Abandonment Under s104(4A) Is an Excluded “Preliminary Decision”: No Upper Tribunal Jurisdiction

Case: Guerrero v Secretary of State for Home Department
Citation: [2026] EWCA Civ 953 (Court of Appeal (Civil Division))
Date: 16 September 2026
Appeal from: Upper Tribunal (Immigration and Asylum Chamber) [2026] UKUT 276 (IAC)
Judges: Lady Justice May (lead), Lord Justice Arnold, Lady Justice King

2. Summary of the Judgment

• A decision by the FTT to treat an appeal as abandoned under s104(4A) of the 2002 Act is a “preliminary” decision within Article 3(m) of the Appeals (Excluded Decisions) Order 2009 (“the 2009 Order”).
• Such a decision is therefore an “excluded decision” for the purposes of s11(1) of the 2007 Act, and there is no right of appeal to the UT.
• The appropriate route of challenge remains judicial review (illustrated by the court’s reliance on R (Chowdhury) v First-tier Tribunal (Immigration and Asylum Chamber) [2024] EWCA Civ 1380).
• The UT decision was set aside for want of jurisdiction, with the result that the FTT’s abandonment decision stood.

3. Analysis

3.1 Statutory and Regulatory Setting

The appeal right to the UT is limited: s11(1) of the 2007 Act permits appeals on points of law only from FTT decisions that are not “excluded decisions”. Under s11(5)(f), “excluded decisions” include any FTT decision described in an order made by the Lord Chancellor—here, the 2009 Order.

Article 3(m) of the 2009 Order excludes:

Separately, s104(4A) of the 2002 Act provides that an in-country appeal “shall be treated as abandoned” if the appellant is granted leave to enter or remain. The Court’s analysis turned on characterising the FTT’s abandonment ruling: was it “preliminary” (excluded), or a non-excluded decision attracting a UT appeal?

3.2 The Core Holding on Jurisdiction

The Court rejected the UT’s view that an abandonment decision “determines the substance of the appeal” and is not preliminary. Lady Justice May held that, while abandonment ends the appeal procedurally, it does not resolve the substantive protection issues (here, the appellant’s sexuality and claimed fear of persecution on return).

Crucially, the Court treated the statutory language in s104(1)(b) as illuminating the nature of the outcome: an appeal ends when “finally determined, withdrawn or abandoned”. The Court drew a distinction between “finally determined” (merits disposal) and “abandoned” (a deeming mechanism terminating proceedings without deciding the protection claim). That distinction supported the conclusion that abandonment is a preliminary step within Article 3(m), notwithstanding its dispositive practical effect.

3.3 Precedents Cited and Their Influence

(a) VOM and the meaning of “procedural, ancillary or preliminary”

The Court treated VOM (Nigeria) v The Secretary of State for the Home Department [2016] UKUT 00410 (IAC) as the leading interpretive source on Article 3(m). It endorsed the approach that excluded decisions are those supporting the appellate process and not finally determining the merits; and that “preliminary” decisions are made at an early stage, necessarily preceding the tribunal’s “ultimate task”.

Applying that framework, the Court held the abandonment decision was “preliminary” because it was a threshold decision about whether the substantive asylum appeal would proceed at all, rather than a decision on the asylum grounds themselves.

(b) Court of Appeal endorsements of VOM

The Court noted that the VOM interpretation has been approved in multiple appellate decisions: Terzaghi v Secretary of State for the Home Department [2020] Imm AR 461, AA (Iraq) v Secretary of State for the Home Department [2017] EWCA Civ 944, [2018] 1 WLR 1083, and DJ (Pakistan) v Secretary of State for the Home Department [2022] EWCA Civ 1057; [2022] 1 WLR 5381. Although AA (Iraq) distinguished the result in VOM on its particular facts, it nonetheless supported VOM’s interpretation of Article 3(m), reinforcing a narrow UT appellate jurisdiction over threshold/process rulings.

(c) Chowdhury and judicial review as the “safety valve”

A key practical concern was whether excluding UT appeals would leave parties without a remedy. The Court relied on R (Chowdhury) v First-tier Tribunal (Immigration and Asylum Chamber) [2024] EWCA Civ 1380, where an FTT refusal to extend time was challenged by judicial review, and no one suggested an alternative statutory appeal route. The Court used this to demonstrate that judicial review is the appropriate mechanism for challenging excluded preliminary decisions (including abandonment determinations).

(d) JH (Zimbabwe) distinguished (former scheme; exceptional posture)

The Secretary of State relied on JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78. The Court held it did not assist: it arose under a former legislative scheme and in “unusual circumstances”, where a jurisdiction point was taken very late after acceptance of the appeal and prior reconsiderations—circumstances that made it “extraordinary” to deny an appeal route. By contrast, abandonment under s104(4A) is a threshold determination made at the outset and fits the Article 3(m) category.

(e) UT authorities where jurisdiction was assumed

The Court addressed UT decisions cited by the Secretary of State, including Anwar v Secretary of State for the Home Department ([2019] UKUT 125 (IAC), [2019] INLR 291) (validity of withdrawal) and Vigneswaran [2016] UKUT 54 (s104(4A) abandonment). It observed that in neither case was the Article 3(m) jurisdiction point argued; and where the UT upheld the FTT, the practical outcome matched what would have occurred had the UT refused jurisdiction. It also treated earlier-scheme authorities Ved and another (appealable decisions; permission applications; Basnet) [2014] UKUT 150 (IAC), [2014] Imm AR 868 and Abiyat & Others (Rights of appeal) [2011] UKUT 314 (IAC), [2011] Imm AR 822 as non-determinative.

3.4 Legal Reasoning (Why Abandonment Is “Preliminary”)

• Subject-matter focus: the asylum merits (risk on return) were untouched; abandonment decided only whether the appeal could proceed.
• Temporal/procedural posture: the issue was resolved at the outset, before any substantive adjudication.
• Statutory taxonomy: s104 differentiates “finally determined” from “abandoned”, supporting the view that abandonment is not a merits determination.
• System coherence: treating abandonment as appealable would sit uneasily with accepted practice that other dispositive threshold rulings (notably time-extension refusals) are excluded and reviewable only by judicial review.

3.5 Impact

• Jurisdictional boundary clarified: UT cannot hear appeals from FTT abandonment rulings under s104(4A); these are excluded “preliminary” decisions under Article 3(m).
• Remedy channelled to judicial review: challenges must ordinarily proceed via judicial review rather than a statutory appeal—likely increasing the importance of prompt JR (including urgent interim relief where removal or status consequences arise).
• Finality and case management: FTT determinations that an appeal is deemed abandoned will not be corrected through the UT appeal route; parties must frame challenges in public law terms (error of law, irrationality, procedural unfairness, etc.) in JR.
• Limited guidance on BRP “system error” scenarios: because the Court did not reach the BRP/leave ground, uncertainty may persist about when an erroneously issued BRP constitutes a grant of leave; this decision determines only the route by which an FTT abandonment ruling can be challenged.

4. Complex Concepts Simplified

4.1 “Excluded decision” (why it matters)

An “excluded decision” is an FTT decision that Parliament (via the 2007 Act and the 2009 Order) has removed from the UT appeal structure. If the decision is excluded, the UT has no jurisdiction even if the FTT arguably erred in law.

4.2 “Procedural/ancillary/preliminary” in Article 3(m)

These are threshold or case-management type determinations made “in relation to” an immigration appeal—typically steps that control whether and how the appeal proceeds (e.g., timeliness, validity, withdrawal, and—here—abandonment).

4.3 “Abandoned” under s104(4A)

“Abandoned” is a statutory deeming effect: if a person with an in-country appeal is granted leave to enter or remain, the appeal is treated as abandoned. It is not a decision on whether the asylum claim succeeds; it is a mechanism that removes the need (and jurisdiction) to decide it.

4.4 Judicial review as the corrective mechanism

Where the statute excludes an appeal, the remaining route is usually judicial review: a supervisory challenge focusing on legality, fairness, and rationality, rather than a merits appeal within the tribunal hierarchy.

5. Conclusion

[2026] EWCA Civ 953 establishes that an FTT decision treating a protection appeal as abandoned under s104(4A) of the 2002 Act is a “preliminary” decision excluded by Article 3(m) of the 2009 Order. The UT therefore lacks jurisdiction to hear appeals against such determinations. The practical consequence is that parties seeking to challenge an abandonment ruling must do so by judicial review, not by statutory appeal to the UT.