Factual and Procedural Background
The Appellant, a national of Trinidad and Tobago, entered the United Kingdom as a visitor in September 2020 and claimed asylum in January 2021, relying on a fear of persecution based on sexual orientation. The Respondent refused the claim in August 2023 but issued a Biometric Residence Permit stating “Refugee Leave to Remain”, later described as the result of a system error. [1][2][3][4][5]
The Appellant lodged a protective appeal with the First-tier Tribunal (FTT). The FTT held that the permit amounted to a grant of leave to remain and treated the asylum appeal as abandoned under section 104(4A) of the Nationality, Immigration and Asylum Act 2002. The Upper Tribunal (UT) accepted jurisdiction, allowed the Respondent’s appeal, and remitted the protection appeal to the FTT. The Appellant then appealed to the Court of Appeal. [6][7][8][9][10][11][12]
Legal Issues Presented
- Whether the UT had jurisdiction under section 11 of the Tribunals, Courts and Enforcement Act 2007 to hear an appeal from the FTT’s decision treating the asylum appeal as abandoned under section 104(4A) of the 2002 Act. [13][14][15][16][17][18]
- Whether the validity and effect of the Biometric Residence Permit required determination. [19]
Arguments of the Parties
Appellant’s Arguments
- The FTT’s ruling was a “preliminary decision”, as reflected in the judge’s description of it, and fell within the exclusion in Article 3(m) of the Appeals (Excluded Decisions) Order 2009. [20][21]
- The decision concerned a legal or procedural issue that had to be resolved before the substantive asylum appeal could proceed, analogous to issues of timeliness, limitation, standing and validity. [22]
- The interpretation in VOM (Nigeria) had been approved in subsequent Court of Appeal authorities. [22][23][24]
- Decisions of this kind could still be challenged by judicial review. [25]
Respondent’s Arguments
- The UT had correctly held that the FTT’s decision was not excluded under Article 3(m). [26]
- Because the abandonment decision brought the proceedings to an end, it was a final dispositive decision rather than an intermediate or preliminary decision. [26][27][28]
- The Respondent relied on JH (Zimbabwe) and other UT decisions, arguing that the Appellant’s interpretation would mean those authorities had been wrongly decided. [29]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| VOM (Nigeria) v The Secretary of State for the Home Department [2016] UKUT 00410 (IAC) |
Interpretation of “procedural, ancillary or preliminary decision” in Article 3(m). |
The Court adopted the approach that such decisions do not finally determine the merits and precede the ultimate appellate task. [22][30][23][31] |
| Terzaghi v Secretary of State for the Home Department [2020] Imm AR 461 |
Approval of the interpretation of Article 3(m). |
Cited as authority supporting the Appellant’s interpretation. [22][24] |
| AA (Iraq) v Secretary of State for the Home Department [2017] EWCA Civ 944; [2018] 1 WLR 1083 |
Application and approval of the Article 3(m) interpretation, including the distinction concerning a final decision. |
The Court said that the authority approved the UT’s interpretation, although it distinguished VOM on its particular facts. [22][24] |
| DJ (Pakistan) v Secretary of State for the Home Department [2022] EWCA Civ 1057; [2022] 1 WLR 5381 |
Approval of the relevant Article 3(m) interpretation. |
Cited among the authorities relied on by the Appellant. [22][24] |
| R (Chowdhury) v First-tier Tribunal (Immigration and Asylum Chamber) [2024] EWCA Civ 1380 |
Judicial review as a route to challenge an FTT refusal to extend time for an appeal. |
The Court relied on it to confirm that judicial review remained available where no statutory appeal to the UT existed. [25][32][33] |
| JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78 |
Whether a jurisdictional decision under the former legislative scheme attracted a right of appeal. |
The Court distinguished it as involving an earlier statutory scheme and unusual circumstances, and held that it did not determine the present issue. [29][34][35] |
| Anwar v Secretary of State for the Home Department [2019] UKUT 125 (IAC); [2019] INLR 291 |
Validity and effect of a withdrawal resulting in the tribunal no longer having jurisdiction. |
The Court noted that Article 3(m) had not been argued in that case and that the outcome was effectively the same as declining jurisdiction. [36][37] |
| Vigneswaran [2016] UKUT 54 |
Application of section 104(4A) where leave had been granted and an appeal was treated as abandoned. |
The Court made the same observation concerning the absence of an Article 3(m) jurisdiction argument and the practical outcome. [36][37] |
| Ved and another (appealable decisions; permission applications; Basnet) [2014] UKUT 150 (IAC); [2014] Imm AR 868 |
Appealable decisions under the former statutory scheme. |
The Court treated it as a former-scheme authority applying JH (Zimbabwe), not determinative of the present jurisdiction question. [35] |
| Abiyat & Others (Rights of appeal) [2011] UKUT 314 (IAC); [2011] Imm AR 822 |
Rights of appeal under the former statutory scheme. |
The Court treated it as non-determinative because it concerned the former scheme and applied JH (Zimbabwe). [35] |
Court’s Reasoning and Analysis
The Court began with section 11 of the 2007 Act, under which an appeal to the UT lies on a point of law arising from an FTT decision unless the decision is excluded. Article 3(m) of the 2009 Order excludes any procedural, ancillary or preliminary decision relating to an appeal under section 82 of the 2002 Act. [14][15][38][16][39][17]
Applying VOM, the Court considered whether the FTT’s abandonment decision was procedural, ancillary or preliminary. It rejected the descriptions “procedural” and “ancillary”, but held that the decision was “preliminary”. The FTT judge and the parties had contemporaneously treated the issue as preliminary, which was a strong indicator although not determinative. [31][40]
The abandonment decision did not address the substantive asylum issues, namely the Appellant’s sexuality and the validity of his fear of persecution on return. The Court therefore rejected the argument that the decision was finally dispositive of those issues. [41]
The fact that the deeming provision brought the appeal to an end did not make the decision a final determination. Section 104(1)(b) distinguished between an appeal finally determined and one withdrawn or abandoned. The Court also rejected the suggested separation between the statutory schemes because section 104(2) expressly referred to the 2007 Act. [32]
The Court considered that decisions such as refusals to extend time could also dispose of an appeal while remaining preliminary, and noted that Chowdhury demonstrated the availability of judicial review for such decisions. [32][33]
The authorities relied on by the Respondent did not alter the conclusion. JH (Zimbabwe) concerned a former legislative scheme and unusual circumstances, while the other cited UT decisions had not involved an argument that the relevant FTT decision was excluded under Article 3(m). [34][37][35]
Because the UT lacked jurisdiction, the Court did not determine the second ground concerning the validity and effect of the Biometric Residence Permit. [42]
Holding and Implications
Appeal allowed on Ground 1. The UT did not have jurisdiction to hear the appeal from the FTT’s abandonment decision, and the FTT’s decision therefore stood. The Court did not consider Ground 2. [42]
The direct effect was that the FTT decision treating the appeal as abandoned remained in force. Judicial review remained available as a route to challenge such a decision. The opinion does not discuss broader implications or state that a new precedent was set. [33][42]