Hydar (S 120 Response; S 85 “New Matter”: Birch)
| Jurisdiction | UK Non-devolved |
| Judge | Lane J,Mr CMG Ockelton |
| Judgment Date | 18 June 2021 |
| Neutral Citation | [2021] UKUT 176 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2021] UKUT 176 (IAC)
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Lane J (President) and Mr CMG Ockelton (Vice President)
Mr L Youssefian instructed by TTS Solicitors, for the Claimant;
Ms S Cunha, Senior Home Office Presenting Officer, for the Secretary of State.
Alam, Anwar and Eghan v Secretary of State for the Home Department [2012] EWCA Civ 960; [2012] Imm AR 974; [2012] Imm AR 974
Birch (Precariousness and mistake; new matters) [2020] UKUT 86 (IAC); [2020] Imm AR 873; [2020] INLR 317
Jaff (s. 120 notice; statement of “additional grounds”) [2012] UKUT 396 (IAC)
LB (Jamaica) v Secretary of State for the Home Department [2011] EWCA Civ 1420; [2012] Imm AR 637; [2012] INLR 286
SMM v Secretary of State for the Home Department 27 August 2020 (PA/03850/2017) UKUT (unreported)
Shahzad (s 85A: commencement) [2012] UKUT 81 (IAC)
European Convention on Human Rights, Article 8
Human Rights Act 1998, section 6
Immigration (European Economic Area) Regulation 2016, regulations 2, 16, 17, 36 & Schedule 2
Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 (SI 2020/1309), paragraph 5 of Schedule 3
Nationality, Immigration and Asylum Act 2002, sections 81, 82(1)(b), 84(2), 85, 85A, 86, 104, 109, 113, 117A & 120
Tribunals, Courts and Enforcement Act 2007, sections 11 & 12
Jurisdiction — Immigration and Asylum Chamber — EEA ground of appeal raised in section 120 response — procedure and process — grounds of appeal — “new matter” — section 85 of the 2002 Act — Birch[2020] UKUT 86 (IAC) not followed — Secretary of State's consent
The Claimant was a British Protected Person, born in Sierra Leone in 1976. He entered the United Kingdom in 1997 and was granted indefinite leave to remain in October 2003. He committed a number of criminal offences, beginning in 1999. In 2007, he was convicted of two counts of robbery and one count of attempted robbery and was sentenced to six years imprisonment. In July 2018, the Secretary of State for the Home Department decided that the Claimant should be deported.
The Claimant appealed to the First-tier Tribunal (“FtT”) relying solely on Article 8 of the ECHR, based on his subsisting parental relationship with his daughter, a British citizen born in 2008, whom he supported. The FtT allowed the Claimant's appeal. The Secretary of State obtained permission to appeal against that decision. In April 2020, the Upper Tribunal (“UT”) set aside the decision of the FtT, retaining the matter in the UT for the decision in the appeal to be re-made de novo. At a hearing before the UT in September 2020, the Claimant sought to raise, for the first time, his potential entitlement to a derivative right of residence (“DRR”) under regulation 16 of the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”).
At a hearing in March 2021, the instant presidential panel considered the parties' submissions as to whether the Claimant's entitlement to DRR was a “new matter”, within the meaning of section 85(6) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”); and, if so, whether the Secretary of State would be prepared to give consent under section 85(5) to the matter being considered by the UT. The panel identified two further preliminary issues and directed the parties to file additional written submissions. The issues considered were (i) whether the FtT and the UT had jurisdiction to consider an EEA ground of appeal in a human rights appeal under section 82(1)(b) of the 2002 Act; (ii) in the event of an affirmative answer to (i), whether an EEA ground of appeal, in a human rights appeal, constituted a “new matter” for purposes of section 85 of the 2002 Act; (iii) assuming an affirmative answer to (ii), whether section 85 applied to proceedings in the UT and, in particular, whether Birch (Precariousness and mistake; new matters)[2020] UKUT 86 (IAC) was decided per incuriam in the light of the Court of Appeal's judgment in Alam and Others v Secretary of State for the Home Department[2012] EWCA Civ 960; and (iv) assuming an affirmative answer to (iii), whether the Secretary of State would give consent for the EEA matter to be considered by the UT in re-making the decision in the appeal.
Held, directing the appeal be listed for substantive hearing:
(1) A person who had received a refusal of a human rights claim, and who had a right of appeal against that decision on the sole statutory ground that the decision was unlawful under section 6 of the Human Rights Act 1998, might be served with a notice under section 120 of the 2002 Act, which required the person not only to state why he or she had a human right not to be removed from the United Kingdom but also that he or she had a right under the EU Treaties in respect of entry into or residence in the United Kingdom, which would be breached by removing the person from the United Kingdom. One of the purposes of section 120 was to require a tribunal to adjudicate upon the totality of a person's reasons for resisting removal. Once the relevant “matter” in the section 120 statement was raised as a ground of appeal, section 86(2)(b) of the 2002 Act required the Tribunal to determine it, irrespective of the fact that there was also another matter of different origin comprising a separate ground of appeal. The DRR under EU law existed independently of any decision of the Secretary of State, the documentation provided by her to the individual being merely a recognition of the right, not its conferral. There was, accordingly, in the course of a human rights appeal, no conceptual bar to a section 120 statement raising an EEA reason for resisting removal, in the same way that there was no such bar to raising matters that constituted a protection claim, even though there has been no decision to refuse a protection claim. Therefore, the UT had jurisdiction to consider the EU rights ground, as the ground was raised in accordance with section 120 of the 2002 Act (paras 9 – 19).
(2) There could be no question that raising the DRR issue during the currency of the human rights appeal proceedings constituted a “new matter”, whereby the Secretary of State's consent was needed before the Tribunal could consider it. So much was plain from paragraph 2(4) of Schedule 2 to the 2016 Regulations. Moreover, it could not be seriously contended that raising an EU right in a human rights appeal was insufficiently discrete to constitute a new matter, which the Tribunal might not consider unless the Secretary of State had given her consent (para 20).
(3) In Birch, the UT held that section 85(5) did not apply to the UT, with the result that it was unnecessary for that Tribunal to have the Secretary of State's consent before it could consider a “new matter”. In Alam, the Court of Appeal held, however, that section 85 applied to the UT because section 12(4) of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”) made it clear that the UT's power, on re-making a decision, was to “make any decision which the First-tier Tribunal could make if the First-tier Tribunal were re-making the decision”. Accordingly, Birch was decided per incuriam the Court of Appeal's binding judgment in Alam, with the result that the UT required the Secretary of State's consent to consider a “new matter” when re-making a decision under section 12(2)(b)(ii) of the 2007 Act (paras 21 – 31).
(4) A statement in response to a section 120 notice might be made at any time, including up to, and perhaps at the time of, the hearing of the appeal: Jaff (s. 120 notice; statement of “additional grounds”)[2012] UKUT 396 (IAC) applied. In the instant case, the Claimant had been served with a section 120 notice in 2013, the significance of which was drawn to his attention by the Secretary of State in July 2018. The Claimant filed and served written submissions, in advance of the appeal hearing, setting out in detail why he said he had a DRR. That constituted a statement for the purposes of section 120. In post-hearing written submissions, the Secretary of State consented to the consideration of the matter (paras 32 – 33).
The Hon. Mr Justice Lane, President:
[1] We have both contributed substantively to this decision.
[2] The appellant is a British Protected Person, born in Sierra Leone in 1976. He entered the United Kingdom in 1997 and was granted indefinite leave to remain in October 2003. The appellant committed a number of criminal offences, beginning in 1999. In 2007, he was convicted of two counts of robbery and one count of attempted robbery. Following proceedings in the Court of Appeal, the appellant was sentenced to imprisonment for six years. On 23 July 2018, the respondent decided that the appellant should be deported from the United Kingdom.
[3] The appellant appealed to the First-tier Tribunal. Before that Tribunal, the appellant did not pursue his protection appeal. Instead, he relied solely on Article 8 of the ECHR, based on his subsisting parental relationship with his daughter, born in 2008, who is a British citizen whom the appellant was supporting. The First-tier Tribunal Judge allowed the appellant's appeal. The respondent obtained permission to appeal against that decision and, on 14 April 2020, the Upper Tribunal (McGowan J and UTJ Blundell) set aside the decision of the First-tier Tribunal, retaining the matter in the Upper Tribunal for the decision in the appeal to be re-made de novo. The Upper Tribunal made an anonymity order in respect of the appellant's daughter, with the result that no report of the proceedings shall directly or indirectly indentify her.
[4] On 28 September 2020, Upper Tribunal Judge Blundell sat to hear the submissions and evidence on the...
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Upper Tribunal (Immigration and asylum chamber), 2021-06-18, [2021] UKUT 176 (IAC) (Hydar (s. 120 response, s. 85 “new matter”, Birch))
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