The upshot of the Upper Tribunal’s decision in AK and IK (S.85 NIAA 2002 – new matters) Turkey [2019] UKUT 67 (IAC) is that a person who relies upon a different category of the Immigration Rules to succeed under Article 8 at their appeal or in a section 120 statement, raises a “new matter” which requires the Secretary of State’s consent for the judge to consider it. That remains the case even where the part of the rules relied upon did not exist at the time of the original decision.

In AK, the sponsor was a Turkish national with indefinite leave to remain under the Ankara Agreement. The appellants were his son and wife.

The wife was without leave to remain and understandably applied under Appendix FM for leave to remain on the basis of her family and private life in the UK. By the time the case came before the tribunal, Parliament had amended the Immigration Rules by introducing Appendix ECAA. This provided a dedicated immigration route for family members of Turkish nationals and was directly applicable in this case.

The First-tier Tribunal decided not to deal with the Appendix ECAA point, labelling it as a “pick and mix approach” and dismissed the appeal under Article 8.

The Upper Tribunal was tasked with considering whether the reference to Appendix ECAA was indeed a “new matter”. The fact that Appendix ECAA was not in force at the time of the refusal didn’t stop the tribunal from confirming that reliance on this provision was a “new matter” and required the Secretary of State to consent under section 85(5) of the Nationality, Immigration and Asylum Act 2002.

The appellants tried to argue that the facts upon which the requirements of Appendix ECAA were met remained exactly the same. What had in fact changed was that the Immigration Rules had been amended. An interesting argument — but not one which found favour.

Upper Tribunal Judge Gill found that the intended purpose behind section 85(5) was for the Secretary of State to have the first call on whether the requirements of the Immigration Rules were met unless he consented to the tribunal doing that instead. A contrary interpretation would mean judges of the First-tier Tribunal being first instance decision-makers. That was not what Parliament had intended.

Practitioners need to be alive to the possibility of their clients fulfilling other categories of the Immigration Rules which may tip the balance in any Article 8 appeal. That may simply be because the the rules in question never existed at the time of the application (like in this case) or it may (as often is the case) be through passage of time e.g. a client accruing 10 years’ continuous lawful residence.

It is important that such matters are brought to the Secretary of State’s attention as early as possible to seek his consent on how the matter is to proceed at the tribunal.

If consent is unreasonably withheld, the appropriate remedy is one of judicial review. Making use of this at the right time might well make the difference between winning and losing at the tribunal.

I leave you with the official headnote:

If an appellant relies upon criteria that relate to a different category of the Immigration Rules to make good his Article 8 claim from that relied upon in his application for LTR on human rights grounds or in his s.120 statement such that a new judgment falls to be made as to whether or not he satisfies the Immigration Rules, this constitutes a “new matter” within the meaning of s.85(6) of the Nationality, Immigration and Asylum Act 2002 which requires the Secretary of State’s consent even if the facts specific to his own case (for example, as to accommodation, maintenance etc) remain the same.