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Raising new matters in immigration appeals

Section 85 of the Nationality, Immigration and Asylum Act 2002 (as amended) provides that on an appeal against an immigration decision, the Tribunal may take into consideration evidence about any matter which it thinks relevant to the substance of the decision, including a matter arising after the date of the decision.

Prior to the coming into force of the Immigration Act 2014 on 6 April 2015, the appellant could, following AS (Afghanistan) raise a new matter within a statement of additional grounds assuming that they have been served with a ‘One Stop Warning’ under section 120 of the 2002 Act.

Now, however, if a person wishes to raise a ‘new matter’ on appeal, the Tribunal can only consider this where the Secretary of State has given consent for it to do so.  What, then, is considered to be a new matter?

There are two parts which must be satisfied in order to be considered a ‘new matter’.

A new matter will be considered as such if it constitutes a human rights or protection claim (this is taken to mean Refugee Convention/Humanitarian Protection claim) and this has not previously been considered by the Secretary of State.

A new matter will be treated as being ‘considered’ where the Secretary of State has made a decision on the new matter.

By way of an example, an individual who has made an asylum claim and now raises the fact that his/her removal will breach Article 8 based on family life will be considered to have raised a new matter. Whereas, a person who has claimed asylum and raises an additional risk factor (i.e. an arrest warrant comes to light after the individual has fled the country) will not be considered to have raised a new matter.

Raising a new matter – the process

The circumstances giving rise to a new matter should be raised as soon as practicable, preferably in the grounds of appeal. The new matter will be considered by the Secretary of State (most probably the Presenting Officer on behalf of the Secretary of State) and a decision will be made as to whether consent should be given to raise this before the Tribunal.

If consent is given then the Tribunal can consider the new matter raised as part of the existing proceedings.

The Home Office’s policy guidance states that consent will normally be given where the substance of the claim remains unchanged. The example cited is where an appeal concerns the refusal of a human rights claim on the basis that a medical condition will breach Article 3 on removal, and Article 8 is raised on appeal in relation to the same medical condition.

Consent may be refused in circumstances where the Secretary of State needs to verify the underlying facts of the claim or if documents require verification. Where consent has been refused, the Secretary of State will provide written reasons for refusing consent.  The timescales for this are as follows:

Date new matter raised Timescale for response
At least two working days in advance of the hearing Two working days
Within two working days of the hearing By 4pm on the day before the hearing (by fax)
At the hearing Within two working days after the hearing

The refusal of consent can be challenged by way of judicial review on public law grounds.

In the event that consent has been withheld, the appeal will proceed on the basis of the original matter only. Were the Tribunal to consider the new matter without the Secretary of State’s consent then the Tribunal would be considered to be acting outside its jurisdiction and it is likely that the Secretary of State would seek to challenge this on appeal to the Upper Tribunal.

If the appeal is allowed, the original decision will have been found by the Tribunal to have been unlawful on the basis that it breached a person’s human rights and/or the right to protection under the Refugee Convention and/or Humanitarian Protection. The Home Office must respond to the allowed appeal by reconsidering the original decision. In most cases this will mean granting the immigration leave that the applicant would have been entitled to on the factual findings of the Tribunal. Where there is a challenge as to how the Home Office implemented an allowed appeal the route for this is via judicial review.

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