Jamil Hydar v The Secretary of State for the Home Department

In a human rights appeal, a matter raised in response to a notice under section 120 of the Nationality, Immigration and Asylum Act 2002 must be determined if it constitutes a separate ground of appeal. An EU rights issue may therefore require determination alongside the human rights issue. However, it is a “new matter” under section 85(6), and the Tribunal cannot consider it without the Secretary of State’s consent. Section 85(5) applies to both the First-tier Tribunal and the Upper Tribunal when the latter remakes a decision. Birch (Precariousness and mistake; new matters) [2020] UKUT 86 (IAC) was decided per incuriam the binding reasoning in Alam & others v Secretary of State for the Home Department [2012] EWCA Civ 960 and was not followed.

The appellant, a British Protected Person, appealed against a decision to deport him. His appeal before the First-tier Tribunal relied on Article 8 of the ECHR. After that decision was set aside and the appeal was retained for remaking, he sought to raise a potential derivative right of residence under regulation 16 of the Immigration (European Economic Area) Regulations 2016.

The Upper Tribunal considered whether it had jurisdiction to consider the EU ground, whether the ground was a “new matter” requiring consent under section 85(5) of the Nationality, Immigration and Asylum Act 2002, whether Birch was correctly decided, and whether the Secretary of State had consented.

1. Jurisdiction. A section 120 statement made during a human rights appeal may raise an EU ground for resisting removal, even where no EEA decision has yet been made. Paragraph 2(2) of Schedule 2 to the Immigration (European Economic Area) Regulations 2016 was intended to operate where an EEA decision had been or might be taken. Section 86(2)(b) consequently required the Tribunal to determine the EU matter once it had been raised as a ground of appeal (paras [11]-[16]).
2. The appellant’s potential derivative right of residence existed independently of the provision of documentary recognition. The EU ground was to be approached as it would have been in an appeal against an adverse EEA decision. The Tribunal left open whether, absent a section 120 statement, section 85(4) might permit consideration of the EU right as a matter relevant to the substance of the human rights decision (paras [15]-[18]).
3. New matter. Raising the EU rights ground constituted a “new matter” under section 85(6). The matter was sufficiently discrete, and the extent of the Secretary of State’s required consideration was relevant to the consent question. Section 85(5) therefore prevented the Upper Tribunal from considering it without consent (para [20]).
4. Birch and Alam. The ratio of Alam was that the Upper Tribunal’s powers when remaking a decision are circumscribed by section 12(4) of the Tribunals, Courts and Enforcement Act 2007. The contrary conclusion in Birch was reached without considering the binding reasoning in Alam and was per incuriam. The Upper Tribunal could not depart from Alam merely because that decision might itself have overlooked section 81 of the 2002 Act (paras [24]-[31]).
5. The appellant’s written submissions, made after service of the section 120 notice and setting out why he claimed a derivative right of residence, constituted a section 120 statement. The Secretary of State consented to consideration of the new matter. The appeal was accordingly listed for a substantive hearing (paras [32]-[35]).

• First-tier Tribunal: allowed the appellant’s Article 8 appeal against the deportation decision.
• Upper Tribunal: on 14 April 2020, set aside the First-tier Tribunal’s decision and retained the appeal for remaking.
• Upper Tribunal (Immigration and Asylum Chamber): determined the preliminary issues and listed the appeal for a substantive hearing.