The Home Office has adopted a concerning approach of treating asylum claims as withdrawn, seemingly as part of a new policy to reduce the asylum backlog. While the number of asylum decisions appears to be rising, a closer examination reveals that a growing proportion of these “decisions” involve categorizing asylum claims as withdrawn.
The worry deepens as the immigration rules have been modified to broaden the circumstances under which officials can consider asylum claims as withdrawn. Previously, claims were treated as ‘implicitly’ withdrawn if the applicant left the UK without authorization, failed to complete an asylum questionnaire, or missed an interview (unless due to circumstances beyond their control). Now, two additional grounds have been added:
- Failure to maintain contact with the Home Office or provide up-to-date contact details.
- Failure to attend reporting events, except when caused by circumstances beyond the applicant’s control.
Furthermore, the circumstances in which an asylum claim will be treated as ‘explicitly’ withdrawn have also expanded. Previously, this only happened when an applicant signed a specific form, but now an applicant may ‘otherwise explicitly declare a desire to withdraw their claim’ (although the meaning of this phrase is unclear).
The Explanatory Memorandum claims that these changes aim to “improve clarity” on the withdrawal of asylum applications. However, it is difficult to see how this will not lead to an increase in the number of genuine asylum claims being dismissed without proper consideration.
Critics have raised concerns that the Home Office might be using this approach to artificially resolve cases and meet their backlog reduction targets by treating more claims as withdrawn.
A report by the National Audit Office in June highlights a significant rise in asylum claims being treated as withdrawn. The number of weekly asylum decisions has almost doubled from July 2022 to April 2023. However, in April 2023, 72% of the decisions were classified as ‘administrative decisions,’ including both explicit and implicit withdrawals. For Albanian nationals, this figure was as high as 84%.
Albanians are part of a group of six ‘cohorts’ prioritized for expedited decision-making. Even before these recent changes, Albanians were already singled out by a Home Office policy requiring them to physically report to officials, with a failure to attend resulting in the claim being treated as withdrawn.
It is crucial to understand the distinction between “withdrawn” asylum claims and “non-compliance refusals.” Non-compliance refusals deal with failures to substantiate claims and are appealable decisions. In contrast, withdrawn claims are considered purely administrative decisions, denying applicants a statutory right of appeal.
The Home Office favors treating claims as withdrawn, which is more common than non-compliance refusals. The Asylum Policy Instruction on Withdrawing Asylum Claims explicitly states that claims that can be treated as withdrawn should not normally be refused on non-compliance grounds to avoid generating a right of appeal.
If an asylum claim is incorrectly treated as withdrawn, there are steps that applicants can take to challenge the decision. The first step is to determine if the withdrawal was erroneous, and if so, it must be cancelled, and the claim reinstated for substantive consideration. The guidance provides a non-exhaustive list of circumstances in which withdrawal should be cancelled.
Challenging such decisions may involve gathering evidence and submitting a pre-action letter to the Home Office. If these efforts are unsuccessful, the applicant’s only option may be to prepare a fresh claim with new evidence that has not been previously considered and offers a realistic prospect of success.
Treating asylum claims as withdrawn might provide short-term relief to the Home Office in managing the backlog, but it creates more problems in the long run. The individuals concerned remain present and must be assessed eventually. This approach could lead to an increase in fresh asylum claims and judicial review claims, a significant portion of which may be successful. The Home Office needs to strike a balance between efficiently managing cases and ensuring that genuine asylum claims receive proper consideration.
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