Mustafa, R (On the Application Of) v Kent County Council

A failed asylum-seeker who has made further submissions does not become an asylum-seeker for the purposes of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 unless the Secretary of State accepts the submissions as a fresh claim. The statutory definition is linked to the decision-making process in Part 5 and has the same substantive meaning. The duty to implement the Reception Directive concerns the result to be achieved, not a particular domestic legislative route. Domestic support, including support under section 4 of the Immigration and Asylum Act 1999 and paragraph 3 of Schedule 3, may satisfy the Directive’s minimum requirements without extending the statutory definition.

The claimant, a former relevant child supported under the Children Act 1989, had exhausted his initial asylum appeal and later made further representations. The Secretary of State had not decided whether they amounted to a fresh claim under paragraph 353 of the Immigration Rules. The local authority declined to reinstate Children Act support, treating the claimant as outside the statutory definition of an asylum-seeker. The claimant challenged that decision, arguing that his further representations made him an asylum-seeker under Schedule 3 to the Nationality, Immigration and Asylum Act 2002, and that EU law required a Directive-conforming interpretation. The human-rights ground was withdrawn. The central issue was whether unaccepted further submissions constitute a claim for asylum for the relevant support provisions.

1. Application refused. The claimant’s further submissions did not make him an asylum-seeker for the purposes of Schedule 3 to the Nationality, Immigration and Asylum Act 2002.
2. The materially identical definition in section 94 of the Immigration and Asylum Act 1999 had been construed in R (Nigatu) v Secretary of State for the Home Department [2004] EWHC 1806 (Admin). A further submission is not a claim for asylum until the Secretary of State has decided that it constitutes a fresh claim. That approach was supported by the statutory requirement that the claim be recorded and by the links in paragraph 17 to the Part 5 decision-making process.
3. The Part 5 authorities, including R (Robinson) v Secretary of State for the Home Department [2017] EWCA Civ 316, confirmed that further submissions rejected under paragraph 353 do not generate an appealable decision on a claim. The same meaning applied in Schedule 3; the claimant identified no coherent basis for different meanings within the legislation.
4. The Marleasing principle requires national law to be interpreted compatibly with a directive only so far as necessary to achieve the result required by EU law. Member States retain the choice of form and methods. The Reception Directive therefore did not require the domestic definition to be enlarged where other domestic provision adequately secured the minimum reception conditions.
5. On the facts, the claimant’s basic needs were being met and the unchallenged assessment was that he was not destitute. If destitution arose, section 4 support, reinforced where necessary by paragraph 3 of Schedule 3, was capable of satisfying the minimum standards required by the Reception Directive. The court did not decide issues concerning families, minors or persons with special needs.

First-instance judicial review proceedings. Permission was granted on both grounds. The human-rights ground was subsequently withdrawn. The application was refused by the High Court.