[2025] UKUT 00276 (IAC)

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.

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.

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.

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.

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]

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.

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.

The Appellant applied for permission to appeal to the Upper Tribunal, which was granted on 2 April 2024.

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.

We are grateful to counsel for their oral and written submissions.

Issue 1: Does the Upper Tribunal have jurisdiction?