Secretary of State for the Home Department v Rhian Bernard Guerrero

A decision to treat an appeal as abandoned under section 104(4A) of the Nationality, Immigration and Asylum Act 2002 determines the legal substance and jurisdiction of the appeal. It is therefore not a preliminary decision excluded from onward appeal by article 3(m) of the Appeals (Excluded Decisions) Order 2009. The substance of a decision, rather than its label or procedural timing, is decisive.

A biometric residence permit is distinct from the prior decision to grant leave to remain. It is evidence of immigration status, not itself a grant of leave. Where issued in error without the required prior decision, it does not cause a pending appeal to be abandoned under section 104(4A).

The Secretary of State appealed against the First-tier Tribunal’s decision that the respondent’s protection appeal had been abandoned under section 104(4A) of the Nationality, Immigration and Asylum Act 2002. The First-tier Tribunal had held that a biometric residence permit stating that the respondent had refugee leave constituted an effective grant of leave.

The appeal raised two issues: whether the Upper Tribunal had jurisdiction despite article 3(m) of the Appeals (Excluded Decisions) Order 2009, and whether the erroneous issue of the biometric residence permit amounted to a grant of leave or evidence of such a grant.

1. Jurisdiction. The appeal was not from an excluded decision. Article 3(m) concerns decisions that are procedural, ancillary or preliminary in the sense that they support the progress of an appeal without determining its substantive legal merits. The court applied a contextual and purposive approach to the 2009 Order. The relevant question is the substance of the decision, not its label or the stage at which it was made.
2. A decision whether an appeal is abandoned under section 104(4A) is a hard-edged question of law concerning the jurisdiction and legal substance of the appeal. It is not a discretionary case-management decision. It therefore falls outside article 3(m), and the Upper Tribunal had jurisdiction.
3. Effect of the biometric residence permit. Regulation 13 of the Immigration (Biometric Registration) Regulations 2008 requires a prior decision to grant limited leave before a biometric residence permit may validly be issued. The grant of leave and the administrative issue of the permit are legally distinct.
4. The evidence, including the detailed refusal letter and the Secretary of State’s subsequent explanation, established that the permit had been issued in error. The permit could not itself constitute a grant of leave or valid notice of such a decision. Consistently with R (WA (Palestinian Territories)) v SSHD [2021] 1 WLR 2117, it was at most evidence of a grant; where no valid grant existed, it evidenced only the erroneous issue of the document.
5. The First-tier Tribunal therefore materially erred in law. Its decision was set aside and the appeal was remitted for a de novo hearing before a differently constituted tribunal. The anonymity order was lifted.

• Upper Tribunal (Immigration and Asylum Chamber): The First-tier Tribunal’s decision was set aside for material error of law. The appeal was remitted for a de novo hearing before a differently constituted tribunal.
• First-tier Tribunal: On 7 March 2024, the tribunal held that the biometric residence permit was an effective grant of leave and treated the protection appeal as abandoned under section 104(4A) of the Nationality, Immigration and Asylum Act 2002.