[2025] UKUT 00276 (IAC)

A conventional starting-point of statutory interpretation is to give words their ordinary and natural meaning, without becoming enslaved to literalism at the expense of context and objects (see Bennion at §22.1). Where there is more than one ordinary meaning, the most common and well-established meaning is to be preferred, unless other interpretative criteria, including the purpose of the enactment and the context, indicate that another meaning is more apt.

A recent expression of this principle comes from Leggatt LJ (as he then was) in Good Law Project at §33:

“The basic principles are that the words of the statute should be interpreted in the sense which best reflects their ordinary and natural meaning and accords with the purposes of the legislation.’’

It is the latter part of the sentence that can easily be overlooked. The proper approach is to examine meaning within context – the contextual purposive approach. In Kostal UK Ltd v Dunkley [2021] UKSC 47, Lady Arden and Lord Burrows explain at §109:

“The modern approach to statutory interpretation requires the courts to ascertain the meaning of the words in a statute in the light of their context and purpose.”

Such an approach tempers the instinct to reach for the dictionary and string together a series of literal meanings. That cannot do. In a contractual context, this has long been known, as Lord Hoffmann famously noted in his speech in Investors Compensation Scheme v West Bromwich Building Society [1998] 1 WLR 896:

“The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean.”

Therefore, we turn to the dictionary definition(s) of “preliminary” with those cautionary words at the forefront of our thoughts. The Oxford English Dictionary (“OED”) defines preliminary as follows:

“Preceding and leading up to the main subject or business; introductory; preparatory”

To effect a crude taxonomy, there are two distinct meanings of preliminary in normal and ordinary usage. First, a meaning that relates to timing. Here, preliminary means early or initial; the sense is chronological. Giving this purely chronological meaning to “preliminary” in the 2009 Order would increase uncertainty, since whether a right of appeal arose from a decision would depend purely on whether the decision was taken at the outset of proceedings or during the proceedings.

The second meaning of “preliminary” in ordinary usage is to do with relationship or connection. Here, “preliminary” indicates the relationship between the preliminary thing and what comes after it. Here the question is precursory to what; prior to what; preceding what.

If the second sense were the intended meaning of “preliminary” under the 2009 Order, the question would be what the decision is precursory or prior to - what it precedes. The answer to that question must be the decision on the substantive merits of the case as against a decision not related to the core legal merits. It is noteworthy that the antonym mentioned in the OED is “concluding”.

Support for the second interpretation comes from Singh v Secretary of State for the Home Department [2014] EWCA Civ 438 (“Singh”), an authority relied on by the Respondent which is primarily concerned with whether a decision not to make a fee award following an appeal is an “ancillary” decision and hence excluded from onward appeal by the 2009 Order. The principal submission of the appellant in Singh was that article 3(m) of the 2009 Order was ultra vires section 11(5)(f) of the TCEA 2007 because Parliament had intended a clear and fixed list of specified decisions excluded by an order rather than categories or classes of decision. The fallback submission was that a fee decision formed part of the Tribunal’s overall decision on the merits of the appeal, and hence was not ‘ancillary’ on the true construction of article 3. The Court of Appeal rejected both submissions, Sharp LJ on behalf of the court stating [from §19]:

“19.

I agree with the Upper Tribunal’s well-expressed reasons for rejecting those arguments. In my view, the Appellant’s arguments on vires are contradicted by the clear language of the statutory provisions to which I have referred. Section 11 of the 2007 Act provides for a right of appeal on a point of law from the First-tier Tribunal to the Upper Tribunal, but that right is subject to exceptions, including by section 11(5)(e) “any decision that of the First-tier Tribunal that is of a description specified in an order made by the Lord Chancellor”. Article 3(m) of the Excluded Decisions Order clearly does specify descriptions of excluded decisions, i.e. “any procedural, ancillary or preliminary decision made in relation to an appeal against a decision under section 40A of the British Nationality Act 1981, section 82, 83 or 83A of the Nationality, Immigration and Asylum Act 2002.” It is obvious from the language of section 11(5)(f) therefore that Parliament did intend that further orders should be made which specified decisions in respect of which there would be no right of appeal, and I do not accept the scope of that provision is restricted (or “coloured” as the Upper Tribunal put it) by the other matters specified in section 11(5) in the way suggested by the Appellant. The fact that a class of decision is described in Article 3(m), rather a particular decision, does not mean that the provision is either vague or lacks certainty, and I do not accept it is correct to characterise the language of Article 3(m) in that way.

20.

I also do not accept the Appellant’s alternative argument that the Upper Tribunal was wrong to conclude the fee decision was an ancillary decision. If a court or tribunal has to make an adjudication on costs after determining an appeal, its costs decision will normally, but not necessarily depend on its view of the merits of the appeal. That does not mean however that the costs decision is part of the substantive decision on the merits: as a matter of ordinary language, it is obviously ancillary to it, in the sense that it is a separate but connected matter which requires to be determined to dispose of the proceedings. It follows that the First-tier Tribunal’s (ancillary) decision not to make a fee award in respect of the Appellant’s appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 fell squarely within Article 3(m) of the Excluded Decisions Order, and cannot be appealed.”

Thus the opposition identified by the Court of Appeal is between decisions that are ancillary and decisions that are substantive on the merits of the appeal. Singh does not assist the Respondent; on the contrary, it undermines his central argument on jurisdiction.

Further support for the second meaning of “preliminary” comes from VOM (Error of law: when appealable) Nigeria [2016] UKUT 00410 (IAC) (“VOM”). VOM is concerned with appeal rights from the Upper Tribunal to the Court of Appeal under sections 12 and 13 of the TCEA 2007, where the First-tier Tribunal had dismissed a deportation appeal under the Immigration Rules and article 3 ECHR but allowed the appeal under article 8 ECHR. Both VOM and the Secretary of State were granted permission to appeal to the Upper Tribunal. Following an error of law hearing, the Upper Tribunal set aside the determination of the First-tier Tribunal in relation to the Immigration Rules but did not set aside the decision on article 3. VOM then applied for permission to appeal the Upper Tribunal’s set aside decision.

Although the question in VOM was whether there was a right of appeal from the Upper Tribunal to the Court of Appeal, rather than from the First-tier Tribunal to the Upper Tribunal, the 2009 Order applies equally to both tiers. The Upper Tribunal in VOM stated at §32:

“32.

Article 3(m) excludes ‘any procedural, ancillary or preliminary’ decision made in relation to an appeal. We consider that there are good reasons for categorising the steps so far taken by the UT in this appeal as having the characteristics not merely of one but of all three of those categories. They are ‘procedural’ because they are part of the statutory procedure prescribed by s 12 and do not finally determine the merits of the appeal. They are ‘ancillary’ because they provide necessary support to the prime task of ‘deciding an appeal under s 11 (see s 12(1)), an adjunct to the central and ultimate task of the UT. They are ‘preliminary’ because they have to be made at an early rather than late stage of the process, necessarily preceding the performance of the ultimate task of the UT. If there were any doubt about their exclusion, we would pray in aid the same reasoning that we have deployed earlier: if these are ‘decisions’ there is no good reason to interpret the 2009 Order so as not to have them ‘excluded’ and there are very good reasons for interpreting the Order as excluding them from any right of appeal.”

The Upper Tribunal’s interpretation in VOM of “preliminary” as “preceding the performance of the ultimate task of the UT” is consistent with Singh, particularly when the Upper Tribunal distinguishes excluded decisions from decisions that “finally determine the merits of the appeal”. The Upper Tribunal stated at para 25:

“… We consider that the combination of principles and imperatives identified above impel overwhelmingly to the conclusion that Parliament cannot have intended to establish a right to seek permission to appeal to the Court of Appeal against an intermediate decision of this genre. This intermediate decision will, ultimately, merge with the final decision of the UT, thereby generating a composite decision and it will be open to the Appellant to seek to challenge any aspect thereof if so advised.”

VOM therefore draws a distinction between the “final” decision on an appeal, that is, the resolution of the central legal issue, which will be accompanied by a right of appeal, and an “intermediate” decision, which usually will not be.