Rahim & Anor v Secretary of State for the Home Department

Factual and Procedural Background

The Appellant arrived in the United Kingdom in 2007 with student leave. He applied for further leave on 25 October 2012 (relying on an English test taken on 21 August 2012 at Company B) and that leave was extended. He applied again on 10 October 2014 and was refused, giving rise to an appeal ("appeal 1") during which his leave was extended by section 3C of the 1971 Act. While appeal 1 was pending he applied for indefinite leave to remain ("ILR") (application 3). On 20 November 2017 the Respondent refused application 3 (the Decision), finding that the Appellant had used deception in 2012 by employing a proxy to take the test, and that his continued presence was undesirable.

The Appellant pursued appeals. The First-tier Tribunal ("FTT") heard an appeal (determination 1 promulgated 4 January 2019) and found that a proxy had been used, dismissing the appeal. Permission to appeal to the Upper Tribunal ("UT") was refused initially but was later granted by this court and appeal 2 was remitted to the UT. The UT issued determination 2 (promulgated 9 January 2025), setting aside determination 1 for material error of law, and then determination 3 (promulgated 7 April 2025) in which the UT remade the decision and dismissed the Appellant's appeal against the 2017 Decision. At the UT hearing the Appellant served evidence of three children (Child A born 2018, Child B born 2019, Child C born 2022) and of a long-standing relationship with his Partner; that material post-dated the 2017 Decision and had not been the subject of a section 120 statement. The UT treated those matters as "new matters" under section 85(6) and did not consider them because the Respondent had refused consent under section 85(5).

Legal Issues Presented

1. Whether, and to what extent, a tribunal is obliged to take into account family and relational matters arising after the date of an administrative Decision (in particular a qualifying child born after the Decision) when considering an Article 8 human rights appeal, given the interaction between Part 5A and sections 82, 84, 85 and 120 of the Nationality, Immigration and Asylum Act 2002.
2. Whether the UT erred in refusing to consider the Appellant's relationship with Child A (engaging section 117B(6)) on the basis that that relationship was a "new matter" for which the Respondent's consent to consideration was required under section 85(5).

Arguments of the Parties

Appellant's Arguments

• The mandatory language of Part 5A (notably section 117A(1) and (2)) requires the tribunal, when determining whether a decision breaches Article 8, to have regard to the considerations in section 117B and thus to consider qualifying child relationships regardless of their temporal relation to the Decision; this creates a conflict with the procedural restrictions in Part 5.
• Alternatively, the Appellant relied on earlier references to family/fiancée in the Decision and to the FTT's consideration in determination 1 as indicating that his family life had been considered and so should be treated as properly before the UT.

Respondent's Arguments

• The procedural code in Part 5 (including sections 120 and 85(4)-(6)) governs the tribunal's jurisdiction to consider matters on appeal; a matter that post-dates the Decision and was not the subject of a section 120 statement is a "new matter" which the tribunal may not consider without the Respondent's consent under section 85(5).
• Part 5A applies when the tribunal is required to determine whether a decision breaches Article 8, but it does not displace Part 5's procedural rules; the obligation to have regard to section 117B only arises when the tribunal has jurisdiction to consider the matter.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the statutory framework: sections 82, 84 and 85 of Part 5 (appeals, grounds of appeal, matters to be considered), section 120 (requirement to state additional grounds), and Part 5A (section 117A and section 117B) which governs Article 8 public interest considerations. Section 85(4) allows tribunals to consider matters arising after the date of the Decision but section 85(5) prohibits consideration of a "new matter" unless the Secretary of State consents; section 85(6) defines "new matter" (including matters not previously considered by the Secretary of State in the decision or in a section 120 statement).

The court concluded that Part 5 is a comprehensive procedural code designed to give the Respondent an opportunity to consider new matters and control whether they proceed to the tribunal. Part 5A applies whenever the tribunal is required to determine whether a decision breaches Article 8, but the scope of its application depends on whether the matters in question were considered by the Respondent before the appeal or are properly before the tribunal with consent under section 85(5).

Applying those principles to the facts, the court found that the Appellant's relationship with Child A plainly post-dated the Decision and was a "new matter" within section 85(6). No section 120 notice or statement had been served in relation to the children, and the Respondent had refused consent to the UT's consideration of those matters. The court held that absent consent the tribunals lacked jurisdiction to consider aspects of family life arising after the Decision. The court also observed that any findings or references in determination 1 could not cure that defect because determination 2 set aside determination 1.

The UT's assessment of evidence of deception (relying substantially on Company A's testing evidence and on the DK v RK precedent) and its finding that the Appellant's account was unconvincing were accepted as properly reached; the public interest in maintaining effective immigration control outweighed the Article 8 private-life claim given the deception finding.

Holding and Implications

DISMISSED

Holding: The Court of Appeal dismissed the Appellant's permitted ground of appeal: the UT did not err in refusing to consider the Appellant's relationship with Child A because that relationship was a "new matter" under section 85(6) and the Respondent had not given consent under section 85(5). Part 5A does not displace Part 5's procedural rules; Part 5A applies only when the tribunal has jurisdiction to consider the matter.

Implications: The direct effect is that the UT's remade decision dismissing the Appellant's appeal stands. The decision affirms that tribunals may not consider family or other matters arising after the date of the Decision unless the Respondent has had the opportunity to consider them or has consented to tribunal consideration under the procedural code in Part 5. The opinion does not purport to establish a broader novel precedent beyond its statutory interpretation of the interaction between Part 5 and Part 5A in the circumstances of this case.