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

The Claimant now challenges the deportation decision and his subsequent detention on the single ground that, as at the date of the Defendant’s decision in November 2024, he had a pending asylum claim and so he could not be deported, by virtue of s 77 Nationality and Immigration and Asylum Act 2002.

The Defendant resists the claim on the grounds that Claimant did not have a pending asylum claim at the date of the November 2024 decision because his asylum claim had been lawfully treated by the Defendant as implicitly withdrawn due to the Claimant leaving his interim asylum accommodation with no forwarding address on 2 July 2022 and a withdrawal decision being filed by the Defendant on 21 June 2023. 

The Claimant accepts that as a foreign criminal who had been sentenced to more than 12 months imprisonment, he was liable to be detained and deported under s.32(5) UK Borders Act 2007. His claim to unlawful detention therefore depends solely on whether he still had a pending asylum claim in November 2024.

Both parties agreed that the central issue in the case is the true construction of paragraph 333C of the Immigration Rules in place at the time of the Defendant’s implicit withdrawal decision on 21 June 2023.

Both parties also agreed that in the event that the Claimant’s judicial review application was successful, then the Claimant’s claim for damages for unlawful detention/false imprisonment and under the Human Rights Act 1998 could be properly transferred to the County Court at Central London to proceed under CPR Part 7. 

I note that the Defendant continued to disclose documents relating to the Claimant’s detention and NRM procedure very late in this case, including after the bundle had been filed. Although Counsel agreed that the late disclosure did not affect the presentation of their cases at the hearing, I would like to take this opportunity to reiterate the importance of prompt disclosure of relevant documents. Ongoing compliance with the duty of candour is not an excuse for late disclosure of relevant documents which pre-date the detailed grounds of defence.

Section 77 of the Nationality and Immigration and Asylum Act 2002 as amended by the Nationality and Borders Act 2022 provides:

“77 No removal while claim for asylum pending

(1)

While a person's claim for asylum is pending he may not be—

(a)

removed from the United Kingdom in accordance with a provision of the Immigration Acts, or

(b)

required to leave the United Kingdom in accordance with a provision of the Immigration Acts.

(2)

In this section—

(a)

“claim for asylum” means a claim by a person that it would be contrary to the United Kingdom's obligations under theRefugee Convention to remove him from or require him to leave the United Kingdom, and

(b)

a person's claim is pending until he is given notice of the Secretary of State's decision on it.

….”

Section 3(2) of the Immigration Act 1971 requires any Immigration Rules made by the Defendant under that Act, and any changes to such rules, to be laid before Parliament under the negative resolution procedure. The scope of that provision was considered by the Supreme Court in R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33.

Part 11 of the Immigration Rules deals with procedure for Asylum claims. The relevant sections of the Immigration Rules in force at the time of the Defendant’s withdrawal decision on 21 June 2023 are set out below:

“Withdrawal of applications

333C. If an application for asylum is withdrawn either explicitly or implicitly, consideration of it may be discontinued. An application will be treated as explicitly withdrawn if the applicant signs the relevant form provided by the Secretary of State. An application may be treated as impliedly withdrawn if an applicant leaves the United Kingdom without authorisation at any time prior to the conclusion of their asylum claim, or fails to complete an asylum questionnaire as requested by the Secretary of State, or fails to attend the personal interview as provided in paragraph 339NA of these Rules unless the applicant demonstrates within a reasonable time that that failure was due to circumstances beyond their control. The Secretary of State will indicate on the applicant's asylum file that the application for asylum has been withdrawn and consideration of it has been discontinued. 

Personal interview

339NA Before a decision is taken on the application for asylum, the applicant shall be given the opportunity of a personal interview on their application for asylum with a representative of the Secretary of State who is legally competent to conduct such an interview.

……..

Information to be provided by asylum applicants

358B An asylum applicant must notify the Secretary of State of his current address and of any change to his address or residential status. If not notified beforehand, any change must be notified to the Secretary of State without delay after it occurs.”

The status of the Immigration Rules has been addressed in a number of authorities. In the case of Alvi at [9] and the case of R (AB) v SSHD [2016] EWHC 2751 (Admin) at [65] reference is made to the case of MO (Nigeria) v Secretary of State for the Home Department[2009] UKHL 25 in which the House of Lords summarised the legal status of the Immigration Rules at [6]:

“The status of the immigration rules is rather unusual. They are not subordinate legislation but detailed statements by a minister of the crown as how the Crown proposes to exercise its executive power to control immigration. But they create legal rights: under section 84(1) of the Nationality, Immigration and Asylum act 2002, one may appeal against an immigration decision on the ground that it is not in accordance with the immigration rules.”

Lord Hoffmann continued at [7]:

“They are, as I have said, a statement by the Secretary of State as to how she will exercise powers of control over immigration. So the most natural reading is that (in the absence of any statement to the contrary) they will apply to decisions that she makes until such time as she promulgates different rules, after which she will decide according to the new rules.”

The Claimant places a significant degree of reliance in this case on the fact that paragraph 333C of the Immigration Rules was amended a short time after the Defendant’s decision on 21 June 2023. The amended version of paragraph 333C came into effect on 7 August 2023 and was in the following terms:

“333C. If an application for asylum is withdrawn either explicitly or implicitly, it will not be considered. 

(a)

An application will be treated as explicitly withdrawn if the applicant signs the relevant form provided by or on behalf of the Secretary of State, or otherwise explicitly declares a desire to withdraw their asylum claim. 

(b)

An application may be treated as implicitly withdrawn if the applicant: 

(i)

fails to maintain contact with the Home Office or provide up to date contact details as required by paragraph 358B of these Rules; or 

(ii)

leaves the United Kingdom (without authorisation) at any time before the conclusion of their application for asylum; or 

(iii)

fails to complete an asylum questionnaire as requested by or on behalf of the Secretary of State; or 

(iv)

fails to attend any reporting events, unless the applicant demonstrates within a reasonable time that the failure was due to circumstances beyond their control; or

(v)

fails to attend a personal interview required under paragraph 339NA, unless the applicant demonstrates within a reasonable time that that failure was due to circumstances beyond their control.

(c)

The applicant’s asylum record will be updated to reflect that the application for asylum has been withdrawn.” 

It is common ground that the Claimant’s conduct in this case would fall within the scope of the new sub-paragraph 333C(b)(i) in addition to sub-paragraph b(v). However, the parties disagree as to whether the circumstances in this case were already implicit in the language of the previous paragraph 333C or whether the circumstances covered by the additional sub-paragraphs in the amended paragraph 333C were not available to the Defendant in June 2023 as grounds for reaching a conclusion of implicit withdrawal. The Claimant’s case is that the circumstances were not covered in the earlier version of paragraph 333C, so Claimant could not lawfully be treated as having withdrawn his claim under paragraph 333C on 21 June 2023. 

The single judge considered that it was arguable that the previous wording of paragraph 333C may not include the circumstances set out in the amended paragraph 333C(b)(i) and gave permission on that basis. 

There was no witness evidence from the Claimant and he did not seek to challenge the Defendant’s evidence that he had made a decision in July 2022 to leave his interim asylum accommodation and disappear within the United Kingdom. He has not adduced any evidence to suggest that he left any forwarding address or provided any new contact details to the Defendant or taken any steps to pursue his asylum claim after that time. He has also not provided any witness evidence about the status of his Albanian mobile phone number since June 2022.

The Defendant’s evidence comprised witness statements from Ashleigh Bloomfield, Deputy Chief Caseworker, dated 3 April 2025, and James Tonks, of the Operational Support and Certification Unit, dated 2 January 2025, and the documentary records exhibited to their statements.