Muhammad Ajmal & Anor v The Secretary of State for the Home Department

In an appeal under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020, the Tribunal may consider a human rights ground where it is relevant to the substance of the decision appealed against, but the statutory prohibition on considering a “new matter” remains applicable.

A matter has been “previously considered” only where the Secretary of State has given it deliberate thought in the context of the appealed decision or a section 120 statement. Mere inclusion of evidence or arguments, or wording stating that an application was carefully considered, is insufficient. Whether deliberate thought occurred depends on the facts and the correspondence. Ayoola (previously considered matters) was not followed.

The joined appeals concerned refusals of applications under Appendix EU. Both appellants had advanced Article 8 human rights claims in material accompanying their applications. The First-tier Tribunal dismissed both appeals, concluding that the Article 8 claims were new matters which could not be considered without the Secretary of State’s consent under regulation 9.

The Upper Tribunal also determined a preliminary issue concerning the reinstatement of the second appellant’s withdrawn appeal. The central issues were whether regulation 9(4) permitted consideration of the Article 8 grounds and whether those grounds had been previously considered for the purposes of regulation 9(6)(b).

1. The second appellant’s appeal was properly reinstated. Rule 17 of the Tribunal Procedure (Upper Tribunal) Rules 2008 contains an express power to reinstate a withdrawn case. That power is not confined to the slip-rule conditions in Rule 43. The touchstone is the overriding objective in Rule 2, and reinstatement should be ordered where it is in the interests of justice. The application was prompt, and no substantive prejudice to the Secretary of State was shown.

2. Regulation 9(4) confers a power to consider a human rights ground where it is relevant to the substance of the decision appealed against, subject to regulation 9(5). The broad construction adopted in Celik (EU exit; marriage; human rights), consistently with AS (Afghanistan) v SSHD and Patel & Others v SSHD, was preferred. Under regulation 3(1)(c), the relevant decision was the refusal to grant any leave, rather than merely refusal under Appendix EU.

3. A matter is a new matter under regulation 9(6) where it satisfies regulation 9(6)(a) and the Secretary of State has not previously considered it within regulation 9(6)(b). “Considered” means subjected to deliberate thought. It does not mean merely read, received or mentioned. The distinction between “consider” and “determine” in regulation 10 supports this interpretation.

4. Ayoola (previously considered matters) was manifestly wrong and should not be followed. The fact that arguments were raised in an application does not itself establish that they were considered. Nor does silence in a decision letter necessarily prove that a matter was ignored. The court must examine the particular application, the decision and the correspondence. Public law remedies and the Secretary of State’s power to consent provide safeguards against unlawful disregard of relevant matters.

5. On the facts, the Article 8 claims had not been considered. The refusal letters’ references to careful consideration related to the EUSS eligibility requirements and did not establish a separate Article 8 assessment. The claims were therefore new matters, and the Secretary of State’s consent was required. Neither appellant had that consent. Both appeals were dismissed and the First-tier Tribunal decisions were maintained.

1. Upper Tribunal (Immigration and Asylum Chamber) — Both appeals dismissed. The First-tier Tribunal decisions dismissing the appeals were maintained.
2. First-tier Tribunal — Both Article 8 grounds were treated as new matters which could not be considered without the Secretary of State’s consent. The decisions were dated 8 March 2024 and 7 March 2024, with the latter promulgated on 13 March 2024.