Upper Tribunal (Immigration and asylum chamber), 2021-06-18, [2021] UKUT 176 (IAC) (Hydar (s. 120 response, s. 85 “new matter”, Birch))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Mr C M G Ockelton, Vice President |
| Status | Reported |
| Date | 18 June 2021 |
| Published date | 14 July 2021 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | s. 120 response, s. 85 “new matter”, Birch |
| Hearing Date | 31 March 2021 |
| Appeal Number | [2021] UKUT 176 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
Hydar (s 120 response; s 85 “new matter”: Birch) [2021] UKUT 00176 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 31 March 2021 |
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Additional written submissions on 9 and 20 April 2021 |
18 June 2021 |
Before
THE HON. MR JUSTICE LANE, PRESIDENT
MR C M G OCKELTON, VICE PRESIDENT
Between
JAMIL HYDAR
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the appellant: Mr L Youssefian, counsel, instructed by TTS Solicitors
For the respondent: Ms S Cunha, Senior Home Office Presenting Officer
Section 120 of the Nationality, Immigration and Asylum Act 2002
(1) Where, in the course of a human rights appeal under section 82(2)(b) of the 2002 Act, P responds to a notice served by the Secretary of State under section 120 of that Act by raising a matter that is of a different origin than P raised as a human rights ground under section 84(2) for resisting removal, section 86(2)(b) requires the Tribunal to determine that “different” matter. Thus, a protection issue or (where it still applies) an EU rights issue will need to be determined by the Tribunal alongside the human rights issue.
Section 85(5): “new matter”
(2) A matter of the kind described in paragraph (1) is a “new matter” which, by reason of section 85(5,) may not be considered by the Tribunal unless the Secretary of State has given the Tribunal consent to do so.
(3) Section 85(5) applies to both the First-tier Tribunal and the Upper Tribunal. The finding to the contrary in Birch (precariousness and mistake; new matters) [2020] UKUT 86 (IAC); [2020] Imm AR 873 was made per incuriam the judgment of the Court of Appeal in Alam & others v SSHD [2012] EWCA Civ 960; [2012] Imm AR 974 and is not to be followed.
DECISION ON PRELIMINARY ISSUE
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We have both contributed substantively to this decision.
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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.
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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.
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On 28 September 2020, Upper Tribunal Judge Blundell sat to hear the submissions and evidence on the re-making of the decision in the appeal. At that hearing, the appellant 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. Directions were issued for the respondent to file and serve a written notice, stating whether she sought to contend that the appellant’s entitlement to DRR was a “new matter”, within the meaning of section 85(6) of the Nationality, Immigration and Asylum Act 2002; and, if so, whether the respondent would be prepared to give consent under section 85(5) to the matter being considered by the Upper Tribunal. The appellant was directed to file and serve written submissions in response.
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Following the filing of these written submissions, the present panel sat on 31 March 2021 to consider them and the parties’ oral submissions on the “new matter” issue. At the March hearing, it became evident that, within the “new matter” issue, there is a prior question; namely, whether the Upper Tribunal should follow Birch (Precariousness and mistake; new matters) [2020] UKUT 86 (IAC); [2020] Imm AR 873, where it was held that section 85(5) does not apply to the Upper Tribunal, with the result that it is unnecessary for that Tribunal to have the respondent’s consent before it can consider a “new matter”. The panel was, however, also addressed on a question that needs to be addressed before one can embark on the “new matter” issue; namely, whether the First-tier Tribunal and the Upper Tribunal have jurisdiction to consider an EEA ground of appeal in a human rights appeal under section 82(1)(b) of the 2002 Act.
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On 31 March, the Upper Tribunal concluded that it would be assisted by further written submissions on the following:-
(i) The jurisdictional issue – whether the First-tier Tribunal and the Upper Tribunal have jurisdiction to consider an EEA ground of appeal in a human rights appeal;
(ii) The “new matter” issue – in the event of an affirmative answer to (i), whether an EEA ground of appeal, in a human rights appeal, constitutes a “new matter” for purposes of section 85 of the 2002 Act;
(iii) The “Birch” issue – assuming an affirmative answer to (ii), whether section 85 applies to proceedings in the Upper Tribunal and, in particular, whether Birch was decided per incuriam; and
(iv) The “consent” issue – assuming an affirmative answer to (iii), whether the respondent would give consent for the EEA matter to be considered by the Upper Tribunal in re-making the decision in the appeal.
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We received further submissions on these issues from Ms Cunha and Mr Youssefian. We are very grateful to both of them for these, and their earlier written and oral submissions.
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Before addressing the issues, it is necessary to set out a significant amount of legislative material, beginning with the 2002 Act.
The Nationality, Immigration and Asylum Act 2002
“PART V
APPEALS IN RESPECT OF PROTECTION AND HUMAN RIGHTS CLAIMS
Meaning of “the Tribunal”
81.
…
In this Part “the Tribunal” means the First-tier Tribunal.
82. Right of appeal to the Tribunal
(1) A person (“P”) may appeal to the Tribunal where—
…
(b) the Secretary of State has decided to refuse a human rights claim made by P.
…
84. Grounds of appeal
…
(2) An appeal under section 82(1)(b) (refusal of human rights claim) must be brought on the ground 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 a 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 the statement which constitutes a ground of appeal of a kind listed in section 84 against 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 the decision.
(5) But the Tribunal must not consider a new matter unless the Secretary of State has given the Tribunal consent to do so.
(6) A matter is a “new matter” if—
(a) it constitutes a ground of appeal of a kind listed in section 84, and
(b) the Secretary of State has not previously considered the matter in the context of—
(i) the decision mentioned in section 82(1), or
(ii) a statement made by the appellant under section 120.
86. Determination of appeal
(1) This section applies on an appeal under section 82(1) ...
(2) The Tribunal must determine—
(a) any matter raised as a ground of appeal ..., and
(b) any matter which section 85 requires it to consider.
…
104. Pending appeal
(1) An appeal under section 82(1) is pending during the period—
(a) beginning when it is instituted, and
(b) ending when it is finally determined, withdrawn or abandoned (or when it lapses under section 99).
(2) An appeal under section 82(1) is not finally determined for the purpose of subsection (1)(b) while—
(a) an application for permission to appeal under section 11 or 13 of the Tribunals, Courts and Enforcement Act 2007 could be made or is awaiting determination,
(b) permission to appeal under either of those sections has been granted and the appeal is awaiting determination, or
(c) an...
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