Elvis Zoto, R (on the application of) v Secretary of State for the Home Department

Under paragraph 333C of the Immigration Rules as in force in June 2023, an asylum claim could be treated as implicitly withdrawn where an applicant failed to maintain contact and provide a current address, with the result that no interview invitation could be sent. An invitation did not have to be sent or received before the applicant could be treated as having failed to attend a personal interview. The protection was the opportunity to demonstrate within a reasonable time that the failure resulted from circumstances beyond the applicant’s control. Later amendments clarified, rather than retrospectively created, that ground. The Secretary of State’s guidance did not require officials to track down an applicant who had deliberately disappeared and remained out of contact for almost a year.

The claimant, an Albanian national, challenged the Secretary of State’s decision to deport him following a sentence exceeding 12 months, and the associated removal directions and detention. He argued that his asylum claim remained pending, so removal was prohibited by section 77 of the Nationality and Immigration and Asylum Act 2002.

The Secretary of State had treated the claim as implicitly withdrawn under paragraph 333C of the Immigration Rules after the claimant left asylum accommodation, failed to provide a forwarding address and remained out of contact. The central issue was whether paragraph 333C, read with paragraph 358B, permitted withdrawal where no interview invitation had been sent because the claimant’s whereabouts were unknown.

1. Claim dismissed. The June 2023 version of paragraph 333C permitted implicit withdrawal where an asylum applicant failed to maintain contact and provide a current address under paragraph 358B, so that an interview invitation could not be sent. The phrase concerning failure to attend a personal interview did not require an invitation to have been sent or received.
2. The provision covered three situations: an invitation sent and received but not attended; an invitation sent but not received and consequently not attended; and no invitation sent because the applicant’s whereabouts were unknown after failing to provide a new address. In each situation, the applicant retained the opportunity to show within a reasonable time that the failure arose from circumstances beyond their control.
3. The August 2023 restructuring of paragraph 333C, including new sub-paragraph (b)(i), was a clarifying amendment. It confirmed the relationship between the applicant’s continuing duty to provide contact details and the Secretary of State’s withdrawal power. The amendment did not show that the power was unavailable in June 2023.
4. The guidance could illuminate the purpose and context of the Rules but could not add criteria beyond them. The further guidance requiring a failure-to-attend notice applied where an invitation had been sent, not where no invitation could be sent because the applicant had disappeared. The guidance did not require the Secretary of State to pursue every possible contact route, including an old telephone number, in the circumstances of this case.
5. The implicit withdrawal decision was lawful. The claimant therefore had no pending asylum claim when deportation and detention decisions were made, and the detention challenge failed. The alternative under section 31(2A) of the Senior Courts Act 1981 did not need to be determined. The claim was dismissed, with the claimant ordered to pay the defendant’s costs, subject to detailed assessment on the standard basis if not agreed.

First-instance judicial review in the Administrative Court. Permission had been granted by Upper Tribunal Judge Ockelton sitting as a High Court judge; the present court dismissed the claim.