Background
Rhian Bernard Guerrero, a national of Trinidad and Tobago, claimed asylum in the United Kingdom based on fear of persecution because of his sexual orientation. The Home Secretary refused the claim but, shortly afterward, issued him a Biometric Residence Permit stating that he had “Refugee Leave to Remain.” The Home Secretary later said that the permit had been issued because of a system error.
Guerrero lodged a protective appeal against the asylum refusal. Treating the permit’s validity as a preliminary issue, the First-tier Tribunal concluded that it amounted to a grant of leave and that section 104(4A) of the Nationality, Immigration and Asylum Act 2002 therefore required the asylum appeal to be treated as abandoned. On the Home Secretary’s appeal, the Upper Tribunal held that it had jurisdiction, ruled that the mistakenly issued permit did not grant leave, and remitted the protection appeal for rehearing.
The Court’s Holding
The Court of Appeal unanimously allowed Guerrero’s appeal. It held that the First-tier Tribunal’s ruling on abandonment was a “preliminary decision” within article 3(m) of the Appeals (Excluded Decisions) Order 2009 and therefore an excluded decision for which section 11 of the Tribunals, Courts and Enforcement Act 2007 conferred no right of appeal to the Upper Tribunal.
The ruling was preliminary because it preceded and did not address the substantive asylum issues—Guerrero’s sexual orientation and claimed risk of persecution in Trinidad and Tobago. Although the ruling ended the proceedings through deemed abandonment, that did not make it a final determination: section 104 distinguishes appeals that are finally determined from those that are withdrawn or abandoned. Because the Upper Tribunal lacked jurisdiction, its decision was ineffective and the First-tier Tribunal’s abandonment decision stood.
The Court did not decide whether the Biometric Residence Permit was legally valid or constituted a grant of leave. It held that addressing that second ground was unnecessary and inappropriate after resolving the jurisdiction issue.
Key Takeaways
- A First-tier Tribunal decision treating an immigration appeal as abandoned under section 104(4A) is a preliminary—and therefore excluded—decision under article 3(m) of the 2009 Order.
- A ruling may be preliminary even when its practical effect is to end the appeal; deemed abandonment is distinct from final determination of the appeal’s merits.
- The proper route to challenge such an excluded decision is judicial review, not an appeal to the Upper Tribunal under section 11 of the 2007 Act.
Why It Matters
The decision clarifies the boundary of the Upper Tribunal’s appellate jurisdiction in immigration cases. It confirms that jurisdiction turns on the legal character of the First-tier Tribunal’s decision, not simply on whether that decision brings proceedings to an end.
Parties seeking to challenge preliminary rulings on abandonment, timeliness, or comparable threshold issues must identify the correct procedural route. Here, because the Home Secretary had not brought a judicial-review claim and did not pursue a request for the Court of Appeal to determine the permit issue through an alternative route, the First-tier Tribunal’s decision remained in force.