In Hydar (s 120 response; s 85 “new matter”: Birch) [2021] UKUT 176 (IAC), the Upper Tribunal has done an unwilling U-turn on the earlier case of Birch (precariousness and mistake; new matters) [2020] UKUT 86 (IAC). Raising “new matters” in an appeal requires the consent of the Home Office regardless of whether raised at the First-tier or Upper Tribunal.

Briefly, the background was that the Home Office sought to deport Mr Hydar following robbery convictions for which he was sentenced to six years. He appealed, relying upon Article 8 of the European Convention on Human Rights in the context of his relationship with his British citizen daughter. That appeal was allowed, but the decision was reversed upon further appeal by the Home Office.

When the Upper Tribunal reheard the case, Mr Hydar for the first time raised an argument that he might have a derivative right of residence under the EEA Regulations 2016. This gave rise to a series of legal issues, summarised by the Upper Tribunal as follows:

1. The jurisdictional issue – whether the First-tier Tribunal and the Upper Tribunal have jurisdiction to consider an EEA ground of appeal in a human rights appeal;
2. The “new matter” issue – in the event of an affirmative answer to (i), whether an EEA ground of appeal, in a human rights appeal, constitutes a “new matter” for purposes of section 85 of the 2002 Act
3. The “Birch” issue – assuming an affirmative answer to (ii), whether section 85 applies to proceedings in the Upper Tribunal and, in particular, whether Birch was decided per incuriam; and
4. The “consent” issue – assuming an affirmative answer to (iii), whether the respondent would give consent for the EEA matter to be considered by the Upper Tribunal in re-making the decision in the appeal.

On the jurisdictional point, President Lane and Vice-President Ockelton found that:

There is…. in the course of a human rights appeal, no conceptual bar to a section 120 statement raising an EEA reason for resisting removal, in the same way that there is no such bar to raising matters that constitute a protection claim, even though there has been no decision to refuse a protection claim.

However, whether Mr Hydar could rely on a derivative right of residence after Brexit was doubtful, and for the tribunal to consider at a later point. 

The “new matter” issue was easy; the raising of the EEA ground three appeals in was clearly a new matter.

Under section 85(5) of the National, Immigration and Asylum Act 2002, “the Tribunal must not consider a new matter unless the Secretary of State has given the Tribunal consent to do so”. The finding in Birch was that this consent requirement applied only to the First-tier Tribunal, not the Upper. But the President and Vice-President, who decided Birch, accepted that they had got it wrong. That judgment had failed to take into account a binding Court of Appeal case: Alam & Others v Secretary of State for the Home Department [2012] EWCA Civ 960.

Alam made clear that a “new matter” raised before either the First-tier or Upper Tribunal required the consent of the Home Office. Lane and Ockelton were obviously unconvinced by the reasoning, pointly noting that the Court of Appeal 

appears not to have been directed to section 81 of the 2002 Act, which specifically defines “the Tribunal” as “the First-tier Tribunal” for the purposes of Part V of the 2002 Act.

But the Upper Tribunal is not entitled to overrule a higher court just because it has bungled the law, so was forced to set Birch aside and follow Alam instead.

This meant that Mr Hydar was required to obtain the Home Office’s consent on the EEA ground of appeal. The department did consent, after all that, so Mr Hydar’s re-appeal will now be listed for a substantive hearing.

So: any “new matter” raised in either the First-tier and Upper Tribunal requires the Home Office to give consent. But given that the main Court of Appeal authority on this point appears to be wrongly decided, there’s likely to be some further argument on this point in due course. 

If the tribunal is ultimately proved right, it would mean going back to the Birch position where new matters in the Upper Tribunal can be raised without the Home Office’s consent — which is very much contrary to the government’s drive to stop new arguments being raised late in the day.