Upper Tribunal Immigration and Asylum Chamber

[2025] UKUT 00276 (IAC)

Fecha: 16-Dic-2024

Conclusion: Issue 1 - jurisdiction

Conclusion: Issue 1 - jurisdiction

56.

We reject the Respondent’s submission that the Appellant’s case necessitates this court’s “rewriting of the legislation”. It does not. The true meaning of a “preliminary” excluded decision for the purposes of the 2009 Order is ascertainable by the application of conventional principles of statutory interpretation to construe the word in context and in light of the objects.

57.

Our conclusion on jurisdiction is as follows:

The policy and object of the 2009 Order is clear from the words chosen to describe the categories of excluded decisions viewed harmoniously together - ancillary, procedural, preliminary - which share similar qualities. The true meaning is given colour by the surrounding and neighbouring words, and ascertainable through a contextual and purposive approach;

ii.

It is the substance of a decision that is crucial not the external or superficial label given it;

iii.

Decisions excluded under article 3(m) are those that do not go to the substantive merits of the case, but are connected to and supportive of its passage through the tribunal appellate structure, and which do not determine the legal essence or substance of what the case is about;

iv.

A “preliminary” decision for the purposes of article 3(m) of the 2009 Order is a decision that precedes or is prior to the substantive decision, but does not decide the substantive legal merits of the case.

58.

The First-tier Tribunal’s decision whether an appeal should be treated as abandoned under section 104(4A) of the NIAA 2002 is a decision that determines the substance of the appeal. The decision is a hard-edged legal decision which goes to the jurisdiction of the First-tier Tribunal and does not involve an exercise of the court’s discretion (cf. R v Monopolies & Mergers Commission, ex parte South Yorkshire Transport Ltd [1993] 1 WLR 23, per Lord Mustill at 32D-F). Therefore, the decision is not a “preliminary” decision for the purposes of article 3(m) and it is not an excluded decision under the 2009 Order for this reason or any other.

59.

Therefore, the Upper Tribunal has jurisdiction to consider the appeal and must determine whether the First-tier Tribunal’s decision that the Respondent’s appeal should be treated as abandoned by reason of the issue of the BRP involved the making of an error of law.

60.

It is to this second question that we now turn.