Secretary of State for the Home Department, R (on the application of) v First-Tier Tribunal (Asylum Support)

The First-tier Tribunal has jurisdiction to determine whether an applicant satisfies the statutory definition of an asylum seeker when deciding an appeal about asylum support. That jurisdiction includes deciding whether an asylum claim was validly treated as withdrawn under paragraph 333C of the Immigration Rules, because withdrawal affects entitlement to support but does not concern the merits of the asylum claim.

Although a literal reading of section 94(1) might treat a person whose claim was withdrawn as an asylum seeker until the claim was determined, the provision must be read as excluding a person who has expressly withdrawn the claim or whose conduct is treated by the Rules as inconsistent with continuing it. The same jurisdiction applies to appeals against refusal of support and to appeals against discontinuance of support, where support had actually been provided.

The Secretary of State challenged a decision of the Principal Judge of the First-tier Tribunal (Asylum Support), handed down on 14 June 2024, in linked appeals brought by MAH, LKL and GK. The appeals concerned refusal or discontinuance of support under sections 95 and 103 of the Immigration and Asylum Act 1999 after the Secretary of State treated the appellants’ asylum claims as implicitly withdrawn for failure to attend interviews.

The Principal Judge remitted each case for reconsideration, holding that the Tribunal could examine the circumstances in which the withdrawal decisions had been made. The central issues were whether the Tribunal had jurisdiction to decide whether a person remained an asylum seeker and whether that jurisdiction extended to both non-qualification and stoppage appeals.

1. Claim dismissed. The Tribunal had jurisdiction to hear LKL’s appeal under section 103(1) and MAH’s and GK’s appeals under section 103(2) of the Immigration and Asylum Act 1999.
2. The statutory appellate jurisdiction includes deciding whether an applicant is an “asylum seeker” within section 94(1). Eligibility for support depends on that status and on actual or imminent destitution. The Tribunal is intended to provide an efficient, convenient and accessible forum for resolving disputes about eligibility.
3. A claim treated as implicitly withdrawn under paragraph 333C of the Immigration Rules is not “determined” within section 94(3), since the withdrawal decision prevents any decision on the merits. On a literal reading, the claimant would therefore remain an asylum seeker. That reading would produce the unlikely result that a person who had voluntarily abandoned an asylum claim remained entitled to support. Section 94(1) must accordingly be read as containing an implied additional element: the person must not have withdrawn the claim, expressly or by conduct treated by the Rules as inconsistent with continuing it.
4. The principle that an administrative decision remains valid unless set aside does not determine the issue. The question is whether the Tribunal is a court of competent jurisdiction for the matter before it. Authorities concerning collateral challenges to subordinate legislation and administrative acts show that jurisdiction depends on the statutory scheme. The Tribunal’s inability to quash the withdrawal decision does not prevent it from deciding whether that decision was valid when that issue is necessary to determine the support appeal.
5. The statutory scheme provides no special reason to exclude this inquiry. The Tribunal cannot determine the merits of an asylum claim, but the validity of a withdrawal decision is procedural and commonly turns on factual questions similar to those arising under regulation 20 of the Asylum Support Regulations 2000, such as receipt of notice, absence from an address and reasonable excuse for non-attendance.
6. The distinction in Dogan did not alter the result. That case concerned support which had never been provided and an unfulfilled location condition. Here MAH and GK had received section 95 support, and the dispute was whether the condition or circumstance relied on had occurred. If their cases were accepted, support had been stopped before it would otherwise have ended. Section 103(2) therefore covered the appeals.

The claim was a judicial review challenge to the Principal Judge’s decision of 14 June 2024. Permission was granted by Foxton J on 6 November 2024. The Administrative Court dismissed the Secretary of State’s claim for judicial review.