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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“The end result was that the Senior Presenting Officer who was appearing for the SSHD agreed that Ground 1 … should be withdrawn.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.
In R (Al Hashimi) v Secretary of State for the Home Department [2026] EWCA Civ 943, the Court of Appeal held that a woman living in the United Arab Emirates could not invoke Articles 8 and 14 of the European Convention on Human Rights (“ECHR”) to challenge sex discrimination in UK nationality legislation. The preliminary obstacle was Article 1: she was not within the United Kingdom’s jurisdiction for Convention purposes (§1).
The decision is a clear restatement of the territorial limits on the ECHR. A decision taken in the UK, even one that substantially affects the interests of a person abroad, does not itself establish jurisdiction over that person (§§28-29, 39).
The Court of Appeal in Re J, Re M and Re P (Parental Responsibility) [2026] EWCA Civ 344 has provided authoritative guidance on a fundamental question in family law: whether a person who is not a child’s biological father can acquire parental responsibility by being named on the birth certificate. The court firmly answered that question in the negative, clarifying the meaning of “father” under the Children Act 1989 and resolving a line of inconsistent first instance decisions.
In addition to undertaking a comprehensive review of the AF-disclosure case law, Chamberlain J also rejected the notion of some form of an intermediate level of disclosure in closed material proceedings, where the AF-disclosure threshold is not met. The decision offers some much-needed clarity in this area of law.
In Medmoune v France App no 55026/22 (ECHR, 5 February 2026), the Fifth Section of the European Court of Human Rights considered the extent of a Member State’s obligation under Art. 2 ECHR (the right to life) when deciding to withdraw life support, in circumstances where the patient had explicitly asked for it to be continued.[1] The judgment helpfully illustrates the contentious boundary at which informed patient consent must give way to the expert opinion of medical professionals.
In a recent judgment, the High Court in AAA v Human Fertilisation and Embryology Authority [2026] EWHC 317 (Fam) (Morgan J) heard 15 applications from fertility clinic patients for declaratory relief. Those patients (the “Applicants”) had embryos or gametes which were stored at various fertility clinics. They sought declarations that it was lawful for those gametes or embryos to continue to be stored and used in circumstances where their written consent to storage had expired and had not been renewed (within the timeframes provided by legislation for renewal of consent).
Morgan J found that there were relevant administrative failures and oversights on behalf of the fertility clinics, and relief was granted in relation to 14 out of the 15 applications.
The Human Fertilisation and Embryology Authority (“HFEA”), the fertility clinics, and the Secretary of State for Health and Social Care (“SSHSC”) were Interested Parties to the applications.
How should the Legal Aid Agency (LAA) respond when a person with anorexia, which has had a “severe and debilitating impact on her physical and mental health” for a long time, applies for legal aid to assist her with making an application to the Home Office for permission for her medical team to treat her with psilocybin (the main psychoactive component in various mushrooms commonly referred to as magic mushrooms)?
In R (EB) v Director of Legal Aid Casework [2026] EWHC 402, the High Court considered a challenge to the LAA’s refusal of legal aid for exactly that purpose. The Claimant had been a participant in a clinical trial at Imperial College London (a global leader in psychedelic research, and had found the treatment highly effective with no side effects ([4]). Psilocybin, though, is a controlled drug, and cannot be used even medically without authorisation from the Home Secretary under Section 5 of the Misuse of Drugs Regulations 2001 (the Regulations), which is far from straightforward.
In its judgment in the case of IA & Ors v Secretary of State for the Home Department [2025] EWCA Civ 1516, handed down on 26 November 2025, the Court of Appeal reaffirmed the correct test for establishing the existence of family life between non-core family members under Article 8 of the European Convention on Human rights (“ECHR”). It also clarified the proper conceptual framework for considering the subtle interaction between the rights of non-claimant family members and the UK’s Convention obligations to individuals outside its territory. Finally, it emphasised the centrality of the Government’s immigration policy to any exercise considering the proportionality of an interference with an individual’s Article 8 rights in the immigration context.
The Court of Appeal in Re D has overturned final care and placement orders made at an Issues Resolution Hearing (“IRH”), stating that judges must give clear, reasoned findings on the threshold criteria under section 31(2) Children Act 1989 (“CA 1989”), even where proceedings are uncontested or parents are absent.
In delivering the judgment, Cobb LJ, with whom Baker LJ and Miles LJ agreed, criticised the short form reasoning used by the Family Court and stressed the need for transparent judicial decision-making when the State intervenes in family life under Article 8 of the European Convention on Human Rights (“ECHR”).
In EBB and others v The Gorse Academies Trust [2025] EWHC 1983 (Admin), the Honourable Mrs Justice Collins Rice gave judgment in a multi-faceted, rolled-up permission and judicial review hearing concerning three high school students’ experiences of being disciplined within their school (“the School”).
These appeals – Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs and Dalston Projects Ltd v Secretary of State for Transport – were a test case for the operation of the UK’s sanctions regime introduced in response to Russia’s invasion of Ukraine.
The Supreme Court confirmed that while the court’s task is to assess proportionality for itself, a wide margin of appreciation will be afforded to the executive in judging how best to respond to and restrain Russia’s actions in Ukraine.
In U3 (AP) v Secretary of State for the Home Department[2025] UKSC 19, the Supreme Court has unanimously dismissed an appeal against a decision taken by the Special Immigration Appeals Commission (“SIAC”) relating to deprivation of citizenship and refusal of entry clearance on the basis of national security concerns.
The applicant in the ECtHR case of Karsai v Hungary, Mr Karsai, a 47-year-old human-rights lawyer who lives in Budapest, was diagnosed in 2022 with amyotrophic lateral sclerosis (ALS) – a neurodegenerative disease that causes a progressive loss of motor neuron function leaving the patient completely paralysed, while preserving intellectual function. Mr Karsai maintains that “he will be “imprisoned in his own body without any prospect of release apart from death” and his existence will consist almost exclusively of pain and suffering” (§14). Mr Karsai applied to the ECtHR arguing that the prohibition on assisted dying under Hungarian law violated his right to private life (art. 8 ECHR); the applicant also complained the violation of his right to private life in conjunction of his right not to be discriminated against (art. 14 ECHR) because the Hungarian law offers the option of withdrawal of invasive medical treatments (and, hence, hasten their death) only to terminally ill patients who are dependent on them.
Article 8
Regarding the potential violation of the applicant’s right to privacy, his primary argument centres on his desire to control the timing of his death. Due to his medical condition, he is condemned to a life of physical incapacity, pain, and existential dread. The applicant dismisses palliative care as a viable option: “While palliative care could provide relief with respect to certain aspects of his physical suffering, it could not provide relief from the experience of existential dread” (§91). Instead, he focuses on the fact that he cannot avail himself of assisted suicide provisions either in Hungary or abroad. Hungarian law prohibits assisting a patient in procuring their death, and even those aiding with arrangements for this purpose can face prosecution (§§135; 159).
The Court observed that, due to the lack of a uniform consensus among member states on assisted dying practices, each state is granted a considerable margin of appreciation in implementing policies on such sensitive issues. The court also noted, as the recent case of Mortier v. Belgium held, that the right to life (art. 2 ECHR) does not inherently exclude the decriminalisation of assisted dying. However, this decriminalisation must be accompanied by safeguards to prevent abuses of the right to life (§§126-128; 145).
The Court, finding no violation of art. 8, held that Mr Kasai’s suffering could not dismissed lightly. It noted that the applicant’s complaint mainly focused on “existential suffering” that “although it amounts to genuine and severe anguish, existential suffering relates essentially to a personal experience, which may be susceptible to change and does not lend itself to a straightforward objective assessment” (§158). Furthermore, the Court acknowledged that “existential suffering may be refractory to medical treatment […] and that the use of sedation to alleviate it might be contested or unwarranted in certain situations […]” (§157). Professor Aubry, one of the experts consulted by the Court, emphasised two key points. First, he noted that patients suffering from the same condition as the applicant often exhibit ambivalence about their desire to die as the disease progresses. Second, he underscored the importance of palliative care for individuals affected by ALS, particularly in advanced stages, when they are typically permitted to receive palliative deep sedation and can die peacefully (§46).
Article 14
Regarding the violation of art. 8 ECHR and art. 14 ECHR the Mr Karsai argued that “Hungarian law accorded different treatment to those terminally ill persons with mental capacity who suffered from refractory symptoms but could hasten their death only by means of PAD [physician assisted dying], and those who could do so by having recourse to RWI [refusal or withdrawal of life-sustaining interventions” (§170).
In this case the Court held that the applicant’s clinical picture could not be compared to that of terminally ill patients who depend on life-sustaining medical treatments (§174). In fact, Mr Kasai’s diagnosis might lead to invasive life-sustaining interventions only towards the latest stages of his degenerative illness. Furthermore, the withholding or withdrawing of unwanted medical treatments falls within the right to informed medical consent and it is subjected to specific guidelines and safeguards in order to protect the patient’s autonomy (§175).
According to Professor Sandor, who produced an expert opinion for the Court, the right to informed consent is paramount in bioethics. On the other hand, “patients could refuse care, but could not ask for something specific” (§56). For these reasons the Court held that there has been no violation of art. 14 in conjunction with art. 8 of the Convention.
Separate opinions
Two judges’ separate opinions provide an opportunity to delve deeper into the reasoning of the Court’s majority, as they both address the fundamental principles underlying the final decision. Judge Wojtyczek in his separate concurring opinion disagreed with the majority that the applicant’s request to have access to physician assisted dying would fall under his right to respect his private life. The judge emphasised how the right to life – as the practical and effective basis for the enjoyment of all other rights – may hardly “encompass decisions about one’s own life and death” and for this reason, the right to private life, should not extend to the choice of death (§4, Judge Wojtyczek partly concurring, partly dissenting opinion). He noted that the suffering stemming from a personal feeling in relation to the absence of meaning of life may be exacerbated (or not properly tackled) if people can choose their own death.
Judge Felici, dissenting on both accounts with the Court’s majority, firstly emphasised his impression that “the applicant’s legitimate concerns were not taken into account, and that his legitimate request for help fell on deaf ears” (§7, Judge Felici dissenting opinion). In fact, according to Judge Felici, palliative care could not be considered a feasible option to ease the applicant’s suffering since “the expert consulted have indicated that there is currently no medical treatment capable of alleviating existential suffering” (§9, Judge Felici dissenting opinion, my emphasis). In other words, the dissenting Judge stressed an evident reality: so far medicine has not been able to offer a cure to the sentiment that life has lost its meaning. And, for this reason, assisted dying is envisaged as the only possible answer to the applicant existential cry for help. Consequently, the dissenting judge finds that the impossibility for the applicant to avail himself of assisted dying provisions both in his country and abroad would breach his right to privacy enshrined by art. 8 of the Convention.
Specifically, Hungary – compared to other member states which permit assisted dying or are paying great attention on the matter – would have failed to address the severe suffering of the applicant (§5, Judge Felici dissenting opinion). Therefore, Judge Felici dissented that in this instance the margin of appreciation doctrine (which applies on sensitive matters where there is no uniform agreement) should not be invoked. Giving that, “there are no insurmountable legal obstacles to affirming a positive obligation on the part of the State, having regard to all the characteristics of this case, in relation to the application of Article 8 of the Convention” (§6, Judge Felici dissenting opinion).
Secondly, the Judge disagreed with the Court majority’s decision according to which the applicant’s medical condition should be considered similar to the one endured by terminally-ill patients subjected to invasive life-sustaining medical treatments since Mr Kasai’s condition has made him dependant on others for all his personal needs. Hence Judge Felici argued that “the subordination of the decision to take one’s life to whether one is dependent on life-saving treatment represents an unnecessary reduction of the protection of the right to life and an interference in private life, understood as the individual’s capacity for self-determination” (§13, Judge Felici dissenting opinion).
Dr Ilaria Bertini is a Research Fellow at BIOS Centre
The Supreme Court has ruled unanimously that the Scottish parliament does not have the power to pass legislation that would allow for a second referendum on Scottish independence. Such legislation, the Supreme Court found, would touch on ‘reserved matters’, that is, matters affecting the United Kingdom as a whole. The Scottish government unsuccessfully argued that a referendum would be advisory, and as it would not have immediate impact on the existence of the UK, would not touch on reserved matters. Sturgeon, while respecting the ruling, commented that it confirmed that the UK can no longer be pictured as a voluntary partnership and noted that the next general election could serve as a ‘de facto referendum’.
Nurses are preparing to strike for the first time on the 15th and 20th of December. The issues in question include low pay and unsafe staffing levels. The Royal College of Nursing (RCN) has reported that experienced nurses are 20% worse off in real terms than in 2010, due to many pay increases below the rate of inflation, and that 25,000 nursing staff have left the Nursing and Midwifery Council register since last year. If ministers continue to refuse to engage in formal negotiations with the RCN, the strikes will go ahead across England, Wales and Northern Ireland, and are expected to have a severe impact on care.
In Privacy International v Investigatory Powers Tribunal, the Divisional Court held that s.5 Intelligence Services Act 1994 does not permit the government to issue general warrants to engage in computer network exploitation (“CNE”) – more commonly known as computer hacking. The court also offered valuable guidance on warrants and what is required to make them lawful.
The Issues
There were three issues:
1. Does s.5 Intelligence Services Act 1994 (“the 1994 Act”) permit the Secretary of State to issue ‘thematic’ or ‘general’ warrants to hack computers? General warrants are those which purportedly authorise acts in respect of an entire class of people or an entire class of acts (e.g. ‘all mobile phones in London’).
2. Should the court allow the claim to be amended to include a complaint that, prior to February 2015, the s.5 regime did not comply with Articles 8 and 10 of the European Convention on Human Rights?
3. If permission is given to amend the claim, should the new ground succeed?
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