Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000657

First-tier Tribunal No: EA/50044/2024
LE/03913/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 3 November 2025

Before

UPPER TRIBUNAL JUDGE LODATO
DEPUTY UPPER TRIBUNAL JUDGE GREER

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MD MAHFUZ AHMED
Respondent

Representation:
For the Appellant: Mr Tan, Senior Presenting Officer
For the Respondent: Unrepresented

Heard at Manchester Civil Justice Centre on 7 October 2025

DECISION AND REASONS
Introduction
1. In a decision dated 30 July 2025, a differently constituted panel of the Upper Tribunal allowed the Secretary of State’s appeal against the decision of a judge of the First-tier Tribunal. Upon setting aside the decision as involving a material error of law, it was decided that the underlying decision should be remade in the Upper Tribunal. This remaking decision must be read in conjunction with the error of law decision which sets out in detail the procedural and factual background which led to the decision which is now before us. To that end, the error of law decision is annexed to this decision.
2. To avoid confusion, and for the remainder of this decision, we will refer to the appellant in these appellate proceedings, the Secretary of State for the Home Department, as the respondent and the respondent in the Upper Tribunal, Mr Ahmed, as the appellant, as they were before the First-tier Tribunal.

Appeal to the Upper Tribunal
3. Upon consideration of the error of law decision, it can be seen that there is a narrow factual question to be resolved in remaking the appeal. For the reasons explained in the error of law decision, the appellant’s father-in-law simply does not qualify as a relevant family member who could lawfully underpin a right to enter the UK and join him under Appendix EU (Family Permit). As the appellant’s only conceivably eligible sponsor under the EUSS, his wife, Ms Begum, must have arrived and started living in the UK before 31 December 2020 to even have an arguable basis on which it might be suggested that he could join her as the family member of a relevant EEA citizen.
4. At the remaking hearing, we heard oral evidence from Ms Begum and submissions from her and Mr Tan at the conclusion of the hearing before we reserved our decision.

Discussion
5. The evidence presented at the remaking hearing left no room for doubt as to when Ms Begum arrived in the UK. We admitted a witness statement from her dated 1 October 2025 in which she reverted to the position she had set out in her original sponsorship declaration, namely, that she arrived in the UK in June 2021. This coheres with a letter provided by her father dated 24 July 2023 in which he stated that his daughter arrived in the UK on 19 June 2021. Her arrival in June 2021 is also entirely consistent with her application to remain in the UK with her father where she pointedly stated that she had not arrived before 31 December 2020, and first arrived on 19 June 2021.
6. Ms Begum’s oral evidence was equally clear that she arrived in 2021. She looked puzzled when it was put to her that she had provided a witness statement dated 19 August 2024 in which she stated that she had established her residence in the UK before December 2020. She described a brief visit to the UK in 2017 under a visit visa using a Bangladeshi passport (she subsequently naturalised as an Italian citizen in 2020).
7. We are entirely satisfied that the appellant has not established on the balance of probabilities that his wife began residing in the UK before December 2020. It is abundantly clear that she arrived and started to reside in the UK in June 2021. It follows that she simply did not enjoy the kind of residence status which would enable her to sponsor her husband to join her under the European Union Settlement Scheme. Her father could not lawfully sponsor the application for him to join them under the rules. It follows that the appellant does not meet the requirements to enter the UK under the applicable scheme. The appeal must be dismissed.

Notice of Decision
On remaking the decision, we dismiss the appeal brought under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020.

Paul Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

21 October 2025

Annex – error of law decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000657

First-tier Tribunal No: EA/50044/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE LODATO
UPPER TRIBUNAL JUDGE O’BRIEN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MD MAHFUZ AHMED
Respondent

Representation:
For the Appellant: Mr Tan, Senior Presenting Officer
For the Respondent: Unrepresented

Heard at Manchester Civil Justice Centre on 9 June 2025

DECISION AND REASONS
Introduction
1. The Secretary of State challenges the lawfulness of the First-tier Tribunal’s decision to allow the underlying appeal on the application of the rules which implemented the EU Settlement Scheme. The Secretary of State invites us to set aside a decision which had the effect of conferring a right on the appellant to enter the UK in circumstances where the applicable Immigration Rules simply did not provide such a right.
2. To avoid confusion, and for the remainder of this decision, we will refer to the appellant in these appellate proceedings, the Secretary of State for the Home Department, as the respondent, and the respondent in the Upper Tribunal, Mr Ahmed, as the appellant, as they were before the First-tier Tribunal.
Background
3. The procedural background to the appeal is of some importance. Below, we set out a chronology of the key events:
8 December 2021: the appellant and his wife’s infant child was granted pre-settled status under EU3A of Appendix EU as a joining family member of a relevant sponsor.
22 September 2022: Ms Begum, the appellant’s wife was granted pre-settled status under EU3A of Appendix EU as a joining family member of a relevant sponsor.
24 July 2023: the appellant applied to enter the UK under Appendix EU (Family Permit). He named his wife as his sponsor.
8 December 2023: the respondent sent an email to the appellant’s then-representatives asking for clarification as to who was sponsoring the application because his wife had pre-settled status as a joining family member and thus did not qualify as a relevant EEA citizen.
21 December 2023: the appellant’s then-representatives responded by requesting that the appellant’s father-in-law be treated as the sponsor for the purposes of the application.
2 January 2024: the respondent refused the application. In the refusal decision, the central point taken was that the appellant’s father-in-law was not one of the defined family relationships which could support such an application under the rules. This was decisive and meant that the remaining eligibility and suitability requirements, including dependency, were not considered. Consideration was then given to FP8A of Appendix EU (Family Permit). These provisions were not found to apply.
Appeal to the First-tier Tribunal
4. The appellant appealed against the refusal of the claim. In their skeleton argument, dated 19 August 2024, the legal representatives indicated that the relevant sponsor was the appellant’s wife who had pre-settled status and that she arrived in the UK before 31 December 2020. Her father-in-law was named as an “additional sponsor”. The respondent reviewed her case on 19 September 2024. It is in this document that the putative issue of whether there was a genuine and subsisting relationship between the appellant and his wife was introduced into the proceedings. However, the rationale provided in the reasons for refusal letter was expressly maintained and, at paragraph 11, it was asserted that no further evidence of dependency had been provided, and it remained the position that the requirements of Appendix EU (Family Permit) were not met.
5. The appeal was heard by the judge on 17 October 2024. The matter came before the judge as a ‘float’ – the respondent was represented and appeared by video link. At the outset of the decision, dated 21 October 2024, the judge recorded the sponsor to be the appellant’s wife. The only issue in dispute between the parties was whether the appellant and the sponsor were in a genuine and subsisting relationship. It was further noted that the sponsoring wife had pre-settled status as the daughter of an EEA national with settled status. Paragraph 11 of the respondent’s review was described as no longer being in issue.
6. The judge summarised the evidence of Ms Begum about the relationship she had with her husband; much of this evidence went unchallenged. In setting out the legal framework, the judge did not go beyond the issue of the existence of a genuine and subsisting relationship and the standard of proof. The findings of fact and disposal of the appeal were expressed in the following terms:
FINDINGS
I find that the appellant is entitled to the leave sought under Appendix EU because there is a genuine and subsisting relationship between himself and the sponsor and they have a child together. The Appellant is entitled to succeed under Appendix FM and under FP8A of Appendix EU as an extended Family Member.
Application of the law to the facts
Because I have found on the only identified issue in the appeal that the appellant and his wife have a genuine and subsisting relationship and that this was the case at the time of the application I am satisfied that the appellant meets the requirements for leave under Appendix EU (family permit).
NOTICE OF DECISION
The appeal is allowed.
Appeal to the Upper Tribunal
7. The respondent applied for permission to challenge the lawfulness of the decision on a single ground of appeal, namely, that the judge had misapplied the requirements of the EU Settlement Scheme when seen against a natural reading of the applicable Immigration Rules. It was described as “wholly misconceived” for the appeal to be decided on the factual issue of whether there was a genuine and subsisting relationship between the appellant and his wife.
8. After permission to appeal was refused in the First-tier Tribunal, Upper Tribunal Judge Rintoul granted permission for the grounds to be argued. The following observations were made in granting permission:
It is evident from the refusal letter and the Respondent’s review that the appellant’s eligibility under Appendix EU (FP) was not accepted as the respondent was not satisfied that he is a family member of a relevant EEA Citizen as defined.
In order to qualify under EU FP 6.1, an applicant must be a “family member of a relevant EEA citizen” (FP 6.(1)) which does not appear to include the son-in-law of an EEA citizen.
It is unclear why the respondent no longer contested the issue of eligibility set out in the response at [11] and to which the judge referred at [5]. Given that the issue is a question of law, it is arguable that this is not a matter which could validly have been conceded.
The respondent will, however, need to provide a detailed explanation as to why there was an apparent concession.
9. On 20 May 2025, the appellant’s former representatives notified the tribunal that they were no longer acting. At the error of law hearing, we expressed our concern that the respondent had served their written argument late and in breach of directions. The lateness of these written submissions did not assist us in our timely preparation for the hearing. We heard oral submissions from Mr Tan and Ms Begum on behalf of her husband. An interpreter assisted Ms Begum. We address any submissions of significance in the discussion section below.
Discussion
10. There are two fundamental questions to be addressed in this appeal. The first is whether the family relationships relied upon in support of the underlying appeal were capable in law of conferring the status which was sought under Appendix EU (Family Permit). The answer to this question will have a bearing on the second question: should we permit the respondent to withdraw the concession which was made at the First-tier Tribunal hearing to the effect that the judge need only resolve the single factual question of whether the appellant and his sponsor were in a genuine and subsisting relationship.
The Law
The requirements of Appendix EU (Family Permit)
11. At the hearing, Mr Tan agreed that the version of the Immigration Rules which fell to be considered for this appeal was that which was in force when the application was made, on 24 July 2023. Having reflected further on the position, we are satisfied that the correct version is actually that which was in force when the refusal decision was taken, on 2 January 2024. This accords with the approach taken by the UT panel at [19] of Maisiri (EUSS; Zambrano; 'Realistic Prospect' policy) [2024] UKUT 00235 (IAC). We could discern no material difference between the applicable parts of Appendix EU (Family Permit) in the July 2023 version, which was discussed during the hearing, and the January 2024 version.
12. Where relevant, Appendix EU (Family Permit) provides as follows:
Purpose
FP1. This Appendix sets out the basis on which a person will, if they apply under it, be granted an entry clearance:
(a) In the form of an EU Settlement Scheme Family Permit – to join a relevant EEA citizen or a qualifying British citizen in the UK or to accompany them to the UK; or
(b) In the form of an EU Settlement Scheme Travel Permit – to travel to the UK.
FP2. This Appendix has effect in connection with the granting of entry clearance for the purposes of acquiring leave to enter or remain in the UK by virtue of Appendix EU to these Rules.
Requirements and procedure
FP3. The applicant will be granted an entry clearance under this Appendix, valid for a period of six months from the date of decision, by an entry clearance officer where:
(a) A valid application has been made in accordance with paragraph FP4;
(b) The applicant meets the eligibility requirements in paragraph FP6(1), (2) or (3); and
(c) The application is not to be refused on grounds of suitability in accordance with paragraph FP7.
[…]
FP6. (1) The applicant meets the eligibility requirements for an entry clearance to be granted under this Appendix in the form of an EU Settlement Scheme Family Permit, where the entry clearance officer is satisfied that at the date of application:
(a) The applicant is not a British citizen;
(b) The applicant is a family member of a relevant EEA citizen;
(c) The relevant EEA citizen is resident in the UK or will be travelling to the UK with the applicant within six months of the date of application;
(d) The applicant will be accompanying the relevant EEA citizen to the UK (or joining them in the UK) within six months of the date of application; and
(e) The applicant (“A”) is not the spouse, civil partner or durable partner of a relevant EEA citizen (“B”) where a spouse, civil partner or durable partner of A or B has been granted an entry clearance under this Appendix, immediately before or since the specified date held a valid document in that capacity issued under the EEA Regulations or has been granted leave to enter or remain in the UK in that capacity under or outside the Immigration Rules.
[…]
13. A “family member of a relevant EEA citizen” does not include the son-in-law of a relevant EEA citizen and is otherwise defined in the following terms, where relevant:
a person who has satisfied the entry clearance officer, including by the required evidence of family relationship, that they are:
(a) the spouse or civil partner of a relevant EEA citizen, and:
(i)(aa) the marriage was contracted or the civil partnership was formed before the specified date; or
(bb) the applicant was the durable partner of the relevant EEA citizen before the specified date (the definition of ‘durable partner’ in this table being met before that date rather than at the date of application) and the partnership remained durable at the specified date; and
(ii) the marriage or civil partnership continues to exist at the date of application; or
[…]
14. A “relevant EEA citizen (where the date of application under this Appendix is on or after 1 July 2021)” is defined in the following way, where relevant:
(a) an EEA citizen (in accordance with sub-paragraph (a) of that entry in this table) who:
(i) has been granted indefinite leave to enter or remain or limited leave to enter or remain under (as the case may be) paragraph EU2 or EU3 of Appendix EU to these Rules (or under its equivalent in the Islands), which has not lapsed or been cancelled, curtailed, revoked or invalidated and which is evidenced by the Home Office reference number for that grant of leave (or by the equivalent evidence in the Islands); or
(ii) at the date of decision on the application under this Appendix, the entry clearance officer is satisfied from the information available to them has been granted indefinite leave to enter or remain or limited leave to enter or remain under (as the case may be) paragraph EU2 or EU3 of Appendix EU to these Rules, which has not lapsed or been cancelled, curtailed, revoked or invalidated; or
[…]
(iv) the applicant satisfies the entry clearance officer by relevant information and evidence provided with the application (including their valid passport or valid national identity card as an EEA citizen, which is the original document and not a copy) meets sub -paragraph (a)(i) of the definition of ‘relevant EEA citizen (where, in respect of the application under consideration, the date of application by the relevant EEA citizen or their family member is on or after 1 July 2021)’ in Annex 1 to Appendix EU to these Rules, such that the applicant is a ‘family member of a relevant EEA citizen’ (as defined in Annex 1 to Appendix EU); or
15. The reference in (iv), copied above, to the Annex 1 of Appendix EU relates to sub paragraph (a)(i) of the following definition of “relevant EEA citizen (where, in respect of the application under consideration, the date of application by the relevant EEA citizen or their family member is on or after 1 July 2021)” in that set of rules:
(a) (i) an EEA citizen (in accordance with sub-paragraph (a) of that entry in this table) resident in the UK and Islands for a continuous qualifying period which began before the specified date; and
(ii) where the applicant is their family member, the EEA citizen, having been resident in the UK and Islands as described in sub-paragraph (a)(i) above, has been granted:
(aa) indefinite leave to enter or remain under paragraph EU2 of this Appendix (or under its equivalent in the Islands), which has not lapsed or been cancelled, revoked or invalidated; or
(bb) limited leave to enter or remain under paragraph EU3 of this Appendix (or under its equivalent in the Islands), which has not lapsed or been cancelled, curtailed or invalidated; or
(b) (i) an EEA citizen (in accordance with sub-paragraph (a) of that entry in this table) resident in the UK and Islands for a continuous qualifying period which began before the specified date; and
(ii) where the applicant is their family member, the EEA citizen, having been resident in the UK and Islands as described in sub-paragraph (b)(i) above, would, if they had made a valid application under this Appendix before 1 July 2021, have been granted:
(aa) indefinite leave to enter or remain under paragraph EU2 of this Appendix, which would not have lapsed or been cancelled, revoked or invalidated before the date of application; or
(bb) limited leave to enter or remain under paragraph EU3 of this Appendix, which would not have lapsed or been cancelled, curtailed or invalidated before the date of application; or
[…]
in addition, notwithstanding what is said above, in relation to sub -paragraphs (a) to (f) above, it will suffice that the relevant EEA citizen is (or, as the case may be, for the relevant period was) resident in the UK and Islands for a continuous qualifying period which, unless they are a specified relevant person of Northern Ireland, began before the specified date where the applicant:
(a) (i) is (or, as the case may be, for the relevant period was) a family member of a relevant EEA citizen or a family member who has retained the right of residence by virtue of a relationship with a relevant EEA citizen; and
(ii) has completed a continuous qualifying period of five years under condition 3 in the table in paragraph EU11 of this Appendix; or
(b) (i) is a family member of a relevant EEA citizen or a family member who has retained the right of residence by virtue of a relationship with a relevant EEA citizen; and
(ii) otherwise meets the eligibility requirements for limited leave to enter or remain under condition 1 in the table in paragraph EU14 of this Appendix; or
(c) relies on meeting condition 1, 2 or 6 in the table in paragraph EU11 of this Appendix
Analysis and Conclusions
The requirements of Appendix EU (Family Permit)
16. At [53] of the panel’s decision in Maisiri, well-understood principles about how the Immigration Rules should be interpreted were recited. The natural meaning of the words used in the rules must be considered against the relevant background. With that in mind, we turn to the applicable rules which have been copied above.
17. If the appellant’s wife began residing in the UK in June 2021, we are satisfied that on no sensible or coherent interpretation of the applicable rules can it be said that either the appellant’s father-in-law or his wife fell within the definitions of qualifying family members or relevant EEA citizens who could have sponsored the family permit which was the subject of the application. Simply put, the appellant’s father-in-law does not have a family relationship with his son-in-law which could underpin such an application. That form of familial relationship is simply not present within the scheme. As the beneficiary of pre-settled status granted under EU3A of Appendix EU, the appellant’s wife could not lawfully sponsor the entry clearance application because the form of leave she enjoyed was not of a type which allowed her to sponsor her husband to join her in the UK under the scheme. However, there is scope for argument as to whether she would be able to sponsor the appellant to join her in the UK if she were residing in the UK before the specified date as per the reference to sub-paragraph (a)(i) of Appendix EU. There is tension in the evidence as to when Ms Begum began her residence in the UK. In the original application, it was asserted that she arrived after the specified date, on 19 June 2021. This accords with the sponsorship declaration Ms Begum signed on 26 July 2023. However, the appellant’s skeleton argument heralded a change of position where it was asserted that she in fact began her residence in the UK before the specified date, a position which she also set out at paragraph 2 of her witness statement, dated 19 August 2024. We did not hear oral evidence from Ms Begum at the error of law hearing and are not yet in a position to resolve this potentially important factual issue.
The Law
Withdrawal of a concession
The issues-based approach
18. 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.
19. 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.
20. 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.
21. A matter of weeks after 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.
22. 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:
[11.4] 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.
The caselaw on concessions
23. Senior tribunals and courts have, on a number of occasions, considered the principles which fall to be applied when a party, usually the Secretary of State for the Home Department, 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.
24. In Carcabuk & Bla v SSHD 00/TH/01426, the Immigration Appeal Tribunal (Collins J and Judge Ockleton) 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)] (other observations were made in relation to the procedure to be adopted in such a situation which we address below):
[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.
25. 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. […] 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.
26. 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.
27. 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.
28. 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.
29. In AM (Iran) v SSHD, 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.
30. 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 W.L.R. 1514 held [at 1525G]:
[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.
31. 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”.
32. 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.
33. 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, […].
34. 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. […]
35. 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)]). As to the latter point, much the same was said at [13] of CD (Jamaica).
Application of the Law to the Facts
36. The concession made before the First-tier Tribunal was contingent in nature. The respondent accepted that if a discrete factual question was resolved in the appellant’s favour, the appeal fell to be allowed. This was not a concession where the respondent accepted that the appeal should simply be allowed. The problem is that the factual question which the respondent agreed to be dispositive of the legal requirements of the applicable scheme of Appendix EU (Family Permit) was nothing of the sort. The existence of a genuine and subsisting relationship between the appellant and his sponsoring wife could not have functioned to cause her, or any of his other family members residing in the UK, to be embraced by the relevant definitions of the scheme to enable him to meet the qualifying criteria. The concession about the only factual issue to be decided in the appeal led the judge to decide an issue which had little bearing on whether the requirements of the legal scheme were met.
37. It is important to emphasise that the appeal was brought against a decision which considered whether the appellant met the conditions for entry to the UK on the strength of his relationship with his father-in-law. This came after the original sponsor, his wife, was noted by the respondent not to have the required status to underpin his application. When the presenting officer agreed the issues to be decided by the judge, this had the effect of resurrecting her position as the sponsor in apparent ignorance of her previously accepted ineptitude to act as a sponsor.
38. We have not been assisted by any evidence as to what caused the Home Office Presenting Officer to make the concession she did, but it appears tolerably clear that she was led astray by the respondent’s review which introduced a factual question which paled into insignificance when seen against the hard-edged requirements of the applicable rules. As stated in Rauf, it is difficult to see any material prejudice to an appellant who has secured an unmerited windfall in the form of status conferred on a basis unknown to law. The authorities are clear that there is a clear distinction to be drawn between concessions which are productive of demonstrable errors of law and those which go to relevant facts. We are satisfied that this falls into the former category. This is a powerful factor weighing in favour of there being a good reason to permit the concession to be withdrawn. When we consider this in tandem with the lack of material prejudice, we are driven to conclude that there are good reasons to permit the concession to be withdrawn. We have paused to reflect on whether the approach recommended in Lata and TC should bring about a different outcome, but we remain satisfied that the articulation and agreement of the parties about the issue to be determined cannot justify a demonstrably unlawful interpretation of the Immigration Rules to stand.
39. The respondent is permitted to withdraw the concession made in the First-tier Tribunal and we conclude that the decision to allow the appeal involved a material error of law.
Disposal
40. The starting point is that the underlying appeal should be remade in the Upper Tribunal. For the reasons set out above, it would not be appropriate to remake the decision without a further hearing as there remains a question of fact to be resolved as to when Ms Begum began her residence in the UK. We see no reason to depart from the starting point identified at paragraph 7.2 of the Practice Statements and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) that the decision should be remade in the Upper Tribunal.  
Notice of Decision
The decision of the judge is set aside as it involved a material error of law. The decision will be remade in the Upper Tribunal at a resumed hearing.  
Directions:  
i. The matter is to be listed for 3 hours on the first available date. The hearing is to be listed at the Manchester Civil Justice Centre. The resumed hearing is reserved to Upper Tribunal Judge Lodato and/or Upper Tribunal Judge O’Brien.  
ii. Within 14 days of the resumed hearing, the parties must upload to CE-File and directly serve on the other party any further evidence they intend to rely upon.  
iii. A Bengali interpreter is to be booked for the hearing. 

P Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

30 July 2025