Palestinian refugee forced to wait further 18 months for refugee status after Home Office change of position

The Upper Tribunal has allowed a judicial review brought by a Palestinian man after a nightmare scenario where the Home Office withdrew the refusal of his asylum claim the day before his appeal hearing, indicating that refugee status would be granted, only to later to resile from that position following publicity of the case. The case is R (HI) v Secretary of State for the Home Department JR-2024-LON-002059.

The case is currently unreported, but instead of a headnote there is a summary addressing the point of whether withdrawals to grant in First-tier Tribunal proceedings can give rise to a substantive legitimate expectation that leave will be granted, which is set out in full below.

Background

The applicant is a Palestinian Muslim and Israeli national who has lived in the UK for most of his life, and who claimed asylum on 12 September 2019. His claim was refused on 23 October 2022, with the decision maker “finding that there was no real risk that the Israeli authorities would persecute him for his political opinions and there was sufficiency of protection against harm from non-state actors”. The applicant appealed the refusal.

Following the applicant’s submission of evidence, including a bundle of evidence relating to events of and since 7 October 2023, the Home Office was due to carry out its review of the case by 17 November 2023. Extension of time were requested on 16 November 2023 and 1 December 2023 and were granted.

On 27 January 2024 the applicant applied for the matter to be listed for a hearing in the absence of the Home Office review. The hearing was listed for 12 March 2024. The day before, an email was sent to the tribunal and to the applicant’s solicitors:

It was time stamped 11:57 AM and was written by Ms Amini, a HOPO in the Appeals, Litigation and Administrative Review section (ALAR). It stated: “the Respondent wishes to grant the Appellant Refugee Status and thereby seeks permission to withdraw their decision.”

A letter was also sent stating that the matter had been reviewed ahead of the hearing and “it has been concluded the decision to refuse is no longer appropriate and the immigration decision is therefore withdrawn. It is anticipated that refugee leave will be granted, subject to any further checks which are required and the appellant providing any documents requested. If leave is not granted a new decision will be made”. The letter asked that the tribunal treat the asylum refusal decision as withdrawn and vacate the hearing.

The wording of the letter was taken from a template in the “Guidance for presenting officers on withdrawing decisions”. That guidance states on page 5 that “A decision should only be withdrawn with a view to granting leave” and then provides a list of examples where this may arise.

The tribunal contacted the applicant’s solicitors at 12.40pm directing them to confirm by 4pm whether there were reasons the appeal should not be treated as withdrawn. The solicitors replied at 2.10pm expressing the applicant’s concerns that there did not appear to be a guarantee of refugee status nor had there been any acceptance of the applicant’s right to leave to remain under article 8.

The reply was sent to the Home Office as well as the tribunal, and a tribunal caseworker then decided to treat the appeal as withdrawn. The decision was confirmed by a judge shortly after, who noted “expressly that the Respondent had “indicated an intention to grant refugee status subject to checks” and that there was no reason to think that the Respondent was being “disingenuous””.

After emailing the tribunal on 11 March 2024, the Home Office Presenting Officer had emailed the Asylum Secondary Reconsideration Team stating “we have withdrawn the above case and have granted the Appellant refugee leave on the basis of a change in the country situation in Israel”.

The applicant’s lawyers (not those instructed in this judicial review) publicised the outcome of the case, although there was no formal grant of refugee status that had been issued at this stage. This appears to have led to ministerial interest in the case. An internal Home Office note dated 13 March 2024 produced for the Minister made reference “to a story in the national press [presumably this, in the Guardian] reciting marketing publicity published by A’s legal team after the appeal was withdrawn, which had caused concern in Government.”

A further information note for the Minister was produced the following day, explaining the decision to withdraw and grant refugee status. The note advised the Minister that there was “a recognised legitimate expectation that full refugee status will now be granted” and that “any attempt to “row back from this decision” would come with significant risks including allegations of Ministerial involvement in individual claims and likely legal challenge”.

There followed much internal communication at the Home Office about whether the withdrawal of the asylum refusal had been with a view to a grant or so that the decision could be reconsidered. It was set out clearly that the withdrawal had been with a view to granting asylum, however the Asylum Decisions Policy team took the approach that the withdrawal had been for the purpose of reconsidering the decision or alternatively that they would take the responsibility for resiling from the substantive legitimate expectation. A Secondary Asylum Casework Lead unsuccessfully attempted to correct the position.

On 23 May 2024 the applicant’s asylum claim was refused, as was his article 8 claim. There was no mention in the decision of the representations that had been made to the tribunal on 11 March 2024, nor any attempt to explain the change of position.

The decision was refused, and this time the Home Office did carry out a review as part of the appeal process and on 23 September 2024 the refusal was maintained. The review also dealt with the substantive legitimate expectation and said that this was being resiled from because:

(1) it was based on an erroneous assessment (para. 109); (2) there was no reasonable basis for it (para. 110); (3) it was wrong (para. 111); (4) it was contrary to the principle that such a decision must be made on the merits and up to date evidence (para. 112 and 113); (5) it would not be reasonable and proportionate (para. 114); (6) it would be contrary to the public interest in a fair and rules-based system because it was unjustified on the merits (para. 114). No detail supporting these assertions was provided.

The judicial review

The applicant sought judicial review of the review decision and a rolled up hearing was listed for 9 April 2025. The Home Office sought and obtained an adjournment to provide a witness statement explaining the reasons for resiling from the 11 March 2024 decision. The witness statement was provided by the Head of Asylum Decisions Policy and the tribunal said the following about her evidence:

She decided, based on her experience, that the claim appeared to be “flawed” or “at best unusual”, given that “Israel is not a country from which we see a large number of claims for protection”. She stated that: “My understanding is that whilst the HOPO has the authority to withdraw the decision as not sustainable on appeal, it is for the decision-making team to determine whether someone is a refugee, and therefore entitled to refugee status”. In our judgment that understanding was incorrect in fact and in law as we will set out below.

The tribunal considered that her misunderstanding of the difference between a withdrawal to grant and a withdrawal to reconsider “may have been at the root of her decision”.

The tribunal rejected the submission that the Home Office Presenting Officer did not have the authority to bind the Home Secretary on the decision, with reference to Awuah and Others (Wasted Costs Orders – HOPOs – Tribunal Powers) [2017] UKFTT 00555 (IAC). The submission that only the Asylum Operations department could make the decision was also rejected, with the tribunal noting that:

The Respondent did not take us to any law or policy that justified such a finding. Nor was it the view of the majority of the Respondent’s officials at the time. The Respondent’s internal communications contain numerous occasions on which her officials treated the decision to grant asylum as one that had already been made and either fell to be implemented or would have to be overturned.

In making its decision, the tribunal set out the relevant case law on substantive legitimate expectation, including Re Finucane’s application [2019] UKSC 7. Considering the relevant test, the tribunal held that the applicant had discharged the burden of proof showing that the Home Office had made clear and unambiguous representations which gave rise to the legitimate expectation, the scope of which was also clear and unambiguous.

The tribunal said that the submission that there was no difference between a withdrawal to grant and a withdrawal to reconsider was “wrong in fact, wrong in law and inappropriate both in the context of the FTT Rules r.17 and the established practice”. There was no fair justification for the subsequent change of position and no evidence of a change of circumstances.

The judicial review was allowed and the tribunal quashed the decision of 23 September 2025 and ordered that the applicant be served with a decision recognising him as a refugee and granting him leave to remain on that basis.

Summary regarding whether withdrawals to grant in FTT proceedings can give rise to a SLE that leave will be granted

89. In appeals before FTT, HOPOs bind the Respondent through representations they make to appellants and the Tribunal in the course of proceedings. Their authority reflects the Carltona principle and is recognised in practice by the Tribunal and the parties. It is also in the interests of the overriding objective of deciding appeals proportionately, efficiently and without delay. It would be unworkable if, for each communication from a HOPO, the Tribunal and appellants had to ask whether the HOPO had the authority to make it.

90. Among the actions a HOPO is empowered to take are withdrawing a refusal decision in order for it to be reconsidered and withdrawing a refusal decision and at the same time deciding that leave will be granted, subject to “any further checks which are required”. The second decision is commonly known as a “withdrawal to grant” or WTG.

91. The established understanding of a decision to withdraw to grant subject to “further checks” is that the further checks are related to criminality and security and do not involve a reconsideration of the claim on its merits.

92. If a HOPO informs the Tribunal and the appellant that a decision has been withdrawn and the expectation is that leave will be granted, subject to “further checks”, this is likely to give rise to a substantive legitimate expectation (SLE) that leave will be granted unless those checks disclose something that would justify not granting leave.

93. If the SSHD subsequently frustrates that SLE by reconsidering the claim on its merits and refusing it for some other reason, this will require justification, in line with the principles that generally apply to the frustration of SLEs by public bodies.

94. The fact that a different official within the Home Office disagrees with the decision to grant leave is unlikely to constitute fair justification.

Conclusion

This case has every appearance of having been unfairly and wrongly politicised, as well as completely mishandled by the Home Office from the outset. But it does also seem like a miscalculation on the part of the appeal lawyers to prematurely publicise the outcome (described as “questionable” by the tribunal, which declined to make a finding on whether the change of position was generated by the press reports). This case is a good demonstration of the fact that the Home Office does not act in good faith and that a case is not over until a grant has actually been implemented.

The result here has been an awful situation for a vulnerable refugee with documented mental health issues, who has had to wait an additional 18 months to obtain his status.