High Court upholds Home Office interpretation of the immigration rules in asylum withdrawal case

The High Court has agreed with the Home Secretary in a judicial review challenging a claimant’s deportation and detention on the grounds that he had an outstanding asylum claim. The High Court held that the implicit withdrawal of the asylum claim was lawful and accepted the Home Secretary’s argument that changes made in 2023 were in fact “clarifications”. The case is R (Zoto) v Secretary of State for the Home Department [2025] EWHC 2148 (Admin).

Background

The claimant came to the UK by boat on 29 June 2022 and was detained on entry. He claimed asylum the same day. He was referred to the National Referral Mechanism the following day for consideration of whether he was a victim of trafficking.

The claimant left his asylum accommodation on 2 July 2022. On 3 July 2022 his asylum claim was recorded as withdrawn by the Home Office, but no withdrawal decision was issued to his file.

On 5 July 2022 a positive reasonable grounds decision was made, the first in the two stage trafficking identification process. On 21 June 2023 a formal decision letter was issued to the claimant’s file stating that his asylum claim had been deemed implicitly withdrawn. The Home Office did not provide any evidence of attempts to contact the claimant, including by calling the mobile number they had for him.

On 1 November 2024 the claimant was encountered during a stop and search and was arrested. The claimant was subsequently convicted of possession with intent to supply a class A drug. He was sentenced to two years and nine months’ imprisonment and served with a stage one deportation notice letter.

On 16 October 2024 a negative conclusive grounds decision was made on his trafficking claim. A month later he was served with a deportation decision and on 27 November 2024 was served with a notice of intent to remove. Removal was scheduled for 12 December 2024.

The judicial review

A judicial review was issued on 3 December 2024. Interim relief was refused on 11 December 2024. The claimant sought permission to appeal from the Court of Appeal. Removal directions were cancelled at 9.14pm on 11 December 2024 and the appeal to the Court of Appeal was withdrawn by consent.

On 13 February 2025 permission was granted for the judicial review which was challenging the deportation decision and detention as being unlawful on the grounds that the claimant had an outstanding claim for asylum. The judge said that while it was not possible to have any sympathy for the claimant given his conduct, he was entitled to due process and:

Everything depends on whether the claimant had an outstanding asylum application at the date of the decisions to detain and remove him, and, because there is no doubt that the claimant did make an asylum claim, that in turn depends on whether the defendant’s decision to treat the asylum claim as implicitly withdrawn was lawful….

The court’s decision centred on the interpretation of paragraph 333C of the immigration rules at the time:

333C. If an application for asylum is withdrawn either explicitly or implicitly, consideration of it may be discontinued. An application will be treated as explicitly withdrawn if the applicant signs the relevant form provided by the Secretary of State. An application may be treated as impliedly withdrawn if an applicant leaves the United Kingdom without authorisation at any time prior to the conclusion of their asylum claim, or fails to complete an asylum questionnaire as requested by the Secretary of State, or fails to attend the personal interview as provided in paragraph 339NA of these Rules unless the applicant demonstrates within a reasonable time that that failure was due to circumstances beyond their control. The Secretary of State will indicate on the applicant’s asylum file that the application for asylum has been withdrawn and consideration of it has been discontinued.

The rules were amended effective from 7 August 2023 to widen the circumstances in which a claim could be treated as withdrawn. The claimant’s circumstances would have fallen within new paragraph 333C(b)(i) which says that a claim may be treated as withdrawn when the applicant “fails to maintain contact with the Home Office or provide up to date contact details as required by paragraph 358B of these Rules”. The disagreement between the parties in this case was whether the previous wording implicitly included this situation.

The new reasons for withdrawing claims had first been introduced in version 7 of the Home Office guidance “Withdrawing asylum claims” dated 5 May 2023.

The High Court got around the Alvi point by stating:

60. In the case of R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33, the Supreme Court made clear that as there is a statutory requirement in section 3(2) of the Immigration Act 1971 that immigration rules must be laid before Parliament, it was not permissible for the Defendant to rely on any conditions (in that case a list of skilled occupations) which only appeared in an a supplementary Code of Practice which had not been laid before Parliament.
61. In the context of this case, the effect of the decision in Alvi is that the Defendant cannot rely on any additional criteria in the Guidance to supplement the scope of paragraph 333C. This does not mean however that the Defendant’s Guidance cannot throw some light on the intended meaning of the words in the Rules and the policy context and purpose which they were intended to address.

The court concluded that version 7.0 of the guidance “properly reflected the intended scope of paragraph 333C”. The judicial review was dismissed.

Conclusion

I raised concerns about these new reasons being added to the guidance but not to the rules in August 2023 and was of the view that it would not be lawful to rely on the new reasons prior to the rules change. I remain of that view and am still quite unconvinced by the High Court’s reasoning on this point, which included taking into account the fact that the Home Office had said that the changes to the immigration rules were made to “improve clarity”. To me, the use of those words seemed like an attempt by the Home Office to disguise the fact that significant changes were being made to the guidance before the rules, in breach of Alvi.

I don’t think it is too controversial to say that these are certainly not the facts I would have liked to see this argument first run on, as there will be many out there with far better merits. The need for due process regardless of personal circumstances is obviously an important one, and the court was careful to emphasise this, but the facts of these cases do still often have an impact.

It is easy to consider, for example, that the apparent failure on the part of the Home Office to attempt any contact before withdrawing the asylum claim may have been considered more significant in a different case. Knowing the litigation practices of the Home Office as I do, I wonder to what extent similar challenges with better facts have been settled to avoid them getting to this stage.