MD Abdur Rahim v Secretary of State for the Home Department [2026] EWCA Civ 930
[2026] EWCA Civ 930Case No CA-2025-001466
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Bulpitt and Deputy Upper Tribunal Judge M. Walsh
UI-2021-000179
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20 July 2026
Before
LADY JUSTICE KINGLADY JUSTICE ANDREWSLADY JUSTICE ELISABETH LAING
Between
MR MD ABDUR RAHIMAppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondentAhmed Badar (instructed by Thamina Solicitors) for AppellantMatthew Howarth (instructed by the Treasury Solicitor) for RespondentHearing Hearing date: 30 June 2026Approved JudgmentThis judgment was handed down remotely at 10.00 am on 20 July 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
Introduction
[1]Arnold LJ gave the Appellant, Mr Rahim, permission to appeal to this court on one of his five grounds of appeal. Arnold LJ recognised both that the appeal raised an important question of law, and that it might well not succeed. That question concerns the relationship between various provisions of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’) which govern appeals to the tribunals. Those provisions are Part 5A, and sections 82, 84, 85 and 120. In this case, the concrete question concerns a human rights appeal against a decision of the Secretary of State in 2017 (‘the Decision’). In the Decision, the Secretary of State refused Mr Rahim’s application for indefinite leave to remain (‘ILR’). The question is whether the tribunal was obliged, many years later, at the hearing of that appeal on 24 March 2025, to take into account relationships between Mr Rahim and his partner (‘Bibi Ali’), and with their three children, A, B and C, who were born in 2018, 2019 and 2022 respectively, after the date of the Decision.[2]On this appeal Mr Rahim was represented by Mr Badar, and the Secretary of State by Mr Howarth. Mr Rahim’s skeleton argument was drafted by Mr Gajjar, who represented Mr Rahim below, and by Mr Badar. I thank counsel for their written and oral submissions. 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.[3]For the reasons given in this judgment, I would dismiss the appeal.
The relevant statutory provisions
[4]I will start with the statutory provisions.[5]Sections 82, 84 and 85 of the 2002 Act are in Part 5 of the 2002 Act. Section 82(1) of the 2002 Act gives a person (P) a right of appeal against three types of decision by the Secretary of State. One of those is a decision to refuse a ‘human rights claim made by P’ (section 82(1)(b)). ‘Human rights claim’ is defined in section 113, ‘unless a contrary intention appears’, as ‘a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom…would be unlawful under section 6 of the Human Rights Act 1998 (c 42) (public authority not to act contrary to Convention)’.[6]Section 84 is headed ‘Grounds of appeal’. An appeal under section 82(1)(b) must be brought on the ground (among others) that ‘the decision is unlawful under section 6 of the Human Rights Act 1998’ (‘the HRA’). Section 6 of the HRA is headed ‘Acts of public authorities’. Section 6(1) provides that it is unlawful for a public authority to ‘act in a way which is incompatible with a Convention right’.[7]Section 85 of the 2002 Act is headed ‘Matters to be considered’. An appeal under section 82(1) must be treated by the tribunal as including an appeal against any decision in respect of which an appellant has a right of appeal under section 82(1) (section 85(1)). If an appellant under section 84(1) makes a statement under section 120, the tribunal ‘shall consider any matter raised in the statement which constitutes a ground of appeal of a kind listed in section 84 against the decision appealed against’. Section 85(2) applies to a statement made under section 120 whether or not the statement was made before or after the commencement of the appeal (section 85(3)). Section 85(4) permits the tribunal, on an appeal under section 82(1), to consider ‘any matter which it thinks relevant to the substance of the decision, including a matter arising after the date of the decision’. Section 85(4) is subject to the proviso in section 85(5): the tribunal may not consider ‘a new matter unless the Secretary of State has given the tribunal concerned consent to do so’. Section 85(6) defines ‘new matter’. A matter is a ‘new matter’ if it constitutes a ground of appeal of a kind listed in section 84 and the Secretary of State ‘has not previously considered the matter in the context of –(i) the decision mentioned in section 82(1) or(ii) a statement made by the appellant under section 120’.[8]Section 120 is in Part 6 of the 2002 Act. Part 6 is headed ‘Immigration Procedure’. Section 120 is headed ‘Requirement to state additional grounds of application etc’. Section 120(2) applies to a person (P) if P has made a human rights claim (section 120(1)(a)). The Secretary of State or an immigration officer may serve a notice on P requiring him to provide a notice setting out his reasons for wanting to stay in the United Kingdom, any grounds on which he should be permitted to stay in the United Kingdom, and any grounds on which he should not be required to leave, or be removed from, the United Kingdom (section 82(2)). By section 120(4), section 120(5) applies to P if he has already been served with a notice under section 120(2) and P either requires leave to enter or remain in the United Kingdom but does not have it, or P has leave to enter or remain in the United Kingdom but only by virtue of section 3C of the Immigration Act 1971 (‘the 1971 Act’). Where P’s circumstances have changed since the Secretary of State or an immigration officer were last made aware of them, whether in an application or claim, or in a statement made under section 120(2), so that P has additional reasons for wanting to stay in the United Kingdom, or grounds on which he should be permitted to stay in the United Kingdom, or for which he should not be required to leave, or be removed from the United Kingdom, he 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’ (section 120(5)). The reference to ‘grounds’ is a reference to ‘the grounds on which an appeal under Part 5 may be brought (see section 84)’ (section 120(6)).[9]Part 5A of the 2002 Act was inserted by the Immigration Act 2014. It is headed ‘Article 8 of the ECHR: public interest considerations’. Section 117A is headed ‘Application of this Part’. Part 5A applies whenever a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person’s right to respect for private and family life under article 8 and as a result would be unlawful under section 6 of the HRA (section 117A(1)) (my emphasis). In considering ‘the public interest question’, the tribunal ‘must (in particular) have regard (a) in all cases, to the considerations listed in section 117B, and, in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C’ (section 117A(2)). The ‘public interest question’ is ‘the question whether an interference with a person’s right to respect for private and family life is justified under article 8(2)’ (section 117A(3)).[10]Section 117B(6) provides that if a person is not liable to deportation, the public interest does not require his removal where he has a genuine and subsisting parental relationship with a qualifying child and it would not be reasonable to expect the child to leave the United Kingdom. ‘Qualifying child’ is defined as ‘a person who is under the age of 18 and who(a) is a British citizen, or(b) who is settled in the United Kingdom (within the meaning of the Immigration Act 1971 – see section 33(2A) of that Act)’ (section 117D(1)).
Mr Rahim’s immigration history in outline
[11]I take the facts from determination 2, promulgated by the Upper Tribunal (Immigration and Asylum Chamber) (‘the UT’) on 9 January 2025, and from determination 3, promulgated on 7 April 2025. Mr Rahim came to the United Kingdom in 2007 with leave to enter as a student. In January 2011, he applied for his leave to remain to be extended. The Secretary of State granted that application and his leave to remain was extended until 30 August 2014.[12]On 25 October 2012, Mr Rahim applied for further leave to remain (‘application 1’). He had to show that he was proficient in the English language. He relied on a certificate which said that he had passed the Test of English for International Communication (‘TOEIC’). According to the relevant certificate, he had taken the TOEIC at the London College of Media and Technology (‘LCMT’) on 21 August 2012. The test was administered by the Educational Testing Service (‘ETS’). The Secretary of State granted application 1 and extended Mr Rahim’s leave until 11 October 2014.[13]Mr Rahim made a further application for leave to remain (‘application 2’) on 10 October 2014. The Secretary of State refused application 2 with a right of appeal. Mr Rahim appealed against that refusal (‘appeal 1’). His leave was extended by section 3C of the Immigration Act 1971 (‘the 1971 Act’) pending the determination of appeal 1.[14]While appeal 1 was pending, he applied for ILR (‘application 3’), on the grounds that he had, by then, lived lawfully in the United Kingdom for ten years. On 20 November 2017 the Secretary of State refused application 3 in the Decision, on the grounds that Mr Rahim had, in 2012, cheated in the TOEIC by using a proxy to take the test for him, and had, in application 1, relied on that test result. The Secretary of State decided that Mr Rahim had used deception to get a grant of leave to remain and that his continued presence in the United Kingdom was undesirable. See also paragraph 19, below, for the UT’s summary of the Secretary of State’s further reasoning about Mr Rahim’s fiancée.[15]Mr Rahim appealed again (‘appeal 2’). His grounds of appeal made general references to Convention rights, and to article 8 and to Appendix FM. Their gist, however, was that he had not cheated in the TOEIC. The only reference to a specific relationship was ‘Regarding the applicants [sic] fiancé [sic], as he confirmed us [sic] he will further information [sic] before the hearing’. Appeal 2 was heard 13 months later by the First-tier Tribunal (Immigration and Asylum Chamber) (‘the F-tT’). The issue on appeal 2 was whether or not Mr Rahim had used a proxy to take the TOEIC. In determination 1, promulgated on 4 January 2019, the F-tT found that Mr Rahim had used a proxy to take it, and dismissed appeal 2. The F-tT referred in paragraph 39 of determination 1 to Mr Rahim’s partner who was a failed asylum seeker who had exhausted her appeal rights and had no status, and to a ‘Bangladeshi child born in the UK who has no status’. Mr Rahim’s family life and private life was not ‘sufficiently serious to warrant his exclusion from the UK as being disproportionate…’ [sic] (paragraph 36) (see further, paragraph 37).[16]Mr Rahim applied to the F-tT for permission to appeal to the UT. When the F-tT refused that application, he applied to the UT. When the UT refused permission to appeal, he applied for judicial review of that refusal. When the Administrative Court refused permission to apply for judicial review of the refusal, he appealed to this court. I gave him permission to appeal. Appeal 2 was eventually remitted, by consent, to the UT.[17]Mr Rahim was represented by Mr Gajjar in the UT. The Secretary of State was represented by a Senior Home Office Presenting Officer. In determination 2, the UT held that the F-tT had, in determination 1, materially erred in law and set aside determination 1 (see paragraph 23 of determination 2). In determination 3, the UT remade the decision, and dismissed Mr Rahim’s appeal against the Decision.
The UT’s reasoning
[18]The UT described ‘The Issue’ in paragraphs 3-4 of determination 3. The Secretary of State’s case was that Mr Rahim used deception in application 1. The Secretary of State had made that assertion after an exposé by the BBC Panorama programme broadcast on 10 February 2014, which showed that cheating in the TOEIC (which was administered by ETS) was widespread. Mr Rahim’s case was that he had passed the TOEIC by sitting it himself and passing the relevant speaking and writing tests on 21 August 2012. The parties agreed on the appeal that the Secretary of State had the burden of showing that Mr Rahim had cheated and that the Secretary of State had to do so on the balance of probabilities. If the Secretary of State showed that Mr Rahim had cheated, any interference with his private and family life in the United Kingdom would be proportionate, as he would have failed to meet the suitability requirements for the leave he sought. If, on the other hand, the Secretary of State failed to show that Mr Rahim had cheated, his appeal would succeed, because he would have shown that he qualified for ILR. In that case, the Decision would be a disproportionate interference with his private and family life.[19]The UT said that the Decision had acknowledged that, in application 3, Mr Rahim had referred to his fiancée in the United Kingdom. He had, nevertheless, provided no evidence about her. The Secretary of State had said in the Decision that as Mr Rahim had not provided any such evidence, or told her about any parent or dependent children, the Secretary of State had not considered the family life rules in Appendix FM of the Immigration Rules (HC 395 as amended) (‘the Rules’) (paragraph 5).[20]Before the re-making hearing, Mr Rahim had served further evidence which included the birth certificates of three children whom, he said, he had had since the date of the Decision. The certificates recorded that the mother of those children was Bibi Ali. Mr Rahim said that she had been his partner for over ten years. He had also made an application for settlement on behalf of A.[21]The UT summarised the effect of section 120 of the 2002 Act. Mr Rahim acknowledged that he had not served a notice under section 120 in relation to Bibi Ali or the children. It followed that the Secretary of State had not considered those relationships in the Decision, or following any section 120 notice. Mr Gajjar agreed that those relationships were a ‘new matter’ for the purposes of section 85(6) of the 2002 Act. The effect of section 85(5) of the 2002 Act was that the UT could only consider them if the Secretary of State had given her consent (paragraph 8). The Senior Home Office Presenting Officer had refused that consent. He had pointed out that the evidence was very late, and the Secretary of State had not had the chance to investigate or to consider the new points (paragraph 9).[22]In paragraph 10 the UT described the evidence it had considered. Mr Rahim had taken a full part in the appeal, without an interpreter, and had given oral evidence (paragraph 11).[23]In paragraphs 12-18, the UT described the Secretary of State’s evidence of fraud. The BBC’s undercover reporters had found evidence of widespread fraud in centres operated by ETS. The BBC programme showed proxies taking the speaking part for candidates, and the answers to questions being read out in front of all the candidates. The Home Office began an investigation. In March 2014, ETS told the Home Office that, using voice recognition software, it had identified cases in which proxies had taken tests. An expert’s report suggested that the rate of false positives was ‘very substantially less than’ one per cent.[24]Mr Rahim’s results were a speaking score of 200 and a writing score of 190. ETS had recorded them as ‘invalid’, which meant that the same voice had been recorded as having taken the test for many different candidates. 159 tests were taken at LCMT on 21 August 2012. 131 were found to be ‘invalid’. 28 were found to be ‘questionable’. That meant that the tests about whether a proxy had been used were inconclusive. A report from a criminal investigation into abuse of the TOEIC showed that 43% of all the results of tests taken at LCMT were ‘invalid’. The rest (57%) were ‘questionable’. ETS audited TOEICs done at LCMT in May 2013. None of 47 candidates seen taking a test could give the auditor identification which satisfied the auditor that ‘pilots’ were not being used. All the results for that day were therefore cancelled. One candidate whose result was treated as invalid was later interviewed and admitted that a ‘pilot’ (that is to say, a proxy) had taken his test.[25]The UT commented that this evidence was ‘all old now’. After that evidence was produced, there had been criminal prosecutions. The UT described two in paragraph 16. The evidence had also been extensively considered in courts and tribunals over the years. The UT summarised the conclusions about that evidence which were expressed by a Presidential Panel of the UT in DK v RK (ETS SSHD evidence; proof (India)) [2022] UKUT 00112 (IA), and quoted paragraphs 126-129 of that determination. Briefly, that evidence showed that it was extremely unlikely that ETS had made any mistakes, or that anyone other than the candidates and the test centres had a motive to arrange for proxies to take the tests. If the evidence from ETS that a proxy had taken a test was not contradicted by ‘credible evidence’ in an individual case, it was ‘amply sufficient’ to prove that fact on the balance of probabilities. The UT disagreed in that respect with an earlier decision of the UT in which the UT had also assessed that evidence.[26]The UT in Mr Rahim’s case was therefore ‘satisfied…that the evidence adduced by’ the Secretary of State should be given ‘significant weight’. In the light of that ‘compelling evidence’ the UT considered it ‘highly probable’ that Mr Rahim had used a proxy to take his test. His results were ‘exceptionally high’. They had later been recorded as ‘invalid’ after ‘a robust system of checking’. None of the results from tests taken at LCMT on 21 August 2012 had been held to be reliable. The majority had been assessed to be invalid. That was ‘powerful evidence’ (paragraph 18).[27]The UT considered Mr Rahim’s explanation in paragraphs 19-21 of determination 3. Mr Rahim said he had taken the test himself. He relied on a witness statement he had made in 2018. He did not give much detail about the test in that statement. The UT summarised his answers in cross-examination in paragraph 19. In answers to questions from the UT, he had said that he had initially planned to take a City and Guilds test but had been running out of time as his visa was due to expire and so took the TOEIC instead. He had lost touch with the people who had recommended LCMT to him.[28]The UT acknowledged that the test had been a long time ago. The UT did not, therefore, expect a particularly detailed account from Mr Rahim. The UT nevertheless found his account to be ‘wilfully vague’. There was no supporting evidence of the kind the UT would have expected to see. The witness statement had been made closer to the time of the test but was ‘devoid of detail’. Mr Rahim had known about the allegation of cheating in 2017, but had done nothing to contradict the allegation, such as contacting LCMT, challenging them, collecting evidence that he had paid for the test, or travelled to the LCMT on the day, or getting a recording of his test. His partner had not given evidence in support of his appeal, even though he had been in a relationship with her at the time.[29]The focus of Mr Rahim’s witness statement and of his evidence in the hearing had been his education and the suggestion that his English had been so good that he would have had no reason to cheat with a proxy. That assertion did not recognise that ‘there are numerous reasons why a person who could pass a test might nevertheless decide to cheat and for that reason competence in English is not a reliable source of corroboration for [Mr Rahim’s] account of how he took the test’. That point had been made in paragraph 108 of DK and RK. The fact that his visa was to expire in August 2012 might explain why he was not willing to take the risk of doing a test ‘when presented with a fait accompli by using a proxy’. Not all of the evidence he relied on in support of his supposed ability to speak English inspired confidence (paragraph 21).[30]The UT’s conclusion was that Mr Rahim’s evidence ‘lack[ed] transparency’, was ‘wilfully vague’ and lacked support when supporting evidence, especially from his partner ‘could reasonably be expected. In contrast to that weak evidence, we found [the Secretary of State’s] evidence that [Mr Rahim] used a proxy for his test to be compelling, noting the high instances of fraud at LCMT, Mr Rahim’s] exceptionally high score and the highly probable conclusion reached following ETS testing that the voice records reveal that [Mr Rahim] used a proxy. Weighing all the evidence, we are satisfied that it is more likely than not that [Mr Rahim] obtained his TOEIC criterion by deception, using a proxy to take the test on his behalf’ (paragraph 22).[31]The Secretary of State’s decision to refuse application 3 was correct. Mr Rahim’s deception went ‘to the heart of the maintenance of immigration control’. The public interest in maintaining effective immigration control outweighed his article 8 right to respect for his private life (paragraph 23). The UT had not considered his family life with his children. That was a new matter, and the Secretary of State had refused her consent for the UT to do so.
The ground of appeal for which Mr Rahim has permission to appeal
[32]There is one ground of appeal. It is that the UT ‘erred in refusing to consider [Mr Rahim’s] qualifying child (which engaged section 117B(6) [of the 2002 Act])’. The ground of appeal suggests that there might be a conflict between the prohibition in section 85(5) of the 2002 Act and the ‘mandatory language’ of section 117A(1) and (2) of the 2002 Act.
Mr Rahim’s arguments
[33]A is now a ‘qualifying child’ for the purposes of section 117B(6) (and see section 117D(1)). Mr Rahim argues that the UT erred in law in not considering Mr Rahim’s relationship with A on the ground that this relationship was a ‘new matter’ and the Secretary of State had not given her consent for the UT to consider it in the appeal. Mr Rahim rightly accepts that the relationship is a ‘new matter’ as defined. He nevertheless says that it is important, in the context of the supposed statutory conflict on which he relies, that the F-tT considered Mr Rahim’s family life in paragraphs 36 and 37 of determination 1, and that the Secretary of State referred to article 8, twice to the best interests of any relevant child (there was none in existence at date of those pro forma statements), to Mr Rahim’s reliance on his relationship with his fiancée, and to the fact that the application had not been considered under Appendix FM.
Discussion
[34]Mr Rahim has essentially two arguments. The first is that there is a conflict between Part 5A, and in particular, section 117A(2), and the provisions of Part 5. The mandatory language of 117A(2) prevails over the procedural provisions of Part 5. The second is that, in any event, the Secretary of State did consider Mr Rahim’s family life in the Decision and the F-tT did consider it in determination 1.[35]I consider the statutory construction argument first. Mr Badar rightly accepted in his oral submissions that Parts 5 and 5A of the 2002 Act must be read as a whole. Both Parts of the 2002 Act make provisions about human rights appeals involving article 8 claims. Part 5 also makes provision about appeals relating to other Convention rights and protection claims (and protection status).[36]Part 5 is a detailed code. Its provisions govern the types of decision which can be appealed, the permitted grounds of appeal, and the matters which the tribunal has power to consider on such an appeal. One of the evident purposes of those provisions, and of section 120 and 85(4)-(6), in particular, is to ensure that the Secretary of State has an opportunity, over which she has complete control, to consider ‘new matters’ herself, before they go before the tribunal on an appeal. She is also able, if she so chooses, to permit the tribunal to consider a new matter on an appeal, even if she has not yet considered it herself.[37]Once that is accepted, it is clear that Part 5A always applies when a tribunal considers whether a decision breaches article 8. But the extent to which Part 5A will apply will depend on the procedural facts of the particular appeal, and, in particular, on whether a matter such as a relationship with a qualifying child has either been considered first by the Secretary of State before the appeal is heard, or, if not, is properly before the tribunal in the appeal in question with her consent, given under section 85(5).[38]In this appeal, Mr Rahim’s relationship with A was self-evidently a ‘new matter’ because A had not been born when the Decision was made. A was not in the Secretary of State’s line of sight when the Secretary of State made the Decision. No section 120 notice was ever served on Mr Rahim. As a result, there was no section 120 statement by him which the tribunal was required to consider on his appeal. Mr Rahim did not alert anyone to the existence of his three children until shortly before the hearing in the UT. As the Senior Home Office Presenting Officer rightly pointed out to the UT, the Secretary of State had had no opportunity to consider or to investigate this new material.[39]There are three answers to Mr Rahim’s reliance on paragraphs 36 and 37 of determination 1 (see paragraph 15, above) (and to his related reliance on material in the Decision).[40]The first is that the only potential legal relevance of this material is that it might tend to show that the Secretary of State and the F-tT had already considered the relationships on which Mr Rahim now relies. But that argument is flatly inconsistent with Mr Rahim’s concession that those relationships, or at least, the relationship which really matters for the purpose of the appeal, his relationship with A, are a ‘new matter’ for which the consent of the Secretary of State was needed.[41]The second follows from my conclusion that the tribunals could not, absent the consent of the Secretary of State, consider the aspects of Mr Rahim’s family life which had developed since the date of the Decision. Those matters were not properly before the F-tT. It therefore had no power to investigate or to make any binding findings about them.[42]The third, in any event, is that even if the F-tT had had power to consider those matters, the UT, in determination 2, set aside determination 1, so that it is, in any event, of no continuing legal effect and irrelevant to the issues on this appeal. None of those references can show that the relationship between Mr Rahim and children who had not been born when the Decision was made were somehow, nevertheless, taken into account in determination 1. Similar observations (making the appropriate changes) apply to Mr Rahim’s reliance on material in the Decision which referred to, but expressly did not consider, either, a relationship for which no evidence was provided, still less, non-existent but potentially future relationships.
Conclusion
[43]For those reasons, I would dismiss this appeal.[44]The fatal flaw in Ground 1 of the appeal is that when the scheme of the 2002 Act 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. Even when the tribunal is already considering a human rights appeal based on Art 8, it has no jurisdiction to determine any claim based on aspects of the appellant’s family life which are “new matters” as defined, unless the Secretary of State consents. 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. If Mr Rahim’s argument were accepted it would mean that Parliament intended the tribunal to be obliged to consider and determine matters that had not been considered by the Secretary of State despite her lack of consent to it doing so, which would deprive section 85 of all practical utility.[45]As to Ground 2, irrespective of the concession that this was a “new matter”, the Secretary of State cannot have considered Mr Rahim’s relationship with a qualifying child at a time when that child had not yet been born. Although there was an Art 8 private life claim before the F-tT at the time of Determination 1, and the child had been born by then, there was no family life claim, and any views expressed by the F-tT about a claim over which it had no jurisdiction cannot be a proper basis for founding jurisdiction at a later date, irrespective of whether Determination 1 was later set aside. The fact that Determination 1 was set aside puts the matter beyond argument. I therefore agree with Elisabeth Laing LJ that this appeal should be dismissed.[46]I agree with both judgments.