High Court confirms ability to challenge lawfulness of withdrawal decision in asylum support appeal

In a decision on asylum support last year, the judge invited the Home Secretary to apply for judicial review of the tribunal so that guidance could be provided to asylum support judges on jurisdiction in implicit withdrawal cases (i.e. where the Home Office has deemed an asylum claim withdrawn). The Home Secretary did so and we now have that decision in R (Secretary of State for the Home Department) v First-tier Tribunal (Asylum Support) [2025] EWHC 694 (Admin).

In the decision under challenge, the First-tier Tribunal (Asylum Support) held that there is a right of appeal against a decision to stop a person’s asylum support where the reason for the support ending is that their asylum claim has been deemed withdrawn by the Home Office.

One of the appellants in the tribunal (MAH) participated in the judicial review as an interested party, opposing the Home Secretary’s submissions, supported by the excellent Asylum Support Appeals Project (ASAP) which provided a witness statement. As is its usual practice, the tribunal did not take an active role in the case.

Background

Details of the individual cases were set out at length in my write up of the tribunal’s decision and are worth reading. In brief, MAH and GK’s asylum support was stopped after their claims were withdrawn by the Home Office. Both claims were withdrawn because they did not receive an invite letter and as a result missed their asylum interview.

LKL made a new application for support after his asylum claim had been deemed withdrawn and the application was rejected because of the withdrawal. All three appealed, notwithstanding the Home Office stating that there was no right of appeal in GK and MAH’s cases.

Section 103 of the Immigration and Asylum Act 1999 states:

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.

(3) On an appeal under this section, the First-tier Tribunal may—

(a) require the Secretary of State to reconsider the matter;

(b) substitute decision for the decision appealed against; or

(c) dismiss the appeal.

The Home Secretary conceded that LKL had the right of appeal under section 103(1), but argued that the tribunal could not consider whether the withdrawal decision had been made lawfully. For MAH and GK, the Home Secretary argued that there was no right of appeal under section 103(2).

The tribunal concluded that it had jurisdiction in each case and all three appeals were allowed, with the Home Secretary ordered to remake the decisions. The tribunal also held that it could require the Home Secretary to follow her 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 judicial review

The evidence provided by ASAP included an explanation that because of the vulnerability of many of those on asylum support and the urgency of cases where asylum support is stopped, the usual timeframe from appeal to determination is 14 days. The tribunal can consider evidence whether or not it was before the Home Secretary and whether or not it would be admissible in a court. The judicial review process is obviously very different to this and the shortage of available legal aid lawyers to carry out this work was also highlighted as relevant.

ASAP said that if the Home Secretary’s argument that there was no right of appeal in these cases was maintained, more people would be pushed onto support under schedule 10 of the Immigration Act 2016 which was not intended for this use and has significant limitations compared to normal asylum support, as well as barriers to access such as a 24 page form and no right of appeal against a refusal.

In 2023 ASAP reported seeing an increase in the number of appeals in cases where the Home Secretary had implicitly withdrawn claims (for context, see my write up of changes made to the process). This was confirmed by the statistics which reflect an increase from implicitly withdrawn claims making up 12% of all decisions in 2022, to 18% of all decisions in 2023.

The Home Secretary responded, but did not seem to engage substantively with ASAP’s points, simply saying that both judicial review and schedule 10 were adequate.

The submissions made on behalf of the Home Secretary were that the tribunal had no jurisdiction to hear MAH and GK’s appeals because once their claims had been implicitly withdrawn they were no longer “asylum seekers” as defined in section 94 of the Immigration and Asylum Act 1999. It was also argued that the grant of section 95 support was conditional on attendance at the asylum interview.

In relation to LKL’s situation, it was submitted that when hearing an appeal, the tribunal lacks jurisdiction to consider whether the decision by the Home Office to treat the asylum claim as withdrawn was made lawfully.

The High Court dismissed all of the Home Secretary’s arguments and agreed with the conclusions of the tribunal, concluding that [at 113]:

(a) the Tribunal had jurisdiction to entertain LKL’s appeal under s. 103(1);

(b) the Tribunal had jurisdiction to consider MAH’s and GK’s appeals under s. 103(2); and

(c) in each appeal, the Tribunal was entitled to decide whether the asylum claim had been validly treated as withdrawn, since that issue determined whether the appellants continued to fall within the definition of “asylum-seeker” in s. 94(1) and so remained entitled to entitled to asylum support for the purposes of s. 95(1).

Conclusion

The tribunal now has the clarity it sought, as does the Home Office and anyone whose asylum support is stopped after the Home Office treats their claim as withdrawn. Where withdrawal decisions are not made in line with the guidance, appeals should succeed. The Home Office updated their guidance on stopping asylum support after the tribunal’s decision, but it may need to be amended further in light of this decision.

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