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

The central issue in this case is the true construction of paragraph 333C of the Immigration Rules at the time of the Defendant’s implicit withdrawal decision on 21 June 2023. The general approach to statutory interpretation was restated recently by the Supreme Court in For Women Scotland Ltd v Scottish Ministers [2025] UKSC 16 at paragraph 9 of the judgment in the following terms:

“The general approach to statutory interpretation in the United Kingdom is well established. The House of Lords and this court have set out the basic approach on a number of occasions, including in R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349. Most recently, this court set out the approach in R (O) v Secretary of State for the Home Department [2023] AC 255.

As Lord Hodge stated in R (O) v Secretary of State for the Home Department [2023] AC 255, in undertaking statutory interpretation the court is “seeking the meaning of the words which Parliament used”. In relation to the Immigration Rules this would mean seeking the meaning of the words used by the Secretary of State. This usually requires the court to look at the ordinary or natural meaning of the words used in the context of the provision in question and the legislation as a whole. The words used, when properly considered in context, are the primary source of their meaning. Any ‘external aids’, such as the Guidance to the Immigration Rules and the Explanatory Memorandum to the amended rules relied on in this case, must play a secondary role but may assist the court in identifying the purpose of the legislation and in resolving any ambiguity as to its meaning. As Lord Hodge made clear in O, “none of these external aids displace the meanings conveyed by the words of a statute that, after consideration of that context, are clear and unambiguous and which do not produce absurdity”.

The Supreme Court in For Women Scotland Ltd also approved the statement of Lord Hodge in O that “statutory interpretation involves an objective assessment of the meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words which are being considered” and warned against giving a literal interpretation to a particular statutory provision without regard to the context of the provision in the statute and the purpose of the statute.

These principles were applied to the interpretation of the Immigration Rules in the case of Mahad v Entry Clearance Officer [2009] UKSC 16 in which the Supreme Court confirmed, following the earlier House of Lords decision of MO (Nigeria) v Secretary of State for the Home Department [2009] UKHL 25, that:

“The Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State’s administrative policy.”

The case of Mahad concerned that proper interpretation of rules 281(v), 297(v) or 317(iva) of the Statement of Changes in Immigration Rules (1994) (HC 395), as amended and whether, under those rules, third party support could be included when considering whether claimants could be maintained without recourse to public funds. The Supreme Court confirmed that the intention of the Secretary of State is to be discerned objectively from the language used, not divined by reference to supposed policy considerations or any instructions issued to immigration officers. Lord Kerr also confirmed that the meaning of the words used “must also be considered in terms of the overall purpose of the provisions”. The court concluded that although it was not expressly referred to in any of these provisions, third party support could be permitted.

In the case of R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33, the Supreme Court made clear that as there is a statutory requirement in section 3(2) of the Immigration Act 1971 that immigration rules must be laid before Parliament, it was not permissible for the Defendant to rely on any conditions (in that case a list of skilled occupations) which only appeared in an a supplementary Code of Practice which had not been laid before Parliament.

In the context of this case, the effect of the decision in Alvi is that the Defendant cannot rely on any additional criteria in the Guidance to supplement the scope of paragraph 333C. This does not mean however that the Defendant’s Guidance cannot throw some light on the intended meaning of the words in the Rules and the policy context and purpose which they were intended to address.

I have set out above the legislative framework in which asylum claims fell to be determined in June 2023. I am satisfied that version 7.0 of the Guidance properly reflected the intended scope of paragraph 333C. Although at one point in his submissions, Mr Gajjar sought to suggest that insofar as any parts of the Guidance went beyond the scope of paragraph 333C they would be invalid, the Claimant had not pleaded that the sections of the Guidance relating to paragraph 333C unlawfully directed the Defendant to act outside the vires of the Rule, and he did not press this point in relation to the Claimant’s own circumstances.

I have also taken into account the submission made by Mr Gajjar, which I accept, that whilst this Claimant may not appear to be the most deserving of applicants, or to evoke any sympathy, he was still entitled to ‘due process’ and lawful decision-making.

The starting point for determining the proper meaning of paragraph 333C is to look at the ordinary and natural meaning of the words used. The part of paragraph 333C which is relied on by the Defendant states “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 express wording of the rule does not require an invitation to have been sent or received, and I am satisfied that this part of paragraph 333C (as drafted in June 2023) was intended by Secretary of State to cover three scenarios:

In each of these scenarios, the outcome is that the applicant has failed to attend a personal interview, which is a necessary stage of the asylum procedure under 339NA of these Rules. This construction of paragraph 333C, as not requiring an invitation to have been sent or received by the applicant is supported by the protection for the applicant then built in by the remaining words “unless the applicant demonstrates within a reasonable time that that failure was due to circumstances beyond their control”.

The Defendant, in the decision under challenge on 21 June 2023 (set out in paragraph 11 above) explained that as result of the Claimant having failed to notify the Defendant of a valid address for communications relating to his asylum claim, as required by paragraph 358B, it had not been possible to progress his claim by inviting him to an asylum interview. His case therefore fell within the third scenario encompassed by paragraph 333C outlined above and was correctly described in the withdrawal decision.

I accept the Defendant’s submissions that any other construction of paragraph 333C, so as to require an invitation to be sent by post to a previous address which an asylum applicant was known to the Defendant to have already left, could not have been the intention of the drafting, as this would place an unnecessary and unjustified burden on the Defendant, with no benefit to the asylum applicant. It would also give rise to significant risks in relation to data protection concerns, as highlighted in the case of TLT v SSHD [2018] EWCA Civ 2217, as it would involve sending correspondence containing personal data to an address at which the recipient was known to no longer reside.

This construction of paragraph 333C is also supported by the statutory guidance available at that time which did not require an invitation for an interview to be sent before a withdrawal notice could be filed. In particular, as can be seen from the introductory section in Guidance 7.0 (set out in paragraph 39 above) under the heading “Implicit withdrawals” which, having set out the three situations in which an asylum claim may be treated as implicitly withdrawn under paragraph 333C of the Immigration Rules,then states: “ This process allows cases to be concluded without further consideration where the claimant has absconded or is refusing to cooperate by providing up to date contact details and attending Home Office events, such as a reporting event or an asylum interview. In such cases the claim should normally be treated as withdrawn and any asylum support terminated.”

Although the Guidance version 7.0 does not make express reference to the duty on applicants under paragraph 358B, it is plain that the Guidance envisaged paragraph 333C being read in the context of the wider statutory framework, so as to allow implicit withdrawal to be applied in such cases where it was not possible for invitations to reporting events or interviews to be sent. A similar approach is clear from the section of the Guidance under the heading “Absconding before substantive interview” (set out in paragraph 40 above) which states (with my underlining) “Claimants who fail to maintain contact before they are invited to an asylum interview may have their claim treated as implicitly withdrawn if they have been advised in writing that they will be required to attend an interview as part of the asylum process and, that failure to attend will result in the withdrawal of the claim.” The guidance then goes on to state that the relevant warning can be given in the Screening Interview form and the Claimant in this case accepts that he received that document.

I have carefully considered the other sections of the Guidance relied on by Mr Gajjar, under the headings “Failure to attend the substantive asylum interview” and “Failure to report to substantive interview letter” (set out atparagraph 41 above). These sections refer to the need to also serve to an applicant’s file a ‘3724’ or ‘Failure to report to substantive interview letter’ as well as the ‘3725’ or the Withdrawal Notification Letter which was served to the Claimant’s file in this case. In the latter section the guidance states:

“To determine whether failure to attend the substantive asylum interview should be treated as an implicit withdrawal, or if the interview should be rebooked, a failure to report to a substantive interview letter (ASL.3724) must be sent immediately to the claimant and an ASL.4826 covering letter with a copy of the ASL.3724 sent to their immigration advisor (if applicable) to establish why the claimant did not attend. The deadlines for a response to this letter are 5 working days in non-detained cases or 24 hours in all detained cases.”

I have reached the conclusion that those sections of the Guidance do not apply to the Claimant’s situation, but only apply in the first and second scenarios set out in paragraph 64 above, namely when an invitation has been sent to the applicant’s last notified address and the applicant has then failed to attend the interview. I consider that the purpose of this further stage in the procedure is to ascertain whether or not the invitation has been received, and if so, to establish why the claimant did not attend the interview. This is in line with the ‘protective’ caveat I have referred to in paragraph 333C which allows an asylum applicant to demonstrate within a reasonable time that their failure to attend an interview was due to circumstances beyond their control. These sections of the guidance are separate from, and come after, the section on ‘absconding before the substantive interview’ and are not applicable to a situation in which no invitation has been sent at all due to the disappearance of the applicant without notifying the Defendant of any contact address within a reasonable time.

My conclusion on the proper construction interpretation of the June 2023 version of paragraph 333C is also consistent with the decision of Sweeney J in the case of AB v Secretary of State for the Home Department [2016] EWHC 2751. The central issue in that case was the true construction of paragraph 334 in Part 11 of the Immigration Rules, in circumstances where the claimant was an asylum applicant who had been in the UK when he made his application for asylum but had left the UK without permission and was no longer in the UK when his application for asylum was dismissed. Sweeney J rejected the claimant’s arguments and dismissed the claim. In his judgment, he also concluded that the claimant’s circumstances fell within the scope of an earlier version of paragraph 333C (which included the same wording in relation to a failure to attend a personal interview as the June 2023 version) on the basis that if the Defendant was unable to take forward his claim for asylum because of the claimant’s own actions in leaving the country without permission, such conduct was capable of being treated as an implied withdrawal under paragraph 333C. In that case, as in the present case, no invitation to an interview was sent to the claimant. Although I accept Mr Gajjar’s submission that this conclusion did not form an essential part of the court’s decision in AB and must therefore be strictly regarded as ‘obiter dicta’, it is nevertheless persuasive, and I note that the decision is consistent with my conclusion as to the proper construction of paragraph 333C.

Although I have concluded that the true construction of paragraph 333C is clear based on the ordinary and natural meaning of the provision itself, I will now address the August 2023 amendments to that paragraph which are relied on by the Claimant in support of his alternative construction which would exclude its application to the claimant’s situation.

The amendments to the Immigration Rules made in August 2023 included the entire re-drafting of paragraph 333C from a single long paragraph with 139 words covering both express and implicit withdrawal to a new paragraph 333C divided into two sub-paragraphs (a) and (b). Sub-paragraph (a) now covers express withdrawal and sub-paragraph (b) now covers implicit withdrawal. Sub-paragraph (b) is then further divided into five sub-sub-paragraphs (i) to (v). The amendments include additional wording in (b)(i) and b(iv) which did not appear in the June 2023 version (see paragraph 30 above for full wording). Prior to the August 2023 there had been previous amendments to paragraph 333C which had increased its scope and length.

The nature of the drafting amendments that were made in August 2023 do not inexorably lead to the conclusion suggested by the Claimant, namely that the circumstances now reflected in the new sub-paragraph 333C(b)(i) did not previously fall within the scope of paragraph 333C when read together with paragraph 358B.

In my view the addition of sub-paragraph 333C(b)(i) was intended to be a clarifying amendment rather than the creation of a new substantive ground for implicit withdrawal. The wording and structure of the amended paragraph 333C indicates that part of the intended purpose of the revised drafting was to confirm and clarify the relationship between the existing duty on the applicant under paragraph 358B (which remained unchanged) and the Defendant’s power under paragraph 333C.

I reject the Claimant’s general contention that amendments by way of the inclusion of additional sub-paragraphs in the Immigration Rules, such as b(i), would only have been made to address lacunas in the previous drafting and must indicate that they amount to substantive new criteria for implicit withdrawal. In other words, put simply, that such legislative changes would not be made for any other purpose. In practice, statutory provisions which have become overly long and complex over time are often redrafted simply to improve transparency and clarity. In the case of Immigration Rules, and the inevitable heightened political context in which amendments are made, it is also appropriate to recognise that amendments may sometimes be made primarily for the purpose of emphasising, and making more explicit, the scope of existing provisions for the benefit of those involved in decision-making under those Rules and a wider audience.

Instead, it is necessary to ascertain whether the inclusion of sub-paragraph (b)(i) in the amended paragraph 333C was in fact intended to introduce a substantive change. Both Counsel have sought to place reliance on the wording of the Explanatory Memorandum relating to the August 2023 amendments and I accept that it may be of some assistance to the court in ascertaining the intended purpose of the amendment.

The overall heading of the relevant section of the Explanatory Memorandum is “Improving clarity regarding withdrawing asylum claims”. The specific sub-section relating to sub-paragraph 333C(b)(i) states, with my underlining for emphasis:

“7.21

The inclusion of 333C(b)(i) will ensure the progression of applications more efficiently by helping to prevent absconder scenarios. This makes absolutely clear that the burden is on the claimant to keep the Home Office up to date with their contact details, and failure to do so may result in a withdrawal of the asylum claim.”

By contrast, some other sections in the Explanatory Memorandum, such as the section relating to sub-paragraph (a) refer to substantive changes, such as a claimant being able to expressly request withdrawal of their claim in writing without the need to complete a specified form. The sections relied on by Mr Gajjar, and in particular the words “strengthening” and “extend the circumstances”, are used in the general sections referring to the amendments as a whole, rather than being used in relation to sub-paragraph 333C(b)(i). That new sub-paragraph is only described in the Explanatory Memorandum in terms of being included for the purpose of making the effect of existing provisions in paragraph 358B and paragraph 333C “absolutely clear”.

This interpretation of the purpose of the August 2023 amendments to paragraph 333C and the inclusion of the new sub-paragraph (b)(i) is also consistent with the wording of the previous guidance, version 7.0 which I have already addressed in detail above. In particular, that guidance made plain that an application could properly be treated as implicitly withdrawn where an applicant had disappeared or absconded prior to any invitation to an interview having been sent out.

For completeness, I did not find the guidance note published by the Defendant on gov.uk for IAA advisors on explicit and deemed withdrawal which purported to explain the effect of the 7 August 2023 amendments, and was relied on by the Claimant, to be of any assistance to me in determining the proper construction of either version of paragraph 333C. Such instructions, as was expressly noted by the Supreme Court in Mahad, cannot be regarded as a helpful guide to the Defendant’s intentions, where they are inconsistent with the wording used in the Rules.

In my view the wording of the amendments to the Immigration Rules made in August 2023 does not indicate that the circumstances now covered by sub-paragraph 333C(b)(i) did not already fall within the true construction of paragraph 333C in June 2023.

 In this case, for all these reasons, I have reached the conclusion that on its true construction, the wording of the version of paragraph 333C which was in force in June 2023 allowed the Defendant to treat an asylum claim as being implicitly withdrawn in circumstances where as a result of a claimant’s failure to comply with their obligations under 358C, they had failed to attend an interview because there was no current contact address to which an invitation could be sent by the Defendant.