The case of AB, R (On the Application Of) v The Secretary of State for the Home Department [2018] EWCA Civ 383 has unusual facts, but an unsurprising conclusion: the Home Office cannot grant asylum to someone who is not in the UK.

The background is not really important but undoubtedly interesting! The appellant, AB, is a leader of a political movement in his country of nationality. He entered the UK as a visitor and subsequently claimed asylum. His claim was refused and an appeal lodged at the First-tier Tribunal.

In the meantime, AB had been granted exceptional leave to remain in the UK, which had been extended periodically. He was able to leave temporarily with a certificate of travel issued by the Home Office to “engage in talks concerning his country” before returning to Britain.

AB then applied for a new certificate of travel “to attend talks in the United States as part of a peace process” (presumably the previous talks were along the same lines). The certificate was refused. So AB left the UK without telling the Home Office, using a passport issued to him by a third country.

While he was abroad, and one day prior to his First-tier Tribunal hearing, the Home Office withdrew its asylum decision with a view to remaking it. The Secretary of State asked AB’s solicitors whether AB was in the UK and, when they were told he was not, sent them a letter stating:

As your client is no longer in the United Kingdom the Secretary of State is not in a position to take forward his claim for asylum and, in light of your client’s actions, a further decision cannot be made.

If and when your client seeks to re-enter the United Kingdom, any further application for asylum will involve an interview and your client will be expected to inform the Secretary of State of his change in circumstances. I note that, if he intends to return to the United Kingdom, your client will need to satisfy the Immigration Officer at the port of entry that he qualifies for admission.

Since then, AB has not been permitted to re-enter the UK and he is currently living in another EU country.

The requirement to be in the UK at the time of the decision on an asylum claim

AB lodged a judicial review against the decision of the Secretary of State to refuse to make a decision on his asylum claim whilst he was outside the UK. Mr Justice Sweeney dismissed the application and AB appealed.

AB’s first argument was that the judge erred in finding that paragraph 334 of the Immigration Rules requires an applicant for asylum to be in the UK at the time of the decision. At the time, rule 334 provided:

Grant of refugee status

An asylum applicant will be granted refugee status in the United Kingdom if the Secretary of State is satisfied that:

(i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom…

The Court of Appeal found that it is implicit in the wording of the Rule that the requirement to be in the UK to be granted asylum must be satisfied at the time when the decision on the application is taken. In addition, there is nothing in the 1951 Refugee Convention, the European Qualification Directive, the European Procedures Directive or the Dublin II Regulation, which gives a reason to interpret Rule 334 otherwise.

AB alternatively argued that Rule 334 does not require an applicant to be present in the UK for a decision to be taken on the application. The Court of Appeal agreed with that argument: the Secretary of State should have taken a decision, and in fact the rules required a decision to be taken on each application for asylum as soon as possible, even where an applicant is not in the UK.

But in accordance with the Rules, the decision the Secretary of State should have taken was to refuse the claim. This would not have advanced AB’s wish to be granted asylum.

Exercise of discretion

The second argument was that the Secretary of State unlawfully fettered her discretion by proceeding on the basis that she was unable to make a decision on his asylum claim when it was open to her to take the decision outside the Immigration Rules. Had she considered whether to exercise her discretion outside the Rules, she could have granted his asylum claim or facilitated his re-entry to the UK to enable him to proceed with the application.

The Court of Appeal dismissed this argument on the basis that:

The principle against fettering discretion requires a decision-maker to be willing to listen to and consider arguments for not acting in accordance with a rule or other established policy. But it does not require the decision-maker to cast around for possible reasons to do so.

One must commend AB for trying out new and bold arguments. I can imagine the frustration of a leader of a political movement who travelled abroad to defend his cause at not being able to return to the country where his family lives.

However, it would have been difficult to see the Court of Appeal departing from the idea that an asylum seeker must be physically in the UK to be granted asylum. That is indeed the permanent issue with asylum: countries signed up to the Refugee Convention only have obligations to protect when individuals have reached their borders or are under their control. The Court of Appeal quoted a commentary on the Convention published in 1953:

In other words, if a refugee has succeeded in eluding the frontier guards, he is safe; if he has not, it is his hard luck.

The case is also a good reminder that a claimant must expressly ask the Secretary of State to exercise her discretion to grant asylum outside the Rules, and give reasons why she should.