Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002805

First-tier Tribunal Nos: HU/51854/2024
LH/01057/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 17th of September 2025

Before

UPPER TRIBUNAL JUDGE MAHMOOD

Between

VS
ANONYMITY ORDER CONTINUED
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Cohen of Counsel, instructed by TMF Immigration Lawyers
For the Respondent: Ms Young, Senior Home Office Presenting Officer

Heard at Bradford on 27 August 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the Appellant, likely to lead members of the public to identify the Appellant. Failure to comply with this order could amount to a contempt of court. The parties may apply on notice to vary this order.

DECISION AND REASONS

1. This is the oral decision which I have delivered at the hearing today.
Introduction
2. The Appellant, a national of Namibia, appeals against the decision of First-tier Tribunal Judge Rose (“the Judge”) who in a decision dated 10 March 2025 dismissed the Appellant’s appeal based on human rights grounds.
3. Permission to appeal had been granted pursuant to grounds of appeal dated 21 March 2025 by First-tier Tribunal Judge T Lawrence on 26 June 2025. Permission was granted on all grounds of appeal.
Background
4. The matter has come for hearing before me today and my task is to consider whether or not there is a material error of law in the Judge’s decision. If there is no material error of law then the Judge’s decision which had dismissed the appeal will stand. If I find that there is a material error of law in the Judge’s decision then I will have to consider whether the matter ought to remain here at the Upper Tribunal for re-making or whether it ought to be remitted to the First-tier Tribunal.
5. The background to the Appellant’s case is set out within the Judge’s decision, the complication being that there were additional matters which appeared to be raised which the Judge was concerned about and which the Judge concluded were new matters thereby statutorily prohibiting the Judge from considering them.
6. The Appellant’s grounds of appeal contend that the Judge undertook an approach which led to procedural error because the appeal did not raise new matters and in any event the Judge incorrectly considered the proportionality assessment in terms of Article 8 of the European Convention on Human Rights.
The Hearing Before Me
7. I have been assisted greatly by a skeleton argument which has been provided by Ms Cohen setting out in clear terms the issues which arise in this case and the submissions which I ought to consider.
8. I have also been assisted by Ms Young with her oral submissions and whereby she informed me that although there was no Rule 24 response from the Respondent this was an appeal which was opposed. It is right to say that Ms Young has said and done all that she possibly can in respect of this case, and she informed me that attempts were being made in terms of operational matters to file and serve more Rule 24 responses at the Upper Tribunal. Ms Young was told by me that Upper Tribunal Judges value Rule 24 responses in preparation for cases and indeed it is very likely that Appellants also welcome sight of the Respondent’s stance. Therefore, I encourage the operational matters to which Ms Young refers to progress in a way in which the Upper Tribunal is provided with a Rule 24 response in as many cases as possible.
9. In any event I return to the Judge’s decision. The Judge had said at paragraph 3 of the decision as follows:
“Part of the factual basis of the Appellant’s claim is that she too is at risk from her husband – the father of both her daughters – as a result of domestic violence, to the extent that she cannot return to Namibia. However, the Respondent submits that this was not a fact relied upon in her application and they do not give consent for it to be considered in this appeal, meaning that it is not a matter I can consider in these proceedings”.
10. Ms Cohen says in her written oral submissions that the Judge had erred in relation in saying those things because the Appellant had brought her appeal by way of Section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002 and pursuant to Section 84(2) that the Respondent’s decision was unlawful pursuant to Section 6 of the Human Rights Act 1998.
11. Ms Cohen relies on the Upper Tribunal’s decision in Mahmud (S.85 NIAA) 2002 – ‘new matters’) [2017] UKUT 00488 (IAC) from paragraphs 29 to 32 of that decision:
“7. It submitted that the following paragraphs in Mahmud (S. 85 NIAA 2002 – ‘new matters’) [2017] UKUT 00488 (IAC) are relied upon;
29. A matter is the factual substance of a claim. A ground of appeal is the legal basis on which the facts in any given matter could form the basis of a challenge to the decision under appeal. For example, medical evidence of a serious health condition could be a matter which constitutes a ground of appeal on human rights grounds based on Article 3 of the European Convention on Human Rights which if breached, would mean that removal would be contrary to section 6 of the Human Rights Act, a ground of appeal in section 84(2) of the 2002 Act. Similarly, evidence of a relationship with a partner in the United Kingdom could be a matter which constitutes a ground of appeal based on Article 8 and for the same reasons could fall within section 84(2) of the 2002 Act as if made out, removal would be contrary to section 6 of the Human Rights Act.
30. A ‘new matter’ is a matter which constitutes a ground of appeal of a kind listed in section 84, as required by section 85(6)(a) of the 2002 Act. Constituting a ground of appeal means that it must contain a matter which could raise or establish a listed ground of appeal. ‘In the absence of this restriction, section 85(5) of the 2002 Act could potentially allow the Respondent to give the Tribunal jurisdiction to consider something which is not a ground of appeal by consent, thereby undermining sections 82 and 84 of the 2002 Act;
31. Practically, a new matter is a factual matrix which has not previously been considered by the Secretary of State in the context of the decision in section 82(1) or a statement made by the appellant under section 120. This requires the matter to be factually distinct from that previously raised by an appellant, as opposed to further or better evidence of an existing matter. The assessment will always be fact sensitive. By way of example, evidence that a couple had married since the decision is likely to be new evidence but not a new matter where the relationship had previously been relied upon and considered by the Secretary of State. Conversely, evidence that a couple had had a child since the decision is likely to be a new matter as it adds an additional distinct new family relationship (with consequential requirements to consider the best interests of the child under section 55 of the Borders, Citizenship and Immigration Act 2009) which itself could separately raise or establish a ground of appeal under Article 8 that removal would be contrary to section 6 of the Human Rights Act.
32. In accordance with the construction of section 85(6)(a) of a ‘new matter’ contended for by Counsel for the Appellant, he submitted that on the facts of this case, the Respondent had considered the matter, (namely whether the Appellant’s removal from the United Kingdom would be contrary to section 6 of the Human Rights Act 1998 on the grounds that there would be a disproportionate interference with his right to respect for private and family life protected by Article 8 of the European Convention on Human Rights) so that no further matter raising the same ground could be a ‘new matter’ within section 85(6)(b). For the reasons set out above, the primary submission fails and therefore so does the submission that in fact, the Respondent had considered the matter. The fact that the Respondent had, in her decision dated 19 May 2016, considered the Appellant’s private and family life on the basis of information known to her at that date, was not sufficient to show consideration of the matter now relied upon: the Appellant’s relationship with a new partner and her child. Actual consideration in a decision letter of the new factual matrix relied upon is required for a matter to fall outside section 85(6)(b) and therefore not be a ‘new matter.”
12. So that is the law which is relied upon which is not disputed.
Consideration and Analysis
13. It is necessary therefore to look to the documentation to see the way in which the Appellant had put her application. One needs to look at pages 302 and 312 of the bundle where it can be seen that the application form itself had referred to a list of matters in respect of the Human Rights Act claim which was being made.
14. In particular, there is reliance on a covering letter which appears at page 319 of the bundle and this is a covering letter with the applicant’s application submitted on 9 September 2022 where she said this was an application for leave to remain as the parent and of a child and on the basis of private and family life in the UK. It says on page 2 of the letter “The applicant and her daughters were subject to physical abuse with the child being pressured into a forced marriage by her father”. Now although slim, this is relied upon by the Appellant as indicating that she had referred previously to the physical violence and the risk of it previously from the father of the Appellant’s children. Ms Cohen says that the further witness statement and the skeleton argument at the First-tier Tribunal drafted by her instructing solicitor amplified what had been set out within the application. In summary therefore Mr Cohen’s first point is this was not therefore a new matter because it was something that had been raised previously.
15. Ms Young responds to state that this was something that was indeed slim as was acknowledged, but in any event that the matter was a new matter and therefore there could be no lawful consideration of it. In any event she says that this was somewhat ‘tucked away’ under background information within that covering letter and did not necessarily assist in supporting what the Appellant was now contending.
16. Ms Cohen’s second point is that if one looks to the Respondent’s documents that here there was also support for submissions. this not being as was being contended Here it is necessary to look at various paragraphs within the Respondent’s Review dated 17 December 2024.
17. I was taken to several paragraphs of the Respondent’s Review. There is a subheading ‘New Matter’ and it states there that the Appellant contends she is unable to return to Namibia due to fear of her ex-partner in which she was a victim of domestic violence and it is made clear there at paragraph 14 on page 342:
“14. This is a new matter, with regards to the Nationality, Immigration and Asylum Act 2002 s85(5). These circumstances have not been raised previously nor considered in the context of a s120 notice (of the same Act). As such, they are new matters.
15. In terms of consent, the R notes that this would be a Protection Claim. There are specific safeguards, security checks and considerations given to Protection Claims. Although the exceptionally late raising of these claims and scant detail provided, prima facie, causes some considerable doubt of the veracity of such claims, the R believes that it is only appropriate that these matters be furthered through a properly made and considered Protection Claim. Accordingly, consent for the Tribunal to consider these matters relating to ill treatment in Namibia is not given.
16. If this ground is seriously relied upon, it is submitted that the most appropriate course of action is for the appellant to withdraw her current appeal and make the appropriate claim at https://www.gov.uk/claim-asylum.”
18. Importantly however Ms Cohen says paragraph 17 of that same review states as follows:
“17. If that course of action is not taken with the A pursuing this particular limb of their human rights claim in the context of Paragraph 276ADE/Appendix PL, then the A is required to demonstrate such a claim would amount to an insurmountable obstacle to family life/very significant difficulties on the balance of probabilities. Cross examination may be advanced to allow the Tribunal to consider whether the appellant is a witness of truth. The R will rely upon the fact that the A has not made a protection claim and the significant delay in putting forward such a claim”.
19. Ms Young on behalf of the Secretary of State says that she accepts that paragraph 17 is “not helpful” and she says also arguably “it should not be there” so she states that I should look at paragraphs 13 and 14 of that same review. She says it is clear that this whole aspect was a new matter. She said it was either a new matter or it was not a new matter. The matter had not been raised in the application so consent of the Secretary of State was required. Ms Young said that paragraph 17 “did not undermine that basic understanding and perhaps there may have been a misunderstanding and it appeared that perhaps paragraph 17 was drafted on behalf of the Secretary of State in the alternative.”
20. I see the difficulty for Ms Young but in my judgment, it is not sufficient for me to go behind what was professionally drafted on behalf of the Secretary of State in the Respondent’s Review document. I cannot speculate as to whether or not it arguably should not have been provided in that form by the Secretary of State because it was provided in that form. It is there for me to read and to see. I do agree with Ms Young from her perspective it is ‘not a helpful document’. But in my judgment when I group the two aspects together, namely page 2 of the Appellant’s covering letter which set out the reference to physical abuse to not only the Appellant’s daughters but also to the Appellant, with paragraph 17 of the Respondent’s Review, it is abundantly clear to me when properly considering the Upper Tribunal’s decision in Mahmud that this was not a new matter. I cannot ignore paragraph 17 of the Respondent’s Review as if it were not there, because it is there.
21. In the circumstances in my judgment the Judge materially erred in law in concluding otherwise and in not undertaking an assessment of the Appellant’s human rights claim on that fuller basis. The matter was before the Judge.
22. I explored with Ms Cohen why it might be that this Appellant has not made a protection claim. She said she had no instructions in respect of that issue but clearly this is something that she will wish to consider with her legal advisers. Certainly, I note that observations of First-tier Tribunal Judge Rose relating to an asylum claim. Of course no one can compel the Appellant to do anything, but it is an observation which I make as well.
23. Because there is a material error of law in the Judge’s decision, I have no alternative but to set aside the decision of the First-tier Tribunal Judge. I have considered whether or not this is a matter which ought to remain for consideration here at the Upper Tribunal and I have taken on board the submissions which have been made. Applying AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), I consider whether to retain the matter for remaking here at the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President’s Practice Statement. I take into account the history of this case, the nature and extent of findings to be made as well as the nature of the errors in this case. I further consider it would be unfair for either party to be unable to avail themselves of the two-tier decision-making process. I therefore remit the appeal to the First-tier Tribunal with no retained findings.
24. To be clear, the de novo hearing will be on all issues in respect of the Appellant’s Immigration Rules and Article 8 ECHR claim only and the matter will be heard by a Judge other than First-tier Tribunal Judge Rose. Any further directions will be provided by the First-tier Tribunal.
25. That is my judgment.
Notice of Decision
The decision of the First-tier Tribunal contains a material error of law and it is set aside.
The matter is remitted to the First-tier Tribunal for a hearing afresh.
None of the current findings shall stand.
The anonymity direction previously made shall continue.

Abid Mahmood
Judge of the Upper Tribunal
Immigration and Asylum Chamber

27 August 2025