The Asylum Support Tribunal has found that there is a right of appeal against a decision to stop a person’s asylum support where their asylum claim has been deemed withdrawn by the Home Office, for example where the substantive asylum interview was missed. The Home Office guidance “Ceasing Section 95 Support instruction”, which claims the opposite on page 8, is wrong.

As part of the consideration as to whether the decision to stop support was lawful, the tribunal can consider the circumstances of the withdrawal itself and this will include looking at whether the Home Office followed its guidance on withdrawing asylum claims. The case is MAH v Secretary of State for the Home Department (AS/24/02/46289) and others.

The appellants

MAH is a 29 year old Sudanese man who claimed asylum on 18 September 2021. On 26 October 2022 he was granted asylum support under section 95 of the Immigration and Asylum Act 1999. On 2 October 2023 the Home Office sent a letter to MAH’s lawyers, Migrant Law Partnership, by post and email telling him that his substantive asylum interview would take place on 16 October 2023.

On 16 October 2023 the Home Office wrote directly to MAH as well as emailing his lawyers, asking for an explanation for his non-attendance at interview. MAH received the letter on 18 October 2023 but could not understand it. He found a friend to translate it for him and then tried to contact his lawyers by phone, email and Whatsapp but says that he did not receive a response. On 23 October 2023 his claim for asylum was withdrawn under paragraph 333C of the immigration rules.

MAH gave evidence that he made further attempts to contact his lawyers including attending the offices on several occasions between October and December. On 19 December 2023 he was sent a letter advising him that his asylum support would stop on 3 January 2024 and that there was no right of appeal against that decision. MAH’s lawyers do not accept that they failed to advise him of the interview date, however they did not comply with a tribunal direction to provide a statement explaining what had happened and to include all correspondence with the Home Office.

LKL is the second appellant and is a 40 year old Hong Kong national who claimed asylum 18 February 2022 and was provided with initial asylum support under section 98 of the Immigration and Asylum Act 1999. LKL was absent from his asylum accommodation from 28 September to 1 October 2023. On 2 October he emailed the Home Office to explain that his partner was due to give birth and he needed to be with her at this time.

On 17 November he emailed the Home Office asking for his son, born on 5 October, to be added as a dependant to his asylum claim. LKL returned to the hotel on 18 November 2023 and found that his belongings had been removed. He also found a letter dated 1 October inviting him to his substantive interview on 12 October and then another letter dated 14 November 2023 advising that his asylum claim had been withdrawn under paragraph 333C of the immigration rules because he had failed to attend his interview.

On 22 November LKL emailed the Home Office asking for a review of the withdrawal decision, explaining that he had missed the interview because of his son’s birth. The request for his asylum claim to be reinstated was refused on 13 December 2023. On 8 February 2024 he applied for section 95 support for himself, his partner and their son. This was refused on 14 February 2024 on the grounds that his asylum claim had been withdrawn as he had absconded from his asylum application and failed to attend his asylum interview.

GK is an Indian national who claimed asylum on 7 December 2019 with her two children as dependents. She was granted asylum support under section 95 on 31 January 2020. In November 2022 she was asked to attend her asylum interview on 24 November 2022. On 23 November GK’s lawyer emailed the Home Office to say that she was unable to attend because of an ear infection and that medical evidence would be provided once received. On 18 July 2023 the Home Office wrote to GK, advising that her asylum claim had been withdrawn on 15 February 2023 for non-attendance at interview, but that the decision had since been reviewed and her claim reinstated.

On 17 October 2023 the Home Office wrote to GK (and not her lawyers) asking her to attend an interview on 1 November 2023. Delivery was attempted on 18 October 2023 and the letter returned to sender on 23 October 2023 marked “addressee gone away”. On 1 November 2023 the Home Office called GK to ask why she had not attended her interview. She told them that she did not know about the interview and that she was still living in her asylum accommodation. On 15 November 2023 the Home Office sent another letter to GK advising that her asylum claim had been withdrawn for failure to attend her asylum interview without reasonable explanation. This letter was returned to sender on 22 November 2023.

On 22 February 2024 the Home Office wrote to GK advising that her asylum support was being discontinued with immediate effect and that there was no right of appeal against the decision.

The fourth appellant was NZ, a 27 year old national of Iraq who claimed asylum on 12 September 2022. He was granted section 95 support on 28 September 2022 and was in asylum accommodation. Despite this, the Home Office sent his interview invite letter, the follow up letter asking why he had missed his interview, and the letters withdrawing his asylum claim and stopping his support to number 131 instead of where NZ was living, at 45a. The notice of discontinuance had a different, third address on it that had been manually deleted and 45a inserted.

Following a direction from the tribunal, the Home Office confirmed that their records had NZ living at number 131. Somewhat unsurprisingly, the Home Secretary then conceded NZ’s case, cancelling the withdrawal of his asylum claim and reinstating his support such that his appeal became academic.

The issues to be determined

The following issues arose in the appeals:

• Does the tribunal have jurisdiction to hear appeals where an application for support has been refused on the grounds that the applicants did not qualify for asylum support because their claims had been deemed withdrawn?
• Does the tribunal have jurisdiction to hear appeals where asylum support has been discontinued following an asylum claim being recorded as withdrawn?
• Does the tribunal have jurisdiction to consider whether the underlying withdrawal decision was lawful?

The relevant legislation is section 103 of the Immigration and Asylum Act 1999, as follows:

103 Appeals
(1) If, on an application for support under section 95, the Secretary of State decides that the applicant does not qualify for support under that section, the applicant may appeal to the First-tier Tribunal.
(2) If the Secretary of State decides to stop providing support for a person under section 95 before that support would otherwise have come to an end, that person may appeal to the First-tier Tribunal.
(2A) If the Secretary of State decides not to provide accommodation for a person under section 4, or not to continue to provide accommodation for a person under section 4, the person may appeal to the First-tier Tribunal.
(3) On an appeal under this section, the First-tier Tribunal may—
(a) require the Secretary of State to reconsider the matter;
(b) substitute its decision for the decision appealed against; or
(c) dismiss the appeal.

The Home Secretary conceded that there is a right of appeal under section 103(1) of the Immigration and Asylum Act 1999 where the person has applied for asylum support and that is refused because the person’s asylum claim has been withdrawn. This was the position for LKL. Instead, the Home Secretary argued that although the decision carried a right of appeal, the tribunal did not have jurisdiction to consider the legality of the underlying asylum withdrawal decision.

It was submitted on behalf of LKL that this matter had been decided in R (SSHD) v CASA (Malaj interested party) [2006] EWHC 3059 (Admin), where the High Court said at [32] that “the Asylum Support Adjudicators can hear an appeal under section 103 (1) which relates to the existence or otherwise of the factual circumstances permitting the grant of support under section 95 of the Act and the making of an application under Regulation 3, and to arguments of law relating to those issues”.   

On the second issue, the Home Secretary argued that there was no appealable decision under section 103(2) or (2A) which provides for appeals against discontinuation, the situation for MAH and GK. The Home Secretary’s position was that there was no appealable decision in these cases as the person simply stopped meeting the definition of “asylum-seeker” and so there was no longer any entitlement to section 95 support. It was argued on behalf of the appellants that this definition was not compatible with the statutory language.

On the third point, it was argued on behalf of the Home Secretary that the tribunal did not have jurisdiction to substitute its own decision as to whether or not an asylum claim had been withdrawn lawfully, as the withdrawal decision was not “the decision appealed against” in section 103(3)(b). The appellants submitted that:

the validity of a prior asylum withdrawal decision is relevant to the correctness of the subsequent support termination. That is because, entitlement to section 95 support depends upon the claimant having an extant “claim for asylum”. The validity or correctness of the decision to treat the asylum claim as withdrawn therefore bears directly on the continuing entitlement to support.

The tribunal’s decision

The tribunal set out the relevant law and guidance around withdrawing asylum claims, with reference to version 9 of the withdrawals guidance (which I have covered previously). In deciding whether or not the tribunal had jurisdiction to hear the appeals, it considered previous decisions on jurisdiction and on implicit withdrawal (including one we have covered previously on cessation of support to people who refused to move to the Bibby Stockholm barge).

On the first issue, the tribunal said [at 120] that the argument put forward by the Home Secretary was the same that had been made in Malaj. The High Court there had pointed out that this would exclude people from the statutory appeals system, an outcome described as “quite artificial, and in conflict with the clear meaning of section 103(1), which gives a right of appeal where the issue of qualification for support is in issue, whatever that reason may be”.

The court also noted that the right of appeal is granted not to “asylum seekers” but to “a person who has applied for section 95 support”. The tribunal concluded that it did have jurisdiction to consider the factual circumstances that would permit a grant of support under section 95 and arguments of law relating to those issues.

On the matter of whether the tribunal has jurisdiction to hear appeals against a discontinuation of support following withdrawal of an asylum claim, again, the tribunal held that it can hear these appeals. The tribunal said that the Home Secretary’s arguments on this point ran counter to those made in AW where it had been argued “on behalf of the SSHD that the Tribunal’s jurisdiction was limited to a consideration of whether the appellants had reasonable excuse for their failure to comply with the condition breached and whether that breach was persistent and unequivocal”.

In those cases it was the decision to stop support that was challenged, not the decision requiring people to move to the Bibby Stockholm. In these withdrawal cases the same principle applied, the breach of condition was the alleged failure to attend the asylum interview.

The tribunal judge also said [at 131], in relation to the Home Office guidance “Ceasing Section 95 Support instruction” that “it is entirely wrong for the above reasons, to state that there “is no right of appeal against termination of support where the asylum claim has been withdrawn”.

On the third issue, the tribunal reiterated that it does not have jurisdiction to quash the withdrawal decision, but that it is able to look behind that decision and consider the circumstances in which asylum support was stopped. The tribunal said that this was the approach in R (DN (Rwanda)) v SSHD [2020] UKSC 7, which it adopted.

The tribunal also said [at 133] that it can require the Home Secretary to follow his published guidance on withdrawals and that where this has not been done it can require the Home Secretary to cancel the withdrawal decision and correct the error.

The tribunal was explicit about the importance of Home Office caseworkers complying with the published guidance [at 134]:

where the withdrawal policy requires that an invitation to interview letter must be sent to the asylum seeker and copied to the representative, if there is one, caseworkers must comply with this provision. It is there for a good reason. No doubt it was inserted to make double sure that no genuine asylum seeker is deprived of the right to be heard on an issue of radical importance to them where withdrawal of their asylum claim may result in his or her life and safety being put at risk, or where the removal of support runs the risk of the person being left destitute in the UK, which their Lordships in the House of Lords judgment of Limbuela unanimously held is (generally) a breach of Article 3 ECHR.

The tribunal said that people who miss their interview must be given the opportunity to explain their reasons for this and [at 136] that where Home Office caseworkers fail to follow the guidance, the tribunal will exercise its jurisdiction to require them to do so. The tribunal also said that there “can be no justification for not sending a letter to a claimant and copying the same to their representative”.

Outcome of the individual appeals

The tribunal found that while MAH’s representatives had not told him about the interview ahead of time and had not returned calls and emails, they had sent an email to the Home Office on 13 November advising that MAH had not received his invitation to the substantive interview. This meant that the Home Office case entry on 17 November saying that no contact had been made by either MAH or his representatives was inaccurate. It was held that MAH had a reasonable excuse for not attending his interview.

The tribunal found that LKL had been absent from his accommodation without a reasonable excuse. The reason for this was that he had not contacted either his housing office or the Home Office over the six week period he was absent. If he had done so and explained his absence and where he was, the tribunal said it would have found that he had demonstrated a reasonable excuse for his absence.

For GK, the tribunal found that she had not received the correspondence from the Home Office, which accepted that it had also failed to send the letters to her representatives.

The tribunal allowed all three appeals and the Home Secretary was ordered to reconsider the decisions. Although the tribunal had found that LKL did not have a reasonable excuse for being away from his accommodation for so long, there was no evidence that he had ever been served with conditions of his section 98 support and so the tribunal was unable to find that he was in breach of those conditions.

Further, there was no evidence that the Home Secretary had taken into account the section 55 duty to safeguard and promote the welfare of LKL’s baby. This was also the case for GK and her children.

The tribunal concluded by saying that if the Home Secretary disagrees with the tribunal’s approach to jurisdiction then he should apply for judicial review of the decision so that asylum support judges can be given guidance from the courts on the how jurisdiction in implicit withdrawal cases should be determined. As there are 13 cases stayed behind this one in the tribunal, the Home Secretary was asked to notify the tribunal of his intentions as soon as possible.

Conclusion

There has been a huge increase in the number of asylum claims deemed withdrawn since the beginning of 2023, as part of the Home Office’s backlog clearance exercise. We have been raising concerns about the process for over a year now and have continued to do so as the Home Office made it easier to withdraw claims by changing the guidance in December last year.

Pretty much all of the things we have said would be problems have featured in this case: Home Office records having the wrong address, issues with the postal system, checks not being carried out properly by the Home Office before claims were withdrawn. It is unclear how many people are currently trying to get back into the system and are being prevented from doing so by the Home Office, as we have seen in this case, but urgent action should be taken to find out.