Introduction

The case of AK and IK v Secretary of State for the Home Department ([2019] UKUT 67 (IAC)) adjudicated by the Upper Tribunal (Immigration and Asylum Chamber) on February 1, 2019, addresses pivotal issues surrounding the interpretation of "new matter" under Section 85 of the Nationality, Immigration and Asylum Act 2002 (NIAA 2002). The appellants, AK and IK, Turkish nationals residing in the United Kingdom, challenged the refusal of their applications for Leave to Remain (LTR) based on their Article 8 rights under the European Convention on Human Rights (ECHR). Central to their appeal was whether the reliance on different categories of Immigration Rules constituted a "new matter" necessitating the Secretary of State's consent.

Summary of the Judgment

The Upper Tribunal, presided over by Judge Gill, dismissed the appellants' claims, upholding the decision of the First-tier Tribunal Judge Kelley. The primary rationale was that the appellants' reliance on Section 85(6) of the NIAA 2002 to incorporate criteria from a different category of Immigration Rules (Appendix ECAA) into their Article 8 claims constituted a "new matter." Consequently, the judge lacked jurisdiction to consider these criteria without the Secretary of State's explicit consent. Additionally, even if such consideration were within jurisdiction, the tribunal found no legal error significant enough to overturn the initial decision.

Analysis

Precedents Cited

The Judgment extensively referenced key precedents to substantiate its conclusions. Notably:

• Chikwamba v SSHD [2007] UKHL 40: This case established the principle that an individual's ability to meet hypothetical entry clearance requirements can influence the proportionality analysis under Article 8.
• Razgar v SSHD [2004] UKHL 27: Affirmed a step-by-step approach in assessing Article 8 claims, emphasizing the consideration of Immigration Rules compliance.
• Mahmud (S. 85 NIAA 2002 - 'new matters') [2017] UKUT 488 (IAC): Provided a foundational interpretation of "new matter," clarifying it as a factual matrix not previously considered by the Secretary of State.
• R (Agyarko) and others v SSHD [2017] UKSC 11 and Tikka v SSHD [2018] EWCA Civ 642: Reinforced the application of the Chikwamba principle in assessing proportionality.

These precedents collectively guided the Tribunal's interpretation of statutory provisions and reinforced the procedural boundaries within which Article 8 claims must operate.

Legal Reasoning

The core of the Tribunal's reasoning hinged on the definition of "new matter" under Section 85(6) of the NIAA 2002. The appellants sought to integrate criteria from Appendix ECAA, a different category of Immigration Rules, into their Article 8 claims to assert that their removal would breach their family and private life rights.

The Tribunal determined that such reliance on a different category of rules indeed constituted a "new matter." This classification is crucial because, as per Section 85(6), introducing a new matter without the Secretary of State's consent is procedurally impermissible. The Tribunal underscored that the Immigration Rules are compartmentalized to reflect distinct international treaties, and cross-categorical references undermine their structured application.

Furthermore, the Tribunal addressed the procedural aspect, emphasizing that the appellants did not submit a Section 120 statement—required for introducing new grounds post hoc—nor did the respondent initiate such a notice. Consequently, the Tribunal affirmed that the judge lacked the jurisdiction to consider Appendix ECAA in this context.

Regarding the second ground of appeal, while acknowledging the judge's oversight in applying the Chikwamba principle, the Tribunal found it immaterial given the appellants' failure to meet the requirements for entry clearance under Appendix FM, thereby negating the applicability of the Chikwamba principle in this instance.

Impact

This Judgment sets a clear precedent on the interpretation of "new matter" within immigration appeals. It reinforces the rigidity of procedural requirements under the NIAA 2002, particularly emphasizing that introducing elements from different Immigration Rule categories without authorization is impermissible. Future appellants must be cautious not to amalgamate criteria from disparate Immigration Rules streams when formulating their claims, as such actions may be deemed procedurally invalid. Additionally, the Judgment reaffirms the necessity for appellants to adhere strictly to the procedural avenues available for introducing new grounds, such as the Section 120 statement.

Complex Concepts Simplified

Section 85 of the Nationality, Immigration and Asylum Act 2002 (NIAA 2002)

Section 85 deals with "new matters" in immigration appeals. A "new matter" refers to information or grounds introduced during an appeal that were not part of the original application or decision. The Section stipulates that tribunals cannot consider such new matters unless the Secretary of State explicitly consents.

"New Matter"

A "new matter" is essentially any fact or argument not previously considered by the Secretary of State in the context of the original decision or in any statements provided under Section 120. Introducing new matters without consent undermines the procedural integrity of the immigration appeals process.

Article 8 of the European Convention on Human Rights (ECHR)

Article 8 protects an individual's right to respect for private and family life. In immigration contexts, applicants may claim that removal from the UK would disproportionately interfere with these rights.

Appendix ECAA

Appendix ECAA sets out specific requirements for Turkish nationals and their dependents seeking indefinite leave to remain in the UK under the Ankara Agreement. It outlines criteria related to the sponsor's status, relationship, and the applicant's residence and maintenance conditions.

Conclusion

The Upper Tribunal's decision in AK and IK v Secretary of State underscores the paramount importance of adhering to procedural norms within immigration appeals. By elucidating the boundaries of what constitutes a "new matter" under Section 85 NIAA 2002, the Judgment provides clear guidance for both appellants and legal practitioners. It emphasizes that while applicants may seek to leverage different strands of Immigration Rules to bolster their claims, such actions must align with statutory provisions and procedural mandates. The Tribunal's affirmation of established principles ensures consistency and fairness in the adjudication of complex immigration cases, reinforcing the structured application of the UK's immigration framework.