May
2019
Any immigration practitioner appreciates that upon refusal of a claim that carries a right of appeal by the Home Office, grounds of appeal will be required in order to lodge an appeal to the First-tier Tribunal. Historically, both the Home Office and especially the Tribunals have been flocked by last-minute evidence purporting to run new arguments (or new matters) which were not contained in the original grounds of appeal or were not before the decision-maker at the time of consideration. An example is when a refusal focuses only on human rights grounds under the ECHR but at the actual hearing a protection claim under the Refugee Convention is being pursued.
The relevant time, therefore, is the period between the date of refusal and the date of hearing. Statute prohibits this practice through s.85(5) of the Nationality, Immigration and Asylum Act 2002 although Tribunals would still often fall into the trap of considering evidence not before the Home Office at the time of refusal. Quaidoo (new matter: new procedure/process) [2018] United KingdomUT 87 brings into play the issue of ‘consent’ making such proceedings significantly more convoluted. It is to be noted that Quaidoo follows relevant previous 2017 judgments.
Under Quaidoo an appellant in the First-tier may raise a ‘new matter’. The classical paradigm of a new matter in the relevant Home Office policy is a human rights claim where between refusal and date of hearing the appellant has given birth to a British child. Caselaw restricts judges from considering the new matter unless the Secretary of State consents to the new matter being considered. The Secretary of State hence has the option of either refusing or granting consent through his counsel or presenting officer. As the law stands there is no leeway to argue against refusal of consent in appeal proceedings but the option open to the appellant, if meritorious, is to judicially review the said refusal of consent.
If consent is refused by the Secretary of State, the appeal judge must ignore the new matter and proceed to assess only what was before the decision maker at the time of refusal. In practice, this would be easier said than done. The judge has no power to intervene in matters of consent. Experience shows that while arguing against the Secretary of State’s refusal of consent is futile, challenging whether a matter is indeed ‘new’ may carry some merit for the appellant especially in cases where the issue that has arisen is not clear-cut. There is good reason behind this suggestion: a First-tier judge decides whether a matter is new, not the Secretary of State.
It cannot, of course, be ignored that issues of consent at the time of writing are causing significant strains to all three partakers: the Courts, the appellants and the Home Office itself. If an appellant, as an illustration, wishes to raise a new matter at the hearing but the respondent is unrepresented, the judge cannot ignore the matter of consent and is obliged to adjourn the hearing for a later date. This by implication worsens the Department’s bureaucracy, lengthens litigation and raises costs for both sides including the taxpayer, causing us to wonder whether the judgment in Quaidoo has in fact taken into account the overriding objective.
For further information, please contact FT Solicitors on 02031918080