(Immigration and Asylum Chamber)
Mahmud (S. 85 NIAA 2002 - 'new matters')  UKUT 488 (IAC)
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 3 rd & 8 th May 2017
MR C M G OCKELTON, VICE PRESIDENT
UPPER TRIBUNAL JUDGE JACKSON
ALi RASULI MAHMUD
(ANONYMITY DIRECTION NOT MADE)
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellant: Mr S Chelvan and Ms J Blair of Counsel
For the Respondent: Mr M Gullick of Counsel
1. 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.
2. 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. 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.
3. In practice, 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.
DECISION AND REASONS
(a) that the First-tier Tribunal Judge materially misdirected himself in law when finding that he had no jurisdiction to consider evidence of the Appellant's relationship with his new partner and her son. The Appellant claims that there was no new ground of appeal on this basis, it was simply a matter of new evidence as to private and family life which was already in issue such that section 85(5) of the 2002 Act did not apply;
(b) that the First-tier Tribunal Judge failed to take into account a material matter by conflating the lack of existence of an arrest warrant for the Appellant before the First-tier Tribunal with a question of whether it was ever issued or served on the Appellant's family;
(c) that the First-tier Tribunal Judge failed to take into account a material matter, namely that the Appellant's evidence was that his brother was detained and still in detention and made findings that in situations such as that claimed by the Appellant, all family members would be arrested and detained as the Iranian authorities would act strictly according to a set procedure and follow the rule of law;
(d) that the First-tier Tribunal Judge failed to take into account a material matter by placing weight on a conclusion that an arrest warrant could only be served on the Appellant's family where they have divulged the whereabouts of the Appellant without considering whether the Appellant's family had given a truthful account of his whereabouts and the plausibility of risk this may pose to the family;
(e) that the First-tier Tribunal failed to take into account a material matter by placing insufficient weight on the fact that the Appellant was a child when he first claimed asylum and was first interviewed and that he had suffered a head injury, with little information available about his short or long-term memory/mental state. It is claimed that there was a failure to give any real effect to the Appellant's mental health or his age when he claimed asylum when considering the evidence and issues of credibility.
(i) Having regard to the statutory scheme, was the Tribunal empowered to consider for itself whether the material relating to Ms P was a 'new matter'?
(ii) If so, what were the relevant factors for consideration?
(iii) Was there any identifiable error in the Tribunal's conclusion that the material relating to Ms P was a 'new matter' given that the Appellant had raised Article 8 family life grounds before the Respondent's decision, and in the grounds of appeal, some six months prior to the hearing?
(iv) Was the failure to address Article 8 at all in the determination an error of law regardless of the answers to (i) to (iii) above?
Relevant law and procedure
82. Right of appeal to the Tribunal
(1) A person "P" may appeal to the Tribunal where -
(a) the Secretary of State has decided to refuse a protection claim made by P,
(b) the Secretary of State has decided to refuse the human rights claim made by P, or
(c) the Secretary of State has decided to revoke P's protection status.
84. Grounds of appeal
(1) An appeal under section 82(1)(a) (refusal of protection claim) must be bought on one or more of the following grounds -
(a) that removal of the appellant from the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention;
(b) that removal of the appellant from the United Kingdom would breach the United Kingdom's obligations in relation to persons eligible for a grant of humanitarian protection;
(c) that removal of the appellant from the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).
(2) An appeal under section 82(1)(b) (refusal of human rights claim) must be bought on the grounds that the decision is unlawful under section 6 of the Human Rights Act 1998.
85. Matters to be considered
(1) An appeal under section 82(1) against the decision shall be treated by the Tribunal as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1).
(2) If an appellant under section 82(1) makes a statement under section 120, the Tribunal shall consider any matter raised in a statement which constitutes a ground of appeal of a kind listed in section 84 the decision appealed against.
(3) Subsection (2) applies to a statement made under section 120 whether the statement was made before or after the appeal was commenced.
(4) On an appeal under section 82(1) ... against a decision the Tribunal may consider... any matter which it thinks relevant to the substance of the decision, including... a matter arising after the date of decision.
(5) But the Tribunal must not consider a new matter unless the Secretary of Status has given the Tribunal consent to do so.
(6) A matter is a "new matter" if -
(a) it constitutes a ground of appeal of a kind listed in section 84, and
(b) the Secretary of State has not previously considered the matter in the context of -
(i) the decision mentioned in section 82(1), or
(ii) a statement made by the appellant under section 120.
86. Determination of appeal
(1) This section applies on an appeal under section 82(1).
(2) The Tribunal must determine -
(a) any matter raised as a ground of appeal..., and
(b) any matter which section 85 requires it to consider.
96. Earlier right of appeal
(1) A person may not appeal under section 82 against the decision ("the new decision") if the Secretary of State or an immigration officer certifies -
(a) that the person was notified of a right of appeal under that section against another... decision ('the old decision') (whether or not an appeal was brought and whether or not any appeal brought has been determined),
(b) that the claim or application to which the new decision relates relies on a ground that could have been raised in appeal against the old decision, and
(c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that ground not having been raised in an appeal against the old decision.
(1) In this Part, unless a contrary intention appears -
'human rights claim' -
(a) means a claim made by a person that to remove him from or require him to leave the United Kingdom or to refuse him entry to the United Kingdom ... would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Convention) ...
(1) Except in appeals in which rule 23 applies, when a respondent is provided with a copy of a notice of appeal, the respondent must provide the Tribunal with -
(a) the notice of the decision to which the notice of appeal relates and any other document the respondent provided to the appellant giving reasons for that decision;
(b) any statement of evidence or application form completed by the appellant;
(c) any record of an interview with the appellant in relation to the decision being appealed;
(d) any other unpublished document which is referred to in a document mentioned in sub-paragraph (a) or relied upon by the respondent; and
(e) the notice of any other appealable decision made in relation to the appellant.
(2) The respondent must, if the respondent intends to change or add the grounds or reasons relied upon in the notice or the other documents referred to in paragraph (1)(a), provide the Tribunal and the other parties with a statement of whether the respondent opposes the appellant's case and the grounds for such opposition.
(3) The documents listed in paragraph (1) and any statement required under paragraph (2) must be provided in writing within 28 days of the date on which the Tribunal sent to the respondent a copy of the notice of appeal and any accompanying documents or information provided under rule 19(6).
Discussion & findings
Appellant's application to adduce further evidence under Rule 15(2A)
- Part of this material relates to the conduct of the Home Officer Presenting Officer at the First-tier Tribunal hearing, which for the reasons set out below, is not relevant to any of the grounds of appeal nor are the allegations made out on the face of the decision under appeal itself.
- Part of the material is a copy of documents received from a subject access request and appears to be relied upon to support an inference as to when the Respondent was first aware of the new matter raised by the Appellant, which is also not relevant to the issues in this appeal for the reasons given above and below.
- Part of the material relates to correspondence on behalf of the Appellant which is said to show his attempts to engage the Respondent and the Tribunal as to the application of rule 24 of the Procedure Rules and any guidance on its application. For the reasons set out below, the Appellant's reliance on rule 24 for the purposes of statutory construction does not assist and the correspondence on this point is also irrelevant.
- The remaining material as to the knowledge of the Appellant's solicitor may be relevant to any future determination of the new matter but does not assist in the determination of the issues in this appeal.
First ground of appeal - statutory construction of section 85(5) and (6) of the 2002 Act
Appellant's reliance on parliamentary material
" Subsection (5) substitutes a new section 85(5) of the 2002 Act which provides that the Tribunal may not consider a new matter unless the Secretary of State has given the Tribunal consent to do so. "New matter" is defined in new section 85(6) as being a ground of appeal within section 84, or any reason the appellant has for wishing to enter or remain in the UK, and a matter that the Secretary of State has not previously considered in the context of a decision in section 82(1) or a statement made under section 120 of the 2002 Act. This is to prevent appellants from raising new grounds before the Tribunal before the Secretary of State has a chance to consider them."
"My Lords, one of the examples given by my noble friend Lady Berridge was that a matter may suddenly be raised. It is important to make the point that we are not talking about the appellant relying on new evidence to support a ground already before the tribunal. I know that the noble and learned Lord accepts and understand that. For example, if there was an appeal about refusal of the family life settlement, new evidence on family life would obviously be something which could be led. Nor will the clause prevent access to the court, because the individual would still have an appeal against the refusal. If the new matter on which an application was made was refused, then obviously the matter could be appealed to the tribunal.
I note what the noble and learned Lord says, but my noble friend Lady Berridge talked about a new ground of appeal which the Home Office may have found out about only the night before. When people talk about equality of arms, I'm not necessarily persuaded that someone going into the tribunal will find that there is a completely new ground of appeal which they only learnt about within the previous 12 hours. That is an inequality of arms. My noble friend and learned friend Lord Mackay of Clashfern commented on whether or not the Home Office had been answering the telephone. These are practical issues that ought to be addressed, but I do not think they go to the principle we are discussing.
I am always wary - as was the noble Baroness, Lady Smith - of using football analogies, but they were mentioned by my noble friend moving her amendment. If an FA Cup match went to penalties, it would not be for one party to say, "By the way, we will just go to the referee and say, 'If we are having a penalty shootout, it will do for the other cup tie that we are to play next week. We will just do the two in one' ". If it is a completely new case, it is not reasonable that that should happen. I stress that this is not a situation where person is going to be denied the opportunity to bring a separate case on the new matter. They were still be able to bring it and, if they were dissatisfied with the decision made by the Secretary of State, the appeal would still be open to them.
The proposed measure could create an incentive for an appellant to raise a new matter at that late stage because they could try to persuade the tribunal that the matter should be heard despite the Secretary of State not having considered and decided the issue. The Secretary of State will have to strike that balance, depending on whether or not she wishes to give her consent - if, indeed, the case was adjourned. Documents may suddenly have been produced the veracity of which the Secretary of State will have had no opportunity to examine. If it is a new ground of appeal, the Government argue that the primary decision-maker is the Secretary of State and the proper role of the tribunal is to hear appeals against the decision of the Secretary of State, if the applicant is dissatisfied with the original outcome. As the noble and learned Lord, Lord Hope, said, I do not see that this is the case of being a judge in one's own cause because the cause that is properly before the tribunal is one in which both parties will argue their case.
When a new cause is introduced, the Secretary of State makes a decision on it through his executive function. What in fact is being suggested is that that decision should not be made by those from the executive branch but should be a judicial decision. I think that there is a blurring there. If we are arguing as a matter of fundamental principle that a decision is one for the Executive, the question is whether, indeed, the primary decision should be made by the judiciary. I cannot ignore the force of the comments that have been made. The noble and learned Lord, Lord Hope, helpfully suggested where this might be amended. I should make it very clear that I cannot give any guarantee that the Government will come back at Third Reading with an amendment. However, it is only proper that we reflect on the very important issues that have been raised."
"... Our discussions were helpful and not least identified that the definition of a "new matter" is wider than necessary because it includes reasons for wishing to remain in the United Kingdom which, if refused, would not give rise to a right of appeal. This potentially extends the scope of the power to give consent beyond appealable matters. As the significance of "new matter" is restricted to circumstances in which an appeal would arise as a consequence of the decision, the definition should be similarly restricted - hence this amendment."
Conclusions on the meaning of a 'new matter' in section 8(6)
The Secretary of State's consent to the Tribunal to consider a new matter, section 85(5)
Question (i) Having regard to the statutory scheme was the Tribunal empowered to consider for itself whether the material relating to Ms P was a 'new matter'?
Question (ii) - If the Tribunal was empowered to consider for itself whether the material relating to Ms P was a 'new matter', what were the relevant factors for consideration?
(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'?
Question (iii) - Was there any identifiable error in the Tribunal's conclusion that the material relating to Ms P was a 'new matter' given that the Appellant had raised Article 8 family life grounds before the Respondent's decision, and in the grounds of appeal, some six months prior to the hearing?
Question (iv) - Was the failure to address Article 8 at all in the determination an error of law regardless of the answers to (i) to (iii) above?
Further matters raised by the Appellant
Grounds of appeal (b) to (d) - asylum
Notice of Decision
The making of the decision of the First-tier Tribunal involved the making of a material error of law. We set it aside. We remit the appeal to the First-tier Tribunal for redetermination by a different judge and we direct that issues other than the protection appeal be determined in accordance with what is set out above.
No anonymity direction is made.
Signed Date 14 th August 2017
Upper Tribunal Judge Jackson
 Counsel for the Appellant could not accept in submissions that this was the very first time that there was any mention to the Respondent of this relationship, relying on an assertion that, in the context of the Appellant's NASS application in January 2016 and contact from the Appellant's social worker, this information would have been disclosed to the Respondent at that stage. There was no clear evidence of this before us and we declined to draw any inference from the limited documentation referred to by Mr Chelvan that this was the case. In any event there is no dispute that no detailed evidence as to that relationship was available until immediately prior to the appeal hearing before the First-tier Tribunal.