AC-2024-LON-003989 - [2025] EWHC 2148 (Admin)

On the Claimant’s pleaded case, that would be the end of the matter. However, during submissions, as I have already noted, Mr Gajjar also sought to raise arguments in relation to the Defendant’s compliance with her stated policy guidance. As these points were dealt with in the Claimant’s skeleton argument and responded to by Mr Tabori, I will deal with them briefly for completeness.

In Mandalia, the court determined that where, in lawful exercise of a discretion conferred by statute, a public authority had published a policy setting out how it would act in a given area, the authority had to follow that policy unless there were good reason for not doing so; and that the proper interpretation of the process instruction, which represented the policy of the UK Border Agency, was a matter of law for the court.

In this case, I accept that the starting point is that the Defendant is bound to follow her own guidance unless there is a good reason for not doing so, but I am not satisfied that the Guidance required the Defendant to take the further steps in this case suggested by Mr Gajjar.

When asked by the court what steps should have been taken by the Defendant, Mr Gajjar declined to positively assert that the Defendant was required to send an invitation letter to an address at which the Claimant was known to have left, although this had been the basis of his written submission on the construction of paragraph 333C. Instead, as I have noted, he suggested during the hearing that the Defendant should have taken steps to try and contact the Claimant, by using an Albanian mobile phone number recorded on his screening interview form a year earlier in order to ascertain an address to which an invitation could then be sent.

In my view, this submission is not well-founded. By the time that the formal withdrawal decision relied on by the Defendant was served to the Claimant’s file in June 2023, the Defendant had waited almost a year after the Claimant had chosen to abscond from his asylum accommodation and disappeared in July 2022 and there is no evidence from the Claimant that he had made any attempt to contact the Defendant to pursue his asylum claim or to provide any up to date correspondence address as required by paragraph 358B during that time. In fact, the only evidence about his whereabouts after June 2022 until his arrest in November 2023, as recorded in his immigration case summary, is a link to a newspaper article in which the Claimant was reported as boasting online about how easy it was to disappear having claimed asylum. The Defendant did not seek to place any reliance on this media coverage, as it is not apparent when it came to the attention of the Defendant, but it reinforces the context in which the Defendant’s guidance must be interpreted and applied.

In the Mandalia case, the process guidance was accepted by the Defendant as applying to the process in question and was found by the Supreme Court not to have been properly followed to the detriment of the claimant in that case. By contrast, in this case, I am not persuaded that the Withdrawal Guidance required the Defendant to use every possible avenue to try and track down an asylum applicant like the Claimant who accepts that he had actively chosen to leave his asylum accommodation and disappear within the UK and had failed to provide any new contact address to the Defendant after a year.

In my view, this situation is quite different from the situations giving rise to the requirements to attempt to contact an applicant set down in the Guidance which are relied on by the Claimant. It is plain from the express language used in the Guidance that the primary purpose of the directions to utilise all available contact methods to communicate with asylum applicants is to ascertain any reasons for non-compliance which might bring them within the ‘circumstances beyond their control’ exception in paragraph 333C before implicitly withdrawing their asylum claim. For example, the Guidance does require alternative efforts to be made by the Defendant to contact an asylum claimant who has not previously provided a contact address at all or has failed to attend an interview having been sent an invitation to an address previously notified. In such circumstances there may be an explanation for their failure to provide any contact address or their non-attendance at an interview which would mean that a decision of implicit withdrawal would not be appropriate. There may also be unusual situations where an applicant who has disappeared from asylum accommodation and has not been sent an invitation to a personal interview, can establish that their failure to notify the Defendant of a new correspondence address within a reasonable time was because of circumstances beyond their control, such as a medical emergency. However, I do not consider that any part of the Defendant’s guidance can be read as imposing a duty on the Defendant to track down an applicant in the position of the Claimant in this case who has chosen to leave his previous contact address and has not been in contact with the Defendant for almost a year, or that a failure to do so would render an implicit withdrawal decision unlawful.

For all these reasons, I have reached the conclusion that there has been no procedural unfairness in this case in terms of any breach of the Defendant’s guidance, such as to affect the lawfulness of the Defendant’s decision in June 2023.