Benjamin Asuah Quaidoo (Anonymity Order Not Made) v The Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Lindsley |
| Judgment Date | 09 January 2018 |
| Neutral Citation | [2018] UKUT 87 (IAC) |
| Date | 09 January 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2018] UKUT 00087 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
THE HON. Mr Justice Lane, PRESIDENT
UPPER TRIBUNAL JUDGE Lindsley
For the Appellant: Mr E Yerokun of A & A Solicitors LLP
For the Respondent: Mr P Deller, Senior Home Office Presenting Officer
Quaidoo (new matter: procedure/process)
1. If, at a hearing, the Tribunal is satisfied that a matter which an appellant wishes to raise is a new matter, which by reason of section 85(5) of the Nationality, Immigration and Asylum Act 2002, the Tribunal may not consider unless the Secretary of State has given consent, and, in pursuance of the Secretary of State's Guidance, her representative applies for an adjournment for further time to consider whether to give such consent, then it will generally be appropriate to grant such an adjournment, rather than proceed without consideration of the new matter
2. If an appellant considers that the decision of the respondent not to consent to the consideration of a new matter is unlawful, either by reference to the respondent's guidance or otherwise, the appropriate remedy is a challenge by way of judicial review.
The appellant is a citizen of Ghana born on 8 th May 1989. He arrived in the UK on 15 th February 2011 with entry clearance as a visitor and overstayed. On 4 th September 2015 the appellant made a human rights application based on his private life with his parents and siblings and his four years residence in the UK. This application was refused in a decision dated 4th December 2015. His appeal against the decision was dismissed by First-tier Tribunal Judge Twydell in a determination promulgated on the 31 st January 2017.
Permission to appeal was granted by Upper Tribunal Judge Reeds on 26 th September 2017 on the basis that it was arguable that the First-tier judge had erred in law in failing to determine all matters before him and in refusing to grant an adjournment.
The matter came before us to determine whether the First-tier Tribunal had erred in law.
In the grounds of appeal and in oral submissions Mr Yerokun argued that the First-tier Tribunal had erred in law in failing to adjourn the hearing, for two reasons.
Firstly, it was argued that it was wrong not to adjourn the hearing as there was no respondent's bundle served in accordance with the directions. He argued that it was not correct that the appellant had agreed that they had all of the documents. They had never received the bundle at any point, and the solicitors had not made the original application to the respondent so had no copy of that application. The respondent had made an application for an adjournment, as this was their normal practice when they had omitted to comply with directions, and this ought to have been granted in all the circumstances.
Secondly, it was argued that it was an error of law not to have adjourned the hearing when the respondent made a second application for an adjournment at 1.45pm in connection with whether the respondent consented to the new matter of the appellant's marriage being part of the appeal. It was argued that it was inaccurate to have recorded in the decision that the appellant alone asked for this second adjournment regarding the new matter. Counsel for the respondent was said to have wanted the matter adjourned as that would have been in accordance with the guidance of the respondent to ask for an adjournment in these circumstances, enabling a considered initial decision to be made by the respondent dealing with the new matter, and also meaning that the one stop appeal process could be maintained by consent being given to the new matter then being included in the current appeal. It was in this context that the submissions made by counsel for the respondent, and recorded at paragraph 10 of the decision, were made. It would not make sense that these submissions were put forward if the respondent had not been advocating for an adjournment for further time for consideration of their consent to the inclusion of the new matter. The position of the respondent, as set out by her counsel in relation to consent to the admission of the new matter at the hearing, was that she did not consent if there was not an adjournment, but believed it would be fairer to grant an adjournment particularly given the possible consequences for the appellant under s.96 of the Nationality, Immigration and Asylum Act 2002 if the issue of the appellant's marriage and his wife's pregnancy was not dealt with in this appeal.
The failure to adjourn the hearing in these circumstances, the appellant argued, was therefore not procedurally fair or just, and thus was not in accordance with the principles in Nwaigwe (adjournment; fairness) [2014] UKUT 418 (IAC) or the Presidential Guidance Note No 1 of 2014 at paragraph 8(b). Further the First-tier Tribunal wrongly applied s.96 of the Nationality, Immigration and Asylum Act 2002 in this context as the appellant was actually trying to raise the new issues in the context of the appeal but was not being allowed to do so.
In a rule 24 notice the respondent stated that as she refused to consent to a new matter being raised then the First-tier Tribunal had no jurisdiction. This decision was in accordance...
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Upper Tribunal (Immigration and asylum chamber), 2019-02-04, EA/03715/2017
...and the Secretary of State does not give that consent. I cannot therefore proceed: Quiadoo (new matter; procedure/process) 2018 UKUT 00087 (IAC) 54. In light of the decisions I have made, which were discussed at the hearing, Ms McCarthy indicated that she intended to appeal against my decis......
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Upper Tribunal (Immigration and asylum chamber), 2019-02-04, [2019] UKUT 91 (IAC) (Munday (EEA decision: grounds of appeal))
...and the Secretary of State does not give that consent. I cannot therefore proceed: Quiadoo (new matter; procedure/process) 2018 UKUT 00087 (IAC) 54. In light of the decisions I have made, which were discussed at the hearing, Ms McCarthy indicated that she intended to appeal against my decis......
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Upper Tribunal (Immigration and asylum chamber), 2020-12-03, HU/12818/2019
...the hearing (once again) to enable the respondent to decide whether to give her consent (see Quaidoo (new matter: procedure/process) [2018] UKUT 00087 (IAC)). As there was no consent to the “new matter” being considered, the judge was not entitled to consider the evidence relating to, and d......
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Upper Tribunal (Immigration and asylum chamber), 2019-01-17, HU/04882/2018
...evidence of an existing matter. The assessment will always be fact sensitive.” (iv) Quaidoo (new matter: procedure/process) Ghana [2018] UKUT 87 (IAC) “1. If, at a hearing, the Tribunal is satisfied that a matter which an appellant wishes to raise is a new matter, which by reason of section......