A new Court of Appeal judgment changes how appellants in the United Kingdom can respond when the First-tier Tribunal treats their immigration appeal as abandoned. In Guerrero v Secretary of State for the Home Department [2026] EWCA Civ 953, the court held that a First-tier Tribunal decision to treat an appeal as abandoned under section 104(4A) of the Nationality, Immigration and Asylum Act 2002 is an 'excluded' decision within Article 3(m) of the Appeals (Excluded Decisions) Order 2009.

The practical consequence is direct. An appellant who disagrees with a tribunal's finding that their appeal was abandoned cannot challenge that finding by bringing a further appeal. The decision ranks as preliminary and falls outside the appealable categories under the 2009 Order.

What changed

The dispute centred on section 104(4A) of the Nationality, Immigration and Asylum Act 2002. This provision governs when an immigration or asylum appeal is treated as abandoned. The question before the Court of Appeal was narrow but significant: does a First-tier Tribunal decision applying section 104(4A) count as a decision that can itself be appealed?

The court answered no. It classified the abandonment decision as an 'excluded' decision under Article 3(m) of the Appeals (Excluded Decisions) Order 2009. Once that classification applies, the ordinary route of appeal is unavailable.

Who is affected

The judgment affects anyone whose immigration or asylum appeal before the First-tier Tribunal has been — or may be — treated as abandoned under section 104(4A). appellants in that position now know that the abandonment finding itself cannot be taken to a higher tribunal through a fresh appeal.

The ruling also matters to representatives and advisers. It clarifies that challenging a tribunal's conclusion on abandonment requires a route other than a direct appeal against the abandonment decision itself.

The legal framework

Two instruments anchor the decision. The first is section 104(4A) of the Nationality, Immigration and Asylum Act 2002, which sets out the circumstances in which an appeal is treated as abandoned. The second is the Appeals (Excluded Decisions) Order 2009, which lists categories of tribunal decisions that carry no right of appeal. Article 3(m) of that Order proved decisive in Guerrero.

The Court of Appeal's reasoning places abandonment decisions among those preliminary, procedural findings that the appeals framework treats as final in themselves.

What it means in practice

The judgment, numbered [2026] EWCA Civ 953, settles the classification question at appellate level in England and Wales. Appellants who believe a tribunal wrongly treated their appeal as abandoned should seek advice on the procedural options that remain open to them, because a further appeal against the abandonment decision is not one of them.

This report summarises the court's published judgment. Anyone affected should read the full text of Guerrero v Secretary of State for the Home Department [2026] EWCA Civ 953 and consult a qualified immigration adviser about their own case. Passport File does not provide individual legal advice.

Key takeaways

• The Court of Appeal decided the case in judgment [2026] EWCA Civ 953.
• A First-tier Tribunal decision treating an appeal as abandoned under section 104(4A) of the Nationality, Immigration and Asylum Act 2002 is an 'excluded' decision under Article 3(m) of the Appeals (Excluded Decisions) Order 2009.
• Such abandonment decisions are preliminary and cannot themselves be appealed.