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

Mr Gajjar submitted that the Defendant had acted unlawfully and failed to follow ‘due process’ in this case. He made two main submissions on the Claimant’s behalf:

In summary, in support of his first main submission, Mr Gajjar relied on the following points:

Mr Gajjar properly accepted the limited degree to which these explanatory and guidance documents could be relied on by the court in determining the true construction of the Rules, but he submitted that they were supportive of his interpretation of the purpose of the amendments, which was to provide additional grounds for implicit withdrawal which were not available under paragraph 333C in June 2023.

In relation to his second submission in relation to alleged non-compliance with the guidance, Mr Gajjar relied on various sections of the Withdrawal Guidance set out above which referred to attempting to contact asylum claimants, including:

“You must ensure that you utilise all available contact methods (this can include post, email and phone) to communicate with the claimant to obtain any reasons for noncompliance before implicitly withdrawing their asylum claim.”

and

“It is the claimant’s responsibility to notify the Home Office of any change in immigration advisor, address or contact details. If there is no correspondence or residential postal address on file, you must attempt to contact the claimant with any known contact details held. This includes phone numbers or email addresses which may have been obtained at screening interview, or any time throughout the asylum process.”

He contended, relying on the case of Mandalia v Secretary of State for the Home Department [2015] UKSC 59, that even if, contrary to his primary submission, the Defendant did have power to treat a failure to maintain contact as falling within the criteria in paragraph 333C in June 2023, she was obliged to follow her own guidance and to use all possible forms of contact. In response to a request from the court for clarity in relation to his stance on the sending of an invitation, Mr Gajjar did not expressly contend that the Defendant should have sent an invitation to the Claimant’s previous address from which he had absconded, although this was how the claim had been pleaded. Instead, he sought to persuade the court that the onus remained on the Defendant to track down the Claimant using his Albanian phone number and that unless she was able to evidence that she had done so, she could not lawfully conclude that he had ‘failed to attend’.

He also contended in his oral submissions that the section in the Withdrawal Guidance under the heading “Notice of failure to attend a substantive interview” applied in this case and that the guidance indicated that a 3724 Notice should also have been issued to file in this case. This point was not pleaded and was not raised in the Grounds of Claim or the reply.

Finally, Mr Gajjar urged the court to take into account that the interpretation of paragraph 333C for which he contended was an important protection for vulnerable complainants who may have lost contact with the Home Office through no fault of their own. Whilst he frankly accepted that the Claimant may not appear to be the most deserving of applicants and, as Judge Ockelton had commented, may not evoke any sympathy, he was still entitled to ‘due process’ and lawful decision-making.

Mr Tabori’s primary submission on behalf of the Defendant was that the third ground for implicit withdrawal in paragraph 333C (as drafted in June 2023) namely “failing to attend the personal interview” is not purely about non-attendance at a personal interview having been invited: it necessarily and a fortiori applies where the Defendant is unable to send an applicant any interview invitation because they have already disappeared and failed to provide any current contact details in breach of their duty under paragraph 358B to do so. 

He relied on the principles of statutory interpretation and submitted that his interpretation of paragraph 333C accorded with the natural meaning of the words used. In short, he submitted that a failure to attend must encompass a situation in which an applicant had rendered themselves incapable of being invited to attend an interview under paragraph 339N. Any other interpretation would place an unachievable burden on the Defendant, in circumstances where there was a primary duty on an applicant who wished to pursue a claim for asylum to remain in contact and cooperate with the assessment process.

In response to the points relied on by Mr Gajjar based on the wording of the Explanatory Memorandum, Mr Tabori made the following points:

In the alternative, Mr Tabori also relied on s.31(2A) of the Senior Courts Act 1981 which provides as follows:

“(2A) The High Court—”

(a)

must refuse to grant relief on an application for judicial review, and

(b)

may not make an award under subsection (4) on such an application, if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.

(8)

In this section “the conduct complained of”, in relation to an application for judicial review, means the conduct (or alleged conduct) of the defendant that the applicant claims justifies the High Court in granting relief.”

Mr Tabori submitted that in the event of the court concluding that an invitation should have been sent to the Claimant’s last known address at the asylum hotel (from which he had disappeared in July 2022) or that attempts should have been made to contact him in June 2023 on his Albanian mobile phone number before the withdrawal notice was filed, the court should conclude that it is highly likely that the outcome would have been the same as the Claimant has provided no evidence that he wished to pursue his asylum claim or would have provided an alternative address. In those circumstances, the court should withhold relief pursuant to section 31(2A) of the 1981 Act.