by Mark Henderson and Rowena Moffatt of Doughty Street Chambers
and Alison Pickup of Asylum Aid
~ Newly Revised 2022 Edition ~
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.
(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))
Importantly, the Secretary of State has a discretion under s.120(2) whether to issue a notice (see Lamichhane v SSHD  EWCA Civ 260; TY (Sri Lanka) v SSHD  EWCA Civ 1233). In AK and IK (S.85 NIAA 2002 – new matters) Turkey  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 volition
(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 places 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…. (p21)
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  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  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)  UKUT 00084 (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 ). In Hydar (s 120 response; s 85 "new matter": Birch)  UKUT 00176 (IAC) the Tribunal found that written submissions filed and served by the appellant in advance of the appeal hearing constituted a statement for the purposes of s120 (at ).
5.4B In Jaff (s120 Notice; Statement of "Additional Grounds")  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 ).
5.4C In Hydar (s 120 response; s 85 "new matter": Birch)  UKUT 00176 (IAC) the Tribunal held that where an appellant responds to a s120 notice in the course of an appeal raising a matter that is of a different origin than raised in the application giving rise to the appeal, it will constitute a "new matter" which by virtue of s85(5) of the 2002 Act may not be considered by the Tribunal unless the Home Office has given the Tribunal consent to do so (see further paragraphs 5.5-5.7 below).
5.5 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 5.6A-D 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')  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)): see also Hydar (s 120 response; s 85 "new matter": Birch)  UKUT 00176 (IAC). 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  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.
5.6AA The Upper Tribunal in Mahmud  UKUT 00488 (IAC) 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'?
5.6AB In OA and Others (human rights; 'new matter'; s.120) Nigeria  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.
5.6AC In AK and IK (S.85 NIAA 2002 – new matters) Turkey  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.
5.6AD A similar decision was reached in Hydar (s 120 response; s 85 "new matter": Birch)  UKUT 00176 (IAC) where the Tribunal held that a new ground of appeal raised in a human rights appeal in response to a s120 notice, such as a protection issue or (where it still applies) an EU rights issue, would constitute a new matter.
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)  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)  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.
5.6D Whilst appeals to the Upper Tribunal are not covered by this guide, it is noteworthy that the prohibition on considering new matters applies equally to proceedings in the Upper Tribunal. The panel in Hydar (s 120 response; s 85 "new matter": Birch)  UKUT 00176 (IAC) (consisting of the President and Vice President of the Upper Tribunal) found that the earlier decision finding otherwise in Birch (Precariousness and mistake; new matters)  UKUT 00086 (IAC) was per incuriam on the basis that it conflicted with binding precedent (the Court of Appeal case of Alam v Secretary of State for the Home Department  EWCA Civ 960).
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.
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  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):
A new claim cannot be certified just because a ground could have been raised earlier. If the ground could have been raised earlier, you must go on to consider the reasons why it was not raised at the earlier appeal, taking into account all relevant information, and whether any explanation provided by the claimant is satisfactory.
If you are minded to certify that the claim is late, you must check that the claimant has been given the chance to explain why it was not raised sooner. For example, if there has been an interview concerning the new claim then any reasons for lateness should have been explored then. If the claimant has not had the chance to explain, you must write to them. In your letter, you must explain why you are minded to certify that their claim is late and invite them to respond. You must give them a reasonable time in which to do so and, if they wish, to provide evidence that they could not have raised the new grounds in the previous appeal. A period of 14 calendar days is likely to be enough time for a response to your letter, although this may vary depending on the individual circumstances.
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 is not in itself decisive. You must also consider whether there is a satisfactory reason for the lie or omission.
You must consider any explanation given by the claimant in the context of the new claim, and again you must ensure that the claimant has had the chance to explain. For example if the claimant says that they didn't mention at their asylum appeal that they had previously been tortured because they forgot, but this is inconsistent with the determination which shows that the claimant did give evidence about mistreatment at their appeal, it may not be regarded as a satisfactory reason as it is unlikely that in describing their mistreatment they would forget to say that they had been tortured.
Contrast this with the case where the claimant provides medical evidence that explains they did not mention they had been tortured at the earlier appeal because they were too traumatised at the time to discuss it. Whether the explanation is a satisfactory reason will depend on the circumstances of the particular case, but you could conclude that it is.
If a decision is made to certify, the decision must set out the factors that were taken into consideration when deciding to certify and the reasons for concluding that there was no satisfactory reason why the ground was not raised earlier.
A useful way to consider whether you have properly considered whether there are satisfactory reasons why the ground was not raised earlier is to ask yourself whether anyone looking at your decision would understand your reasons for finding that the claim was made late and there was no satisfactory reason for the delay.
5.10B And on the fourth step, the s.96 Guidance says the following on the exercise of discretion:
Even if the criteria in section 96(1) are met, you are not obliged to certify the claim. Certification is a discretionary power that should only be used where it is right to do so, having regard to all the facts of the case.
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:
• merits of the underlying claim
• prospect of success at appeal: a claim that raises protection issues and has a realistic prospect of success (see further submissions) should not normally be certified
• reason why the claim was not advanced in the original appeal
• impact of that explanation on the credibility of the new claim
• fact that a claimant may have lied previously, which 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  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) and the Home Office's own guidance, 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).
5.11A The Late claims; certification under section 96 guidance contains further guidance, applying the same four-part test, as to when a person who has been served with a s.120 notice will be considered not to have informed the Home Office "as soon as reasonably practicable" of any new or additional reasons to remain in the UK. The guidance notes that there is no specific time limit within which a ground must be raised:
If there is a gap in time between the new ground arising and it being raised with the Secretary of State, you will need to consider all the circumstances of the case to decide whether the delay was too long to be reasonable, including any explanation offered by the claimant.
5.11B 'As soon as reasonably practicable' is defined by reference to the individual circumstances. The Late Claims guidance provides the following examples:
Where an individual is reporting regularly, it would be reasonable for the individual to wait until their next reporting event to raise a new ground.
If the individual is in detention it would be reasonable to expect the new ground to be raised promptly, having regard to all other circumstances.
For an individual who needs assistance with understanding English and is raising a new ground based on English documents, a slightly longer period for raising the ground may be reasonable than for someone who is fluent in English.
If the reason given for the delay is that the individual says legal advice was being obtained before the new ground was raised, you should consider on the facts whether it was reasonable to seek legal advice in order to make the claim, which it usually would be, and whether the delay caused by seeking that advice was reasonable.
5.11C The Late Claims guidance also requires any preliminary decision on s.96 to be put to an applicant where they have not been given a chance to explain why the new ground was not raised sooner:
If you are minded to certify that the claim is late, you must check that the claimant has been given the chance to explain why it was not raised sooner. For example, if there has been an interview concerning the new claim then any reasons for lateness should have been explored then. If the claimant has not had the chance to explain, you must write to them. In your letter, you must explain why you are minded to certify that their claim is late and invite them to respond. You must give them a reasonable time in which to do so and, if they wish, to provide evidence that it would not have been reasonably practicable to raise the new grounds sooner. A period of 14 calendar days is likely to be enough time for a response to your letter, although this may vary depending on the individual circumstances