[2023] UKUT 00293 (IAC)

It is common ground that the appellant’s human rights-based submissions were not a permitted ground of appeal under regulation 8 of the 2020 Regulations. Subject to the permitted grounds of appeal, the tribunal may “also consider any matter which it thinks relevant to the substance of the decision appealed against…” But there are restrictions on considering a “new matter”: a new matter (as defined) may only be considered by the tribunal with the consent of the Secretary of State: see regulation 9(5).

Not every “matter” is capable of amounting to a “new matter”. Under regulation 9(6)(a), a “new matter” must constitute a ground of appeal of a kind listed in regulation 8 of the 2020 Regulations or section 84 of the 2002 Act. It must also not have been considered by the Secretary of State in the context of the decision appealed against, or a statement issued in response to a notice served under section 120 of the 2002 Act, whereby an appellant is required to state additional grounds to resist removal: regulation 9(6)(b).

We agree that the appellant’s human rights-based submissions do not constitute a ground of appeal of a kind listed in section 84 of the 2002 Act. A “human rights claim” is defined by reference to an appellant’s prospective removal from the UK. As it was put in Charles (human rights appeal: scope) [2018] UKUT 89 (IAC)at paras 47 and 48:

“47.

The definition of ‘human rights claim’ in section 113(1) of the 2002 Act involves the making of a claim by a person that to remove him or her from or to require him or her to leave the United Kingdom would be unlawful under section 6.

48.

The task, therefore, for the Tribunal, in a human rights appeal is to decide whether such removal or requirement would violate any of the provisions of the ECHR. In many such cases, including the present, the issue is whether the hypothetical removal or requirement to leave would be contrary to Article 8 (private and family life).”

It follows that the appellant’s human rights-based submissions before the judge (namely that the refusal of leave under the EUSS itself was a breach of Article 8) were not a “human rights claim” for the purposes of section 113(1). Consequently, we agree with Mr Toal that the “new matter” regime in regulation 9(6) was of no purchase in relation to the broader, non-removal human rights-based submissions the appellant relied upon before the judge. That is because a matter is only capable of amounting to a “new matter” where “it constitutes a ground of appeal listed in regulation 8 or section 84 of the 2002 Act”.