by Mark Henderson and Rowena Moffatt of Doughty Street Chambers
and Alison Pickup of the Public Law Project
~ Revised 2021 Edition ~
Flawed non-compliance refusals
2.1 If the Home Office alleges that the claimant has failed to comply with its procedures, it may reach a decision on the initial claim without completing the normal determination process. Para 339M of the Immigration Rules (implementing the Qualification Directive) provides that:
339M. The Secretary of State may consider that a person has not substantiated his asylum claim or established that he is a person eligible for humanitarian protection or substantiated his human rights claim, and thereby reject his application for asylum, determine that he is not eligible for humanitarian protection or reject his human rights claim, if he fails, without reasonable explanation, to make a prompt and full disclosure of material facts, either orally or in writing, or otherwise to assist the Secretary of State in establishing the facts of the case; this includes, for example, failure to report to a designated place to be fingerprinted, failure to complete an asylum questionnaire or failure to comply with a requirement to report to an immigration officer for examination.
2.2 'Non-compliance refusals' originally became a major issue several years ago when the Home Office imposed a two week deadline for completion of a Standard Evidence Form (SEF) by all asylum seekers. Not only was the time limit very short, but the Home Office was too inefficient to recognise when the form was returned. Many non-compliance refusals were therefore issued where the SEF had in fact been returned within the deadline. It took the Home Office some time (and a substantial amount of litigation) before it introduced simple administrative changes to enable it to determine more accurately whether it was in possession of a completed SEF. The API on Non-compliance now specifies that a further 5 working days must be allowed after the expiry of the time limit for the form to be linked to the file. As indicated at para 1.11B, it is now very uncommon to issue a paper SEF for adults and so this basis for refusal on grounds of non-compliance has largely fallen away. SEFs are still given to children for self-completion but with a return date of 60 days and decision-makers are instructed to show flexibility to this deadline if a child has been transferred to the care of another local authority (See API on Children's Asylum Claims).
2.3 In Haddad v SSHD  INLR 117, the Tribunal held that the Home Office could never refuse a claim on grounds of non-compliance alone. It must always reach a decision on the merits on the basis of the information available to it. However, where the refusal results from alleged non-submission of a SEF, the information with which the Home Office needs to deal on the merits is likely to be minimal.
2.4 The Tribunal also held in Haddad  INLR 117 that an adjudicator could not dismiss the appeal on the ground that the allegation of non-compliance was well-founded or simply on the evidence that was before the Home Office when the non-compliance refusal was issued. The Tribunal must determine the asylum/human rights appeal on the merits on the material which is placed before it.
2.4A Note that the list of circumstances in which a non-compliance refusal will be issued no longer includes failure to attend the substantive asylum interview. However, paragraph 333C of the Immigration Rules provides that an application will be treated as impliedly withdrawn where an asylum seeker fails to attend the asylum interview 'unless the applicant demonstrates within a reasonable time that that failure was due to circumstances beyond their control'. The explanatory statement to the Statement of Changes in Immigration rules (HC 420, which came into force on 7 April 2008) said that:
In line with the provisions of the [EU Procedures] Directive, the claim will only be treated as impliedly withdrawn when the individual has failed to turn up for their substantive interview. A letter will be sent to them giving them 5 days in which to re-establish contact and explain the reason for their failure to attend. If this is not responded to, the case owner will check whether or not the individual is still at the accommodation provider or other residence that they are supposed to be at and, if not, will treat the claim as withdrawn.
2.4B Para 333C only applies to asylum and humanitarian protection claims made on or after 7 April 2008. It does not apply to human rights claims made on grounds other than article 2 or 'protection-based' article 3 claims. Other human rights claims, such as those based on article 8 (private and family life) or article 3 (medical grounds) can only be explicitly withdrawn. The API on Withdrawing Asylum Claims provides the following guidance:
To determine whether failure to attend the substantive asylum interview should be treated as an implicit withdrawal, or if the interview should be rebooked, a failure to report to substantive interview letter (ASL.3724) must be sent immediately to the claimant and an ASL.4826 sent to their representative (if applicable) to establish why the claimant did not attend. The deadlines for a response to this letter are 5 working days in non-detained cases or 24 hours in all detained cases.
Where no explanation is received by the deadline, the asylum claim should be treated as implicitly withdrawn. If an explanation is received within the deadline caseworkers must consider whether there is sufficient evidence to show that failure to attend was due to circumstances beyond the control of the claimant and decide whether to rebook the interview or treat the claim as implicitly withdrawn. The onus is on the claimant to provide an acceptable explanation for non-attendance, for example illness or travel disruption.
If the claimant is not represented and no valid address has been provided, the ASL.3724 letter must be served to the case file and handed to the claimant when they are next encountered.
2.4C The API emphasises that particular care is needed before treating a claim by a child as withdrawn. It advises case owners to conduct an investigation where no acceptable explanation is received in order to 'establish all the relevant facts', including contacting the child's representative, responsible adult, social worker or accommodation provider. Children's applications should only be treated as impliedly withdrawn where the child has failed to attend more than one substantive interview and the case owner is satisfied the non-attendance is deliberate.
2.4D Where an application is treated as withdrawn, the Home Office gives it no further consideration. The case owner will notify the applicant that their claim has been treated as impliedly withdrawn. However, as the API makes clear, although no decision will be taken on the asylum claim, any information supplied at any point after the initial decision is taken and before removal must also be considered. The approach taken by the Home Office is to treat such information as further submissions under paragraph 353 of the Immigration Rules and if it refuses to grant protection on the basis of the submissions, its position is that there will be no right of appeal unless it is satisfied that the fresh claim test in paragraph 353 is met.
2.4E The API on Withdrawal of Asylum Claims (amended in June 2016) states there is no right of appeal from a decision to treat an asylum claim as withdrawn:
A decision to treat an asylum claim as explicitly or implicitly withdrawn does not attract a right of appeal because it is not an appealable decision under Section 82 of the Nationality, Immigration and Asylum Act 2002 (as amended).
This does not, however, appear to be a correct statement of the law. The correct position appears to be that under the 2014 Act, there will be a right of appeal if the decision to treat the asylum claim as withdrawn is a decision to 'refuse a protection claim' within the meaning of s. 82(1)(a) NIAA 2002 as properly understood, or the Home Office has made a decision to refuse any related human rights claim within s. 82(1)(b) (as noted above, para 333C does not apply to non-protection based human rights claims). The Home Office will no doubt argue (as reflected in the API on Withdrawal of Asylum Claims) that a decision to treat an asylum claim as withdrawn is not a decision to 'refuse' it but the contrary appears highly arguable given the substantive effect of a decision to treat a claim as withdrawn. Any such appeal will be in country, unless the claim is certified under s. 94 (see chapter 3). See further the discussion of withdrawal of appeals from para 7.22.
2.4G As indicated in the API on Non-Compliance, once the asylum claim has been treated as withdrawn under paragraph 333C, any further representations on asylum grounds will be considered under paragraph 353 of the Immigration Rules to decide whether they constitute a fresh claim. This can be problematic since in Robinson  UKSC 11 the Supreme Court held that in the absence of a decision from the Secretary of State to accept further representations as a fresh claim under paragraph 353 of the Immigration Rules, a right of appeal under s 82 of NIAA 2002 does not arise.
2.5 Where the allegation of non-compliance turns out to be mistaken, the Home Office has accepted that it must withdraw the non-compliance refusal and reconsider the claim (Home Office's statement of reasons, approved by the Court in R v SSHD, ex parte Karaoglan, 4 May 2001).
2.6 The API on Non-compliance states that
In cases where it becomes clear that a refusal on non-compliance grounds is flawed it will be necessary to take corrective action. Examples of where this would be the case include:
• where a decision to refuse on non-compliance grounds is made on the basis that the applicant failed to return the SEF and it subsequently turns out that the form had been received by the time the decision to refuse was made but had not been linked to the file;
• where a decision to refuse on non-compliance grounds is made on the basis that the applicant failed to attend a screening interview or asylum interview (before 7 April 2008 failure to attend an asylum interview could result in a non-compliance refusal decision) but it subsequently turns out that the invitation was despatched to the wrong address..
2.6A Where children are concerned the API emphasises that in light of the duty under s. 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children:
It is of particular importance to exercise discretion and greater sensitivity when making non-compliance decisions in the case of children. When investigating whether a non-compliance decision is appropriate, the Case Owner should, if required, contact the child's responsible adult, and/or representative, and/or social services for information on the reasons for non-compliance.
2.6B The API on Withdrawal of Asylum Claims requires an incorrectly issued withdrawal decision under paragraph 333C to be cancelled, and the applicant and their representative (if any) to be notified that the claim will now be substantively considered.
2.8 Regardless of whether you consider the non-compliance refusal or withdrawal decision to be justified, you should always lodge notice of appeal in order to protect your client's position, arguing on the basis set out above that your client does have a right of appeal because the withdrawal decision amounts to the refusal of a protection claim. If you can show that the non-compliance refusal was based on incorrect facts, you can then write to the Home Office requiring it to withdraw its decision and reconsider your client's claim on the merits.