Is the Home Office unlawfully treating asylum claims as withdrawn?

We have been flagging up concerns about the Home Office use of withdrawals for a couple of months now. We have covered the changes to the immigration rules relating to the withdrawal of asylum claims that come into effect on 7 August 2023, and published a briefing on withdrawals. The reason for the increased coverage is because the Home Office seems to be very busy withdrawing cases, as the data shows an increase from 1,652 withdrawn cases in Q4 2022 to 6,068 withdrawn cases in Q1 2023.

The next statistics release is on 24 August 2023, and this will certainly be a figure worth monitoring. 

Building on our previous coverage, below I have done a bit of a deep dive into what actually seems to be happening and to explain why I think that some of these decisions, potentially a large proportion of them, may be unlawful. In the data below, I have looked at Albanians and also at the several nationalities that have been identified for some form of streamlined asylum process due to the high success of asylum claims. 

I am aware that concerns have been raised about the possibility of withdrawals based on non-return of streamlining questionnaires. The streamlined asylum questionnaire was introduced on 23 February 2023, with a 20 time limit for return, and so if any withdrawals have been made for non-return of that, they are unlikely to show up until the next release of statistics. I have not heard of any withdrawals on this basis so far, but would be interested to hear from people if these do start happening. 

Background

The National Audit Office, in their report on ‘The asylum and protection transformation programme’ (dated 16 June 2023, HC1375), discussed the backlog clearance exercise, and stated at 3.11 that:

‘The Home Office now requires people from Albania who claim asylum to physically report to Home Office officials, and the Home Office will consider the person seeking asylum has withdrawn their claim if they do not turn up without a good reason.’ 

At 3.12 the report states that 72% of decisions made in April 2023 were ‘administrative decisions’ which include withdrawals (both explicit and implicit). It appears from the above that claims were being implicitly withdrawn at least as early as April 2023 for failure to report. The NAO report mentions this in the context of Albanians only.

The legal position on withdrawal of asylum claims

This is set out in detail in our briefing. The previous version of the guidance “Withdrawing asylum claims” version 7.0 dated 5 May 2023 (published on 16 May 2023) was ten pages longer than version 6.0 and made several changes to the previous version. Most of these changes were not noted in the section “Changes from last version of this guidance”, and so unless someone ran them through a pdf comparison site, as I have done, it is unclear how anyone was to know of this change.

Version 8.0 of the guidance has now been published to reflect the changes to the immigration rules, and interestingly, the explanation at the bottom of that page is that the changes to the immigration rules were to “provide clarity on the circumstances in which an asylum application will be withdrawn”. In fact, two entirely new reasons for withdrawing claims have been introduced through those rule changes as I explain below. Notably, there are few changes between version 7 and version 8 of the guidance. 

Below, I am referring to version 7.0 of the guidance, as this is where the new withdrawal reasons were first introduced. These reasons were not in the immigration rules until 7 August 2023 and this is legally significant.

The withdrawal guidance states explicitly on page 8 that “Paragraph 333C of the Immigration Rules sets out the circumstances in which it is appropriate to treat an asylum claim as withdrawn.” Despite this, the guidance sets out additional reasons for implicit withdrawal of claims that were not included in the immigration rules before 7 August 2023. 

Until 7 August 2023, the immigration rules provided for implicit withdrawal in the following circumstances at paragraph 333C(b), where a person:

• leaves the United Kingdom (without authorisation) at any time before the conclusion of their application for asylum; or 
• fails to complete an asylum questionnaire as requested by or on behalf of the Secretary of State; or 
• fails to attend a personal interview required under paragraph 339NA, unless the applicant demonstrates within a reasonable time that that failure was due to circumstances beyond their control.

As of 7 August 2023, the immigration rules have been changed to add the following, where a person:

• fails to attend any reporting events, unless the applicant demonstrates within a reasonable time that the failure was due to circumstances beyond their control;
• fails to maintain contact with the Home Office or provide up to date contact details as required by paragraph 358B of these Rules

However these two reasons were already in the May 2023 version of the guidance. This means that these two reasons were being used to implicitly withdraw asylum claims before they were law, i.e. before they were added to the immigration rules on 7 August 2023. 

As set out by the Supreme Court in Alvi, R (on the application of) v Secretary of State for the Home Department [2012] UKSC 33 at [41]:

The Act does not require those instructions or documents which give guidance of various kinds to caseworkers, of which there are very many, to be laid before Parliament. But the rules must be. So everything which is in the nature of a rule as to the practice to be followed in the administration of the Act is subject to this requirement. 

The Supreme Court held that substantive requirements in immigration control must be laid before Parliament as immigration rules under s.3(2) of the Immigration Act 1971. Attempting to import or incorporate requirements in documents such as policy guidance outside the rules is likely to be unlawful.

The situation in relation to the two new reasons for withdrawals seem to fall very squarely within Alvi, given the serious implications of withdrawal of asylum claims. This is despite the Home Office seemingly trying to spin these changes as a “clarification”.

It appears that at some point since starting to use these two new reasons, someone at the Home Office realised that they needed to be in the immigration rules, hence the change. However all implicit withdrawals prior to 7 August 2023 where the two new reasons were relied on seem likely to be unlawful because of Alvi.

What is the Home Office doing with Albanian cases?

We know from the NAO report that Albanian cases were being implicitly withdrawn using the “failure to report” reason as early as April 2023. 

In January 2023, the Home Office updated its guidance on reporting, which we covered at the time, along with the observation that it appeared Albanians were being targeted for physical reporting, i.e. they were being told they must report in person rather than by telephone. 

The situation appears to be that large numbers of Albanians were required to report in person in January 2023, and many missed doing this. Some people will not have received the letter, some will have been unable to report for various reasons, and some people would have been terrified that they were all of a sudden being told to report in person. 

This is particularly likely given the context, which is the explicit targeting of Albanians seeking asylum (yes I know that linked article mentions that the government denied that they were returning people who had claimed asylum, but there did not appear to be any moment in that process where they would have been able to do so, or to seek legal advice, so I do not believe that they did not return any refugees) that has been taking place with increasing ferocity over the past couple of years. So it is unsurprising, and completely predictable, that some people may have been too scared to go to the Home Office in person. 

Under this new process, all of the claims of these people who did not report, for whatever reason, seem to have been withdrawn. Prior to the change to the immigration rules on 7 August, it appears likely that these decisions were unlawful. 

Of the 4,386 Albanian withdrawn asylum claims in Q1 2023, 392 are from women and 57 from dependent children, and 7 are from unaccompanied children. In 2022 Albanian women had a success rate of 88% at initial asylum application stage, likely because of the risks around trafficking.

The government released some ad hoc statistics supposedly related to the Illegal Migration Act 2023 which stated that 2,898 Albanian nationals had been returned to Albania over the period 13 December 2022 (when the UK and Albania signed a Joint Communique) to 31 July 2023. There is unlikely to be any easy way to track how many (if any) of those returns were people who had their asylum claims implicitly withdrawn, but it seems more likely that people are still here, but now having to survive outside the system, with little incentive to re-enter it given the government’s attitudes towards Albanians.

What about other nationalities?

Other nationalities have also seen a dramatic increase in withdrawals in Q1 2023.

Several NGOs have said that they are seeing withdrawals happening in increasing numbers. Anecdotally, reasons for non-Albanians given seem more focussed on other reasons, including absence from hotels, and people have been accused of absconding. Due to the lack of a published policy on hotel absences, Home Office expectations are unclear, and unsurprisingly mistakes are being made in assuming that people have left the hotel permanently. 

Some people have left permanently, for example moving out of the hotel to live with family. It is unclear whether or not this has been communicated to the Home Office or the accommodation provider in all cases, but we do know that there is a lack of joined up communication between asylum accommodation and the decision making sections of the Home Office. 

It is entirely reasonable that people who have informed their asylum accommodation of a move believe that also amounts to telling the Home Office of a change of address. Further, poor record keeping is standard practice at the Home Office, which is another reason this is such a risky reason to use to withdraw cases.  

These examples may be the reason for the second new reason for implicit withdrawals, which is the failure to provide the Home Office with up to date contact details. This requirement is at 358B of the immigration rules, but was not linked to the risk of a claim being implicitly withdrawn until the change on 7 August 2023. Again, this was in the guidance only and is likely to be unlawful on that basis for the reasons set out above.  

Interestingly, this new reason is expanded on in version 8.0 of the guidance, and I suspect that this sets out the process that was already being followed before the incorporation into the rules. The guidance states that where contact has not been maintained and the Home Office has not issued a warning letter to the person, the ground of failure to maintain contact cannot be used to implicitly withdraw a claim but: “In these circumstances, an invite to a reporting event or asylum interview should normally be issued and if they fail to attend that reporting event or asylum interview, the claim should normally be treated as implicitly withdrawn in-line with the failure to attend a reporting event or failure to attend the substantive asylum interview sections.” 

It seems that pre-7 August withdrawals for failure to maintain contact may arguably be lawful where the Home Office sent an invite to the substantive interview and this was missed, as that was a lawful reason for withdrawal. However as set out above, if they relied on the failure to report pre-7 August, this is arguably unlawful. 

These withdrawals have been reported as happening as early as January 2023, and people often only find out when their asylum support is stopped and they contact Migrant Help to get it reinstated. 

This is affecting hundreds of people who are extremely likely to be granted refugee status, and who will not be returning to their country of origin post-withdrawal of their claim. It is very difficult to imagine what this is meant to achieve in practical terms, beyond an artificial reduction in the backlog. 

Effects of withdrawal

The guidance states: “All requests to reinstate an asylum claim after it has been withdrawn must be sent to AsylumOutcomeReview@homeoffice.gov.uk who will assess the request and notify the claimant and, where applicable, their legal representatives of the outcome of the review.” This seems the best process to follow, as if the withdrawal is challenged and withdrawn then it seems that the initial claim is reinstated.

However if this process is not followed and a person is advised to put in a fresh claim instead, then their claim will be considered under the Nationality and Borders Act 2022, where previously it may not have been caught by this. This means for example that a higher standard of proof will be applied to their claim, and may have particularly serious consequences for anyone who has survived modern slavery due to the highly punitive provisions for this group in the Act.

About the data

• ‘non-substantiated withdrawal’ defined as “An asylum claim is considered to be implicitly withdrawn (a ‘non-substantiated withdrawal’) if the applicant fails to cooperate with the process to examine and decide the asylum claim within a reasonable period. This includes where the applicant fails to attend the substantive interview, or leaves the UK prior to the conclusion of the application without authorisation, or fails to complete an asylum questionnaire as requested.”
• ‘other withdrawal’ defined as “An asylum claim can be withdrawn explicitly (i.e. if the applicant signs a form to withdraw an application), or withdrawn if the applicant leaves the UK prior to a decision.”

As it is unclear how the two new reasons for implicit withdrawal have been recorded prior to their being inserted into the immigration rules, I have used the combined withdrawal figures. If the Home Office provides a proper breakdown of withdrawals by reason relied on then a more accurate picture would be possible. It is unclear whether the Home Office is recording the precise reasons for the implicit withdrawal, i.e. if it possible to get any further breakdown of that data which would allow the extent of use of each of the reasons to be identified.

Conclusion: so what’s going on?

This is a terrible way to try to reduce the number of people waiting for their cases to be resolved in the asylum backlog, yet the Home Office has done this to over 6,000 people in the first three months of the year. The changes to the immigration rules on 7 August indicate that they intend to expand the use of this method. 

However there is no clarity on what the government expects to happen to these people. The only certainty is that many of them (particularly those from high grant countries) will still be here. They will still require their cases to be considered at some point in the future. This may seem like a resource light way to resolve the backlog, however it is yet another short term solution that will cause problems for everyone in the longer term.