Sir Stephen Richards and Davis and Simon LJJ have recently overruled a Portuguese national’s deportation by holding that when determining whether the First Tier Tribunal (FTT) had been correct to overturn the deportation of an EU national who had lived in the UK since childhood, the Upper Tribunal (UT) should not have proceeded on the basis that a concession by the Home Office had been withdrawn, without expressly considering whether that was fair and just. Luis Lopes came to the UK aged six with his family in 2002 and remained in the UK until June 2014 when he was 18. In October 2012, when he was only 16, Lopes committed wounding with intent to cause grievous bodily harm and unlawful wounding, contrary to sections 18 and 20 of the Offences Against the Person Act 1861. He pleaded guilty in December 2012 and in March 2013 he was sentenced to concurrent terms of four years and two years youth detention. Subsequently, 15 months later in June 2014, the Home Office decided to remove him to Portugal under the provisions of the Immigration (European Economic Area) Regulations 2006. In particular, regulation 21(4) required that those who had resided continuously in the UK for 10 years or were under the age of 18 could not be deported unless there were “imperative grounds of public security”. Moreover, the decision-maker had to take into account certain considerations including the person’s social and cultural integration into the UK.
The Home Office conceded in the case management hearing that regulation 21(4) applied and that Lopes could not be removed except on imperative grounds of public security and the highest level of protection was available to him. It was also conceded in the earlier decision letter by the decision-maker that Lopes clearly met the integration criteria established in the key case of Tsakouridis (C‑145/09, EU:C:2010:708) and satisfied the “integration test” laid down in recitals 23 and 24 of Directive 2004/38/EC or the “Citizens’ Directive”. However, the decision-maker concluded that deportation was justified owing to the risk of reoffending and the threat of serious harm Lopes posed to the public. The FTT proceeded on the basis that regulation 21(4) applied, and FTTJ Pooler found that imperative grounds of public security had not been demonstrated because Lopes did not represent a sufficiently serious threat. FTTJ Pooler considered issues of proportionality, which were found to weigh against deportation in view of his relative youth (18 at the time of the hearing), the fact that he had never lived independently and had lived his formative years in this country, with all that this implied in terms of social and cultural integration.
After initially failing to obtain permission to appeal, relying on MG (Portugal) (C-400/12, EU:C:2014:9), the Home Office appealed to the UT on the ground that the concession was wrongly made because there had been a failure to take into account the period spent in prison when deciding that Lopes appellant fell within regulation 21(4).
It was argued that since the concession was “incorrectly made,” FTTJ Pooler’s acceptance of it was “a misdirection of law.” The UT subsequently allowed the appeal and then remade the decision, instead of remitting the issue of integration back to the FTT.
The Court of Appeal
Simon LJ remarked that “the disengaged language” of the Home Office’s appeal “was inappropriate” because if there had been a concession that it sought to withdraw, an application for withdrawal was necessary and an assertion that it had been withdrawn did not suffice. If FTTJ Pooler had misdirected himself as a result of an incorrect concession, it was regrettable that the Home Office caused the misdirection in its entirety and bore responsibility.
(i) Error of law
The Home Office relied on MG to argue that the concession was an error of law but the CJEU’s decision had not substantially altered the earlier approach set out in Tsakouridis. In MG the CJEU found that although periods of imprisonment interrupted the continuity of residence, such periods could, together with other factors, be taken into account by the national authorities as part of the overall assessment of whether the integrating links with the host member state had been broken. In the present appeal, Simon LJ judged that:
26. … A material error might have been made if the appellant’s term of imprisonment had not been brought into the assessment; but it plainly had been. In substance, the respondent’s argument rested almost entirely on the failure to mention the MG case, in addition to the case of Tsakouridis. It may be that the writer of the letter was entirely unaware of the MG case decided in the CJEU six months earlier, but I am not prepared to assume that this is so or that a mistake was made. In any event, the MG case did not substantially change the CJEU approach to regulation 23(4) set out in Tsakouridis to which frequent reference was made in the MG case.
Therefore, no inconsistency arose between MG and the concession made in the decision – which took Lopes’s period of imprisonment duly into account, along with his length of residence, family connections with the UK and age on arrival in the UK, when assessing his level of integration. Notably, the balancing of positive and negative factors is the adoption of the approach set out in Tsakouridis, in MG and has been confirmed more recently by the CJEU in FV (Italy) and B (Joined Cases C-424/16 and C-316/16 EU:C:2018:256, discussed here).
(ii) Did the FTT err in law?
The court said that the Upper Tribunal, in the form of UTJ Hanson, found that the concession was “arguably material” and “arguably wrong in law”, but that meant no more than that the Home Office had satisfied the threshold for permission to appeal. Simon LJ judged that UTJ Hanson had, as a minimum, to find that there had been a material error of law if he were to interfere with the FTT’s findings.
Centrally, Mr Zainul Jafferji said that there was no proper basis for treating FTTJ Pooler’s approach to the concession in the decision letter as an error of law. It was also pointed out that the Home Office should not have just been allowed to withdraw the concession made before the FTT because of the effects of Carcabuk v SSHD (2000) 00/TH/01426 where Collins J and Mr CMG Ockelton imparted guidance regarding applications to withdraw concessions. Overall, if a presenting officer wishes to withdraw a concession in a refusal letter, he must inform the party or his advisor as soon as is possible and it will be for the judge to decide if an application for an adjournment to enable the new case to be met is made, and whether to grant it. If he does not, the concession will stand. The tribunal must always remain alive to the fact that an appellant may have prepared his or her case on the basis of the concession, and so must ensure that the appellant is not prejudiced. Mr Jafferji further submitted that having allowed the respondent to withdraw the concession and having erroneously identified an error of law in the FTT’s determination, UTJ Hanson himself carried out a flawed analysis on the basis that Lopes’s case fell within regulation 21(3). The court was attracted to these arguments and Simon LJ held that:
41. The FTT hearing proceeded on the express understanding, characterised as a concession, that the appellant fell within regulation 21(4). This had been specifically identified as material and had been accepted by the respondent at the prior Case Management Hearing. This is not a case in which no consideration had been given to what was an obvious point. The FTT decision was properly reasoned and contained no material error of law.
Consequently, contrary to UTJ Hanson’s conclusion, Lopes’s deportation had to be justified on imperative grounds of public protection, as had been accepted in the Case Management Hearing. Since FTTJ Pooler did not materially err in law, the UT was not justified in setting his findings aside and remaking the decision.
(iii) Could the Home Office withdraw the concession?
Even if the concession had been in relation to a matter of law, it did not follow that the Home Office was entitled to withdraw it on appeal. If a concession had been made an application had to be made to withdraw it rather than the mere assertion that it had been withdrawn. UTJ Hanson’s analysis of paragraph 25 of Davoodipanah  EWCA Civ 106 was wrong because of numerous reasons. He failed to take into account an overriding principle which encompassed both justice and fairness. The fact that the Home Office had 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.
The UT also failed to take into account the prejudice to Lopes by the withdrawal of the concession. For example, if the concession had not been made, he might have put in additional, or different, evidence before the FTT concerning his social and cultural integration into the UK.
Finally, rather than whether it appeared in retrospect that the concession should not have been made, a central question for the UT was whether the decision on regulation 21(4) was wrong in law. Lopes was unrepresented before the Upper Tribunal and he should have been given sufficient time to reflect on whether he wanted the matter remitted to the FTT, an adjournment to prepare his case on integration, or whether he wanted the UT to re-make the decision immediately. Accepting Mr Jafferji’s primary submission, the Court of Appeal allowed the appeal and restored the decision of FTTJ Pooler.
Readers should know that Mr Jafferji initially suggested to me that I should write a blog. Through Anglo Thai Legal Company, in our own practice, we have been instructing Mr Jafferji as counsel in entry clearance judicial reviews and we have had great success in securing justice for clients. Mr Jafferji’s style of advocacy is highly persuasive and very effective. His trademark Dawoodi Bohra cap creates a lasting impression on judges and, as I said in the earlier post on Decker  EWCA Civ 1752, I would recommend him as immigration counsel to everyone. Ultimately it is great to see that Mr Jafferji and those instructing him set the record straight in Lopes’s case because the meddling of the UT in FTTJ Pooler’s decision left a lot to be desired.