Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004620

First-tier Tribunal No: HU/53983/2022
IA/06357/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 30 August 2025

Before

UPPER TRIBUNAL JUDGE NEVILLE

Between

MR BALBIR RAM
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr N Ahmed, counsel
For the Respondent: Ms S Simbi, Senior Presenting Officer

Heard at Field House on 6 January 2025 and in Birmingham on 14 August 2025

DECISION AND REASONS

1. The appellant is a national of India who, on 19 June 2021 made an application for leave to remain in the United Kingdom. He did not rely on any particular part of the Immigration Rules under which he might be entitled to leave, instead relying on having established a private life since arriving in the United Kingdom illegally on 31 July 2003. The respondent refused the application on 3 February 2022, deciding that the appellant had not been in the UK for the 20 years required by (as then applicable) para 276ADE(1)(iii) of the Immigration Rules, nor would he face very significant obstacles to integration on return to India as required by para 276ADE(1)(vi) and, finally, that there were no other circumstances such that removal would be a disproportionate interference with the right to respect for the appellant’s private life afforded by Article 8.
The appeal to the First-tier Tribunal
2. The appellant’s appeal against that decision was dismissed by the First-tier Tribunal (“FtT”) in a decision dated 26 July 2024. The FtT records that the hearing began with clarification of the issues to be decided. There followed an unfortunate dispute as to whether the appellant’s continuous presence since 31 July 2003 was common ground between the parties, or an issue of controversy to be decided by the FtT. The FtT rejected that the issue had been conceded by the respondent, but after hearing the appellant’s evidence accepted his case. It was therefore established that the appellant had been in the UK for 17 years and 10 months at the date of application, 18 years and 10 months at the date of the refusal decision, and 20 years and 11 months at the date of hearing.
3. Having found those facts, the FtT applied the relevant legal provisions. Mr Ahmed had submitted that the appellant was now entitled to leave under para 276ADE(1). The rules have since changed, but for the purposes of this appeal the relevant provisions are as follows:
276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
(i) does not fall for refusal under any of the grounds in Section S-LTR 1.1 to SLTR 2.2. and S-LTR.3.1. to S-LTR.4.5. in Appendix FM; and
(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and
(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); […]
4. The emphasis to the text in bold is that of the FtT, which observed that the rule required 20 years’ continuous residence in the UK to have been accrued by the date of application. Here, it had not. Mr Ahmed had responded by referring the FtT to OA and Others (human rights; 'new matter'; s.120) Nigeria [2019] UKUT 65 (IAC), which concerned a situation where an appellant accrued 10 years’ continuous lawful residence in the UK during the course of his appeal, such as to satisfy para 276B of the rules. The Upper Tribunal held as follows:
(1) In a human rights appeal under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002, a finding that a person (P) satisfies the requirements of a particular immigration rule, so as to be entitled to leave to remain, means that (provided Article 8 of the ECHR is engaged), the Secretary of State will not be able to point to the importance of maintaining immigration controls as a factor weighing in favour of the Secretary of State in the proportionality balance, so far as that factor relates to the particular immigration rule that the judge has found to be satisfied.
(2) The fact that P completes ten years' continuous lawful residence during the course of P's human rights appeal will generally constitute a "new matter" within the meaning of section 85 of the 2002 Act. The completion of ten years' residence will normally 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 Secretary of State to refuse P's human rights claim is unlawful under section 6 of the Human Rights Act 1998. This is because paragraph 276B of the Immigration Rules provides that a person with such a period of residence is entitled to indefinite leave to remain in the United Kingdom, so long as the other requirements of that paragraph are met.
(3) Where the judge concludes that the ten years' requirement is satisfied and there is nothing to indicate an application for indefinite leave to remain by P would be likely to be rejected by the Secretary of State, the judge should allow P's human rights appeal, unless the judge is satisfied there is a discrete public interest factor which would still make P's removal proportionate. Absent such factors, it would be disproportionate to remove P or require P to leave the United Kingdom before P is reasonably able to make an application for indefinite leave to remain.
(4) Leaving aside whether P has any other Article 8 argument to deploy (besides paragraph 276B) and in the absence of any policy to give successful human rights appellants a particular period of limited leave, all the Secretary of State is required to do in such a case is grant P a period of leave sufficient to enable P to make the application for indefinite leave to remain. If P subsequently fails to make such an application, P will continue to be subject to such limited leave as the Secretary of State has granted in consequence of the allowing of the human rights appeal.
5. So, Mr Ahmed had argued, accruing 20 years’ residence under para 276ADE(1)(iii) during the course of proceedings should likewise be met by the FtT allowing the appeal. The Judge disagreed, holding that OA concerned a situation where an appellant now met the requirements of the relevant rule; here, this appellant did not.
6. Having concluded that the appellant did not meet the rules, the FtT went on to consider whether removing the appellant from the UK would nonetheless be a disproportionate interference with the right to respect for his family life afforded by Article 8. The FtT undertook that task by reference to the normative guidance at section 117B of the Nationality, Immigration and Asylum Act 2002. The appellant did not meet the requirements of the Immigration Rules, nor was there any evidence he could speak English. On the weight carried by the private life established by the appellant in the UK, he held that:
45. The public interest requires that little weight be attached to any private life established during the period where the appellant’s leave has been precarious. This public interest factor is engaged. The relevance of this particular statutory consideration is particularly damning for the appellant as his entire claim is premised on a private life established in this country in precarious circumstances. Unfortunately for him, the fact that he has been living here for over two decades does not provide him with a ‘pass’ that allows me to overlook this statutory consideration when the Immigration Rules are not met.
46. If I were to adopt the approach set out in R (Razgar) v SSHD [2004] UKHL 27, I conclude that the appellant's removal from the United Kingdom will be proportionate in all the circumstances and my finding that the public interest in removal outweighs the facts which the appellant relies on. For these reasons the appeal cannot succeed.
7. For those reasons, the appeal was dismissed.
The appeal to the Upper Tribunal
8. The appellant applied for permission to appeal to the Upper Tribunal on two grounds. First, it was argued that the FtT was wrong to distinguish OA and should have allowed the appeal on the basis that the appellant now meets the requirements of the Immigration Rules. Second, it was argued that the FtT had erred in its approach to proportionality. The public interest in the maintenance of effective immigration controls should have been treated as supporting the appellant’s case because he now met the rules’ requirements. It was further argued that the FtT failed to afford proper weight to the appellant’s private life, both as part of the assessment of overall proportionality and in light of para 276ADE(iii) being “in essence an amnesty”.
9. Permission was initially refused by FtT Judge Curtis for a reason that had not previously been raised by either party or the Judge: applying OA, even if the appellant did meet para 276ADE(1)(iii) by the date of hearing, that was a ‘new matter’ as defined by section 85(6) of the 2002 Act. Without the respondent’s consent, the FtT was precluded from considering it by section 85(5), so the appellant meeting the rule’s requirements was incapable of being material to the FtT’s consideration in any event.
10. When the application was renewed to the Upper Tribunal, the appellant disputed that the 20 years’ residence was a ‘new matter’. He also complained that no jurisdictional issue arising under section 85(5) had ever been raised during the hearing; the presenting officer had been content for the issue to be argued. Either way, the matter was one that the Judge ought to have taken into account. Permission was granted on all grounds by Upper Tribunal Judge Reeds.
11. The issues in this appeal therefore include:
a. Was meeting the requirement of para 276ADE(1)(iii) during the appeal a ‘new matter’?
b. If so:
i. Did the respondent consent to its consideration; or, if not
ii. Did the FtT err in law by failing to raise the lack of consent at the hearing?
c. If the FtT could consider the matter, should it have allowed the appeal because the appellant either met the rules or would do so on a subsequent application?
d. Setting the matter of para 276ADE(1)(iii) aside, did the FtT err in assessing the overall proportionality of removal?
12. I received helpful submissions from both Mr Ahmed and Ms Simbi on those issues, and mean no disrespect by setting them out only where it is necessary to explain my conclusions.
Was meeting the requirement of para 276ADE(1)(iii) during the appeal a ‘new matter’?
13. Section 85(5) of the 2002 Act provides that (either the First-tier or Upper) Tribunal must not consider a new matter unless the Secretary of State has given the Tribunal consent to do so. A new matter is defined by section 85(6):
(6) A matter is a “new matter” if -
(a) it constitutes a ground of appeal of the 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) the statement made by the appellant under section 120.
14. In this case, the “decision mentioned in section 82(1)” is the refusal of a human rights claim of 3 February 2022 and the relevant ground of appeal at section 84 is that it is unlawful under section 6 of the Human Rights Act 1998. Considering the subsection in Mahmud (s.85 NIAA 2002 – “new matters”) [2017] UKUT 488 (IAC), the Upper Tribunal held (as summarised in the headnote):
2. 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. 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.
3. In practice, 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.
15. In the subsequent case of OA, the Upper Tribunal applied those principles to whether the accrual of 10 years’ lawful residence during a human rights appeal, such as to meet para 276B, was a new matter.
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.
16. The test was satisfied:
27. The significance of an appellant proving to a First-tier Tribunal judge that he or she meets the requirements of a particular immigration rule, so as to be entitled to be given leave to remain, lies in the fact that - provided Article 8 of the ECHR is engaged - the respondent will not be able to point to the importance of maintaining immigration controls as a factor weighing in favour of the respondent in the proportionality balance, so far as that factor relates to the particular immigration rule that the Tribunal has found to be satisfied.
28. Whether or not such a finding in favour of an appellant is likely to be determinative of the human rights appeal will depend upon whether the respondent has any additional reason, effectively overriding that particular rule, for saying that the effective operation of the respondent's immigration policy nevertheless outweighs the appellant's interest in remaining in this country. To take one simple example, an appellant who persuades the First-tier Tribunal that he meets the requirements of the Immigration Rules relating to entrepreneur migrants will not thereby succeed in his human rights appeal if the appellant has been found by the respondent (and the Tribunal agrees) that the appellant falls foul of one or more of the general grounds of refusal contained in Part 9 of the Rules; for example, because he made false representations in connection with a previous application for leave (paragraph 322(2)).
17. I see no reason in principle to treat para 276ADE(1)(iii) any differently. The next requirement is that the matter was not previously considered in the decision under appeal. Unlike the hypothetical example above, the present refusal decision did record the time in the UK at the points of application and decision, to conclude “you do not meet the residence requirement under paragraph 276ADE(1)(iii)”. The factual circumstances are therefore no different to those previously considered by the respondent. However, in AK and IK (s.85 NIAA 2002 – new matters) Turkey [2019] UKUT 67 (IAC), the Upper Tribunal held as follows:
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 s.85(6) of the Nationality, Immigration & 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.
18. The appellant’s claim that removing him from the UK would be disproportionate because he has the 20 years’ continuous residence required by para 276ADE(1)(iii) was therefore a new matter that required the Secretary of State’s consent.
Was consent given?
19. Mr Ahmed was unable to point to the respondent expressly having given her consent, but he submitted that the FtT was entitled, and indeed obliged, to consider the matter because the respondent had never objected. I take this as arguing some form of constructive or implied consent. Section 85 contains no means by which consent must be communicated, and it is common for consent to be given verbally at a hearing or by implication in a written respondent’s review. I accept that in some cases it could be properly inferred from the respondent’s conduct that she has consented to a new matter being considered, even in the absence of express words.
20. In this case, no such inference can be properly drawn. I need not resort to Ms Simbi’s assertion that the respondent never intended to give consent, because it is plain from the FtT’s rehearsal of the circumstances that the need for consent was simply never considered by anyone. The parties were focused on the FtT’s query as to what facts were actually accepted, as was the FtT itself.
21. In this case, I reject that consent was given. The FtT therefore could not take into account that the appellant met the relevant rule, even if a proper analysis shows that he did. While as a matter of formality this means that the FtT erred in considering the matter, this needs to be seen in light of the parties’ failure to alert it to the problem (despite the respondent expressly considering its position on long residence during the hearing).
Procedural fairness
22. What does the above analysis mean for the appeal? The FtT should have raised the issue of consent of its own motion, and should have been alerted to the issue by the parties. This would then have been approached by the respondent according to the relevant part of its guidance: Rights of Appeal, as last updated on 12 December 2023:
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 Presenting Officer (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.
23. In the present case, had the presenting officer or anyone else realised that there was a new matter, she would have taken instructions on whether to give consent, rather than making representations on a matter that the FtT could not even consider. If she had been unable to obtain instructions to give consent, she would have sought and likely been granted an adjournment for this be done. The respondent was denied this chance to achieve the objective set out in the guidance, which would have also supported the overriding objective to the Procedure Rules. The appellant was denied the chance to have the matter considered at all. This was unfair on both sides, as amply demonstrated by the need for an onward appeal and the potential requirement for a future fresh application based on the FtT’s finding as to length of residence. This stands as an error of law.
24. The above conclusion is not undermined by Ms Simbi, before me, putting forward that the respondent refuses consent for the purposes of that hearing. This verbal expediency at the error of law stage was properly put forward as going to show that any error of law would be immaterial, but I reject it as doing so. It was not reached as part of the guidance referenced above. The correct course for the FtT to take was to enable instructions to be properly sought, and the respondent take a considered view in accordance with her guidance as to whether the matter should be considered, or consent given, or whether to refuse. So, notwithstanding the inability of the FtT (and the Upper Tribunal on appeal) to go behind such refusal, I consider that the decision of the FtT should be set aside to enable that step, now fundamental to the statutory appeal regime, to be properly undertaken. The FtT’s decision to dismiss the appeal is set aside.
Re-making
25. My above reasons for setting aside the FtT’s decision were sent to the parties together with notice that the decision would be re-made in the Upper Tribunal. I directed that the FtT’s findings of fact were preserved, and the Secretary of State must confirm whether she gives consent to the Upper Tribunal now considering that on a future application the appellant would meet the residence requirement of para 276ADE(1)(iii) of the Immigration Rules. Ms Simbi subsequently gave that consent in writing.
26. At the hearing on 14 August 2025, Mr Ahmed maintained his argument that the appeal should be allowed on the basis that the appellant meets the requirements of the Immigration Rules. Ms Simbi argued that the appellant does not meet the rules, since they require 20 years’ residence at the date of application. She nonetheless conceded that an application made on that basis would now be granted subject to further checks, no suitability issues arise, and that the appeal falls to be allowed. I agree with Ms Simbi’s submissions; the relevant circumstances are now analogous to those discussed in OA as set out at [4] above. The leave granted in response to this decision is entirely a matter for the respondent.

Notice of Decision
(i) The decision of the First-tier Tribunal involved the making of an error of law and is set aside.
(ii) The Upper Tribunal re-makes the decision by allowing the appellant’s appeal on human rights grounds.

J Neville
Judge of the Upper Tribunal
Immigration and Asylum Chamber

14 August 2025