by Mark Henderson & Alison Pickup
5.1 The stated intention of the 2002 Act is to enable all outstanding issues relating to a person's entitlement to enter or remain in the UK to be dealt with in one appeal.
(a) he has made an application to enter or remain in the United Kingdom, or
(b) an immigration decision within the meaning of section 82 has been taken or may be taken in respect of him. (s.120(1))
5.2A Where the 2014 appeals provisions apply (see chapter 1 for an explanation of the cases to which these provisions apply), the power to serve a one stop notice applies to a person ('P') if—
(a) P has made a protection claim or a human rights claim,
(b) P has made an application to enter or remain in the United Kingdom, or
(c) a decision to deport or remove P has been or may be taken. (s. 120(1))
require the person to state –
(a) his reasons for wishing to enter or remain in the United Kingdom,
(b) any grounds on which he should be permitted to enter or remain in the United Kingdom, and
(c) any grounds on which he should not be removed from or required to leave the United Kingdom. (s.120(2); the 2014 appeals provisions do not materially amend s. 120(2))
5.3A Where the 2014 appeals provisions apply, s. 120 has been amended by the addition of an ongoing duty on a person who has been served with a s. 120 notice, and who requires leave to enter or remain but does not have it (or only has leave under s. 3C or 3D of the Immigration Act 1971) to keep the Home Office informed of changes in their circumstances which give rise to new grounds for remaining in, or not being required to leave, the United Kingdom. Section 120(5) provides in such cases that:
(5) Where P's circumstances have changed since the Secretary of State or an immigration officer was last made aware of them (whether in the application or claim mentioned in subsection (1) or in a statement under subsection (2) or this subsection) so that P has—
(a) additional reasons for wishing to enter or remain in the United Kingdom,
(b) additional grounds on which P should be permitted to enter or remain in the United Kingdom, or
(c) additional grounds on which P should not be removed from or required to leave the United Kingdom,
P must, as soon as reasonably practicable, provide a supplementary statement to the Secretary of State or an immigration officer setting out the new circumstances and the additional reasons or grounds.
5.4 The Modernised Guidance on Appeals explains the consequences of a one stop notice under the 2014 appeals regime:
4.2 Once served with a section 120 notice, a person who requires leave to be in the UK (or only has leave by virtue of section 3C or 3D of the Immigration Act 1971), must provide a statement setting out any additional reasons or grounds P has for entering or remaining in the UK; or any grounds on which P should not be removed from the UK. This is an ongoing duty so that a further statement should be made, if a new reason or ground for remaining in the UK arises. Any reasons or grounds should be raised as soon as reasonably practicable. There is no requirement to reiterate the same grounds or reasons that the SSHD is already aware of, or have been considered.
4.3 All persons liable for removal or deportation will normally receive a section 120 notice at some point in the process. Once a notice has been served it will not be re-issued, however a person may be reminded of their ongoing duty.
4.4 A time limit may be specified on the section 120 notice however, once this limit has expired, a person is still under an ongoing duty to provide the SSHD with any new or additional reason or ground. If the time limit has expired, the SSHD must still consider the matter or grounds raised but may be able to certify any claim (see below).
4.5 The impact of a section 120 notice is significant. If a person fails to respond to a notice and then makes a claim later without good reason, if the claim is refused, it may be certified under section 96 of the 2002 Act with the consequence that there will not be a right of appeal. ...
5.6 Section 85(2–3) provides that the Tribunal should consider any matter raised in a one stop statement which constitutes a ground of appeal listed in s.84. However, if you have followed the advice in the previous chapter to include in your grounds of appeal general allegations to the effect that expulsion will violate the Refugee Convention and the ECHR, that will be sufficient to enable you to advance any asylum or human rights submissions. It is, though, very important if you are advising an individual who has not previously claimed asylum but instructs you that she fears return to her own country, that you raise asylum and human rights grounds in the one stop notice. The Upper Tribunal emphasised in Haque (s 86(2) – adjournment not required) Bangladesh  UKUT 00481 (IAC) that the First-tier Tribunal is bound to determine such grounds of appeal even if they are raised for the first time in the notice of appeal.
5.6A However, where the 2014 appeals provisions apply, amendments to s.85 now mean that where a 'new matter' is raised on appeal (whether in the grounds of appeal or in a one stop notice), the Tribunal may not consider that matter unless the Home Office gives its consent (s.85(5)). A 'new matter' is a matter which 'constitutes a ground of appeal of a kind listed in section 84' and which has not previously been considered by the Home Office (s.85(6)). Since under the 2014 appeals regime the grounds of appeal are limited to asylum, humanitarian protection and human rights (and in human rights appeals appear to be limited to human rights grounds), the real effect of this power for the Home Office to veto the Tribunal's consideration of a ground of appeal is likely to be for those appellants who raise new human rights arguments in an asylum appeal – for example, on Article 8 grounds.
5.6B The Modernised Guidance on Appeals includes the following guidance on the Home Office's power to withhold consent for a new matter to be raised:
Where a "new matter" is raised before an appeal hearing, for example in the grounds of appeal, the SSHD should endeavour to consider the matter before the appeal hearing. Depending on the way the matter is raised with the SSHD, the new matter may be identified only shortly before or at the hearing. Where the matter raised can be considered quickly, this should be done.
8.2 If more time is required to consider the matter and, for example, evidence is required or needs to be verified, the PO should indicate to the Tribunal that a new matter has been raised and the SSHD does not consent to that new matter being considered by the Tribunal. In order to make best use of Tribunal resources, an adjournment should be sought for the SSHD to consider the new matter, so that the appeal can consider all matters, but if the Tribunal does not agree to an adjournment the PO will have to consider what is the most appropriate way to proceed in the circumstances and will consider:-
(1) refusing consent on the new matter on the basis that the SSHD is unable to deal with the new matter without, for example, considering evidence or verifying documents;
(2) withdrawing the decision under appeal in accordance with guidance....
9.1 Consent should be given where the substance of the claim remains unchanged but the grounds of the appeal have changed. For example:
(i) where the appeal concerns the refusal of a protection claim, if Article 3 of ECHR is raised at appeal in relation to harm from the same actors as in the asylum claim.
(ii) where the appeal concerns the refusal of a human rights claim on the basis that a medical condition will breach Article 3 rights, if Article 8 is raised at appeal in relation to the same medical condition.
9.2 Withholding consent can delay the conclusion of the person's claim and consequently delay the grant of leave or efforts to remove the person from the UK so, consent should usually be given. However, unless there are exceptional circumstances (see para 8.4 below), consent should be refused if:
(i) It is necessary to verify facts or documents that are submitted in support of the new matter and these checks are material to the new matter;
(ii) The new matter comprises a protection claim and it has not already been confirmed that the UK is the responsible state for determining the claim;
(iii) If it is necessary to conduct additional checks such as a person's criminal conviction history or the status of impending prosecution.
9.3 Where consent would normally be withheld, consideration must be given to exceptional factors which may indicate consent should be given. Exceptional circumstances may include:
(i) a person has a serious illness and the appeal needs to be determined on an urgent basis.
(ii) the matter had been raised with the SSHD and, though no fault of the appellant, there has been more than six months delay in the SSHD considering the matter.
9.4 Where consent is refused, the SSHD will provide written reasons for refusing consent. The PO will require an SCW's approval of the letter before service.
If the new matter has been raised before the Tribunal hearing and if this has been considered by the SSHD in advance of the hearing then the revised decision will be sent in writing to the person and the Tribunal within 2 working days of the decision being made. If the new matter is considered within 2 working days of the hearing then the decision will be served no later than 4pm on the day before the hearing. If the new matter is raised at the Tribunal hearing, written reasons will be provided for refusing consent within 2 working days of the hearing. Decisions relating to consent will be served by Royal Mail Recorded Delivery unless considered the day before the hearing when the decision will be faxed to the person (person's representative) where possible, and to the Tribunal. ...
5.6C Where consent is refused and the appeal is subsequently dismissed, the Modernised Guidance envisages that the Home Office will then go on to consider the 'new matter'. It will consider whether it is able to make a decision on the basis of the information available, and 'direct' the applicant to make a charged application if appropriate or invite the submission of further information.
5.7 Any pure immigration grounds (i.e. those which raise neither asylum nor human rights issues) should be raised in response to a one stop notice. These are outside the scope of this text. The opportunities to obtain leave to enter/remain on non-human rights grounds are anyway likely to be limited for most asylum seekers.
5.8 For an asylum/human rights appellant, the main impact of the one stop procedure will be felt only if she seeks to bring a second appeal, or (where the 2014 appeals regime applies) to raise a new asylum or human rights claim in circumstances in which the Home Office might be able to argue that she has failed to raise the claim 'as soon as reasonably practicable', despite being under an ongoing duty to do so. You should ensure that you advise any client who has been served with a s. 120 notice of her ongoing duty to raise new matters as soon as reasonably practicable and the consequences of delay, including possible certification under s. 96 of the 2002 Act, which deprives them of any right of appeal against a new adverse decision.
5.9 Moreover, severe adverse consequences may apply to any dependant who does not raise an asylum or human rights ground in response to a s.120 notice. If they subsequently make a claim in their own right, the Home Office may issue a certificate under s.96 to deny them any appeal on the merits. If you are instructed by anyone affected by a s. 120 notice, you must take instructions on their individual circumstances if you have not already done so. If you are not instructed, you should advise your client of the risk and suggest that her dependants take advice.
5.10 In R (J) v SSHD  EWHC 705 (Admin), Stadlen J set out a four-stage process to be followed by the Home Office before certifying a claim under s. 96 in consequence of a failure to respond to a s. 120 notice: (1) the claimant must have had a previous right of appeal against another immigration decision, or have received a one-stop notice in connection with another immigration application; (2) the new claim must rely on a matter which should have been raised in the previous appeal or in response to the one-stop notice but was not; (3) the Home Office must "form the opinion that there is no satisfactory reason" for the matter not having been raised at the previous opportunity; and (4) the decision to certify is a discretionary one, so that the Home Office had to consider all the relevant factors and decide whether to certify. These will include the merits of the claim and the fact that it is an asylum or human rights claim means that in considering both the third and fourth questions, the decision-maker must apply anxious scrutiny to the issues before him.