Rhian Bernard Guerrero v Secretary of State for Home Department

A First-tier Tribunal decision that an immigration appeal is deemed abandoned under section 104(4A) is a preliminary decision for article 3(m) of the Appeals (Excluded Decisions) Order 2009. It is therefore an excluded decision from which no appeal lies to the Upper Tribunal under section 11 of the Tribunals, Courts and Enforcement Act 2007.

The fact that abandonment ends the appeal does not make the decision a final determination. The statutory scheme distinguishes an appeal which is finally determined from one which is withdrawn or abandoned. Such a preliminary jurisdictional ruling does not determine the merits of the underlying protection claim. Its lawfulness may instead be challenged by judicial review.

The appellant, a national of Trinidad and Tobago, claimed asylum on the basis of his sexual orientation. The Secretary of State refused the claim but then issued a Biometric Residence Permit recording refugee leave to remain. The appellant appealed protectively to the First-tier Tribunal.

The First-tier Tribunal held that the permit was a valid grant of leave and treated the asylum appeal as abandoned under section 104(4A) of the Nationality, Immigration and Asylum Act 2002. The Upper Tribunal allowed the Secretary of State’s appeal, holding that it had jurisdiction and that the permit resulted from an obvious error: [2026] UKUT 276 (IAC).

The central issue before the Court of Appeal was whether the First-tier Tribunal’s abandonment ruling was an excluded procedural, ancillary or preliminary decision under article 3(m) of the Appeals (Excluded Decisions) Order 2009.

1. Appeal allowed. Lady Justice May, with whom Lord Justice Arnold and Lady Justice King agreed, held that the Upper Tribunal lacked jurisdiction to entertain the Secretary of State’s appeal. The First-tier Tribunal’s decision that the appeal was abandoned accordingly stood.

2. Article 3(m) of the Appeals (Excluded Decisions) Order 2009 excludes a procedural, ancillary or preliminary decision made in relation to an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002. Applying the construction in VOM (Nigeria) v The Secretary of State for the Home Department [2016] UKUT 00410 (IAC), the Court held that the abandonment ruling was preliminary. It necessarily preceded resolution of the asylum claim and did not address the appellant’s sexuality, risk of persecution, or any other merits issue.

3. The fact that section 104(4A) operated automatically and brought the appeal to an end did not alter that characterisation. Section 104(1)(b) distinguishes an appeal finally determined from one withdrawn or abandoned. The First-tier Tribunal had deemed the appeal abandoned; it had not finally determined it. A ruling which disposes of an appeal may nevertheless be preliminary, as a refusal to extend time illustrates.

4. JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78 concerned an unusual case under a former legislative scheme and did not govern this question. Other Upper Tribunal decisions in which no article 3(m) point had been raised were likewise not determinative.

5. The absence of a statutory appeal did not leave a party without a remedy. Judicial review remains available to challenge an abandonment or comparable preliminary ruling. In light of the jurisdictional conclusion, the Court did not consider the validity or legal effect of the Biometric Residence Permit.

• Court of Appeal (Civil Division): Allowed the appellant’s appeal and held that the Upper Tribunal had no jurisdiction to hear the Secretary of State’s appeal.
• Upper Tribunal (Immigration and Asylum Chamber): Allowed the Secretary of State’s appeal, held that the abandonment decision was not excluded, and remitted the protection appeal: [2026] UKUT 276 (IAC).
• First-tier Tribunal: Held that the Biometric Residence Permit granted leave to remain and treated the section 82 appeal as abandoned under section 104(4A) of the Nationality, Immigration and Asylum Act 2002.