AB, R (On the Application Of) v The Secretary of State for the Home Department, Court of Appeal - Civil Division, March 06, 2018, [2018] EWCA Civ 383

Issuing Organization:Civil Division
Actores:AB, R (On the Application Of) v The Secretary of State for the Home Department
Resolution Date:March 06, 2018

Neutral Citation Number: [2018] EWCA Civ 383

Case No: C4/2017/0852




[2016] EWHC 2751 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 06/03/2018






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Mr Stephen Knafler QC and Mr Toby Fisher (instructed by Savic & Co Solicitors) for the Appellant

Mr Alan Payne (instructed by Government Legal Department) for the Respondent

Hearing date: 7 February 2018

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  1. The question of wider importance raised on this appeal is whether rule 334(i) of the Immigration Rules requires an applicant for asylum in the United Kingdom to be present in the country at the time of the decision on the application. In my view, it does. I do not regard this as a startling conclusion, as it simply confirms that the rule means exactly what it appears to mean at first sight.


  2. The appellant, AB, is a leader of a political movement in his country of nationality. He entered the UK on a visitor's visa in May 2006 and applied for asylum here. His subsequent immigration history is long and complicated. For present purposes, it is sufficient to note that AB's first application for asylum was rejected by the Secretary of State on 31 October 2007 and a second application was also rejected on 4 June 2009. AB appealed from the latter decision all the way to the Court of Appeal and on 8 November 2011 his appeal was allowed by consent. The Secretary of State undertook to make a fresh decision on his application, which was made after some delay on 12 June 2012. AB's claim for asylum was again refused. On 9 July 2012 AB lodged an appeal against this decision with the First-tier Tribunal (Asylum and Immigration Chamber).

  3. Throughout this time, AB had been granted exceptional leave to remain in the UK and such leave had been extended periodically. On a number of occasions AB travelled abroad and returned to the UK using a passport issued to him by his country of nationality. In November 2011, in circumstances where his passport had been mislaid by the UK Border Agency, he was issued by the Secretary of State with a certificate of travel limited to the United States to engage in talks concerning his country. As a result of judicial review proceedings brought by AB, the limitation was removed and in January 2012 he was issued with a geographically unrestricted certificate of travel valid until 17 February 2012 (by which date he undertook to return to the UK). On 13 February 2012, while AB was still abroad, he requested an extension of the certificate beyond 17 February 2012. When this request was refused, he applied to the court to challenge the refusal but the application failed. AB remained abroad until 11 March 2012, when with the assistance of the Secretary of State he returned to the UK.

  4. On 27 March 2012 AB applied for a further certificate of travel again to attend talks in the United States as part of a peace process. He was told that he would have to apply in person and that his application would be determined in line with policy - with the implication that the application would be refused as he did not have leave to remain in the UK for at least six months. AB sought to challenge this decision but on 13 April 2012 the court refused permission to proceed with a claim for judicial review. He did not pursue his application for a certificate of travel further.

  5. In early May 2012 AB's passport from his country of nationality expired.

  6. On 21 July 2012 AB left the UK. He had no certificate of travel and did not inform the Secretary of State of his departure. In order to travel, he used a passport issued to him by a third country which was valid from 23 May 2012 for three years.

  7. AB's appeal to the First-tier Tribunal from the decision dated 12 June 2012 refusing his claim for asylum was due to be heard on Monday, 6 August 2012. On the Friday before the hearing the Secretary of State abandoned the decision with a view to re-making it within three months because the decision had proceeded on the erroneous basis that AB was an illegal immigrant.

  8. On 9 August 2012, while he was still abroad, AB's exceptional leave to remain in the UK expired.

  9. On 20 August 2012 the Treasury Solicitor wrote on behalf of the Secretary of State to solicitors acting for AB asking them to confirm whether he was presently in the UK. AB's solicitors eventually replied on 18 September 2012 to say that he was not. They gave an explanation of his reasons for travelling abroad and said that he had been issued with a travel document, in confidence, by a ``friendly state'' for political reasons, to be used as absolutely necessary. They did not identify the ``friendly state'' (except to say that it was not AB's country of nationality) or the nature of the travel document. Nor did they say where AB currently was, nor whether or when he intended to return to the UK. The letter from AB's solicitors also complained of the Secretary of State's failure to make a lawful decision on AB's claim for asylum and requested the Secretary of State to grant his application. This was followed on 20 September 2012 by a further letter seeking confirmation that the asylum decision would be made by return.

  10. The Treasury Solicitor replied on 21 September 2012. The critical part of the letter (which contains the decision challenged in these proceedings) stated as follows:

    ``As your client is no longer in the United Kingdom the Secretary of State is not in a position to take forward his claim for asylum and, in light of your client's actions, a further decision cannot be made.

    If and when your client seeks to re-enter the United Kingdom, any further application for asylum will involve an interview and your client will be expected to inform the Secretary of State of his change in circumstances. I note that, if he intends to return to the United Kingdom, your client will need to satisfy the Immigration Officer at the port of entry that he qualifies for admission.''

  11. Since then, AB has not been permitted to re-enter the UK. On 12 October and again on 20 December 2012 AB's solicitors asked whether the Secretary of State was willing to allow AB to return to the UK as an undocumented passenger, but this request was refused. AB's wife and adult children are living in the UK, having entered the country on various dates in or before March 2012 and applied for asylum. Their application for asylum was granted in February 2013 and they were given leave to remain. In August 2013 AB applied for leave to enter the UK to be re-united with his family but this application was refused by the Secretary of State. An appeal from that refusal was ultimately unsuccessful. AB is currently living mostly in another EU country and has a Schengen visit visa valid until June 2019.

    The present action

  12. On 21 December 2012 AB commenced the present action seeking judicial review of the decision dated 21 September 2012 ``to refuse to make the decision on the claimant's asylum claim whilst he is outside the UK''. Permission was given to proceed with the claim but it was then stayed by consent until AB's application for family reunion had been determined by the First-tier Tribunal. Thereafter the claim for judicial review proceeded to a hearing. It was dismissed by Sweeney J for reasons given in a judgment dated 7 November 2016: see R (AB) v Secretary of State for the Home Department [2016] EWHC 2751 (Admin). AB appeals from that decision on two grounds.

    Rule 334 of the Immigration Rules

  13. The first ground of appeal is that the judge erred in finding that rule 334 of the Immigration Rules requires an applicant for asylum to be in the UK at the time of the decision.

  14. At the relevant time, The present wording of the rule is slightly, but not materially, different. rule 334 provided (emphasis added):

    ``Grant of refugee status

    An asylum applicant will be granted refugee status in the United Kingdom if the Secretary of State is satisfied that:

    (i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom;

    (ii) he is a refugee, as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006;

    (iii) there are no reasonable grounds for regarding him as a danger to the security of the United Kingdom;

    (iv) having been convicted by a final judgment of a particularly serious crime, he does not constitute a danger to the community of the United Kingdom; and

    (v) refusing his application would result in him being required to go (whether immediately or after the time limited by any existing leave to enter or remain) in breach of the [Refugee] Convention, to a country in which his life or freedom would be threatened on account of his race, religion, nationality, political opinion or membership of a particular social group.''

  15. Although rule 334(i) does not specify in terms the date on which the applicant must be in the UK in order to be granted asylum, it is implicit in the wording that this requirement (and all the other requirements set out in the rule) must be satisfied at the time when the decision on the application is taken by the Secretary of State. That is the clear implication of the double use of the present tense (``is satisfied that ... he is in the United Kingdom'').

  16. It has, however, been argued on behalf of AB that, properly interpreted, rule 334(i) does not require an applicant to...

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