Upper Tribunal (Immigration and asylum chamber), 2021-10-19, PA/00658/2020
| Jurisdiction | UK Non-devolved |
| Date | 19 October 2021 |
| Published date | 03 November 2021 |
| Hearing Date | 14 July 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/00658/2020 |
Appeal Number: PA/00658/2020
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00658/2020
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 14 July 2021 |
On 19 October 2021 |
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Before
UPPER TRIBUNAL JUDGE CANAVAN
Between
N A
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was granted at an earlier stage of the proceedings because the case involved protection issues. It is appropriate to continue the order because this decision also considers welfare issues relating to children. Unless and until a tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the appellant and to the respondent.
Representation:
For the appellant: Ms K. Tobin, instructed by Malik & Malik
For the respondent: Mr T. Melvin, Senior Home Office Presenting Officer
DECISION AND REASONS
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The appellant appealed the respondent’s decision dated 14 January 2020 to refuse a protection and human rights claim.
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A First-tier Tribunal judge dismissed the appeal on protection grounds but allowed the appeal on human rights grounds with reference to his private and family life in the UK with his sister and her children.
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Both parties appealed the decision. In a decision dated 13 January 2021 a panel of the Upper Tribunal found that the First-tier Tribunal decision relating to the protection claim did not involve an error of law (annexed). However, the panel found that the decision relating to the human rights claim did involve the making of an error of law and that aspect of the decision was set aside to be remade in the Upper Tribunal.
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After an adjournment arising from the failure of the appellant’s representative to comply with directions made by the Upper Tribunal, the appeal was eventually listed for a face to face hearing on 14 July 2021 at which the appellant and six other witnesses gave evidence. The details of the evidence given, and the oral submissions made by the parties, are a matter of record.
Decision and reasons
Long residence – a ‘new matter’?
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The appellant claimed to have entered the UK illegally on 16 January 2001 and says that he has remained here ever since. The respondent’s decision letter considered whether the appellant met the private life long residence requirement. At that stage the respondent noted that the appellant entered the UK in 2001 and stated that he had ‘lived in the United Kingdom for approximately 19 years’ but it was not accepted that he had lived in the UK for the 20 years as required by paragraph 276ADE(1)(iii) of the immigration rules.
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The appellant gave evidence before the First-tier Tribunal. Nothing in the First-tier Tribunal judge’s summary of the submissions indicate that any issue was taken with his length of residence. The judge proceeded to make findings relating to the private life long residence requirement under paragraph 276ADE(1)(iii) of the immigration rules, but concluded that, even if an application was considered at the date of the hearing, the appellant would not meet the requirement because he had only lived in the UK for a period of 19 years and 1 month.
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When the Article 8 aspect of the First-tier Tribunal decision was set aside by the Upper Tribunal in January 2021 it was foreseeable that the appellant would rely on 20 years’ residence by the time the decision came to be remade. I took the preliminary view that this was not in fact a new matter because it had been considered by the respondent in the decision letter and by the First-tier Tribunal, and that it was only the factual matrix that was changed by the passage of time. This tribunal had some doubts about the correctness of the decision in Birch (Precariousness and mistake; new matters) [2020] UKUT 86 (IAC), so out of an abundance of caution, the appellant was asked to file and serve detailed of any new matters he might rely on in the human rights claim and the respondent was given time to respond by a certain date.
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The case was listed for a remote hearing on 17 May 2021 but was adjourned to due failure to comply with directions to prepare a proper witness list and accompanying statements in advance of the hearing. By that date it was clear to the respondent that the appellant would rely on paragraph 276ADE(1)(iii) of the immigration rules. A further direction was made for the respondent to file her position on whether this was a new matter or not, and if it was thought to be a new matter, whether she gave consent to it being determined: see section 85 of the Nationality, Immigration and Asylum Act 2002 (‘NIAA 2002’). The respondent failed to comply with the direction. In the meantime, the Upper Tribunal published the decision in Hydar (s 120 response; s 85 "new matter": Birch) [2021] UKUT 176 (IAC), which confirmed that the Birch was decided per incuriam.
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Mr Melvin’s skeleton argument argued that in light of Hydar section 85 NIAA 2002 applied to the Upper Tribunal. The skeleton argument stated that the respondent refused to give consent for the new matter to be determined because the Upper Tribunal would be the ‘primary decision maker’ on the 20 year issue. It would be open for the appellant to make an application under paragraph 276ADE(1)(iii) after the hearing. In submissions, Mr Melvin suggested that the respondent might want to interview the appellant in relation to the issue although, as an expert tribunal, I am aware that it is not common practice for the respondent to interview applicants in relation to human rights claims except when applications are considered alongside a protection claim.
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I referred Mr Melvin to the respondent’s policy on Rights of Appeal (Version 10) (18 December 2020). Under the heading ‘The difference between a new matter and new evidence’ the policy states:
‘A new matter is a human rights or protection claim that the SSHD has not previously considered in the decision under appeal or a response to a section 120 notice.
This does not mean that there cannot be a new matter when there has been a previous protection or human rights claim. There will be a new matter when the factual matrix has not previously been considered by the SSHD. A new matter is something factually distinct from the claim previously made by the appellant, as opposed to further or better evidence of an existing matter. The question of whether something is a new matter is therefore always a fact sensitive one.’
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Under the heading ‘Handling new matters before the appeal hearing’ the policy states:
‘If a new matter is raised before an appeal hearing, for example in the grounds of appeal, the SSHD should try to consider the matter before the appeal hearing so that consent can be given and the Tribunal can consider all matters relating to that appellant in a single appeal.
Even if the new matter is not identified until shortly before or at the hearing, if it can be considered and a decision reached quickly, that should be done. If the new matter cannot be considered before the appeal hearing, for example because the PO needs to check whether a document is genuine and there is insufficient time to do so, the PO should inform the Tribunal that a new matter has been raised and that the SSHD does not consent to it being considered by the Tribunal.
In order to make the best use of Tribunal resources, an adjournment should be sought for the SSHD to consider the new matter. Where possible, a single appeal should consider all matters that have been raised by the appellant.’
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Under the heading ‘Consent to hear new matters’ the policy goes on to say:
‘Withholding consent can delay the conclusion of the person’s claim and consequently delay the grant of leave or efforts to remove the person from the UK. Consent should be given unless it would prejudice the SSHD not to be able to consider the new matter.’
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Mr Melvin should have been aware of this policy, but his reasons for arguing that it was a new matter and purporting to refuse consent were not consistent with the guidance given to Presenting Officers. The policy emphasises that matters should be considered before a hearing, and where possible, consent should be given for all relevant matters to be considered in the appeal. I gave a copy of the relevant section of the policy to Mr Melvin to consider his position, but he maintained that this was a new matter that should be raised after the appeal.
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Having considered the arguments put forward by both parties I am satisfied that I can determine the issue of long residence because it is not a ‘new matter’. Both the respondent and the First-tier Tribunal considered whether the appellant met the requirements of paragraph 276ADE(1)(iii). At the time the appellant had not been resident long enough to meet the 20 year requirement. The fact that he would have reached 20 years’ residence by...
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