Ali Rasul Mahmud v The Secretary of State for the Home Department

A new matter under section 85 of the Nationality, Immigration and Asylum Act 2002 is a factually distinct factual matrix which could raise or establish a statutory ground of appeal and which the Secretary of State has not previously considered. It is not merely further or better evidence of an existing factual case.

The First-tier Tribunal must decide that jurisdictional question for itself. It may consider a new matter only with the Secretary of State’s actual consent; consent cannot be implied or deemed from inaction under procedural rules. A challenge to the fairness or lawfulness of withholding consent is a public-law matter, not a ground in the statutory appeal.

The appellant, an Iranian national, appealed against the dismissal of his appeal from the refusal of his remade asylum and human-rights claim. Before the First-tier Tribunal he relied on a new relationship with Ms P and her child. The judge held that this was a new matter and could not be considered without the Secretary of State’s consent.

The appeal raised the meaning of a new matter and consent under sections 85(5) and 85(6) of the Nationality, Immigration and Asylum Act 2002. It also challenged the assessment of the appellant’s protection claim. During the Upper Tribunal hearing it emerged that every other page of the appellant’s First-tier Tribunal bundle, including material evidence, was missing.

1. The appeal was allowed in part. The First-tier Tribunal’s decision was set aside because the missing pages in the appellant’s bundle created a material procedural irregularity affecting the protection appeal. The asylum, humanitarian-protection, and Articles 2 and 3 claims were remitted for a fresh hearing before a different judge.

2. A “matter” is the factual substance of a claim, whereas a ground of appeal is the legal basis on which those facts may challenge the decision. Under section 85(6)(a) of the Nationality, Immigration and Asylum Act 2002, a new matter must be capable of raising or establishing a ground listed in section 84. It must also be factually distinct from matters previously considered by the Secretary of State in connection with the decision or a section 120 statement. Further or better evidence of the same factual matrix is not a new matter.

3. Whether material is a new matter limits the First-tier Tribunal’s jurisdiction. The tribunal must therefore determine that issue for itself. The appropriate inquiry is to identify the asserted matter, determine whether it could establish a section 84 ground, ascertain whether it has previously been considered in the relevant statutory contexts, and, if it is new, determine whether the Secretary of State has given consent.

4. Section 85(5) requires actual consent. Rule 24 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 neither requires the Secretary of State to state that consent is withheld nor permits consent to be deemed from inaction. Any complaint that consent was withheld contrary to policy or public-law fairness must be pursued by judicial review.

5. The relationship with a different partner and her child was a factually distinct Article 8 matrix. It was consequently a new matter which had neither been considered by the Secretary of State nor expressly consented to. The First-tier Tribunal had no jurisdiction to determine it. Its failure expressly to dispose of Article 8 was not material because no other substantial private- or family-life case remained.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal in part, set aside the First-tier Tribunal’s decision for material procedural irregularity, and remitted the protection appeal for redetermination.
• First-tier Tribunal: Judge Hussain dismissed the appeal in a decision promulgated on 2 November 2016. He held that the appellant’s relationship with Ms P and her child was a new matter under section 85 of the Nationality, Immigration and Asylum Act 2002.
• Earlier First-tier Tribunal appeal: Judge Pirotta allowed the appellant’s earlier appeal, in a decision promulgated on 2 October 2012, because the Secretary of State had not addressed section 55 of the Borders, Citizenship and Immigration Act 2009 or family tracing. The claim was remitted to the Secretary of State for a fresh decision.