Tribunal’s jurisdiction: Appreciating when and how to tactfully raise a New Matter in an appeal

Nothing deflates an Appellant more than leaving an appeal venue without their substantive appeal having been heard by a Tribunal Judge.  Such a situation can arise where a Tribunal Judge cannot consider a raised  new matter not previously considered by the Home Office unless the Secretary of State has given consent for the Tribunal to do so.

 

Relevant Home Office Policy Guidance gives examples of what is likely to constitute a new matter:

 

  • where there is a human rights claim based on a relationship and the couple have now had a child and this has not previously been considered by the Secretary of State, because the existence of the child adds an additional distinct new family relationship (with a requirement to consider the best interests of the child) which could separately raise or establish a ground of appeal under Article 8 ECHR

  • the appellant made a human rights claim based on a relationship and at the appeal the appellant says that their human rights claim is based on a new relationship, as although the Secretary of State will previously have considered Article 8 ECHR, the factual basis for that claim will have changed and therefore it will be a new matter

  • a protection claim has been made, and the appellant is now claiming removal would be (or would also be) a breach of Article 8 ECHR based on their family life in the UK

  • a human rights claim based on family life has been made, and the appellant is now claiming (or also claiming) that they are a refugee

  • a human rights claim has been made based on private life under Article 8, and the appellant is now claiming (or also claiming) that removal would be a breach of Article 8 ECHR on the basis of family life because the appellant has now married a British Citizen

Article 8 human rights appeals normally take several months to be heard in the Tribunal. During this time, the factual substance of an Appellant’s claim may evolve. Where new facts emerge prior to the hearing, much time and energy is usually focused upon preparing detailed witnesses statements and gathering relevant evidence. Concerted effort is therefore paid to  making plain what the Judge should see and consider at the hearing. What however gets lost in all this, is recognition of the fact that none of the new facts and accompanying evidence would have been forwarded to the Secretary of State for consideration prior to the appeal hearing.

It can be costly to attend a Tribunal hearing but then have to walk away without being heard by a Judge. In most cases, legal costs would have been incurred towards preparing for the appeal and attending on the day of the hearing itself.  In order to seek to avoid some disappointment, it is worth a good try to present the new facts and material before the Home Office as soon as they come to light. Whether the relevant decision – maker decides to timely consider the new facts, material and representations is a different matter: what matters is the ability to evidence at the hearing that in effect, for example, fully prepared Article 8 representations based on a new relationship have been presented to the Secretary of State as a new matter specifically requiring consideration before the appeal hearing date.   Several well- timed regular chase up correspondence requiring a response from the Secretary of State may also need to be presented to the Tribunal.

A question might arise as to why an affected appellant would simply not submit a new application directly to the Home Office based on the new relationship as soon as possible. Firstly , as indicated above, sight might be lost of the fact that a new matter has indeed arisen until perhaps just a few weeks or days prior to the hearing. Secondly, where it is possible to obtain the Secretary of State’s consent, an appellant could be saved from making provision towards the substantial Home Office application fee and the NHS Surcharge. Thirdly, Home Office policy guidance itself, Rights of appeal, makes it clear that if a  new matter is raised before an appeal hearing, the Secretary of State should try to consider the matter before the appeal hearing so that consent can be given and the Tribunal can consider all matters relating to that appellant in a single appeal.   The Guidance also provides that withholding consent can delay the conclusion of the person’s claim and consequently delay the grant of leave or efforts to remove the person from the UK: consent should be given unless it would prejudice the Secretary of State not to be able to consider the new matter.

Summary basics on Rights of Appeal:

Rights of appeal exist against the following decisions:

 

  • refusal of a human rights or protection claim and revocation of protection status – appeal rights are in Part 5 of the Nationality, Immigration and Asylum Act 2002 (the 2002 act)

  • refusal of a visa and refusal to vary leave to remain, in some situations, where the application was made before the Immigration Act 2014 was in force

  • refusal to issue a European Economic Area (EEA) family permit as well as certain other EEA decisions where appeal rights are in Regulation 36 of the Immigration (European Economic Area) Regulations 2016

  • deprivation of citizenship whereby Section 40A of the British Nationality Act 1981 applies

The grounds on which an appeal can be brought are set out in section 84 of the 2002 Act and in summary provide that the appeal can only consider the refusal of the claim made.

Section 92 of the 2002 Act sets out where an appeal will take place. It should be read together with sections 94 and 94B which relate to certification when an appeal that would otherwise take place in the UK must be lodged after the appellant has left the UK.

Section 96 of the 2002 Act provides that where the refusal of a claim would ordinarily result in a right of appeal, there will be no right of appeal if the claim should have been made earlier. Section 96 works together with section 120 which imposes an ongoing duty on individuals to raise new matters with the Secretary of State as soon as reasonably practicable after they arise.

Where there is no right of appeal, it may be possible for a person to apply for an administrative review of a refusal of an application if it is an eligible decision and it is alleged that a case working error has occurred. These concepts are defined in Appendix AR of the Immigration Rules and the guidance on Administrative review.

 

Basics on S120 Notices:

 

The new process under the Immigration Act 2014 requires that a section 120 notice is served in every case. This notice requires the person to make any further claim now or as soon as reasonably practicable after it arises.

 

The consequence of not complying with the notice and making a late claim could be that the claim is certified under section 96 of the Nationality, Immigration and Asylum Act 2002. This removes any subsequent right of appeal where the claim is refused.

 

Section 120 of the Nationality, Immigration and Asylum Act 2002 states that the Secretary of State (SSHD) or an immigration officer may serve a notice on a person who has:

 

  • made a protection claim or a human rights claim

  • made an application to enter or remain in the UK

  • a decision to deport or remove has been made or may be taken

Once a person has been served with a section 120 notice, if that person requires leave to be in the UK (or only has leave by virtue of section 3C or 3D of the Immigration Act 1971), the person must provide a statement setting out any additional reasons or grounds they have for remaining in the UK, or any grounds on which they should not be removed from the UK.

This is an ongoing duty which continues until the individual has either left the UK or has been granted leave.

A further statement must be made if a new reason or ground for remaining in the UK arises. Any reasons or grounds must be raised as soon as reasonably practicable. There is no requirement to reiterate grounds or reasons that the Secretary of State is already aware of, or that have previously been considered.

Where a person makes a statement in response to a section 120 notice they may be told that in order to have the matter considered they must make an application on a specified form or follow a specified process, for example, by attending an asylum screening unit to make an asylum claim.

However, if a person wishes to raise again a ground that has previously been refused, supported by further evidence because their circumstances relating to that ground have changed, that information should be included in a section 120 response. For example, if a person has previously made an application on the basis of family life which was refused because they were single, now claims to have established family life (such as marriage, children from the relationship), that information should be provided to the Secretary of State together with details of the claim for family life.

A time limit may be specified on the section 120 notice. This time limit indicates the period after which a decision may be made. However, once this limit has expired, a person is still under an ongoing duty to provide the Secretary of State with any new or additional reason or ground. If the time limit has expired, the Secretary of State must still consider the matter or grounds raised but if appropriate may be able to certify any claim under section 96.

 

Tribunal’s Jurisdiction – New Matter:

 

Section 85 of the Nationality, Immigration and Asylum Act 2002 states that the Tribunal may consider evidence about any matter which it thinks relevant to the substance of the decision, including a matter arising after the date of the decision.

There are restrictions on the consideration of new matters. A new matter is a ground of appeal not previously considered by the Secretary of State (SSHD). A person may wish to raise a new matter as part of an appeal under section 82(1). The Tribunal however, must not consider a new matter(which amounts to a ground of appeal listed in section 84) unless the SSHD has given consent for the Tribunal to do so.

The position therefore is that a new matter should not be raised before the Tribunal unless the SSHD has had a chance to consider the new matter.

 

What is a new matter?

A new matter is a human rights or protection claim that the SSHD has not previously considered in the decision under appeal or a response to a section 120 notice.

There will be a new matter when the factual matrix has not previously been considered by the SSHD.

A new matter is something factually distinct from the claim previously made by the appellant, as opposed to further or better evidence of an existing matter.

The question of whether something is a new matter is therefore always a fact sensitive one.

 

Why a new matter needs to be raised before the appeal hearing:

If a new matter is raised before an appeal hearing, for example in the grounds of appeal, the SSHD should try to consider the matter before the appeal hearing so that consent can be given and the Tribunal can consider all matters relating to that appellant in a single appeal.

Home Office policy guidance states that even if the new matter is not identified until shortly before or at the hearing, if it can be considered and a decision reached quickly, that should be done. If the new matter cannot be considered before the appeal hearing, for example because the Presenting Officer(PO) needs to check whether a document is genuine and there is insufficient time to do so, the PO should inform the Tribunal that a new matter has been raised and that the SSHD does not consent to it being considered by the Tribunal.

In order to make best use of Tribunal resources, an adjournment should be sought for the SSHD to consider the new matter. Where possible, a single appeal should consider all matters that have been raised by the appellant.

 

If the Tribunal does not agree to an adjournment, the PO must consider whether to:

 

  • refuse consent because the SSHD is unable to consider the new matter in the time available

  • record the reasons for seeking an adjournment and the reasons why it was refused in their hearing minute

The Home Office will then consider the minute in deciding whether to challenge any allowed appeal on procedural grounds.

 

Consent to hear new matters should be given:

 

The Secretary of State considers in her Guidance that withholding consent can delay the conclusion of the person’s claim and consequently delay the grant of leave or efforts to remove the person from the UK. Consent should be given unless it would prejudice the SSHD not to be able to consider the new matter.

All the facts and circumstances of the case and the appellant should be considered when reaching a decision on consent.

 

Unless there are exceptional circumstances, consent should be refused if:

 

  • it is necessary to verify facts or documents that are submitted in support of the new matter and these checks are material to the new matter

  • the new matter is a protection claim and it has not already been confirmed that the UK is the responsible state for determining the claim

  • it is necessary to conduct additional checks such as a person’s criminal conviction history or the status of a criminal prosecution

Where consent would normally be refused, exceptional factors may mean that consent should be granted. Exceptional circumstances may include where the:

 

  • appellant or a dependent has a serious illness and the appeal needs to be determined on an urgent basis

  • matter had been raised with the SSHD and, through no fault of the appellant, there has been more than six months’ delay in the SSHD considering the matter

 

Where consent is refused:

 

Where consent is refused, the SSHD will provide written reasons for refusing consent.

 

If the new matter was raised and considered by the SSHD before the Tribunal hearing, the revised decision must be sent to the appellant and the Tribunal within 2 working days of the decision being made.

 

If the new matter is considered within 2 working days of the hearing, the revised decision will be sent to the appellant and the Tribunal no later than 4pm on the day before the hearing.

 

If the new matter is raised at the Tribunal hearing, written reasons will be provided for refusing consent within 2 working days of the hearing.

 

If the SSHD withholds consent the appeal should proceed on the basis of the original matter(s) only. No action should be taken on the new matter where consent has been refused until the appeal is determined.

 

If the appeal is allowed and leave is to be granted, the applicant should be notified that no action will be taken on the new matter, on which consent was withheld, unless a new application or claim is made raising the new matter.

 

If the appeal is dismissed then the SSHD will consider whether the new matter constitutes a claim which would give rise to a right of appeal. The SSHD will need to consider if it is possible to consider the new matter on the information provided. The SSHD will direct a person to make a charged application if appropriate and if any claim is refused may certify the claim if it is late or clearly unfounded.

 

Tribunal’s Jurisdiction- where the Tribunal considers a new matter without the SSHD’s consent:

 

If the Tribunal considers a new matter without the SSHD giving consent for it to do so, it is acting outside its jurisdiction.

 

If the SSHD withholds consent on the new matter and the Tribunal proceeds to consider the new matter, the PO should not make any representations or submissions relating to the new matter during the hearing.

 

The PO should inform the Tribunal that in the view of the SSHD it has acted outside its jurisdiction and seek permission to appeal against the judgment if the appeal is allowed.

 

Relevant case law:

 

Mahmud (S. 85 NIAA 2002 – ‘new matters’)  [2017] UKUT 488 – Tribunal decisions :

“29. A matter is the factual substance of a claim. A ground of appeal is the legal basis on which the facts in any given matter could form the basis of a challenge to the decision under appeal. For example, medical evidence of a serious health condition could be a matter which constitutes a ground of appeal on human rights grounds based on Article 3 of the European Convention on Human Rights which if breached, would mean that removal would be contrary to section 6 of the Human Rights Act, a ground of appeal in section 84(2) of the 2002 Act. Similarly, evidence of a relationship with a partner in the United Kingdom could be a matter which constitutes a ground of appeal based on Article 8 and for the same reasons could fall within section 84(2) of the 2002 Act as if made out, removal would be contrary to section 6 of the Human Rights Act.

30.A ‘new matter’ is a matter which constitutes a ground of appeal of a kind listed in section 84, as required by section 85(6)(a) of the 2002 Act. Constituting a ground of appeal means that it must contain a matter which could raise or establish a listed ground of appeal. In the absence of this restriction, section 85(5) of the 2002 Act could potentially allow the Respondent to give the Tribunal jurisdiction to consider something which is not a ground of appeal by consent, thereby undermining sections 82 and 84 of the 2002 Act;

31.Practically, a new matter is a factual matrix which has not previously been considered by the Secretary of State in the context of the decision in section 82(1) or a statement made by the appellant under section 120. This requires the matter to be factually distinct from that previously raised by an appellant, as opposed to further or better evidence of an existing matter. The assessment will always be fact sensitive. By way of example, evidence that a couple had married since the decision is likely to be new evidence but not a new matter where the relationship had previously been relied upon and considered by the Secretary of State. Conversely, evidence that a couple had had a child since the decision is likely to be a new matter as it adds an additional distinct new family relationship (with consequential requirements to consider the best interests of the child under section 55 of the Borders, Citizenship and Immigration Act 2009) which itself could separately raise or establish a ground of appeal under Article 8 that removal would be contrary to section 6 of the Human Rights Act.

33.The second part of construction with which we have to deal is the meaning of consent in section 85(5) of the 2002 Act. A Tribunal may consider new matters if the Secretary of State has given the Tribunal consent to do so.

42.The Respondent accepts that her view in any particular case as to whether a matter is a ‘new matter’ is not determinative of the issue, nor must it be accepted by the First-tier Tribunal. Whether something is or is not a ‘new matter’ goes to the jurisdiction of the First-tier Tribunal in the appeal and the First-tier Tribunal must therefore determine for itself the issue.

44.Section 85(5) and (6) of the 2002 Act place limits on the jurisdiction of the First-tier Tribunal, which is a statutory tribunal: the Tribunal must determine issues of jurisdiction for itself.

45.Counsel for the Respondent submitted that the following provides a structure for a Tribunal to assess whether it has jurisdiction to consider particular material, as follows:

 

  • What is the ‘matter’ which it is alleged constitutes a ‘new matter’ for the purpose of section 85(5)? What are its ingredients both in fact and in law?

  • Does the ‘matter’ constitute a ground of appeal of a kind listed under section 84?

  • Has the Respondent previously considered the ‘matter’ in the context of the decision referred to in section 82(1)?

  • Has the Respondent previously considered the ‘matter’ in the context of a statement made by the appellant under section 120?

  • If the ‘matter’ is a ‘new matter’, has the Respondent given consent for the Tribunal to deal with the ‘new matter’?

46.This proposed structure approaches the matter by way of identification of the relevant law and facts and then follows through consideration of the constituent parts of section 85 of the 2002 Act. That is an appropriate and sensible process to adopt as a matter of practice. The issue of whether a ‘matter’ is a ‘new matter’ is inevitably a fact sensitive one to be assessed in each appeal, but should be identifiable by something being raised that is distinguishable from and outside of the context of the original claim and decision in response to it, as well as something which constitutes a ground of appeal in section 84 of the 2002 Act”.

Quaidoo (new matter: procedure/process) 2018] UKUT 00087(IAC) – Tribunal decisions:

1.If, at a hearing, the Tribunal is satisfied that a matter which an appellant wishes to raise is a new matter, which by reason of section 85(5) of the Nationality, Immigration and Asylum Act 2002, the Tribunal may not consider unless the Secretary of State has given consent, and, in pursuance of the Secretary of State’s Guidance, her representative applies for an adjournment for further time to consider whether to give such consent, then it will generally be appropriate to grant such an adjournment, rather than proceed without consideration of the new matter

 2.If an appellant considers that the decision of the respondent not to consent to the consideration of a new matter is unlawful, either by reference to the respondent’s guidance or otherwise, the appropriate remedy is a challenge by way of judicial review.

Conclusion

 

Although the issue of consent can be raised for the first time on the day of the hearing itself, there is a risk of refusal from the Secretary to State. The Secretary of State’s own Guidance however can be relied upon so as to submit that consent should be given, more so where all efforts have been made to present the new matter to the Home Office well prior to the hearing date.

 

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