AK & Anor v The Secretary of State for the Home Department

Reliance in an Article 8 appeal on eligibility under a different category of the Immigration Rules is a new matter where it requires a fresh judgment on compliance with that category. It remains a new matter even if the appellant relies on the same personal facts. Under section 85(5) and (6) of the Nationality, Immigration and Asylum Act 2002, the Tribunal cannot determine it without the Secretary of State’s consent.

The ability to obtain hypothetical entry clearance remains relevant to proportionality under the Chikwamba v SSHD principle. The evidence must establish that entry clearance would be certain to be granted. Even then, proportionality remains for assessment.

The appellants, a Turkish national and her child, appealed against the First-tier Tribunal’s dismissal of their human rights appeals following the refusal of leave to remain as the wife and child of a Turkish national with indefinite leave to remain.

They did not challenge the findings that they failed to meet Appendix FM or that their removal was not disproportionate outside the Rules. They contended that the First-tier Tribunal should have considered their eligibility under Part 7.1 of Appendix ECAA, which came into force after the refusal decision, and should have applied the Chikwamba v SSHD principle.

The central issues were whether reliance on Appendix ECAA was a new matter requiring consent and whether the omission to consider hypothetical entry clearance was material.

1. Appeal dismissed. The First-tier Tribunal’s decision contained no material error of law and was not set aside.

2. The appellants’ reliance on Part 7.1 of Appendix ECAA was a new matter under section 85(6) of the Nationality, Immigration and Asylum Act 2002. Their original application advanced a conventional Article 8 case based on family life, relocation and the child’s interests. Reliance on Appendix ECAA introduced a different Immigration Rules category and required a fresh legal judgment on whether its requirements were met.

3. The personal facts concerning the relationship, maintenance, accommodation and the sponsor’s status might be unchanged. That did not prevent the issue from being a new matter. The Secretary of State had not previously considered compliance with Part 7.1, and consent under section 85(5) was therefore required. The First-tier Tribunal had no jurisdiction to decide eligibility under that provision.

4. A duty under section 120(5) arose only if the Secretary of State had exercised the discretion in section 120(2) to serve a notice. No such notice had been served. The appellants could not voluntarily submit a section 120 statement.

5. In the alternative, even if the Tribunal had jurisdiction, the First-tier Tribunal was not obliged to consider eligibility under Appendix ECAA on its own initiative. The case then advanced before it challenged the lawfulness of the refusal rather than asserting that the appellants satisfied Part 7.1.

6. The First-tier Tribunal’s explanation for treating Chikwamba v SSHD as irrelevant was erroneous. Nevertheless, the error was immaterial. Following R (Agyarko) and others v SSHD [2017] UKSC 11, hypothetical entry clearance must be certain to be granted before that consideration can assist. Appendix ECAA concerned in-country leave, and the evidence did not show that an Appendix FM entry-clearance application would succeed because English-language certificates had not been supplied.

• Upper Tribunal (Immigration and Asylum Chamber): Dismissed the appeal and upheld the First-tier Tribunal’s dismissal of the appellants’ human rights appeals.
• First-tier Tribunal: Judge Kelley, determination promulgated 26 October 2018, dismissed the appeals against the refusal of leave to remain.