Rasul, R (on the application of) v Asylum Support Adjudicator & Ors

An asylum support appeal is determined by applying the statutory criteria and regulations. Where a criterion expressly depends on the Secretary of State’s opinion about the availability of a return route, the Asylum Support Adjudicator must not substitute its own policy judgment. It may determine whether the opinion was genuinely held. Other criteria expressed in objective or individual terms may require a fresh determination and substitution of the Adjudicator’s decision. Judicial review remains available to test the legality of the Secretary of State’s opinion. Regulation 3(2)(c) concerns a country-wide policy opinion, not an individual assessment of the safety of a particular journey.

The claimant, an Iraqi national from Kirkuk, received accommodation under section 4 of the Immigration and Asylum Act 1999. The Secretary of State later decided that a viable route of return to Iraq was available and discontinued support after the claimant failed to respond to a request for information about other eligibility conditions.

The Asylum Support Adjudicator dismissed the claimant’s appeal, treating the Secretary of State’s opinion under regulation 3(2)(c) as determinative. The claimant sought judicial review of both the Adjudicator’s jurisdiction and the Secretary of State’s decision. The central issues were the scope of the statutory appeal and whether the discontinuance decision was lawful.

1. The claim was dismissed. The Asylum Support Adjudicator had correctly treated regulation 3(2)(c) as depending on the Secretary of State’s opinion that there was currently no viable route of return.
2. The statutory appeal is not uniformly a full rehearing. Where a criterion or condition is expressed objectively, or concerns individual facts such as destitution or the reasonableness of steps taken to leave the United Kingdom, the Adjudicator may determine the matter afresh and substitute its decision under section 103(3)(b) of the Immigration and Asylum Act 1999.
3. Regulation 3(2)(c) is different. It concerns a policy opinion about a country generally, exceptionally a part of a country. The Adjudicator may determine whether that opinion is genuinely held, but is not authorised to substitute its own view on the underlying country-policy question.
4. The availability of judicial review means that an effective statutory appeal does not require the Adjudicator to second-guess the substance or public-law legality of that opinion. The regulations were not ultra vires.
5. The Secretary of State’s decision was lawful. The change in policy meant that regulation 3(2)(c) no longer automatically satisfied the eligibility criterion. The claimant’s failure to respond to the September letter entitled the Secretary of State to conclude that no other regulation 3(2) condition had been shown to apply.
6. The court left open whether the safety of the route from Erbil to Kirkuk could arise under regulation 3(2)(a) on a fresh application. Support was continued while such an application and any appeal were pursued. There was no order as to costs, save for full assessment of the claimant’s publicly funded costs. Permission to appeal was refused.