Luis Lopes came to the UK aged 6. As a teenager, he pleaded guilty to wounding with intent to cause grievous bodily harm and unlawful wounding, receiving four years’ youth detention. The Home Office wanted to deport him. The First-tier Tribunal blocked deportation but was overturned by the Upper Tribunal in November 2015.

The Court of Appeal picks up the tale in February 2019 in Lopes v Secretary of State for the Home Department [2019] EWCA Civ 199. Its judgment makes clear the high hurdle that the Home Office had to clear in order to justify deportation: as someone living in the UK for over ten years and well integrated, Mr Lopes could only be kicked out if there were “imperative grounds of public security”. The removal letter said as much, and the Home Office representative apparently conceded the same point before the tribunal.

The Home Office attempted to take this concession back by stating baldly in its grounds for appeal: “the concession recorded at paragraph 11 was incorrectly made and is withdrawn… Thus, regrettably, the Judge’s acceptance of the concession is a misdirection of law”. The Upper Tribunal swallowed this, saying at paragraph 25 of its determination that “it is not essential to demonstrate prejudice before an application to withdraw a concession is refused. In the absence of prejudice, if a party has made a concession which appears in retrospect to be a concession which should not have been made, then probably justice will require that the party be allowed to withdraw that concession”.

Lord Justice Simon took considerable exception to this “unsatisfactory” statement of the law on withdrawing concessions:

First, to the extent that the Upper Tribunal was setting out a general statement, it failed to take into account an overriding principle which encompasses both justice and fairness. Furthermore, the fact that the respondent allowed an entire day’s hearing to proceed on what was later said to be a false basis should have been a matter of serious concern, although it appears to have had little impact on either the Upper Tribunal or the respondent.

Secondly, it failed to take into account the prejudice to the appellant by the withdrawal of the concession. As the UT Judge Hanson had noted at [24]:

There was insufficient evidence of social and cultural integration into the United Kingdom before the First-tier Judge but this was not an issue canvassed as a result of the concession.

As Mr Jafferji submitted, the appellant might have put in different or additional evidence or conducted the hearing before the FtT differently had the concession not been made.

Thirdly as already noted, a central question for the Upper Tribunal was whether the respondent’s decision on Regulation 21(4) was wrong in law and not whether it appeared in retrospect that the ‘concession’ should not have been made.

Simon LJ actually calls the Upper Tribunal’s decision “unsatisfactory” twice, which is really taking the gloves off. As there was no material error of law in the First-tier Tribunal’s decision, Mr Lopes’s appeal against deportation succeeded.