(Immigration and Asylum Chamber) Appeal Number: HU/18494/2018
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 13 September 2019
On 23 September 2019
DEPUTY UPPER TRIBUNAL JUDGE APPLEYARD
Mrs ambreen rasool
(anonymity direction NOT MADE)
For the Appellant: Mr S Abbas, Legal Representative.
For the Respondent: Ms A Fijiwala, Home Office Presenting Officer.
DECISION AND REASONS
1. The Appellant is a citizen of Pakistan. She appealed a decision of the Respondent to refuse, on 23 August 2018, her application for leave to remain on family and private life grounds.
2. Her appeal was dismissed by Judge of the First-Tier Tribunal Phull, sitting in the First-Tier Tribunal, and in a decision promulgated on 16 May 2019.
3. Permission to appeal was sought. It was granted by Judge of the First-Tier Tribunal Gibb in a decision dated 5 August 2019. His reasons for granting permission were:-
"1. The appellant, a citizen of Pakistan, was refused leave on 20.08.2018, and her appeal against removal was dismissed by Judge of the First-tier Tribunal Phull (promulgated on 16.05.2019). The appellant's appeal was heard with that of her husband, which was also dismissed, but it is only for this appellant that an application has been made.
2. The grounds were in time, complain that the judge erred in: (1) in view of the evidence that the Secretary of State had been informed in writing of the completion of 10 years lawful residence by the appellant's husband, the absence of a representative for the Secretary of State should not have been allowed to disadvantage the appellant; (2) the completion of 10 years lawful residence was not a new matter as it was known to the Secretary of State; (3) even if it was a new matter the length of lawful residence should have been considered in the proportionality assessment; and (4) the best interests of the appellant's child should have been considered in the proportionality assessment and was not.
3. The grounds are arguable.
4. In relation to the 1st ground it is unclear whether the option of adjourning was raised, but there may be an arguable fairness point in proceeding without clarity as to whether consent was given.
5. The 3rd and 4th grounds are arguable. The legal consequences of proceeding where consent to consideration of a new matter has not been given were not considered in OA and others  UKUT 65. It is arguable that the fact of length of lawful residence at date of hearing still needed consideration in the proportionality assessment, even if direct consideration of paragraph 276B was excluded.
6. The 2nd ground appears to run counter to the 2nd part of the headnote in OA, but it is unclear whether in OA the matter had been drawn to the Secretary of State's attention in writing as here."
4. Thus, the appeal came before me today.
5. This appeal was heard as a linked appeal with the Appellant's husband at Birmingham on 29 March 2019. The Appellant's husband has not sought permission to appeal and I was informed at today's hearing that he has now been granted indefinite leave to remain. Mr Abbas confirmed to me today that it was he who represented both this Appellant and her husband at the First-tier Tribunal hearing. He also acknowledged that at that hearing, no application was made to the Judge to adjourn. It was an appeal at which the Respondent was not represented. I will come back to that issue in a moment.
6. He relied on the grounds seeking permission to appeal. In short that having been provided with evidence that the Respondent had previously been informed that the Appellant's husband had completed ten years lawful residence at the hearing the Judge should not have proceeded in the way that she did. Having recognised the Respondent was unrepresented at the hearing she could not confirm whether the Respondent was agreeable to giving consent for this new matter to be considered. The Respondent was on notice that ten years lawful residence had been completed and that the appeal had been listed for hearing. The absence of the Respondent being represented should not have weighed against the Appellant.
7. Further, he submitted that ten years lawful residence is not a new matter despite the decision of Judge Phull. The Respondent would have been on notice of the Appellant and her husband's history and the fact that the Appellant's husband would have been in the United Kingdom for ten years or more.
8. Beyond that even if the Judge was correct that the Appellant's reliance on paragraph 276B of the Immigration Rules is new it was wrong not to consider the length of lawful residence as part of the proportionality exercise. Further the Judge gave no consideration whatsoever to the issue of the best interest of the Appellant's child. The interests of the child is an important and paramount consideration in the appeal. He was not an Appellant in the proceedings because he was born during the consideration of the Appellant's case and the Respondent did not issue an appropriate refusal/appealable decision in relation to him.
9. Ms Fijiwala handed up two authorities which I was asked to give consideration to. The first is OA and others (human rights; 'new matter'; s.120) Nigeria  UKUT 65 IAC and the second is Mahmud (S.85 NIAA 2002 - 'new matters')  UKUT 488 (IAC). In particular she relied on paragraph 2 of the headnote in OA which states: -
"(2) The fact that P completes ten years continuous lawful residence during the course of P's human rights appeal will generally constitute a "new matter" within the meaning of section 85 of the 2002 Act. The completion of ten years residence will normally have a material bearing on the sole ground of appeal that can be advanced in human rights appeal; namely, whether the deicision of the Secretary of State to refuse P's human rights claim is unlawful under section 6 of the Human Rights Act 1998. This is because paragraph 276B of the Immigration Rules provides that a person with such a period of residence is entitled to indefinite leave to remain in the United Kingdom, so long as the other requirments of that paragraph are met."
10. And paragraph 3 of the headnote of Mahmud which states:-
"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."
11. She further submitted that the Judge had acted correctly in putting the new matter aside and in considering the balance of the human rights claim. That she does at paragraph 21 onward of her decision. In not considering the best interests of the Appellant's child the Judge has not materially erred. This was a child who was non-qualifying and little weight should be attached to this issue.
12. I find the Judge has not materially erred.
13. I am satisfied that completion of ten years continuous lawful residence during the course of a human rights appeal will generally constitute a "new matter" within the meaning of Section 85 of the 2002 Act. The Tribunal is a creature of statute and bound by this. The absence of a Presenting Officer at the hearing is a matter for the Respondent alone. The Judge cannot be criticised in any way for this. The Judge, it is accepted, was not faced with an application for an adjournment and proceeded to hear the appeal applying the appropriate statutory provision.
14. The completion of ten years lawful residence was a new matter and is a factual matrix not previously considered by the Secretary of State in the context of the decision in Section 82 (1) of the 2002 Act. Having concluded that the Appellant's husband completed ten years lawful residence in the United Kingdom on 17 October 2018 the Judge went on to make a further finding (paragraph 14 of her decision) that this was in the course of his pending appeal. Whilst it was submitted to her that this issue was brought to the attention of the Respondent on two occasions there was no evidence of such notification before the Judge. The Judge referred herself to the authority of OA. Having found ten years continuous lawful residence the Judge concluded that it constituted a new matter because it is capable of affecting the outcome of the human rights appeal. The Respondent was not present at the hearing and the Judge was unable to confirm whether the Respondent was agreeable to give consent for this new matter to be considered. That, in the absence of any correspondence from the Home Office provided by Mr Abbas to the contrary was a decision open to the Judge. The Appellant was represented at the hearing and no application to adjourn was made.
15. Having come to that conclusion that this was a new matter and the factual matrix not previously considered by the Respondent it was open to the Judge to consider the balance of the Appellant's claim in the way that she did. She cannot be criticised for that or, in the circumstances, not considering the best interests of the Appellant's child as submitted by Mr Abbas.
16. There is here no material error of law.
Notice of Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
I do not set aside this decision.
No anonymity direction is made.
Signed Date: 19 September 2019
Deputy Upper Tribunal Judge Appleyard