This judgment was handed down remotely at 10am on 21 March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
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MR JUSTICE CHAMBERLAIN
Mr Justice Chamberlain:
Introduction
- In this judicial review claim, the Secretary of State for the Home Department challenges a decision of Principal Judge Sebha Storey sitting in the First-tier Tribunal – Asylum Support ("the Tribunal"), handed down on 14 June 2024. She determined appeals under s. 103(2) of the Immigration and Asylum Act 1999 ("IAA 1999") by two individuals, MAH and GK, against decisions to stop providing asylum support and an appeal under s. 103(1) by a third individual, LKL, against a decision to refuse asylum support. The appeals had been linked and heard together as designated lead cases because they raised common issues of law. There had originally been a fourth case, but this was no longer live by the time of the hearing.
- The Principal Judge identified the issues of law as follows:
"(a) Does the Tribunal have jurisdiction to hear appeals purportedly brought pursuant to section 103(1) of the IAA 1999 by appellants whose applications for support under section 95 of the IAA 1999 are refused on the basis that the applicants did not qualify for support under that section because their claim for asylum has been deemed withdrawn?
(b) Does the Tribunal have jurisdiction to hear appeals purportedly brought pursuant to section 103(2) of the IAA 1999 by appellants whose support under section 95 of the IAA 1999 is discontinued following the recording of their claim for asylum as withdrawn?
(c) Does the Tribunal have jurisdiction to consider the lawfulness, and/or the merits, of a decision by the SSHD to treat an appellant's claim for asylum as withdrawn?"
- In each of the three cases live before her, the Principal Judge, having heard evidence, remitted the case to the Secretary of State with a requirement to reconsider. On 6 September 2024, the Secretary of State filed a claim for judicial review of the decision. In accordance with its usual practice, the Tribunal has remained neutral, but the claim is opposed by MAH as an interested party.
- Permission to apply for judicial review was granted on the papers by Foxton J on 6 November 2024. On 24 January 2025, the Asylum Support Appeals Project ("ASAP") applied to intervene. Unfortunately, that application was not considered by a judge until 24 February 2025, when it was refused by Lang J on the ground that by that time it was too late to grant it without disrupting the hearing, which was listed for 27 February 2025.
- At that hearing, Irena Sabic KC for MAH applied for permission to rely on the witness statement of Richard Copson, Head of Legal at ASAP (upon which ASAP had sought to rely as intervener). I read the statement de bene esse. At the conclusion of the hearing, I indicated that the statement appeared to contain useful background material and I was therefore minded to grant Ms Sabic's application to rely on it. I gave permission to MAH to file a short additional note after the hearing and to the Secretary of State to respond to that note, and to the witness statement of Mr Copson, by written submissions and evidence. Pursuant to these directions, MAH filed submissions and further authorities on 3 March 2025. The Secretary of State responded to this, and to Mr Copson's evidence, by written submissions (but not evidence) on 17 March 2025.
The cases before the Principal Judge
MAH
- MAH is a national of Sudan. He claimed asylum on 18 September 2021. He was granted asylum support on 26 October 2021 subject to conditions. One of these was that he attend any interviews unless there was a good reason why he could not. On 2 November 2022, he instructed the Migrant Law Partnership ("MLP") to act for him. On 13 and 21 September 2023 he sent enquiries to his solicitor and an interpreter at MLP seeking an update on his asylum claim, but did not receive a response.
- On 2 October 2023, the Home Office posted and emailed to MLP a letter inviting MAH to attend an asylum interview. The letter was not sent to MAH directly. MAH did not receive it from MLP.
- On 16 October 2023, the Home Office wrote to MAH at his hotel and emailed MLP requesting an explanation for his non-attendance. MAH collected a copy of the letter from the hotel reception on 18 October 2023, but did not understand it. It was explained to him by a friend that he had failed to attend his asylum interview. He then attempted to contact MLP by telephone, email and WhatsApp, but did not receive a response.
- On 23 October 2023, the Home Office wrote to MLP in these terms:
"You were asked to attend an interview in connection with your claim for asylum in the United Kingdom on 16 October 2023 at 08:30. However, you did not attend. As a result a letter was sent to you on 16 October 2023 advising you that your claim for asylum would be withdrawn under paragraph 333C of the Immigration Rules unless an acceptable reason (including documentary evidence) for failing to attend your asylum interview was provided within 5 days.
You failed to respond to this letter. As a result, your claim for asylum has been withdrawn under paragraph 333C of the Immigration Rules, and consideration of your asylum claim will be discontinued."
- On 19 December 2023, the Home Office wrote to MAH at the hotel accommodation that was being provided for him pursuant to s. 95 of the IAA 1999. It said this:
"Following confirmation that your application for asylum has been withdrawn, I am writing to advise that you no longer qualify for support under section 95 of the Immigration and Asylum Act 1999. The support that you have been provided with is to be discontinued from 3rd January 2024, when you will no longer be able to use your ASPEN card [the Asylum Support Enablement Card used for weekly subsistence payments].
Your eligibility for accommodation… will cease on 3rd January 2024, when you will be expected to leave. You should make immediate arrangements to vacate the premises.
The accommodation provider has been notified of this decision and will contact you separately.
You should note that there is no right to appeal against this decision under section 103 of the Immigration and Asylum Act 1999 to the First-Tier Tribunal - Asylum Support. If you believe that your support should continue because your claim for asylum is still under consideration or you have an appeal against refusal of asylum that is still pending, please contact Migrant Help UK."
- Despite this, on 27 December 2023, MAH lodged an appeal with the Tribunal under s. 103(2) IAA 1999. The Secretary of State agreed to continue to provide support pending the Tribunal's decision.
LKL
- LKL is a national of China from Hong Kong. He claimed asylum on 18 February 2022. He was provided with support under s. 98 IAA 199 for nearly two years, until 14 February 2024. He was absent from his hotel for periods in the run-up to and immediately after the birth of his son on 5 October 2023. The mother, his fiancée, lived elsewhere. On 18 November 2023, he returned to his hotel to find that his belongings had been removed. There was a letter dated 1 October 2023 inviting him to an interview on 12 October 2023. A second letter dated 14 November 2023 informing him that his claim had been withdrawn under paragraph 333C of the Immigration Rules because he had failed to attend an interview.
- On 22 November 2023, LKL emailed the Home Office to explain the reason why he had not attended and to request a review of the withdrawal decision. On 13 December 2023, the Home Office wrote to him to say that the withdrawal decision was maintained. He did not challenge this decision.
- On 8 February 2024, he applied for support under s. 95 IAA 1999 for himself, his fiancée and his son. This was refused on 14 February 2024 in the following terms:
"Asylum support may only be provided to a person who is an asylum seeker as defined in section 94 of the 1999 Act.
On the information available, I am not satisfied that you are an asylum seeker. You lodged your asylum claim as a sole applicant and this claim was withdrawn on 14/11/2024 [sic] as you had absconded and failed to attend your Asylum interview. You are therefore not eligible for section 95 asylum support as you are not an Asylum seeker as laid out in Section 94 of the 1999 Act."
- LKL appealed under s. 103(1) IAA 1999. The Secretary of State accepted that the Tribunal had jurisdiction to hear the appeal.
GK
- GK is a national of India. She arrived in the UK in 2015 and claimed asylum on 7 December 2019. On 31 January 2020, asylum support was granted for her and her two minor children, subject to conditions. One of these was that she attend any interview unless there was a good reason why she could not. In November 2022, she instructed solicitors, who informed the Home Office that they were acting.
- On 17 October 2023, the Home Office wrote to GK (not copied to her solicitor) to invite her to an interview on 1 November 2023. The letter was returned to sender, marked "addressee gone away". On 1 November 2023 the Home Office contacted her by telephone to ask why she had not attended. She told the caller that she did not know about the interview and still lived at the same address.
- On 1 November 2023, the Home Office wrote to GK (not copied to her solicitor) asking for an explanation of why she had not attended the interview. This letter was also returned to sender, marked "addressee gone away". On 15 November 2023, the home Office wrote to GK to say that her asylum claim had been withdrawn under paragraph 333C of the Immigration Rules ("IRs") because of her failure to attend the interview without reasonable explanation. This letter too was returned to sender, marked "addressee gone away".
- On 22 February 2024, the Home Office wrote to GK (not copied to her solicitor) in these terms:
"Following confirmation that your application for asylum has been withdrawn, I am writing to advise that you no longer qualify for support under section 98 or section 95 of the Immigration and Asylum Act 1999. The support that you have been provided with is to be discontinued with immediate effect and you will no longer be able to use your ASPEN card.
…
You should note that there is no right of appeal against this decision under section 103 of the Immigration and Asylum Act 1999….
As a failed asylum seeker, you are expected to make arrangements to leave the United Kingdom without delay… It may be possible to provide you with short term support under section 4 of the 1999 Immigration and Asylum Act."
- Notwithstanding what was said in the letter, GK appealed to the Tribunal under s. 103(2) IAA 1999. The Secretary of State agreed to continue to provide support for her and her minor children pending the Tribunal's decision.
The Principal Judge's decision
- The Principal Judge made findings of fact about the circumstances leading to the appellants' claims being treated as withdrawn.
- Under issue 1, she recorded that it was common ground that the Tribunal had jurisdiction to determine LKL's appeal pursuant to s. 103(1) IAA 1999. She rejected the Secretary of State's submission that she could not consider the question whether LKL qualified as an asylum seeker. This submission had also been made before and rejected by HHJ Gilbart QC (as he then was) in R (Secretary of State for the Home Department) v Chief Asylum Support Adjudicator (Malaj, Interested Party) [2006] EWHC 3059 (Admin).
- Under issue 2, she said that MAH's and GK's asylum support had been discontinued for breach of a relevant condition pursuant to reg. 20(1)(k) of the Asylum Support Regulations 2000 ("the 2000 Regulations": SI 2000/704). This was an appealable decision. The question before her was whether the condition had in fact been breached, not whether the condition was reasonable. The Court of Appeal's decision in R (Secretary of State for the Home Department) v Chief Asylum Support Adjudicator ("Dogan") [2003] EWCA Civ 1673, [2004] HLR 25 did not determine the point in the Secretary of State's favour. There, the question was whether the tribunal could entertain an appeal against a condition requiring the asylum seeker to reside at a particular location. There was no appeal against that, because no regulations establishing one had been made under s. 103(7) IAA 1999.
- Under issue 3, the Tribunal had never suggested that it had jurisdiction to quash a decision of the Secretary of State to treat an asylum claim as withdrawn. However, it could "look behind" the asylum claim to see how and in what circumstances the decision to discontinue support had been reached and whether it was consistent with published policy.
- The Principal Judge accepted MAH's evidence, finding that he had been let down by his solicitors. In any event, the Secretary of State did not comply with her own policy because it was accepted that the letter had not been sent to MAH personally. Accordingly, the decision to withdraw his asylum claim was based on erroneous facts and should be reviewed. The case was remitted to the Secretary of State with a requirement to reconsider.
- There was no dispute that GK's solicitor was not copied into relevant correspondence (contrary to Home Office policy) and no dispute that GK did not receive the relevant letters herself. It was also a matter of concern that no consideration was given to the fact that she was a lone parent of two minor children when requiring her to vacate her accommodation with immediate effect. Given these errors in applying the Secretary of State's policy, the case was remitted to the Secretary of State with a requirement to reconsider.
- LKL was found to be a credible witness. There was no sufficient evidence to show that he had breached the conditions of his temporary support. There was no evidence that the Secretary of State had taken into account the need to safeguard and promote the welfare of LKL's 6-week old baby (who was his dependant) before discontinuing LKL's support. No consideration was given to the duty in s. 55 of the Borders, Citizenship and Immigration Act 2009. Accordingly, the case was remitted to the Secretary of State with a requirement to reconsider.
Evidence from the Asylum Support Appeal Project
- In his witness statement, Mr Copson notes that there has been an appeal against asylum support decisions since 2000. The appeal originally lay to the Asylum Support Adjudicator. The first such adjudicator was Sebha Storey, who was the Principal Judge of the Tribunal in these appeals and at that stage had some 24 years' experience in the jurisdiction.
- The appellate jurisdiction exercised by Adjudicator and then the Tribunal was designed with the following features in mind: (i) users are by definition likely to be destitute or to become destitute imminently; (ii) many are vulnerable (for example they have mental or physical health issues, have experienced severe violence or are vulnerable to trafficking); (iii) most do not speak English fluently and are unfamiliar with the English legal system; and (iv) due to the Home Office dispersal policy, they are dispersed throughout the UK.
- As a result, the current procedure rules set very short timeframes for appealing and responding to appeals. The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685) provide that, in asylum support cases, an appeal must be brought within 3 days after receipt of the challenged decision (r. 22(2)(a)) and the Tribunal give at least one but not more than 5 days' notice of the hearing (r. 29(2)(a)). The usual timeframe from appeal to determination is around 14 working days. The Tribunal can consider evidence whether or not it was before the Secretary of State and whether or not it would be admissible in a court (r. 15(2)). The Tribunal's overriding objective includes avoiding unnecessary formality and seeking flexibility and ensuring that the parties are able to participate fully in the proceedings.
- In 2023, ASAP saw an increase in the number of appeals involving decisions by the Secretary of State to treat an asylum claim as implicitly withdrawn. This reflects changes to the IRs and policy in 2023 to extend the circumstances in which a claim can be treated as implicitly withdrawn. According to quarterly immigration statistics, the number of asylum claims treated as implicitly withdrawn increased from 2,956 in 2022 (12% of all decisions) to 19,292 in 2023 (18% of all decisions).
- Judicial review is an inadequate remedy because bringing judicial review proceedings typically requires having a solicitor with a public law contract. There are limited numbers of these, particularly in some regions. Mr Copson adds this at para. 21 of his statement:
"Many would-be appellants face great difficulties dealing with the SSHD's requirements in terms of attending interviews, dealing with important correspondence without interpretation or support and with challenging procedural failings (for example, regarding correspondence not having been received). They are even often unaware that their claim is being withdrawn, and the first they hear of this will be in the letter discontinuing support. In this context, it would be unrealistic to expect an asylum seeker faced with a withdrawal notice to be able to seek judicial review of the withdrawal and/or asylum support decisions."
- Mr Copson draws attention to other consequences that would follow if the Secretary of State is correct that the Tribunal has no jurisdiction to consider the validity of a decision to treat an asylum claim as withdrawn. Section 94(3) provides for a grace period after a claim is determined. Where the Secretary of State rejects the asylum claim, the grace period prescribed by reg. 2 of the 2000 Regulations is 21 days. After that, the supported person becomes eligible for support as a failed asylum seeker under s. 4 IAA 1999. In cases where the asylum claim is treated as withdrawn, however, there is no grace period and Home Office policy is that support should be discontinued immediately: see Ceasing Section 95 Support Instruction (Version 3.0, updated 19 August 2024). The effect of this is that, where the Secretary of State has been writing to the wrong address, the supported person may have no inkling that his support is being withdrawn until he receives a 7 day notice to quit. In such a case, destitution would be almost inevitable.
- The only fallback for those whose support is discontinued because their claims are treated as withdrawn is accommodation under Sch. 10 to the Immigration Act 2016. This, however, is intended for those on immigration bail with a residence condition, not for asylum seekers. It has significant limitations compared to support under ss. 95 and 4 IAA 1999: it is not generally available to a parent or family with dependent children (who must rely on support under s. 17 of the Children Act 1989); it does not automatically entitle the beneficiary to satisfy the means requirements for legal aid; an applicant must fill in a 24-page form; there is no appeal against a decision to refuse.
- Mr Copson notes that the Secretary of State's position is that there is no right of appeal under s. 103(2) in a case where support is withdrawn because of breach of a condition is directly contrary to the Home Office's own published policy, Conditions of support (Version 2.0, published 7 March 2023), which says this:
"A supported person has the right of appeal under Section 103 of The Immigration and Asylum Act 1999 against a decision to discontinue their asylum support because they have breached a condition attached to the provision of it. The supported person must be notified of their right to appeal at the time any such decision is made."
- Finally, Mr Copson says that it is very difficult to see how judicial review would provide an adequate remedy in breach of condition cases, since most such cases involve either a dispute of fact (e.g. whether the asylum-seeker has breached conditions) or a value judgment (e.g. whether there is a reasonable excuse).
Secretary of State's response to ASAP's evidence
- Michael Biggs for Secretary of State responded to ASAP's evidence by further written submissions. It was submitted that an asylum seeker whose claim is treated as withdrawn can apply for reconsideration and, if the decision is maintained, by judicial review. When a claim for judicial review is brought, the proper forum for the challenge is the Upper Tribunal. There is no reason to believe that the Tribunal would not be well-suited to determine such a claim.
- A decision to treat a claim as implicitly withdrawn does not leave the former asylum seeker wholly without support. Such a person is no longer eligible for s. 95 support. There has been no determination of the claim, so the grace periods in s. 95(3) do not apply. Nor would s. 4 apply. However, the Secretary of State can provide support under the powers conferred by Sch. 10 to the Immigration Act 2016 and must do so where such support is required to avoid a breach of ECHR rights: R (Humnyntskyi) v Secretary of State for the Home Department [2020] EWHC 1912 (Admin), [2021] 1 WLR 320, [9]. There is no reason to suppose that such support will be inadequate.
Law
The Immigration and Asylum Act 1999
- Part VI of the IAA 1999 deals with support for asylum seekers. Section 94 contains definitions for the purposes of Part VI. "Asylum seeker" means "a person who is not under 18 and has made a claim for asylum which has been recorded by the Secretary of State but which has not been determined". "Supported person" means "(a) an asylum seeker or (b) a dependant of an asylum-seeker, who has applied for support and for whom support is provided under section 95".
- Section 94(3) provides:
"For the purposes of this Part, a claim for asylum is determined at the end of such period beginning—
(a) on the day on which the Secretary of State notifies the claimant of his decision on the claim, or
(b) if the claimant has appealed against the Secretary of State's decision, on the day on which the appeal is disposed of,
as may be prescribed. "
- A new subsection (4A) was inserted into s. 94 by the Nationality and Borders Act 2022, providing that, for the purposes of the definitions of "asylum-seeker" and "failed asylum-seeker", the circumstances in which a claim is determined or rejected include where it is declared inadmissible under s. 80A or 80B of the Nationality, Immigration and Asylum Act 2002. Further provision about this situation is made in s. 94(4B) and (4C).
- Section 95 (headed "Persons for whom support may be provided") provides in material part as follows:
"(1) The Secretary of State may provide, or arrange for the provision of, support for—
(a) asylum-seekers, or
(b) dependants of asylum-seekers,
who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed.
…
(9) Support may be provided subject to conditions.
…
(10) The conditions must be set out in writing.
(11) A copy of the conditions must be given to the supported person.
(12) Schedule 8 gives the Secretary of State power to make regulations supplementing this section…"
- In Sch. 8, para. 1 confers a general power by regulations to make such further provision with respect to the powers conferred by s. 95 as the Secretary of State considers appropriate. Paragraph 7 authorises regulations making provision for the Secretary of State to take into account "the extent to which any condition on which support is being, or previously has been, provided has been complied with" when deciding (a) whether to provide or continue to provide support under s. 95 or (b) the level of kind of support to be provided. Paragraph 8 authorises regulations making provision for the suspension or discontinuance of support under s. 95 in prescribed circumstances (including circumstances in which the Secretary of State would otherwise be under a duty to provide support).
- Section 103 IAA 1999 provides as follows:
"(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."
- In its original version, s. 103(7) provided as follows:
"The Secretary of State may by regulations provide for decisions as to where support provided under section 95 is to be provided to be appealable to an adjudicator under this Part."
But no regulations were ever made under this provision.
Prospective amendments to the Immigration and Asylum Act 1999
- Section 53 of Nationality, Immigration and Asylum Act 2002 ("NIA 2002") was never brought into force. It would have substituted a new version of s. 103 IA 1999:
"(1) This section applies where a person has applied for support under—
(a) section 95,
(b) section 17 of the Nationality, Immigration and Asylum Act 2002, or
(c) both.
(2) The person may appeal to an adjudicator against a decision that the person is not qualified to receive the support for which he has applied.
(3) The person may also appeal to an adjudicator against a decision to stop providing support under a provision mentioned in subsection (1).
(4) But subsection (3) does not apply—
…
(b) to a decision taken on the ground that the person is no longer an asylum-seeker or the dependant of an asylum-seeker."
- Paragraph 41(d) of Sch. 11 to the Immigration Act 2016 repeals s. 53 of the NIA 2002. It too has not been brought into force.
The Reception Directive
- Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers ("the Reception Directive") imposed various obligations on Member States in respect of an "asylum seeker", defined in Article 2 as "a third country national or a stateless person who has made an application for asylum in respect of which a final decision has not yet been taken". By Article 3(1) it applied to "all third country nationals and stateless persons who make an application for asylum at the border or in the territory of a Member State as long as they are allowed to remain on the territory as asylum seekers, as well as to family members, if they are covered by such application for asylum according to the national law".
- Article 13(1) required Member States to ensure that "material reception conditions" are available to applicants when they make their application for asylum. These are defined in Article 2 as "the reception conditions that include housing, food and clothing, provided in kind, or as financial allowances or in vouchers, and a daily expenses allowance". By Article 13(3), Member States could make the provision of all or some of the material reception conditions and health care subject to the condition that applicants do not have sufficient means to have a standard of living adequate for their health and to enable their subsistence.
- Article 16 dealt with the reduction or withdrawal of reception conditions. It provides in relevant part as follows:
"(1) Member States may reduce or withdraw reception conditions in the following cases:
(a) where an asylum seeker:
- abandons the place of residence determined by the competent authority without informing it or, if requested, without permission, or
- does not comply with reporting duties or with requests to provide information or to appear for personal interviews concerning the asylum procedure during a reasonable period laid down in national law, or
- has already lodged an application in the same Member State.
…
(4) Decisions for reduction, withdrawal or refusal of reception conditions or sanctions referred to in paragraphs 1, 2 and 3 shall be taken individually, objectively and impartially and reasons shall be given. Decisions shall be based on the particular situation of the person concerned, especially with regard to persons covered by Article 17, taking into account the principle of proportionality. Member States shall under all circumstances ensure access to emergency health care."
- Article 17 required Member States to take into account the specific situation of vulnerable persons in the national legislation implementing the provisions of chapter II of the Directive.
- Article 21(1) provided that "negative decisions relating to the granting of benefits under this Directive or decisions taken under Article 7 which individually affect asylum seekers may be the subject of an appeal within the procedures laid down in the national law. At least in the last instance the possibility of an appeal or a review before a judicial body shall be granted." (Decisions under Article 7 are ones making residence in a particular place a condition of the grant of material reception conditions.)
The Asylum Seekers (Reception Conditions) Regulations 2005
- The Reception Directive was implemented by the Asylum Seekers (Reception Conditions) Regulations 2005 ("the Reception Conditions Regulations": SI 2005/7) and by amendments to the 2000 Regulations and IRs.
- Regulation 5(1) of the Reception Conditions Regulations implemented Article 13(1) of the Reception Directive, insofar as material to support under s. 95, in these terms:
"If an asylum seeker or his family member applies for support under section 95 of the 1999 Act and the Secretary of State thinks that the asylum seeker or his family member is eligible for support under that section he must offer the provision of support to the asylum seeker or his family member."
The Asylum Support Regulations 2000
- Regulation 19(1) of the 2000 Regulations makes the provision authorised by para. 7 of Sch. 8 to the IAA 1999. It provides:
"(1) When deciding—
(a) whether to provide, or to continue to provide, asylum support for any person or persons, or
(b) the level or kind of support to be provided for any person or persons,
the Secretary of State may take into account the extent to which any relevant condition has been complied with."
- Originally, "relevant condition" was defined in reg. 19(2) as "a condition subject to which asylum support for that person or any of those persons is being, or has previously been, provided". That definition, however, was changed in 2005, when the Secretary of State transposed the Reception Directive. Regulation 19(2) now defines "relevant condition" as "one which makes the provision of asylum support subject to actual residence by the supported person or a dependant of his for whom support is being provided in a specific place or location".
- Regulation 20 makes the provision authorised by para. 8 of Sch. 8 IAA 1999. It was also amended in 2005 in light of the Reception Directive. It now provides:
"(1) Asylum support for a supported person and any dependant of his or for one or more dependants of a supported person may be suspended or discontinued if—
(a) support is being provided for the supported person or a dependant of his in collective accommodation and the Secretary of State has reasonable grounds to believe that the supported person or his dependant has committed a serious breach of the rules of that accommodation;
(b) the Secretary of State has reasonable grounds to believe that the supported person or a dependant of his for whom support is being provided has committed an act of seriously violent behaviour whether or not that act occurs in accommodation provided by way of asylum support or at the authorised address or elsewhere;
(c) the supported person or a dependant of his has committed an offence under Part VI of the Act;
(d) the Secretary of State has reasonable grounds to believe that the supported person or any dependant of his for whom support is being provided has abandoned the authorised address without first informing the Secretary of State or, if requested, without permission;
(e) the supported person has not complied within a reasonable period, which shall be no less than five working days beginning with the day on which the request was received by him, with requests for information made by the Secretary of State and which relate to the supported person's or his dependant's eligibility for or receipt of asylum support including requests made under regulation 15 [requests for information relating to changes of circumstances];
(f) the supported person fails, without reasonable excuse, to attend an interview requested by the Secretary of State relating to the supported person's or his dependant's eligibility for or receipt of asylum support;
(g) the supported person or, if he is an asylum seeker, his dependant, has not complied within a reasonable period, which shall be no less than ten working days beginning with the day on which the request was received by him, with a request for information made by the Secretary of State relating to his claim for asylum;
(h) the Secretary of State has reasonable grounds to believe that the supported person or a dependant of his for whom support is being provided has concealed financial resources and that the supported person or a dependant of his or both have therefore unduly benefited from the receipt of asylum support;
(i) the supported person or a dependant of his for whom support is being provided has not complied with a reporting requirement;
(j) the Secretary of State has reasonable grounds to believe that the supported person or a dependant of his for whom support is being provided has made a claim for asylum ('the first claim') and before the first claim has been determined makes or seeks to make a further claim for asylum not being part of the first claim in the same or a different name; or
(k) the supported person or a dependant of his for whom support is being provided has failed without reasonable excuse to comply with a relevant condition.
…
(3) Any decision to discontinue support in the circumstances referred to in paragraph (1) above shall be taken individually, objectively and impartially and reasons shall be given. Decisions will be based on the particular situation of the person concerned and particular regard shall be had to whether he is a vulnerable person as described by Article 17 of [the Reception Directive].
(4) No person's asylum support shall be discontinued before a decision is made under paragraph (1)."
The Immigration Rules and relevant guidance
- The Immigration Act 1971 ("IA 1971") confers power on the Secretary of State to establish a system for receiving, considering and deciding upon applications for the grant of leave to enter or remain in the United Kingdom, including applications for asylum. This includes power to decide when and how such applications are to be dealt with: R (X) v Secretary of State for the Home Department [2021] EWCA Civ 1480, [2021] 4 WLR 137, [32].
- Section 3(2) IA 1971 confers power to make "statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances". The IRs are made under this power. They are statements of the Secretary of State's administrative policy: Mahad v Entry Clearance Officer [2009] UKHL 16, [2010] 1 WLR 48, [10].
- By s. 50(1) of the Immigration, Nationality and Asylum Act 2006, the rules made under s. 3 IA 1971 "(a) may require a specified procedure to be followed in making or pursuing an application… and (d) may make provision for the consequences of failure to comply with a requirement under paragraph (a)…".
- Paragraph 333C of the IRs provides:
"If an application for asylum is withdrawn either explicitly or implicitly, it will not be considered.
(a) An application will be treated as explicitly withdrawn if the applicant signs the relevant form provided by or on behalf of the Secretary of State, or otherwise explicitly declares a desire to withdraw their asylum claim.
(b) An application may be treated as implicitly withdrawn if the applicant:
…
(v) fails to attend a personal interview required under paragraph 339NA, unless the applicant demonstrates within a reasonable time that that failure was due to circumstances beyond their control.
(c) The applicant's asylum record will be updated to reflect that the application for asylum has been withdrawn."
- Paragraph 339NA provides, subject to specified exceptions, that asylum applicants are to be "given the opportunity of a personal interview".
Relevant case law
- In R (Secretary of State for the Home Department) v Chief Asylum Support Adjudicator ("Dogan"), the Secretary of State decided to provide s. 95 support to an asylum-seeker, Mr Dogan, and his wife and child. The support was provided in a dispersal area, Liverpool. It was made clear to Mr Dogan that, if he failed to travel to Liverpool, he would not receive any further support; he did not meet the condition; and it was the decision to impose the condition which was appealed to the Chief Asylum Support Adjudicator (who is now the Principal Judge): see the decision of Silber J at [2002] EWHC 2218 (Admin), [9]-[10].
- Silber J noted at [31] that, under s. 103(2) a right of appeal arises only if before the decision under appeal is made the claimant had "a preexisting right to section 95 support which would not otherwise have come to an end". The claimant could only have possessed that right if it had previously been granted to him, since "the right of appeal under section 103(2) of the 1999 Act for a stoppage appeal only arises if the asylum seeker can show that two separate decisions had been made, namely a first one to grant it and then a second later one, being the one being challenged, to terminate it prematurely": [32]. On the facts, there was no decision to grant support (since the condition was never fulfilled), so there could be no decision to stop it.
- In the Court of Appeal, Laws LJ adopted Silber J's distinction between a "non-qualification appeal" under s. 103(1) and a "stoppage appeal" under s. 103(2). A third category, called a "location appeal", had also been contemplated by s. 103(7) in its original form. "However," Laws LJ noted at [4], "and this is of some little importance given the arguments in the case, no regulations have to date been made under s.103 (7)".
- At [6], Laws LJ observed that a non-qualification appeal would lie if the Secretary of State decided that an asylum seeker was not destitute. He added:
"But it would also lie if the Secretary of State concluded that the claimant was not an asylum-seeker within the meaning of that expression given in the interpretation section, that is s.94 (1)."
- The key parts of Laws LJ's reasons for dismissing the appeal were as follows:
"17. The interpretation of s. 103(2) must necessarily focus on the words 'if the Secretary of State decides to stop providing support… before that support would otherwise have come to an end'. It is a fundamental premise of the appellant's argument… that the circumstances in which s.95 support 'would otherwise have come to an end' are, and are only, circumstances in which the Act itself requires that support be terminated, that is to say when the claimant for support ceases to be an asylum-seeker within the meaning given by s. 94(1). So it is contended that an appeal lies in any case where support is ended in any other circumstances whatsoever.
18. In my judgment, this is a fundamentally erroneous approach to these statutory provisions. There is nothing in s. 103(2) to suggest that the words 'would otherwise have come to an end' refer only to the statutory termination of support fixed by reference to the definition of 'asylum-seeker'. The Secretary of State is perfectly at liberty to provide the support subject to conditions, so that where there is a breach of condition the person's support will end automatically, or may end pursuant to a further discretionary decision. I do not think these possibilities are in the least constrained by Sch.8, paras (7) and (8) which I have read. In either event, it cannot be said that support has been stopped before it would 'otherwise have come to an end'. The imposition of the condition contemplates that support will or at least may be stopped by the original intention of the Secretary of State if the condition is not fulfilled.
19. The possibility that the stoppage for breach of condition may not be automatic but may depend on the Secretary of State's discretion cannot help the appellant's argument... The support was always liable to come to an end if the condition was violated.
20. The position taken by the appellant and, it seems, by the Chief Asylum Support Adjudicator in substance would allow appeals against the imposition of conditions, or at any rate some conditions, imposed under s.95 (9). But it is obvious to my mind that the statute has not provided for any such appeal. In a case like the present where the condition in question requires the claimant to re-locate, the appellant's position as to construction in substance entails the availability of a location appeal although it is plainly the legislature's intention that such an appeal will only be accorded to asylum-seekers when regulations are made under s. 103(7)…
21. The appellant's case, with respect to Mr Cox's skilful argument, wholly undermines that approach. If one takes into account the right of appeal given by s.103(1) as well as s.103(2), Mr Cox's argument ultimately yields a conclusion, or something not far distant from it, that there is a general right of appeal against the Secretary of State's decisions under s.95. That seeks to rewrite the statute, and that is elementarily an illegitimate exercise…
…
23. In my judgment the judge below arrived at the correct conclusion. s. 103(2) contemplates that s. 95 support has earlier been provided to the claimant and the Secretary of State then stops it—prematurely for whatever reason—before it would otherwise have been stopped."
- Buxton LJ agreed with Laws LJ, but added a "footnote". The appellant's argument depended on saying that the letter informing Mr Dogan that support would be made available on condition that he travelled to the dispersal area "at one and the same time both reported a decision to grant support under s.95 and also reported a decision to stop providing such support: so as to bring into operation s.103 (2)": see at [25]. Sir Andrew Morritt VC agreed with both judgments.
- In R (Nigatu) v Secretary of State for the Home Department [2004] EWHC 1806 (Admin), Collins J had to consider whether a failed asylum seeker whose appeal rights were exhausted, and who then submitted representations which the Secretary of State decided did not amount to a fresh claim, was entitled to support. The answer was "No". At [22], Collins J said that Parliament had defined "asylum-seeker" as a person whose asylum claim had been "recorded", which meant more than just "received". At [26], he said this:
"I am satisfied that the making of what is asserted to be a fresh claim does not automatically trigger the right to continuing support as an asylum seeker. That only arises when the Secretary of State decides, obviously as soon as possible, that it can be properly regarded as a fresh claim, whether or not, as I said, in the end it succeeds."
- This is consistent with the decision of the Upper Tribunal in R (MG) v First-tier Tribunal [2016] UKUT 283 (IAC), where Blake J and UTJ Grubb held that a decision of the Secretary of State that submissions do not amount to a fresh claim could be challenged only by judicial review and not on appeal to the First-tier Tribunal.
- In Malaj, HHJ Gilbart described the "central issue" in this way at [12]:
"If an application for support is resisted by the Secretary of State on the basis that that person is not an asylum seeker, does the CASA have jurisdiction to entertain an appeal under s 103(1) of the Act? The Secretary of State says no; the CASA says yes."
- The Secretary of State had decided that the claimant did not qualify for asylum support on the ground that her asylum application had been refused and her appeal rights were exhausted: see at [14]. The applicant appealed under s. 103(1). The Chief Asylum Support Adjudicator decided that she had jurisdiction, though she went on to dismiss the appeal on the facts: [21].
- HHJ Gilbart's key conclusions were these:
"24. In my judgement the central flaw in the Secretary of State's case is that he has misunderstood the nature of the process. Section 95 describes the class of persons to whom the Secretary of State may offer support. When he receives an application, the Secretary of State must determine if the criteria for support are met; in other words, whether as section 103 puts it, the applicant 'qualifies for support under the section.' There may be disputes on matters of law or fact. The purpose of section 103 is to enable disputes to be adjudicated upon, and swiftly, as happened here. The ASA will be bound to dismiss an appeal if s/he finds that the person falls outside the definition of 'asylum-seeker' as that person would not then qualify for support.
25. One can see a number of types of case where there could be real factual disputes; for example whether a person falls within the definition of 'dependant' in section 94(1), when (for example) there could be arguments of fact and degree on the degree of dependence which existed. Miss Grange was driven to submit that where the Secretary of State had made factual findings which led to a finding that an applicant was not an asylum seeker or a dependant of one, then the only remedy for the applicant would be in judicial review, and no use could be made of the statutory appeals system, which plainly operates swiftly and conveniently, and will result in appeals being dismissed if the persons making them do not qualify for support.
26. I regard such an outcome as not only highly undesirable but also 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. It will be noted that it does not limit the right of appeal to 'asylum seekers' but grants it to a person who has applied for section 95 support. If Parliament had intended to limit the right to appeal to 'asylum-seekers' as defined, it could have done so.
27. Parliament's subsequent amendment of section 103 would be quite unnecessary if the Secretary of State's case was correct. It would have restricted a right of appeal which, it is now argued, never existed anyway. Parliament has chosen to restrict the right of appeal by those who are no longer asylum seekers or their dependants…"
Summary of submissions
Submissions for the Secretary of State
- Mr Biggs for the Secretary of State advanced two grounds for judicial review.
- First, he argued that the Tribunal had no jurisdiction to entertain the appeals in MAH's and GK's cases because: (a) the effect of the decisions to treat the asylum claims in those cases as implicitly withdrawn was that the appellants ceased to be "asylum-seekers" within the definition in s. 94(1); and (b) in any event, the grant of s. 95 support was conditional on their attending their asylum interview and they failed to do so. The consequence was that the Secretary of State did not stop providing support "before that support would otherwise have come to an end" for the purposes of s. 103(2). Reliance was placed on the decision of the Court of Appeal in Dogan.
- Second, Mr Biggs submitted that the Tribunal, when hearing an appeal under ss. 103(1)-(2A), lacks jurisdiction to consider whether a prior decision treating an asylum claim as withdrawn is lawful or correct. The principle of regularity means that such prior decisions must be treated as valid unless and until set aside by a court of competent jurisdiction (which in this case would have to be the Administrative Court).
- In his note of 17 March 2025, Mr Biggs added that, if the Tribunal had the jurisdiction it claimed for itself, and it decided that an asylum claim has not been validly withdrawn, that decision would be effectively unchallengeable. Parliament cannot have intended to confer such a wide jurisdiction on the Tribunal.
Submissions for MAH
- Ms Sabic for MAH responded to ground 1 by submitting that the decisions in MAH's and GK's cases had the effect of stopping support before it would otherwise have come to an end. The Secretary of State's interpretation assumes that the Secretary of State was right to conclude that the claim should be treated as withdrawn. The language of s. 103(2) cannot be read as immunising that conclusion from challenge. There is nothing on the face of the statute to suggest that the right of appeal covers only the decisions about whether the supported person remains destitute and not whether he continues to fall within the definition of "asylum-seeker". In any event, there are good reasons why supported persons should be able to appeal against a conclusion that they have breached a condition of support or ceased to be an asylum seeker. Both are apt to involve questions of fact which are unsuitable for resolution in judicial review proceedings. The issue is not decided by Dogan. In that case the appellant was in effect seeking to appeal against a location condition. The power to provide for appeals against such conditions had been provided separately in s. 103(7) but not exercised.
- As to ground 2, Ms Sabic submitted that there was no reason why the Tribunal could not decide whether the asylum claim was correctly treated as withdrawn if such a decision was necessary in determining whether the withdrawal of support was lawful. The decision of HHJ Gilbart QC in Malaj is consistent with the existence of such a jurisdiction. In any event, it is orthodox that a court or tribunal hearing a statutory appeal may need to consider whether some earlier decision is flawed, even though it has no jurisdiction to quash or otherwise interfere with that decision. Finally, the Secretary of State's argument would give rise to real practical difficulties. It would necessitate parallel applications to the Tribunal (to challenge the support decision) and the Administrative Court (to challenge to decision to treat the asylum claim as withdrawn). The Tribunal is a substantially more accessible forum.
Discussion
The structure of the analysis
- The Secretary of State's ground 2 raises the question whether the Tribunal can, in any case, consider the validity of the decisions to treat the asylum claims as withdrawn. In my judgment, this is the fundamental issue in the case. If the answer is "No", it does not matter whether the Tribunal had jurisdiction in MAH's and GK's cases, because they would in any event have been bound to dismiss the appeals. If the answer is "Yes", then it will be necessary to consider whether the difference in wording between ss. 103(1) and 103(2) means that the Tribunal can entertain such a question in a "non-qualification appeal", but not in a "stoppage appeal" (to adopt the terminology used in Dogan).
- I have broken down the analysis into a series of questions:
(a) Can the Tribunal decide whether someone is an "asylum-seeker" under s. 94(1)?
(b) Is someone who has made and then withdrawn a claim an "asylum-seeker" under s. 94(1)?
(c) Is there a general rule barring collateral challenge to prior decisions?
(d) Can the Tribunal inquire into the validity of decisions to treat asylum claims as withdrawn? (Ground 2). If so:
(e) Is the position different in an appeal under s. 103(2)? (Ground 1).
(a) Can the Tribunal decide whether someone is an "asylum seeker" under s. 94(1)?
- In Malaj, the Secretary of State argued that the question whether someone satisfied the statutory definition of "asylum-seeker" or "dependant" in s. 94(1) was one for the Secretary of State, subject to judicial review, and could not be considered on an appeal under s. 103. It was argued that the appellate jurisdiction of the adjudicator (now the Tribunal) was limited to cases where the Secretary of State had denied support to persons whom she accepted fell within the definition. The argument was rejected by HHJ Gilbart. As he noted, Laws LJ in Dogan had said at [6] that the Tribunal could consider for itself whether someone falls within the statutory definition. Although this was strictly obiter, and said in the context of an appeal under s. 103(1), it was nonetheless persuasive.
- Even though HHJ Gilbart's reasoning is not strictly binding on me, I agree with it. The Tribunal's function is to provide an efficient, convenient and accessible forum in which disputes about eligibility for asylum support can be determined. Eligibility depends on satisfying the definition of "asylum seeker" or "dependant" and on being actually or imminently destitute. There is no obvious reason why Parliament should have conferred jurisdiction on the Tribunal to decide disputes about the latter but not the former.
- I shall consider later whether this analysis applies only to appeals under s. 103(1) or to those under s. 103(2) as well.
(b) Is someone who has made and then withdrawn a claim an "asylum seeker" under s. 94(1)?
- Section 95(1) on its face confers a power to provide or arrange for the provision of support. However, reg. 5(1) of the Reception Conditions Regulations converts that power to a duty owed to those whom the Secretary of State thinks are eligible.
- The persons to whom the duty is owed are defined by the terms of ss. 94 and 95. By s. 95(1), an eligible person must be an "asylum-seeker" or the "dependant" of one and must appear to the Secretary of State to be destitute or likely to become destitute within the prescribed period.
- On a literal interpretation, s. 94(1) provides that an applicant who is not under 18 and has made a claim which has been recorded is an asylum-seeker unless and until the claim has been "determined"; and by s. 94(3), this occurs only after either a decision on the claim or the disposal of an appeal.
- Under para. 333C of the IRs, a decision to treat a claim as implicitly withdrawn means that "it will not be considered". This is not, on any natural reading of that phrase, a "decision on the claim". On the contrary, it is an administrative act done with the intention, and having the consequence, that there will be no decision on the claim. It cannot give rise to an appeal. So, persons treated as having withdrawn their asylum applications are, on a literal interpretation of s. 94(1), still "asylum seekers".
- However, if the literal interpretation were adopted, even those who have unequivocally and voluntarily withdrawn asylum claims would remain "asylum-seekers" for the purposes of s. 94(1) and the Secretary of State would remain obliged to support them under s. 95(1) if they were destitute or likely to become so. This is unlikely to have been Parliament's intention. The apparent purpose of s. 95 is to enable support to be given to those whose asylum claims remain under consideration, not those who have made and then abandoned their claims.
- In my judgment, the definition of "asylum seeker" in s. 94(1) must therefore be read as impliedly containing an additional element not stated on the face of that provision. The individual must not only have made a claim which has been recorded. He must also not have withdrawn his claim, whether expressly or by conduct treated by the IRs as inconsistent with an intention to continue to advance it.
(c) Is there a general rule barring collateral challenge to prior decisions?
- The Secretary of State's argument on this aspect of the claim starts from s. 103(3)(a) and (b), which empower the Tribunal to require the Secretary of State to reconsider "the matter" or to substitute the Tribunal's decision for "the decision appealed against". In context, Mr Biggs submits, both phrases refer to the asylum support decision, not some prior decision. Mr Biggs adds that it is a general principle that an administrative act or decision is valid unless successfully challenged before a court of competent jurisdiction, and may remain valid even then. For this proposition, he relies on the analysis in R (Majera) v Secretary of State for the Home Department [2021] UKSC 46, [2022] AC 461, at [27]-[42].
- The general proposition may be accepted, but the argument begs the question: is the Tribunal "a court of competent jurisdiction" in relation to the question whether an asylum claim has been validly treated as withdrawn?
- The fact that the Tribunal's remedial jurisdiction does not extend to quashing the prior decision does not determine the answer. Social security commissioners had no jurisdiction to quash benefits regulations, but if a question about their validity arose in an appeal falling within their jurisdiction, they could determine it: Chief Adjudication Office v Foster [1993] AC 754. Magistrates have no jurisdiction to quash byelaws, but they must still examine and determine their validity if the point is taken by way of defence to a prosecution before them: Boddington v British Transport Police [1999] 2 AC 143.
- This does not mean, of course, that every appellate tribunal has jurisdiction to examine the lawfulness of every prior decision that could potentially be relevant to the legality of the decision under challenge before it. An analysis of the statutory scheme in which the appellate jurisdiction is conferred may show that Parliament did not intend the appellate tribunal to be able to question some particular prior decision.
- In Foster, for example, Lord Bridge noted at 762E-G that a decision giving effect to subordinate legislation which was ultra vires was, as a matter of ordinary language, "erroneous in point of law". That being so, the question was whether "when that phrase is used in section 101 of the act of 1975, there is something in the context in which it appears which requires by necessary implication that it be given a restricted meaning so as to exclude from its ambit any errors of law preferable to misuse by the Secretary of State of his regulation-making power".
- In Boddington, Lord Irvine said this at 160C-D:
"…in every case it will be necessary to examine the particular statutory context to determine whether a court hearing a criminal or civil case has jurisdiction to rule on a defence based upon arguments of invalidity of subordinate legislation or an administrative act under it. There are situations in which Parliament may legislate to preclude such challenges being made, in the interest, for example, of promoting certainty about the legitimacy of administrative acts on which the public may have to rely."
- Mr Biggs placed heavy reliance on the fact that the decision to treat the appellants' asylum claims as withdrawn was a "prior decision" taken under para. 333C of the IRs, distinct from the decision to withdraw support. But it is difficult to see why this should matter. If the scope of the Tribunal's appellate jurisdiction depends on the proper interpretation of the statute, the jurisdiction to "go behind" the Secretary of State's conclusion on a particular matter cannot depend on whether the Secretary of State chooses, as a matter of administrative practice (whether pursuant to the IRs or otherwise) to express that conclusion in a prior decision or as part of the decision to refuse support.
- Nor, in my judgment, does the fact that the prior decision has consequences independent of the entitlement to asylum support (i.e. that the asylum claim will not be considered further). In oral argument, Mr Biggs conceded (rightly, in my view) that, if the Secretary of State concluded mistakenly that the claim had been expressly withdrawn or determined, the Tribunal would have jurisdiction to inquire into the correctness of this conclusion. This would be so even though the prior conclusion would also have consequences independent of the entitlement to asylum support.
- Mr Biggs submitted that a decision by the Tribunal that a claim had not been impliedly withdrawn would bind the Secretary of State and would be effectively unchallengeable. It may be that such a decision would bind the Secretary of State, applying the principles recently enunciated in R (Tomlinson) v Secretary of State for the Home Department [2025] EWCA Civ 253, at [66]. But whether that is so or not, it is a significant overstatement to say that such a decision would be unchallengeable. As these proceedings show, decisions of the Tribunal can be and are challenged by the Secretary of State in judicial review proceedings.
- Finally, I have considered whether it matters that, if the Tribunal has jurisdiction over prior decisions to treat asylum claims as withdrawn, it will determine the correctness of those decisions itself, after hearing written and oral evidence, rather than by applying a judicial review standard. In my judgment, this would simply be a consequence of the conclusion that the Tribunal has jurisdiction.
- This last point can be tested in this way. Focussing only on s. 95(1), the condition for eligibility is that the applicant "appears to the Secretary of State" to be destitute or likely to become so. One might draw from this that the question of destitution is one for the Secretary of State subject only to judicial review. But it is common ground that this question does fall within the scope of the Tribunal's appellate jurisdiction. That being so, it is also common ground that it falls to be determined by the Tribunal for itself. If questions as to whether a claim has been validly treated as withdrawn are within the scope of the Tribunal's appellate jurisdiction, it must follow that they too are for the Tribunal to determine for itself.
(d) Can the Tribunal inquire into the validity of decisions to treat asylum claims as withdrawn?
- In my judgment, there are three factors which point to the Tribunal having jurisdiction to determine the question whether the Secretary of State has validly treated a claim as withdrawn under para. 333C of the IRs.
- First, the starting point is that, on established authority, the Tribunal does have jurisdiction, at least in a s. 103(1) appeal, to consider whether an applicant is an "asylum seeker" for the purposes of s. 94(1). On the Secretary of State's analysis, which I accept, a person whose claim has been withdrawn, or validly treated as such, is not "an asylum-seeker" for those purposes. So, as in Foster, one would expect the Tribunal to have jurisdiction to determine whether the asylum claim has been validly treated as withdrawn, unless an analysis of the statutory scheme supplies some special reason why this would not be appropriate.
- Second, the statutory scheme does supply a special reason why the Tribunal should not inquire into decisions having to do with the merits of an asylum claim. Where such decisions are subject to appeal, the appeal is allocated to a different tribunal. The Tribunal was not set up to deal with the merits of asylum claims. But a decision that a claim has been withdrawn, or should be treated as withdrawn, has nothing to do with the merits of the asylum claim.
- Third, the question whether an asylum claim has been validly treated as withdrawn under para. 333C of the IRs is likely to turn on questions of fact of a kind similar to those which the Tribunal undoubtedly has jurisdiction to resolve. Regulation 20(1) sets out the circumstances in which the Secretary of State may discontinue asylum support for a "supported person" (who necessarily satisfies the definition of "asylum seeker" in s. 94(1)). These include the cases where: (d) the Secretary of State has reasonable grounds to believe that the supported person or any dependant of his has abandoned the authorised address without first informing the Secretary of State or without permission; and (f) the supported person fails, without reasonable excuse, to attend an asylum support interview. The question whether a claim has been validly treated as withdrawn is likely to involve the same kinds of factual issues, such as: whether notice of the interview was sent to the asylum seeker's authorised address; if so whether he or she was away from that address; if so whether he had good reason to be; if he did receive the notice, whether his excuse for not attending is a reasonable one.
- For these reasons, I would hold that the Tribunal was right to conclude that, at least in an appeal under s. 103(1), it has jurisdiction to consider whether an asylum claim has been validly treated as withdrawn under para. 333C.
(e) Is the position different in an appeal under s. 103(2)?
- Section 103 confers rights of appeal against decisions that the applicant does not qualify for support under s. 95 ("non-qualification appeals" under s. 103(1), to use Silber J's nomenclature in Dogan) and decisions to stop providing support under s. 95 before that support would otherwise have come to an end ("stoppage appeals"). If, as I have concluded, s. 103(1) confers jurisdiction on the Tribunal to decide whether an asylum claim was validly treated as withdrawn, that is because Parliament regarded the Tribunal as a suitable body to undertake the type of inquiry required to resolve that question.
- But the type of inquiry required is exactly the same whether the question arises in a non-qualification appeal or a stoppage appeal. There is no obvious reason why Parliament should have empowered the Tribunal to embark on this inquiry in a non-qualification appeal but not in a stoppage appeal. This means that the Secretary of State's case must fail unless [17]-[21] of Laws LJ's judgment in Dogan dictates a different result. In my judgment, it does not.
- First, one key reason why the Tribunal had no jurisdiction under s. 103(2) to consider the reasonableness of the decision to make Mr Dogan's s. 95 support conditional on his moving to Liverpool was that it was not a decision to stop providing support under s. 95 at all, because such support had never been provided in the first place: see Silber J's judgment at first instance at [31]-[32], expressly endorsed in the Court of Appeal by Laws LJ at [23] and Buxton LJ at [25]. That reason does not apply to the appeals in MAH's and GK's cases. It is common ground that both MAH and GK were in receipt of support under s. 95, which the Secretary of State decided to stop.
- Second, it was an important part of the reasoning in the Court of Appeal that the jurisdiction contended for would have amounted to an appeal against the decision to impose conditions as to the location at which support would be provided; that in s. 103(7) Parliament had conferred a separate power to make regulations providing for an appeal on this issue; and that the power had not been exercised: see Laws LJ at [4] and [20]-[21]. There is no equivalent argument available in the present context.
- Third, [17]-[19] of Laws LJ's judgment express a distinct reason for holding that the Tribunal did not have jurisdiction in Mr Dogan's case. But these passages must be read against the background that it was common ground between the parties that the location condition had not been met. That provides the context for Laws LJ's comment at [18] that "it cannot be said that support has been stopped before it would 'otherwise have come to an end". Nothing in that passage suggests that the Tribunal would have lacked jurisdiction if there had been a dispute about whether the condition had been met. In the cases of MAH and GK, by contrast, there is such a dispute. If the Tribunal resolved that dispute in their favour (as it went on to do), then support had undoubtedly been stopped "before it would otherwise have come to an end".
- The point being made in Dogan was that, where support is made subject to a condition, it was always intended that support would come to an end when the condition was not complied with; and there was no right to appeal against the imposition of conditions. It follows that, in my judgment, s. 103(2) confers jurisdiction on the Tribunal to entertain an appeal whenever the Secretary of State has provided support under s. 95 and then stopped providing that support at a time which, if the appellant's case is accepted, is before it would otherwise have come to an end.
Conclusion
- For these reasons, I conclude that:
(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).
- The Secretary of State's claim for judicial review is accordingly dismissed.
