concessions had been made in relation to the question of objective risk on return, some of which were in tension with binding country guidance on this important issue. The position was expressed in the following way at [18] of NR (Jamaica):

[18] In my view the Tribunal was clearly entitled to permit the withdrawal of the concession. In the light of the objective evidence which existed at the time of the first hearing, it is questionable whether the concession should have been made in the first place. The first Tribunal plainly had doubts about its appropriateness in the light of the cases. The present Tribunal was entitled to consider that it was in the interests of justice for it to assess the nature of any risk to the appellant in Jamaica.

53.

In addition to the high-level principles discussed above, a party seeking to withdraw a concession bears the burden of establishing that there is a good reason to allow them to do so and the applying party is expected to act in a procedurally fair way. At [44] of the judgment in AM (Iran), Simon LJ made these observations about the importance of a fair process:

[44] In my view the Secretary of State’s application to withdraw the concession made before the UT cannot easily rely on principles of justice and fairness, particularly when it is sought to do so in a belated and informal way. One would expect those who seek to withdraw a concession to explain both promptly and frankly why the concession was made, why it was mistaken and why it is now just and fair that they be allowed to withdraw it. […]

54.

Similar points were made as long ago as the decision in Carcabuk where the tribunal stressed the importance of any concessions being expressed in the clearest of terms ([12(1)]) and the need for any application to withdraw a concession to be made in good time to allow for any consequential steps to be taken ([12(3) & (7)]):

[12(3)] If the HOPO wishes to withdraw any concession made: in a refusal letter or explanatory statement, he must inform the appellant or his advisory as soon as possible and it will be for the adjudicator to decide if an application for an adjournment to enable the new case to be met is made, whether to grant it. If he does not, the concession will stand.

[…]

[12(7)] If a concession made before an adjudicator is to be withdrawn before the Tribunal, the Home Office must notify the appellant in good time. Adjournments will not be granted to allow for such withdrawals without good reason.

As to the latter point, much the same was said at [13] of CD (Jamaica).