Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos: UI-2024-002011
UI-2024-002636

First-tier Tribunal Nos: EU/54282/2023
EA/06230/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

14th August 2025

Before

THE HONOURABLE MR JUSTICE SHELDON
UPPER TRIBUNAL JUDGE McWILLIAM
UPPER TRIBUNAL JUDGE FRANCES

Between

MUHAMMAD AJMAL (FIRST APPELLANT)
WENG SOON HOOI (SECOND APPELLANT)
(NO ANONYMITY ORDER MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For Mr Ajmal: Mr Z Malik KC, instructed by KA Solicitors
For Mr Hooi: Mr K H Forrest, instructed by LB & Co solicitors
For the Respondent: Mr B Keith, instructed by the GLD

Heard at Field House on 12 June 2025

DECISION AND REASONS
1. The First Appellant, Mr Muhammad Ajmal, is a citizen of Pakistan. His date of birth is 1 December 1985. The Second Appellant, Mr Hooi, is a citizen of Malaysia. His date of birth is 23 October 1980.
2. The Appellants’ appeals have been joined as they raise similar issues, namely whether their Article 8 claims raised in the letters accompanying their applications under the EU Settlement Scheme (EUSS) contained in Appendix EU constitute a “new matter” for the purposes of regulation 9 of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (“the 2020 Regulations”). If not, whether the refusal decisions amounted to the refusal of a human rights claim thereby attracting a right of appeal such that the First-tier Tribunal had jurisdiction to consider the Appellant’s Article 8 claims. Both Appellants accept that they cannot succeed under the EUSS.
3. It is not in dispute that regulation 9(6)(a) of the 2020 Regulations is satisfied. An appeal on human rights grounds is a ground of appeal under section 84 of the 2002 Act. The issue to resolve is whether the Appellant’s Article 8 claims were “previously considered” by the Respondent in the refusal decisions dated 25 May 2023 and 26 June 2022 under regulation 9(6)(b) of the 2020 Regulations.

Preliminary issue
4. There was a preliminary matter that we were asked to deal with in respect of the appeal brought by Weng Soon Hooi. Mr Keith, on behalf of the Secretary of State for the Home Department (SSHD), contended that we had no jurisdiction to entertain this appeal as Mr Hooi’s appeal had been withdrawn, the Upper Tribunal had consented to the withdrawal, and the Upper Tribunal had no power to reinstate the appeal. After hearing argument on this matter, we informed the parties that Mr Hooi’s appeal would be allowed to proceed, and that reasons for this decision would be given at a later stage. These are our reasons.
5. By email dated 15 May 2025, Mr Hooi’s then solicitors, Fronton Solicitors, withdrew his appeal. On 27 May 2025, Upper Tribunal Judge Frances issued an order consenting to the withdrawal under Rule 17 of The Tribunal Procedure (Upper Tribunal) Rules 2008 (“Procedure Rules”). On 28 May 2025, Mr Hooi instructed Liu’s Legal Solutions who then wrote to the Upper Tribunal asking for the appeal to be reinstated, by exercising its discretion under Rule 43(2) of the Procedure Rules 2008 to set aside its consent to the withdrawal. It was explained that (i) the earlier instructions were misunderstood or mistaken; (ii) prompt steps had been taken to notify the Upper Tribunal of the true position as soon as it came to light; and (iii) no party has been prejudiced, and the previously listed hearing dates of 11 and 12 June 2025 remained viable.
6. On 2 June 2025, Upper Tribunal Judge McWilliam reinstated the appeal. The decision to reinstate stated as follows:
“1. I set aside the order made by UTJ Frances issued on 27 May 2025 to consent to the withdrawal of the appeal under Rule 17 of The Tribunal Procedure (Upper Tribunal) Rules 2008 (the 2008 Rules).
2. I direct that the case is reinstated pursuant to the Tribunal’s case management powers under Rule 5(2) of the 2008 Rules.
3. I am told by the appellant’s current solicitors, Liu’s Legal Solutions, that he instructed Fronton Solicitors who made an application on his behalf, in accordance with his instructions, to withdraw the matter. I am told that before Judge Frances’ order was issued the appellant communicated to Fronton Solicitors that he had changed his mind. This was not communicated to the Tribunal.
4. I am satisfied that it is in the interests of justice to set aside the order. The appellant’s change of instructions were not sent to the Tribunal at the appropriate time.
7. Mr Keith contended that Rule 43 of the Procedure Rules 2008, which had been relied upon in the application to reinstate, was effectively a “slip-rule” to allow administrative errors or corrections to be made. The conditions set out in Rule 43(2) were not satisfied. There had been no procedural irregularity or missed dates or sending of documents. A change of heart by Mr Hooi is not an appropriate use of the slip-rule.
8. Mr Keith also contended that whilst Rule 17 of the Procedure Rules 2008 did, on its face, entitle a party which has withdrawn its case to apply to the Upper Tribunal for the case to be reinstated, the power to do so needed to be exercised on the same conditions as applied to the use of the slip-rule under Rule 43 (as discussed in the previous paragraph).
9. In our judgment, the Upper Tribunal does have power to reinstate Mr Hooi’s appeal. There is express provision at Rule 17(3) of the Procedure Rules 2008 for “A party which has withdrawn its case may apply to the Upper Tribunal for the case to be reinstated”.
10. Rule 17(4) sets out the procedure for an application for reinstatement. The application must be made in writing and, where (as here) the notice of withdrawal was made in writing, the application must be made within 1 month after the Upper Tribunal has received that notice: see Rule 17(4)(a). That condition was satisfied as an application to reinstate the appeal was made in writing within 1 month of the application to withdraw.
11. Rule 17 is silent as to the basis on which the Upper Tribunal should exercise the power to order reinstatement. In our judgment, there is no reason why that power should be constrained in the way suggested by Mr Keith: that is, that it can only be exercised where the conditions for using the slip-rule apply. If it was intended for Rule 17 to be so constrained, we consider that the Rule would have said so. Rather, we consider that the touchstone should be the overriding objective, as set out at Rule 2 of the Procedure Rules 2008: that is, dealing with cases fairly and justly. This can be achieved where, in an application for reinstatement under Rule 17 of the Procedure Rules 2008, the Upper Tribunal exercises its discretion in the interests of justice.
12. In her decision of 2 June 2025, Upper Tribunal Judge McWilliam relied on Rule 5(2) of the Procedure Rules 2008, which provides that
“The Upper Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction”.
13. We acknowledge that, in the instant case, Upper Tribunal Judge McWilliam made the decision to reinstate the appeal without affording the SSHD the opportunity to make representations. In the ordinary course of events, a decision as to whether to allow reinstatement requires hearing from both parties to the appeal.
14. There has now been an opportunity to hear from both parties. We have carefully considered the representations made by Mr Keith on behalf of the SSHD. In our judgment, however, it is in the interests of justice for Mr Hooi’s appeal to be heard.
15. Whatever the reason or the change of heart, Mr Hooi sought to reinstate his appeal within a very short period of time after the application for withdrawal had been made. Indeed, it appears that Mr Hooi had intimated to his new solicitors that he wished to proceed with his appeal even before the order consenting to his withdrawal had actually been made by Upper Tribunal Judge Frances. Moreover, if reinstatement is not allowed, Mr Hooi will be denied the opportunity to pursue an appeal which is of significance to him. In addition, allowing the appeal to be reinstated does not impact on other users of the Upper Tribunal, or of the resources of the Upper Tribunal’s judiciary, as the joined appeal by Mr Ajmal was going ahead in any event.
16. Furthermore, there is no suggestion that the SSHD has suffered any prejudice by the change of heart by Mr Hooi. There is no suggestion, for instance, that as a result of being notified of Upper Tribunal Judge Frances’ decision to consent to the withdrawal that the SSHD, or her legal team, downed tools on the appeal and committed resources elsewhere. The correspondence from the SSHD (see letter of 4 June 2025) indicates that she sought to engage with Mr Hooi’s representatives to ascertain what had taken place, and expressed concern that she had not been asked to make submissions on the application for reinstatement. There is no indication of substantive hardship endured by the SSHD as a result of reinstatement.
17. Accordingly, in our judgment, Mr Hooi’s appeal is permitted to proceed.

The background – Mr Ajmal
18. Mr Ajmal made an application under the EUSS on 16 February 2023 for permanent residence in the UK as a family member of a British citizen, his brother Mr Muhammad Asghar. The SSHD refused the application on the basis that the First Appellant does not meet the requirements of Appendix EU. The First Appellant appealed against the decision under the 2020 Regulations.
19. The findings of the First-tier Tribunal (the ”FtT”) can be summarised. The judge found that it could not be implied that the SSHD had considered and refused the First Appellant’s human rights claim from the language used in the refusal decision and nor was he required to do so. He said that the caseworker guidance on Human Rights appeals made reference to categories of applications in which the Respondent recognised as inherently raising human rights issues. The judge said that having considered MY (Pakistan) v SSHD [2021] EWCA Civ 1500; Imm AR 165 and the guidance he was not satisfied that applications under the EUSS are categorised by the SSHD as inherently raising a human rights claim.
20. The judge in the alternative at [28] said that if he was wrong on that point he did not think that the Article 8 claim raised by the First Appellant, namely that he has a relationship with his brother and his brother’s family, “inherently involves a claim that removal would interfere with their Convention rights”. The judge found that it was for the SSHD to decide if there is a human rights claim and it was not something for the Tribunal to infer except in a limited category of cases already recognised by the SSHD where there is an inherent human rights element.
21. The judge referred to Dani (non-removal human rights submissions) [2023] UKUT 00293. He accepted the SSHD’s submission that the human rights claim relied on by the First Appellant amounts to a “new matter” and without permission, which has been withheld, the FtT has no jurisdiction to deal with it.

The background - Mr Hooi
22. On 14 December 2021, Mr Hooi made an application under the EUSS for leave to remain as a durable partner of a relevant EEA citizen. On 26 June 2022, the SSHD refused the application.
23. The Second Appellant appealed on Article 8 grounds only. The Second Appellant argued that the claim under Article 8 was not a “new matter” as defined in regulation 9(6) and therefore the SSHD’s consent was not required. The Second Appellant relied on Celik (EU exit, marriage, human rights) [2020] UKUT 00220. It was argued that the SSHD had previously considered the Second Appellant’s Article 8 claim in the context of the decision appealed against.
24. The judge found there was no indication in the refusal decision that the SSHD had in fact considered the Second Appellant’s human rights claim under Article 8, whether in the context of that decision or otherwise. The refusal decision only considered the Appellant’s application under Appendix EU and decision-making under Appendix EU does not involve a consideration of an applicant’s rights under Article 8 of the ECHR.
25. The judge accepted that the facts in Celik and Mahmud (s.85 NIAA 2002 – “new matters”) [2017] UKUT 00488 differed to those in the current appeal because in the Second Appellant’s case Article 8 was raised before the SSHD’s decision. The judge did not find this to be material because the findings in those cases were of wider application. The judge found that the Article 8 claim was a “new matter” and, absent the SSHD’s consent, the FtT could not consider it.

The grounds of appeal against the decisions of the FtT
26. Both Appellants rely on one ground of appeal which is that the FtT erred in law in concluding that it does not have jurisdiction to determine the Article 8 claim.
27. It is submitted on behalf of Mr Ajmal that Dani is irreconcilable with Celik. It is submitted on behalf of Mr Hooi that the judge erred in concluding that the Article 8 claim was a new matter as it had already been raised by the Second Appellant and therefore the Second Appellant’s case can be distinguished from that of Celik.

The grant of permission
28. In granting permission to both Appellants, Upper Tribunal Judge Norton-Taylor noted that since the promulgation of the decisions Ayoola (previously considered matters) Nigeria [2024] UKUT 00143 (IAC) had been reported.1 In relation to Mr Hooi’s appeal, Judge Norton-Taylor noted that the judge had not made mention of Dani, which had not been reported at the date of the hearing, but had been reported by the time the decision was promulgated.

The Legal Framework
29. The relevant Sections of the 2002 Act are as follows:
The Nationality, Immigration and Asylum Act 2002
82. Right of appeal to the Tribunal
(1) A person (“P”) may appeal to the Tribunal where—
…
(b) the Secretary of State has decided to refuse a human rights claim made by P, or
…
84 Grounds of appeal
(1) An appeal under section 82(1)(a) (refusal of protection claim) must be brought on one or more of the following grounds—
…
(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 brought on the ground 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 a 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 the statement which constitutes a ground of appeal of a kind listed in section against 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 the decision.

(5) But the Tribunal must not consider a new matter unless the Secretary of State 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.
120 Requirement to state additional grounds for application
(1) Subsection (2) applies to a person (“P”) if—
(a) P has made a protection claim or a human rights claim,
(b) P has made an application to enter or remain in the United Kingdom, or
(c) a decision to deport or remove P has been or may be taken.

(2) The Secretary of State or an immigration officer may serve a notice on P requiring P to provide a statement setting out—
(a) P's reasons for wishing to enter or remain in the United Kingdom,
(b) any grounds on which P should be permitted to enter or remain in the United Kingdom, and
(c) any grounds on which P should not be removed from or required to leave the United Kingdom.
…

(6) In this section—
‘human rights claim’ and ‘protection claim’ have the same meanings as in Part 5; references to “grounds” are to grounds on which an appeal under Part 5 may be brought (see section 84).

Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020
Right of appeal against decisions relating to leave to enter or remain in the United Kingdom made by virtue of residence scheme immigration rules
3.— (1) A person (“P”) may appeal against a decision made on or after exit day—
(a) to vary P's leave to enter or remain in the United Kingdom granted by virtue of residence scheme immigration rules, so that P does not have leave to enter or remain in the United Kingdom,
(b) to cancel P's leave to enter or remain in the United Kingdom granted by virtue of residence scheme immigration rules,
(c) not to grant any leave to enter or remain in the United Kingdom in response to P's relevant application, or
(d) not to grant indefinite leave to enter or remain in the United Kingdom in response to P's relevant application (where limited leave to enter or remain is granted, or P had limited leave to enter or remain when P made the relevant application).

(2) In this regulation, “relevant application” means an application for leave to enter or remain in the United Kingdom made under residence scheme immigration rules—
(a) on or after exit day, or
(b) before exit day if a decision is made on that application on or after 8th May 2023.
Grounds of appeal
8.— (1) An appeal under these Regulations must be brought on one or both of the following two grounds.

(2) The first ground of appeal is that the decision breaches any right which the appellant has by virtue of—
(a) Chapter 1, or Article 24(2), 24(3), 25(2) or 25(3) of Chapter 2, of Title II, or Article 32(1)(b) of Title III, of Part 2 of the withdrawal agreement,
…

(3) The second ground of appeal is that—
…

(b) where the decision is mentioned in regulation 3(1)(c) or (d), it is not in accordance with residence scheme immigration rules;
…
Matters to be considered by the relevant authority
9.— (1) If an appellant makes a section 120 statement, the relevant authority must consider any matter raised in that statement which constitutes a specified ground of appeal against the decision appealed against. For the purposes of this paragraph, a “specified ground of appeal” is a ground of appeal of a kind listed in regulation 8 or section 84 of the 2002 Act.

(2) In this regulation, “section 120 statement” means a statement made under section 120 of the 2002 Act and includes any statement made under that section, as applied by Schedule 1 or 2 to these Regulations.

(3) For the purposes of this regulation, it does not matter whether a section 120 statement is made before or after the appeal under these Regulations is commenced.

(4) The relevant authority may also consider any matter which it thinks relevant to the substance of the decision appealed against, including a matter arising after the date of the decision.

(5) But the relevant authority must not consider a new matter without the consent of the Secretary of State.

(6) A matter is a “new matter” if—
(a) it constitutes a ground of appeal of a kind listed in regulation 8 or section 84 of the 2002 Act, and
(b) the Secretary of State has not previously considered the matter in the context of—
(i) the decision appealed against under these Regulations, or
(ii) a section 120 statement made by the appellant.
Celik (EU exit; marriage; human rights) [2022] UKUT 00220 (IAC)
30. It is not in dispute between the parties that the decision of Celik is correctly decided and should be followed. The relevant paragraphs of Celik are as follows:
“92. The first question is to decide whether the First-tier Tribunal has jurisdiction, in an appeal of this kind, to consider human rights. The question arises because decision-making under residence scheme immigration rules (Appendix EU) does not involve a consideration of the applicant’s (or any other person’s) rights under Article 8 of the ECHR.
93. In order for regulation 9(4) to come into play, two requirements must be satisfied. There must be a “matter”, in the sense of being the factual substance of a claim: Mahmud (s.85 NIAA 2002 – ‘new matters’) [2017] UKUT 00488 (IAC) at paragraph 29. Second, the matter must be “relevant to the substance of the decision appealed against”. The interpretation of the words “relevant to the substance of the decision”, as found in section 85(4) of the 2002 Act, was considered by the Supreme Court in Patel & Others v SSHD [2013] UKSC 72; [2014] Imm AR 456. Giving the lead judgment, Lord Carnwath (with whom Lord Kerr, Lord Reed and Lord Hughes agreed) upheld the “wide” construction of the words, which had been taken by the majority of the Court of Appeal in AS (Afghanistan) v SSHD [2011] EWCA Civ 833; [2011] Imm AR 832. Under this approach, the substance of the decision appealed against is no more than the decision to refuse to grant or vary leave to enter or remain (or entry clearance) as opposed to, for example, a “decision to refuse to vary leave to remain under rule x” (Sullivan LJ at paragraph 113).
94. Transposed to regulation 9 of the 2020 Regulations, the “decision appealed against”, is, in the present case, the decision to refuse to grant the appellant leave to enter or remain generally, as opposed to a decision to refuse him leave to enter or remain under the EUSS rules specifically.
95. This means that regulation 9(4) confers a power on the First-tier Tribunal to consider a human rights ground, subject to the prohibition imposed by regulation 9(5) upon the Tribunal considering a new matter without the consent of the respondent.
96. Given what we have said about the nature of the respondent’s decision-making under Appendix EU, the raising of a human rights claim will always be a” new matter”, except where, for some reason, the respondent has already considered it.
97. In the present case, the respondent’s consent was not sought by the appellant, let alone given. As a result, even though the First-tier Tribunal Judge might have been mistaken as to the ambit of regulation 9(4), any error in this regard is immaterial. Since the respondent had not consented, the First-tier Tribunal Judge was prevented by regulation 9(5) from considering any Article 8 argument.
98. As the respondent submits, if the appellant now wishes to claim that he should be permitted to remain in the United Kingdom in reliance on Article 8, he can and should make the relevant application, accompanied by the appropriate fee.”
Dani (non-removal human rights submissions) [2023] UKUT 00293
31. In Dani the Upper Tribunal stated as follows when considering whether Article 8 is engaged by an EUSS refusal decision:
“23. Our analysis of this issue is structured as follows:
a. What is the correct categorisation, for the purposes of the 2020 Regulations and the 2002 Act, of human rights-based submissions which do not amount to a “human rights claim” as defined in section 113(1) of the 2002 Act (that is, a claim relating to an individual’s prospective removal from the UK)?
b. Was determining whether Article 8 was engaged “relevant to the substance of the decision appealed against”?
24. For the reasons set out below, we have concluded that:
a. A mere refusal of leave to remain under the EUSS is not, without more, a “human rights claim” under section 113(1) of the 2002 Act.
b. Consequently, the “new matter” regime does not regulate the Tribunal’s consideration of non-removal human rights submissions.
c. But the Tribunal may only consider matters which it thinks are “relevant to the substance of the decision appealed against”.
d. Whether Article 8 is engaged by a decision to refuse an EUSS application is not “relevant to the substance of the decision appealed against,” thereby preventing the Tribunal from considering it. The Tribunal does not enjoy a broad, unencumbered jurisdiction to consider non-removal human rights submissions at large.
e. In any event, Article 8 will not, without more, be engaged by a decision to refuse leave to remain under the EUSS. Refusal of EUSS leave is not the refusal of a “human rights claim”.
25. It is common ground that the appellant’s human rights-based submissions were not a permitted ground of appeal under regulation 8 of the 2020 Regulations. Subject to the permitted grounds of appeal, the tribunal may “also consider any matter which it thinks relevant to the substance of the decision appealed against…” But there are restrictions on considering a “new matter”: a new matter (as defined) may only be considered by the tribunal with the consent of the Secretary of State: see regulation 9(5).
26. Not every "matter" is capable of amounting to a "new matter". Under regulation 9(6)(a), a "new matter" must constitute a ground of appeal of a kind listed in regulation 8 of the 2020 Regulations or section 84 of the 2002 Act. It must also not have been considered by the Secretary of State in the context of the decision appealed against, or a statement issued in response to a notice served under section 120 of the 2002 Act, whereby an appellant is required to state additional grounds to resist removal: regulation 9(6)(b).
…
28. It follows that the appellant’s human rights-based submissions before the judge (namely that the refusal of leave under the EUSS itself was a breach of Article 8) were not a “human rights claim” for the purposes of section 113(1). Consequently, we agree with Mr Toal that the “new matter” regime in regulation 9(6) was of no purchase in relation to the broader, non-removal human rights based submissions the appellant relied upon before the judge. That is because a matter is only capable of amounting to a “new matter” where “it constitutes a ground of appeal listed in regulation 8 or section 84 of the 2002 Act”.
32. When considering “relevant to the substance of the decision appealed against” the Upper Tribunal stated:
“31. The new matter regime is the means by which an exception may be made to the jurisdictional constraints that would otherwise apply to the tribunal’s consideration of issues before it. Where the criteria for a new matter are not capable of being met, that does not permit the tribunal to consider other freestanding matters at large and without the requirement for the Secretary of State’s consent. It means that the tribunal simply does not have the jurisdiction to consider such matters in the first place, for there is no permitted ground of appeal pursuant to which such submissions may be advanced.
...
33. In the case of an EUSS appeal, whether Article 8 is engaged by the Secretary of State’s underlying refusal decision is not a matter which is relevant to the substance of the decision, for the following reasons.
34. First, it was not the appellant’s case in his application to the Secretary of State that he was entitled to leave to remain on Article 8 grounds.
35. Secondly, even if the appellant had maintained or implied to the Secretary of State that he was entitled to Article 8-based leave in the course of making an EUSS application, his primary application to the Secretary of State was for leave under the EUSS. His EUSS application would have been framed by reference to EUSS criteria, which are based on the EU Withdrawal Agreement, not the ECHR. Neither the EUSS nor the EU Withdrawal Agreement feature criteria commensurate with the general Article 8-based submissions the appellant sought to rely upon before the judge. Appendix EU of the Immigration Rules, which establishes the EUSS, has not been framed to give effect to the UK’s ECHR obligations. The ECHR is, of course, an entirely different international treaty from the EU Withdrawal Agreement. The Secretary of State has made quite separate provision under the Immigration Rules, for example in Appendix FM, to give effect to the UK’s Article 8 ECHR obligations. Mr Toal’s attempt to achieve cross-pollination between two entirely separate regimes is misconceived.
36. Thirdly, nothing in the Secretary of State’s EUSS decision purported to engage with any matters relating to Article 8 ECHR, or the Immigration Rules which seek to give effect to the UK’s Article 8 ECHR obligations.
37. Fourthly, since the appellant’s case is expressly premised on the footing that he did not make an Article 8 claim based on his prospective removal, there was no sense in which the Secretary of State’s decision to refuse EUSS leave engaged his rights under Article 8(1) ECHR”.

Submissions
33. The parties relied on skeleton arguments. In addition, Mr Keith also relied on the Rule 24 response. We had before us a bundle of authorities. The parties made submissions expanding on the grounds. We will engage with these in our findings.

The Appellants’ submissions
34. Mr Malik KC made submissions which were adopted and expanded upon by Mr Forrest.
35. It is uncontroversial that Appendix EU and Article 8 are conceptually distinct. An application under Appendix EU is not, without more, a human rights claim. In this case the Appellants made human rights claims with their applications under Appendix EU. The Appellants submitted the decisions of the SSHD include a decision “to refuse a human rights claim” made by the Appellants for the purposes of section 82(1) of the 2002 Act. The claims were not new matters and were not subject to the new matter regime.
36. In any event, the Article 8 claims were matters relevant to the substance of the decision appealed against in accordance with regulation 9(4). The Appellants rely on what was said in Celik at [93]-[94] about “relevant to the substance of the decision”.
37. Mr Malik KC submitted that Dani was decided per incuriam and is irreconcilable with Celik and ought not to be followed. Celik, which has received approval of the Court of appeal at [2023] EWCA Civ 921; [2023] Imm AR 1159; [2024] 1 WLR 192 should be followed. Celik is consistent with AS (Afghanistan) v SSHD [2011] EWCA Civ 833; [2011] Imm AR 832 and Patel & Others v SSHD [2013] UKSC 72; [2014] Imm AR 456; [2013] 3 WLR 1517.
38. The Appellants submit the Article 8 claims do not fall into the “new matter” regime under regulation 9(5) because the SSHD has previously considered the Appellants’ human rights claims. In the case of Mr Ajmal, the SSHD confirmed that it had “carefully considered” his application in conjunction with “the information and evidence provided”. In any event, where the SSHD does not decline to consider the ground and proceeds to issue a refusal stating that the application has been “carefully considered”, that refusal, in law, constitutes a refusal of the submissions made in the application. This is supported by MY (Pakistan). If the application included a human rights ground, the refusal would extend to that ground as well. The absence of a formal and reasoned Article 8 decision is immaterial. There is no basis to construe “considered” as meaning “determined”. The Appellants rely on Ayoola.
39. Even if the SSHD did not refuse the Article 8 claim in the sense described in MY (Pakistan) this makes no difference to the analysis. On the “wide” construction of the phrase “substance of the decision appealed against” in regulation 9(4) of the 2020 Regulations, the FtT had jurisdiction to consider the Article 8 ground. The Appellants’ Article 8 ground was not a “new matter” within the meaning of regulation 9(6). Accordingly, the SSHD’s consent was not required, and the FtT was not barred from considering it pursuant to regulation 9(5).

The SSHD’s submissions
40. The initial stance taken by the SSHD was that the Appellants had not made a human rights claim. However, in oral submissions, Mr Keith conceded that the Appellants had made a human rights claim in accordance with section 113(1) of the 2002 Act.
41. Mr Keith submitted the Appellants have a limited right of appeal under regulation 3(1)(c) against the refusal of leave to remain under Appendix EU in response to the relevant application under the EUSS and limited grounds of appeal under regulation (8)(3)(b) of the 2020 Regulations on the basis that the decision was not in accordance with Appendix EU. In an EUSS case, the FtT does not have jurisdiction to hear additional Article 8 grounds unless the SSHD consents (regulation 9(5)).
42. Applying Celik, the raising of a human rights claim will always be a “new matter” except where for some reason it has already been considered. Neither of the Appellants’ human rights submissions were considered. The facts in Ayoola are materially different because in that case the Upper Tribunal was concerned with whether having appealed to the FtT on one of the permissible grounds in regulation 8 under the 2020 Regulations (that relating to Appendix EU) raising other permissible grounds of appeal under regulation 8 (that relating to the withdrawal agreement and therefore relevant to the decision under challenge) before the Upper Tribunal was a new matter within the mearing of regulation 9(6). The Appellants in the present case are not able to rely on a ground available under the 2020 Regulations. They rely on a ground listed in section 84 of the 2002 Act.
43. In Celik and Dani the Upper Tribunal found that a human rights claim is not relevant to an EUSS application and it cannot be right that, in deciding an EUSS application, the SSHD can be taken to have decided a human rights claim unless the decision letter is explicitly clear to that effect. In this case, as in Celik, there was no application for consent to be given. The FtT was correct to refuse to consider Article 8.

Conclusions and reasons
44. In summary, our conclusions are as follows. The decision in Dani broadly reflects the decision in Celik at [92] to [98]. In so far as there is any tension between [93] of Celik and [33] of Dani, Celik should be followed. Regulation 9(4) of the 2020 Regulations confers a power on the FtT to consider a human rights ground, subject to the prohibition in regulation 9(5).
45. A matter will be a “new matter” for the purposes of regulation 9(6) if, in addition to satisfying the condition at regulation at 9(6)(a), the matter has been previously “considered” therefore satisfying regulation 9(6)(b). Considered must be interpreted as the matter having been the subject of deliberate thought by the SSHD in the context of (i) the decision appealed against under the 2020 Regulations or (ii) a section 120 statement made by the appellant.
46. The Upper Tribunal in Ayoola is “manifestly wrong” and should not be followed. The question to be determined is whether, in fact, the SSHD has deliberately thought about the evidence or arguments, or not. The answer to this question will depend on the circumstances and the particular facts of an application and the correspondence with the Home Office.
Regulation 9(4): “relevant to the substance of the decision appealed against”
47. The appellant in Dani made a claim under the EUSS. There was one ground of appeal before the FtT which was that the decision breached the appellant’s Article 8 rights. The ground of appeal on which the appellant relied was not listed as a ground under regulation 8 of the 2020 Regulations. Counsel, Mr Toal, representing the appellant accepted that the appellant had not made a human rights application as defined under the 2020 Regulations read with the 2002 Act. He accepted that no such claim had been made by the appellant and accordingly there was no corresponding decision by the SSHD. The appellant advanced a free-standing Article 8 claim relying on section 7(1)(b) of the Human Rights Act. Before the Upper Tribunal the appellant said that the FtT was wrong to treat the submissions under the Human Rights Act as being capable of amounting to a ground under section 84(1) of the 2002 Act and therefore subject to the new matter restrictions under reg 9(5) of the 2002 Regulations. It was submitted by Mr Toal that it was an error for the judge to apply regulation 9(5) of the 2020 Regulations because section 7(1)(b) of the Human Rights Act permitted the appellant to advance a general human rights claim.
48. While Mr Toal conceded that the appellant had not made a human rights claim pursuant to section 113(1) of the 2002 Act, he said that the refusal to grant leave to remain to the appellant meant that he remained liable to removal in the future and this breached his Article 8 rights thus there was no jurisdictional bar to the Tribunal considering general human rights-based submissions. The appellant’s case was that it was the mere refusal of leave that would breach his rights under the ECHR. Mr Toal relied on regulation 9(4) of the 2020 Regulations which he said empowered the Tribunal to address such broader human rights-based arguments simply on the basis that they were relevant to the substance of the decision. The consent of the SSHD was not required because the consent regime only applied to human rights-based arguments of a kind relating to removal, rather than a refusal of leave to remain.
49. The Upper Tribunal accepted that while the 2020 Regulations do not make a free-standing provision for an appellant to rely on human rights-based grounds of appeal, they permit an appellant to rely on a kind listed in section 84 of the 2002 Act subject to regulation 9. The Upper Tribunal agreed with Mr Toal that the appellant’s human rights-based submissions before the judge (namely that the refusal of leave under the EUSS itself was a breach of Article 8) were not a human rights claim for the purposes of section 113(1) of the 2002 Act. The appellant’s submissions were characterised by the Upper Tribunal as “non-removal human rights submissions” and as such did not fall into the definition in section 113(1). At [33] the Upper Tribunal found that, in any event, in the case of an EUSS appeal, whether Article 8 is engaged by the SSHD’s underlying decision is not a matter which is relevant to the substance of the decision. The reasons for this conclusion are set out at [34] – [37].
50. The Appellants contend that Dani was made per incuriam in the light of Celik. Mr Keith contends that the reasoning is consistent and that Dani simply clarifies the position further.
51. In the light of the concession made by Mr Keith, the starting point is that the Appellants have made human rights claims and the issue for us is whether those claims have been “considered” by the SSHD. The case was advanced before us, therefore, on an entirely different footing to that in Dani.
52. When considered in the context of Mr Keith’s concession, the headnote and [24] of Dani broadly reflects [92] – [98] of Celik. In Celik at [92] the Upper Tribunal held that decision making under Appendix EU did not involve consideration of a human rights claim which is consistent with Dani at [24a] and [24e]. At [24c] of Dani the Upper Tribunal held that the Tribunal may only consider matters which it thinks are “relevant to the substance of the decision appealed against” which in consistent with [93] of Celik and reflects Mahmud. At [31] of Dani the Upper Tribunal did not go further than what is said in Celik on the issue.
53. Paragraphs [25], [26], [28] – [31] of Dani are similarly consistent with the Upper Tribunal’s conclusions in Celik at [93] to [98]. There is no conflict in the authorities. The Tribunal can consider an Article 8 ground of appeal under regulation 9(4), subject to the prohibition imposed by regulation 9(5) upon the Tribunal considering a new matter without the consent of the SSHD.
54. What the Upper Tribunal said at [33], must be considered in context and on the facts. The issue is whether, as contended by Mr Malik KC, [33] of Dani is irreconcilable with [93] of Celik where the Upper Tribunal said that a “wide” construction should be given to the interpretation of the words, “relevant to the substance of the decision”. Mr Forrest submitted that the Upper Tribunal in Dani failed to address binding authority on the issue.
55. The reasons given for the finding of the Upper Tribunal in Dani at [33] were in part based on the facts and submissions specific to that appellant’s case. It was not his case that, in his application to the SSHD, he was entitled to leave to remain on Article 8 grounds. There was nothing in the SSHD’s EUSS decision which purported to engage with any matters relating to Article 8 or the Immigration Rules which seek to give effect to the UK’s Article 8 obligations. His case was argued on the basis he did not make an Article 8 claim based on his prospective removal. The appellant relied on a free-standing claim and not a ground of appeal under section 84(1) of the 2002 Act. There was no sense in which the SSHD’s decision to refuse EUSS leave engaged his Article 8 rights. The Upper Tribunal in Dani did not make mention of Celik. This is not surprising as the case is not on all fours with Celik on the facts.
56. The conclusion at [33] of Dani was also subject to the caveat at [42] in which the Upper Tribunal observed that in some circumstances a decision to refuse to grant a particular category of leave may engage Article 8 even where removal is not in issue.
57. In so far as there is any tension between [33] of Dani and [93] of Celik, the issue is resolved by binding authority: Patel ([41] and [44]) and AS (Afghanistan). A broad approach should be adopted. In AS (Afghanistan), Sullivan LJ held at [113]:
“The 2002 Act defines those decisions in respect of which an appeal may be made to the AIT, and the grounds on which such an appeal may be brought in sections 82 and 83 respectively. It is readily understandable that the AIT should not be required to consider a matter raised in a statement of additional grounds if it does not constitute one of the grounds on which an appeal may be brought under section 83, or if it seeks to challenge either a different category of immigration decision, as defined by subsection 82(2), to that which has been taken (e g, refusal to vary leave where entry clearance has been refused), or some other decision against which there is no right of appeal under section 82. Since section 85(2) is concerned with statements of additional grounds which must include any reasons why an appellant should be allowed to remain, and which are expressly not confined to the reasons why he should be allowed to remain under rule x of the Rules, I am not persuaded that the reference to the decision appealed against must be a reference to the decision to refuse to vary leave to remain under rule x, rather than the decision to refuse to vary leave to remain, being one of the immigration decisions as defined by section 82(2). Such an approach to section 85(2) would be consistent with the reference in section 85(4) to the substance of the decision”.
58. We are persuaded by Mr Malik KC’s submission that the right of appeal under regulation 3 against decisions under the residence scheme endorses this broad approach. Under regulation 3(1)(c) a person may appeal against a decision not to grant any leave to enter or remain in the United Kingdom in response to their relevant application (our emphasis). The substance of the decision is not to grant any form of leave rather than the refusal of leave under Appendix EU.
59. We find that the case law favours a wide construction of the word “relevant to the substance of the decision”. Adopting that construction, we agree with the Upper Tribunal in Celik at [93]; regulation 9(4) confers a power on the FtT to consider a human rights ground, subject to regulation 9(5).
Regulation 9(6)(b): “previously considered”
60. A key question in this case is whether the Appellants’ human rights claim was a “new matter” for the purposes of regulation 9(6) of 2020 Regulations. That would be the case if (a) it constitutes a ground of appeal of a kind listed in regulation 8 or section 84 of the 2002 Act; and (b)(ii) if “the Secretary of State has not previously considered the matter in the context of the decision appealed against under these Regulations”. The latter phrase is in dispute by the parties.
61. It is the Appellants’ case that their human rights claims are not new matters for the purposes of regulation 9(6) of the 2020 Regulations. The Appellants contend that there was no basis to construe “considered” as meaning “determined”. It is clear that the Appellants made Article 8 claims to the SSHD and that these were considered “in the context of” the decision under appeal.
62. Mr Malik KC submits that the SSHD could decline to consider the human rights claim pursuant to MY (Pakistan); however, where the SSHD does not decline to consider it and proceeds to issue a refusal, which states that the application has been “carefully considered”, that refusal, in law, constitutes a refusal of all the submissions made in the application, including the human rights claim. The SSHD did not state, as was the case in MY (Pakistan), that the human rights claim was not considered. Both Appellants contend that they had made detailed submissions, that the refusal of their claims would amount to a breach of Article 8 and in these circumstances it cannot be said that the SSHD has not considered the claims. Mr Malik KC relied on the wording of the decision letter to support this. We were drawn to the word “determine” in regulation 10 as distinct from the word “considered” used at regulation 9(6)(b). The Appellants rely on Ayoola to support their submissions that the human rights claims have been considered.
63. Mr Keith submits that Ayoola can be distinguished on its facts. It is materially different from this appeal because it is concerned with whether having appealed to the FtT on one of the permissible grounds in relation to regulation 8 relating to Appendix EU, the Appellant raised another permissible ground of appeal under regulation 8 relating to the Withdrawal Agreement. In Ayoola the Upper Tribunal was giving guidance as to what the SSHD could be taken to have decided on matters that were raised as part of the EUSS application.
64. The meaning of the phrase “previously considered” is a matter of statutory interpretation. The general approach to statutory interpretation is well established. The principles were recently reiterated by the Supreme Court in For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16; [2025] 2 WLR 879 where reference was made at [9] to Lord Hodge’s judgment in R (O) v Secretary of State for the Home Department [2022] UKSC 3; [2023] AC 255; [2022] 2 WLR 343:
“29. The courts in conducting statutory interpretation are ‘seeking the meaning of the words which Parliament used’: Black-Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG [1975] AC 591, 613 per Lord Reid. . . . More recently, Lord Nicholls of Birkenhead stated: ‘Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context’ (R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349, 396). Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context. They are the words which Parliament has chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained. There is an important constitutional reason for having regard primarily to the statutory context as Lord Nicholls explained in Spath Holme, 397: ‘Citizens, with the assistance of their advisers, are intended to be able to understand parliamentary enactments, so that they can regulate their conduct accordingly. They should be able to rely upon what they read in an Act of Parliament . . .
31. Statutory interpretation involves an objective assessment of the meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words which are being considered. …”
65. “Considered” is the past participle of the commonly used verb “to consider”. The standard dictionary definition is (i) Of or characterized by deliberate thought; (ii) Attentively looked at, maturely reflected on: see Oxford English Dictionary (2nd ed, 1991). At first blush, that would be the meaning of the term as used at regulation 9(6)(b)(i) of the 2020 Regulations. A matter would be a “new matter” for the purposes of regulation 9(6) if, in addition to satisfying the condition at regulation at 9(6)(a), the matter had been the subject of deliberate thought by the Secretary of State in the context of the decision appealed against (emphasis added).
66. That meaning accords with the context in which the phrase appears. First, there are various other references within regulation 9 itself to the verb “to consider”: regulation 9(1) provides that “If an appellant makes a section 120 statement, the relevant authority must consider any matter raised in that statement which constitutes a specified ground of appeal against the decision appealed against” (emphasis added); regulation 9(4) provides that “The relevant authority may also consider any matter which it thinks relevant to the substance of the decision appealed against, including a matter arising after the date of the decision” (emphasis added); regulation 9(5) provides that: “But the relevant authority must not consider a new matter without the consent of the Secretary of State” (emphasis added). There is no indication from the text that the verb “to consider” should bear a different meaning when used at these different places within regulation 9, and no obvious reason why there should be a different meaning.
67. As reflected in the other references to the verb in regulation 9, the natural meaning is that of the giving of deliberate thought to a matter. The verb is being applied to “the relevant authority” – the FtT – which is empowered to adjudicate the dispute between the parties. In doing so, it must act judicially. This will include thinking deliberately about all of the evidence and arguments in the case. The FtT could not do that, and would be failing to exercise its judicial functions, if it merely “looked at” or “read” the evidence and arguments.
68. There is no reason why a different meaning should be applied to the verb in regulation 9 when attached to the role of the SSHD at regulation 9(6). Although the SSHD is not carrying out a judicial role, she is exercising statutory power affecting the rights of individuals and, as a matter of public law, will be expected to do so with proper care and diligence. That would not be the case if the phrase “previously considered” simply meant looked at or read the evidence and arguments without giving them deliberate thought.
69. Furthermore, this meaning accords with the purpose of the provision. Regulations 9(5) and (6) deal with aspects of the evidence and arguments that can go before the FtT. If the SSHD has previously given deliberate thought to a matter, then it would not be a “new matter” and so it would not be unfair or unreasonable for that matter to go before the FtT without her consent.
70. This meaning is also consistent with regulation 10 of the 2020 Regulations, which provides that:
“On an appeal under these Regulations, the relevant authority must determine –
(a) any matter raised as a ground of appeal, and
(b) any other matter which regulation 9 requires it to consider”.
This provision makes it clear that there is a distinction between “determine” and “consider”. That would be the case if “consider” means giving deliberate thought to something, as that does not involve determining, or deciding, it.
71. In our judgment, this approach to the meaning of regulation 9(6)(b)(i) that a matter will be a “new matter” if the SSHD has not previously given deliberate thought to the matter in the context of the decision appealed against does not lead to absurd consequences such that a different meaning must be applied to the phrase. In argument, Mr Malik KC (whose submissions in this regard were endorsed by Mr Forrest) contended that the effect of this interpretation would enable the SSHD to ignore evidence or arguments that had been made to her with the effect that she can avoid the scrutiny of the FtT. This would, it was submitted, have unattractive consequences as it would preclude an applicant from having all of his evidence and arguments heard by the FtT. For Mr Malik KC, this begged the question as to why the SSHD was afraid of having the evidence and arguments dealt with by the FtT.
72. It does not seem to us that these are absurd consequences of the ordinary meaning of the phrase “previously considered”, such that an alternative meaning is called for. First, the SSHD is obliged as a matter of public law to exercise her powers in accordance with public law principles. If the SSHD was ignoring matters which she ought to be giving deliberate thought to, this can be challenged by way of judicial review. It is likely, in our view, that the ignoring of certain matters in particular contexts will result from a policy decision made by the SSHD which would be vulnerable to challenge, if unlawful. Further, the SSHD has the power to consent to the FtT dealing with a matter which she had ignored (whether intentionally or otherwise) and the exercise of the consent power is also challengeable by judicial review. In the circumstances, the meaning that we have arrived at of regulation 9(6)(b)(i) does not mean that the SSHD can simply do as she wishes with respect to evidence and arguments without any supervision of the Courts. Furthermore, the SSHD would not be seeking to avoid the scrutiny of the FtT altogether if, as appears to be the case, her intention is for the applicant to make an application on (as here) human rights grounds in what she regards as the proper way, which would if the application is refused give rise to an appeal.
73. It was also contended by Mr Malik KC that this interpretation was inconsistent with the underlying legislative policy, identified by the Court of Appeal in AS (Afghanistan). We disagree.
74. AS (Afghanistan) was not concerned with the interpretation of regulation 9(5) and 9(6)(b)(i) of the 2020 Regulations. Rather, that case was concerned with the impact on the appeals framework following the issuance by the SSHD of a notice under section 120 of the 2002 Act which, at that time, stated as follows:
“(1) This section applies to a person if (a) he has made an application to enter or remain in the United Kingdom, or (b) an immigration decision within the meaning of section 82 has been taken or may be taken in respect of him.
(2) The Secretary of State or an immigration officer may by notice in writing require the person to state (a) his reasons for wishing to enter or remain in the United Kingdom, (b) any grounds on which he 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.
(3) A statement under subsection (2) need not repeat reasons or grounds set out in (a) the application mentioned in subsection (1)(a), or (b) an application to which the immigration decision mentioned in subsection (1)(b) relates”.
Furthermore, according to the statutory scheme prevailing at the time, the Asylum and Immigration Tribunal (“the AIT”) was required to consider “any matter raised in the [section 120] statement which constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against”: section 85(2), of the 2002 Act.
75. The Court of Appeal in AS (Afghanistan) explained that the underlying legislative policy of these provisions was (per Sullivan LJ at [103])
“to prevent successive applications which, as Arden LJ says, are likely to prolong the period in which a person’s status is uncertain and undetermined. In my judgment, that policy is better served by a one-stop procedure that enables all, rather than merely some, of an appellants other grounds for remaining in the UK to be considered by the AIT at one appeal hearing. The inconsistency between the narrower interpretation and the underlying policy objective to prevent successive applications is a powerful reason for preferring the wider, rather than the narrower, interpretation, since the latter encourages a multi-stop appeal process”.
According to Moore-Bick LJ at [78]
“the language of those sections of the Act to which I have referred, in particular sections 85(2), 96(2) and 120, does in my view demonstrate that they are intended to form constituent parts of a coherent procedure designed to avoid a multiplicity of applications and appeals.”
76. That legislative purpose cannot be said to apply to the present appeals, as no section 120 notices were issued to either of the Appellants. Indeed, it can be seen from the wording of section 120 itself that the SSHD is not obliged to issue a section 120 notice: rather, the SSHD has the power to issue such a notice. The statute contemplates, therefore, that there will be circumstances where the SSHD will decide that it is appropriate to issue that notice, thereby triggering the so-called “one-stop procedure”, requiring the applicant to put forward all of their grounds for remaining in the United Kingdom at the same time. In those circumstances, the legislative scheme is to be construed in such a way as to support the objective of having all relevant matters dealt with by the relevant tribunal in one go.
77. The statute also contemplates that there will be circumstances where the SSHD will decide that it is not appropriate to issue the section 120 notice and so the “one-stop procedure” should not be triggered. It would not make sense, in those circumstances, to require that regulation 9(5) and (6) of the 2020 Regulations be read in a way that called for all of the applicant’s grounds for remaining in the United Kingdom to be determined on appeal, including those which the SSHD did not wish to be determined on an appeal, to be so determined. That would directly contradict the approach that the SSHD had taken (or rather not taken) with respect to the issuance of a section 120 notice.
78. Mr Malik KC also referred to the decision of the Upper Tribunal in Ayoola. In that appeal, the Upper Tribunal analysed the “new matter” regime in regulation 9 of the 2020 Regulations. They stated as follows:
“30. The purpose of the new matter regime, whether in section 85 or regulation 9, is to ensure the Secretary of State has the opportunity to be the primary decision maker, and to confine the jurisdiction of the First-tier Tribunal to those matters which the Secretary of State has already had the opportunity to consider in the course of taking the primary decision under challenge, or when addressing a response to a section 120 statement. The logical conclusion of Mr Deller’s submissions would be that the Secretary of State could evade the jurisdiction and scrutiny of the tribunal simply by declining to address matters expressly raised in an application. If that were so, it would enable the Secretary of State to shield aspects of his decisions from appellate scrutiny simply by omitting expressly to address certain features of the application before him. There would be an inverse correlation: the greater the Secretary of State’s failure to take into account relevant factors, the narrower the tribunal’s jurisdiction would be to consider those alleged failures. That cannot have been the intention of Parliament.
31. It follows that 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), even if the decision under appeal is silent on a matter expressly raised in the application. But the references to the matter will have to be sufficiently clear to make it reasonable for the Secretary of State properly 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.”
79. We are well aware that the Upper Tribunal should ordinarily follow decisions of another constitution of this Tribunal. We should not follow that other decision, however, if among other things the decision is “manifestly wrong”: c.f. British Gas Trading Ltd. v Lock [2016] 2 CMLR 40 at [75], in the analogous context of appeals heard by the Employment Appeal Tribunal. In our view, and with the greatest respect, the analysis and conclusion of the Upper Tribunal in Ayoola is “manifestly wrong” and should not be followed. The analysis in Ayoola was based on the premise that the purpose of the new matter regime was for the FtT to have jurisdiction to consider matters which the SSHD had had “the opportunity to consider” in the course of taking the primary decision under challenge. This is not supported by the statutory language for the reasons given above. Furthermore, the mischief of avoiding scrutiny is not one which justifies a departure from the ordinary meaning of the text. The question to be determined is whether, in fact, the SSHD has deliberately thought about the evidence or arguments, or not.
80. The answer to this question will depend on the particular facts. In our judgment, it is not necessary for the SSHD in all cases to say specifically, as was done on the facts with respect to the application that led to the appeal in MY (Pakistan) “Any submissions you may have made relating to your human rights have not been considered”. If those words are used by the SSHD in her decision letters, then the answer to the question would be abundantly clear: the matter had not been previously considered. Nevertheless, the failure to use this language does not give rise to an irrebuttable inference that the matter was considered. Whether it does or not will depend on an examination of the correspondence from and with the SSHD.
81. Mr Malik KC also contended that the fact that something is not addressed in a decision-letter does not mean that it was not considered. Reference was made to the well-known case of Zoumbas v Secretary of State for the Home Department [2013] UKSC 74; [2013] 1 WLR 3690, which was concerned with the weight that should be given to the best interests of children in an Article 8 proportionality assessment for the purposes of an asylum or humanitarian protection application. It was argued that the SSHD had been clear in her findings on the children’s best interests and given no indication that there had been a careful examination of those interests. In the course of his judgment, Lord Hodge stated that:
“[22] ... The decision letter sets out the Secretary of States conclusions briefly. But that does not give rise in this case to any inference that there has not been careful consideration. The substance of Mr Lindsay’s complaint was that the Secretary of State either had not considered or had failed to record her findings on matters which were disclosed in the documents lodged in support of Mr Zoumbas’s claim [concerning his children].
[23] In our view, the Secretary of State does not have to record and deal with every piece of evidence in her decision letter. The decision-maker was clearly aware that the children were born in the United Kingdom as it is recorded on the fourth page of the decision letter. The letter also recorded that the children were aged seven years, four years, and five months respectively and referred to the evidence that the eldest child was at primary school. The decision-maker would also have been aware from the narrative of the family’s immigration history that two of the children had not been to the Republic of Congo.”
82. We accept, in accordance with these observations in Zoumbas, that the fact that something is not mentioned in a decision letter does not necessarily mean that it was not considered by the decision-maker. Whether it was or not will depend on the circumstances and the particular facts of an application and the correspondence with the Home Office.
New matter in the present appeals
83. In the SSHD’s decision dated 26 June 2022 refusing leave to remain it stated:
“Thank you for your application under the EU Settlement Scheme. Your application has been carefully considered but unfortunately from the information available you do not meet the requirements of the scheme. I am sorry to inform you that your application has therefore been refused.
…
We have considered whether you meet the requirements for settled status (also known as indefinite leave to enter or remain) or pre-settled status (also known as limited leave to enter or remain) under the EU Settlement Scheme. Unfortunately, based on the information and evidence available, and for the reasons set out in this letter, you do not meet the requirements.
To qualify under the scheme, you need to meet the requirements that are set out in Appendix EU to the Immigration Rules.
…
Careful consideration has been given as to whether you meet the eligibility requirements for settled status or pre-settled status under the EU Settlement Scheme.”
The refusal decision dated 23 May 2023 is in similar terms.
84. On the present facts we find that the Appellants’ Article 8 claims were not considered by the SSHD. We do not find that the wording used by the SSHD in the decisions supports the contrary. The issue in Zoumbas related to the failure to mention matters relevant to the decision under Article 8. In the Appellants’ cases the consideration of Article 8 would have required a separate assessment unrelated to the EUSS decision.
85. The Appellants both made human rights claims as defined in section 113(1) of the 2002 Act. However, the refusal decisions of 23 May 2023 and 26 June 2022 are not decisions refusing a human rights claim and there is no right of appeal under section 82 of the 2002 Act.
86. Having concluded that the broader approach should be applied when considering regulation 9(4), we find that the Appellants’ Article 8 claims are matters relevant to the substance of the decision appealed against. However, the claims constitute new matters as defined in regulation 9(6) because they have not been previously considered and as such the consent of the SSHD is required. Neither Appellant has the consent of the SSHD to rely on a ground of appeal under Article 8.
87. The FtT in dismissing Mr Ajmal’s appeal found that the Article 8 claim was a new matter and, without the SSHD’s consent, the Tribunal has no jurisdiction to consider it. There is no material error of law in the decision dated 8 March 2024. The decision to dismiss the First Appellant’s appeal is maintained.
88. The FtT in dismissing Mr Hooi’s appeal found that the Second Appellant’s human rights claim under Article 8 was a new matter as defined by Regulation 9(6) of the 2020 Regulations and absent the SSHD’s consent the Tribunal cannot consider it pursuant to Regulation 9(5) of the 2020 Regulations. There is no material error of law in the decision dated 7 March 2024 and promulgated on 13 March 2024. The decision to dismiss the Second Appellant’s appeal is maintained.

Notice of appeal
Appeals dismissed

Joanna McWilliam

J Frances

Judges of the Upper Tribunal
Immigration and Asylum Chamber

4 August 2025