Irena Sabic KC and Alex Grigg of Garden Court Chambers acted for MAH, instructed by Bahar Ata and Katie Nelson of Duncan Lewis Solicitors.
The Court of Appeal has today handed down a judgment confirming the powers of the Asylum Support Tribunal in respect of decisions to terminate or refuse asylum support where the Home Office has – in many cases improperly – treated asylum claims as “implicitly withdrawn”.
In recent years, the Home Office has made increasingly extensive use of its power to treat claims in this way.
This judgment ensures that asylum seekers who face the loss of basic accommodation and financial support have access to a route of appeal capable of addressing how their asylum claim was handled. In doing so, this judgment preserves an essential protection against destitution for some of the most vulnerable people in the asylum system.
Court of Appeal decision
In R (Secretary of State for the Home Department) v First-tier Tribunal (MAH & Ors) [2025] EWCA Civ 1654, the Court dismissed the Secretary of State’s appeal and upheld earlier decisions of both the Tribunal and the High Court.
“Implicitly withdrawn”
At the heart of the case is the Home Office’s increasing use of its power to treat asylum claims as having been “implicitly withdrawn”. This occurs where the Home Office alleges that an asylum seeker has failed to comply with part of the asylum process, most commonly by not attending an interview.
When an asylum claim is treated as implicitly withdrawn, the Home Office stops considering the asylum claim and ceases to treat the person as an asylum seeker. This has important consequences for asylum seekers who receive accommodation or financial support from the Home Office.
In a series of cases considered by the Asylum Support Tribunal, appellants said that their claims had been withdrawn without the proper procedures being followed, and their asylum support terminated (or refused) as a result. Commonly, appellants said that the Home Office had failed to send them notice of their asylum interview and then treated their claim as withdrawn when they did not attend the interview.
The Home Office claimed that there was no right of appeal against these decisions to terminate or refuse support, or that if there was a right of appeal, the Asylum Support Tribunal could not investigate whether the asylum claim had properly been withdrawn.
The result was that, on the Home Office’s arguments, an appeal provided in practice no remedy at all against the termination of support. An appellant could show that they were never sent notice of the interview they failed to attend, so that their claim should not have been withdrawn, but their appeal would still, on the Home Office’s arguments, need to be dismissed.
Those arguments have now been rejected at every stage. The Asylum Support Tribunal, the High Court (Chamberlain J), and now the Court of Appeal all held that affected individuals do have a right of appeal, and that the Tribunal is entitled to examine whether an asylum claim was properly treated as withdrawn. Where it was not, the Tribunal may allow the appeal and restore support. In the individual cases, the Tribunal held that the Secretary of State had failed to follow her policy, for instance by failing to notify the claimants of their asylum interviews.
Dismissing the Secretary of State’s appeal, the Court of Appeal described the Tribunal’s original decision as “impressive” and “carefully reasoned”, holding that the Home Office’s interpretation was unduly narrow, contrary to the plain meaning of the legislation, and would strip a particularly vulnerable group of an important statutory safeguard.
Irena Sabic KC and Alex Grigg of Garden Court Chambers acted for MAH (interested party), instructed by Bahar Ata and Katie Nelson of Duncan Lewis Solicitors.
Alex Grigg had previously represented MAH pro bono in the Asylum Support Tribunal, instructed by Mark Rogers and Richard Copson of the Asylum Appeals Project (ASAP).
