Secretary of State for the Home Department v Rhian Bernard Guerrero [2025] UKUT 276 (IAC)

[2025] UKUT 00276 (IAC)Guerrero (s104(4A); statutory abandonment; right of appeal)
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Venue Heard at Field HouseHearing Heard on 16 December 2024
THE IMMIGRATION ACTS
Promulgated on 26 February 2025
Before
MR JUSTICE DEXTER DIASUPPER TRIBUNAL JUDGE HIRST
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTAppellantRHIAN BERNARD GUERRERORespondent(NO ANONYMITY ORDER MADE)RespondentMr Hansen, counsel instructed by the Government Legal Department for AppellantMr Malik KC and Mr Mavrantonis, counsel instructed by Farani Taylor Solicitors for RespondentRight of Appeal – s104(4A) DecisionsDate 2025-02-26

Notice of Decision

[1]A judicial decision to treat an appeal as abandoned under s104(4A) of the Nationality, Immigration and Asylum Act 2002 is not an excluded decision under the Appeals (Excluded Decisions) Order 2009 (‘the 2009 Order’) and the Upper Tribunal has jurisdiction to consider an appeal against such a decision. Construction of the 2009 Order[2]The policy and object of the 2009 Order is clear from the words chosen to describe the categories of excluded decisions - ancillary, procedural, preliminary - which share similar qualities.[3]When determining whether a decision is excluded for the purposes of a right of appeal it is the substance of the decision that is crucial not the external or superficial label given to it.[4]Decisions excluded under article 3(m) of the 2009 Order are those that do not go to the substantive merits of the case, but are connected to and supportive of its passage through the tribunal appellate structure, and which do not determine the legal essence or substance of what the case is about.[5]A “preliminary” decision for the purposes of article 3(m) of the 2009 Order is a decision that precedes or is prior to the substantive decision, but does not decide the substantive legal merits of the case. Biometric Residence Permits and s104(4A)[6]A decision to grant leave to remain is legally distinct to the administrative act of issuing a residence permit. A biometric residence permit requires a prior decision to grant leave to remain. Although it may evidence a valid grant of leave to remain, a biometric residence permit does not itself constitute the grant of such leave: R (WA (Palestinian Territories)) v SSHD [2021] 1 WLR 2117.[7]Where a biometric residence permit has been issued in error, there is no grant of leave to remain such that a pending appeal falls to be treated as abandoned under s104(4A) Nationality, Immigration and Asylum Act 2002. DECISION AND REASONS

I. Introduction

[1]The Secretary of State (“Appellant”) appeals from the decision of the First Tier Tribunal dated 7 March 2024 that the protection appeal of Rhian Bernard Guerrero (“Respondent”) should be treated as abandoned pursuant to section 104(4A) of the Nationality, Immigration and Asylum Act 2002 (“NIAA 2002”).[2]There are two issues in this appeal: Issue 1. Whether the Upper Tribunal has jurisdiction to determine the appeal, or whether the appeal is from an “excluded decision” as defined in section 11(5)(f) of the Tribunals, Courts and Enforcement Act 2007 (“TCEA 2007”) and article 3(m) of the Appeals (Excluded Decisions) Order 2009; Issue 2. If the Upper Tribunal has jurisdiction to determine the appeal, whether the First Tier Tribunal erred in law in determining that the Respondent’s appeal should be treated as abandoned under section 104(4A) of the NIAA 2002.

II. Background to the appeal

[3]The Respondent is a national of Trinidad and Tobago. He entered the UK with leave as a visitor in September 2020. On 5 January 2021 he claimed asylum.[4]By letter dated 11 August 2023, the Appellant refused the Respondent’s asylum claim with an in-country right of appeal. The refusal letter was received by the Respondent on 16 August 2023.[5]On 17 August 2023, the Appellant issued a Biometric Residence Permit (“BRP”) to the Respondent which he received on 24 August 2023. On its face the BRP stated “Type of permit: Refugee leave to remain” and was valid until 31 December 2024. The BRP was accompanied by a proforma letter, which stated inter alia that the Respondent was required to check that the details on it were correct and to contact the Home Office if there were errors.[6]Five days later, on 29 August 2023, the Respondent lodged an appeal with the First Tier Tribunal under section 82 of the NIAA 2002 against the decision to refuse his asylum claim. The Respondent’s grounds of appeal, which were drafted by counsel, stated that his position was that the BRP constituted a grant of leave to remain, but in any event his appeal was lodged protectively to enable judicial resolution of the issue.[7]On 16 November 2023, in response to a direction from the First Tier Tribunal requiring the Appellant to clarify her position on the validity or otherwise of the BRP, the Appellant wrote to the Respondent stating, so far as is relevant: “The Home Office made the decision to Refuse Asylum with a right of appeal on 11 August 2023. However, it has been brought to our attention a BRP card has also been issued to your client stating they have been granted leave to stay in the UK. The issue of the BRP card has unfortunately been due to a system error and we apologise for any inconvenience this has caused. The BRP card will require cancellation and returning to the Home Office. The Home Office position of the decision made 11 August 2023 of refusing the claim stands, with the right of appeals process. Following appeals process if your client is to be granted any form of leave, subsequent arrangement would be made for a new BRP card to be produced.” [sic][8]The appeal came before the First Tier Tribunal on 26 February 2024. At the hearing, the parties were agreed that the Tribunal should determine as a preliminary issue whether the BRP constituted a grant of leave to remain under section 4 of the Immigration Act 1971 (the “IA 1971” or the “1971 Act”). If it constituted or was evidence of a grant of leave, then the appeal fell to be treated as abandoned under section 104(4A) of the NIAA 2002. Alternatively, if the BRP were invalid, then the Respondent’s appeal should proceed to a substantive hearing and determination on the merits.[9]The decision of the First Tier Tribunal was headed “Decision on validity of appeal and reasons (preliminary issue)”. The judge found [§27] that the BRP was an effective grant of leave to remain and that there was no further decision to revoke or cancel that leave which could constitute an appealable decision. He therefore concluded that the Respondent’s appeal was to be treated as abandoned under section 104(4A) of the NIAA 2002.[10]The Appellant applied for permission to appeal to the Upper Tribunal, which was granted on 2 April 2024.[11]The appeal came before us at an error of law hearing on 16 December 2024 at which, having heard submissions from the parties, we reserved our decision. Following the hearing, we invited further submissions from the parties on the issue of whether section 104(4A) of the NIAA 2002 applied where, as in this case, an appeal was instituted after a grant of leave to enter or remain. In response, counsel prepared an agreed note dated 22 January 2025 in which it was common ground that the Upper Tribunal was not required to determine that issue. We have therefore determined the appeal on the basis on which it was argued before the First-tier Tribunal and before us, namely that section 104(4A) was potentially engaged.[12]We are grateful to counsel for their oral and written submissions. III. Issue 1: Does the Upper Tribunal have jurisdiction?

Statutory framework

[13]Section 11(1) of the TCEA 2007 provides:
“(1) For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision.”
[14]Section 11(5) sets out categories of decisions which are “excluded decisions” for the purposes of subsection 1, which include:
“(f) any decision of the First-tier Tribunal that is of a description specified in an order made by the Lord Chancellor.”
[15]The relevant order for the purposes of section 11(5)(f) of the TCEA 2007 is the Appeals (Excluded Decisions) Order 2009 (“the 2009 Order”). Article 3 of the 2009 Order sets out a list of categories of excluded decisions, including:
“(m) any procedural, ancillary or preliminary decision made in relation to an appeal against a decision under section 40A of the British Nationality Act 1981 or section 82 of the Nationality, Immigration and Asylum Act 2002”
[16]The position under TCEA 2007 and the 2009 Order is therefore that no right of appeal to the Upper Tribunal lies from a decision by the First Tier Tribunal which is a “procedural, ancillary or preliminary decision” made in relation to an appeal. In fact, the issue in this appeal is narrower, as the Respondent’s case is that the First-tier Tribunal’s decision on jurisdiction is a “preliminary” decision, rather than a procedural or ancillary one.[17]Neither TCEA 2007 nor the 2009 Order define what “preliminary” means. The 2009 Order is delegated legislation and conventional rules of statutory interpretation apply to the interpretation of its meaning, as Bennion Bailey and Norbury on Statutory Interpretation (8th Edn, 2020) (“Bennion”) makes clear at [3.17]:
“The general principles of interpretation that apply to Acts apply equally to delegated legislation, but with the additional consideration that since delegated legislation derives its authority from the enabling Act it must be interpreted in light of that Act.”
[18]While there are known to be multiple principles of statutory interpretation, there are four principles of particular relevance to the act of interpretation in this case: i. Principle 1: ordinary words should be given ordinary meaning (R (The Good Law Project) v Electoral Commission [2017] EWHC 2414 (“Good Law Project”)); ii. Principle 2: words should be interpreted in their context (R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349 (“Spath Holme”)); iii. Principle 3: words should be interpreted to give effect to Parliament’s purpose (R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687 (“Quintavalle”)); iv. Principle 4: interpretations that produce absurdity should be avoided (Project Blue Ltd v HMRC 2 [2018] UKSC 30 (“Project Blue”)).[19]We consider each of these principles in turn before providing our conclusion on jurisdiction.

Principle 1: Ordinary meaning of words

[20]A conventional starting-point of statutory interpretation is to give words their ordinary and natural meaning, without becoming enslaved to literalism at the expense of context and objects (see Bennion at §22.1). Where there is more than one ordinary meaning, the most common and well-established meaning is to be preferred, unless other interpretative criteria, including the purpose of the enactment and the context, indicate that another meaning is more apt.[21]A recent expression of this principle comes from Leggatt LJ (as he then was) in Good Law Project at §33: “The basic principles are that the words of the statute should be interpreted in the sense which best reflects their ordinary and natural meaning and accords with the purposes of the legislation.’’[22]It is the latter part of the sentence that can easily be overlooked. The proper approach is to examine meaning within context – the contextual purposive approach. In Kostal UK Ltd v Dunkley [2021] UKSC 47, Lady Arden and Lord Burrows explain at §109:
“The modern approach to statutory interpretation requires the courts to ascertain the meaning of the words in a statute in the light of their context and purpose.”
[23]Such an approach tempers the instinct to reach for the dictionary and string together a series of literal meanings. That cannot do. In a contractual context, this has long been known, as Lord Hoffmann famously noted in his speech in Investors Compensation Scheme v West Bromwich Building Society [1998] 1 WLR 896:
“The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean.”
[24]Therefore, we turn to the dictionary definition(s) of “preliminary” with those cautionary words at the forefront of our thoughts. The Oxford English Dictionary (“OED”) defines preliminary as follows:
“Preceding and leading up to the main subject or business; introductory; preparatory”
[25]To effect a crude taxonomy, there are two distinct meanings of preliminary in normal and ordinary usage. First, a meaning that relates to timing. Here, preliminary means early or initial; the sense is chronological. Giving this purely chronological meaning to “preliminary” in the 2009 Order would increase uncertainty, since whether a right of appeal arose from a decision would depend purely on whether the decision was taken at the outset of proceedings or during the proceedings.[26]The second meaning of “preliminary” in ordinary usage is to do with relationship or connection. Here, “preliminary” indicates the relationship between the preliminary thing and what comes after it. Here the question is precursory to what; prior to what; preceding what.[27]If the second sense were the intended meaning of “preliminary” under the 2009 Order, the question would be what the decision is precursory or prior to - what it precedes. The answer to that question must be the decision on the substantive merits of the case as against a decision not related to the core legal merits. It is noteworthy that the antonym mentioned in the OED is “concluding”.[28]Support for the second interpretation comes from Singh v Secretary of State for the Home Department [2014] EWCA Civ 438 (“Singh”), an authority relied on by the Respondent which is primarily concerned with whether a decision not to make a fee award following an appeal is an “ancillary” decision and hence excluded from onward appeal by the 2009 Order. The principal submission of the appellant in Singh was that article 3(m) of the 2009 Order was ultra vires section 11(5)(f) of the TCEA 2007 because Parliament had intended a clear and fixed list of specified decisions excluded by an order rather than categories or classes of decision. The fallback submission was that a fee decision formed part of the Tribunal’s overall decision on the merits of the appeal, and hence was not ‘ancillary’ on the true construction of article 3. The Court of Appeal rejected both submissions, Sharp LJ on behalf of the court stating [from §19]:
“19. I agree with the Upper Tribunal’s well-expressed reasons for rejecting those arguments. In my view, the Appellant’s arguments on vires are contradicted by the clear language of the statutory provisions to which I have referred. Section 11 of the 2007 Act provides for a right of appeal on a point of law from the First-tier Tribunal to the Upper Tribunal, but that right is subject to exceptions, including by section 11(5)(e) “any decision that of the First-tier Tribunal that is of a description specified in an order made by the Lord Chancellor”
. Article 3(m) of the Excluded Decisions Order clearly does specify descriptions of excluded decisions, i.e. “any procedural, ancillary or preliminary decision made in relation to an appeal against a decision under section 40A of the British Nationality Act 1981, section 82, 83 or 83A of the Nationality, Immigration and Asylum Act 2002.” It is obvious from the language of section 11(5)(f) therefore that Parliament did intend that further orders should be made which specified decisions in respect of which there would be no right of appeal, and I do not accept the scope of that provision is restricted (or “coloured” as the Upper Tribunal put it) by the other matters specified in section 11(5) in the way suggested by the Appellant. The fact that a class of decision is described in Article 3(m), rather a particular decision, does not mean that the provision is either vague or lacks certainty, and I do not accept it is correct to characterise the language of Article 3(m) in that way. 20. I also do not accept the Appellant’s alternative argument that the Upper Tribunal was wrong to conclude the fee decision was an ancillary decision. If a court or tribunal has to make an adjudication on costs after determining an appeal, its costs decision will normally, but not necessarily depend on its view of the merits of the appeal. That does not mean however that the costs decision is part of the substantive decision on the merits: as a matter of ordinary language, it is obviously ancillary to it, in the sense that it is a separate but connected matter which requires to be determined to dispose of the proceedings. It follows that the First-tier Tribunal’s (ancillary) decision not to make a fee award in respect of the Appellant’s appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 fell squarely within Article 3(m) of the Excluded Decisions Order, and cannot be appealed.”[29]Thus the opposition identified by the Court of Appeal is between decisions that are ancillary and decisions that are substantive on the merits of the appeal. Singh does not assist the Respondent; on the contrary, it undermines his central argument on jurisdiction.[30]Further support for the second meaning of “preliminary” comes from VOM (Error of law: when appealable) Nigeria [2016] UKUT 00410 (IAC) (“VOM”). VOM is concerned with appeal rights from the Upper Tribunal to the Court of Appeal under sections 12 and 13 of the TCEA 2007, where the First-tier Tribunal had dismissed a deportation appeal under the Immigration Rules and article 3 ECHR but allowed the appeal under article 8 ECHR. Both VOM and the Secretary of State were granted permission to appeal to the Upper Tribunal. Following an error of law hearing, the Upper Tribunal set aside the determination of the First-tier Tribunal in relation to the Immigration Rules but did not set aside the decision on article 3. VOM then applied for permission to appeal the Upper Tribunal’s set aside decision.[31]Although the question in VOM was whether there was a right of appeal from the Upper Tribunal to the Court of Appeal, rather than from the First-tier Tribunal to the Upper Tribunal, the 2009 Order applies equally to both tiers. The Upper Tribunal in VOM stated at §32:
“32. Article 3(m) excludes ‘any procedural, ancillary or preliminary’ decision made in relation to an appeal. We consider that there are good reasons for categorising the steps so far taken by the UT in this appeal as having the characteristics not merely of one but of all three of those categories. They are ‘procedural’ because they are part of the statutory procedure prescribed by s 12 and do not finally determine the merits of the appeal. They are ‘ancillary’ because they provide necessary support to the prime task of ‘deciding an appeal under s 11 (see s 12(1)), an adjunct to the central and ultimate task of the UT. They are ‘preliminary’ because they have to be made at an early rather than late stage of the process, necessarily preceding the performance of the ultimate task of the UT. If there were any doubt about their exclusion, we would pray in aid the same reasoning that we have deployed earlier: if these are ‘decisions’ there is no good reason to interpret the 2009 Order so as not to have them ‘excluded’ and there are very good reasons for interpreting the Order as excluding them from any right of appeal.”
[32]The Upper Tribunal’s interpretation in VOM of “preliminary” as “preceding the performance of the ultimate task of the UT” is consistent with Singh, particularly when the Upper Tribunal distinguishes excluded decisions from decisions that “finally determine the merits of the appeal”. The Upper Tribunal stated at para 25:
“… We consider that the combination of principles and imperatives identified above impel overwhelmingly to the conclusion that Parliament cannot have intended to establish a right to seek permission to appeal to the Court of Appeal against an intermediate decision of this genre. This intermediate decision will, ultimately, merge with the final decision of the UT, thereby generating a composite decision and it will be open to the Appellant to seek to challenge any aspect thereof if so advised.”
[33]VOM therefore draws a distinction between the “final” decision on an appeal, that is, the resolution of the central legal issue, which will be accompanied by a right of appeal, and an “intermediate” decision, which usually will not be.

Principle 2: Context

[34]Lord Nicholls stated in Spath Holme at §396 that:
“Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context.”
[35]The term “preliminary” in article 3(m) of the 2009 Order gains colour not simply generally from the Order - and indeed the delegating statute (TCEA 2007) - but from the words immediately surrounding words in article 3(m): “ancillary” and “procedural”.[36]As noted, the Court of Appeal held in Singh that costs decisions are ancillary. We perceive “procedural decisions” to include classic case management decisions, such as whether to adjourn a hearing or admit (or exclude) certain evidence from it, whether to conduct a hearing remotely, or whether to continue in the absence of a party.[37]What is characteristic about costs decisions and case management decisions - the ancillary and the procedural - is that they generally involve exercises of the court’s discretion. There is a sharp contrast between such a decision and a hard-edged decision of law. A decision as to whether the Tribunal has jurisdiction to hear an appeal (in this case, whether the appeal fell to be treated as abandoned under section 104(4A) of the NIAA 2002) is a question of law, not a question of discretion.[38]It is here that one can better assess the Respondent’s submission that there are dispositive decisions that are also preliminary. Indeed, the Respondent raised the further argument that if the Secretary of State’s case really was that dispositive decisions should be challengeable on appeal to the Upper Tribunal, there would be a plethora of further decisions going up to the Upper Tribunal.[39]Taking that second argument first, it is essentially a floodgates argument, advanced in terrorem. Such issues are usually a matter of policy, subject to interpretations of the instrument that contravene the ascertainable legislative purpose. What seems to us to be important is to retain focus on the intrinsic quality of the decision under examination.[40]The particular example of a dispositive decision liable to open floodgates cited by the Respondent in argument was a decision not to extend time to admit a late notice of appeal. That refusal would be terminatory (termed “dispositive”) and is not subject to appeal to the Upper Tribunal. Mr Malik asked, principally rhetorically, whether the Secretary of State really wanted such decisions to become open to appeal to the Upper Tribunal.[41]In fact, this example perfectly illustrates the true distinction of principle. A refusal to extend time is quintessentially procedural. It engages the case management discretion of the court. It does not go to the merits of the case, although the importance and significance of the case is a factor to weigh. Primarily, it examines the reason for delay and the relative prejudice to the parties by granting the application. Such a decision on whether to extend time has two qualities:(1) it is procedural, and(2) it is discretionary. There is a sharp contrast between such a decision and a ruling on the legal status and effect of a document like the BRP. That is a pure decision of law which goes to the heart of the case. It involves no discretion. It would be surprising indeed if such a central and pivotal decision on the law - pivotal in the literal sense of the case pivoting fundamentally one way or the other on the outcome - should not be precisely that kind of potential error of law that the tribunal appeal structure with direct remedy by way of appeal to the Upper Tribunal was designed to correct.[42]This view is reinforced by the third rule of statutory interpretation.

Principle 3: Policy and object

[43]In Quintavalle, Lord Bingham stated at §8:
“The court’s task, within the permissible bounds of interpretation, is to give effect to Parliament’s purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment.”
[44]The whole legislative objective of creating a tribunal appellate structure in TCEA 2007 was to provide a tribunal-centred route to appeal first instance tribunal errors of law, save for excluded decisions. That much is clear from section 11 of the Act. This animating objective driving the creation of the modern tribunal system was touched on by the Upper Tribunal in VOM at §17, where the Upper Tribunal noted that the statutory appellate structure was clearly intended to provide an alternative to judicial review.[45]In this case, there is nothing to indicate that an appeal on an error of law to the Upper Tribunal would not provide an adequate remedy. No such argument was placed before us. We find that appeal to the Upper Tribunal on such an error of law is plainly and obviously an adequate remedy.[46]We now reach the timing question, which must be viewed in the context of there being an adequate alternative remedy available.

Principle 4: Absurdity

[47]The principle of avoiding absurdity is stated in Bennion at para 13.1:
“The court seeks to avoid a construction that produces an absurd result, since this is unlikely to have been intended by the legislature.”
[48]This principle of interpretation has been repeatedly emphasised by the higher courts, including recently by the Supreme Court in Project Blue, where Lord Hodge said at §31:
“it is without question a legitimate method of purposive statutory construction that one should seek to avoid absurd or unlikely results.”
[49]It is accepted by the Respondent, to our mind correctly, that in determining whether a decision is excluded by article 3(m) of the 2009 Order, what is important is the substance of the decision rather than the label placed on it by the Tribunal. However, that is at odds with the Respondent’s submission that a decision which is taken at the outset of a hearing is “preliminary”, and hence excluded from appeal. We fail to see how logically the substance of a decision changes contingent upon when that decision is taken.[50]It is noteworthy that the Respondent cites and relies on the heading of the First-tier Tribunal’s decision and cites it at para 9 of the Respondent’s skeleton argument:
“The FTT’s ruling, by its heading, explained its nature: ‘Decision on validity of appeal and reason (preliminary issue)’”
[51]The First-tier Tribunal’s reference to a “preliminary issue” is likely to refer to rule 4 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. Rule 4 provides as relevant:
“Case management powers 4.-(1) Subject to the provisions of the 2007 Act and any other enactment, the Tribunal may regulate its own procedure. … (3) In particular, and without restricting the general powers in paragraphs (1) and (2), the Tribunal may- … (e) provide for a particular matter to be dealt with as a preliminary issue”
[52]The consequence of the Respondent’s position is that if a decision of law fundamentally connected to the legal substance and merits of a decision were taken as a “preliminary issue” under rule 4(3)(e) on the first day of, say, a two-day hearing, it would not be appealable as an error of law. That would be because it was labelled as “preliminary” and dealt with as a “preliminary issue”.[53]However, to continue the analysis, if precisely the same decision were reached for exactly the same reasons at the end of the substantive hearing the next day, it would be appealable to the Upper Tribunal as an error of law. This creates obvious and avoidable absurdity. We cannot believe this was the legislative purpose when enacting the statute and empowering the creation of subordinate procedural rules. We accept the principle that one must evaluate purpose objectively. It cannot have been the legislative purpose of the 2009 Order to increase uncertainty over appeal rights; this would run contrary to the scheme and objects of the 2007 Act.[54]We detect no rational reason why a decision on the true legal substance of a case, if taken as a matter of good and prudent case management at an earlier stage to avoid as here unnecessary further evidence and hearing, is excluded from the statutory appellate scheme designed and enacted to create a direct appeal route within the tribunal structure for errors of law, but instead must be diverted into what is the remedy of last resort, judicial review.[55]We cannot accept the Respondent’s submission that whether a decision is preliminary depends on the chronological stage in proceedings which the decision is taken (“its nature”, as counsel put it). We reject the Respondent’s interpretation of JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78 and submission that it supports such a claim. Indeed, para 8 of the judgment makes clear that “no good reason of principle or policy” exists to exclude a decision on jurisdiction, at whatever stage made, from appeal.

Conclusion: Issue 1 - jurisdiction

[56]We reject the Respondent’s submission that the Appellant’s case necessitates this court’s “rewriting of the legislation”. It does not. The true meaning of a “preliminary” excluded decision for the purposes of the 2009 Order is ascertainable by the application of conventional principles of statutory interpretation to construe the word in context and in light of the objects.[57]Our conclusion on jurisdiction is as follows: i. The policy and object of the 2009 Order is clear from the words chosen to describe the categories of excluded decisions viewed harmoniously together - ancillary, procedural, preliminary - which share similar qualities. The true meaning is given colour by the surrounding and neighbouring words, and ascertainable through a contextual and purposive approach; ii. It is the substance of a decision that is crucial not the external or superficial label given it; iii. Decisions excluded under article 3(m) are those that do not go to the substantive merits of the case, but are connected to and supportive of its passage through the tribunal appellate structure, and which do not determine the legal essence or substance of what the case is about; iv. A “preliminary” decision for the purposes of article 3(m) of the 2009 Order is a decision that precedes or is prior to the substantive decision, but does not decide the substantive legal merits of the case.[58]The First-tier Tribunal’s decision whether an appeal should be treated as abandoned under section 104(4A) of the NIAA 2002 is a decision that determines the substance of the appeal. The decision is a hard-edged legal decision which goes to the jurisdiction of the First-tier Tribunal and does not involve an exercise of the court’s discretion (cf. R v Monopolies & Mergers Commission, ex parte South Yorkshire Transport Ltd [1993] 1 WLR 23, per Lord Mustill at 32D-F). Therefore, the decision is not a “preliminary” decision for the purposes of article 3(m) and it is not an excluded decision under the 2009 Order for this reason or any other.[59]Therefore, the Upper Tribunal has jurisdiction to consider the appeal and must determine whether the First-tier Tribunal’s decision that the Respondent’s appeal should be treated as abandoned by reason of the issue of the BRP involved the making of an error of law.[60]It is to this second question that we now turn. IV. Issue 2 – Did the First-tier Tribunal err in law? Legal framework

IV. Issue 2 – Did the First-tier Tribunal err in law?

[61]Section 3(1)(b) the IA 1971 confers a discretionary power on the Secretary of State to grant leave to enter or remain to persons who are not British citizens. The power is broad and the Secretary of State retains the discretion to grant leave to enter or remain where an individual does not meet the requirements of the Immigration Rules (Munir v SSHD [2012] UKSC 32 at §44).[62]Section 4(1) of the IA 1971 specifies that the power to grant leave to enter or remain, or to vary leave, “shall be exercised by notice in writing given to the person affected”. Although the Act is silent as to what constitutes “notice in writing” or what form such notice should take, written notice of some immigration decisions is governed by the Immigration (Notices) Regulations 2003 (SI 2003/658) (“the Notices Regulations”). Regulation 4 of the Notices Regulations requires written notice of any decision appealable under section 82(1) of the NIAA 2002. Regulation 5 specifies the content of such a notice, including that it must include or be accompanied by a statement of the reasons for the decision to which it relates, and must be accompanied by a statement advising the individual concerned of any right of appeal.[63]An application for asylum or humanitarian protection will be “granted” where the individual meets the criteria set out in Part 11 of the Immigration Rules. Although it is common to refer to the “grant” of asylum (and that is the wording used in Part 11 of the Rules), refugee status is declaratory: the successful asylum applicant is recognised as a refugee. The recognition of refugee status does not in and of itself confer leave to remain in the UK, but paragraph 335 of the Immigration Rules provides that a successful applicant will be granted limited leave to remain or have existing leave varied. The refusal of an asylum or humanitarian protection claim is a decision which attracts a right of appeal under section 82(1) of the NIAA 2002 and is therefore one to which Regulations 4 and 5 of the Notices Regulations apply.[64]The issue of biometric residence permits is governed by The Immigration (Biometric Registration) Regulations 2008 (SI 2008/3048) (“the Biometric Regulations”). Regulation 13(1) provides, so far as relevant:
“The Secretary of State may issue a biometric immigration document to a person who has applied in accordance with regulation 3, provided the Secretary of State has decided to — (a) grant limited leave to enter or remain to the person for a period which, together with any preceding period of leave to enter or remain, exceeds a cumulative total of 6 months leave in the United Kingdom…”
[65]Section 104(4A) of the NIAA 2002 provides:
“An appeal under section 82(1) brought by a person while he is in the United Kingdom shall be treated as abandoned if the Appellant is granted leave to enter or remain in the United Kingdom (subject to subsection 4B).”
Subsection 4B provides for an Appellant’s notice that he wishes to pursue an appeal on protection grounds following the grant of leave, and is not relevant to this appeal.

Discussion

[66]The Respondent makes two arguments:(1) that there is no evidence that the BRP was issued in error; and(2) in any event, the issuing of the BRP in itself was either a grant of leave or evidence of the valid grant of leave to remain.[67]The essential background to the analysis is Regulation 13 of the Biometric Regulations, which governs the issuing of a BRP. In the provision, the critical word is “provided”, which clearly entails that the power to validly issue a BRP requires that a pre-existing condition be satisfied. That condition is that the Secretary of State has “decided to grant limited leave to remain to the person”.[68]We deal in turn with each of the two arguments. (1). Was there evidence that the BRP was issued in error?[69]First, one must consider the Respondent’s submission initially advanced in writing and then maintained at the outset of oral submissions that there is “no evidence” that the Appellant had issued the BRP in error.[70]The November letter, imperfect though it may have been in the eyes of the judge, made it absolutely plain that the BRP had been issued in error. There is no other rational way to read the letter. It is true that the Appellant did not file evidence before this court with a statement of truth confirming the Secretary of State’s issuing error. That might have been preferable. But it is unnecessary. As Mr Malik accepted on query from the court, the evidence in a case must be read as a whole, in a fair and reasonable rather than artificially mechanistic way, and reasonable inferences can be drawn from it. Here divining the true picture is the work of but a few minutes.[71]The refusal letter is substantial and detailed. It runs in the appeal bundle from pp. 51-59. The Secretary of State refused leave on all grounds. The letter begins in bold font:
“Your protection claim (asylum application) made on 5 January 2021 has been refused.”
[72]Having directly referred to the application for refugee status, humanitarian protection and permission to stay on a discretionary basis due to private and family life, the Secretary of State stated through her official:
“I am not satisfied that you qualify for permission to stay in the United Kingdom (UK) on any of these grounds.”
[73]The Respondent feared persecution in Trinidad and Tobago due to his sexual orientation, but it was pointed out that same-sex activity was decriminalised in the country in 2018. The Secretary of State concluded that while prejudicial attitudes remained, it was possible to live openly as an LGB person in his home country. Therefore:
“You do not have a well-founded fear of persecution and [do] not qualify for asylum.”
[74]Next, similar factors were considered to see if a humanitarian claim under para 339C of the Immigration Rules was made out. The Respondent was told it was not. A similar analysis of the article 8 ECHR claim was made. The paragraphs of the Immigration Rules he failed to satisfy were spelled out (paras 276ADE-276CE) with the conclusion that:
“I am satisfied that removing you from, or requiring you to leave, the UK would not be contrary to Article 8.”
[75]The Respondent was further informed that “You do not qualify for discretionary leave.” He was told that the medical treatment he needed was not only available in Trinidad and Tobago, but he had previously received it there. This was all evidence before the First-tier Tribunal. The refusal letter was received by the Respondent’s solicitors on 16 August and the BRP was issued on 17 August with no intervening change of circumstances. There is a strong inference that given the detailed, carefully argued and firm terms of the Secretary of State’s refusal letter, there would need to be some factual basis for such a sudden change of heart if there were a genuinely and validly different decision to grant leave to remain.[76]In oral argument, Mr Malik at first resolutely maintained that the “prime difficulty for the Appellant was one of fact” because the judge had rejected the Appellant’s argument that the BRP had been issued in error. When the court asked Mr Malik, given the terms of the refusal letter, on what basis he said the Secretary of State had “decided” (for regulation 13 purposes) to grant refugee status and leave, he replied, “I don’t know what the Secretary of State accepted or rejected when granting refugee status”. Counsel’s difficulties arise from the strong and irresistible inference that refugee status and leave had not been granted, but refused and remained refused, and a permit issued in error. This inference is strengthened from the lack of any subsequent explanation from the Secretary of State after the issue of the BRP and the November letter stating unmistakably that there had been an issuing error. Counsel accepts that the November letter indeed qualifies as “evidence”. Therefore, counsel accepted that there was indeed “evidence”, should this court accept it, that the BRP has been issued in error. Mr Malik’s fallback submission was that it is “immaterial” whether the BRP had been issued in error, which we address further from paragraph 90 below.[77]We consider that it is obvious and frankly beyond sensible argument that the BRP was issued in error. In light of this blinding reality, one cannot credibly state that the Secretary of State “decided” to grant leave. In fact, she informed the Respondent in August and November 2023 that precisely the opposite was the case. It is for that reason that in the “Findings” section of the FTT judgment,

the judge said in terms at para 26:

“I am satisfied that having received the SSHD’s full reasons for refusal of his asylum claim and indeed subsequently lodging notice of appeal against that decision, the Appellant can have been in no doubt that the SSHD did not intend to issue him with the BRP.”
[78]If, as the judge found, the Secretary of State “did not intend” to issue the BRP, it is inconceivable that it was not issued in error. It plainly was. It has been often said that the law must deal in realities not technicalities. Here the situation is starker. The court is being asked to act on fictions. A permit that under delegated legislation requires a decision of grant of leave before its valid issue has been issued without a decision to grant leave and despite wholesale and flat refusal, yet it is claimed to be valid nevertheless.[79]We conclude that the BRP was issued in error. (2). Legal effect of issuing[80]The Respondent’s second line of argument is that the act of issuing the BRP in itself constitutes the grant of leave.[81]This argument conflates and confuses two things: a decision to grant leave and the administrative act or acts necessary to issue a residence permit. It remains unclear how and why the undoubted error to grant the BRP to the Respondent came about. In a very literal sense, it might well have been the result of some official “deciding” to press some buttons or activate some software that resulted in the issuing of the document. That is very far from the Secretary of State deciding to grant leave to remain. Once more, one must live in reality. The issuing process was an error, not a deliberate decision to resile from the previous detailed refusal, reverse it, and make a fresh decision to grant leave on grounds that had been meticulously rejected.[82]The Respondent relies on two decisions of the Court of Appeal: R (Ahmadi) v SSHD [2013] EWCA Civ 512 (“Ahmadi”); and Anwar v SSHD [2017] EWCA Civ 2134 (“Anwar”). We accept that, as the Court of Appeal observed in Ahmadi at §22 and Anwar at §50, there is no meaningful distinction under the 1971 Act between a decision to grant leave to remain and notice of that decision. Written notice of a decision under section 4(1) of the 1971 Act is the way in which the power to grant leave under section 3(1)(b) of the Act is exercised. We also note that a decision to grant limited leave to remain as a refugee is not a decision which is appealable under section 82(1) of the NIAA 2002 and accordingly is not a decision to which the more detailed requirements in regulations 4 and 5 of the Notices Regulations apply.[83]However, we do not accept Mr Malik’s submission that the BRP was itself a grant of leave, or his alternative submission that the BRP was “notice in writing” of a decision to grant leave. The Appellant directed the court to authorities that consistently hold that immigration status documents such as a BRP - or (previously) a passport stamp or endorsement - are evidence of an individual’s status in the UK, and his rights and entitlements consequent on that status. For instance, the Court of Appeal stated in R (WA (Palestinian Territories)) v SSHD [2021] 1 WLR 2117 (“Palestinian Territories”) at para 83:
“The starting-point is that WA’s “biometric residence permit” is the key document evidencing his right of residence in the UK and his status for official purposes: it is equivalent in authority to his passport or (in another country) his identity card.”
(emphasis provided)[84]Similarly in HMRC v BZ [2022] UKUT 264 (AAC), the Upper Tribunal (Administrative Appeals Chamber) held at para 38:
“The BRP is evidence of an individual’s immigration status, but it does not in and of itself amount to the initial notification of the recording of that status by the SSHD.”
(emphasis once more provided)[85]These authorities characterise such status documents not as themselves a grant of leave, but as evidence of the grant of leave and of immigration status consequent on that grant. This is the Appellant’s central submission on this issue and finds support in the authorities.[86]As far as the BRP is concerned, this situation is unsurprising. The power to issue a BRP arises only under regulation 13 of the Biometric Regulations, and a BRP may be issued only where the condition precedent in regulation 13 is satisfied. The wording of regulation 13 makes it clear that the grant of leave to remain is a separate, prior decision to the issue of the BRP. The BRP cannot therefore constitute the grant of leave itself. It confirms that which has already happened. The clear distinction between the grant of leave and the issue of a biometric document in regulation 13 is also not compatible with the biometric document itself being the “notice in writing” required by section 4 (1) of the 1971 Act.[87]We cannot accept that the only remedy when a BRP has been issued in error is for the Secretary of State to revoke it. It is true, as counsel for the Respondent submitted, that should the Secretary of State find cause to revoke a person’s leave, that revocation would be capable of legal challenge. But this does not meet the point about a status document that has been invalidly issued in error, as opposed to the Secretary of State changing her mind about the continuing presence of the affected person. Where subordinate legislation specifies a condition before a BRP can be validly issued and that condition is absent, we cannot see how a permit issued in breach of the legislation can be legally valid. It is true that under section 3(1) of the 1971 Act leave to remain may be issued outside the rules in the discretion of the Secretary of State. However, there has been no power identified to us that permits the issue of a BRP when the decision condition precedent under regulation 13 for its issuing is absent. Such a BRP must remain legally invalid.[88]We cannot escape the conclusion that the Respondent’s submissions are flawed. They are arguments that fail to grasp the realities of the factual situation and seek to convert an obvious administrative error into a hitherto unknown species of grant of leave. These are neither technicalities nor trifles. The grant of leave to remain in the United Kingdom is a fundamental and vital decision for the affected person and their family and also for the British public. It cannot be right to transmute an administrative error into the grant of leave to remain on the basis of a claim to refugee status that has been clearly and comprehensively refused.[89]Returning to counsel’s submission on immateriality, we cannot accept the submission that it is “immaterial” whether a vital and influential status document such as a BRP has been issued in error. One only has to change the document and ask whether it is immaterial whether a passport has been issued in error, or a driving licence or any important public document. Erroneous issuing is plainly material. As Underhill LJ stated in Palestinian Territories at para 83:
“the integrity of official records is, rightly, a matter of fundamental importance”

Conclusion: Issue 2 - BRP

[90]With respect, we cannot see how a lawful decision could be reached that “the BRP is a valid grant of leave” (FTT, para 27) when the essential legislative prerequisite for valid issue is absent. The appeal test here is not a rationality one. The status of the BRP is a hard-edged question of law.[91]At most, a BRP can only be, as the Court of Appeal stated in Palestinian Territories, evidence of a grant of leave. But where there is no or no valid grant of leave, the BRP is evidence of nothing except the fact of its erroneous issue.[92]We find that the First-tier Tribunal‘s decision that the BRP was a grant of leave, such that the appeal fell to be treated as abandoned under section 104(4A) of the NIAA 2002, was a material error of law.

V. Disposal of the appeal

[93]It was common ground between the parties that if the panel found an error of law in the First Tier Tribunal’s decision, the appropriate disposal would be to remit the appeal to the First Tier Tribunal for a de novo hearing, and we consider that course appropriate.[94]The First Tier Tribunal did not make an anonymity order. Although the Upper Tribunal made an anonymity order at the point of listing the case, before us Mr Malik expressly indicated that anonymity was not required and that the Respondent could be referred to by his full name. Bearing in mind the importance of open justice we have accordingly lifted the anonymity order previously made by the Upper Tribunal. Notice of Decision The decision of the First Tier Tribunal involved the making of an error of law and is set aside. The appeal is remitted to the First Tier Tribunal for a de novo hearing before a differently constituted tribunal. L Hirst Judge of the Upper Tribunal Immigration and Asylum Chamber Mr Justice Dexter Dias High Court Judge 24 February 2025