Matthew Howarth, instructed by the Treasury Solicitor, represented the Secretary of State for the Home Department in a significant Court of Appeal judgment clarifying the relationship between Part 5 and Part 5A of the Nationality, Immigration and Asylum Act 2002 in human rights appeals.
In Rahim & Anor v Secretary of State for the Home Department [2026] EWCA Civ 930 (2026) EWCA Civ 930, the Court of Appeal (Lady Justice King, Lady Justice Andrews and Lady Justice Elisabeth Laing) dismissed an appeal brought by Mr Rahim against the Upper Tribunal’s dismissal of his human rights appeal arising from the refusal of his application for indefinite leave to remain.
The appeal raised an important question of law: how the detailed procedural code in Part 5 of the 2002 Act (including sections 82, 84, 85 and 120) interacts with the public interest considerations in Part 5A (sections 117A–117D) when a tribunal is asked to consider Article 8 ECHR issues, in particular the position of “new matters” such as relationships with qualifying children that arise after the Secretary of State’s decision.
Arnold LJ had granted permission to appeal on a single ground, recognising that while the appeal raised an important question of statutory construction, it “might well not succeed”.
The appellant argued that there was a conflict between:
- the “mandatory” obligation in section 117A(2) of the 2002 Act to have regard to the Part 5A considerations (including section 117B(6) on qualifying children) whenever a court or tribunal is required to determine an Article 8 question; and
- the “new matter” provisions in section 85(4)–(6), read together with section 120, which limit what the tribunal may consider on appeal unless and until the Secretary of State has addressed new matters or consented to the tribunal doing so.
He contended that this supposed conflict meant the tribunal was obliged to consider his relationship with a qualifying child (A), notwithstanding that this relationship was a “new matter” which the Upper Tribunal had rightly recognised could not be considered without the Secretary of State’s consent.
The Court of Appeal rejected the appellant’s arguments and upheld the Upper Tribunal’s approach, endorsing the structure advocated on behalf of the SSHD.
Lady Justice Elisabeth Laing held that:
- Part 5 and Part 5A must be read as a coherent whole: Part 5 defines the scope of the tribunal’s jurisdiction and the matters it may consider on an appeal; Part 5A then applies within that jurisdiction, whenever the tribunal is required to decide an Article 8 issue.
- There is no conflict between section 117A(2) and section 85(5). The tribunal is only obliged to consider matters such as an appellant’s relationship with a qualifying child under Part 5A when those matters are properly within its jurisdiction, which in turn depends on whether they have been considered by the Secretary of State or consented to as “new matters”.
- Mr Rahim’s relationship with A was a self‑evident “new matter”: the child was not born at the date of the Secretary of State’s refusal decision, there was no section 120 notice or statement, and the Secretary of State had expressly declined to consent to the Upper Tribunal considering the new material served shortly before the hearing.
Lady Justice Andrews emphasised the point in her concurring judgment:
- When the statutory scheme is properly understood, “there is no conflict between the procedural provisions of Part 5 and the mandatory provisions of section 117A(2). Part 5 defines the scope of the tribunal’s jurisdiction… It is only when the tribunal has jurisdiction that it is obliged to consider matters such as an appellant’s relationship with a qualifying child.”
In her judgment, Lady Justice Elisabeth Laing also acknowledged:
“I have not summarised Mr Howarth’s submissions in the judgment, but I found his careful analysis of Part 5 of the 2002 Act very helpful. It has significantly informed my approach to the issue of statutory construction.”
On that basis, the Court dismissed the appeal, confirming that the Upper Tribunal had been right to decline to consider Mr Rahim’s relationship with his qualifying child in the absence of the Secretary of State’s consent, and that there was no error of law in the Upper Tribunal’s treatment of the statutory scheme.
Rahim (2026) EWCA Civ 930 is an important authority for practitioners and judges dealing with human rights appeals, particularly in cases where new family life elements—such as relationships with qualifying children—emerge after the Secretary of State’s decision.
The judgment:
- Confirms that the “new matter” regime in section 85(4)–(6) retains full effect even where Article 8 is engaged: tribunals may not consider new Article 8 family life points without the Secretary of State’s consent.
- Clarifies that Part 5A does not override the jurisdictional limits in Part 5, but rather operates within them.
- Reinforces the principle that the Secretary of State must have a proper opportunity to consider and, if appropriate, investigate new matters before they are litigated in the appellate tribunals.
The full judgment is available here.
Read more about Matthew’s practice here.
