It is not unusual for OISC practitioners before the Tribunal to become completely flummoxed when the issue of a ‘New Matter’ is raised. OISC practitioners and indeed immigration solicitors on occasions argue that the Tribunal should go on and hear the case despite a new matter being raised.
Section 85 of the Nationality Immigration and Asylum Act 2002 covers this:
- The Tribunal will consider any matter arising from the appeal of the decision made in accordance with sections 82 and 84, where it is directly relevant to the “substance of the appeal”
- If a section 120 statement was made before the appeal was submitted, the Tribunal can consider this statement as part of the appeal
- Any new matter raised after the appeal was made (which does not fall within the ambit of the “substance of the appeal”), can only be considered by the Tribunal where:
(a) The matter constitutes a ground of appeal as per section 84; and
(b) The Home Office has given its consent to the Tribunal considering that ground
What constitutes a new matter?
The Home Office guidance provides some guidance on what constitutes a ‘New Matter’ under s85 and there is also case law that should be reviewed by practitioners: Quaidoo (new matter: procedure/process)  UKUT, which affirmed the earlier UT authority of Mahmud (S. 85 NIAA 2002 – ‘new matters’)  UKUT 488.
Home Office guidance indicates the following circumstances would constitute a new matter:
- Where a couple now has a child that was not previously considered by the Home Office.
- The Appellant made a human rights application based on one relationship with a partner but is now in a new relationship with a different partner
- An Appellant who made a protection claim is now claiming to be a refugee or vice versa.
- An Appellant is now married to a British national.
The Home Office also helpfully gives guidance on when things are unlikely to be regarded as a new matter:
- Where an Appellant has made a claim based on a relationship and the couple are now married.
- The Appellant has made a protection claim and new evidence is produced of the Appellant’ s risk from the authorities.
What should you do?
Where you, as a practitioner, recognise that there is now a new matter for consideration by the Tribunal, it is in your client’s interests to pursue this as soon as possible. It is recommended that you produce evidence of the new matter and write to the Tribunal and the Home Office to request that the matter is considered in advance of the hearing. The Home Office guidance on considering new matters in advance is helpful and suggests that the Home Office should endeavour to consider new matters in advance of the hearing.
Indeed, if on the day of the substantive hearing, the Judge considers that a new matter has been raised, you should encourage the Home Office to take instructions on whether or not they can give their consent for this new matter to be heard at the hearing. If they cannot give consent, it is usual for the Home Office to seek an adjournment to consider the new matter in advance of a new hearing. Depending on the new matter, this could be in your client’s interests, but each case will differ and you will need to take instructions from your client as to how they wish to proceed.
All practitioners undertaking appeal work should have a good knowledge of the Home Office guidance on new matters and when they are likely to arise.
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