Mahmud (S.85 NIAA 2002 — ‘New Matters’)
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Jackson |
| Judgment Date | 16 August 2017 |
| Neutral Citation | [2017] UKUT 488 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 16 August 2017 |
[2017] UKUT 488 IAC
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr C M G Ockelton, VICE PRESIDENT
UPPER TRIBUNAL JUDGE Jackson
For the Appellant: Mr S Chelvan and Ms J Blair of Counsel
For the Respondent: Mr M Gullick of Counsel
Mahmud (S. 85 NIAA 2002 — ‘new matters’)
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1. Whether something is or is not a ‘new matter’ goes to the jurisdiction of the First-tier Tribunal in the appeal and the First-tier Tribunal must therefore determine for itself the issue.
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2. A ‘new matter’ is a matter which constitutes a ground of appeal of a kind listed in section 84, as required by section 85(6)(a) of the 2002 Act. Constituting a ground of appeal means that it must contain a matter which could raise or establish a listed ground of appeal. A matter is the factual substance of a claim. A ground of appeal is the legal basis on which the facts in any given matter could form the basis of a challenge to the decision under appeal.
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3. In practice, a new matter is a factual matrix which has not previously been considered by the Secretary of State in the context of the decision in section 82(1) or a statement made by the appellant under section 120. This requires the matter to be factually distinct from that previously raised by an appellant, as opposed to further or better evidence of an existing matter. The assessment will always be fact sensitive.
The Appellant appeals against the decision of First-tier Tribunal Judge Hussain promulgated on 2 November 2016, in which his appeal against the Respondent's decision to refuse his asylum and human rights claim dated 19 May 2016 was dismissed. That decision involved, as a preliminary matter, whether the notice of appeal included a ‘new matter’ such that section 85 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) applied to prevent the First-tier Tribunal from considering evidence on it in the absence of the Respondent giving consent. The evidence concerned the Appellant's relationship with his new partner, Ms P and her son, which was first raised in the notice of appeal 1.
The Appellant is a national of Iran, born on 23 November 1994, who arrived in the United Kingdom 23 January 2012 and claimed asylum. That application was refused by the Respondent but the appeal against that refusal was allowed by Judge Pirotta in a decision promulgated on 2 October 2012 on the basis that the Respondent had failed to take into account section 55 of the Borders, Citizenship and Immigration Act 2009 and failed to carry out obligations as to family tracing. The application was referred back to the Respondent to remake the decision in light of that. It is that remade decision of 19 May 2016 which was the subject of the appeal before Judge Hussain.
The Appellant's asylum claim was based on a fear of return to Iran from the authorities there because of his brothers' involvement with PJAK, the Kurdistan Free Life Party, which is banned by the state and considered a terrorist organisation.
The Respondent refused the application on the basis that the Appellant was not considered to be credible and it was not accepted that his brother was involved with PJAK, that his brother was arrested, nor that the Appellant was wanted by the authorities in Iran.
Judge Hussain dismissed the appeal on all grounds on which he considered he had jurisdiction to determine, which was the asylum claim and claims for humanitarian protection and under Articles 2 and 3 of the European Convention on Human rights which arose from the same facts. Judge Hussain did not find the Appellant to be credible and in particular was not satisfied that the Appellant's brother was involved with PJAK, that his brother had been arrested, nor that there was any outstanding arrest warrant for the Appellant who had not come to the adverse
attention of the Iranian authorities. As such it was not considered that he would face any risk on return to Iran. There were no findings of, nor any express decision on the appeal on Article 8 of the European Convention on Human Rights.The Appellant appeals on five grounds as follows:
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(a) that the First-tier Tribunal Judge materially misdirected himself in law when finding that he had no jurisdiction to consider evidence of the Appellant's relationship with his new partner and her son. The Appellant claims that there was no new ground of appeal on this basis, it was simply a matter of new evidence as to private and family life which was already in issue such that section 85(5) of the 2002 Act did not apply;
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(b) that the First-tier Tribunal Judge failed to take into account a material matter by conflating the lack of existence of an arrest warrant for the Appellant before the First-tier Tribunal with a question of whether it was ever issued or served on the Appellant's family;
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(c) that the First-tier Tribunal Judge failed to take into account a material matter, namely that the Appellant's evidence was that his brother was detained and still in detention and made findings that in situations such as that claimed by the Appellant, all family members would be arrested and detained as the Iranian authorities would act strictly according to a set procedure and follow the rule of law;
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(d) that the First-tier Tribunal Judge failed to take into account a material matter by placing weight on a conclusion that an arrest warrant could only be served on the Appellant's family where they have divulged the whereabouts of the Appellant without considering whether the Appellant's family had given a truthful account of his whereabouts and the plausibility of risk this may pose to the family;
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(e) that the First-tier Tribunal failed to take into account a material matter by placing insufficient weight on the fact that the Appellant was a child when he first claimed asylum and was first interviewed and that he had suffered a head injury, with little information available about his short or long-term memory/mental state. It is claimed that there was a failure to give any real effect to the Appellant's mental health or his age when he claimed asylum when considering the evidence and issues of credibility.
Permission to appeal was granted by Judge Saffer on 22 November 2016 on all grounds.
This appeal first came before Upper Tribunal Judge Bruce for hearing on 17 January 2017, when it was adjourned with directions for the parties to address the following four issues in relation to the Article 8 appeal:
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(i) Having regard to the statutory scheme, was the Tribunal empowered to consider for itself whether the material relating to Ms P was a ‘new matter’?
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(ii) If so, what were the relevant factors for consideration?
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(iii) Was there any identifiable error in the Tribunal's conclusion that the material relating to Ms P was a ‘new matter’ given that the Appellant had raised Article 8 family life grounds before the Respondent's decision, and in the grounds of appeal, some six months prior to the hearing?
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(iv) Was the failure to address Article 8 at all in the determination an error of law regardless of the answers to (i) to (iii) above?
To determine the above questions, it is first necessary to determine what a ‘new matter’ is for the purposes of section 85(5) and (6) of the 2002 Act and to determine the meaning of ‘consent’ in section 85(5) of the 2002 Act.
Part V of the 2002 Act makes provision for appeals in respect of protection and human rights claims and so far as relevant to this appeal provides as follows:
82. Right of appeal to the Tribunal
(1) A person “P” may appeal to the Tribunal where –
(a) the Secretary of State has decided to refuse a protection claim made by P,
(b) the Secretary of State has decided to refuse the human rights claim made by P, or
(c) the Secretary of State has decided to revoke P's protection status.
84. Grounds of appeal
(1) An appeal under section 82(1)(a) (refusal of protection claim) must be bought on one or more of the following grounds –
(a) that removal of the appellant from the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention;
(b) that removal of the appellant from the United Kingdom would breach the United Kingdom's obligations in relation to persons eligible for a grant of humanitarian protection;
(c) that removal of the appellant from the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).
(2) An appeal under section 82(1)(b) (refusal of human rights claim) must be bought on the grounds that the decision is unlawful under section 6 of the Human Rights Act 1998.
85. Matters to be considered
(1) An appeal under section 82(1) against the decision shall be treated by the Tribunal as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1).
(2) If an appellant under section 82(1) makes a statement under section 120, the Tribunal shall consider any matter raised in a statement which constitutes a ground of appeal of a kind listed in section 84 the decision appealed against.
(3) Subsection (2) applies to a statement made under section 120 whether the statement was made before or after the appeal was commenced.
(4) On an appeal under section 82(1) … against a decision the Tribunal may consider… any matter which it thinks relevant to the substance of the decision, including… a matter arising after the date of decision.
(5) But the Tribunal must not consider a new matter unless the Secretary of Status has given the Tribunal consent to do so.
(6) A matter is a “new matter” if –
(a) it constitutes a...
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