AK (Sierra Leone) v Secretary of State for the Home Department

Where a foreign criminal satisfies every limb of Exception 1 in section 117C of the Nationality, Immigration and Asylum Act 2002, the statutory scheme determines the Article 8 issue. The decision-maker must apply the statutory provisions and Immigration Rules as a complete code, rather than conduct a freestanding Article 8 assessment.

A tribunal considering withdrawal of a concession must examine the circumstances, including prejudice and the interests of justice. A considered concession which resolves the whole appeal may properly be accepted. In the absence of good reason, it is unjust to permit its withdrawal long after the hearing.

The claimant, a citizen of Sierra Leone who had lived in the United Kingdom from childhood, was deported following criminal convictions. He brought an out-of-country appeal against the refusal to revoke the deportation order.

The First-tier Tribunal accepted the Secretary of State's concession that all three limbs of Exception 1 under section 117C(4) of the Nationality, Immigration and Asylum Act 2002, and the corresponding requirements of paragraph 399A of the Immigration Rules, were met. It allowed the appeal. The Upper Tribunal allowed the Secretary of State's appeal, permitted withdrawal of the concession, and remade the decision on the basis that there were no very significant obstacles to reintegration in Sierra Leone.

The central issue was whether the Upper Tribunal lawfully permitted withdrawal of the concession without considering the circumstances, prejudice, or the interests of justice.

1. Appeal allowed. The Court reinstated the First-tier Tribunal's decision. It was unjust to remit the matter for a further attempt by the Secretary of State to withdraw her concession, made two years and eight months earlier.
2. Sections 117A to 117D, including section 117C, of the Nationality, Immigration and Asylum Act 2002, together with rules 398 to 399A of the Immigration Rules, form a complete code for Article 8 claims by foreign criminals. Following MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192, a decision-maker must consider Convention rights through that code, not by a freestanding Article 8 assessment.
3. If Exception 1 applies, the statutory consequence is decisive. The claimant's lawful residence, social and cultural integration, and very significant obstacles to integration in the receiving country were all conceded before the First-tier Tribunal. The concession therefore determined the entire appeal, and the judge was entitled to accept it.
4. The authorities establish that a tribunal may permit withdrawal of a concession where there is good reason in all the circumstances. The discretion requires attention to prejudice and the interests of justice: Secretary of State for the Home Department v Davoodipanah [2004] EWCA Civ 106; NR (Jamaica) v Secretary of State for the Home Department [2009] EWCA Civ 856. The Upper Tribunal erred by simply treating NR (Jamaica) as entitling the Secretary of State to withdraw the concession. It made no assessment of its scope, the circumstances, prejudice, or justice.
5. The Court did not hold that an entire concession can never be withdrawn on appeal. On these facts, however, the presenting officer had made a considered concession after hearing the evidence, the First-tier Tribunal had properly accepted it, and no good reason was given for reopening the case. The First-tier Tribunal's decision was accordingly reinstated.

• Court of Appeal (Civil Division): Allowed the claimant's appeal and reinstated the First-tier Tribunal's decision.
• Upper Tribunal (Immigration and Asylum Chamber): Allowed the Secretary of State's appeal, set aside the First-tier Tribunal's decision, and remade it on the basis that Exception 1 was not met because there were no very significant obstacles to reintegration in Sierra Leone.
• First-tier Tribunal: Allowed the claimant's out-of-country appeal after accepting the Secretary of State's concession that Exception 1 and paragraph 399A were satisfied.