In the recent case of R (on application of AB) v Secretary of State for the Home Department [2018] EWCA Civ 383, the Court of Appeal considered the applicable interpretation of Para 334(i) of the Immigration Rules (“the Rules”): whether or not an asylum seeker needed to be present in the UK at the time of asylum being granted to him on his application. It was held that the natural reading of the words in Para 334(i) attested to the implication that the applicant had to be present in the UK at the time of that decision. The court has endorsed this conclusion by confirming that this requirement accords with international treaties such as the 1951 Geneva Convention and the 1967 Protocol as well as relevant EU legislation, all of which are binding in the UK. Other arguments were also considered, including the requirement of being present in the UK at the time when a decision is taken and the alleged failure by the Secretary of State for the Home Department (“SSHD”) to exercise her discretion.
The original case concerned an asylum seeker (AB) who was a leader of a political movement in his country of nationality. Over the years, he had made multiple asylum claims in the UK, all of which were ultimately refused. Up until a certain point, AB had been granted exceptional leave to remain in the UK, permitting him to travel abroad as part of his political efforts. Upon expiry of that leave, he failed to secure an extension. As he needed to travel, he used a travel document issued by a ‘friendly state’ and left the UK without notifying the immigration authorities. Once the Home Office became aware of his having left the country, they informed him that they were no longer in a position to proceed with making a decision on his case. As a result, he was prevented from returning to the UK and unsuccessfully sought to reverse this by various means including by applying for reunion with his family, who had been granted asylum in the UK, and by lodging a judicial review against the refusal of his latest asylum application.
In dismissing his appeal against the refusal of judicial review, the court held that the implication of the present tense being used within the wording of Para 334(i) was that in order to gain asylum the applicant must be in the country when the decision to grant asylum on his claim is taken. In responding to the argument made, the court analysed the compatibility of the applicable legislation with the Refugee Convention and held that there was nothing in the Convention that required a signatory to grant asylum to someone who was actually not within its territory at the time. The court emphasised the narrow application of the Convention in terms of location of a potential refugee, and made it clear that the Convention applied only to refugees who were physically present in the country, as opposed to those seeking to enter.
When dealing with the arguments about applicable EU law, the court held that the Qualification Directive (2004/83/EC) could not be interpreted to apply outside of the territory of a member state, as its central purpose was to set out the common criteria for implementing the Refugee Convention and interpreting it otherwise than in accordance with the Convention would be counterintuitive. Further, it was held that the Procedures Directive (2005/85/EC) provided for a right to remain in the country after applying for asylum, but that there was no provision within this directive to re-enter the country having left when the application was pending. In addition, it was held that the now historic Dublin II Regulation (343/2003), was not inconsistent with the condition that an applicant must be in the UK when asylum is granted. This regulation was concerned mainly with preventing multiple applications for asylum being made in various member states by the same applicant, and has now been replaced by the Dublin III Regulation (604/2013).
Although Para 334(i) of the Rules required that an applicant be physically present in the UK for asylum to be granted to him, no such requirement was made in relation to taking a decision in general. Indeed, the rule only prevents actual asylum being granted, not any other decision being taken. Therefore, the court held that it was wrong for the SSHD not to proceed with a decision, and the application should have been refused instead under Para 336 of the rules.
Finally, in response to the argument that the SSHD failed to exercise her discretion when she was unable to make a decision within the rules, the court held that unless there has been a request to exercise discretion then there was no obligation on the SSHD to do this in her own right.
As can be seen, the valid interpretation of Para 334(i) is that an applicant must be present in the UK when a decision to grant asylum is made. If the applicant has left the country for some reason without seeking prior agreement from the Home Office to postpone a decision before his return, and the decision is taken during his absence, his application must be refused under the rules. This requirement is not inconsistent with any provision contained in the 1951 Geneva Convention as well as the Qualification Directive, the Procedure Directive and the now repealed Dublin II Regulation within EU law. The SSHD is not obliged to exercise her discretion unless she is requested to do so.
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