[2025] UKUT 00276 (IAC)

Section 11(1) of the TCEA 2007 provides:

“(1)

For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision.”

Section 11(5) sets out categories of decisions which are “excluded decisions” for the purposes of subsection 1, which include:

“(f)

any decision of the First-tier Tribunal that is of a description specified in an order made by the Lord Chancellor.”

The relevant order for the purposes of section 11(5)(f) of the TCEA 2007 is the Appeals (Excluded Decisions) Order 2009 (“the 2009 Order”). Article 3 of the 2009 Order sets out a list of categories of excluded decisions, including:

“(m)

any procedural, ancillary or preliminary decision made in relation to an appeal against a decision under section 40A of the British Nationality Act 1981 or section 82 of the Nationality, Immigration and Asylum Act 2002”

The position under TCEA 2007 and the 2009 Order is therefore that no right of appeal to the Upper Tribunal lies from a decision by the First Tier Tribunal which is a “procedural, ancillary or preliminary decision” made in relation to an appeal. In fact, the issue in this appeal is narrower, as the Respondent’s case is that the First-tier Tribunal’s decision on jurisdiction is a “preliminary” decision, rather than a procedural or ancillary one.

Neither TCEA 2007 nor the 2009 Order define what “preliminary” means. The 2009 Order is delegated legislation and conventional rules of statutory interpretation apply to the interpretation of its meaning, as Bennion Bailey and Norbury on Statutory Interpretation (8th Edn, 2020) (“Bennion”) makes clear at [3.17]:

“The general principles of interpretation that apply to Acts apply equally to delegated legislation, but with the additional consideration that since delegated legislation derives its authority from the enabling Act it must be interpreted in light of that Act.”

While there are known to be multiple principles of statutory interpretation, there are four principles of particular relevance to the act of interpretation in this case:

We consider each of these principles in turn before providing our conclusion on jurisdiction.