Secretary of State for the Home Department v Davoodipanah

An appellate immigration tribunal may permit a party to withdraw a concession made before an adjudicator where there is good reason in all the circumstances. Its governing aim is a fair and just result. Relevant considerations include prejudice, the nature of the concession and the timing of the proposed withdrawal. Proof of prejudice is not essential to refusing permission.

Where the concession appears, in retrospect, to have been one which should not have been made, justice will probably favour withdrawal in the absence of prejudice. The assessment nevertheless remains case-specific. A tribunal cannot determine an issue contrary to an operative concession without first addressing whether that concession should be withdrawn.

An Iranian asylum seeker succeeded before an adjudicator after the Home Office Presenting Officer conceded that, if her factual account were accepted, she qualified as a refugee and faced the relevant risk on return. The Immigration Appeal Tribunal allowed the Secretary of State's appeal after reassessing that risk, having proceeded on the mistaken basis that the only relevant concession concerned membership of a particular social group.

The asylum seeker appealed. The central questions were whether the concession before the adjudicator extended to risk on return and, if so, whether the Tribunal could revisit risk without deciding whether the Secretary of State should be permitted to withdraw that concession.

1. Appeal allowed unanimously. The content and structure of the adjudicator's determination established that the Home Office Presenting Officer had conceded more than the appellant's membership of a particular social group. The concession also meant that, if the appellant's account of events in Iran and her departure were accepted, she did not need separately to prove that return would expose her to risk for a Convention reason. The adjudicator's careful and prompt determination, the presenting officer's contemporaneous notes and counsel's recollection supported that conclusion.

2. The Immigration Appeal Tribunal had proceeded on the mistaken basis that the only concession concerned membership of a social group. It therefore neither determined whether a concession about risk had been made nor considered whether the Secretary of State should be allowed to withdraw it. Its reassessment of risk could not stand while that question remained unresolved.

3. Where either party has made a concession before an adjudicator, the Tribunal may permit its withdrawal for good reason in all the circumstances. Its task is to obtain a fair and just result. Relevant matters include prejudice, the nature of the concession and the timing of the request. Proof of prejudice is not an essential condition for refusing withdrawal. In the absence of prejudice, justice will probably favour withdrawal where a presenting officer made a concession which, on reflection, should not have been made. Each case nevertheless depends on its own circumstances. Ivanauskieine v Secretary of State for the Home Department 2001 EWCA.Civ 1271 and Carrabuk v Secretary of State for the Home Department were applied.

4. The case was remitted to the Immigration Appeal Tribunal to decide whether the Secretary of State should be permitted to withdraw the concession about risk. The concession concerning membership of a social group and the adjudicator's factual findings about events in Iran were not open to withdrawal. If withdrawal of the risk concession were permitted, the Tribunal was to determine risk after giving both parties a proper opportunity to present evidence and submissions. Costs were awarded to the appellant, subject to detailed assessment.

• Court of Appeal (Civil Division): By [2004] EWCA Civ 106, unanimously allowed the asylum seeker's appeal and remitted the case to the Immigration Appeal Tribunal to decide whether the Secretary of State could withdraw the concession concerning risk.
• Immigration Appeal Tribunal: On 25 July 2003, allowed the Secretary of State's appeal from the adjudicator. It reassessed risk on return without determining the existence or withdrawal of the concession about that issue.
• Adjudicator: Allowed the asylum seeker's appeal under the Refugee Convention and the European Convention on Human Rights, having accepted her factual account and proceeded upon the concessions recorded in the determination.