Khan v Secretary of State for the Home Department

For section 96(1) of the Nationality Immigration and Asylum Act 2002, “matter” has a broad meaning. It includes a new ground and evidence supporting an existing ground where either could have been raised in an earlier appeal. The certification power is not confined to genuinely new issues. Section 96(1) and (2) address different forms of repeat claim, so “matter” may carry different nuances in each subsection. A judicial-review ground excluded by a limited permission order, not argued below and not renewed, should ordinarily not be raised on appeal absent exceptional circumstances. A separate appeal right against a later immigration decision does not displace an express section 96 bar.

The appellant was subject to deportation following criminal convictions. The First-tier Tribunal dismissed his appeal against the deportation order, rejecting his case under Article 8. Permission to appeal was refused by the First-tier Tribunal and the Upper Tribunal.

After the deportation order was made, the appellant submitted a social-worker report supporting the same family-life case. The Secretary of State refused to revoke the order and certified under section 96(1) of the Nationality Immigration and Asylum Act 2002. Turner J dismissed the judicial-review claim. Permission to apply had been limited to the certification issue. The central question was whether the report was a “matter” that could have been raised in the earlier appeal.

Appeal dismissed unanimously. McCombe LJ delivered the judgment; Tomlinson LJ and Moore-Bick LJ agreed.

1. Permission. Permission to apply for judicial review had been expressly limited to the point of certification. The challenge to the exercise of the Secretary of State’s discretion had not been argued before Turner J and had not been renewed. The Court of Appeal should be wary of entertaining a ground refused at the permission stage and absent from the hearing below. To do so would undermine the permission filter and deprive the respondent of a proper opportunity to adduce further material. No exceptional circumstances existed.
2. Construction of section 96(1). The word “matter” is broad and may include the material relied upon as a whole. On an appeal, that material may comprise both grounds and evidence supporting those grounds. Section 96(1) therefore permits certification where evidence supporting an existing issue could reasonably have been advanced in the earlier appeal.
3. Different statutory contexts. Section 96(2) addresses material which should have been raised in response to a section 120 one-stop notice. Since section 120 requires reasons or grounds, it does not necessarily require every item of supporting evidence to be produced. Sections 85 and 86 likewise show that the meaning of “matter” depends on the provision and context; Parliament was not required to use the word identically in subsections (1) and (2).
4. Authorities. The reasoning in BA (Nigeria) v SSHD [2010] 1 AC 444, particularly Lord Brown’s distinction between different forms of repeat claim and his wider reference to material, supported the construction adopted. The approach in ZA (Nigeria) v SSHD [2010] EWCA 926, Ex p Onibiyo [1986] QB 768 and Ladd v Marshall [1954] 1 WLR 1489 was also consistent with it. The narrower approach apparently considered in Lamichanne v SSHD [2012] EWCA Civ 260 was not followed.
5. Access to an independent tribunal. Although separate appeal rights arose against the making of the deportation order and the refusal to revoke it, section 96 expressly authorised the later appeal to be barred where its conditions were met. The appellant had already received full independent scrutiny of the same Article 8 issue. The later report did not require a further appeal. Turner J was therefore right to dismiss the judicial-review claim, and the appeal was dismissed.

• Court of Appeal (Civil Division): In [2014] EWCA Civ 88, the appeal was dismissed and the dismissal of the judicial-review claim upheld.
• High Court, QBD Administrative Court: Turner J dismissed the judicial-review claim on 21 February 2013. Permission to apply had been limited to the certification issue.
• First-tier Tribunal: The appellant’s appeal against the deportation decision was dismissed, with the decision promulgated on 21 November 2011. Permission to appeal was refused on 7 December 2011.
• Upper Tribunal: Permission to appeal was refused on 25 January 2012.