[2025] UKUT 00276 (IAC)

Guerrero (s104(4A); statutory abandonment; right of appeal)

Heard at Field House

THE IMMIGRATION ACTS

Promulgated on 26 February 2025

Before

MR JUSTICE DEXTER DIAS

UPPER TRIBUNAL JUDGE HIRST

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

RHIAN BERNARD GUERRERO

(NO ANONYMITY ORDER MADE)

Respondent

Representation:

For the Appellant: Mr Hansen, counsel instructed by the Government Legal Department

For the Respondent: Mr Malik KC and Mr Mavrantonis, counsel instructed by Farani Taylor Solicitors

Right of Appeal – s104(4A) Decisions

1. A judicial decision to treat an appeal as abandoned under s104(4A) of the Nationality, Immigration and Asylum Act 2002 is not an excluded decision under the Appeals (Excluded Decisions) Order 2009 (‘the 2009 Order’) and the Upper Tribunal has jurisdiction to consider an appeal against such a decision.

Construction of the 2009 Order

2. The policy and object of the 2009 Order is clear from the words chosen to describe the categories of excluded decisions - ancillary, procedural, preliminary - which share similar qualities.

3. When determining whether a decision is excluded for the purposes of a right of appeal it is the substance of the decision that is crucial not the external or superficial label given to it.

4. Decisions excluded under article 3(m) of the 2009 Order 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.

5. 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.

Biometric Residence Permits and s104(4A)

6. A decision to grant leave to remain is legally distinct to the administrative act of issuing a residence permit. A biometric residence permit requires a prior decision to grant leave to remain. Although it may evidence a valid grant of leave to remain, a biometric residence permit does not itself constitute the grant of such leave: R (WA (Palestinian Territories)) v SSHD [2021] 1 WLR 2117.

7. Where a biometric residence permit has been issued in error, there is no grant of leave to remain such that a pending appeal falls to be treated as abandoned under s104(4A) Nationality, Immigration and Asylum Act 2002.

DECISION AND REASONS