Supreme Court refuses permission in landmark case concerning jurisdiction of the Asylum Support Tribunal in implicit withdrawal cases

On 1 May 2026, the Supreme Court refused the Home Office permission to appeal against a decision of the Court of Appeal which confirmed the jurisdiction of the Asylum Support Tribunal (“AST”) in respect of decisions to terminate asylum support where the Home Office treats the underlying asylum claims as “implicitly withdrawn”. This case represented an important clarification of the powers of the AST given the Home Office’s increasing use of “implicit withdrawals” to justify the stoppage of support, in many cases entirely improperly. 

Background

For the last 25 years, it has been established practice that the AST could decide for itself whether an underlying decision to treat an asylum claim as withdrawn was unlawful, and accordingly that it could decide that the separate decision to end asylum support was unlawful on that basis. In a series of recent cases considered by the AST, appellants said that their claims had been withdrawn without the proper procedures being followed, and their asylum support terminated (or refused) as a result. 

In this case, the Home Office sought to upend that practice by arguing that it was for the Secretary of State alone to determine whether an asylum claim was withdrawn, even if that decision was infected by an obvious error of law, such that there was in effect no right of appeal against any such decision, which would only be challengeable by judicial review. 

This argument had been rejected both by the AST itself, and by Chamberlain J, sitting in the High Court. The Home Office appealed Chamberlain J’s decision to the Court of Appeal. 

The arguments of the interveners before the Court of Appeal

The interveners, the Asylum Support Appeals Project (“ASAP”), filed witness evidence highlighting the importance of the AST as a speedy, accessible forum for individuals to have their support appeals addressed by expert judges, and the relative inaccessibility of judicial review. They also filed written submissions, making the following central points:

1. The starting point for analysis was the definition of “asylum seeker” in s.94(1) of the Immigration & Asylum Act 1999 (“IAA”), which governs the jurisdiction of the AST. Given the autonomous definition of asylum seeker within the asylum support legislation, it must be the case that the AST has jurisdiction to determine whether an individual is an asylum seeker. If that is right, the AST must be permitted to decide for itself whether an individual has withdrawn their asylum claim, or whether they in fact remain an asylum seeker.
    
2. The Court of Appeal’s decision in R(Dogan) v SSHD [2003] EWCA Civ 1673 was distinguishable from the instant case, contrary to the Home Office’s heavy reliance on it. That case did not involve a decision to “stop” support; it was a decision to grant support subject to a condition as to its location, which was a sufficient reason in itself to dismiss the appeal. Insofar as Laws LJ can be read at §§17-19 thereof to have suggested that no right of appeal would arise against a decision to stop support following a breach of a condition, his comments were both obiter and wrong.

The judgment of the Court of Appeal

The Court of Appeal refused the Home Office’s appeal. Dismissing the Secretary of State’s appeal, the Court of Appeal described the AST’s original decision as “impressive” and “carefully reasoned”, holding that the Home Office’s interpretation was unduly narrow, contrary to the plain meaning of the legislation, and would strip a particularly vulnerable group of an important statutory safeguard.

The Supreme Court

The Secretary of State applied for permission to appeal to the Supreme Court. Submissions were filed on ASAP’s behalf resisting this. In an Order dated 1 May 2026, the Supreme Court refused permission on the basis that the Secretary of State’s application did not raise an arguable point of law. As such, the matter has now been brought to a definitive conclusion. 

Michael Spencer and Finnian Clarke acted for ASAP throughout, instructed by Nusrat Zar, Hannah Lau and Ha-Lim Bashir at Herbert Smith Freehills Kramer LLP.