The Court of Appeal has held that the Upper Tribunal had no jurisdiction to hear an appeal against a First-tier Tribunal preliminary decision treating an asylum appeal as abandoned under section 104(4A), affecting appellants and the Home Office.
Key facts
- Who: Asylum appellants whose First-tier Tribunal appeal was treated as abandoned in a preliminary ruling under section 104(4A) of the Nationality, Immigration and Asylum Act 2002, and the Secretary of State for the Home Department
- From: 16 September 2026
- Source: Rhian Bernard Guerrero v Secretary of State for Home Department, [2026] EWCA Civ 953
In Rhian Bernard Guerrero v Secretary of State for Home Department [2026] EWCA Civ 953, handed down on 16 September 2026, the Court of Appeal (Lady Justice May, with Lord Justice Arnold and Lady Justice King agreeing) decided which tribunal could review a decision that an asylum appeal had been abandoned.
Background
The appellant, a national of Trinidad and Tobago, claimed asylum on 5 January 2021, citing fear of persecution because of his sexual orientation. The Secretary of State refused the claim by letter dated 11 August 2023. On 17 August 2023 the Home Office issued him a Biometric Residence Permit (BRP) describing "Refugee Leave to Remain". The Secretary of State later said this was a "system error".
The appellant appealed to the First-tier Tribunal (FTT) on 29 August 2023, arguing the BRP was a valid grant of leave. Under section 104(4A) of the 2002 Act, an in-country appeal is treated as abandoned if the appellant is granted leave. The FTT judge decided, as a preliminary issue, that leave had been granted, so the appeal was treated as abandoned.
The Upper Tribunal (UT) heard the Secretary of State's appeal, found the BRP was issued by mistake, and sent the asylum appeal back to the FTT.
The question
Could the UT hear that appeal at all? A right of appeal to the UT does not cover "excluded decisions". These include, under Article 3(m) of the Appeals (Excluded Decisions) Order 2009, any procedural, ancillary or preliminary decision in an appeal under section 82 of the 2002 Act.
The decision and reasoning
The Court of Appeal held that this FTT decision was a "preliminary" decision and therefore excluded, so the UT had no jurisdiction. The court did not treat it as procedural or ancillary. It noted that the parties and the FTT judge had treated the ruling as preliminary, and that it did not address the asylum claim itself. It was not "finally dispositive" of the issues on appeal.
The court said that ending an appeal does not make a decision a final determination carrying a right of appeal. Section 104(1)(b) distinguishes appeals "finally determined" from those "withdrawn or abandoned". It also pointed to refusals to extend time for an appeal, which end appeals but carry no right of appeal.
The court said judicial review remains a route of challenge, as in R (Chowdhury) [2024] EWCA Civ 1380. The Secretary of State had not brought a judicial review claim and did not pursue a request that the court decide the BRP issue itself.
The appeal succeeded on this ground and the FTT decision stands. The court did not decide the second ground, on the validity and effect of the BRP.
What this means for asylum appellants
The ruling concerns an FTT decision, made as a preliminary issue, that an asylum appeal was abandoned under section 104(4A). The Court of Appeal held that such a decision does not carry a right of appeal to the UT, because it is a preliminary decision excluded by Article 3(m) of the 2009 Order. The court identified judicial review as the route of challenge that remains for decisions of this kind.
Sources
- Rhian Bernard Guerrero v Secretary of State for Home Department, [2026] EWCA Civ 953, Court of Appeal (Civil Division), 16 September 2026