By Isabella Reynard – Pupil Immigration Barrister
Since many immigration appeals might take months to be heard by the Immigration Tribunal, circumstances will understandably evolve, which may represent a brand new matter for the needs of the attraction.
When interesting an immigration choice, it is very important think about whether or not a brand new matter is raised as a result of the Immigration Tribunal doesn’t have jurisdiction to contemplate the matter with out the consent of the Secretary of State.
On this publish, we look at new issues in immigration appeals, asking what’s a brand new matter in an immigration attraction and what’s the means of elevating a brand new matter in an immigration attraction? Additional data on the method of interesting an immigration refusal could be present in these Part 1 and Part 2 guides on the way to attraction a UK visa or immigration refusal choice.
What Is a New Matter in an Immigration Attraction?
Section 85(5) of the Nationality, Immigration and Asylum Act 2002 states that the Immigration Tribunal should not think about a brand new matter until the Secretary of State has given consent to take action. Section 85(6) of the identical Act defines a brand new matter.
In abstract, a brand new matter is a group of details which can give rise to the appropriate of attraction which haven’t beforehand been thought-about by the Secretary of State. Importantly, new proof which pertains to claims already put ahead shouldn’t be a brand new matter.
The Dwelling Workplace’s printed steering on present rights of attraction states the observe relating to what constitutes a brand 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.”
While the steering is informative, it’s not determinative as a result of whether or not one thing is a brand 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 next decision-making course of to determine whether or not a brand new matter is constituted:
“(1) What’s the ‘matter’ which it’s alleged constitutes a ‘new matter’ for the aim of part 85(5)? What are its substances each actually and in legislation?
(2) Does the ‘matter’ represent a floor of attraction of a form listed beneath part 84?
(3) Has the Respondent beforehand thought-about the ‘matter’ within the context of the choice referred to in part 82(1)?
(4) Has the Respondent beforehand thought-about the ‘matter’ within the context of an announcement made by the appellant beneath part 120?
(5) If the ‘matter’ is a ‘new matter’, has the Respondent given consent for the Tribunal to take care of the ‘new matter’?”
Even the place the Immigration Tribunal is unable to contemplate a brand new matter as a result of consent shouldn’t be given, it is very important however be sure that the matter is raised within the discover of attraction the place attainable.
Examples of New Issues in Immigration Appeals
The Dwelling Workplace steering provides examples of circumstances that are prone to represent a brand new matter in an immigration attraction, though as above please notice the steering shouldn’t be itself determinative. These are when:
- there’s a human rights declare primarily based on a relationship and the couple have now had a toddler and this has not beforehand been thought-about by the SSHD, as a result of the existence of the kid provides a further distinct new household relationship (with a requirement to contemplate the very best pursuits of the kid) which may individually elevate or set up a floor of attraction beneath Article 8 ECHR
- the appellant made a human rights declare primarily based on a relationship and on the attraction the appellant says that their human rights declare is predicated on a brand new relationship, as though the SSHD will beforehand have thought-about Article 8 ECHR the factual foundation for that declare may have modified and due to this fact will probably be a brand new matter
- a safety declare has been made, and the appellant is now claiming removing can be (or would even be) a breach of Article 8 ECHR primarily based on their household life within the UK
- a human rights declare primarily based on household life has been made, and the appellant is now claiming (or additionally claiming) that they’re a refugee
- a human rights declare has been made primarily based on non-public life beneath Article 8, and the appellant is now claiming (or additionally claiming) that removing can be a breach of Article 8 ECHR on the premise of household life as a result of the appellant has now married a British citizen.
Additional, the Higher Tribunal held in AK and IK (S.85 NIAA 2002 – new matters) Turkey [2019] UKUT 67 (IAC) that counting on a distinct class of the Immigration Guidelines to fulfill Article 8 raises a brand new matter. That is the case even the place the a part of the Guidelines relied upon didn’t exist on the time of the choice being challenged.
The identical steering additional provides examples of circumstances that are unlikely to represent a brand new matter:
- a human rights declare is predicated on a relationship which the SSHD has thought-about and the couple have now married, which is further proof regarding the unique declare are usually not a brand new matter
- a safety declare is predicated on threat from the authorities and on the attraction listening to the appellant produces arrest warrants, which quantity to new proof in regards to the safety declare, not a brand new matter.
It’s due to this fact a truth delicate evaluation. You might want to search authorized recommendation as as to whether your circumstances represent a brand new matter in an immigration attraction.
The Strategy of Elevating a New Matter in an Immigration Attraction
A brand new matter needs to be raised as quickly as fairly practicable, corresponding to within the grounds of attraction. If consent is given by the Secretary of State, or the Presenting Officer on their behalf, then the Immigration Tribunal might think about the brand new matter as a part of the present proceedings.
If, for instance, a brand new matter is raised shortly earlier than the listening to and the Secretary of State wants additional time to make enquiries into this, they are going to inform the Tribunal {that a} new matter has been raised and consent shouldn’t be given for the brand new matter to be thought-about by the Tribunal. An adjournment would sometimes be hunted for the brand new matter to then be thought-about by the Secretary of State. In Quaidoo (new matter: procedure/process) [2018] UKUT 00087 (IAC), the Higher Tribunal held that in gentle of the steering, the Tribunal ought to usually grant the adjournment.
If consent is withheld by the Secretary of State, the attraction ought to proceed on the premise of the unique matter(s). As soon as the attraction has been decided, the appellant can then resolve what motion to take relating to the brand new matter.
If the attraction is profitable and permission is to be granted, no motion will probably be taken on the brand new matter, until a brand new utility or declare is made elevating this.
If the attraction is dismissed, the Secretary of State will think about if the brand new matter constitutes a declare which might give rise to a proper of attraction. They need to then think about whether or not it’s attainable to contemplate the brand new matter on the premise of the knowledge supplied, invite the appellant to submit additional data or whether or not it’s crucial for the appellant to make a paid utility.
If the Secretary of State withholds consent unlawfully, that is solely challengeable by the use of judicial review.
Contact Our Immigration Barristers
For skilled recommendation and help in relation to Immigration Appeals and new issues contact our immigration barristers in London on 0203 617 9173 or through the enquiry type under.
