IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM
CHAMBER
Case No: UI-
2024-004528
First-tier Tribunal No: HU/00029/2024
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 2
nd of May 2025
Before
UPPER TRIBUNAL JUDGE MANDALIA
Between
Secretary of State for the Home Department
Appellant
and
Olajiire Obafemi Shoyombo
(NO ANONYMITY DIRECTION MADE)
Respondent
Representation
For the Appellant: Mr N Wain, Senior Home Office Presenting Officer
For the Respondent: Ms S Ferguson, instructed by Freemans Law LLP
Heard at Field House on 6 January 2025
Decision and Reasons Introduction
1.
The appellant in the appeal before me is the Secretary of State for the Home Department ("SSHD") and the respondent to this appeal is Mr Olajiire Shoyombo. However, for ease of reference, in the course of this decision I adopt the parties' status as it was before the FtT. I refer to Mr Shoyombo as the appellant, and the Secretary of State as the respondent.
2.
The appellant is a national of Nigeria.
On 23 March 2023 the appellant was convicted at Nottingham Crown Court of 2 offences, involving the supply of heroin and supply of crack cocaine, and sentenced to a term of 40 months imprisonment in a Young Offenders Institute. On 14 June 2023 the appellant was served with a decision to make a deportation order against him in accordance with section 32(5) of the UK Borders Act 2007, subject to consideration of section 33. The appellant made a human rights claim on 15 August 2023.
3.
On 20 December 2023 the respondent made a decision to refuse the appellant's human rights claim. The appellant's appeal against that decision was allowed by First-tier Tribunal Judge Dixon ("the judge") for reasons set out in a decision promulgated on 30 August 2024.
4.
The respondent claims the decision to allow the appeal is vitiated by material errors of law. Two grounds of appeal are identified. First, the respondent claims the judge records at paragraph [3] of the decision that it is accepted that the appellant met the first two limbs of the private life exception (Exception 1) set out in section 117C of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). However, the respondent's records establish that the appellant only had leave to remain between three specific periods; 28 May 2015 to 28 November 2017, 11 April 2018 and 11 October 2020 and between 6 April 2021 and 31 December 2022. The appellant has spent a significant amount of time in the UK during which he was not 'lawfully resident' in the UK. He has not established he has been lawfully resident in the United Kingdom for most of his life and cannot therefore satisfy the first limb set out in section 117C(4)(a) of the 2002 Act.
5.
Second, the respondent claims the judge erroneously focused on whether there would be very significant obstacles to the appellant's integration into Nigeria. If the appellant has not been lawfully resident in the United Kingdom for most of his life, the judge was required to consider
whether there are very compelling circumstances over and above those described in Exception 1. He did not do so.
6.
Permission to appeal was granted by FtT Judge Turner on 24 September 2024. The Hearing of the Appeal before Me
7.
In readiness for the hearing before me, I have been provided with a written application to withdraw the concession made by the respondent settled by Mr Wain. The respondent claims the appellant had only accumulated a total of 80 months (6.6 years) of lawful residence in the UK between the date of his arrival in May 2005, at the age of 3, and the date of the respondent's decision on 20 December 2023. The decision maker mistakenly referred to the total length of residence rather than 'lawful residence', despite the appellant's immigration history having been set out at paragraph [3] of the respondent's decision. Mr Wain submits the judge plainly proceeds upon the basis of a concession referred to at paragraph [3] of the decision of the FtT that it was accepted the appellant met the first two limbs of the private life exception. At paragraph [16] of the respondent's decision dated 20 December 2023, the respondent said: "It is accepted that you have been lawfully resident in the UK for most of your life. This is because you arrived in the UK aged 3 and you are now aged 21. You were granted leave to remain as a dependent of your mother on 23 June 2014 until 28 November 2018 and were granted further leave to remain as a dependant and main applicant up until this expired on 6 October 2023."
8.
Mr Wain submits it is clear from the appellant's immigration history that the appellant had not in fact, been lawfully resident in the UK for the majority of his life as required by s117C(4)(a). In
CI (Nigeria) v SSHD
[2019] EWCA Civ 2027, the Court of Appeal considered the scope and proper application of "Exception 1" to deportation contained in the 2002 Act. Leggat LJ considered the meaning of 'lawfully resident' and said: "40. ...
It makes no sense to treat someone who is present in the UK in breach of immigration laws and liable to removal - for example, because (as in the present case) they have remained in the UK after a limited leave to enter or remain has expired - as "lawfully resident" in the UK within the meaning of section 117C(4)(a) of the 2002 Act, whether or not the person has been granted temporary admission or release pending deportation or is on immigration bail. To describe such a person as "lawfully resident" in the UK is not consistent with the ordinary use of language. It is also inconsistent with the policy underlying the statutory provision. The reason for focusing on the period for which the person concerned has not merely been resident but lawfully resident in the UK must be that, as provided in section 117B(4) , little weight should generally be given to a private life established at a time when a person is in the UK unlawfully. As Underhill LJ observed in
Akinyemi at para 42, that in turn is because, as a general principle, a person cannot legitimately expect to be allowed to stay in a country on the basis of relationships formed and ties created when he or she has no right to be living there in the first place. In
Jeunesse v The Netherlands (2014) 60 EHRR 17 , para 103, the European Court made it clear that this principle is not displaced where a state "tolerates the presence of an alien in its territory thereby allowing him or her to await a decision on an application for a residence permit, an appeal against such a decision or a fresh application for a residence permit ..." 41. Furthermore, the fact that sections 117B(4) and 117C(4)(a) of the 2002 Act have a common rationale means that to treat someone who is in breach of a legal obligation by being in the UK and is legally liable to be removed as "lawfully resident" for the purpose of section 117C(4)(a) would be inconsistent with the
Akinyemi case, which treated such a person as in the UK "unlawfully" for the purpose of section 117B(4) . Although, as Underhill LJ pointed out, the opposite is not necessarily true, it would be illogical to regard someone who is in the UK "unlawfully" as nevertheless "lawfully resident" here, for the purpose of the same exercise of deciding whether the interference with private life caused by deporting the person on account of criminal offending is justified in the public interest."
9.
Mr Wain submits there is a clear error of fact and the Upper Tribunal has jurisdiction to allow the respondent to withdraw the concession previously made. He submits that upon realisation of the error, the matter was raised in the grounds of appeal. The explanation for the error is that the decision maker considered only the length of residence rather than whether the residence was lawful. The grounds of appeal seek to correct the mistake of fact and it is fair and just, and in the interests of justice to allow the concession to be withdrawn. Mr Wain submits that in
AM (Iran) v SSHD
[2018] EWCA Civ 2706, the Court of Appeal confirmed that any prejudice caused is relevant, but not a primary consideration. Here, there is no prejudice because the appellant is not deprived of a fair opportunity to have his appeal properly considered. The decision would be set aside and the appellant would have an opportunity to have his appeal properly considered. The Tribunal would be able to take into account the extent to which the appellant is unable to meet the Exception and the Tribunal should properly consider whether there are very compelling circumstances over and above those described in Exception 1. The appeal can lawfully be determined by reference to the issue of proportionality and in accordance with the decision of the Supreme Court in
HA (Iraq) v SSHD
.
10.
In reply, Ms Ferguson submits the appellant does not accept the respondent's analysis of the periods during which the appellant has been lawfully resident in the UK. She submits the
appellant is prejudiced by the withdrawal of the concession because there should be finality of proceedings. The appellant's appeal was allowed and that success would be taken away from him. Ms Ferguson submits there is a distinct lack of clarity as to the appellant's immigration history. Paragraph [16] of the respondent's decision is at odds with the immigration history set out in [3]. Ms Ferguson accepts that on the appellant's immigration history as set out in paragraph [3] of the decision, the appellant cannot establish that he has been lawfully resident in the United Kingdom for most of his life as at the time of the respondent' decision.
11.
Ms Ferguson submits that in
AM (Iran) v SSHD, the Court of Appeal confirmed that a concession can be withdrawn if it is the interests of justice and absent prejudice to the appellant. The concessions in
AM (Iran) had wider implications in the context of international protection claims, but the position is quite different here. Here, the respondent was content to proceed on one basis, based on the respondent's analysis of the appellant's immigration history. As Thirlwall LJ said in
AM (Iran), at [63], finality of litigation requires the respondent to be fixed with the concession. The Court of Appeal concluded it was in the interests of justice to allow the concession to be withdrawn because the concession was inconsistent with the Country Guidance the Tribunal was required to apply. In
AM (Iran) the Court of Appeal referred to the decision in
SSHD v. Davoodipanah [2004] EWCA Civ 106, in which it was said that prejudice to one of the parties if the withdrawal is allowed will be relevant as will matters such as the nature of the concession and the timing. Here, Ms Ferguson submits, the prejudice to the appellant is that his appeal would proceed on a basis that is more disadvantageous to him. Ms Ferguson submits the respondent should only be permitted to withdraw a concession if that concession has a wider impact and here the respondent should not be permitted to withdraw the concession made.
12.
In response Mr Wain submits the appellant's immigration history is accurately set out in paragraph [3] of the respondent's decision. It is not, he submits, in the interests of justice to allow an appeal to succeed on an incorrect footing. If the concession is withdrawn, that will not be determinative of the appeal. The respondent does not challenge the finding that there would be very significant obstacles to the appellant's integration into Nigeria. The appellant can still rely on s117C(6) of the 2002 Act and the extent to which he meets s117C(4) will feed into that overall assessment. Decision
13.
It is useful to begin by considering the application to withdraw the concession made by the respondent. In
AM (Iran) v SSHD, Simon LJ said: "40. I would accept that the Court may, depending on the circumstances, permit a concession that was made in a tribunal hearing to be withdrawn. There are no all-embracing principles that will apply beyond those implicit in CPR Part 1.1. 41. In
Secretary of State for the Home Department v. Davoodipanah [2004] EWCA Civ 106 a concession had been made before the Immigration Adjudicator. On an appeal to the Immigration Appeal Tribunal, the Secretary of State considered that the concession had been wrongly made; and revisited an issue that was implicitly covered by the concession. The appellant appealed against an adverse decision on the basis that the IAT could not go behind the concession made before the Immigration Adjudicator. Kennedy LJ, giving the leading judgment, considered this point: 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. (See, for example,
Ivanauskieine v Secretary of State for the Home Department [2001] EWCACiv 1271 , and
Carrabuk v Secretary of State for the Home Department (a decision of the Immigration Appeal Tribunal presided over by Mr Justice Collins on 18 May 2000)). 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.
14.
It is plainly in the interests of justice where the Tribunal is concerned with an appeal in which the fact that the deportation of a foreign criminal is said by statute, to be in the public interest, that the appeal proceeds upon an accurate understanding of the factual matrix. A mistake as to fact can amount to a material error of law. Everything depends on the circumstances, and each case must be considered on its own merits
15.
Here, the grounds of appeal claim that the respondent's records show the appellant has been granted three separate periods of leave to remain as a dependent:
a.
28 May 2015 to 28 November 2017
b.
11 April 2018 to 11 October 2020
c.
6 April 2021 to 31 December 2021
16.
Mr Wain submits the appellant had therefore only accumulated 80 months of lawful residence in the UK between May 2005 and 20 December 2023. Ms Ferguson does not accept the respondent's analysis of the appellant's immigration history, although she does not elaborate or provide me with any assistance as to the proper analysis of the appellant's immigration history in either the rule 24 response settled by her and dated 11 December 2024, or in her oral submissions.
17.
Mr Wain submits the appellant's immigration history is accurately set out in paragraph [3] of the respondent's decision and I have taken that as my starting point in my analysis of the appellant's immigration history. I say the "starting point" because there are material gaps.
18.
It is uncontroversial that the appellant arrived in the UK in May 2005 with a family visit visa valid until 29 October 2005. It is uncontroversial that the appellant remined in the UK unlawfully when the 'visa' ended. He was lawfully in the UK until 29 October 2005.
19.
The respondent states the appellant's mother applied for leave to remain with the appellant as a dependant on 11 September 2012. That application was made at a time when the appellant had no leave to remain and was refused on 28 August 2013. The appellant's mother appealed the decision to refuse further leave and on 23 June 2014 the appeal was allowed on human rights grounds. The respondent confirms that following that successful appeal the appellant was granted leave to remain as a dependent until 28 November 2017. The respondent does not say in her decision when that grant of leave to remain was made. The respondent appears to claim the appellant was granted leave to remain on 28 May 2015 until 28 November 2017, but I have been provided with no explanation as to why there was a delay of some 11 months between the successful appeal and the grant of leave to remain. The appellant however was lawfully in the UK following the successful appeal on 23 June 2014 as set out in paragraph [16] of the respondent's decision.
20.
The respondent confirms in paragraph [3] of the decision that the appellant then applied for further leave to remain and that the appellant was granted leave to remain on 11 April 2018 valid until 11 October 2020. The respondent's decision does not identify when the application was made and whether it was an 'in-time' application. That information is found on the cover sheet to the respondent's bundle before the FtT where the appellant's immigration history is set out. The application is said to have been made on 1 November 2017 and so it was an 'in-time application'
(i.e it was made before 28 November 2017). By operation of section 3C of the Immigration Act 1971, the appellant's leave to remain was extended until the application had been decided.
21.
The respondent confirms in paragraph [3] of the decision that the appellant then applied for further leave to remain and that the appellant was granted leave to remain on 6 April 2021 valid until 31 December 2022. Again, the respondent's decision does not identify when the application was made and whether it was an 'in-time' application. Again, that information is found on the cover sheet to the respondent's bundle. The application is said to have been made on 25 September 2020 and so it was again an 'in-time application'
(i.e it was made before 11 October 2020).
22.
The effect of the 'in-time' applications made by or on behalf of the appellant between June 2014 and September 2020 is that the appellant was lawfully resident in the UK between 23 June 2014 and 31 December 2022. The appellant was therefore lawfully resident in the UK:
23.
The difficulty with the grounds of appeal and the analysis of Mr Wain is that it fails entirely to acknowledge that the applications made by the appellant on 1 November 2017 and 25 September 2020 were in-time applications. On my analysis, the appellant had lived in the UK for a period of 17 years and 7 months between May 2005 and December 2022. He was lawfully resident in the UK during the two periods referred to in paragraph [23] above, that amount to a total period of nine years (5 months + 8 years and 7 months). He was unlawfully resident in the UK for a period of 8 years and 8 months (November 2005 to June 2014). The appellant was three years old when he arrived in the UK and so on any view, he cannot be said, on the facts, to have been 'lawfully resident in the United Kingdom for most of his life'. Insofar as the judge proceeded upon the concession that the appellant has been lawfully resident in the United Kingdom for most of his life, the judge proceeds upon a mistake as to fact.
24.
I can see the force in the submissions made by Ms Ferguson and I accept that where the respondent and a Presenting Officer make a concession, it should not normally be open to the Secretary of State at the second appeal stage to seek to withdraw it. I accept that finality of litigation requires the respondent to be bound by the concession in precisely the same way that a concession made on behalf of an appellant would be adopted by a judge. The prejudice that Ms Ferguson refers to, is the benefit gained by the appellant of an erroneous factual matrix adopted by the respondent and the Tribunal. A decision reached on a mistaken premise should be revisited so that the law is properly applied, unless it would be unjust to allow that. Ms Ferguson is unable to point to anything to suggest there has been reliance by the appellant on the fruits of a successful appeal, and that it would be to the detriment of the appellant if the concession were allowed to be withdrawn. The appellant's rights must be weighed against the need to ensure that a decision reached by the Tribunal is one that is reached on a proper legal and factual foundation. It is clear from the authorities that the Upper Tribunal may, depending on the circumstances, permit a concession that was made before the FtT to be withdrawn.
25.
I am satisfied that this is an appeal in which the Tribunal should exercise its discretion to allow the concession to be withdrawn. I accept, as Mr Wain submits, that the decision maker proceeds erroneously upon the basis that the appellant has been resident in the UK rather that 'lawfully resident'. The decision of the respondent has been written on the erroneous understanding that section 117C(4)(a) simply requires that the appellant has been resident in the UK for most of his life. The mistake was identified by the respondent immediately upon the decision of the FtT being promulgated. The appellant will not be without redress. The respondent accepts the appellant is socially and culturally integrated in the United Kingdom as referred to in section 117C(4)(b) and the respondent does not challenge the finding made by the FtT Judge that there would be very significant obstacles to the appellant's integration into Nigeria. The issue in the appeal will be whether there are very compelling circumstances over and above those described in Exception 1, having regard to the extent to which the appellant is unable to rely upon Exception 1.
26.
There can be no criticism of the judge but I find therefore that the decision of FtT Judge Dixon is vitiated by material errors of law such that it must be set aside.
27.
As to disposal,
I am conscious of the Court of Appeal's decision in
AEB v SSHD [2022] EWCA Civ 1512,
Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC) and ยง7.2 of the Senior President's Practice Statements. Sub-paragraph (a) deals with where the effect of the error has been to deprive a party before the Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the FtT, whereas sub-paragraph (b) directs me to consider whether I am satisfied that the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.
28.
Although the issue in the appeal is limited, having regard to the nature of the error of law and as I have allowed the respondent to withdraw the concession previously made, the appellant should be permitted to have the full benefit of the two-tier appeal structure. I accept the appellant was deprived of a fair opportunity to have his Article 8 appeal considered by the FtT and the appropriate course, in fairness to the appellant, is for the appeal to be remitted for rehearing before the FtT.
Notice of Decision
29.
The decision of First-tier Tribunal Judge Dixon is set aside.
30.
The appeal is remitted to the FtT for hearing afresh. For the avoidance of doubt:
31.
The parties will be notified of a hearing date by the FtT in due course.
V. Mandalia
Upper Tribunal Judge Mandalia
Judge of the Upper Tribunal
Immigration and Asylum Chamber
4 April 2025