MH (Appendix EU, withdrawal of concession) Albania
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What was at stake
The case reviews the withdrawal of an EU‑related concession for an Albanian national.
What happened
The appellant, MH, an Albanian national, applied under the EU Settlement Scheme, claiming a derivative right to reside based on her role as a primary carer for her EU citizen child. Her application was refused by the Secretary of State due to her having leave to remain under Appendix FM. The appellant appealed, and at the hearing, the respondent conceded that the appellant met the relevant rules under Appendix EU, leading to the appeal being allowed.
What the court decided
In the Appendix EU definition of "person with a derivative right to reside", category (a) does not exclude those who held another form of leave to remain, and the EU11/EU14 eligibility conditions must be met at the date of application and by the required date. The Tribunal set out eight non-exhaustive factors for deciding whether a party may withdraw a concession, the touchstone being "good reasons" inseparable from the overall interests of justice and fairness, with a wholesale concession that disposed of an entire appeal (made at a substantive hearing by a specialist advocate after full evidence) carrying significant weight against withdrawal. Applying this, the Upper Tribunal refused to let the Secretary of State resile from the concession and held the First-tier Tribunal's decision allowing MH's EUSS derivative-rights appeal did not involve an error of law.
How the court got there
The Upper Tribunal decided that the concession made by the respondent at the First-tier Tribunal hearing should not be withdrawn. The Tribunal considered the factors for deciding whether a party may withdraw a concession, including the touchstone of 'good reasons' and the overall interests of justice and fairness. The Tribunal found that the respondent had not established good reasons to withdraw the concession, particularly given the wholesale nature of the concession and the potential prejudice to the appellant.
Statutes and cases cited
- Velaj v Secretary of State for the Home Department
- Akinsanya & Anor, R (On the Application Of) v SSHD
- Maisiri (EUSS, Zambrano, 'Realistic Prospect' policy)
Categories
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