[2024] UKUT 00143 (IAC)

The “new matter” regime in the 2020 Regulations is textually very similar to the equivalent regime in section 85 of the Nationality, Immigration and Asylum Act 2002 (“section 85” of the “2002 Act”), subject to the necessary modifications to cross-refer to the relevant provisions of the 2020 Regulations, rather than the 2002 Act. At para. 93 of Celik (EU exit; marriage; human rights) [2022] UKUT 220 (IAC), this tribunal drew on the authorities concerning section 85 for guidance when applying the regulation 9. We will do likewise.

In Mahmud (S. 85 NIAA 2002 – ‘new matters’) [2017] UKUT 488 (IAC) this tribunal held, at para. 31:

“Practically, a new matter is a factual matrix which has not previously been considered by the Secretary of State in the context of the decision in section 82(1) or a statement made by the appellant under section 120. This requires the matter to be factually distinct from that previously raised by an appellant, as opposed to further or better evidence of an existing matter. The assessment will always be fact sensitive...” (Emphasis added)

In AK and IK (S.85 NIAA 2002 - new matters) Turkey [2019] UKUT 67 (IAC), it was held that reliance on a different provision of the Immigration Rules to that originally relied upon, which entailed the consideration of additional and distinct criteria to those originally relied upon in the application (in that context, an application under Appendix ECAA, which did not exist at the time of the original human rights claim), was a new matter. See para. 40, per Upper Tribunal Judge Gill:

“For the reasons given above, and to summarise, I have concluded that, if an appellant relies upon criteria that relate to a different category of the Immigration Rules to make good his Article 8 claim than that relied upon in his application for LTR on human rights grounds or in his s.120 statement such that a new judgment falls to be made as to whether or not he satisfies the Immigration Rules, this constitutes a ‘new matter’ within the meaning of s.85(6) which requires the Secretary of State's consent even if the facts specific to his own case (for example, as to accommodation, maintenance etc) remain the same.” (Emphasis added)

We have emboldened “been considered” and “relied upon in his application” above because both terms go to the heart of this issue. Mr Deller submits that “been considered” requires active consideration of the issue by the Secretary of State. On his submission, if a matter is raised in the course of an application, but not expressly addressed by the Secretary of State in any decision or response to a notice served under section 120 of the 2002 Act, it has not been “considered” by the Secretary of State. Mr Jafferji submits that this interpretation is too narrow.