What Is a 'New Matter' in an Immigration Appeal?
Since many immigration appeals may take months to be heard by the Immigration Tribunal, circumstances will understandably evolve, which could constitute a new matter for the purposes of the appeal.
When appealing an immigration decision, it is important to consider whether a new matter is raised because the Immigration Tribunal does not have jurisdiction to consider the matter without the consent of the Secretary of State.
In this post, we examine new matters in immigration appeals, asking what is a new matter in an immigration appeal and what is the process of raising a new matter in an immigration appeal? Further information on the process of appealing an immigration refusal can be found in these Part 1 and Part 2 guides on how to appeal a UK visa or immigration refusal decision.
What Is a New Matter in an Immigration Appeal?
Section 85(5) of the Nationality, Immigration and Asylum Act 2002 states that the Immigration Tribunal must not consider a new matter unless the Secretary of State has given consent to do so. Section 85(6) of the same Act defines a new matter.
In summary, a new matter is a collection of facts which may give rise to the right of appeal which have not previously been considered by the Secretary of State. Importantly, new evidence which relates to claims already put forward is not a new matter.
The Home Office’s published guidance on current rights of appeal states the follow regarding what constitutes a new matter:
“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.”
Whilst the guidance is informative, it is not determinative because whether something is a new matter or not goes to the jurisdiction of the Tribunal, as was held in Mahmud (S. 85 NIAA 2002 – ‘new matters’) [2017] UKUT 488 (IAC). This case endorsed the following decision-making process to ascertain whether a new matter is constituted:
“(1) 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?
(2) Does the ‘matter’ constitute a ground of appeal of a kind listed under section 84?
(3) Has the Respondent previously considered the ‘matter’ in the context of the decision referred to in section 82(1)?
(4) Has the Respondent previously considered the ‘matter’ in the context of a statement made by the appellant under section 120?
(5) If the ‘matter’ is a ‘new matter’, has the Respondent given consent for the Tribunal to deal with the ‘new matter’?”
Even where the Immigration Tribunal is unable to consider a new matter because consent is not given, it is important to nevertheless ensure that the matter is raised in the notice of appeal where possible.
Examples of New Matters in Immigration Appeals
The Home Office guidance gives examples of circumstances which are likely to constitute a new matter in an immigration appeal, although as above please note the guidance is not itself determinative. These are when:
- 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 SSHD, 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 SSHD 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.
Further, the Upper Tribunal held in AK and IK (S.85 NIAA 2002 – new matters) Turkey [2019] UKUT 67 (IAC) that relying on a different category of the Immigration Rules to meet Article 8 raises a new matter. This is the case even where the part of the Rules relied upon did not exist at the time of the decision being challenged.
The same guidance further gives examples of circumstances which are unlikely to constitute a new matter:
- a human rights claim is based on a relationship which the SSHD has considered and the couple have now married, which is additional evidence relating to the original claim are not a new matter
- a protection claim is based on risk from the authorities and at the appeal hearing the appellant produces arrest warrants, which amount to new evidence about the protection claim, not a new matter.
It is therefore a fact sensitive assessment. You may wish to seek legal advice as to whether your circumstances constitute a new matter in an immigration appeal.
The Process of Raising a New Matter in an Immigration Appeal
A new matter should be raised as soon as reasonably practicable, such as in the grounds of appeal. If consent is given by the Secretary of State, or the Presenting Officer on their behalf, then the Immigration Tribunal may consider the new matter as part of the existing proceedings.
If, for example, a new matter is raised shortly before the hearing and the Secretary of State needs further time to make enquiries into this, they will inform the Tribunal that a new matter has been raised and consent is not given for the new matter to be considered by the Tribunal. An adjournment would typically be sought for the new matter to then be considered by the Secretary of State. In Quaidoo (new matter: procedure/process) [2018] UKUT 00087 (IAC), the Upper Tribunal held that in light of the guidance, the Tribunal should normally grant the adjournment.
If consent is withheld by the Secretary of State, the appeal should continue on the basis of the original matter(s). Once the appeal has been determined, the appellant can then decide what action to take regarding the new matter.
If the appeal is successful and permission is to be granted, no action will be taken on the new matter, unless a new application or claim is made raising this.
If the appeal is dismissed, the Secretary of State will consider if the new matter constitutes a claim which would give rise to a right of appeal. They should then consider whether it is possible to consider the new matter on the basis of the information provided, invite the appellant to submit further information or whether it is necessary for the appellant to make a paid application.
If the Secretary of State withholds consent unlawfully, this is only challengeable by way of judicial review.
Contact Our Immigration Barristers
For expert advice and assistance in relation to Immigration Appeals and new matters contact our immigration barristers in London on 0203 617 9173 or via the enquiry form below.
