by Mark Henderson & Alison Pickup
2.1 If the Home Office alleges that the claimant has failed to comply with its procedures, it may reach a decision on the initial claim without completing the normal determination process. Para 339M of the Immigration Rules (implementing the Qualification Directive) provides that:
339M. The Secretary of State may consider that a person has not substantiated his asylum claim or established that he is a person eligible for humanitarian protection or substantiated his human rights claim, and thereby reject his application for asylum, determine that he is not eligible for humanitarian protection or reject his human rights claim, if he fails, without reasonable explanation, to make a prompt and full disclosure of material facts, either orally or in writing, or otherwise to assist the Secretary of State in establishing the facts of the case; this includes, for example, failure to report to a designated place to be fingerprinted, failure to complete an asylum questionnaire or failure to comply with a requirement to report to an immigration officer for examination.
2.2 'Non-compliance refusals' originally became a major issue several years ago when the Home Office imposed a two week deadline for completion of a Standard Evidence Form (SEF) by all asylum seekers. Not only was the time limit very short, but the Home Office was too inefficient to recognise when the form was returned. Many non-compliance refusals were therefore issued where the SEF had in fact been returned within the deadline. It took the Home Office some time (and a substantial amount of litigation) before it introduced simple administrative changes to enable it to determine more accurately whether it was in possession of a completed SEF. The API on Non-compliance now specifies that a further 5 working days must be allowed after the expiry of the time limit for the form to be linked to the file. As indicated at para 1.11B, it is now very uncommon to issue a paper SEF.
2.3 In Haddad v SSHD  INLR 117, the Tribunal held that the Home Office could never refuse a claim on grounds of non-compliance alone. It must always reach a decision on the merits on the basis of the information available to it. However, where the refusal results from alleged non-submission of a SEF, the information with which the Home Office needs to deal on the merits is likely to be minimal.
2.4 The Tribunal also held in Haddad  INLR 117 that an adjudicator could not dismiss the appeal on the ground that the allegation of non-compliance was well-founded or simply on the evidence that was before the Home Office when the non-compliance refusal was issued. The Tribunal must determine the asylum/human rights appeal on the merits on the material which is placed before him.
2.4A Note that the list of circumstances in which a non-compliance refusal will be issued no longer includes failure to attend the substantive asylum interview. However, paragraph 333C of the Immigration Rules provides that an application will be treated as impliedly withdrawn where an asylum seeker fails to attend the asylum interview "unless the applicant demonstrates within a reasonable time that that failure was due to circumstances beyond his or her control". The explanatory statement to the Statement of Changes in Immigration rules (HC 420, which came into force on 7 April 2008) said that:
In line with the provisions of the [EU Procedures] Directive, the claim will only be treated as impliedly withdrawn when the individual has failed to turn up for their substantive interview. A letter will be sent to them giving them 5 days in which to re-establish contact and explain the reason for their failure to attend. If this is not responded to, the case owner will check whether or not the individual is still at the accommodation provider or other residence that they are supposed to be at and, if not, will treat the claim as withdrawn.
2.4B Para 333C only applies to asylum and humanitarian protection claims made on or after 7 April 2008. It does not apply to human rights claims made on grounds other than article 2 or 'protection-based' article 3 claims. Other human rights claims, such as those based on article 8 (private and family life) or article 3 (medical grounds) can only be explicitly withdrawn. The API on Withdrawing Asylum Claims provides the following guidance (para 4.5):
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 substantive interview letter (ASL.3724) must be sent immediately to the claimant and an ASL.4826 sent to their representative (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 Fast Track (DFT) cases.
Where no explanation is received by the deadline, the asylum claim should be treated as implicitly withdrawn. If an explanation is received within the deadline caseworkers must consider whether there is sufficient evidence to show that failure to attend was due to circumstances beyond the control of the claimant 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 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 the case file and handed to the claimant when they are next encountered.
2.4C The API emphasises that particular care is needed before treating a claim by a child as withdrawn. It advises case owners to conduct an investigation where no acceptable explanation is received in order to "establish all the relevant facts", including contacting the child's representative, responsible adult, social worker or accommodation provider. Children's applications should only be treated as impliedly withdrawn where the child has failed to attend more than one substantive interview and the case owner is satisfied the non-attendance is deliberate.
2.4D Where an application is treated as withdrawn, the Home Office gives it no further consideration. The case owner will notify the applicant that their claim has been treated as impliedly withdrawn. However, as the API makes clear, although no decision will be taken on the asylum claim, in cases where the applicant has no immigration status or outstanding application on other grounds, the case owner will still need to make an immigration decision before removal can be effected.
2.4E Until the 2014 Act is brought fully into force, an individual will only have a right of appeal against the decision to treat the asylum claim as withdrawn if an immigration decision within the meaning of s. 82 is made by the Home Office. The API previously suggested that:
When an asylum application is treated as withdrawn, unless the applicant otherwise has an in-country right of appeal against the immigration decision, any appeal will normally be out of country against the act of removal because a claim within the meaning of section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002 will not have been made.
It made similar comments in respect of withdrawn human rights claims. However, this does not appear to be a correct statement of the law, as s. 92(4)(a) (prior to amendment by the 2014 Act) applied where an appellant "has made an asylum claim" and an asylum claim was defined by s. 113 as one made "to the Secretary of State at a place designated by the Secretary of State" – the fact that a claim has been treated as impliedly withdrawn does not affect the fact that the claim has been made. It will also not apply where the immigration decision is in any event one against which there is an in-country right of appeal (such as a refusal to vary leave to enter or remain).
The API was amended in October 2014 and now states that:
A decision to treat an asylum claim as explicitly or implicitly withdrawn is not an immigration decision, and therefore does not attract a right of appeal because a decision within the meaning of section 92(4) of the Nationality, Immigration and Asylum Act 2002 has not been made. In cases where an asylum claim was withdrawn but a non-protection based human rights claim was considered and refused, the decision may attract an in-country right of appeal. ...
This is also a confused and incorrect statement of the law, whether it is intended to refer to the law prior to or after amendment by the 2014 Act (which is wholly unclear). S. 92 does not define whether a decision is appealable. That is governed by s. 82. The correct position appears to be that:
(1) In a case to which the 2002 Act applies without the amendments made by the 2014 Act (see the Preface for a note on the commencement provisions), there will be a right of appeal against any immigration decision made as a consequence of the decision to treat the asylum claim as withdrawn, and it appears as indicated above that the appeal will be in country because an asylum claim "has been made" prior to the immigration decision (unless it is certified: see Chapter 3);
(2) in a case to which the amendments by the 2014 Act apply, there will be a right of appeal if the decision to treat the asylum claim as withdrawn is a decision to "refuse a protection claim" within the meaning of s. 82(1)(a) as properly understood, or the Home Office has made a decision to refuse any related human rights claim within s. 82(1)(b) (as noted above, para 333C does not apply to non-protection based human rights claim). The Home Office will no doubt argue that a decision to treat an asylum claim as withdrawn is not a decision to "refuse" it but the contrary appears highly arguable given the substantive effect of a decision to treat a claim as withdrawn. Any such appeal will be in country, unless the claim is certified under s. 94 (see chapter 3).
2.4G Once the asylum claim has been treated as withdrawn under paragraph 333C, any further representations on asylum grounds will be considered under paragraph 353 of the Immigration Rules to decide whether they constitute a fresh claim.
2.5 Where the allegation of non-compliance turns out to be mistaken, the Home Office has accepted that it must withdraw the non-compliance refusal and reconsider the claim (Home Office's statement of reasons, approved by the Court in R v SSHD, ex parte Karaoglan, 4 May 2001).
2.6 The API on Non-compliance states that
In cases where it becomes clear that a refusal on non-compliance grounds is flawed it will be necessary to take corrective action. Examples of where this would be the case include:
• where a decision to refuse on non-compliance grounds is made on the basis that the applicant failed to return the SEF and it subsequently turns out that the form had been received by the time the decision to refuse was made but had not been linked to the file;
• where a decision to refuse on non-compliance grounds is made on the basis that the applicant failed to attend a screening interview or asylum interview (before 7 April 2008 failure to attend an asylum interview could result in a non-compliance refusal decision) but it subsequently turns out that the invitation was despatched to the wrong address..
2.6A Where children are concerned the API emphasises that in light of the duty under s. 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children:
It is of particular importance to exercise discretion and greater sensitivity when making non-compliance decisions in the case of children. When investigating whether a non-compliance decision is appropriate, the Case Owner should, if required, contact the child's responsible adult, and/or representative, and/or social services for information on the reasons for non-compliance.
2.6B The API on Withdrawal of Asylum Claims requires an incorrectly issued withdrawal decision under paragraph 333C to be cancelled, and the applicant and their representative (if any) to be notified that the claim will now be substantively considered.
2.7 In Nori v SSHD  UKIAT 01887, the Home Office had withdrawn its flawed non-compliance refusal. The Tribunal concluded that there was consequently no lawful basis for the refusal of leave to enter against which the appeal had been brought (given that the asylum claim was now undetermined):
Once the decision on which the appeal was based had been withdrawn, no appeal could proceed. In those circumstances, the adjudicator's purported decision on that appeal is in our view a nullity... If the Secretary of State decides on the merits that he will refuse the application, and therefore will issue a fresh decision to refuse leave to enter, then Mr Nori will have his appeal rights based on that decision.
2.7A The API now makes clear that where the non-compliance refusal is accepted to be flawed the immigration decision should be withdrawn, and a letter issued to the applicant apologising and stating that substantive consideration will now take place.
2.8 Regardless of whether you consider the non-compliance refusal or withdrawal decision to be justified, you should always lodge grounds of appeal in order to protect your client's position. If you can show that the non-compliance refusal was based on incorrect facts, you can then write to the Home Office requiring it to withdraw its decision and reconsider your client's claim on the merits.
2.9 Where the Home Office does not withdraw its non-compliance refusal of its own accord, it is not always in your interests to press it to do so. The main disadvantages of a non-compliance refusal are that you lose the initial consideration of your claim, the judge becomes the first decision maker (sometimes without any advance notice of the Home Office's case), and there is no right of appeal on the facts against what has become the first decision (the process of appeal to the Upper Tribunal requiring the applicant to show an error of law in the original decision before it can be disturbed).
2.10 However, the withdrawal of the non-compliance refusal will mean delay if the Home Office then refuses on the merits. Where the Home Office is issuing more or less pro forma refusal letters for a particular category of claimants with little regard to their individual facts, the benefits of an initial consideration by the Home Office may be illusory.
2.11 The judge has no power to 'remit' the claim to the Home Office or direct that it reconsider the claim, whether or not the non-compliance refusal was justified (see Haddad v SSHD  INLR 117 above and SSHD v Mwanza  INLR 616). But whether or not the non-compliance refusal was justified, you (and the judge) are entitled to some disclosure of the Home Office's case. The Home Office is now required by rule 24(2), if it "intends to change or add to the grounds or reasons relied upon" in the decision under appeal, to provide the Tribunal and the appellant "with a statement of whether the respondent opposes the appellant's case and the grounds for such opposition". In addition, the judge is entitled to direct that the Home Office state the grounds upon which it is opposing the appeal, as long as he does not require the Home Office to 'reconsider' the case (see the Tribunal 's decision in SSHD v Razi (01/TH/01836) and the discussion at para 9.11).
2.12 Sometimes, the Home Office will claim that its allegation of non-compliance is relevant to the judge's assessment of credibility. This will often be unfounded, particularly where the allegation is simply the late submission of a SEF (given the difficulties in finding a representative and completing the SEF within 10 working days). That is especially so in light of the Home Office's restrictive approach to applications to extend the time limit (see para 1.12)
2.13 Note that the Home Office accepts that a claim should not have been refused for non-compliance if the SEF was submitted before the decision was taken, even if after the time limit. The API on Non-compliance states that:
In all cases the decision as to whether there has been non-compliance should be taken as soon as possible after the deadline for the receipt and consideration of the form. A decision to refuse on grounds of noncompliance should only be made if the SEF has not been received by the date on which the decision is made. If we are to rely upon noncompliance we must deal with applications in a timely manner.