Office Of The Immigration Services Commissioner
Guidance Note on explicit and deemed withdrawal of asylum claims
The circumstances in which an asylum claim is treated as withdrawn have been broadened by the addition of two new grounds to paragraph 333C of the Immigration Rules, (i) and (iv), to existing grounds. The amended paragraph 333C (set out below) entered into force on 7 August 2023.
In addition to an application being treated as explicitly withdrawn if the applicant signs the relevant form provided by or on behalf of the Secretary of State, or otherwise explicitly declares a desire to withdraw their asylum claim, the application may also be treated as implicitly withdrawn if the applicant:
- fails to maintain contact with the Home Office or provide up to date contact details as required by paragraph 358B of these Rules; or
- leaves the United Kingdom (without authorisation) at any time before the conclusion of their application for asylum; or
- fails to complete an asylum questionnaire as requested by or on behalf of the Secretary of State; or
- fails to attend any reporting events, unless the applicant demonstrates within a reasonable time that the failure was due to circumstances beyond their control; or
- fails to attend a personal interview required under paragraph 339NA, unless the applicant demonstrates within a reasonable time that that failure was due to circumstances beyond their control.
Where paragraph 333c applies the Home Office is permitted under the same paragraph to discontinue consideration of the claim. The Home Office will not go on to consider the claim on the merits of the available information.
Para 333C only applies to asylum and humanitarian protection claims made on or after 7 April 2008 and it does not apply to human rights claims made on grounds other than article 2 or protection-based Article 3 claims.
Due to these changes, the OISC is alive to the fact that there is a likely risk that more applicants may find their claims being treated as withdrawn. Such applicants will require assistance with engaging the Home Office to request the withdrawal decision to be cancelled. The OISC is satisfied that advisers registered at Level 2 and above in either Asylum and Protection or Immigration categories have the requisite knowledge and skills to assist claimants in requesting the Home Office to cancel the withdrawal decision.
Are Level 1 advisers authorised to undertake such work?
Currently Level 1 advisers registered in Asylum and Protection can only provide limited support to asylum applicants. Level 1 advisers authorised in Asylum and Protection can make straightforward applications to vary the conditions attached to leave already granted, including conditions attached to bail granted by the Secretary of State and straightforward applications for leave in line or refugee status in line for the UK born children of refugees and people with humanitarian protection.
In addition to the above work, the OISC considers that Level 1 advisers authorised in Asylum and Protection, and those authorised in the category of Immigration, may also assist asylum and humanitarian protection claimants in requesting the Home Office to cancel the withdrawal decision in line with the Home Office guidance where assistance is limited to explaining why the application should not be treated as withdrawn. Level 1 advisers must not stray into explaining or arguing the merits of the asylum claim.
In order to undertake such work, the Level 1 adviser must ensure:
They have the knowledge and skills to help the client. For example, the adviser must ensure that they have knowledge of published Home Office practice in the consideration of such cases including the UKVI Operational Guidance; Withdrawing Asylum Claims.[1] The adviser must also have a clear understanding of the limits of their knowledge and competence and an understanding and sensitivity as to when a clients case must be referred to a higher-level adviser.
That the application involves the straightforward collection of facts to meet the criteria stated in the UKVI Operational Guidance.
If all of the above apply, then a Level 1 adviser may assist a claimant by requesting the withdrawal decision to be cancelled. For further information please view the 2021_Guidance_on_Competence.pdf (publishing.service.gov.uk).
[1] Withdrawing asylum applications: caseworker guidance - GOV.UK (www.gov.uk)