We recently examined in parts one and two of this practical guide how and on what basis you might lodge an immigration appeal. In this third post, we examine the starting point for an immigration appeal and the legal considerations when appealing against an immigration decision.
The factors and considerations below cannot be considered an exhaustive list. The approach to an immigration appeal will depend on the individual facts and circumstances. There are many practical considerations. You may need to seek specialist legal advice as the presentation of an immigration appeal will be different depending on the issues and available evidence.
Considerations for Immigration Appeals
Human Rights Appeals (On The Basis Of Private And Family Life)
The starting point for any immigration appeal based on human rights is whether Article 8 ECHR is engaged.
In Secretary of State for the Home Department v Abbas  EWCA Civ 1393, the Court of Appeal confirmed that Article 8 is not engaged when an individual is refused entry clearance to pursue a private life and no question of proportionality arises for consideration. Article 8 is engaged, however, where family life exists between the appellant and family members in the UK.
Provided that Article 8 is engaged and following Mostafa (Article 8 in entry clearance)  UKUT 00112 (IAC), when assessing whether a refusal of leave constitutes a proportionate interference with the appellant's right to family life, the first consideration will be the requirements of the Immigration Rules. If it is shown that the Appellant meets the requirements of the Rules, this provides a weighty factor when considering proportionality.
Thereafter, in TZ (Pakistan) and PG (India) v The Secretary of State for the Home Department  EWCA Civ 1109, the Court of Appeal held:
"where a person satisfies the Rules, whether or not by reference to an article 8 informed requirement, then this will be positively determinative of that person's article 8 appeal, provided their case engages article 8(1), for the very reason that it would then be disproportionate for that person to be removed." 
The above were confirmed in OA and others (human rights; "new matter"; s. 120) Nigeria  UKUT 65 (IAC), where it was held that:
"In a human rights appeal under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002, a finding that a person (P) satisfies the requirements of a particular immigration rule, so as to be entitled to leave to remain, means that (provided Article 8 of the ECHR is engaged), the Secretary of State will not be able to point to the importance of maintaining immigration controls as a factor weighing in favour of the Secretary of State in the proportionality balance, so far as that factor relates to the particular immigration rule that the judge has found to be satisfied."
In the recent case of Begum (employment income; Rules/Article 8)  UKUT 115 (IAC), the Upper Tribunal confirmed that the above principles apply equally to appeals against the refusal of entry clearance, where Article 8 ECHR is engaged and the requirements of the Immigration Rules were found to be satisfied.
Where the requirements of the Immigration Rules are not satisfied, the Immigration Tribunal would need to consider whether the decision on appeal was a disproportionate interference with the appellant's (and any affected family members') rights under Article 8 ECHR. In conducting this assessment, the Tribunal is required to have regard to the considerations of s.117A-117D of the Nationality, Immigration and Asylum Act 2002.
Deprivation of Citizenship Appeals
We have examined appeals against deprivation of British Citizenship in accordance with section 40A(1) British Nationality Act 1981 in an earlier post and now updated in this post in light of the judgment in Begum, R. (on the application of) v Special Immigration Appeals Commission & Anor  UKSC 7.
Is There a New Matter to Raise?
You will need to consider if your immigration appeal contains a new matter. Section 85(5) of the Nationality, Immigration and Asylum Act 2002 states that the Immigration Tribunal must not consider a "new matter" unless the Secretary of State has given the Tribunal consent to do so. The definition of "new matter" is given in section 85(6) of the 2002 Act.
In Mahmud (S. 85 NIAA 2002 – 'new matters')  UKUT 488 (IAC), the Tribunal held as follows:
- Whether something is or is not a 'new matter' goes to the jurisdiction of the First-tier Tribunal in the appeal and the First-tier Tribunal must therefore determine for itself the issue.
- A 'new matter' is a matter which constitutes a ground of appeal of a kind listed in section 84, as required by section 85(6)(a) of the 2002 Act. Constituting a ground of appeal means that it must contain a matter which could raise or establish a listed ground of appeal. A matter is the factual substance of a claim. A ground of appeal is the legal basis on which the facts in any given matter could form the basis of a challenge to the decision under appeal.
- In practice, 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.
There is a difference between a human rights or protection claim that the Secretary of State is unaware of and developing the evidence relating to matters already raised. It is of great importance to raise everything from the outset.
The guidance on Rights of Appeal, Version 10, published 18 December 2020 gives the following examples, as to what might, in the Home Office's view, constitute a new matter (as above, it is for the Tribunal to determine for itself the issue and therefore the Home Office's guidance is not determinative):
Examples likely to constitute a new matter are where:
- there is a human rights claim based on a relationship and the couple have now had a child and this has not previously been considered by the SSHD, because the existence of the child adds an additional distinct new family relationship (with a requirement to consider the best interests of the child) which could separately raise or establish a ground of appeal under Article 8 ECHR
- the appellant made a human rights claim based on a relationship and at the appeal the appellant says that their human rights claim is based on a new relationship, as although the SSHD will previously have considered Article 8 ECHR the factual basis for that claim will have changed and therefore it will be a new matter
- a protection claim has been made, and the appellant is now claiming removal would be (or would also be) a breach of Article 8 ECHR based on their family life in the UK
- a human rights claim based on family life has been made, and the appellant is now claiming (or also claiming) that they are a refugee
- a human rights claim has been made based on private life under Article 8, and the appellant is now claiming (or also claiming) that removal would be a breach of Article 8 ECHR on the basis of family life because the appellant has now married a British citizen
The guidance states that if a new matter is raised before an appeal hearing, the Secretary of State should try to consider it before the hearing so that consent can be given and all matters can be considered together by the Immigration Tribunal. If the new matter cannot be considered before the hearing, an adjournment should be sought. Raising new matters at the last minute is unlikely to be looked upon favourably and could have cost implications.
The guidance states:
Withholding consent can delay the conclusion of the person's claim and consequently delay the grant of leave or efforts to remove the person from the UK. Consent should be given unless it would prejudice the SSHD not to be able to consider the new matter.
All the facts and circumstances of the case and the appellant should be considered when reaching a decision on consent.
Unless there are exceptional circumstances, consent should be refused if:
- it is necessary to verify facts or documents that are submitted in support of the new matter and these checks are material to the new matter
- the new matter is a protection claim and it has not already been confirmed that the UK is the responsible state for determining the claim
- it is necessary to conduct additional checks such as a person's criminal conviction history or the status of a criminal prosecution
Where consent would normally be refused, exceptional factors may mean that
consent should be granted. Exceptional circumstances may include where the:
- appellant or a dependent has a serious illness and the appeal needs to be determined on an urgent basis
- matter had been raised with the SSHD and, through no fault of the appellant, there has been more than six months' delay in the SSHD considering the matter
If there is a new matter, the Tribunal does not have jurisdiction to consider it without the Secretary of State's consent. If the Secretary of State has refused consent unlawfully, this can only be challenged by way of judicial review.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.