Benjamin Asuah Quaidoo v The Secretary of State for the Home Department

Where an appellant raises a new matter in an immigration appeal, the Tribunal must first decide whether it is a factual matrix not previously considered by the Secretary of State. It cannot consider such a matter without the Secretary of State’s consent under Nationality, Immigration and Asylum Act 2002, section 85(5).

If the Secretary of State makes a reasoned application for time to consider consent in accordance with her guidance, an adjournment will generally be appropriate. Where consent has already been refused and no such application is made, refusal to adjourn is not unfair. The legality of a refusal of consent is to be challenged by judicial review, not through an appeal against the refusal to adjourn.

The appellant, a Ghanaian citizen who had overstayed after entering as a visitor, appealed against refusal of his human-rights application based on private and family life. The First-tier Tribunal dismissed the appeal.

Shortly before the First-tier hearing, the appellant relied on his marriage and his wife’s pregnancy. The First-tier Tribunal held that these were new matters and, because the Secretary of State did not consent, declined to consider them or adjourn the appeal. Permission to appeal was granted on the arguable grounds that the First-tier Tribunal had failed to determine all matters and had wrongly refused adjournments.

The Upper Tribunal considered whether those refusals and the treatment of the new matters involved an error of law.

1. Appeal dismissed. The First-tier Tribunal made no error of law. Its dismissal of the human-rights appeal was upheld.

2. The appellant’s marriage and the imminent birth of his child were properly characterised as new matters. They constituted a factual matrix which the Secretary of State had not previously considered. The marriage and pregnancy post-dated the decision under appeal, and the earlier application gave no sufficient details of the relationship. Applying Mahmud (S.85 NIAA 2002 – ‘new matters’) [2017] UKUT 00488 (IAC), the birth of a child would in any event be a new matter.

3. Under section 85(5) of the Nationality, Immigration and Asylum Act 2002, the First-tier Tribunal could not consider those matters without the Secretary of State’s consent. A reasoned request by the Secretary of State for an adjournment to consider consent, made under her guidance, should generally be granted so far as possible to preserve the one-stop appeal process and enable her to act as first decision-maker.

4. That general approach did not assist the appellant. The evidence showed that the Secretary of State had decided not to consent and had made no application for an adjournment to consider consent further. The appellant’s own request for an adjournment was therefore properly refused. There was also no unfairness arising from the respondent’s failure formally to serve a bundle, since the First-tier Tribunal had ensured that both parties had the relevant papers.

5. The proper remedy for an allegedly unlawful refusal to consent to a new matter is judicial review. Section 96 did not govern the interpretation of section 85, and the First-tier Tribunal made no finding under section 96 capable of amounting to an error of law.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appellant’s appeal on error of law and upheld the First-tier Tribunal’s dismissal of the human-rights appeal.
• First-tier Tribunal: dismissed the appeal in a determination promulgated on 31 January 2017.