by Mark Henderson and Rowena Moffatt of Doughty Street Chambers
and Alison Pickup and Monika Nollet of Asylum Aid
~ Revised 2023 Edition ~
Deemed withdrawal of asylum claims
Flawed non-compliance refusals / deemed withdrawals
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 (which implemented the Qualification Directive) provides that:
339M. The Secretary of State may consider that a person has not substantiated their protection claim or substantiated their human rights claim, and thereby refuse their application for asylum, determine that they are not eligible for humanitarian protection or reject their human rights claim, if they fail, 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. 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, paper SEFs for self-completion are not now issued for adults although Preliminary Information Questionnaires (PIQs) may be (albeit more rarely since 2022) . SEFs are still given to children for self-completion but with a return date of 60 days and decision-makers are instructed investigate the reasons for late completion before making any decision on non-compliance and 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, pp68-69).
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. That judges in the Tribunal do not have a power to dispose of an appeal without considering its merits was confirmed more recently in SSGA (Disposal without considering merits; R25) Iraq  UKUT 00012 (IAC), albeit in a different context (the Tribunal had determined appeal against the SSHD without considering the merits due to repeat non-compliance with directions).
2.4A However, it is more likely that the Home Office will treat a claim as withdrawn under para 333C than refuse it on non-compliance grounds under para 339M. Para 333C applies where the applicant fails to complete a SEF or Preliminary Information Questionnaire (PIQ) or to attend an interview, 'unless the applicant demonstrates within a reasonable time that the failure was due to circumstances beyond their control'. The Statement of Changes to the Immigration Rules laid on 17 July 2023 adds two more grounds to para 33C, namely failure to maintain contact with the Home Office or to provide up to date contact details, and failure to attend reporting events unless due to circumstances outside the applicant's control. The amended para 333C is due to enter into force on 7 August 2023 and significantly broadens the circumstances in which the Home Office may treat a claim as withdrawn. Where it applies, para 333C allows the Home Office to discontinue consideration of the claim and – in contrast with the position considered in Haddad – it will not go on to consider the claim on the merits of the available information.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 in respect of non-attendance at interviews:
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. (p15)
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 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). (p18)
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. See further the discussion of withdrawal of appeals from para 7.22.
2.4F The Home Office has indicated that it may apply para 333C to its 'streamlined asylum processing' procedure, which it has initially applied to 'manifestly well-founded cases' where the asylum claim was made pre-28 June 2022. The process focuses on applicants from Afghanistan, Eritrea, Libya, Syria and Yemen (which have a grant rate of 95%), although it is expected that it will be extended to other nationalities. Under the policy, applicants are sent an asylum questionnaire to complete within 20 days, after which time they are sent a reminder and provided a further 10 days, unless a further 'reasonable' extension is granted. Home Office policy indicates that the asylum claim may be treated as withdrawn should the questionnaire not be returned within the time provided, although the Home Office has subsequently clarified that a claim will not be treated as withdrawn solely because of failure to return a questionnaire.
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. (p18)
2.6A Where children are concerned the API on Withdrawal of Asylum Claims recognises 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 and says:
…The process of withdrawing an asylum claim operates alongside existing child safety procedures and considerations so it is unlikely that a decision to treat an asylum claim as withdrawn would adversely impact on the best interests of a child. However, caseworkers must be alert to any child protection issues that may arise in this context.
Where children are dependent on their parents as part of a family case it is expected that parents will be acting in the best interests of their children if they seek to explicitly withdraw the claim. However, caseworkers must still consider the impact on children and whether there is evidence to suggest that they may have a claim in their own right. …
In cases where an unaccompanied child seeks to explicitly withdraw their asylum claim they must do so through a responsible adult or their representative because it is important to ensure they are aware of the consequences of withdrawal. If there are any cases where an asylum seeking child fails to comply with the process, decision makers must liaise with the legal representative and Social Services before consideration is given to implicit withdrawal. .... (p6)
2.6B The API on Withdrawal of Asylum Claims similarly 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 or withdrawal decision 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.
2.9 Asylum claims which are deemed to be withdrawn under the Home Office's 'streamlined asylum processing' policy may well be vulnerable to challenge by way of judicial review on grounds of procedural fairness. If your client's case has been deemed withdrawn under this policy, you should investigate a possible public law challenge, if necessary referring your client to a public law solicitor, in addition to protecting her position in the ways described above.