Upper Tribunal Immigration and Asylum Chamber

[2025] UKUT 00351 (IAC)

Fecha: 09-Jun-2025

Withdrawal of a concession

The Law

The issues-based approach and overlap with withdrawal of a refusal decision

33.

Before turning to the authorities which touch upon the principles to be applied when a judge is asked to permit a concession to be withdrawn, it is important to consider the procedural sea change which has recently unfolded in this jurisdiction.

34.

In Lata (FtT: principal controversial issues) [2023] UKUT 00163 (IAC), a Presidential panel emphasised the fundamental importance of the parties’ engagement in a process to define and narrow the issues in dispute. The substantive hearing was treated as an important juncture by which time the parties should have a clear understanding of their respective cases and the principal controversial issues to be resolved by the tribunal. It was made clear that judges are not expected to trawl through the papers to interrogate the positions adopted by the parties, the implication being that the parties in this specialist jurisdiction are to be trusted to know what their cases are and to be aware of the relevant legal principles. An exception to this general approach would be where a judge has overlooked a Robinson-obvious point of law. The final paragraph of the headnote reads: “A party that fails to identify an issue before the First-tier Tribunal is unlikely to have a good ground of appeal before the Upper Tribunal”. The observations made at [31] and [34] are particularly germane to the facts of the present matter:

[31] The Secretary of State's ground of appeal evidences a misconception that it is sufficient for a party to be silent upon, or not make an express concession as to, an issue for a burden to then be placed upon a judge to consider all potential issues that may favourably arise, even if not expressly relied upon. In simple terms, this amounts to a judge being required to search for and consider an 'obvious' point, though not so obvious that it was raised by a party at the hearing. The reformed appeal process that now operates in the FtT has been established to ensure that a judge is not required to trawl through the papers in an appeal to identify what issues are to be addressed. The task of the judge is to deal with the issues that the parties have identified. It is trite that the hearing before the FtT is not a lap in the warm-up for a subsequent appeal in which the party's case can be differently articulated. Parties are expected to advance their cases to their best advantage, permitting a judge to decide between two competing sets of submissions that identify the full extent of the parties' positions.

[…]

[34] We consider that there exists a duty upon the parties to identify relevant issues of their own motion. There is no place for hiding a jewel of a submission in the hope that it will purchase favour on appeal. A party that fails to identify an issue before the FtT that it subsequently asserts to have been essential for a judge to consider is unlikely to have a good ground of appeal before UTIAC. None of this is to say that a FtT judge is to entirely lack curiosity in relation to an aspect of a case that the judge requires further assistance with or which the judge considers should be examined as part of the evaluation of the case. Where, as here, a point has not been identified by the parties, and nor is it one which has independently drawn the attention of the judge, it is not an issue which can be appropriately raised for the first time in the context of an appeal to UTIAC.

35.

In a further Presidential panel, observations to much the same effect were made in TC (PS compliance - "issues-based" reasoning) Zimbabwe [2023]UKUT 00164 (IAC) where it was emphasised that the procedural machinery of Practice Statement No 1 of 2022 was designed to promote focussed attention on the genuinely disputed issues so as to produce proportionately efficient proceedings.

36.

On the day, the judge heard this appeal in the First-tier Tribunal, the Senior President of Tribunal’s Practice Direction of the Immigration and Asylum Chamber of the First-tier Tribunal was published. It begins with a reassertion of the principles decided in Lata and TC and provides as follows, at [1.3]:

[1.3] The disputed issues represent the parameters, or scope, of the appeal and will operate as the foundation and structure for all judicial decisions. Subject to ‘Robinson obvious’ matters and the need for extra care when litigants in person are involved in proceedings, judges should not be expected to infer issues which have not been clearly identified and articulated by the parties. The Tribunal will not tolerate a rolling consideration of issues and will not permit the issues to evolve at will for procedural advantage.

37.

These principles are of particular importance at the substantive hearing of an appeal. A Judge at a substantive hearing can legitimately expect the parties to have a full understanding of their respective legal and factual cases at this stage of a process in which the issues to be determined should have been undergoing a process of crystallisation throughout. Paragraph 11.4 says this about this critical juncture in the process:

[11.3] The outset of the substantive hearing is the final opportunity to refine and further narrow the disputed issues or agree issues or matters that are in dispute. Once settled, the disputed issues define the scope of the appeal hearing and confine the territory to be explored in the evidence, submissions and decision.

38.

In circumstances where a wholesale concession results in the appeal succeeding, the tribunal is entitled to place its trust in the respondent that it has fully considered the facts and relevant legal principles before taking a step which results in the disposal of the appeal. There must be a good reason to permit the respondent to resile from a settled position on the merits of an appeal and to choose not to contest it. A judge confronted with such a concession is not required to investigate the basis on which such a position has been adopted and can generally have confidence that the specialist professionals who are appearing on behalf of the Secretary of State have acted with due diligence and taken a well-informed view of the facts and applicable law. This coheres with the issues-based approach and the concomitant duties of the parties as reflected in the recent procedural sea-change in this jurisdiction.