Protection appeals

Question 1

Mahmud (s.85 NIAA 2002 – “new matters”) [2017] UKUT 488 (IAC) held that:

Answer 1

the FTT must determine whether something is a new matter.
a new matter is one which constitutes a s.84 ground of appeal and is a factual matrix that has not previously been considered by the respondent in a s.82(1) decision or a statement under s.120.
the matter must be factually distinct from one previously raised by an appellant, as opposed to further or better evidence of an existing matter.
the assessment will always be fact sensitive – if the new factual matrix is considered in a decision letter, it will not be a new matter.

Question 2

Quaidoo (new matter: procedure/process) [2018] UKUT 87 (IAC) held that:

Answer 2

if the FTT is satisfied a matter is a new matter and the respondent seeks an adjournment to consider giving the required consent (in pursuance of the HO guidance on rights of appeal), then it will generally be appropriate to grant such an adjournment rather than proceed without consideration of the new matter.
if the respondent subsequently decides not to consent, then the appropriate remedy is a challenge by way of JR.

Question 3

Oksuzoglu (EEA appeal – “new matter”) [2018] UKUT 385 held that:

Answer 3

a “new matter” also includes a European Economic Area (EEA) ground of appeal, and therefore requires the respondent’s permission to be considered as part of a protection appeal.
This was recently affirmed by the Upper Tribunal in MM (section 117B(6) – EU citizen child) Iran [2020] UKUT 224 (at [31]).

Question 4

OA and others (human rights; “new matter”; s.120) Nigeria [2019] UKUT 65 held that:

Answer 4

the fact that an appellant completes ten years’ continuous lawful residence during the course of an appeal on HR grounds will generally constitute a new matter.

Question 5

AK and IK (s.85 NIAA 2002 - new matters) Turkey [2019] UKUT 67 held that:

Answer 5

if an appellant relies on criteria in an appeal that relate to a different category of the Immigration Rules from those relied upon in their application for leave to remain or in their s.120 statement, then this constitutes a new matter – therefore, the SSHD’s consent is required, even if the facts relied upon in the appeal remain the same.

Question 6

In Kalidas (agreed facts – best practice) Tanzania [2012] UKUT 327 (IAC) the Tribunal held that:

Answer 6

parties should provide written confirmation of issues agreed and concessions made.

if credibility is not in issue, an appellant is not usually required to provide a further statement or give evidence, although the Tribunal should be told why.

any further statement from an appellant should focus on the remaining live issues.

any skeleton argument should address the live issues, rather than just containing general law.

representatives are jointly responsible for drawing the Tribunal’s attention to any agreement reached, and the nature of the decision still required.

Question 7

Hoxha v SSHD (representatives: professional duties) [2019] UKUT 124

Answer 7

when an appellant relies upon a medical report, their representative has a duty to check the report’s accuracy, and ensure it accurately reflects the way in which the information in it came to be obtained. Failure to adhere to this professional duty may result in the Tribunal referring the legal representative to the relevant regulatory body.

Question 8

Ortega (remittal; bias; parental relationship) [2018] UKUT 298

Answer 8

in an Upper Tribunal error of law decision that remits an appeal to the FTT, clear indication must be given if the appeal is to be remade de novo. If not, the error of law decision must set out clearly the issues which require remaking and any preserved findings relevant to remaking the appeal.