[2025] UKUT 00154 (IAC)

The judicial review claim

The Applicant is an Egyptian national. He arrived in the United Kingdom on 16 November 2022 having crossed the English Channel by small boat. On 17 November 2022 he made a claim for asylum. That claim was not, at that time, considered by the Home Secretary. At that time the Home Secretary’s policy provided for the possibility that asylum claims made by migrants who had entered the United Kingdom illegally by small boat crossing, would be declared inadmissible where the conditions set out in section 80B of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) were met. In such cases, the then Home Secretary’s policy was to consider the removal of such persons to the Republic of Rwanda which, at the time, the Government considered to be a “safe third State” for the purposes of the relevant provisions in the 2002 Act (“the Rwanda policy”). The Rwanda policy relied on the powers available to the Home Secretary under Part 4A of the 2002 Act to declare asylum claims inadmissible if certain conditions were met. The overall effect of the Rwanda policy was that any asylum claim made by a person such as the Applicant would not be determined in the United Kingdom but would instead be decided in Rwanda after the person had been removed to Rwanda.

The Applicant was one of a group of migrants to which the Home Secretary wished to apply the Rwanda policy. This group is often referred to as the “MEDP cohort” which is a reference to the Migration and Economic Development Partnership arrangement then in force between the United Kingdom and Rwanda.

Following the general election on 4 July 2024 there was a change of government and a change of government policy. The Rwanda policy was abandoned, and the Safety of Rwanda (Asylum and Immigration) Act 2024 which had sought to entrench a conclusion that Rwanda was, for the purposes of section 80B of the 2002 Act, a “safe third State” was repealed. However, the provisions in the 2002 Act permitting asylum claims to be declared inadmissible remain in force. While the statutory provisions on inadmissibility were a premise for the Rwanda policy they existed (and continue to exist) independent of that policy. On 15 August 2024 the Home Secretary published a new version of her policy on inadmissibility, “Inadmissibility: safe third country cases” (“the Policy”) which anticipates that the power to declare asylum claims inadmissible will continue to be used in appropriate instances.

So far as concerns those in the MEDP cohort (including the Applicant) the position of the Home Secretary on how their asylum claims are to be treated following the abandonment of the Rwanda policy was referred to in an Order of Collins Rice J dated 24 July 2024, made by consent, in R(AMX) v Secretary of State for the Home Department (AC-2024-LON-1355). That litigation concerned a number of those within the MEDP cohort (not including the Applicant) who had contended that the Home Secretary had acted unlawfully by taking too long to decide their asylum claims. It is clear from the recitals to that Order that the Home Secretary’s intention was that the litigants’ asylum claims would not be declared inadmissible but would be decided on their merits, in the United Kingdom. One recital to the Order made clear that the Home Secretary would offer a consent order in the same terms to all those in the MEDP cohort who had claims in either the Administrative Court or this Tribunal. A further recital addressed the position of the whole MEDP cohort, stating

“AND UPON the [Home Secretary] confirming that all of the MEDP cohort will have the merits of their substantive asylum claims determined in the UK.”

Thus, it was clear from the Order that the Home Secretary’s position was that asylum claims such as the one made by the Applicant would not be treated as inadmissible but would be decided on their merits in the United Kingdom.

The Applicant’s challenge in this case was directed to what was said in a letter sent to him dated 22 July 2024 (“the letter”). We have been told that letters in the same terms were sent to others in the MEDP cohort. So far as material, the letter included the following

“We previously issued a “Notice of Intent” letter, informing you that we were considering whether your claim for asylum in the United Kingdom should be declared inadmissible on safe third country grounds.

Having reviewed the circumstances of your case, it has been decided not to pursue inadmissibility action under either paragraph 345A‑D of the Immigration Rules (as in force before 28 June 2022) or sections 80B‑C of the Nationality, Immigration and Asylum Act 2002.

This means that your asylum claim will now be considered substantively in the United Kingdom and the Third Country Unit will no longer be responsible for managing your case. If circumstances change or further information becomes available to us to suggest that inadmissibility action under these or other provisions is in fact appropriate, we will notify you accordingly.

We have arranged an interview for you to tell us about the reasons why you have claimed asylum in the United Kingdom.

Here are the details for your interview …”

[underlining added]

The letter then went on to inform the Applicant that an asylum interview had been arranged for him and would take place on 2 August 2024 in Liverpool. The challenge in this case is directed to the underlined words.

As originally pleaded, the grounds of challenge were as follows. First that the underlined words amounted to a breach of a legitimate expectation raised by the Policy (the version published on 29 April 2024, in force at the time the letter was sent) that the asylum claims of the MEDP cohort would be decided in the United Kingdom and would not be the subject of inadmissibility decisions. As pleaded, this ground relied on the part of the policy under the heading “Removal agreements and timescales”. That part of the Policy first records that an inadmissibility decision may either pre- or post-date an agreement with a safe third State to admit the person concerned. The Policy then makes the point that consideration of an inadmissibility decision must not take too long:

“There are no rigid timescales within which third countries must agree to admit a person before removal. However, the inadmissibility process must not create a lengthy ‘limbo’ position, where a pending decision or delays in removal after a decision mean that a claimant cannot advance their asylum claim either in the UK or in a safe third country. If, taking into account all the circumstances, it is not possible to make an inadmissibility decision or effect removal following an inadmissibility decision within a reasonable period, inadmissibility action must be discontinued, and the person’s claim must be admitted to the asylum process for substantive consideration.

As a general guideline, it is expected that in most cases, a safe third country will agree to admit a person within 6 months of the claim being recorded, enabling removal soon after, subject to concluding legal challenges or other removal barriers.”

In his submissions at the hearing, Mr Buttler KC, leading counsel for the Applicant, refined the way in which the submission relying on the Policy was put (both so far as concerns the claim as originally pleaded, and the claim in its proposed amended form, which we refer to below). Referring to the Policy overall, Mr Buttler submitted that it laid out a staged process through which asylum claims passed such that once a decision had been taken not to treat an asylum claim as inadmissible it was not possible, consistent with the Policy, to reconsider that decision and declare the claim to be inadmissible.

The second ground of challenge in the original grounds of claim was that the underlined words were “irrational, unreasonable and unfair” because: the Applicant had already waited more than 2 years for a decision on his asylum claim; the United Kingdom has no agreement with any third country which might be the premise for an inadmissibility decision; and the underlined words have caused prejudice to the Applicant because he suffers from symptoms of post-traumatic stress disorder which can be triggered by stress.

The relief sought by the original claim comprised (a) a declaration that by “reserving the right to de-admit [the Applicant], and likely others in the MEDP cohort, from the asylum process” (which it was said was the effect of the underlined words), said apparently to be in pursuance of an unpublished policy, was unlawful; (b) a mandatory order “requiring the Respondent forthwith to serve on the Applicant and others in the same situation (likely all others in the MEDP cohort)”, a decision confirming that no such action would be taken in relation to them; and (c) a prohibiting order preventing the Home Secretary from the exercise of her powers under the relevant provisions of the 2002 Act to determine claims to be inadmissible so far as concerned the Applicant and the others in the MEDP cohort.

The Home Secretary filed an Acknowledgment of Service and Summary Grounds of Defence opposing the claim. Permission to apply for judicial review was granted on 2 January 2025.

On 6 February 2025 the Home Secretary granted the Applicant’s claim for asylum. From this time both the claim and the relief sought in these judicial review proceedings became unnecessary so far as concerned the Applicant’s own circumstances.

On 18 February 2025, the Applicant served the Respondent with proposed amended Statement of Facts and Grounds. On 4 March 2025 an application to amend was made seeking permission to amend in the same form. The proposed amended grounds were a wholesale replacement of the original grounds. The gist of the proposed amended grounds was this. (a) Notwithstanding the decision on the merits of the Applicant’s asylum claim, the claim for judicial review was not academic because the underlined words “affect tens of thousands of asylum seekers”. (b) The underlined words were inconsistent with the Policy with the consequence that “the decision” “to leave open the possibility of reinstituting inadmissibility action … [was] therefore unlawful”. (c) The underlined words were inconsistent with a legitimate expectation arising from the recitals to the Order in AMX (referred to above at paragraph 6). (d) Including the underlined words in the letter to the Applicant was unlawful because the Applicant had already waited for 2 years for a decision on his asylum claim; because of his vulnerability to symptoms of post-traumatic stress disorder; and because there is no existing agreement between the United Kingdom and any other country on which the provisions in the 2002 Act could operate. This last ground was materially the same as the second ground in the original claim. The proposed amended claim sought only declaratory relief that the inclusion in the letter of the underlined words was unlawful, and that the underlined words evidenced an unlawful practice or “unpublished” policy. An order “quashing” the underlined words was also sought.

The application to amend was opposed. The Home Secretary’s position, set out in correspondence, was (in very short summary) that (a) the cohort affected was approximately 2,000 asylum claimants, not the “tens of thousands” claims in the proposed amended claim; (b) the claim was academic so far as concerned the Applicant; (c) the Applicant had no standing to bring the claim on behalf of the others in the MEDP cohort; (d) that the underlined words did not contain any such decision as the Applicant contended for; and (e) the Home Secretary’s position so far as concerns the asylum claims made by the MEDP cohort had been set out in the recitals to the Order in AMX (i.e., that their claims for asylum would be determined on the merits, in the United Kingdom).

The application for permission to amend remained pending and was due to be decided by the Tribunal at the hearing.