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One stop procedure, “new matters” and certification under s.96

Chapter number:
5
Section:
Procedure
Last updated:
01 December 2019

One stop procedure

5.1 The stated intention of the 2002 Act was to enable all outstanding issues relating to a person's entitlement to enter or remain in the UK to be dealt with in one appeal.

5.2 Your client may be served with a one stop notice under s.120 of the 2002 Act where:

(a) she has made a protection claim or a human rights claim,

(b) she has made an application to enter or remain in the United Kingdom, or

(c) a decision to deport or remove her has been or may be taken. (s. 120(1))

Under the old appeals provisions, a one stop notice could be served whenever a person applied for leave to enter or remain in the UK, or an appealable immigration decision was taken. Importantly, the Secretary of State has a discretion under s.120(2) whether to issue a notice (see Lamichhane v SSHD [2012] EWCA Civ 260; TY (Sri Lanka) v SSHD [2015] EWCA Civ 1233). In AK and IK (S.85 NIAA 2002 – new matters) Turkey [2019] UKUT 00067 (IAC), the Upper Tribunal held that in the absence of a notice under s.120 being issued, it is not open to individuals to submit s.120 statements of their own volition5.3 The notice may require your client to state:

(a) her reasons for wishing to enter or remain in the United Kingdom,

(b) any grounds on which she should be permitted to enter or remain in the United Kingdom, and

(c) any grounds on which he should not be removed from or required to leave the United Kingdom. (s.120(2))

5.3A Section 120 now contains an ongoing duty on a person who has been served with a s. 120 notice, and who requires leave to enter or remain but does not have it (or only has leave under s. 3C of the Immigration Act 1971) to keep the Home Office informed of changes in their circumstances which give rise to new grounds for remaining in, or not being required to leave, the United Kingdom. Section 120(5) provides in such cases that:

(5) Where P's circumstances have changed since the Secretary of State or an immigration officer was last made aware of them (whether in the application or claim mentioned in subsection (1) or in a statement under subsection (2) or this subsection) so that P has—

(a) additional reasons for wishing to enter or remain in the United Kingdom,

(b) additional grounds on which P should be permitted to enter or remain in the United Kingdom, or

(c) additional grounds on which P should not be removed from or required to leave the United Kingdom,

P must, as soon as reasonably practicable, provide a supplementary statement to the Secretary of State or an immigration officer setting out the new circumstances and the additional reasons or grounds.

5.4 The Home Office's Rights of Appeal guidance explains the purpose and consequences of a one stop notice under the 2014 appeals regime:

Some people may make late human rights or protection claims that could have been made earlier. A person resisting removal may try and make a late claim because if they exercise their right of appeal it could delay removal.

To make this behaviour ineffective in preventing or delaying removal, the new process under the Immigration Act 2014 requires that a section 120 notice is served in every case. This notice requires the person to make any further claim now or as soon as reasonably practicable after it arises.

The consequence of not complying with the notice and making a late claim could be that the claim is certified under section 96 of the Nationality, Immigration and Asylum Act 2002. This removes any subsequent right of appeal where the claim is refused….

5.4A Whilst there is no particular form or time limit specified for the purposes of s.120(2) (see MU ("Statement of Additional Grounds": Long Residence – Discretion) Bangladesh [2010] UKUT 442 (IAC)), the Tribunal has confirmed that a section 120 statement must be made in writing to the Secretary of State (OA and Others (human rights; 'new matter'; s.120) Nigeria [2019] UKUT 00065 (IAC)). In OA, it was accepted on behalf of the Home Office that it is possible for the contents of a witness statement to constitute a statement for the purposes of section 120(2); a statement could not, however, be made orally. The Upper Tribunal held in Ahmad (Scope of Appeals) [2018] UKUT 0084 (IAC) that a requirement that a statement be made to the Home Office or an immigration officer, which is express for subsequent statements under s.120(5), is also inherent in s.120(2) (at [56]).

5.4B In Jaff (s120 Notice; Statement of "Additional Grounds") [2012] UKUT 00396 (IAC), the Upper Tribunal held that a statement of additional grounds 'must as a minimum set out with some level of particularity the ground or basis relied upon by the appellant as a basis for him remaining in the UK and upon which he has not previously relied' (at [24]).

New matters

5.5 There are no provisions in the 2002 Act (as there were in the 1999 Act) limiting your ability to advance submissions at the appeal that you did not raise in a s.120 one stop notice, but under s.85 of the 2002 Act there is a requirement for the Home Office's consent for the Tribunal to consider any "new matters" which have not previously been considered by the Home Office (see para 5.7 below).

5.6 Section 85(2–3) provides that the Tribunal must consider any matter raised in a s.120 statement which constitutes a ground of appeal listed in s.84, whether made before or after the appeal is commenced. As the Upper Tribunal observed in Mahmud (S. 85 NIAA 2002 – 'new matters') [2017] UKUT 00488 (IAC), even where the Tribunal is unable to consider a 'new matter', because the Home Office withholds consent, you should still ensure that any matter is raised in the notice of appeal (and in response to any one stop notice), in order to protect your client from the subsequent risk of s96 certification.

5.6A Section 85 also provides that where a 'new matter' is raised on appeal (whether in the grounds of appeal or in a one stop notice), the Tribunal may not consider that matter unless the Home Office gives its consent (s.85(5)). A 'new matter' is a matter which 'constitutes a ground of appeal of a kind listed in section 84' and which has not previously been considered by the Home Office (s.85(6)). In Mahmud [2017] UKUT 00488 (IAC), the Upper Tribunal rejected a submission that a 'new matter' meant a 'new ground of appeal'. It held that the appellant's reliance on a relationship which had not previously been raised with the Home Office was still a 'new matter' which the Tribunal required the Home Office's consent to consider, even though the appellant had previously raised other Article 8 grounds. It explained that:

29. 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. For example, medical evidence of a serious health condition could be a matter which constitutes a ground of appeal on human rights grounds based on Article 3 of the European Convention on Human Rights which if breached, would mean that removal would be contrary to section 6 of the Human Rights Act, a ground of appeal in section 84(2) of the 2002 Act. Similarly, evidence of a relationship with a partner in the United Kingdom could be a matter which constitutes a ground of appeal based on Article 8 and for the same reasons could fall within section 84(2) of the 2002 Act as if made out, removal would be contrary to section 6 of the Human Rights Act.

30. 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. In the absence of this restriction, section 85(5) of the 2002 Act could potentially allow the Respondent to give the Tribunal jurisdiction to consider something which is not a ground of appeal by consent, thereby undermining sections 82 and 84 of the 2002 Act;

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. By way of example, evidence that a couple had married since the decision is likely to be new evidence but not a new matter where the relationship had previously been relied upon and considered by the Secretary of State. Conversely, evidence that a couple had had a child since the decision is likely to be a new matter as it adds an additional distinct new family relationship (with consequential requirements to consider the best interests of the child under section 55 of the Borders, Citizenship and Immigration Act 2009) which itself could separately raise or establish a ground of appeal under Article 8 that removal would be contrary to section 6 of the Human Rights Act.

The Upper Tribunal held that the question of whether something is a 'new matter' is something which the First-tier Tribunal must decide for itself, in order to decide whether it has jurisdiction to consider the matter if the Home Office withholds consent. It endorsed the following structure for decision-making proposed by the Home Office:

(1) What is the 'matter' which it is alleged constitutes a 'new matter' for the purpose of section 85(5)? What are its ingredients both in fact and in law?

(2) Does the 'matter' constitute a ground of appeal of a kind listed under section 84?

(3) Has the Respondent previously considered the 'matter' in the context of the decision referred to in section 82(1)?

(4) Has the Respondent previously considered the 'matter' in the context of a statement made by the appellant under section 120?

(5) If the 'matter' is a 'new matter', has the Respondent given consent for the Tribunal to deal with the 'new matter'?

In OA and Others (human rights; 'new matter'; s.120) Nigeria [2019] UKUT 00065 (IAC), the Upper Tribunal held that the completion by the appellant of ten years' continuous lawful residence whilst his human rights appeal was pending was a 'new matter' for the purposes of s.85. The Tribunal said:

18. In order to constitute a new matter, the assertion that a person has, by reason of completing ten years' continuous residence, brought themselves within the ambit of paragraph 276B of the Immigration Rules must be capable of having an effect on the outcome of that person's human rights appeal. It must, in other words, have a material bearing on the sole ground of appeal that can be advanced in a human rights appeal; namely, whether the decision of the respondent to refuse a human rights claim is unlawful under section 6 of the 1998 Act.

It continued to explain that, as a general proposition, the completion of ten years' continuous lawful residence in the United Kingdom by a person who has appealed against the refusal of a human rights claim will be a matter that constitutes a ground of appeal, compatibly with the decision in Mahmud. This is because paragraph 276B of the Immigration Rules provides that a person with ten years' continuous lawful residence is entitled to indefinite leave to remain in the United Kingdom, so long as the other requirements of that paragraph are met. As such, it is capable of having a material bearing on the outcome of the appeal.

In AK and IK (S.85 NIAA 2002 – new matters) Turkey [2019] UKUT 00067 (IAC), the Tribunal applied s.85 to a new legal basis for leave to remain (as opposed to new facts). The Tribunal had to consider the application of the "new matter" provisions to the situation where on appeal, an appellant relies upon a different category of the Immigration Rules than those under which an application was made. On the facts of AK & IK, a new category under the Rules (Appendix ECAA) was brought into force following the Home Office's refusal of the appellants' human rights application. The appellants argued that they met the requirements of Appendix ECAA and that this was not a "new matter" because the factual matrix had not changed; rather, the same facts were being applied to a different provision of the Rules. The Tribunal rejected this argument and held that it did constitute a "new matter":

If an appellant relies upon criteria that relate to a different category of the Immigration Rules to make good his Article 8 claim from 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) of the Nationality, Immigration and Asylum Act 2002 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.

5.6B The Home Office's Rights of Appeal guidance includes the following guidance on the Home Office's power to withhold consent for a new matter to be raised:

If a new matter is raised before an appeal hearing, for example in the grounds of appeal, the SSHD should try to consider the matter before the appeal hearing so that consent can be given and the Tribunal can consider all matters relating to that appellant in a single appeal.

Even if the new matter is not identified until shortly before or at the hearing, if it can be considered and a decision reached quickly, that should be done. If the new matter cannot be considered before the appeal hearing, for example because the PO needs to check whether a document is genuine and there is insufficient time to do so, the PO should inform the Tribunal that a new matter has been raised and that the SSHD does not consent to it being considered by the Tribunal.

In order to make best use of Tribunal resources, an adjournment should be sought for the SSHD to consider the new matter. Where possible, a single appeal should consider all matters that have been raised by the appellant.

If the Tribunal does not agree to an adjournment, the PO must consider whether to:

• refuse consent because the SSHD is unable to consider the new matter in the time available

• record the reasons for seeking an adjournment and the reasons why it was refused in their hearing minute

The Home Office will then consider the minute in deciding whether to challenge any allowed appeal on procedural grounds.

POs should not withdraw the decision under challenge where an adjournment is refused. Decisions can only be withdrawn in line with the withdrawing decisions and conceding appeals.

The PO must consult a senior PO or senior caseworker (SCW) if consent is to be refused.

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

In Quaidoo (new matter: procedure/process) [2018] UKUT 00087 (IAC), the Upper Tribunal held in light of this guidance that where the Home Office asks for an adjournment because it wants more time to consider whether to grant consent, the First-tier Tribunal should normally grant that application.

5.6C Where consent is refused and the appeal is subsequently dismissed, the Rights of Appeal Guidance envisages that the Home Office will then go on to consider the 'new matter'. It will consider whether it is able to make a decision on the basis of the information available, and 'direct' the applicant to make a charged application if appropriate or invite the submission of further information. If the Home Office refuses to give consent to a new matter being considered by the First-tier Tribunal, the Upper Tribunal held in Quaidoo (new matter: procedure/process) [2018] UKUT 00087 (IAC) that your remedy is an application for judicial review of that decision. It is not a matter over which the First-tier Tribunal has any jurisdiction.

5.7 Any pure immigration grounds (i.e. those which raise neither asylum nor human rights issues) should be raised in response to a one stop notice, but the Tribunal will have no jurisdiction to consider them. These are outside the scope of this text. The opportunities to obtain leave to enter/remain on non-human rights grounds are anyway likely to be limited for most asylum seekers.

Certification under s.96

5.8 For an asylum/human rights appellant, the main impact of the one stop procedure will be felt only if she seeks to bring a second appeal, or to raise a new asylum or human rights claim in circumstances in which the Home Office might be able to argue that she has failed to raise the claim 'as soon as reasonably practicable', despite being under an ongoing duty to do so. You should ensure that you advise any client who has been served with a s. 120 notice of her ongoing duty to raise new matters as soon as reasonably practicable and the consequences of delay, including possible certification under s. 96 of the 2002 Act, which deprives them of any right of appeal against a new adverse decision.

5.9 Moreover, severe adverse consequences may apply to any dependant who does not raise an asylum or human rights ground in response to a s.120 notice. If they subsequently make a claim in their own right, the Home Office may issue a certificate under s.96 to deny them any appeal on the merits. If you are instructed by anyone affected by a s. 120 notice, you must take instructions on their individual circumstances if you have not already done so. If you are not instructed, you should advise your client of the risk and suggest that her dependants take advice.

5.10 In R (J) v SSHD [2009] EWHC 705 (Admin), Stadlen J set out a four-stage process to be followed by the Home Office before certifying a claim under s. 96 in consequence of a failure to respond to a s. 120 notice: (1) the claimant must have had a previous right of appeal against another immigration decision, or have received a one-stop notice in connection with another immigration application; (2) the new claim must rely on a matter which should have been raised in the previous appeal or in response to the one-stop notice but was not; (3) the Home Office must "form the opinion that there is no satisfactory reason" for the matter not having been raised at the previous opportunity; and (4) the decision to certify is a discretionary one, so that the Home Office had to consider all the relevant factors and decide whether to certify. These will include the merits of the claim and the fact that it is an asylum or human rights claim means that in considering both the third and fourth questions, the decision-maker must apply anxious scrutiny to the issues before him.

5.10A The Secretary of State has published guidance for decision-makers on the application of s.96: Late claims; certification under section 96. In respect of the third step (existence of a satisfactory reason for not raising the ground earlier), the guidance says (at p.7):

Section 96 is not a means of punishing individuals by exposing them to a real risk of persecution, death or torture just because they may lie or give an incomplete version of their story at their first appeal if there was a satisfactory reason for them doing so.

The fact that an individual has lied or omitted to give information previously should be taken into account when deciding whether there is a satisfactory reason for not raising the ground earlier but it does not decide the issue. You must also consider whether there is a satisfactory reason for the lie or omission.

If a decision is made to certify, the decision letter must set out the factors that were taken into consideration and the reasons for concluding that there was no satisfactory reason for failing to raise the ground earlier.

5.10B And on the fourth step, the s.96 Guidance says the following on the exercise of discretion:

It is not sufficient just to say that consideration has been given to the exercise of discretion and the outcome of that consideration is that the case is certified. The decision letter must set out the factors taken into account when deciding whether to exercise the discretion to certify and the basis on which you concluded that it was right to certify in that case.

Factors to be considered are the:

Prospects of success at appeal for the underlying claim, particularly where asylum and Article 3 issues are raised […]

Fact that a claimant may have lied previously should be taken into account but is not necessarily determinative.

5.11 It is noteworthy that the headnote in R (on the application of Vassell) v Secretary of State for the Home Department (s.96 NIAA 2002, test; merits) IJR [2015] UKUT 00404 (IAC) suggests that "[t]he merits of any new matter raised by an applicant are not relevant to this process." That suggestion is not only inconsistent with Stadlen J's decision in J (which the Upper Tribunal otherwise applied without criticism), but is not in fact supported by the reasons given in the body of the decision for rejecting the part of the claim which challenged the exercise of discretion (the claim was allowed on the basis that the claim in fact relied on a matter which could not have been raised at the time of the earlier appeal).