Part 5 “New Matter” Consent Limits the Tribunal’s Article 8 / s.117B(6) Assessment

Case: Rahim & Anor v Secretary of State for the Home Department [2026] EWCA Civ 930
Court: Court of Appeal (Civil Division), England and Wales
Date: 20 July 2026
Judges: Lady Justice King, Lady Justice Andrews, Lady Justice Elisabeth Laing

1. Introduction

This appeal concerned the statutory relationship between the appeal “code” in Part 5 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) (notably ss.82, 84, 85 and the Part 6 s.120 procedure) and the mandatory “public interest considerations” in Part 5A (ss.117A–117D).

The appellant challenged the Upper Tribunal’s refusal to consider, in a human rights appeal against a 2017 refusal of indefinite leave to remain (“ILR”), evidence of family life arising years later: a relationship with the partner and three children (A, B and C) born after the 2017 decision. By 2025, A was said to be a “qualifying child”, potentially engaging s.117B(6).

The central legal issue was jurisdictional: whether the tribunal was nonetheless obliged (by the mandatory language of s.117A(2)) to consider s.117B(6) even though the family life material was a “new matter” under s.85(6) and the Secretary of State had refused consent under s.85(5).

2. Summary of the Judgment

The Court of Appeal dismissed the appeal.

  • No conflict between Part 5 and Part 5A: Part 5 defines the tribunal’s jurisdiction. The mandatory duty in s.117A(2) arises only when the tribunal is required (and empowered) to determine an Article 8 issue within its lawful remit.
  • “New matter” gatekeeping prevails procedurally: A claim based on post-decision family life (including with a “qualifying child”) is outside the tribunal’s jurisdiction unless the Secretary of State consents under s.85(5).
  • Earlier First-tier Tribunal remarks could not found jurisdiction: any views expressed about family life beyond jurisdiction were irrelevant, and in any event the First-tier decision had been set aside by the Upper Tribunal.

3. Analysis

3.1 The statutory scheme: Parts 5, 5A and s.120

The court treated the 2002 Act as an integrated scheme:

  • Part 5 (ss.82–85) is a detailed code governing (i) what decisions are appealable (s.82), (ii) permitted grounds (s.84), and (iii) what matters may be considered (s.85).
  • s.85(4) allows consideration of matters arising after the decision, but this is limited by s.85(5): the tribunal may not consider a “new matter” without the Secretary of State’s consent.
  • s.85(6) defines “new matter” as one that itself constitutes a ground of appeal (of a kind in s.84, e.g. an Article 8 ground) and which the Secretary of State has not previously considered in the relevant context (the appealed decision or a s.120 statement).
  • s.120 (Part 6) provides a mechanism by which, where a notice is served, an appellant must set out reasons/grounds to remain and must provide a supplementary statement if circumstances change (s.120(5)).
  • Part 5A (s.117A) applies “whenever” a court/tribunal is required to determine whether a decision breaches Article 8 and is therefore unlawful under s.6 of the Human Rights Act 1998. In that event, it must have regard to the considerations in s.117B (and s.117C in deportation cases).

The appellant’s submission sought to elevate the “must … have regard” duty in s.117A(2) into an obligation to decide s.117B(6) issues regardless of the Part 5 jurisdictional boundary. The Court of Appeal rejected that reading.

3.2 The core holding: mandatory Part 5A duties do not expand jurisdiction

Lady Justice Elisabeth Laing and Lady Justice Andrews gave complementary reasons that converge on a jurisdiction-first analysis:

  • Part 5 determines the tribunal’s competence. The tribunal cannot be “required to determine” an Article 8 question about a “new matter” unless that matter is properly before it (i.e., either previously considered by the Secretary of State, or admitted by consent under s.85(5)).
  • Part 5A is triggered within, not beyond, the tribunal’s remit. Part 5A “always applies” when the tribunal is considering an Article 8 breach, but what Article 8 material the tribunal may consider is constrained by Part 5—especially the “new matter” restriction.
  • Parliamentary purpose of s.85(5) would be defeated otherwise. If s.117A(2) compelled tribunals to determine new matters without consent, s.85 would lose “all practical utility” (Lady Justice Andrews). The court read the statute to avoid that incoherence.

Practically, the decision underscores that s.117B(6) (qualifying child / reasonableness) is not a free-standing trump card: it must be raised in a procedural posture that gives the tribunal jurisdiction to decide it.

3.3 Application to the facts: why the child relationship could not be considered

On the facts, the relationship with A was “self-evidently” a new matter:

  • A was born after the 2017 decision; the Secretary of State could not have considered that relationship in the appealed decision.
  • No s.120 notice had been served; there was therefore no s.120 statement capable of bringing the matter within s.85(2)–(3).
  • The appellant raised the children only shortly before the Upper Tribunal hearing; the Secretary of State had not had the opportunity to investigate or assess it.
  • The Secretary of State refused consent under s.85(5). That refusal foreclosed jurisdiction.

The appellant relied on references in an earlier First-tier Tribunal decision and in the Secretary of State’s decision template language. The Court of Appeal gave three answers:

  • Logical inconsistency: reliance on prior “consideration” could not sit with the concession that the relationship with A was a “new matter”.
  • No power, no binding findings: absent s.85(5) consent, the First-tier Tribunal had no power to make binding determinations on the new family life issues.
  • Set-aside decision: the First-tier decision was set aside by the Upper Tribunal and had no continuing legal effect.

3.4 Precedents cited: the ETS/TOEIC evidential backdrop and its role

Although the Court of Appeal appeal point was jurisdictional (new matter / s.117B(6)), the judgment records the Upper Tribunal’s reliance on the established evidential approach to ETS/TOEIC allegations, in particular:

  • DK v RK (ETS SSHD evidence; proof (India)) [2022] UKUT 00112 (IA): the Upper Tribunal quoted the Presidential Panel’s conclusions (paras 126–129) to the effect that ETS voice-recognition evidence, if not met by “credible evidence” in the individual case, is “amply sufficient” to prove proxy test-taking on the balance of probabilities, and that false positives are extremely unlikely.

In Rahim, that precedent did not determine the new-matter question directly, but it explains why the underlying appeal was lost on the merits: the Upper Tribunal found the Secretary of State’s ETS evidence “compelling” and the appellant’s account “wilfully vague”, with missing corroboration. The Court of Appeal did not revisit that merits assessment because permission was granted only on the statutory construction ground.

3.5 Legal reasoning: reconciling “procedural” and “mandatory” provisions

The court’s reasoning is best understood as a two-stage model:

  1. Stage 1 — jurisdiction/scope (Part 5): identify what grounds and matters are lawfully in play on the appeal. “New matters” are excluded absent consent.
  2. Stage 2 — substance (Part 5A): once the tribunal is determining an Article 8 question within that lawful scope, it must have regard to s.117B/s.117C considerations.

This avoids treating s.117A(2) as an implied override of s.85(5), and preserves the legislative design that the Secretary of State should ordinarily have the first opportunity to consider new Article 8 claims (with a discretionary ability to permit the tribunal to deal with them).

3.6 Impact

  • Clarifies “new matter” as a hard jurisdictional limit: Tribunals cannot be compelled to consider s.117B(6) (or other Article 8 family life grounds) where the factual basis is a “new matter” and consent is refused.
  • Reinforces the procedural importance of early notification: Where a s.120 notice exists, the supplementary statement mechanism is central to getting evolving family circumstances considered first by the Secretary of State (and thus avoiding “new matter” disputes on appeal).
  • Directs litigants to the correct route for post-decision changes: If significant family life develops after the appealed decision and consent is withheld, the likely route is further engagement with the Secretary of State (e.g., a fresh human rights claim/application), rather than attempting to “add” the issue late on appeal.
  • System-level effect: The decision supports the policy of administrative primacy and orderly fact-finding (investigation first, adjudication second), particularly where late-raised matters require checking and evidence-gathering.

4. Complex Concepts Simplified

4.1 “New matter” (s.85(6))

A “new matter” is not merely “new evidence”. It is a new issue/claim that itself amounts to a permitted appeal ground (e.g., an Article 8 claim) which the Secretary of State has not previously considered in the relevant context. If it is a new matter, the tribunal cannot consider it without consent (s.85(5)).

4.2 Why s.117B(6) did not “force” consideration

s.117B(6) is part of the Article 8 proportionality framework (“public interest considerations”). It does not create a free-standing jurisdiction to determine a newly-arisen family life claim. It operates only once the tribunal is lawfully determining that aspect of Article 8.

4.3 “Qualifying child” (s.117D(1))

A “qualifying child” is a person under 18 who is a British citizen or is settled in the United Kingdom. If s.117B(6) is engaged (and the tribunal has jurisdiction), the statutory conclusion is that the public interest does not require removal where there is a genuine and subsisting parental relationship and it would not be reasonable to expect the child to leave the UK.

5. Conclusion

Rahim & Anor v Secretary of State for the Home Department [2026] EWCA Civ 930 confirms that the “new matter” consent requirement in s.85(5) is a jurisdictional control that limits what Article 8 issues a tribunal may determine on an appeal. The mandatory duty in s.117A(2) to consider the Part 5A factors—including s.117B(6) concerning qualifying children—operates only within the tribunal’s lawful jurisdiction as defined by Part 5. Where post-decision family life is raised late and consent is refused, the tribunal cannot adjudicate it, even if it might be highly material to proportionality.