In Mahmud (S. 85 NIAA 2002 – ‘new matters’) [2017] UKUT 488 (IAC) the Upper Tribunal, chaired by Mr Ockelton, decided that the tribunal cannot take into account a post-decision relationship and birth of a child in a human rights appeal without the consent of the Home Office.

This is because of the constraints of subsections 85(5) and (6) of the Nationality, Immigration and Asylum Act 2002 as amended by the Immigration Act 2014:

(5) But the Tribunal must not consider a new matter unless the Secretary of State 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.

This amendment appeared to have been introduced to stop appellants raising entirely new issues such as an undeclared asylum claim during an appeal against a different type of decision, which was possible under the old shoddily drafted statutory scheme. Under the new shoddily drafted statutory scheme, the power goes far wider than that, though, and enables one of the parties to the appeal to dictate the subject matter of the appeal.

Another way of drafting this could easily have been found to prevent appellants raising entirely new issues. But the Home Office likes explicitly to assert its supremacy in statute and parliamentarians let them get away with it.

Anyway, the official headnote reads:

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.

The headnote by itself is remarkably unilluminating. In practice, the effect is that the tribunal was prevented from considering a post-decision new relationship and the birth of a child in a human rights appeal. These matters will therefore need to be the subject of a fresh human rights claim. It is hard to see how the Home Office could conclude that these matters did not pass the Immigration Rule paragraph 353 test for a fresh claim, meaning a further appeal is virtually inevitable.

Let’s all have a minute’s silence for the death of the “one-stop appeal” system of the Immigration and Asylum Act 1999.