Matters before the tribunal

Section 85 provides that on an appeal against a decision, the tribunal may consider evidence about any matter which it thinks relevant to the substance of the decision, including a matter arising after the date of the decision. However, there are restrictions on the consideration of matters which constitute ‘new matters’.

A new matter is a ground of appeal not previously considered by the Secretary of State (SSHD). A person may wish to raise a ‘new matter ‘as part of an appeal under section 82(1). The tribunal however, must not consider a new matter unless the SSHD has given consent for the tribunal to do so.

What is the difference between a new matter and new evidence?

A new matter and new evidence are different. The SSHD (usually the presenting officer (PO) handling the appeal) will need to consider carefully whether the new issue raised amounts to a new matter.

A matter is a ‘new matter’ if:

• it is a human rights or protection claim, and the SSHD has not previously considered the matter in the context of the decision under appeal or a response to a section 120 notice
• A ’new matter’ must be clearly distinguishable from and outside the context of the original claim.

The following examples are likely to constitute new matters:

• a protection claim has been made, including a claim under Article 3 of the ECHR, but the appellant is now claiming removal would be (or would also be) a breach of Article 8 based on his family life;
• a human rights claim based on family life has been made, but the appellant is now claiming (or also claiming) that he is a refugee;
• a human rights claim has been made based on private life under Article 8, but the appellant is now claiming (or also claiming) that removal would be a breach of Article 8 on the basis of family life because the appellant has now married a British Citizen.

Additional facts or evidence relating to the original claim do not amount to a ‘new matter’. The following examples are unlikely to constitute new matters:

• A human rights claim has been made based on private life under Article 8 of the Convention but since the decision on this matter further time has elapsed, friendships have developed and property assets have been acquired: however there may be occasions where the passage of time means that the person may now qualify on a new basis, for example under the Immigration Rules, which in itself may amount to a new matter: the case of Vassell is an example of this where the Upper Tribunal found the long residence and that this was a ‘new matter.
• An application has been made for leave to remain as a parent but since the decision on this matter additional children have been born.
• A protection claim has been made, but since the decision on this matter an additional risk factor has been identified or the country situation has changed.

Where the material raised by the appellant does not amount to a new matter, the tribunal is entitled to consider that material when deciding the appeal. A matter can only be described as ’considered ‘by the SSHD where a decision has been made on the merits of the matter raised.

Handling ‘new matters’ Before the appeal hearing

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. Every effort should be made to consider and decide the new 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 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.

ICS Legal can provide support, advice and guidance on the appeal merits as well as representation at the First Tier Tribunal.