Court of Appeal dismisses Rahim appeal over new matter consent rules in human rights claims

The Court of Appeal has dismissed an appeal concerning the interaction between the "new matter" consent provisions in Part 5 of the Nationality, Immigration and Asylum Act 2002 and the mandatory public interest considerations under Part 5A, in a judgement handed down on 20 July 2026.

The case, MD Abdur Rahim v Secretary of State for the Home Department [2026] EWCA Civ 930, centred on whether a tribunal hearing a human rights appeal was obliged to take into account family relationships that had come into existence only after the Secretary of State's original decision, notwithstanding her refusal to consent to their consideration.

Mr Rahim, who arrived in the UK in 2007 as a student, had his application for indefinite leave to remain refused in November 2017 on the grounds that he had used a proxy to sit the Test of English for International Communication in 2012, evidence of which emerged following a BBC Panorama investigation into widespread fraud at test centres operated by the Educational Testing Service. His subsequent appeal was dismissed by the First-tier Tribunal in January 2019, a decision that was later set aside by the Upper Tribunal following a protracted series of permission applications and a remittal from the Court of Appeal.

By the time the Upper Tribunal came to remake the decision in March 2025, Mr Rahim had had three children with his partner, Bibi Ali, none of whom had been born at the date of the original refusal. He sought to rely on his relationship with the eldest, a qualifying child for the purposes of section 117B(6) of the 2002 Act, arguing this engaged the mandatory public interest considerations under Part 5A. The Secretary of State refused consent for the tribunal to consider this as a "new matter" under section 85(5), on the basis that the evidence had been served very late and she had had no opportunity to investigate it. The Upper Tribunal accordingly declined to consider the relationship and dismissed the appeal, having separately found, on the balance of probabilities, that Mr Rahim had used a proxy to obtain his test result.

Before the Court of Appeal, Mr Rahim, represented by Ahmed Badar, argued that the mandatory language of section 117A(2), requiring a tribunal to have regard to the considerations in section 117B whenever it determines an article 8 claim, could not be reconciled with the restriction in section 85(5) preventing consideration of new matters without ministerial consent. He further argued that his family life had, in substance, already been considered both in the original 2017 decision and in the First-tier Tribunal's since-superseded 2019 determination.

Giving the leading judgement, Lady Justice Elisabeth Laing rejected both arguments. She held that Parts 5 and 5A of the 2002 Act must be read together, and that while Part 5A always applies once a tribunal is considering an article 8 claim, the extent of its application depends on whether the relevant matter has properly come before the tribunal, either through prior consideration by the Secretary of State or with her consent under section 85(5). As the child in question had not been born at the time of the 2017 decision, the relationship could not have been considered by the Secretary of State, and no section 120 notice had ever been served that might have brought it into the appeal by other means.

Lady Justice Andrews, agreeing, observed that accepting Mr Rahim's construction would render section 85 largely without practical effect, obliging tribunals to determine matters the Secretary of State had never had the chance to assess. Lady Justice King agreed with both judgements. The appeal was dismissed.