[2023] UKUT 00293 (IAC)

Mr Toal relied on the definition of a “new matter”, which anchors the concept to issues which “constitute a ground of appeal of a kind listed in regulation 8 [of the 2020 Regulations] or section 84 of the 2002 Act” (see regulation 9(6)(a) of the 2020 Regulations). He accepted that the refusal of leave to remain would not constitute a ground of appeal under either provision – but relied on that distinction as a point in the appellant’s favour. Regulation 8 did not encompass human rights grounds of appeal, and section 84 of the 2002 Act, read with sections 82(1)(b) and 113(1), defined an appealable “human rights claim” as the refusal of a claim that an appellant’s prospective removal would breach the appellant’s rights under the ECHR. The appellant’s case was that it was the mere refusal of leave that would breach his rights under the ECHR; on his case, he did not have to go so far as to make that claim by reference to his prospective removal. That being so, the “new matter” restrictions were of no purchase in relation to the appellant’s human rights-based submissions before the First-tier Tribunal because, properly understood, those submissions were incapable of amounting to a new matter.

Mr Toal submitted that since the tribunal “may also consider any matter which it thinks relevant to the substance of the decision appealed against…” under regulation 9(4), the tribunal was empowered to address such broader human rights-based arguments simply on the basis that they were relevant to the substance of the decision under regulation 9(4). The consent of the Secretary of State was not required because the consent regime only applied to human rights-based arguments of a kind relating to removal, rather than a refusal of leave to remain.

Mr Terrell submitted that, even if the appellant’s Article 8-based submissions did not amount to a “new matter” as defined by the 2020 Regulations, there still had to be a source of jurisdiction for the tribunal to hear the claim.