Ali Rasul Mahmud v The Secretary of State for the Home Department

1. The Appellant appeals against the decision of First-tier Tribunal Judge Hussain promulgated on 2 November 2016, in which his appeal against the Respondent’s decision to refuse his asylum and human rights claim dated 19 May 2016 was dismissed. That decision involved, as a preliminary matter, whether the notice of appeal included a ‘new matter’ such that section 85 of the Nationality, Immigration and Asylum Act 2002 ( the 2002 Act ) applied to prevent the First-tier Tribunal from considering evidence on it in the absence of the Respondent giving consent. The evidence concerned the Appellant’s relationship with his new partner, Ms P and her son, which was first raised in the notice of appeal Counsel for the Appellant could not accept in submissions that this was the very first time that there was any mention to the Respondent of this relationship, relying on an assertion that, in the context of the Appellant’s NASS application in January 2016 and contact from the Appellant's social worker, this information would have been disclosed to the Respondent at that stage. There was no clear evidence of this before us and we declined to draw any inference from the limited documentation referred to by Mr Chelvan that this was the case. In any event there is no dispute that no detailed evidence as to that relationship was available until immediately prior to the appeal hearing before the First-tier Tribunal. .

2. The Appellant is a national of Iran, born on 23 November 1994, who arrived in the United Kingdom 23 January 2012 and claimed asylum. That application was refused by the Respondent but the appeal against that refusal was allowed by Judge Pirotta in a decision promulgated on 2 October 2012 on the basis that the Respondent had failed to take into account section 55 of the Borders, Citizenship and Immigration Act 2009 and failed to carry out obligations as to family tracing. The application was referred back to the Respondent to remake the decision in light of that. It is that remade decision of 19 May 2016 which was the subject of the appeal before Judge Hussain.

3. The Appellant’s asylum claim was based on a fear of return to Iran from the authorities there because of his brothers’ involvement with PJAK, the Kurdistan Free Life Party, which is banned by the state and considered a terrorist organisation.

4. The Respondent refused the application on the basis that the Appellant was not considered to be credible and it was not accepted that his brother was involved with PJAK, that his brother was arrested, nor that the Appellant was wanted by the authorities in Iran.

5. Judge Hussain dismissed the appeal on all grounds on which he considered he had jurisdiction to determine, which was the asylum claim and claims for humanitarian protection and under Articles 2 and 3 of the European Convention on Human rights which arose from the same facts. Judge Hussain did not find the Appellant to be credible and in particular was not satisfied that the Appellant’s brother was involved with PJAK, that his brother had been arrested, nor that there was any outstanding arrest warrant for the Appellant who had not come to the adverse attention of the Iranian authorities. As such it was not considered that he would face any risk on return to Iran. There were no findings of, nor any express decision on the appeal on Article 8 of the European Convention on Human Rights. The appeal

6. The Appellant appeals on five grounds as follows: (a) that the First-tier Tribunal Judge materially misdirected himself in law when finding that he had no jurisdiction to consider evidence of the Appellant’s relationship with his new partner and her son. The Appellant claims that there was no new ground of appeal on this basis, it was simply a matter of new evidence as to private and family life which was already in issue such that section 85(5) of the 2002 Act did not apply; (b) that the First-tier Tribunal Judge failed to take into account a material matter by conflating the lack of existence of an arrest warrant for the Appellant before the First-tier Tribunal with a question of whether it was ever issued or served on the Appellant’s family; (c) that the First-tier Tribunal Judge failed to take into account a material matter, namely that the Appellant’s evidence was that his brother was detained and still in detention and made findings that in situations such as that claimed by the Appellant, all family members would be arrested and detained as the Iranian authorities would act strictly according to a set procedure and follow the rule of law; (d) that the First-tier Tribunal Judge failed to take into account a material matter by placing weight on a conclusion that an arrest warrant could only be served on the Appellant’s family where they have divulged the whereabouts of the Appellant without considering whether the Appellant’s family had given a truthful account of his whereabouts and the plausibility of risk this may pose to the family; (e) that the First-tier Tribunal failed to take into account a material matter by placing insufficient weight on the fact that the Appellant was a child when he first claimed asylum and was first interviewed and that he had suffered a head injury, with little information available about his short or long-term memory/mental state. It is claimed that there was a failure to give any real effect to the Appellant’s mental health or his age when he claimed asylum when considering the evidence and issues of credibility.

7. Permission to appeal was granted by Judge Saffer on 22 November 2016 on all grounds.

8. This appeal first came before Upper Tribunal Judge Bruce for hearing on 17 January 2017, when it was adjourned with directions for the parties to address the following four issues in relation to the Article 8 appeal: (i) Having regard to the statutory scheme, was the Tribunal empowered to consider for itself whether the material relating to Ms P was a ‘new matter’? (ii) If so, what were the relevant factors for consideration? (iii) Was there any identifiable error in the Tribunal’s conclusion that the material relating to Ms P was a ‘new matter’ given that the Appellant had raised Article 8 family life grounds before the Respondent’s decision, and in the grounds of appeal, some six months prior to the hearing? (iv) Was the failure to address Article 8 at all in the determination an error of law regardless of the answers to (i) to (iii) above?

9. To determine the above questions, it is first necessary to determine what a ‘new matter’ is for the purposes of section 85(5) and (6) of the 2002 Act and to determine the meaning of ‘consent’ in section 85(5) of the 2002 Act . Relevant law and procedure

10. Part V of the 2002 Act makes provision for appeals in respect of protection and human rights claims and so far as relevant to this appeal provides as follows: 82. Right of appeal to the Tribunal (1) A person “P” may appeal to the Tribunal where – (a) the Secretary of State has decided to refuse a protection claim made by P, (b) the Secretary of State has decided to refuse the human rights claim made by P, or (c) the Secretary of State has decided to revoke P’s protection status. 84. Grounds of appeal (1) An appeal under section 82(1)(a) (refusal of protection claim) must be bought on one or more of the following grounds – (a) that removal of the appellant from the United Kingdom would breach the United Kingdom’s obligations under the Refugee Convention; (b) that removal of the appellant from the United Kingdom would breach the United Kingdom’s obligations in relation to persons eligible for a grant of humanitarian protection; (c) that removal of the appellant from the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention). (2) An appeal under section 82(1)(b) (refusal of human rights claim) must be bought on the grounds that the decision is unlawful under section 6 of the Human Rights Act 1998 . 85. Matters to be considered (1) An appeal under section 82(1) against the decision shall be treated by the Tribunal as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1). (2) If an appellant under section 82(1) makes a statement under section 120, the Tribunal shall consider any matter raised in a statement which constitutes a ground of appeal of a kind listed in section 84 the decision appealed against. (3) Subsection (2) applies to a statement made under section 120 whether the statement was made before or after the appeal was commenced. (4) On an appeal under section 82(1) … against a decision the Tribunal may consider… any matter which it thinks relevant to the substance of the decision, including… a matter arising after the date of decision. (5) But the Tribunal must not consider a new matter unless the Secretary of Status has given the Tribunal consent to do so. (6) A matter is a “new matter” if – (a) it constitutes a ground of appeal of a kind listed in section 84, and (b) the Secretary of State has not previously considered the matter in the context of – (i) the decision mentioned in section 82(1), or (ii) a statement made by the appellant under section 120. 86. Determination of appeal (1) This section applies on an appeal under section 82(1). (2) The Tribunal must determine – (a) any matter raised as a ground of appeal…, and (b) any matter which section 85 requires it to consider. 96. Earlier right of appeal (1) A person may not appeal under section 82 against the decision (“the new decision”) if the Secretary of State or an immigration officer certifies – (a) that the person was notified of a right of appeal under that section against another… decision (‘the old decision’) (whether or not an appeal was brought and whether or not any appeal brought has been determined), (b) that the claim or application to which the new decision relates relies on a ground that could have been raised in appeal against the old decision, and (c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that ground not having been raised in an appeal against the old decision. 113. Interpretation (1) In this Part, unless a contrary intention appears – … ‘human rights claim’ – (a) means a claim made by a person that to remove him from or require him to leave the United Kingdom or to refuse him entry to the United Kingdom … would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Convention) …

11. So far as is relevant to this appeal, Rule 24 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (the “Procedure Rules”) provides as follows: (1) Except in appeals in which rule 23 applies, when a respondent is provided with a copy of a notice of appeal, the respondent must provide the Tribunal with – (a) the notice of the decision to which the notice of appeal relates and any other document the respondent provided to the appellant giving reasons for that decision; (b) any statement of evidence or application form completed by the appellant; (c) any record of an interview with the appellant in relation to the decision being appealed; (d) any other unpublished document which is referred to in a document mentioned in sub-paragraph (a) or relied upon by the respondent; and (e) the notice of any other appealable decision made in relation to the appellant. (2) The respondent must, if the respondent intends to change or add the grounds or reasons relied upon in the notice or the other documents referred to in paragraph (1)(a), provide the Tribunal and the other parties with a statement of whether the respondent opposes the appellant’s case and the grounds for such opposition. (3) The documents listed in paragraph (1) and any statement required under paragraph (2) must be provided in writing within 28 days of the date on which the Tribunal sent to the respondent a copy of the notice of appeal and any accompanying documents or information provided under rule 19(6).