Hydar (S120 Response, S85 ‘New Matter’, Birch): UTIAC 18 Jun 2021

Section 120 of the Nationality, Immigration and Asylum Act 2002
(1) Where, in the course of a human rights appeal under section 82(2)(b) of the 2002 Act, P responds to a notice served by the Secretary of State under section 120 of that Act by raising a matter that is of a different origin than P raised as a human rights ground under section 84(2) for resisting removal, section 86(2)(b) requires the Tribunal to determine that ‘different’ matter. Thus, a protection issue or (where it still applies) an EU rights issue will need to be determined by the Tribunal alongside the human rights issue.
Section 85(5): ‘new matter’
(2) A matter of the kind described in paragraph (1) is a ‘new matter’ which, by reason of section 85(5,) may not be considered by the Tribunal unless the Secretary of State has given the Tribunal consent to do so.
(3) Section 85(5) applies to both the First-tier Tribunal and the Upper Tribunal. The finding to the contrary in Birch ( precariousness and mistake; new matters) [2020] UKUT 86 (IAC); [2020] Imm AR 873 was made per incuriam the judgment of the Court of Appeal in Alam and others v SSHD [2012] EWCA Civ 960; [2012] Imm AR 974 and is not to be followed.
[2021] UKUT 176 (IAC)
England and Wales

Updated: 14 August 2021; Ref: scu.666429