The Upper Tribunal (UT) has clarified that a Biometric Residence Permit (BRP) issued in error following the refusal of an asylum claim does not constitute a valid grant of leave and does not cause a person's right to appeal to be abandoned.
Facts:
Mr. Guerrero, a national of Trinidad and Tobago, entered the UK with a leave as a visitor in September 2020. On 5 January 2021, he claimed asylum. His claim was refused on 11 August 2023, but on 17 August 2023, the Home Office issued him with a BRP stating “Refugee leave to remain”, which was valid until 31 December 2024.
Mr. Guerrero appealed, under Section 82 of the Nationality, Immigration and Asylum Act (NIAA) 2002, the refusal of his asylum claim on 29 August 2023, arguing that the BRP was a grant of leave to remain.
The First-tier Tribunal (FTT) asked the Home Secretary to confirm her position on the validity of the permit. This prompted the Home Office to write to Mr. Guerrero to say that the permit had been issued to him by mistake due to a system error.
The FTT, however, held that the BRP was a valid grant of leave and that Mr. Guerrero’s appeal was to be treated as abandoned under Section 104(4A) of the NIAA 2002. The Secretary of State appealed.
Decision:
The UT set the FTT’s decision aside, and the appeal will be reheard by a different judge. The Tribunal determined that the FTT had made a material error of law in its decision. The Tribunal ruled that a BRP is not a grant of leave itself, but merely evidence of a pre-existing decision to grant leave. Citing Regulation 13 of the Biometric Regulations, the Tribunal stated that a BRP can only be legally issued if a prior decision to grant leave has been made.
The Tribunal found it "obvious and frankly beyond sensible argument" that the BRP in this case was issued in error. The detailed refusal letter from the Secretary of State, which was issued just one day before the BRP, clearly and comprehensively refused the applicant's asylum and leave to remain.
The Tribunal reasoned that it was a "blinding reality" that no valid decision to grant leave had been made.
Because the BRP was issued in error and did not constitute a valid grant of leave, the FTT's decision that the appeal was abandoned was based on a flawed premise. The appeal could not be treated as abandoned under Section 104(4A) of the NIAA 2002.
Implications:
This ruling provides a clear and authoritative statement on the legal nature of BRPs. The Tribunal explicitly stated that a BRP is not a grant of leave itself, but rather evidence of a pre-existing decision to grant leave. This is a crucial distinction. This means that an improperly issued BRP, such as one issued after a refusal of leave, is legally invalid and does not automatically grant a person leave to remain. An immigrant cannot rely on this document to prove they have a legal right to stay in the UK. This means that receiving a BRP does not automatically protect an individual from being removed from the country if the underlying decision to grant them leave was never made.
The case also provides a clear path for challenging administrative errors. The Tribunal's decision allows a person to appeal a refusal of their application, even if a BRP was mistakenly issued.
