Upper Tribunal gives guidance on ‘new matter’ in an appeal

There is a general bar on a ‘new matter’ being raised in an appeal to the tribunal. In Ayoola (previously considered matters) Nigeria [2024] UKUT 143 (IAC), the tribunal gives us some guidance on what might and might not be new in this context:

1) If a matter is raised in the course of an application to the Secretary of State, the Secretary of State’s refusal of the application will amount to having “considered” the matter for the purposes of regulation 9(6)(b) of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020, even if the decision under appeal is silent on a matter expressly raised in the application.

2) The references to the matter will have to be sufficiently clear to make it reasonable for the Secretary of State to be expected to respond to it. A buried or tangential reference in an application which ostensibly otherwise relies on some other matter is unlikely to be sufficient to merit the conclusion that it has been “considered” by the Secretary of State. Such a matter will be a new matter, requiring the consent of the Secretary of State for it to be considered by the tribunal.

The arguments failed in this particular case, which concerned Zambrano and potentially Ibrahim and Teixeira rights of residence under the EU Withdrawal Agreement. The reference to Withdrawal Agreement rights in the application to the Home Office was held to be not sufficiently explicit here.

I’m old enough to remember “one stop” appeals, intended to resolve legal disputes quickly and cheaply. Instead, a person refused permission to rely on a new matter needs to make a new application. Which is in nobody’s interests.