Elvis Zoto, R (on the application of) v Secretary of State for the Home Department [2025] EWHC 2148 (Admin)

[2025] EWHC 2148 (Admin)Case No AC-2024-LON-003989
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13 August 2025
Before
CLARE PADLEY(SITTING AS A DEPUTY HIGH COURT JUDGE)
Between
THE KINGClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Jay Gajjar and Muhammad Zahab Jamali (instructed by S.A.J Legal) for ClaimantTom Tabori (instructed by Government Legal Department) for DefendantHearing Hearing dates: 15 July 2025
Approved JudgmentThis judgment was handed down remotely at 2pm on Wednesday 13 th August by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Clare Padley (sitting as a Deputy High Court Judge):

[1]In this case the Claimant seeks to challenge the Defendant’s decision dated 14 November 2024 to serve the Claimant with a deportation order and the consequent decisions to detain the Claimant from 7 December 2024 and to issue Removal Directions on 28 November 2024.[2]The Claimant is represented by Mr Gajjar and Mr Jamali of counsel and the Defendant is represented by Mr Tabori of counsel and I am grateful to them all for their helpful written and oral submissions. Factual Background[3]The Claimant is an Albanian national who was born in August 2003. On 27 June 2022 he left Albania and flew to Belgium. From there he travelled to France by train and then used an agent to travel by boat to the United Kingdom. On 29 June 2022 the Claimant entered the United Kingdom without leave to enter and was detained upon entry. He claimed asylum and underwent a screening interview on the same day. He claimed during his interview that he had left Albania because he was forced to commit crime, namely drug dealing.[4]A full copy of his initial screening questionnaire is in the hearing bundle, and I note that the Claimant had an Albanian interpreter. He was asked for his contact number and email address, and the interview record contains a phone number comprising 10 digits with the words “An Albanian mobile phone”. The Defendant relies on the words at the end of the screening questionnaire which were read to the Claimant:
“If appropriate, at a later date you will be sent a letter inviting you to attend an asylum interview at which you be able to give full details of your experiences and fears. Your asylum interview will be recorded and we may conduct your interview by video conferencing unless you have a reason why the interview should not be recorded or conducted by video conferencing. If so, you will need to provide evidence to your casework team. The letter inviting you to interview will provide details about how you can contact the casework team. If you do not attend your asylum interview without providing a valid reason, your claim for asylum may be withdrawn and steps made to remove you from the UK.”
[5]Following his screening interview, the Claimant was provided with interim asylum accommodation at the Crown Plaza Hotel in Basingstoke.[6]On 30 June 2022 the Secretary of State referred the Claimant’s claim to the National Referral Mechanism (NRM) as a potential victim of human trafficking.[7]It is accepted by the Claimant that on 2 July 2022 he left the Crown Plaza Hotel in which he had been accommodated and did not leave a forwarding address or make any further contact with the Defendant in relation to his asylum application. The Claimant’s departure from the hotel on that date is recorded in the Defendant’s records.[8]On 3 July 2022 the Defendant recorded the Claimant’s asylum claim as having been withdrawn, but no withdrawal decision was issued to his file at that time. It is appropriate to record at this point, as was noted by Upper Tribunal Judge Ockelton in granting permission, that it is a necessary requirement under the Immigration Rules that a withdrawal decision must be issued to file if the whereabouts of an applicant are unknown and that the filing date constitutes the decision date. The Claimant initially sought to challenge any reliance by the Defendant on this earlier July 2022 withdrawal date, but the Defendant has confirmed that it is not relying on this date and permission was given on that basis.[9]On 5 July 2022, a positive reasonable grounds decision was made in relation to the Claimant’s claim to be a victim of trafficking/modern slavery.[10]On 21 June 2023, almost a year after his disappearance, the Defendant then issued to file a formal withdrawal letter notifying the Claimant that consideration of his application had been discontinued on the grounds that his asylum claim had been treated as implicitly withdrawn The letter was not sent to the Claimant as the Defendant had no forwarding address for the Claimant to which the letter could be sent. The letter stated:
“You were advised in your screening interview on the 29/06/2022 that you may be required to attend an asylum interview at a later date. You were warned that failure to attend this interview may result in your claim for asylum being withdrawn. It is a requirement of 358B of Immigration Rules to notify the Secretary of State of your current address or any change of address. It is now 21/06/2023 and you have failed to provide a valid address. It has therefore not been possible to progress your claim by inviting you to an asylum interview. As a result, a decision has been made to treat your claim for asylum as withdrawn under paragraph 333C of the Immigration Rules on 21/06/2023 and consideration of it has been discontinued.”
[11]The letter also stated that the Claimant would have to make further submissions should he wish to pursue a protection or human rights claim.[12]The Defendant accepts that no invitation for an interview was ever sent to the Claimant at his previous asylum accommodation address and the Defendant has not provided any evidence that any other attempt was made to contact him by any other means including by trying to call his Albanian mobile phone number.[13]For completeness, the Defendant also accepts that an absconder notification form was also erroneously issued to file on 21 June 2023, although the Defendant’s absconder policy did not apply, as the Claimant had not left Port or Border Force accommodation. In fact, the correct information was recorded on the form, so it is agreed by the parties that nothing turns on that error.[14]On 1 November 2023 the Claimant was encountered during a street stop and search by Essex Police and subsequently arrested.[15]On 19 April 2024, at Chelmsford Crown Court, the Claimant was convicted of an offence of Possession with intent to supply a controlled drug of Class A - Crack Cocaine. He was sentenced to 2 years and 9 months’ imprisonment. His conditional release date was 7 December 2024.[16]On 9 May 2024, the Claimant (having initially denied receiving any such notice in his claim form) now accepts that he signed to confirm receipt of a stage 1 deportation notice letter dated 8 May 2024.[17]On 16 October 2024 a negative conclusive grounds decision was issued. On 16 November 2024 a deportation decision dated 14 November 2024 was served on the Claimant in prison. A copy of the form is in the bundle, which records that the Claimant had refused to sign for it.[18]On 27 November 2024 the Defendant served on the Claimant a notice of intent to remove, and his removal was initially scheduled for 5 December 2024. The letter stated:
“We wrote to you on 08 May 2024 and notified you that because of your criminal convictions in the UK the Secretary of State had decided to make a Deportation Order against you under section 32(5) of the UK Borders Act 2007, subject to consideration of section 33 of the same Act. This is because you are a foreign criminal who has been sentenced to a period of imprisonment of at least 12 months and as such your deportation is conducive to the public good.”
[19]On 3 December 2024, the Claimant then issued his claim for judicial review which was served on the Defendant on 9 December 2024. The Claimant made an application for interim relief seeking a stay of his removal which by then had been re-scheduled on 2 December 2024 for 12 December 2024.[20]Mrs Justice Lang refused the application for interim relief on 11 December 2024. Later that evening, the Claimant sought permission to appeal that order from the Court of Appeal. In the meantime, the Defendant had decided to defer the removal directions and a notice cancelling removal directions was served on the Claimant on 11 December 2024 by email at 21.14. The appeal to the Court of Appeal was then withdrawn by consent and the matter then proceeded to the permission stage.[21]On 2 January 2025 the Defendant filed her Acknowledgment of Service and summary grounds of defence. On 13 February 2025 permission was granted on the papers by Upper Tribunal Judge Ockelton sitting as a judge of the High Court, whose decision included the following observations:
“Everything depends on whether the claimant had an outstanding asylum application at the date of the decisions to detain and remove him, and, because there is no doubt that the claimant did make an asylum claim, that in turn depends on whether the defendant’s decision to treat the asylum claim as implicitly withdrawn was lawful…. One cannot have any sympathy at all for the claimant, who entered the United Kingdom unlawfully, unlawfully left the accommodation provided for him at public expense, made an asylum claim that he did not pursue, and then used his time in the United Kingdom to commit serious criminal offences; but he is entitled to due process. It is arguable that the reason given in the notice of decision is not one of those leading to treating the claim as withdrawn as permitted by paragraph 333C. If an interview had been scheduled and an invitation had been sent to his last known and only lawful address, things would be different, but it wasn’t. In these circumstances it is not easy to see how the claimant can be said to have ‘failed to attend the [sic] interview’.”

Central issue to be determined

[22]The Claimant now challenges the deportation decision and his subsequent detention on the single ground that, as at the date of the Defendant’s decision in November 2024, he had a pending asylum claim and so he could not be deported, by virtue of s 77 Nationality and Immigration and Asylum Act 2002.[23]The Defendant resists the claim on the grounds that Claimant did not have a pending asylum claim at the date of the November 2024 decision because his asylum claim had been lawfully treated by the Defendant as implicitly withdrawn due to the Claimant leaving his interim asylum accommodation with no forwarding address on 2 July 2022 and a withdrawal decision being filed by the Defendant on 21 June 2023.[24]The Claimant accepts that as a foreign criminal who had been sentenced to more than 12 months imprisonment, he was liable to be detained and deported under s.32(5) UK Borders Act 2007. His claim to unlawful detention therefore depends solely on whether he still had a pending asylum claim in November 2024.[25]Both parties agreed that the central issue in the case is the true construction of paragraph 333C of the Immigration Rules in place at the time of the Defendant’s implicit withdrawal decision on 21 June 2023.[26]Both parties also agreed that in the event that the Claimant’s judicial review application was successful, then the Claimant’s claim for damages for unlawful detention/false imprisonment and under the Human Rights Act 1998 could be properly transferred to the County Court at Central London to proceed under CPR Part 7.[27]I note that the Defendant continued to disclose documents relating to the Claimant’s detention and NRM procedure very late in this case, including after the bundle had been filed. Although Counsel agreed that the late disclosure did not affect the presentation of their cases at the hearing, I would like to take this opportunity to reiterate the importance of prompt disclosure of relevant documents. Ongoing compliance with the duty of candour is not an excuse for late disclosure of relevant documents which pre-date the detailed grounds of defence. Legal framework[28]Section 77 of the Nationality and Immigration and Asylum Act 2002 as amended by the Nationality and Borders Act 2022 provides:
“77 No removal while claim for asylum pending (1) While a person's claim for asylum is pending he may not be— (a) removed from the United Kingdom in accordance with a provision of the Immigration Acts, or (b) required to leave the United Kingdom in accordance with a provision of the Immigration Acts. (2) In this section— (a) “claim for asylum” means a claim by a person that it would be contrary to the United Kingdom's obligations under theRefugee Convention to remove him from or require him to leave the United Kingdom, and (b) a person's claim is pending until he is given notice of the Secretary of State's decision on it. ….”
[29]Section 3(2) of the Immigration Act 1971 requires any Immigration Rules made by the Defendant under that Act, and any changes to such rules, to be laid before Parliament under the negative resolution procedure. The scope of that provision was considered by the Supreme Court in R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33.[30]Part 11 of the Immigration Rules deals with procedure for Asylum claims. The relevant sections of the Immigration Rules in force at the time of the Defendant’s withdrawal decision on 21 June 2023 are set out below:
“Withdrawal of applications 333C. If an application for asylum is withdrawn either explicitly or implicitly, consideration of it may be discontinued. An application will be treated as explicitly withdrawn if the applicant signs the relevant form provided by the Secretary of State. An application may be treated as impliedly withdrawn if an applicant leaves the United Kingdom without authorisation at any time prior to the conclusion of their asylum claim, or fails to complete an asylum questionnaire as requested by the Secretary of State, 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 Secretary of State will indicate on the applicant's asylum file that the application for asylum has been withdrawn and consideration of it has been discontinued. Personal interview 339NA Before a decision is taken on the application for asylum, the applicant shall be given the opportunity of a personal interview on their application for asylum with a representative of the Secretary of State who is legally competent to conduct such an interview. …….. Information to be provided by asylum applicants 358B An asylum applicant must notify the Secretary of State of his current address and of any change to his address or residential status. If not notified beforehand, any change must be notified to the Secretary of State without delay after it occurs.”
Personal interview

Information to be provided by asylum applicants

[31]The status of the Immigration Rules has been addressed in a number of authorities. In the case of Alvi at [9] and the case of R (AB) v SSHD [2016] EWHC 2751 (Admin) at [65] reference is made to the case of MO (Nigeria) v Secretary of State for the Home Department[2009] UKHL 25 in which the House of Lords summarised the legal status of the Immigration Rules at [6]:
“The status of the immigration rules is rather unusual. They are not subordinate legislation but detailed statements by a minister of the crown as how the Crown proposes to exercise its executive power to control immigration. But they create legal rights: under section 84(1) of the Nationality, Immigration and Asylum act 2002, one may appeal against an immigration decision on the ground that it is not in accordance with the immigration rules.”
Lord Hoffmann continued at [7]:
“They are, as I have said, a statement by the Secretary of State as to how she will exercise powers of control over immigration. So the most natural reading is that (in the absence of any statement to the contrary) they will apply to decisions that she makes until such time as she promulgates different rules, after which she will decide according to the new rules.” “They are, as I have said, a statement by the Secretary of State as to how she will exercise powers of control over immigration. So the most natural reading is that (in the absence of any statement to the contrary) they will apply to decisions that she makes until such time as she promulgates different rules, after which she will decide according to the new rules.”
[32]The Claimant places a significant degree of reliance in this case on the fact that paragraph 333C of the Immigration Rules was amended a short time after the Defendant’s decision on 21 June 2023. The amended version of paragraph 333C came into effect on 7 August 2023 and was in the following terms:
“333C. If an application for asylum is withdrawn either explicitly or implicitly, it will not be considered. (a) An application will be treated as explicitly withdrawn if the applicant signs the relevant form provided by or on behalf of the Secretary of State, or otherwise explicitly declares a desire to withdraw their asylum claim. (b) An application may be treated as implicitly withdrawn if the applicant: (i) fails to maintain contact with the Home Office or provide up to date contact details as required by paragraph 358B of these Rules; or (ii) leaves the United Kingdom (without authorisation) at any time before the conclusion of their application for asylum; or (iii) fails to complete an asylum questionnaire as requested by or on behalf of the Secretary of State; or (iv) fails to attend any reporting events, unless the applicant demonstrates within a reasonable time that the failure was due to circumstances beyond their control; or (v) fails to attend a personal interview required under paragraph 339NA, unless the applicant demonstrates within a reasonable time that that failure was due to circumstances beyond their control. (c) The applicant’s asylum record will be updated to reflect that the application for asylum has been withdrawn.”
[33]It is common ground that the Claimant’s conduct in this case would fall within the scope of the new sub-paragraph 333C(b)(i) in addition to sub-paragraph b(v). However, the parties disagree as to whether the circumstances in this case were already implicit in the language of the previous paragraph 333C or whether the circumstances covered by the additional sub-paragraphs in the amended paragraph 333C were not available to the Defendant in June 2023 as grounds for reaching a conclusion of implicit withdrawal. The Claimant’s case is that the circumstances were not covered in the earlier version of paragraph 333C, so Claimant could not lawfully be treated as having withdrawn his claim under paragraph 333C on 21 June 2023.[34]The single judge considered that it was arguable that the previous wording of paragraph 333C may not include the circumstances set out in the amended paragraph 333C(b)(i) and gave permission on that basis. The parties’ evidence[35]There was no witness evidence from the Claimant and he did not seek to challenge the Defendant’s evidence that he had made a decision in July 2022 to leave his interim asylum accommodation and disappear within the United Kingdom. He has not adduced any evidence to suggest that he left any forwarding address or provided any new contact details to the Defendant or taken any steps to pursue his asylum claim after that time. He has also not provided any witness evidence about the status of his Albanian mobile phone number since June 2022.[36]The Defendant’s evidence comprised witness statements from Ashleigh Bloomfield, Deputy Chief Caseworker, dated 3 April 2025, and James Tonks, of the Operational Support and Certification Unit, dated 2 January 2025, and the documentary records exhibited to their statements.

Withdrawal guidance

[37]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.[38]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 underlying policy objective in treating an asylum claim as withdrawn is to:

[39]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” Notification of Implicit Withdrawals[40]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

[41]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.” Failure to report to substantive interview letter Explanatory Memorandum to amended Immigratio

Explanatory Memorandum to amended Immigration Rules

[42]Both parties’ Counsel also referred me to the Explanatory Memorandum for amended Immigration Rules which came into force in August 2023, so again, I will set out here the relevant parts of that Guidance relied on by the parties in their submissions: “Improving clarity regarding withdrawing asylum claims 7.18 Changes are being made to Part 11 of the Immigration Rules to improve clarity regarding the withdrawal of asylum applications whilst strengthening our ability to promptly treat as withdrawn asylum applications from individuals who do not comply with processes. 7.19 The amendments to paragraph 333C clarify that consideration of all withdrawn asylum claims will be discontinued. 7.20 Paragraph 333C(a) provides greater flexibility to accept explicit withdrawals where a claimant requests a withdrawal of their claim in writing but fails to do so on a specified form, preventing duplicative correspondence with the claimant. 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. 7.22 The inclusion of 333C(b)(iv) details the requirement to attend any reporting events and where there is a failure to do so, the result may be the application being treated as implicitly withdrawn. This will also ensure efficiency with application progression through preventing potential absconder scenarios. 7.23 These changes will extend the circumstances in which an asylum claim may be withdrawn. By providing more clarity, it will enable decision-making resources to be concentrated on those who genuinely wish to continue with their asylum claims in the United Kingdom

Parties’ submissions

[43]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:(1) That it was plain from the amendments in August 2023 that the wording of paragraph 333C at the time of the 21 June 2023 decision did not apply to the Claimant, as he had not been invited to attend an interview so the Defendant’s decision to treat the asylum claim as implicitly withdrawn on the basis that he had failed to attend an interview was unlawful.(2) That in any event the Defendant failed to follow her own Withdrawal Guidance, by not using every other available means to try and contact the Claimant after his disappearance from the asylum accommodation before reaching a withdrawal decision (including his Albanian mobile number), thereby rendering her withdrawal decision unlawful.[44]In summary, in support of his first main submission, Mr Gajjar relied on the following points:(1) That the version of paragraph 333C in June 2023 contained a permissive power in relation to implicit withdrawals which only applied in three specified circumstances (including a failure to attend a personal interview) which amounted to an ‘exhaustive’ list.(2) That the amended paragraph 333C in August 2023 included two new sub-paragraphs (b)(i) and b(iv) which did not appear in the earlier version and that such legislative changes would only have been made if these powers did not exist previously.(3) That the wording of the new sub-paragraph b(i)‘fails to maintain contact with the Home Office or provide up to date contact details as required by paragraph 358B of these Rules;’ applied to the Claimant’s circumstances.(4) That section 7.18 of the Explanatory Memorandum referred to the changes being made to paragraph 333C as “strengthening our ability to promptly treat as withdrawn asylum applications from individuals who do not comply with processes” and section 7.23 stated “These changes will extend the circumstances in which an asylum claim may be withdrawn.”(5) That a guidance note published by the Defendant on gov.uk for IAA advisors on explicit and deemed withdrawal which explained the 7 August 2023 amendments to paragraph 333C stated:
“The circumstances in which an asylum claim is treated as withdrawn have been broadened by the addition of two new grounds to paragraph 333C of the Immigration Rules, (i) and (iv), to existing grounds….”
[45]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.[46]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.”

and

[47]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’.[48]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.[49]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.[50]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.[51]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.[52]In response to the points relied on by Mr Gajjar based on the wording of the Explanatory Memorandum, Mr Tabori made the following points:(1) That whilst paragraph 333C in June 2023 did only reference three specified circumstances for ‘implicit withdrawal’ the language used was wide enough to include the broader meaning of ‘failure to attend an interview’ for which he contended when read alongside the positive duty on applicants in paragraph 358B.(2) That whilst the amended paragraph 333C in August 2023 did include two new sub-paragraphs (b)(i) and b(iv) which did not appear as separate criteria in the earlier version, it was plain from the wording and the supporting explanatory material, that the amendments were intended to clarify the existing powers by re-drafting the section, which had by then become a very long single paragraph.(3) That some words highlighted by Mr Gajjar in sections 7.18 and 7.23 of the Explanatory Memorandum were taken out of context and that when the entire section was read it clearly referred to the changes being made to paragraph 333C as “Improving clarity in withdrawal claims” and that section 7.21, which specifically referenced sub-paragraph 333C(b)(i), supported his interpretation.(4) That the wording of Version 7.0 of the Guidance also supported the Defendant’s construction of paragraph 333C.(5) That the guidance note published by the Defendant on gov.uk for IAA advisors could not affect the proper construction of the provision and should be regarded with caution.[53]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.”
[54]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.

Discussion

[55]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.[56]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”.[57]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.[58]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.”
[59]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.[60]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.[61]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.[62]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.[63]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.[64]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:(1) When an invitation to an attend a personal interview had been sent to an applicant at a correspondence address notified to the Defendant under paragraph 358B and they had received the invitation but then failed to attend an interview;(2) When an invitation to an attend a personal interview had been sent to an applicant at a correspondence address notified to the Defendant under paragraph 358B but they had not received the invitation and as a result they had failed to attend an interview;(3) When it had not been possible to send any invitation to a personal interview because the applicant’s whereabouts were unknown and they had failed to notify the Defendant of a new correspondence address under paragraph 358B.[65]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”.[66]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.[67]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.[68]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.”
[69]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.[70]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.”
[71]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.[72]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.[73]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.[74]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.[75]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.[76]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.[77]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.[78]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.[79]The overall heading of the relevant section of the Explanatory Memorandum is “Improving clarity regarding withdrawing asylum claims”.

(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.”
[80]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”.[81]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.[82]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.[83]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.[84]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.

Breach of guidance and procedural unfairness

[85]On the Claimant’s pleaded case, that would be the end of the matter. However, during submissions, as I have already noted, Mr Gajjar also sought to raise arguments in relation to the Defendant’s compliance with her stated policy guidance. As these points were dealt with in the Claimant’s skeleton argument and responded to by Mr Tabori, I will deal with them briefly for completeness.[86]In Mandalia, the court determined that where, in lawful exercise of a discretion conferred by statute, a public authority had published a policy setting out how it would act in a given area, the authority had to follow that policy unless there were good reason for not doing so; and that the proper interpretation of the process instruction, which represented the policy of the UK Border Agency, was a matter of law for the court.[87]In this case, I accept that the starting point is that the Defendant is bound to follow her own guidance unless there is a good reason for not doing so, but I am not satisfied that the Guidance required the Defendant to take the further steps in this case suggested by Mr Gajjar.[88]When asked by the court what steps should have been taken by the Defendant, Mr Gajjar declined to positively assert that the Defendant was required to send an invitation letter to an address at which the Claimant was known to have left, although this had been the basis of his written submission on the construction of paragraph 333C. Instead, as I have noted, he suggested during the hearing that the Defendant should have taken steps to try and contact the Claimant, by using an Albanian mobile phone number recorded on his screening interview form a year earlier in order to ascertain an address to which an invitation could then be sent.[89]In my view, this submission is not well-founded. By the time that the formal withdrawal decision relied on by the Defendant was served to the Claimant’s file in June 2023, the Defendant had waited almost a year after the Claimant had chosen to abscond from his asylum accommodation and disappeared in July 2022 and there is no evidence from the Claimant that he had made any attempt to contact the Defendant to pursue his asylum claim or to provide any up to date correspondence address as required by paragraph 358B during that time. In fact, the only evidence about his whereabouts after June 2022 until his arrest in November 2023, as recorded in his immigration case summary, is a link to a newspaper article in which the Claimant was reported as boasting online about how easy it was to disappear having claimed asylum. The Defendant did not seek to place any reliance on this media coverage, as it is not apparent when it came to the attention of the Defendant, but it reinforces the context in which the Defendant’s guidance must be interpreted and applied.[90]In the Mandalia case, the process guidance was accepted by the Defendant as applying to the process in question and was found by the Supreme Court not to have been properly followed to the detriment of the claimant in that case. By contrast, in this case, I am not persuaded that the Withdrawal Guidance required the Defendant to use every possible avenue to try and track down an asylum applicant like the Claimant who accepts that he had actively chosen to leave his asylum accommodation and disappear within the UK and had failed to provide any new contact address to the Defendant after a year.[91]In my view, this situation is quite different from the situations giving rise to the requirements to attempt to contact an applicant set down in the Guidance which are relied on by the Claimant. It is plain from the express language used in the Guidance that the primary purpose of the directions to utilise all available contact methods to communicate with asylum applicants is to ascertain any reasons for non-compliance which might bring them within the ‘circumstances beyond their control’ exception in paragraph 333C before implicitly withdrawing their asylum claim. For example, the Guidance does require alternative efforts to be made by the Defendant to contact an asylum claimant who has not previously provided a contact address at all or has failed to attend an interview having been sent an invitation to an address previously notified. In such circumstances there may be an explanation for their failure to provide any contact address or their non-attendance at an interview which would mean that a decision of implicit withdrawal would not be appropriate. There may also be unusual situations where an applicant who has disappeared from asylum accommodation and has not been sent an invitation to a personal interview, can establish that their failure to notify the Defendant of a new correspondence address within a reasonable time was because of circumstances beyond their control, such as a medical emergency. However, I do not consider that any part of the Defendant’s guidance can be read as imposing a duty on the Defendant to track down an applicant in the position of the Claimant in this case who has chosen to leave his previous contact address and has not been in contact with the Defendant for almost a year, or that a failure to do so would render an implicit withdrawal decision unlawful.[92]For all these reasons, I have reached the conclusion that there has been no procedural unfairness in this case in terms of any breach of the Defendant’s guidance, such as to affect the lawfulness of the Defendant’s decision in June 2023.

Section 31(2A) of the Senior Courts Act 1981

[93]In light of my conclusions above, it is not necessary for me to consider the alternative submission made by the Defendant based upon s. 31(2A) of the Senior Courts Act 1981. Unlawfulness of decision to detain[94]As I have concluded that the Defendant’s implicit withdrawal decision in June 2023 was lawful, then it follows that the claimant did not have an ongoing asylum claim at the time of his detention, so the Claimant’s detention was lawful and justified.[95]For these reasons, the challenge in relation to unlawful detention also fails. Conclusion[96]For all the reasons set out above, this claim for judicial review is dismissed.

Costs

[97]Following receipt of the draft judgment, both parties made written submissions in relation to costs. In reaching an appropriate decision I have had regard to CPR 44.2 and the relevant general principles to be taken into account. The Defendant has been successful in defending this case and costs would ordinarily follow the event. The Claimant has not sought to persuade the court to make any other order for costs, and I do not consider there are any reasons why the usual order is not appropriate in this case.[98]The Claimant has invited the Court to summarily assess the Defendant’s costs. The Claimant has also provided written submissions which challenge many parts of the Defendant’s schedule of costs, and seeks very significant reductions, totalling around 60%, in the overall sum to be awarded. The Defendant submits no percentage deductions are appropriate and that a detailed assessment should be ordered if the parties cannot agree the costs.[99]Having considered the parties’ submissions, I do not consider there are any proper grounds for any percentage discounts. and I consider that the other substantive points raised by the Claimant are best determined by a detailed assessment.[100]In these circumstances, I consider that the most appropriate order in this case is for the Claimant to pay the Defendant’s costs, which are to be subject to detailed assessment on the standard basis if not agreed.[101]A final order reflecting this judgment and the above orders in relation to costs has been approved.