The Court of Appeal has emphasised the importance of procedural discipline in immigration appeals, finding that a party who unequivocally withdraws a ground of appeal before the Upper Tribunal cannot ordinarily seek to revive that argument before the Court of Appeal.
In Secretary of State for the Home Department v Hirtie [2026] EWCA Civ 1000, delivered on 30 July 2026, the Court considered an appeal concerning the deportation of a Romanian national who had been convicted of section 18 wounding with intent and sentenced to 39 months’ imprisonment.
The appellant was therefore a “foreign criminal” for the purposes of section 32 of the UK Borders Act 2007 and was liable to automatic deportation. The Secretary of State rejected his human rights claim in September 2023, finding that neither of the exceptions to deportation under section 117C of the Nationality, Immigration and Asylum Act 2002 applied and that there were no “very compelling circumstances” outweighing the public interest in his deportation.
The Secretary of State’s decision was framed throughout on the basis that the appellant’s partner and children would remain in the United Kingdom following his deportation. This became known as the “stay” scenario. The possibility that his family might instead relocate to Romania, described as the “go” scenario, was not addressed in the decision.
Before the First-tier Tribunal, the appellant’s skeleton argument expressly identified the “go” scenario as a matter that was not in dispute. The Secretary of State did not challenge that position. The First-tier Tribunal subsequently allowed the appeal, finding that separation from the appellant would have a profound impact on his partner, whose traumatic personal history included losing both parents at a young age and being raised in an orphanage. The Tribunal concluded that the circumstances went beyond undue hardship and amounted to “very compelling circumstances” for the purposes of section 117C(6).
The Secretary of State subsequently sought to introduce the “go” scenario as a ground of appeal before the Upper Tribunal. However, the Senior Presenting Officer ultimately agreed that the ground should be withdrawn. The withdrawal was unequivocal, and the Upper Tribunal proceeded to reject the Secretary of State’s remaining ground and uphold the First-tier Tribunal’s decision.
Before the Court of Appeal, the Secretary of State sought to resurrect the “go” scenario, arguing that section 117A(2)(b) of the 2002 Act required the Tribunal to consider the possibility of the appellant’s family relocating to Romania irrespective of whether the issue had been raised by either party.
The Court rejected that approach. Stuart-Smith LJ emphasised that the Secretary of State had been properly represented before the Upper Tribunal and had not been forced to withdraw the ground. No good reason had been provided for seeking to resurrect it on appeal.
The Court applied the principles set out in Singh v Dass [2019] EWCA Civ 360, under which appellate courts will generally be cautious about allowing a new point to be raised where doing so would require new evidence or would have resulted in the first-instance hearing being conducted differently.
In Hirtie, the Court found that consideration of the “go” scenario would require fresh evidence concerning the difficulties that the appellant’s family would face in relocating to Romania. Had the issue been live before the First-tier Tribunal, the hearing would consequently have proceeded differently. It was therefore not a pure point of law capable of being resolved for the first time by the Court of Appeal.
The judgment also endorsed the broader case-management principles established in Lata (FtT: Principal Controversial Issues) [2023] UKUT 163 (IAC) and subsequently approved by the Court of Appeal in AL v Secretary of State for the Home Department [2026] EWCA Civ 370. Parties are expected to identify the principal issues in dispute clearly and at an early stage, and a tribunal should ordinarily be able to expect clarity as to the issues that remain contested by the substantive hearing.
The Court rejected the suggestion that the Secretary of State could rely on the statutory obligation to consider all relevant circumstances as a basis for avoiding those procedural requirements. Having failed to address the “go” scenario in the original decision, failed to challenge its identification as an undisputed issue before the First-tier Tribunal and subsequently withdrawn the ground before the Upper Tribunal, the Secretary of State could not simply revive the argument before the Court of Appeal.
The Court also considered the Secretary of State’s challenge to the First-tier Tribunal’s finding of “very compelling circumstances”. That challenge was similarly unsuccessful.
Although the First-tier Tribunal judge had not expressly set out the wording of section 117C or provided a concluding checklist of the relevant factors, the Court was satisfied that he had understood and applied the correct legal test, including the requirement that the threshold for establishing very compelling circumstances was exceptionally high.
The Court also rejected the argument that the First-tier Tribunal’s assessment of the psychological impact of separation was legally flawed because it was not supported by expert medical evidence. Having found the witnesses to be honest and credible and their evidence sincere and heartfelt, the Tribunal was entitled to assess the likely psychological consequences of separation on the basis of that evidence.
The Court therefore dismissed the Secretary of State’s appeal.
The decision provides an important reminder of the need for parties in immigration proceedings to identify their cases clearly, narrow the issues at an early stage and adhere to positions adopted before the lower tribunals. It also confirms that appellate courts will be reluctant to permit a party to introduce an argument which was either not advanced below or was expressly withdrawn, particularly where doing so would require new evidence or would have materially altered the conduct of the original hearing.
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