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Tribunal confirms Home Office decides what tribunal can consider

Tribunal confirms Home Office decides what tribunal can consider

The Upper Tribunal has confirmed and applied the earlier case of Mahmud (S.85 NIAA 2002 – ‘new matters’) [2017] UKUT 488 (IAC) on what constitutes a “new matter” for the purpose of an appeal. In short, it seems any new fact not previously considered by the Home Office will be put down as a “new matter” even if it is in reality further reasons why a person has connections to the UK. It is an unnecessarily restrictive approach which reflects the immigration tribunal’s tradition of jurisdictional shirking rather than working.

In this new case, Quaidoo (new matter: procedure/process) [2018] UKUT 87 (IAC), the tribunal tells appellants that if they do not like a decision on what is or is not a “new matter” they will have to judicially review the tribunal’s decision. The official headnote:

  1. If, at a hearing, the Tribunal is satisfied that a matter which an appellant wishes to raise is a new matter, which by reason of section 85(5) of the Nationality, Immigration and Asylum Act 2002, the Tribunal may not consider unless the Secretary of State has given consent, and, in pursuance of the Secretary of State’s Guidance, her representative applies for an adjournment for further time to consider whether to give such consent, then it will generally be appropriate to grant such an adjournment, rather than proceed without consideration of the new matter.
  2. If an appellant considers that the decision of the respondent not to consent to the consideration of a new matter is unlawful, either by reference to the respondent’s guidance or otherwise, the appropriate remedy is a challenge by way of judicial review.

Hopefully someone will accept the invitation.

 

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