UK Court of Appeal: asylum applicant must be in the UK to be granted asylum

Tuesday, March 6, 2018

On 6 March 2018, the England and Wales Court of Appeal ruled in case AB, R (On the Application of) v. the Secretary of State of the Home Department, which concerned an asylum applicant who is the leader of a political movement in his country of nationality. His asylum application was refused at first-instance and an appeal lodged before the First-tier Tribunal. In the meantime, the applicant left the UK multiple times in order to engage in political discussions in third countries. When his application for a new certificate to travel was refused, the applicant left the UK without informing the Home Office. Based on the applicant’s absence from the territory at the time the Home Office was reviewing its decision, the Secretary of State informed that it was not in a position to take forward his claim for asylum. The applicant challenged the interpretation of Rule 334 of the Immigration Rules, arguing that the requirement that the applicant “is in the United Kingdom” must be satisfied at the time of lodging the asylum application, not at the time a decision is taken. According to the applicant, deciding otherwise would render the rule inconsistent with the 1951 Refugee Convention and with EU law.

Firstly, the Court of Appeal relied upon the House of Lords decision in R (European Roma Rights) v Prague Immigration Officer to affirm that the 1951 Refugee Convention is directed towards those who are within the receiving state and that it does not impose an obligation on contract states to afford entry to persons claiming refugee status. Thus, it concludes nothing in the 1951 Refugee Convention requires a contracting state to grant asylum to someone who at the time of the decision is not within its territory. The Court of Appeal reaches the same conclusion with regard to the Qualification Directive, Procedures Directive and the Dublin II Regulation. It follows, therefore, that the UK Immigration Rules make it a necessary condition of being granted asylum that the applicant is in the UK at the time when the decision on the application is taken.

Secondly, the Court of Appeal rejected the applicant’s argument that the Secretary of State had failed to exercise her discretion as she had the option to act outside the Immigration Rules. The Court found that there was no evidence that the applicant or his solicitors had made any request for his application for asylum to be considered outside the Immigration Rules. As the Court of Appeal ruled in R (Behary and Ullah) v. the Secretary of State of the Home Department, there is no obligation on the Home Office to consider whether to act outside the Immigration Rules in the absence of an express request to do so, or where there is a lack of striking facts which would make irrational not to act outside the Immigration Rules in a particular case.


This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.



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