Home Office wrongly issued biometric residence permit to person refused asylum

The First-tier Tribunal will re-hear the appeal of a man who received a letter from the Home Office refusing his asylum, and then a few days later a biometric resident permit reflecting a grant of refugee leave. The Upper Tribunal said that the biometric residence permit is not a grant of leave. The case is Guerrero (s104(4A); statutory abandonment; right of appeal) [2025] UKUT 00276 (IAC). As indicated by the name of the case, there were also some (fairly niche) procedural issues with the appeal.

Background

Mr Guerrero claimed asylum on 5 January 2021 and his claim was refused on 11 August 2023. On 17 August 2023 the Home Office issued him with a biometric residence permit stating “Refugee leave to remain”.

Mr Guerrero appealed the refusal of his asylum claim on 29 August 2023 arguing that the biometric residence permit was a grant of leave to remain but said that the appeal was being lodged protectively. The tribunal asked the Home Secretary to confirm her position on the validity of the permit.

This prompted the Home Office to write to Mr Guerrero and say that the permit had been issued to him by mistake due to a system error. They apologised “for any inconvenience this has caused” and asked him to return the card.

The First-tier Tribunal held that the biometric residence permit was a valid grant of leave and that Mr Guerrero’s appeal was to be treated as abandoned under section 104(4A) of the Nationality, Immigration and Asylum Act 2002. This provides that:

An appeal under section 82(1) brought by a person while he is in the United Kingdom shall be treated as abandoned if the appellant is granted leave to enter or remain in the United Kingdom

The Home Secretary appealed.

The Upper Tribunal’s decision

There were two issues to be determined by the tribunal:

Issue 1. Whether the Upper Tribunal has jurisdiction to determine the appeal, or whether the appeal is from an “excluded decision” as defined in section 11(5)(f) of the Tribunals, Courts and Enforcement Act 2007 (“TCEA 2007”) and article 3(m) of the Appeals (Excluded Decisions) Order 2009;

Issue 2. If the Upper Tribunal has jurisdiction to determine the appeal, whether the First Tier Tribunal erred in law in determining that the Respondent’s appeal should be treated as abandoned under section 104(4A) of the NIAA 2002.

The first issue arose because section 11(5)(f) of the Tribunals, Courts and Enforcement Act 2007 provides that certain First-tier Tribunal decisions, as specified in the Appeals (Excluded Decisions) Order 2009 are “excluded decisions” which cannot be appealed to the Upper Tribunal.

The tribunal’s decision is summarised in the headnote as follows:

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.

Conclusion 

The First-tier Tribunal’s decision was set aside and the appeal will be re-heard by a different judge.