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

In this case the Claimant seeks to challenge the Defendant’s decision dated 14 November 2024 to serve the Claimant with a deportation order and the consequent decisions to detain the Claimant from 7 December 2024 and to issue Removal Directions on 28 November 2024.

The Claimant is represented by Mr Gajjar and Mr Jamali of counsel and the Defendant is represented by Mr Tabori of counsel and I am grateful to them all for their helpful written and oral submissions.

The Claimant is an Albanian national who was born in August 2003. On 27 June 2022 he left Albania and flew to Belgium. From there he travelled to France by train and then used an agent to travel by boat to the United Kingdom. On 29 June 2022 the Claimant entered the United Kingdom without leave to enter and was detained upon entry. He claimed asylum and underwent a screening interview on the same day. He claimed during his interview that he had left Albania because he was forced to commit crime, namely drug dealing.  

A full copy of his initial screening questionnaire is in the hearing bundle, and I note that the Claimant had an Albanian interpreter. He was asked for his contact number and email address, and the interview record contains a phone number comprising 10 digits with the words “An Albanian mobile phone”. The Defendant relies on the words at the end of the screening questionnaire which were read to the Claimant:

“If appropriate, at a later date you will be sent a letter inviting you to attend an asylum interview at which you be able to give full details of your experiences and fears. Your asylum interview will be recorded and we may conduct your interview by video conferencing unless you have a reason why the interview should not be recorded or conducted by video conferencing. If so, you will need to provide evidence to your casework team. The letter inviting you to interview will provide details about how you can contact the casework team. 

If you do not attend your asylum interview without providing a valid reason, your claim for asylum may be withdrawn and steps made to remove you from the UK.”

Following his screening interview, the Claimant was provided with interim asylum accommodation at the Crown Plaza Hotel in Basingstoke.

On 30 June 2022 the Secretary of State referred the Claimant’s claim to the National Referral Mechanism (NRM) as a potential victim of human trafficking.

 It is accepted by the Claimant that on 2 July 2022 he left the Crown Plaza Hotel in which he had been accommodated and did not leave a forwarding address or make any further contact with the Defendant in relation to his asylum application. The Claimant’s departure from the hotel on that date is recorded in the Defendant’s records.

On 3 July 2022 the Defendant recorded the Claimant’s asylum claim as having been withdrawn, but no withdrawal decision was issued to his file at that time. It is appropriate to record at this point, as was noted by Upper Tribunal Judge Ockelton in granting permission, that it is a necessary requirement under the Immigration Rules that a withdrawal decision must be issued to file if the whereabouts of an applicant are unknown and that the filing date constitutes the decision date. The Claimant initially sought to challenge any reliance by the Defendant on this earlier July 2022 withdrawal date, but the Defendant has confirmed that it is not relying on this date and permission was given on that basis.

On 5 July 2022, a positive reasonable grounds decision was made in relation to the Claimant’s claim to be a victim of trafficking/modern slavery. 

On 21 June 2023, almost a year after his disappearance, the Defendant then issued to file a formal withdrawal letter notifying the Claimant that consideration of his application had been discontinued on the grounds that his asylum claim had been treated as implicitly withdrawn The letter was not sent to the Claimant as the Defendant had no forwarding address for the Claimant to which the letter could be sent. The letter stated:

“You were advised in your screening interview on the 29/06/2022 that you may be required to attend an asylum interview at a later date. You were warned that failure to attend this interview may result in your claim for asylum being withdrawn. It is a requirement of 358B of Immigration Rules to notify the Secretary of State of your current address or any change of address. 

It is now 21/06/2023 and you have failed to provide a valid address. It has therefore not been possible to progress your claim by inviting you to an asylum interview. As a result, a decision has been made to treat your claim for asylum as withdrawn under paragraph 333C of the Immigration Rules on 21/06/2023 and consideration of it has been discontinued.”

The letter also stated that the Claimant would have to make further submissions should he wish to pursue a protection or human rights claim. 

The Defendant accepts that no invitation for an interview was ever sent to the Claimant at his previous asylum accommodation address and the Defendant has not provided any evidence that any other attempt was made to contact him by any other means including by trying to call his Albanian mobile phone number.

For completeness, the Defendant also accepts that an absconder notification form was also erroneously issued to file on 21 June 2023, although the Defendant’s absconder policy did not apply, as the Claimant had not left Port or Border Force accommodation. In fact, the correct information was recorded on the form, so it is agreed by the parties that nothing turns on that error. 

On 1 November 2023 the Claimant was encountered during a street stop and search by Essex Police and subsequently arrested.

On 19 April 2024, at Chelmsford Crown Court, the Claimant was convicted of an offence of Possession with intent to supply a controlled drug of Class A - Crack Cocaine. He was sentenced to 2 years and 9 months’ imprisonment.  His conditional release date was 7 December 2024.

On 9 May 2024, the Claimant (having initially denied receiving any such notice in his claim form) now accepts that he signed to confirm receipt of a stage 1 deportation notice letter dated 8 May 2024.

On 16 October 2024 a negative conclusive grounds decision was issued. On 16 November 2024 a deportation decision dated 14 November 2024 was served on the Claimant in prison.  A copy of the form is in the bundle, which records that the Claimant had refused to sign for it. 

On 27 November 2024 the Defendant served on the Claimant a notice of intent to remove, and his removal was initially scheduled for 5 December 2024.  The letter stated:

“We wrote to you on 08 May 2024 and notified you that because of your criminal convictions in the UK the Secretary of State had decided to make a Deportation Order against you under section 32(5) of the UK Borders Act 2007, subject to consideration of section 33 of the same Act. This is because you are a foreign criminal who has been sentenced to a period of imprisonment of at least 12 months and as such your deportation is conducive to the public good.”

On 3 December 2024, the Claimant then issued his claim for judicial review which was served on the Defendant on 9 December 2024. The Claimant made an application for interim relief seeking a stay of his removal which by then had been re-scheduled on 2 December 2024 for 12 December 2024.

Mrs Justice Lang refused the application for interim relief on 11 December 2024. Later that evening, the Claimant sought permission to appeal that order from the Court of Appeal. In the meantime, the Defendant had decided to defer the removal directions and a notice cancelling removal directions was served on the Claimant on 11 December 2024 by email at 21.14. The appeal to the Court of Appeal was then withdrawn by consent and the matter then proceeded to the permission stage. 

On 2 January 2025 the Defendant filed her Acknowledgment of Service and summary grounds of defence. On 13 February 2025 permission was granted on the papers by Upper Tribunal Judge Ockelton sitting as a judge of the High Court, whose decision included the following observations: 

“Everything depends on whether the claimant had an outstanding asylum application at the date of the decisions to detain and remove him, and, because there is no doubt that the claimant did make an asylum claim, that in turn depends on whether the defendant’s decision to treat the asylum claim as implicitly withdrawn was lawful….

One cannot have any sympathy at all for the claimant, who entered the United Kingdom unlawfully, unlawfully left the accommodation provided for him at public expense, made an asylum claim that he did not pursue, and then used his time in the United Kingdom to commit serious criminal offences; but he is entitled to due process. It is arguable that the reason given in the notice of decision is not one of those leading to treating the claim as withdrawn as permitted by paragraph 333C. If an interview had been scheduled and an invitation had been sent to his last known and only lawful address, things would be different, but it wasn’t. In these circumstances it is not easy to see how the claimant can be said to have ‘failed to attend the [sic] interview’.”