AB, R (On the Application Of) v The Secretary of State for the Home Department

An asylum applicant must be in the United Kingdom, or at a United Kingdom port of entry, when the application is decided to qualify for refugee status under rule 334(i) of the Immigration Rules. An applicant’s earlier presence when applying is insufficient.

Departure does not prevent the Secretary of State from deciding the application. Unless it has been withdrawn or there is another proper reason for postponement, the application must be decided and refused under rule 336.

The Secretary of State retains a discretion to grant status outside the Rules and must consider a request to exercise it. The non-fettering principle does not ordinarily require the Secretary of State to search proactively for reasons to depart from the Rules where no request has been made and no striking circumstances demand consideration.

AB applied for asylum after entering the United Kingdom. While a fresh decision on his application was pending, he left the country without informing the Secretary of State and remained abroad after his leave expired. The Secretary of State subsequently stated that, because AB was no longer in the United Kingdom, she could not take the asylum claim forward or make a further decision.

AB sought judicial review of that decision. Sweeney J dismissed the claim in R (AB) v Secretary of State for the Home Department [2016] EWHC 2751 (Admin). AB appealed, contending that rule 334(i) of the Immigration Rules required presence only when the asylum application was made. Alternatively, he argued that the Secretary of State should have decided the claim outside the Rules or facilitated his return.

The central issues were whether presence in the United Kingdom was required at the date of decision, whether an application could still be decided while the applicant was abroad, and whether the Secretary of State had unlawfully failed to consider exercising a residual discretion outside the Rules.

1. The appeal was dismissed unanimously. Rule 334(i) of the Immigration Rules requires an asylum applicant to be in the United Kingdom, or at a United Kingdom port of entry, when the Secretary of State decides the application. The present-tense wording of rule 334, read with its other conditions, makes the date of decision the relevant date. It would be irrational to test refugee status or danger to national security only at the earlier application date, and there was no basis for treating presence differently from the other conditions.

2. Neither the Refugee Convention nor the Qualification Directive requires refugee status to be granted to a person outside the territory or control of the receiving state. The protection against refoulement concerns persons within a contracting state’s territory or control. The fact that an applicant previously entered the state and later left voluntarily does not extend that protection. The Procedures Directive required a decision on AB’s application because it had been made in the United Kingdom, but it created neither a right to refugee status while abroad nor a right of re-entry.

3. Rule 334(i) does not prevent an application from being decided while the applicant is abroad. Rule 333A requires a decision as soon as possible, subject to an adequate and complete examination, while rule 336 requires refusal where rule 334’s criteria are unmet. The Secretary of State therefore should have refused AB’s application instead of stating that no decision could be made. Quashing was nevertheless inappropriate because an express refusal was the only lawful decision under the Rules and the error caused AB no prejudice.

4. The mandatory character of the Rules is compatible with the principle against fettering discretion. The Secretary of State retained a residual power to grant refugee status outside the Rules and had to consider any request to exercise it. The principle required willingness to consider reasons for departure from the policy; it did not require the decision-maker to search for such reasons without a request. Exceptionally, sufficiently striking facts might make failure to consider an outside-Rules grant irrational.

5. No outside-Rules request had been made and the known circumstances were not sufficiently striking. The Secretary of State also had insufficient information about AB’s location, travel document, rights abroad or intended return. Nor did AB have a reasonable expectation or right to re-enter after voluntarily leaving without notice or a certificate of travel. The refusals of his later requests for re-entry were outside the scope of this claim.

1. Court of Appeal (Civil Division): The court dismissed the appeal unanimously: [2018] EWCA Civ 383 . It upheld the dismissal of the judicial review claim, although it found that the Secretary of State should have refused the asylum application rather than state that no decision could be made.
2. High Court, Queen’s Bench Division (Administrative Court): Sweeney J dismissed the claim for judicial review: [2016] EWHC 2751 (Admin) .