24 Oct 2016, 31 mins ago

Earlier this week the Home Office released new guidance on withdrawing asylum claims (“Asylum Policy Instructions – Withdrawing Asylum Claims” version 5.0, 21 June 2016).

Withdrawal of asylum claims is provided for in paragraph 333C of the Immigration Rules, which states that, an asylum application can be explicitly withdrawn (by the applicant signing and submitting the relevant withdrawal form) or implicitly withdrawn (see further below). Withdrawal is aimed at those applicants who do not comply with the process, abscond or leave the UK without permission before a decision.

Importantly, the “withdrawal” of an asylum claim is not equivalent to the “revocation” of refugee status, which is where a person wishes to renounce their refugee status, no longer qualifies for such status or where the Secretary of State is considering revoking refugee status.

An asylum claim will be treated as implicitly withdrawn where the applicant:

  • leaves the UK without prior authorisation from the Home Office before the conclusion of their claim;
  • fails to complete an asylum questionnaire when requested by the Secretary of State (for example a Statement of Evidence form); or
  • fails to attend an asylum interviewunless they can demonstrate this was due to circumstances beyond their control.

The first two circumstances noted above, apply to asylum claims lodged on or after 26 February 2015.

The Guidance makes it plain that it is incumbent on caseworkers to give consideration to the safety and welfare of children under section 55 of the Borders, Citizenship and Immigration Act 2009 where withdrawal considerations are at play. For dependent children asylum seekers, where the parent(s) seek to withdraw their claim, considerations should be given to whether the child may have a claim in their own right. For unaccompanied children asylum seekers, if they abscond or fail to comply with the process, caseworkers must liaise with their legal representative and Social Services before deciding whether to treat their application as implicitly withdrawn.

Withdrawal of asylum applications can only apply before a decision is made on a claim. Once an asylum claim is withdrawn, the applicant becomes liable to removal unless they have other valid leave in the UK or a pending application for leave.

Before the HO can treat an asylum claim as implicitly withdrawn where the applicant fails to attend a required interview or the applicants whereabouts are unknown, the Home Office is required to warn the applicant in writing, providing them with an opportunity to explain why they did not attend. This is in the form of a ‘failure to report to substantive interview letter’ providing the claimant 5 working days to explain their non-attendance (in non-detained cases). It is then up to the claimant to provide an acceptable explanation with reliable evidence (e.g. illness/travel disruption). In situations where a child asylum seeker does not attend their interview, the Guidance states that “greater sensitivity must be used…and the decision-maker must take steps to establish all relevant facts” before treating the claim as implicitly withdrawn. A new interview should be arranged if the Home Office accepts the applicant’s explanation, otherwise if no explanation is received or it is considered not acceptable, the asylum claim will be treated as withdrawn. Once an asylum claim is treated as withdrawn, an applicant will have no rights of appeal.

Whilst the Home Office is considering an asylum claim, applicants are generally not permitted to leave the UK. The Home Office will only entertain requests to leave the UK “in the most exceptional circumstances”. The only example of exceptional circumstances provided in the Home Office guidance is for visits to a seriously ill close relative. In most other circumstances, requesting passports back from the Home Office and travelling abroad without permission whilst an outstanding claim is being considered will result in the claim being automatically withdrawn.

In view of the above, it is imperative that asylum applicant’s comply with the Home Office procedures and remain in the UK whilst their claim is being assessed in order to ensure their claim is not prematurely withdrawn.