When can the Home Secretary revive an argument she withdrew below?
21 August 2026
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Secretary of State for the Home Department v Hirtie [2026] EWCA Civ 1000, handed down by the Court of Appeal on 30 July 2026, is a deportation appeal that turns less on the substance of Article 8 than on procedural discipline: whether a party who unequivocally withdraws a ground of appeal before the Upper Tribunal (”UT”) can resurrect it before the Court of Appeal. The Court’s answer, delivered by Stuart-Smith LJ, was a firm no, reinforcing a growing body of authority requiring parties to identify and narrow the issues in dispute at the earliest opportunity.
Background
Mr Hirtie, a Romanian national, was convicted of section 18 wounding with intent (the most serious form of assault) and sentenced to 39 months’ imprisonment, making him a “foreign criminal” under section 32 of the UK Borders Act 2007 and liable to automatic deportation.
The Secretary of State (”SSHD”) rejected his human rights claim in September 2023, finding that neither exception 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 removal.
The decision letter was structured throughout on the assumption that Mr Hirtie’s partner and children would remain in the United Kingdom following his deportation — the “stay” scenario. As Hirtie records at §13: “The structure of the SSHD’s reasoning is clear beyond argument: the possibility of Mr Hirtie’s partner and children going to live in Romania was simply not in issue.”
The route through the tribunals
Mr Hirtie’s skeleton argument before the First-tier Tribunal (“FtT”) expressly identified the “go” scenario as a matter not in dispute, and the SSHD never contradicted this. The FtT allowed the appeal, finding that separation from Mr Hirtie would have a “profound” impact on his partner — going “beyond undue hardship” — given her traumatic history of losing her parents young and being raised in an orphanage, and that this amounted to “very compelling circumstances” under section 117C(6).
On appeal to the UT, the SSHD raised the “go” scenario for the first time as Ground 1, drafted in terms the presiding judge, UTJ O’Callaghan, considered misleading. Hirtie records at §31: “The end result was that the Senior Presenting Officer who was appearing for the SSHD agreed that Ground 1 … should be withdrawn. The withdrawal was unequivocal, albeit in the face of a heavy judicial headwind.” The UT went on to reject the SSHD’s remaining ground and upheld the FtT’s decision.
Reviving a withdrawn ground
Before the Court of Appeal, the SSHD sought to resurrect the “go” scenario, arguing that section 117A(2)(b) of the 2002 Act obliged the tribunal to consider it regardless of whether either party had raised it. Warby LJ, granting permission, deliberately left open whether a party could revive an argument withdrawn below.
Stuart-Smith LJ rejected the attempt at §52: “She had been properly represented before the UT and was not forced to withdraw the ground. No good reason was offered for resurrecting it on appeal.”
Applying Singh v Dass [2019] EWCA Civ 360, decided 7 March 2019, the Court set out the governing test for admitting a new point on appeal. Haddon-Cave LJ held at §16-17 of that case: “An appellate court will be cautious about allowing a new point to be raised on appeal that was not raised before the first instance court… An appellate court will not, generally, permit a new point to be raised on appeal if that point is such that either (a) it would necessitate new evidence or (b), had it been run below, it would have resulted in the trial being conducted differently with regards to the evidence at the trial.”
Applying this in Hirtie, the Court held at §53 that admitting the “go” scenario would require fresh evidence about relocation difficulties, that the FtT hearing would have unfolded differently had the issue been live, and that this was not a pure point of law the Court of Appeal could resolve without remittal.
The deeper procedural principle
More fundamentally, the Court held that allowing the SSHD to raise the “go” scenario now would conflict with the case-management philosophy established in Lata (FtT: Principal Controversial Issues) [2023] UKUT 163 (IAC), decided 23 June 2023, and endorsed by the Court of Appeal in AL v Secretary of State for the Home Department [2026] EWCA Civ 370, handed down 31 March 2026.
Lata’s headnote states at point 4: “It is a misconception that it is sufficient for a party to be silent upon, or not make an express consideration as to, an issue for a burden to then be placed upon a judge to consider all potential issues that may favourably arise, even if not expressly relied upon.”
In AL, Elisabeth Laing LJ endorsed this approach, explaining at §78 that upon proper engagement with the appeal skeleton process “a judge sitting in the First-tier Tribunal can properly expect clarity as to the remaining issues between the parties by the date of the substantive hearing.” She further held, applying the narrow Robinson-obvious exception (from R (Robinson) v Secretary of State for the Home Department [1998] QB 929), that a decision cannot be criticised for failing to address an issue neither party raised, unless it was “a point which has strong prospects of success if it is argued. Nothing less will do” (Robinson at 946B-D, cited in AL at §68).
Hirtie held at §54-55 that the SSHD was not exempt from this obligation. Having omitted any reasoned discussion of relocation difficulties from the decision letter, and having failed to challenge Mr Hirtie’s skeleton assertion that the “go” scenario was not in dispute, her silence was, per Stuart-Smith LJ, “consistent with the issue not forming part of her decision-making process and not being in dispute between the parties.”
The “very compelling circumstances” ground
The SSHD’s second ground argued that the FtT’s finding of “very compelling circumstances” was legally flawed, inadequately reasoned, and perverse — partly because the judge did not expressly cite section 117C, and partly for want of expert medical evidence about the partner’s mental health.
The Court disagreed. At §62-63, Stuart-Smith LJ held that although the FtT judge did not set out section 117C verbatim, he plainly understood and applied the correct “very high bar,” relying on Ali v Secretary of State for the Home Department [2016] UKSC 60, decided 16 November 2016 (also cited as Hesham Ali), for the proposition that the public interest in deporting foreign criminals must be accorded very significant weight. The absence of a concluding checklist recapping the relevant factors was immaterial (§64).
On perversity, the FtT judge had found the partner and Mr Hirtie’s brother “honest and credible” witnesses giving “sincere and heartfelt evidence” (§66-67), and the Court held that FtT judges are entitled to make findings about the psychological impact of separation on the basis of accepted witness evidence alone, without corroborating expert medical evidence. The judge’s conclusion, reached “by a narrow margin,” was nonetheless sufficient to withstand appellate scrutiny (§68).
Comment
Hirtie offers several practical lessons for immigration and public law practitioners handling deportation and Article 8 appeals:
- Withdrawal is generally final. A party that unequivocally withdraws a ground before the UT, while properly represented and without compulsion, should not expect the Court of Appeal to allow its resurrection absent compelling justification (Hirtie at §52).
- Case-management discipline applies to the Secretary of State too. Lata and AL are not confined to appellants; the SSHD is equally bound to identify and narrow issues at the earliest stage (Hirtie at §55).
- Silence has consequences. Failing to engage with an opponent’s stated “matters not in dispute” will be treated as acceptance, not oversight (Lata headnote, point 4).
- New points face a high bar. Singh v Dass remains the touchstone: a new point requiring fresh evidence, or one that would have changed how the hearing below was conducted, will not be entertained on appeal (Singh at §16-17).
- The FtT’s reasoning need not be exhaustive. Provided the tribunal identifies and applies the correct legal test in substance, a judgment will not be struck down merely for lacking a concluding checklist (Hirtie at §64).
- Witness credibility can suffice without expert evidence. Findings about the psychological impact of separation may properly rest on accepted witness testimony alone (Hirtie at §67).
The case is a useful, moderately short illustration of how tightly the appellate courts are now enforcing the “principal controversial issues” discipline established in Lata — a discipline that applies as much to the Home Office as to any other litigant.
Matthew Howarth is a barrister at 1 Crown Office Row.
