AB, R (on the application of) v The Secretary of State for the Home Department

Under paragraph 334(i) of the Immigration Rules, the Secretary of State must be satisfied, when deciding an asylum application, that the applicant is then in the United Kingdom or has then arrived at a United Kingdom port of entry. It is insufficient that the applicant was present when the application was made. That construction is consistent with the Refugee Convention and applicable European directives. A person’s authorised short absences may not amount to withdrawal of an asylum application, but an unauthorised departure, using undisclosed travel documents and followed by prolonged absence, may be treated as implied withdrawal under paragraph 333C. The Secretary of State may decline to exercise a discretion outside the Rules where doing so is not irrational, unreasonable or otherwise unlawful.

The claimant applied for judicial review of the Secretary of State’s refusal to make a decision on his outstanding asylum application. He had applied while in the United Kingdom but later left without notice, using travel documents unknown to the Secretary of State, and remained abroad when his exceptional leave to remain expired. The Secretary of State stated that she was not in a position to take the claim forward because he was no longer in the United Kingdom. The central issue was whether paragraph 334(i) required presence in the United Kingdom at the time of decision as well as at the time of application.

1. The claim was dismissed. The court held that paragraph 334(i), read in its statutory, Convention and Rules context, required the Secretary of State, when considering the asylum decision, to be satisfied that the applicant was then in the United Kingdom or had then arrived at a United Kingdom port of entry.

2. The Refugee Convention is directed to the treatment of refugees within the receiving state. The Qualification Directive, the Procedures Directive and Dublin II did not require a different construction.

3. Earlier authorised travel during periods of exceptional leave did not imply withdrawal, because it occurred with the Secretary of State’s permission. The claimant’s later departure was materially different: he had obtained and concealed two passports, left without notice, used one of them, and remained abroad after his leave expired. That conduct was capable of amounting to implied withdrawal under paragraph 333C.

4. The Secretary of State was entitled to decline to act outside the Immigration Rules. Her decision was not irrational, unreasonable or otherwise unlawful, and she had not improperly relied on her past conduct or on other criteria in paragraph 334.

5. Although the letter did not expressly invoke paragraph 333C and did not show that the asylum file had been marked as withdrawn, its substance was that the application failed because the claimant was absent from the United Kingdom. That reason was legally correct, so no order requiring a fresh, more formal decision was appropriate.

The judgment was a first-instance judicial review decision. The claim had previously been stayed by consent pending separate entry-clearance proceedings, but no lower-court decision in this claim was under appeal.