Rhian Bernard Guerrero v Secretary of State for Home Department

Facts

The appellant, a national of Trinidad and Tobago, entered the United Kingdom with leave as a visitor in September 2020 and claimed asylum on 5 January 2021, citing a fear of persecution on account of his sexual orientation. By letter dated 11 August 2023, received on 16 August 2023, the Secretary of State for the Home Department refused the claim, accepting that the appellant was openly gay but refusing asylum and notifying him of an in-country right of appeal to the First-tier Tribunal exercisable within 14 days. On 17 August 2023 the Secretary of State issued him with a Biometric Residence Permit, received on 24 August 2023, described as proof of his permission to enter and stay and recording the type of permit as "Refugee Leave to Remain", valid until 31 December 2024. The appellant lodged a protective appeal on 29 August 2023, contending that the permit was a valid grant of leave. The Secretary of State later explained that its issue had been due to system error. Determining the point as a preliminary issue, the First-tier Tribunal judge held on 7 March 2024 that leave had been granted and that the appeal was accordingly to be treated as abandoned under section 104(4A) of the Nationality, Immigration and Asylum Act 2002. The Upper Tribunal allowed the Secretary of State's appeal and remitted the protection appeal; the appellant appealed to the Court of Appeal.