With thanks to Ali Bandegani of Garden Court Chambers for providing this note.
NOTE ON WITHDRAWAL OF ASYLUM POLICY
- As a result of judicial review proceedings brought by an Iraqi national (“N”), the SSHD has agreed to amend her policy “Asylum Policy Instruction Withdrawing Asylum Claims Version 5.0”as it relates to individuals with disabilities and those who lack or may lack mental capacity to make decisions about their asylum claim.
- Paragraph 333C of the Immigration Rules imposes a duty on the SSHD to determine every initial claim for international protection if not withdrawn by the applicant, and provides a discretion to decide not to determine an initial protection claim if the claim is withdrawn. The possible consequences of an application being incorrectly withdrawn are stark. The applicant becomes an “overstayer”, he is in turn liable to criminal prosecution, administrative detention, and possibly refoulement to serious harm or worse.
- In this case, the SSHD decided to discontinue N’s asylum claim even though his representatives had repeatedly put the SSHD on notice of their concerns about his capacity to receive and understand information, and to make informed decisions in his own interests. They referred to several statements by people who had noticed indicative behaviour whenever they met him. Without informing his solicitor N was interviewed by the SSHD, during which he agreed to withdraw his asylum claim. In consequence, the SSHD set directions for his removal to Iraq. Having engaged a litigation friend, N challenged the removal decision by judicial review, securing an injunction preventing his removal from the UK.
- In his judicial review claim, brought with permission, N targeted the SSHD’s discontinuance decision as well as the policy under which it was made. In summary he argued that his asylum claim could not fairly be treated as withdrawn, and the SSHD’s withdrawal policy contains a significant lacuna: decision makers are not directed to consider, or make reasonable enquires into disabilities or capacity issues, and on the face of the policy there is no mechanism to re-open the decision to discontinue the claim in light of new or better information about the individual’s condition. N eventually secured a full medical report confirming that the concerns of his solicitor were justified.
- The SSHD subsequently agreed to consider N’s asylum claim, and by order, sealed on 17 January 2020, to amend the Withdrawing Asylum Claims Policy to include:
- procedural safeguards and referral mechanisms relating to a person’s disability or mental capacity;
- reasonable adjustments in relation to the same, and;
- a procedure for re-opening the asylum claim.
- The SSHD also agreed to make decision makers aware of the lacuna in the policy and that a new policy is being prepared, and to provide appropriate training to all caseworkers on the above.
N was represented by Bethan McGovern of Southwark Law Centre, instructing Ali Bandegani of Garden Court Chambers.
- Document Date
- Monday February 10, 2020