MD Abdur Rahim v Secretary of State for the Home Department

In an article 8 human-rights appeal, Nationality, Immigration and Asylum Act 2002 Part 5 defines the tribunal’s jurisdiction. The mandatory public-interest considerations in section 117A(2) apply only to matters which the tribunal has jurisdiction to determine. They do not override the prohibition in section 85(5) on considering a new matter without the Secretary of State’s consent. A relationship with a qualifying child which arose after the challenged decision, and has not been considered by the Secretary of State, is a new matter. The tribunal must not determine it without consent, even if an earlier tribunal made general references to family life.

The Secretary of State refused Mr Rahim’s 2017 application for indefinite leave to remain after concluding that he had used a proxy in a TOEIC English-language test. His appeal was initially dismissed by the First-tier Tribunal. The Upper Tribunal later set aside that decision for legal error, remade the decision, found deception proved on the balance of probabilities, and dismissed the appeal.

Before the remaking hearing, Mr Rahim relied on his relationship with his partner and three children born after the Secretary of State’s decision. One child had become a qualifying child. The Secretary of State refused consent for the Upper Tribunal to consider those relationships as new matters. The central issue was whether the mandatory terms of section 117A required the tribunal nevertheless to consider the relationship with the qualifying child.

1. Appeal dismissed unanimously. Elisabeth Laing LJ held, with whom Andrews and King LJJ agreed, that there was no conflict between Part 5 and Part 5A of the Nationality, Immigration and Asylum Act 2002.

2. Part 5 is a detailed code governing appealable decisions, grounds of appeal and the matters within the tribunal’s jurisdiction. Section 85(4) permits consideration of relevant post-decision matters, but section 85(5) prevents the tribunal from considering a new matter unless the Secretary of State consents. The scheme ensures that the Secretary of State has the first opportunity to consider and investigate such matters.

3. Part 5A applies whenever a tribunal is required to determine whether an immigration decision breaches article 8 and is unlawful under section 6 of the Human Rights Act 1998. Section 117A(2) therefore requires consideration of the public-interest factors only once the matter is properly within the tribunal’s jurisdiction. It does not enlarge that jurisdiction or displace section 85(5).

4. The relationship with the qualifying child was self-evidently a new matter. The child had not been born when the Secretary of State made the decision, no section 120 statement had raised the relationship, and the Secretary of State had not consented to its consideration. The Upper Tribunal consequently had no power to determine the family-life claim founded on that relationship.

5. General references to a fiancée or family life in the original decision and the First-tier Tribunal determination did not mean that the later relationship with the child had been considered. Further, the First-tier Tribunal’s determination had been set aside and had no continuing legal effect. The proper order was therefore to dismiss the appeal.

• Court of Appeal (Civil Division) Dismissed Mr Rahim’s appeal, holding that the Upper Tribunal lacked jurisdiction to consider the new family-life matter without the Secretary of State’s consent.

• Upper Tribunal (Immigration and Asylum Chamber) In a determination promulgated on 9 January 2025, set aside the First-tier Tribunal’s determination for material legal error. In a determination promulgated on 7 April 2025, remade the decision and dismissed the appeal.

• First-tier Tribunal (Immigration and Asylum Chamber) Dismissed the appeal in a determination promulgated on 4 January 2019; that determination was subsequently set aside by the Upper Tribunal.