AB, R (On the Application Of) v The Secretary of State for the Home Department

Factual and Procedural Background

The Appellant is a political movement leader from his country of nationality who entered the UK on a visitor's visa in May 2006 and applied for asylum. His first asylum application was refused in October 2007 and a second in June 2009. He appealed the second refusal up to the Court of Appeal, which allowed the appeal by consent in November 2011, leading to a fresh decision in June 2012, which again refused asylum. The Appellant appealed this refusal to the First-tier Tribunal.

Throughout, the Appellant held exceptional leave to remain in the UK, traveling abroad multiple times with various travel documents. In early 2012, after judicial review proceedings, he was issued a geographically unrestricted certificate of travel valid until February 2012, but a request to extend it was refused. He remained abroad until March 2012 when he returned with the Secretary of State's assistance. Subsequent attempts to obtain further travel certificates were unsuccessful, and his passport expired in May 2012.

On 21 July 2012, the Appellant left the UK without informing the Secretary of State, using a third country passport. His exceptional leave expired while he was abroad in August 2012. The Secretary of State abandoned the June 2012 asylum refusal decision before the scheduled tribunal hearing in August 2012, intending to remake it. The Secretary of State requested confirmation of the Appellant's presence in the UK in August 2012, and was informed in September 2012 that he was not in the UK, with limited information about his whereabouts or intentions.

On 21 September 2012, the Secretary of State informed the Appellant's solicitors that no further decision on the asylum claim could be made as the Appellant was not in the UK. The Appellant has not been permitted to re-enter the UK since. His family remains in the UK with granted asylum. The Appellant’s subsequent applications for leave to enter the UK were refused, and appeals were unsuccessful. He currently resides mostly in another EU country on a Schengen visit visa.

On 21 December 2012, the Appellant commenced judicial review of the Secretary of State's refusal to decide his asylum claim while he was outside the UK. Permission was granted but the claim was stayed pending determination of his family reunion application. The judicial review was ultimately dismissed in November 2016, and the Appellant now appeals on two grounds.

Legal Issues Presented

1. Whether rule 334(i) of the Immigration Rules requires an asylum applicant to be present in the UK at the time the decision on the application is made.
2. Whether the Secretary of State unlawfully fettered her discretion by declining to act outside the Immigration Rules in relation to the Appellant's asylum claim.

Arguments of the Parties

Appellant's Arguments

• Rule 334(i) should be interpreted as requiring presence in the UK only at the time of application, not at the time of decision, to align with the Refugee Convention and European law.
• The Secretary of State unlawfully fettered her discretion by refusing to consider granting asylum or facilitating re-entry outside the Immigration Rules.
• The refusal to allow re-entry to pursue the asylum claim was irrational, unfair, and an abuse of power.
• The letter of 21 September 2012 was wrong in stating that no decision could be made while the Appellant was outside the UK.
• The Appellant would have had a right of appeal if the Secretary of State had expressly refused the application, which was not granted.

Respondent's Arguments (Secretary of State)

• Rule 334(i) naturally requires the applicant to be in the UK at the time of the decision.
• The Refugee Convention and relevant European directives do not require granting asylum to persons outside the state’s territory.
• The Secretary of State was obliged to refuse the application under rule 336 due to the Appellant’s absence from the UK.
• The Secretary of State did not unlawfully fetter discretion as no request was made to consider the application outside the Rules.
• The Appellant had no right to re-entry after leaving without informing the Secretary of State or holding a certificate of travel.
• The refusal to grant leave to enter was separate and not part of the challenged decision.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (European Roma Rights) v Prague Immigration Officer [2004] UKHL 55	The Refugee Convention does not require a state to consider asylum claims from persons outside its territory.	The court relied on this to confirm that absence from the UK at decision time precludes grant of asylum.
Sale, Acting Comr, Immigration and Naturalisation Service v Haitian Centers Council Inc (1993) 509 US 155	Supports the territorial limitation of refugee protection obligations under the Refugee Convention.	Endorsed as authoritative support for the territorial scope of refugee rights.
Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1	Confirms refugee protection obligations apply only within the territory of contracting states.	Used to reinforce the territorial limitation principle.
Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1	Same as above, emphasizing protection obligations apply to refugees within the state.	Supports the court’s interpretation of rule 334(i).
Hirsi Jamaa v Italy (2012) 55 EHRR 21	Prohibits collective expulsion at sea without examining individual circumstances.	Distinguished as irrelevant because the Appellant was not at the border or under UK control at decision time.
Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60	Clarifies Immigration Rules as administrative practice with mandatory effect; addresses non-fettering of discretion.	Applied to explain the Secretary of State’s discretion and mandatory refusal under rule 336.
British Oxygen Co Ltd v Minister of Technology [1971] AC 610	Principle against fettering discretion: decision-makers must be willing to listen to new arguments.	Used to assess whether the Secretary of State unlawfully fettered discretion by not considering exceptions.
R (Behary and Ullah) v Secretary of State for the Home Department [2016] EWCA Civ 702	No obligation to consider leave outside Rules absent express request or striking facts.	Supported the conclusion that absence of request justified refusal to consider asylum outside the Rules.

Court's Reasoning and Analysis

The court began by interpreting rule 334(i) of the Immigration Rules, concluding that the natural meaning requires the applicant to be in the UK at the time the decision is made. This interpretation aligns with the present tense language of the rule and is consistent with the other conditions in rule 334, which must also be satisfied at decision time.

The court rejected the Appellant's argument that the rule should be interpreted to require presence only at application time, noting that such an interpretation is inconsistent with the rule's language and logic, as well as with the Refugee Convention and European law.

Regarding the Refugee Convention, the court confirmed that it does not impose an obligation on contracting states to grant asylum to persons outside their territory, citing authoritative precedents including the House of Lords decision in the Roma Rights case and international jurisprudence.

The court examined relevant European directives (Qualification Directive and Procedures Directive) and concluded that while they establish minimum standards for asylum procedures, they do not require states to grant refugee status to persons outside their territory or to permit re-entry of applicants who have left during the process.

The Dublin II Regulation was considered but found not to conflict with the requirement that asylum applicants be present in the UK at decision time.

The court accepted that the Secretary of State could take a decision on an asylum application while the applicant is outside the UK, but rule 336 mandates refusal if the applicant is not present. The Secretary of State's letter stating no decision could be made was therefore incorrect in form but harmless in effect as the practical outcome was refusal.

The court addressed the alleged fettering of discretion, holding that the Secretary of State was not required to consider granting asylum outside the Rules absent an express request or compelling reasons. Since no such request or facts were presented, the Secretary of State did not unlawfully fetter discretion.

The court further found no duty to facilitate the Appellant's re-entry to pursue the asylum claim, as the Appellant left without permission and did not seek re-entry before his leave expired. The decision letter did not foreclose future applications or re-entry but left those matters to be addressed separately.

Holding and Implications

The court DISMISSED the appeal.

The holding confirms that rule 334(i) requires asylum applicants to be physically present in the UK at the time the Secretary of State decides their application. The Secretary of State was obliged to refuse the Appellant’s asylum claim due to his absence, and there was no unlawful fettering of discretion in declining to act outside the Immigration Rules. The decision letter’s error in form did not prejudice the Appellant.

The direct effect is that the Appellant’s claim cannot succeed without physical presence in the UK at decision time, and no new precedent altering the territorial scope of asylum claims or the Secretary of State’s discretion was established.