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

Both parties’ Counsel referred me to the Defendant’s Guidance ‘Withdrawing asylum claims’ (v 7) (published 5 May 2023) which was in force at the time of the 21 June 2023 decision. For ease of reference, I will set out here the key parts of that Guidance, as relied on by the parties in their submissions.

In the introduction section of the Guidance there is a statement of the policy intention behind the withdrawal provisions which stated:

“Policy intention behind treating claims as withdrawn

The underlying policy objective in treating an asylum claim as withdrawn is to:

• maintain the integrity of the asylum process by focusing efforts on those claimants whose behaviour demonstrates they are serious about pursuing their asylum claim

• treat claims as withdrawn where the claimant shows no real interest in pursuing their claim by failing to comply with the process, failing to provide up to date contact details, absconding or leaving the UK without permission before a decision

• demonstrate a commitment to ensuring genuine refugees are given the protection they need quickly, whilst robustly pursuing removal action against those who make asylum claims and subsequently abscond”

The Guidance refers to the relevant legislation including paragraphs 333C and 358B of the Immigration Rules which I have set out above. The Guidance covers both explicit withdrawals (when the claimant has notified the Home Office that they no longer wish to pursue their asylum claim) and implicit withdrawals. There is an introductory section on implicit withdrawals and then the guidance follows a chronological order through the usual stages of an asylum procedure, addressing the possible withdrawal scenarios at each stage.

“Implicit withdrawals

An asylum claim may be treated as implicitly withdrawn under paragraph 333C of the Immigration Rules if the claimant:

• fails to complete an asylum questionnaire when requested to do so

• fails to attend a reporting event or an asylum interview and is unable to demonstrate within a reasonable time that failure to do so was due to circumstances beyond their control

• leaves the UK without prior permission before a decision is made

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.

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.

Claims that can be treated as withdrawn should not normally be refused on noncompliance grounds under paragraph 339M (which will generate a right of appeal). Any decision to refuse a claim on non-compliance grounds which could and should have been treated as withdrawn must be agreed by a senior manager (SEO or above).”

Notification of Implicit Withdrawals

Where the asylum claim is withdrawn for any of the reasons below, a letter (either the 3725 or the Withdrawal Notification Letter) must be sent to the claimant and their immigration advisor (if applicable) confirming their asylum claim is withdrawn. If the whereabouts of the claimant is not known, for example they are an absconder or they have left the UK and have not provided their current postal or email address, then the letter must be served to file only and uploaded to Home Office systems. The claimant must be notified that their asylum claim has been withdrawn should they contact the Home Office again”

In this case, the Claimant had completed his initial asylum questionnaire, so the next stage in the usual procedure was an asylum interview. The relevant section in the Guidance on implicit withdrawal at this stage is under the heading: “Absconds before substantive interview” which I will set out in full. It was agreed by both Counsel that the term ‘abscond’ was used here in a broad or general sense and was not restricted to the narrower meaning used in other Home Office guidance:

“Absconds before substantive interview

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. This warning is provided in the following documents issued to the claimant as part of the screening or routing process:

• the Screening Interview Form”

• routing letters (ICD 3070 (RT1), ICD 3072 (RT2), ICD 3391), and 

 • the 'Point of Claim' leaflet issued to all asylum claimants.

Decision makers must confirm that there is evidence on the Home Office casework systems and / or file that the warning has been recorded as having been issued before treating the claim as implicitly withdrawn. If there is no evidence of notification, the implicit withdrawal procedure cannot be applied until they are notified. In these circumstances an invite to a reporting event or asylum interview should normally be issued and if they fail to attend that reporting event or asylum interview the claim should normally be treated as implicitly withdrawn in-line with part 11 of the Immigration rules failure to attend a reporting event or failure to attend the substantive asylum interview sections below.

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. All contact with the claimant must be recorded on Home Office systems with the details of the communication. If a claimant provides any updates or changes to their contact details such as postal address, phone numbers or email address, Home Office systems must be updated accordingly. If there are any issues or errors with the data recorded on Home Office systems, please see the section on ‘Cancelling Withdrawals.’

When you action the withdrawal, you must also serve the Withdrawal Notification Letter to file (and their immigration advisor if applicable) informing them that their claim has been withdrawn. This letter must be served to the claimant if later encountered. Please see the section on Notification of Implicit Withdrawals for further information.”

The Guidance then has sections on ‘Failure to attend a reporting event’ and ‘Failure to attend the substantive asylum interview’. Mr Gajjar sought to rely on the latter section which provided as follows:

“Failure to attend the substantive asylum interview

An asylum claim should normally be treated as implicitly withdrawn under paragraph 333C if the claimant fails to attend their substantive asylum interview without providing evidence that their absence was due to circumstances beyond their control (this may include, but is not limited to an unavoidable medical or maternity appointment that could not be rearranged, ill-health or severe travel disruption). The invitation to interview letter states that they will be required to attend a substantive interview as part of the asylum process and that failure to do so may result in their claim being treated as withdrawn.”

Failure to report to substantive interview letter

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.

Where no explanation is received by the deadline, the asylum claim may be treated as implicitly withdrawn. If an explanation is received within the deadline, you must consider whether there is sufficient evidence to show that failure to attend was due to circumstances beyond the claimant’s control and decide whether to rebook the interview or treat the claim as implicitly withdrawn. The onus is on the claimant to provide an acceptable explanation for non-attendance, for example, reliable evidence of confirmation of their current address to explain why they did not receive the letter, illness or travel disruption.

If the claimant is not represented and no valid address has been provided, the ASL.3724 letter must be served to file and handed to the claimant when they are next encountered – see drafting, implementing and serving asylum decisions. The withdrawal should not be actioned until the 3724 is served and the relevant time period elapsed, either to the claimant, their immigration advisor or to file if no other contact details held. When you action the withdrawal, you must also send either the 3725 or the Withdrawal Notification Letter to the claimant (and their immigration advisor if applicable) informing them that their claim has been withdrawn. If their contact details are not known, then you must serve the letter to file. Please see the section on Notification of Implicit Withdrawals for further information.”