The Home Office breached the human rights of a refused asylum seeker by evicting him while his eighth attempt to reopen his asylum claim was still pending, the High Court of Northern Ireland has found. The case is Re Omar Mahmud [2021] NIQB 6.

Background

Mr Mahmud, 42, is a Somali asylum seeker. He arrived in the UK in September 2013. Both the Home Office and the First-tier Tribunal refused him asylum, with permission for an onward appeal refused in October 2014. Over the next few years, Mr Mahmud submitted a series of “further submissions” in an effort to have his case considered again as a fresh asylum claim. All were rejected.

Between the sixth and seventh set of further submissions, the Home Office withdrew Mr Mahmud’s asylum support, saying he could avoid the resulting hardship by going home. Instead he ended up street homeless for the second half of 2018 and into early 2019, when judicial review proceedings were filed and the Home Office agreed to house him pending its resolution.

The two grounds of challenge were to the refusal of Mr Mahmud’s eighth set of further submissions, and to the withdraw of asylum support. The first ground failed.

Section 4 support and further submissions

The basis of the second ground was that the Home Office should have properly reviewed its withdrawal of support in light of the seventh and eighth set of further submissions. Mr Justice Friedman noted the “inter-relationship” between the Home Office’s duty to “carefully consider” further submissions, and the system of section 4 support for asylum seekers whose initial claims have been refused but who might be trying to submit a fresh claim. 

Home Office policy on withdrawing section 4 support in these circumstances says:

The existence of further submissions, combined with the fact that the person does not have access to accommodation and the means to live (or will shortly be in this position) may mean that support will need to be provided to prevent a breach of their ECHR rights. Wherever possible, the further submissions should be considered at the same time as consideration is given to the support application. 

If it is found that the further submissions are clearly abusive, manifestly unfounded or repetitious the application should be refused, which in practice will be at the same time as the further submissions are rejected.

This passage reflects the case of R (AW) v Croydon LBC [2005] EWHC 2950 (Admin), where Lloyd Jones J said:

It seems to me that pending a decision by the Secretary of State on whether the further representations constitute a fresh claim, the Secretary of State will not be bound in every case to provide support under section 4 where the other requirements of that section are met. In my view it will be open to him, or to NASS, to decline to do so, for example on the grounds that the further representations are manifestly unfounded, or merely repeat the previous grounds or do not disclose any claim for asylum at all.

There is also R (Nigatu) v Secretary of State for the Home Department [2004] EWHC 1806 (Admin). Collins J found it would be “thoroughly undesirable” for the Home Office to automatically withdraw support while further submissions are pending. But he added that one of the barristers present

… told me that she had been involved in a case where there had been no less than seven alleged fresh applications. Each time one was rejected, before removal could take place, another was put forward. One can see that in that sort of situation and where, for example, the alleged fresh claim contained nothing that was essentially new, and only arose sometime after support had been removed and when removal was due to take place, it may well be that the Secretary of State could properly refuse any further support.

Friedman J found that these cases should be followed in Northern Ireland too. The general vibe from those authorities, he found, is that the question of withdrawing asylum support when there are further submissions is “a fact sensitive issue”. That is still the case even if there have been multiple failed attempts to establish a fresh claim.

Support decision needs to take account of further submissions

On the facts of this case, “it might” (judge’s emphasis) have been lawful for the Home Office to withdraw support on the basis that Mr Mahmud’s representations were repetitive and/or manifestly unfounded. But that is not what happened. A series of administrative blunders meant that the application for support and the eighth set of further submissions were not considered side by side, as they should have been. Support was withdrawn without taking a view on the content of the eighth set of further submissions at all: 

the Home Office has never given an answer that it will refuse to renew asylum support because (in the terms of its Policy) the application is “clearly abusive, manifestly unfounded or repetitious”. It is open for the Home Office to say that and give reasons as to why. However, that was not done in this case.

Since “the applications for renewed support were never properly considered”, the judicial review claim succeeded. A hearing to decide on damages has already taken place and a decision is expected in the coming weeks.

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