JR-2024-LON-002059
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The decision
Case No: JR-2024-LON-002059
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
11 September 2025
Before:
THE HONOURABLE MR JUSTICE RITCHIE
UPPER TRIBUNAL JUDGE RUDDICK
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In the matter of an application for judicial review
THE KING
on the application of
HI
(Anonymity order made)
Applicant
- and –
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
David Chirico KC and Daniel Grütters
(instructed by Joint Council for the Welfare of Immigrants) for the Applicant
Michael Biggs
(instructed by the Government Legal Department) for the Respondent
Hearing date: 28.7.2025
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Mr Justice Ritchie and UTJ Ruddick:
The Parties
1. The Applicant (A) seeks asylum. The Respondent controls the grant thereof.
Bundles
2. For the application we were provided with a main bundle, a supplementary bundle, a further supplementary bundle, a policy handed up near the start of the hearing, two authorities bundles and two skeleton arguments. Following the hearing, the parties agreed a Chronology of Correspondence and a “List of Home Office employees involved in this case”, for which we are grateful.
The Background
3. A applied for asylum, was refused, appealed and that appeal was treated as withdrawn under the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (“the FTT Rules”), r.17 because on 11.3.2024, the day before the listed hearing, the Respondent withdrew her decision to refuse asylum and informed the Tribunal and A that the withdrawal was with a view to granting asylum to A, subject to security checks. Rule 17 of the FTT Rules provides:
“(1) A party may give notice of the withdrawal of their appeal—
(a) by providing to the Tribunal a written notice of withdrawal of the appeal; or
(b) orally at a hearing,
and in either case must specify the reasons for that withdrawal.
(2) The Tribunal must (save for good reason) treat an appeal as withdrawn if the respondent notifies the Tribunal and each other party that the decision (or, where the appeal relates to more than one decision, all of the decisions) to which the appeal relates has been withdrawn and specifies the reasons for the withdrawal of the decision.
(3) The Tribunal must notify each party in writing that a withdrawal has taken effect under this rule and that the proceedings are no longer regarded by the Tribunal as pending.”
Thus, although the Respondent did not need the Tribunal’s permission to withdraw her refusal decision, she was required to inform the Tribunal of her reasons. The Tribunal was then required to give A an opportunity to make submissions as to why there was “good reason” for the appeal to continue before deciding to treat the appeal as withdrawn.
4. In this case, A ultimately decided not to make submissions that there were good reasons for the appeal to continue and did not appeal against the FTT’s decision to treat the appeal as withdrawn. The Respondent then refused the Applicant’s asylum claim and A applied for judicial review of the refusal. The hearing before us is the rolled up hearing of both permission for judicial review and, if that is granted, the judicial review itself.
The Issues
5. There are two main issues.
(1) Did the Respondent’s communications on 11.3.2024 create a substantive legitimate expectation (SLE), endowed upon A, of the grant of refugee status, subject only to security checks? If so,
(2) did the Respondent’s later decision to refuse refugee status/grant leave unlawfully frustrate A’s SLE?
The original decision under review
6. On 23.5.2024 the Respondent made the first, post-appeal, decision to refuse A’s asylum claim and refuse to grant A (1) Humanitarian Protection under Para. 339C of the Immigration Rules, (2) leave on the basis of his private life in the UK under Para. 276ADE of the Immigration Rules or (3) discretionary leave. That decision made no mention of the representations made on 11.3.2024 to grant asylum subject to security checks.
The judicial review claim
7. On 2.8.2024 the judicial review claim form was issued challenging the original decision and A filed a statement of facts and grounds for the claim (SFG). A asked the Tribunal to quash the decision and to declare it unlawful and sought a mandatory order requiring the Respondent to grant him asylum. In response, on 22.8.2024 the Respondent withdrew the original decision.
The new decision under review
8. On 23.9.2024 the Respondent issued a new decision refusing asylum in the same format with the same reasoning but added new paras. 108-117 which dealt with the representations to grant made on 11.3.2024 and gave the reasons why the Respondent resiled from those. On 7.11.2024 UTJ Ruddick gave permission for the Applicant to amend the grounds of claim to cover the new decision. The amended SFG was served on 2.12.2024. The detailed grounds of defence (DGD) were served on 27.1.1025 and perfected on 18.3.2025.
The Applicant’s Grounds of Claim
9. Ground 1. A asserts that the new decision is an unlawful frustration of his legitimate expectation of a grant of asylum created by the representations made on 11.3.2024. A asserts that the representations made on 11.3.2024 gave rise to a SLE that he would be granted asylum subject to security checks. A also asserts that the reasons given in paras. 108-117 of the new decision were irrational, based on a misdirection of law, were an abuse of power and biased or made in bad faith. Whilst many specific details are set out in the amended SFG, in summary A submits that the Respondent reconsidered the evidence and took a different view from that taken on 11.3.2024 by her Home Office Presenting Officer (HOPO) and Senior Caseworker when the Respondent withdrew her defence to the appeal. A submits that none of the reasons set out by the Respondent in the new decision amounted to sufficient justification in fact or in law to overrule, ignore or frustrate the SLE created by the representations made on 11.3.2024 to grant asylum. There were no macro-political considerations put forwards. No new evidence was relied upon. The added paragraphs were ex-post facto justifications which did not appear in the original decision to refuse, made in May 2024.
10. Ground 2: The Respondent’s delay in granting asylum is unreasonable, irrational and a breach of A’s Article 8 rights. A asserts that the Respondent’s continuing delay in granting him asylum is unreasonable in light of the initial delay in making a decision on his asylum claim for 3 years (9/2019-10/2022), the further delay in complying with directions from the FTT to review that decision until the day before the appeal was listed to be heard (11/2023-3/2024) and the continuing delay since the 11th of March 2024 . He asserts that this delay interferes with his Article 8 right to respect for his private life, particularly in the light of his poor mental health.
The Respondent’s Grounds of Defence
11. The Respondent submits that: (1) the application should be dismissed; (2) the representations made on 11.3.2024 did not give rise to a SLE; (3) if a SLE did arise it is fair and proportionate for the Respondent to resile from the SLE because:
(a) the Respondent’s HOPO and Senior Caseworker clearly made a wrong decision on 11.3.2024;
(b) the “importance of a coherent rules-based system of immigration control based on the rule of law” weighs in the Respondent’s favour; and
(c) the Applicant has suffered “limited prejudice”.
12. Ground 1: The Respondent pleaded that the law governing resiling from SLE’s is set out in Finucane (see below). It is for the Court to determine if an SLE arose, based on an objective assessment of the representations made on 11.3.2024. If an SLE did arise, then the Court will need to determine whether there was “good reason” justifying departure from that. The Respondent relied on the judgment of Laws LJ in Nadarajah, at paras. 68-69 (see below) highlighting that good administration requires public bodies to “deal straightforwardly and consistently with the public”.
13. The Respondent set out the following as examples of good reasons for departing from an SLE:
(a) Mistaken representations (relying on Begbie at para. 61 of the judgment of Gibson LJ, see below).
(b) Where the public body has a legal duty (for instance a statutory duty) to depart from the SLE.
(c) Where the public body has a legitimate aim and the departure is objectively justified as a proportionate response within that aim. For instance, where there is a macro-political policy issue overriding the SLE, that will weigh heavily.
The Respondent submitted that when considering what is proportionate or justified, the Court should look at the factors in the round and balance the SLE and any prejudice suffered by A from having it frustrated against the public body’s aims or legal duties and its asserted justifications for resiling from the SLE.
14. The Respondent admits the words said in the communications of 11.3.2024 but submits that they did not give rise to a SLE. The Respondent submits that all that Ms Amini, the HOPO, communicated was her view that asylum should be granted and that she expected that it would be when the claim was reconsidered. No reasonable solicitor experienced in immigration law would interpret the words as the HOPO categorically promising that asylum would be granted because they would know that it was not the HOPO’s function to determine the asylum claim. That decision was allocated to a different department. This point was expanded in submissions. We shall call it the apparent/express authority point. In submissions the Respondent went further and stated that withdrawing a refusal decision with the intention to grant leave (commonly called a “withdrawal to grant” or WTG) is pretty much the same thing as withdrawing it so that it can be reconsidered (a “withdrawal to reconsider” or WTR). Both types of withdrawal imply (in the case of WTG) or express (in the case of WTR) that another of the Respondent’s departments would reconsider the evidence and make the decision.
15. The Respondent submitted and pleaded in the alternative that, if there was a SLE created by the representations on 11.3.2024, then the Respondent had justification for resiling from that. The Respondent had a statutory duty to determine asylum claims on their merits and the Respondent’s May 2024/September 2024 decision maker/s was/were “sure” that the claim was “unfounded”. This certainty was not based on recent events or changes after 11.3.2024 (DGD para. 69). It was based on the view that the decision taken by the HOPO and the Senior Caseworker on 11.3.2024 was “clearly mistaken” and “clearly not well-founded” and involved a “clear error”. Albeit the Respondent accepted at para. 71 that different decision-makers can come to different decisions on evaluative assessments, she submitted that, on the evidence before the decision-maker and adduced by A in the appeal, A “was not entitled to asylum on any legitimate view”. The Respondent went further and submitted that the assessments made by Ms Amini and the Senior Caseworker, Mr Sansom, were Wednesbury unreasonable (DGD para. 73). It was pleaded that: “There is no proper basis for concluding that the Israeli state would persecute the Applicant for a convention or any other reason, nor is there any reason to conclude that it would not be willing and able to provide adequate protection in respect of any risk presented by non-state actors.” The Respondent pleaded that the reasons for this were set out in the new decision. We will return to this assertion below.
16. The Respondent also asserted that A lost nothing by the change of position because A was not entitled to asylum anyway. In our judgment, this submission was circular and had no merit. It needs to be set in context. The Respondent refused asylum in 2022, withdrew that refusal in March 2024 on the basis that the decision was likely to be overturned the next day at the appeal hearing, stated that asylum was expected to be granted and then, two months later, in the absence of evidence of a change in circumstances, decided that asylum should not be granted. Asserting that the last decision, the one under challenge, was right does not make it right nor does it, per se, make the earlier decision meritless or wrong. Reasons were needed.
17. The Respondent further asserted that because she had not certified the claim as “clearly unfounded section 94 of the Nationality, Asylum and Immigration Act 2002, A would “in due course receive a fair decision on the merits of his appeal.” Finally, the Respondent asserted that she had made the new decision in good faith and fairly.
18. Ground 2: The Respondent submits that this ground adds nothing to ground 1, denies unreasonable delay and denies breach of Article 8 of the ECHR.
The chronology of facts
19. A was born in 1999 in Israel and is now aged 26. He is a Palestinian Muslim and an Israeli national. He moved to the United Kingdom when he was one or two with his parents and his brother, B, who was born in 1997. Initially they lived in London and his father worked as a barber. His sister S was born in 2004. His parents divorced in 2007 or 2008 and his father moved back to Israel. His mother made an asylum claim but subsequently the family became homeless. Following a series of relocations within the UK, the family, including A, were eventually granted limited leave to remain. His mother remarried in the UK and gave birth to three half siblings, X, a sister in 2011, Y, a brother in 2015 and subsequently Z, a sister in 2020. In 2010, A was diagnosed with Familial Mediterranean Fever, an inherited disease giving rise to recurrent crises of fever, “excruciating” pain and loss of mobility. In the same year, he was diagnosed with Ehlers-Danlos syndrome, a connective tissue disorder.
20. Whilst at secondary school A fell in with a bad crowd and by the age of 14 his mother decided he needed to be sent back to Israel to live with his father to sort him out. He went to Israel in 2014 and stayed for about 14 months. Unfortunately, he fell out with his father who was strict and he was then cared for by his grandmother.
21. Whilst A was in Israel his mother applied for further leave to remain for herself and all of her children. Because A was in Israel he could not provide biometric data and his application was rejected. He returned to the UK, without informing his mother, in 2015. She took him back in. A had been granted limited leave to enter on arrival and on the 22nd of September 2016 he applied separately for leave to remain. He was refused on the 21st of February 2017 and then appealed. His appeal was heard on the 16th of February 2018 and dismissed on 5th of March 2018. Three days later A attempted suicide by overdose and was hospitalised for two days. One month later, on the 18th of April 2018, A’s mother, brother and sister were all granted indefinite leave to remain in the United Kingdom, but he was not. A married in 2018 and went to live with his wife, but the marriage did not work out and they separated shortly thereafter. A was divorced in 2020.
22. On the 12th of September 2019 A claimed asylum on the grounds that he would be at risk of persecution on return to Israel because of his political opinions in support of Palestinian rights, which he had expressed on social media and by attending demonstrations in the UK. He also expressed a fear of discrimination and harm from non-state actors on account of his identity as a Palestinian and a Muslim. On the 23rd of October 2022 the Respondent refused the asylum claim, finding that there was no real risk that the Israeli authorities would persecute him for his political opinions and there was sufficiency of protection against harm from non-state actors. The Respondent also considered whether A should be granted leave on the basis of his private life in the UK, but decided that he was not entitled to a grant of leave on the basis of long residence, because he had only lived in the UK continuously since April 2015, and that there would be no significant obstacles to his reintegration in Israel, because he had lived there “until April 2015”, had family there and could speak Arabic and Hebrew. Medical care would be available.
23. A appealed to the FTT. He submitted three bundles of evidence, on the 27th of May 2023, the 20th of July 2023 and the 11th of December 2023. On the 3rd of November 2023, the FTT issued standard directions to the Respondent to review A’s evidence and arguments and, by the 17th of November 2023, inform the Tribunal of the results of that review. This was in accordance with the President of the FTT’s Practice Statement No. 1 of 2022. On the 16th of November 2023, the Respondent applied for an extension of time of 14 days, until the 30th of November 2023, for completing her review. This was granted. On the 1st of December 2023, the Respondent made an application for a further extension of two weeks, which was also granted. On the 27th of January 2024, finally, A applied for the appeal to be listed for a hearing in spite of the fact that the Respondent had still not completed her review in accordance with directions, relying on the impact of the delay on his mental health. This application was granted, and the appeal was listed for full hearing on the 12th of March 2024.
24. In the bundles filed by A was evidence from multiple sources of the discrimination against and mistreatment of Palestinians in Israel set against A's physical and mental health conditions and his vulnerability. The last bundle contained updating evidence of developments in Israel and the Palestinian Territories since the Hamas terror attack of the 7th of October 2023 and the subsequent Israeli military offensive in Gaza. The Applicant relied on a medical report provided by a Consultant Psychiatrist, Doctor Gilberthorpe, dated the 8th of September 2023 (so before the war). In that report the consultant recorded that he had interviewed A at his home in the UK on the 23rd of June 2023 and his mother by telephone on the 8th of July 2023 and had had sight of A’s witness statement and 494 pages of medical records. He set out A’s family history, some of which we have summarised above. A had lived almost the whole of his life in the United Kingdom, except for a 14-month period in his mid-teens when he had been sent back to Israel. As for his emotional and behavioural development, in 2007 the medical notes set out that he had suffered behavioural difficulties, was bored and angry after his father had left his mother. A was referred to the mental health services in 2011, when his mother was homeless. He was often off school and suffered mental ill-health, poor sleep, anger and upset. In 2012 he had a psychological assessment indicating low mood, increased anxiety, social withdrawal, poor school attendance and behavioural difficulties, caused by having no settled home, an absent father and his physical diagnoses. He had no formal mental disorder but he felt rejected by his father and needed a treatment plan. In March 2015, he had been seen by a psychologist in Israel who assessed his symptoms as consistent with a diagnosis of depressive disorder and adjustment disorder. Doctor Gilberthorpe went on to note the suicide attempt in 2018 after the dismissal of his immigration appeal and that in March 2019, A had been referred to Doctor Chakraborty, a consultant psychiatrist, for assessment of “first episode psychosis” after presenting as “odd” and talking about hearing voices. Doctor Chakraborty had concluded that A did not have a psychotic illness but recommended an assessment for Autism Spectrum Disorder, which A declined. In 2020 A’s GP noted that A considered his mind was “a shambles” and that he was “struggling” and “hopeless”. In April 2020 he was still hearing voices and was reassessed by Doctor Chakraborty, who identified traits of “schizotypal personality disorder” and recommended weekly therapy, which A was attending. In May 2020, A was seen by a Wellbeing Practitioner who reported test scores consistent with moderately severe depression and severe anxiety but no risk of suicide. By October 2020 A had attended 5 out of 8 counselling sessions. In January 2023 the medical notes recorded his failed marriage and his anger but that he had no suicidal thoughts. No mental health or neurodiversity diagnosis had been reached but cognitive behavioural therapy was recommended. In February 2023 the notes recorded he had been angrily hitting walls, had hurt himself and was feeling suicidal.
25. In the examination section, Doctor Gilberthorpe recorded that A was much improved because he had been living in his own separate accommodation for two years, volunteering at a nearby centre and regularly attending a mosque. He had been working on his personal development and wanted to stay in the UK near his family. He wanted to study and earn money, marry, have a family and was positive about his immediate family. He was worried about the loss of two friends through local violence. He did not wish to go back to Israel and was concerned that he would be treated badly there because of racial tension and that he would be persecuted. On examination, he presented well and his mood was good. He was not delusional. The longstanding voices he heard were explained as partially cultural and in keeping with Islamic teachings. As to his mother's report about him, she considered that A needed to be near her and his siblings and that he would face discrimination in Israel. The diagnosis provided was: recurrent depressive disorder, adjustment disorder and social phobia in the past which were currently in remission. This was because he had a robust support network in the UK. He did not have a psychotic disorder or meet the criteria for an ASD diagnosis. As to the full effects of deportation to Israel, the prognosis was that A would likely suffer a relapse of his recurrent depressive and anxiety disorders aggravated by the lack of a support network, in the absence of his father (who lived in a third country) and taking into account the ill health of his grandmother. If he were targeted and discriminated against, the risk of suicide or serious self-harm was highly likely to escalate.
11.3.2024
26. The day before the appeal was due to be heard the Respondent sent an e-mail to the Court and A’s solicitors. It was time stamped 11:57 AM and was written by Ms Amini, a HOPO in the Appeals, Litigation and Administrative Review section (ALAR). It stated: “the Respondent wishes to grant the Appellant Refugee Status and thereby seeks permission to withdraw their decision.”
27. This was followed up by a letter of the same date which stated:
“I am writing with regard [sic] the above named who has/have an outstanding appeal before the First-tier Tribunal (Immigration and Asylum Chamber).
This matter has been reviewed ahead of the scheduled hearing.
The review has considered:
• the grounds of appeal
• the evidence submitted
• any material changes since the date of the decision under appeal
In the light of the review, it has been concluded the decision to refuse is no longer appropriate and the immigration decision is therefore withdrawn. It is anticipated that refugee leave will be granted, subject to any further checks which are required and the appellant providing any documents requested. If leave is not granted a new decision will be made.
It is requested HMCTS accepts the decision as withdrawn and vacates the appeal hearing.”
28. The precise wording of that letter is taken from a template attached to the Respondent’s “Guidance for presenting officers on withdrawing decisions”, issued in December 2021. That Guidance made clear, on page 5, that it was inappropriate to withdraw decisions for tactical reasons and decisions should only be withdrawn “with a view to granting leave.” The HOPO did not have to be certain that leave would be granted but must genuinely be of the view that it might. Examples were given on page 5 of such circumstances. On pages 8 and 9 the Guidance set out the need for approval from an ALAR senior caseworker for those who were not signed off, but provided empowerment for those who were signed off. It contained the following words “decisions to concede (as opposed to decisions to withdraw for reconsideration) must be approved by an ALAR senior caseworker”. Page 12 dealt with the power to make concessions in an appeal and page 13 dealt with withdrawal decisions where the appeal continued in any event and set out rule 17 (2) of the FTT Rules. The Guidance advised HOPO staff to ensure they provided the tribunal with clear reasons why the decision was being withdrawn. It referred to SM (Pakistan) [2014] UKUT 64, a case which dealt with when the Upper Tribunal should continue with appeals despite the Respondent withdrawing the original decision. At the end of the Guidance document was the draft form of letter which was actually used on the 11th of March 2024. It had within it certain paragraphs which could be deleted. One paragraph in particular which could be deleted was the paragraph which stated that the HOPO anticipated that status would be granted, subject to any further checks. This paragraph was not deleted by Ms Amini.
29. At 12:40 on 11.3.2024, the FTT wrote to A’s solicitors, directing them to confirm no later than 4:00 PM that day “whether there are any good reasons why this appeal should not to be treated as withdrawn.” An FTT Legal Officer followed up by email at 13:30, asking A’s solicitors “how you would like to proceed.”
30. At 14:10, A’s solicitors wrote to Ms Amini to relay their client’s concern that the Respondent did not appear to be “guaranteeing” to grant him refugee status and had not accepted that he was also entitled to leave to remain under Article 8. They set out excerpts from the medical evidence of the adverse impact of any further delay on their client’s mental health and “invite[d]” Ms Amini to:
“(a) urgently disclose the internal minute recorded on file on which the SSHD based the decision to withdraw the refusal;
(b) confirm that the SSHD accepts that our client meets the Immigration Rules with respect to Article 8 and also qualifies for Article 8 leave outside of the Rules;
(c) confirm that the SSHD will grant our client refugee status.”
31. That communication, which should have been sent only to the Respondent, was in fact sent also to the Tribunal due to a miscommunication within A’s legal team. A’s solicitors were aware that the withdrawal to grant (WTG) was not a grant in itself, as shown in an internal email from F. Ansari to T. Gulamhussein dated 11.3.2024 timed at 2:12 PM, and they were preparing representations as to why the appeal should continue based on the Respondent’s delay and A’s vulnerable mental health to be uploaded by the FTT’s 4:00 PM deadline “in the event that they don’t concede”. A’s lawyer then emailed the Respondent’s HOPO to arrange a phone call, to clarify “where we both stand”, “considering the very short time we have to try and agree” to the withdrawal of the appeal. This took place at 2:45 PM. During this call, there is no dispute that Ms Amini reassured A’s solicitor that the Respondent was happy to grant refugee status, subject to security checks. As this phone call was going on, the FTT case worker decided to treat the appeal as withdrawn and FTT Judge Mills upheld that decision just after 3:00 PM. Judge Mills referred to the contents of the email from A’s solicitors to Ms Amini but decided to treat the appeal as withdrawn, noting expressly that the Respondent had “indicated an intention to grant refugee status subject to checks” and that there was no reason to think that the Respondent was being “disingenuous”.
The Respondent’s internal documents
32. Separate to the inter parties correspondence, under the duty of candour, disclosure has been provided by the Respondent of the internal communications within the Home Office. The key minute of the decision made on 11.3.2024 is in two forms. The first is short and the second is long. The parties agreed that the second was the correct one. In this Triage Minute Ms Amini was named as the HOPO responsible and Mr Sansom as the Senior Caseworker who had authorised withdrawal of the decision dated 23 October 2022. They wrote as follows:
• “On the evidence submitted on appeal, the appellant’s case is likely to succeed if the case was to progress to appeal hearing because:
• The A evidence bundles made for compelling reading. It was determined that a fair appraisal of the evidence relied on was that it was from a wide cross-section of sources, and reliable. I fully expected the Tribunal to place significant weight on that evidence.
• The first point accepted was a clear and significant change in the country situation and with particular regard to political opposition to the present conflict.
• The RFRL has accepted the A as genuinely, politically active.
• Therefore, a first consideration was whether the type of activity accepted as being carried out by the A is reasonably likely to result in adverse attention - there being no reason to contend the A would not express their political opinion on return but for the fear of harm, HJ Irasfn [sic] point. See below for a selection of relevant sources adduced in evidence. The fair conclusion was that such activity is reasonably likely to incur adverse attention.
• The key consideration that remained is whether the reasonably likely treatment amounts to persecution. The A personal characteristics featuring, as it must, concerning the relative level of harm.
• Often, and so in this particular case, it was considered whether the treatment feared was in fact discrimination and not persecution. The line is not absolutely defined. Situations of discrimination may amount to persecution, either specifically in relation to an individual's personal characteristics, or cumulatively. A definition of persecution can be found in the asylum guidance. That guidance related to the NBA 2022 provisions, but that did not alter the accepted definition of persecution.
• With this definition in mind, the A evidence of treatment that is reasonably likely to be incurred was considered.
• Evidence relating to pre-October 2023 consisted of several country reports from reliable sources. That evidence itself provided substantial evidence of systematic discriminatory practises against Palestinians in Israel: apartheid, forced removal, restrictions of rights and exclusion from society.
• Evidence relating to post-October 2023 consisted of a plethora of sources concerning the treatment of those in opposition to the Israeli activity in the present conflict. I considered that the Tribunal were only likely to arrive at one conclusion: that the nature, content and opinion such as that of the A was reasonably likely to result in treatment (arbitrary arrest, detention, elevated discriminatory administrative processes) that was serious enough to amount to persecution. It was considered that this A had credible medical evidence that elevated his vulnerabilities and thereby, the level of harm amounting to persecution for this particular A was factored accordingly.
• The expert medical report was provided by Dr Gilberthorpe - Consultant Psychiatrist. They provided a qualified and valid, informed opinion. That opinion, to summarise, is that A would be highly vulnerable on return, susceptible to elevated levels of discrimination and isolation. The expert opined that the risk of SSH is real.”
We infer that “SSH” meant serious self-harm, a risk that that Doctor Gilberthorpe had specifically addressed in his report.
33. At 12:31 PM on the 11th of March, Ms Amini emailed the Respondent’s Asylum Secondary Reconsideration Team, provided a copy of the Triage Note and stated: “we have withdrawn the above case and have granted the Appellant refugee leave on the basis of a change in the country situation in Israel.” No one emailed back to say she could not do that because she had no power to do so.
34. At 19:08 that evening Mr Sansom emailed Ms Amini, copying in Ms Mepsted, her mentor. He stated: “on the grant, the basis of WD (which means withdrawal – our addition) is meeting the refugee convention requirements. The leave implemented would be consistent with those rules. POU are not experts on implementation. It falls outside our sphere of knowledge; how and what precise conditions will be attached. The A is not disadvantaged as an allowed appeal would be subject to the same implementation process.” It is clear that Mr Sansom had not been informed that the FTT had decided to treat the appeal as withdrawn, and he thought the hearing was going ahead and was advising Ms Amini of the position to take at that hearing. His advice was to “maintain your position regarding refugee status as per the WD application” and to invite the tribunal to “make a finding in line with that”. He also wrote that “VSO [very significant obstacles] would naturally be made out if we have conceded RC [Refugee Convention].” (Under the Immigration Rules, where a person would face very significant obstacles to reintegration in the country they would be removed to, they may be eligible for a grant of leave to remain on Article 8 private life grounds.) Thus, it is reasonable to infer that, had the appeal hearing gone ahead the Respondent would have conceded that the appeal should be allowed on both Refugee Convention and Article 8 grounds, and the FTT would have determined the appeal accordingly. The Respondent would then have implemented the FTT’s decision by granting A refugee status. (For the Respondent’s duty to implement allowed appeals, see, e.g.: Al-Siri, R (On the Application Of) v Secretary of State for the Home Department [2021] EWCA Civ. 113 and Tomlinson, R (On the Application Of) v Secretary of State for the Home Department [2025] EWCA Civ. 253.
35. There is a plethora of disclosure containing internal communications after the 11th of March 2024. In our judgment these are not determinative of but may be of some relevance to our factual findings about reasoning, rationality, bona fides, motivation and fairness. A key internal document was produced on 13.3.2024: an Information Note provided by Dave Johnson from Appeals Operations to the Minister. Appeals Operations are part of ALAR. In this note reference was made to a story in the national press reciting marketing publicity published by A’s legal team after the appeal was withdrawn, which had caused concern in Government. Mr Johnson recorded that the decision was made “under delegated powers, in line with normal practice” and described the decision as being “to withdraw the original decision and recognise him [the applicant] as a refugee”. It noted that the decision was made by a Senior Caseworker who reviewed the case. Under the heading next steps, it recorded that:
“14) The application will now fall to be granted. The type of grant will be dependent on the basis upon which it was withdrawn, i.e., refugee status or leave under Article 8 private life […] This will be updated once we are able to liaise with the Senior Caseworker.”
36. In other words, the view expressed to the Minister was that a decision had already been taken to grant A leave to remain. In line with normal practice, that decision had been taken by the Senior Caseworker in ALAR.
37. The next day a more full Information Note was provided to the Minister by David Beaumont, Assistant Director, Birmingham and Manchester Presenting Officers’ Units. This was also signed off by senior staff at ALAR. This recorded that A had submitted further evidence of his attendance at and active participation in anti-Israel and pro-Palestinian demonstrations in the UK and his private life established in in the UK in the past nine years, which was considered to make “maintaining the decision […] unsustainable”. The note also summarised the acceptance that A had significant medical issues which together with his political activity and Article 8 considerations made it “very likely” that he would win his appeal and so “it was therefore considered appropriate to exercise delegated powers to withdraw the original decision and recognise him as a refugee.” At paragraph 10 the Minister was advised that “although the withdrawal letter only states an anticipated grant of refugee leave, subject to further checks, there is a recognised legitimate expectation that full refugee status will now be granted.” (our emboldening). Mr Beaumont described the decision to withdraw the original refusal as “finely balanced” but went on to advise that “it was within the remit of the person making the decision, in line with published withdrawal guidance and was within the range of reasonable decisions.” He went on to warn that any attempt to “row back from this decision” would come with significant risks including allegations of Ministerial involvement in individual claims and likely legal challenge.
38. Stopping here, as we shall explain below, we consider that these two internal notes were legally correct. They were sound advice and were a proper, fair and accurate representation and understanding of the events on the 11th of March 2024. Subsequently, the Respondent’s staff in various departments took a different view, ignored the (now disputed) SLE and substituted their own view for that of Ms Amini and Mr Sansom. Later still the Respondent asserted the WTG decision was irrational.
39. On 26.3.2024 Adrian Trigg, Head of the Asylum Operations Secretariat, wrote to senior staff that: “I had understood that under the "withdrawn to grant" process, the triage minute would act in place of the grant minute, and that it would be a case of the secondary casework team implementing the decision, unless ALAR are minded to change their position and/or withdraw the triage minute and replace it.” This email showed an understanding of the WTG process as a distinct type of process. On 27.3.2024 Michael Lloyd, the head of Asylum, Children and Secondary Casework (ACSC) Secretariat, wrote to various other senior staff that: “it would be good to understand whether this was going to be a reconsideration or a withdrawal to grant case as I am not clear…” This latter email identified the difference between WTR and WTG but also showed a lack of understanding of what had been represented to the Court and to A on 11.3.2024.
40. On 2.4.2024, Mark Hendry, the Deputy Chief Case Worker for ACSC, emailed Rachel Bickerton (Head of Asylum Decisions Policy), Michael Lloyd, Muriel Kelly (Secondary Asylum Casework Lead), Adrian Trigg and others stating:
“In response to your question below regarding next steps, I note the ITN states:
The application will now fall to be granted. The type of grant will be dependent on the basis upon which it was withdrawn, i.e., refugee status or leave under Article 8 private life. Colleagues are working at pace to clarify this once we have the full picture of why it was withdrawn. This will be updated once we are able to liaise with the Senior Caseworker.
I have attached an email in which we appear to have informed the reps and court that the decision was pulled specifically with a view to issuing a grant of asylum […]. The 5209 withdrawal form [the Triage Minute] also states:
“I considered that the Tribunal were only likely to arrive at one conclusion: that the nature, content and opinion such as that of the A was reasonably likely to result in treatment (arbitrary arrest, detention, elevated discriminatory administrative processes) that was serious enough to amount to persecution.
Given that the 5209 reasoning for withdrawal focuses on persecutory treatment, and we have also told the legal reps/court that we have withdrawn with a view to a grant refugee status, I have discussed with Zahid [Hussain, Chief Caseworker, for ACSC] and he is content for secondary casework to proceed with implementing the grant of asylum, unless there are any objections.” (We have added no emphasis).
Mr Hendry later ignored this communication.
41. This communication cleared up any misunderstanding of the nature of the representations made to the tribunal. They were WTG, not WTR. On 10.4.2024 Martin Stares from the Country Policy and Information Team (CPIT) asked to see the evidence in the appeal and asked to be allowed to give his view to “help any decision”. He criticised the use of the word “apartheid” in the triage note, which raised “concerns” about the “neutrality/balance of the sources used”. If CPIT should have been shown the evidence so that they could “help” with the decision, in our judgment the time to do so was as ordered by the FTT and before the (now disputed) SLE representations, not afterwards. Indeed, the Presidential Practice statement No. 1 of 2022 requires the respondent to consider the Appellant’s appeal evidence before a hearing date is set, and the Respondent was clearly aware of this, as reflected in her repeated requests for more time to comply. On the same day Adrian Trigg emailed various of the Respondent’s staff and sought the evidence in the appeal and asked for clarity on who would own the “media briefings”.
42. On the 16th of April 2024 Ms Bickerton emailed Dave Johnson and others, including Mr Beaumont, to state:
“I’ve read the ITN and note that in the ‘Next Steps’ section you state to Ministers: “The application will now fall to be granted.”
“Confess I'm slightly lost here - my understanding was the purpose of the application coming back to asylum was that we would consider it. We will need to consider it in detail but based on an initial look at the claim it was (and still is) a very weak claim and the country information is also problematic (although we will seek further input from CPIT on this). So there is a chance that we would want to maintain the refusal.
I'm in a pretty difficult position here on what to advise our operational colleagues. Is there clear guidance that you have received that we must grant? Or are ALAR content for us to explore how we can potentially refuse. I think our hands are massively tied by what's gone before but I'm very uncomfortable with the approach of just granting this.” (Our emboldening).
It is apparent to us that from then on the department headed by Ms Bickerton took the approach that this was a WTR. Or, if it was a WTG, they took on the responsibility of resiling from a SLE representation. We are not clear whether Ms Bickerton fully understood the difference. On the 17th of April 2024, Muriel Kelly, who is a Secondary Asylum Casework Lead, emailed Ms Bickerton and others a link to the Guidance for HOPOs on withdrawing decisions. She highlighted that according to the guidance, a decision could be withdrawn if “new evidence […] leads to the conclusion that […] a grant of leave or status, subject to security and other checks, is now appropriate.” She also explained that there was “general acceptance” that the reference to “any further checks” in the template withdrawal letter in the guidance (which had been served on 11 March 2024) related to security and criminal activity “rather than a review of the merits of A’s asylum claim.” This did not change Ms Bickerton’s approach.
43. As a result, the Respondent did reconsider and on the 23rd of May 2024 issued a decision to refuse asylum and to refuse A’s Article 8 claim, setting out their reasons at length. It was signed off by F McKinlay (a “Technical Specialist” in Secondary Asylum). It is noteworthy that none of the reasons set out in that decision mentioned the (now disputed) SLE representations made to the Tribunal and A on 11.3.2024, nor did the Respondent make any effort to justify her change of position from those representations. The (now disputed) SLE was completely ignored in this decision despite Dave Beaumont stating that a legitimate expectation had arisen. We take into account the reasons given in the May decision but do not set them out at length here for reasons that will become obvious below. In very brief summary, the Respondent’s asylum decision team considered that the making of the claim had been delayed by A from 2015 to 2019 and this had damaged A’s credibility. The decision maker rejected any well-founded fear of persecution, finding that A would face at worst “low-level societal discrimination”, that any adverse state attention he would attract because of his political opinions would not rise to the level of persecution and that state protection would be available against any risk of harm from non-state actors. The team did not consider it would be a disproportionate under Article 8 for A to be removed to Israel, despite the fact that the whole of his immediate family were in the UK (other than his father who was in a third country) and he had been brought up here and lived here for almost all his life, save for 14 months at age 14-15. Nor did they consider that his mental and physical health conditions created a real risk of a breach of Article 3. That decision was promptly withdrawn after the claim form was issued.
44. In accordance with the FTT Rules, on 22 May 2024, the Respondent prepared a Respondent’s bundle in anticipation of A’s appeal to the FTT against the May 2024 refusal decision. We have been provided with a list of the contents of that bundle, which included the country evidence upon which they had made the decision:
• Annex E: Claimant’s previous bundle
• Annex F: CPIT Response: Detection and treatment of low-level pro-Palestinian political oppositionists 0424039
• Annex G: CPIT Response: ISR COIR Palestinian ethnicity political profiling and former membership of Abna El Balad
• Annex H: Internet Sources relied upon in decision letter:
• 441219-ISRAEL-2022-INTERNATIONAL-RELIGIOUS-FREEDOMREPORT.pdf (state.gov)https://www.bbc.co.uk/news/world-middle-east-65374745
• https://www.timesofisrael.com/president-attends-kafr-qasim-memorialapologizes-for-1956-massacre/
• https://www.theguardian.com/world/2024/mar/10/israel-arabs-protesters-demonstration-speak-out
• 2023 Country Reports on Human Rights Practices: Israel, West Bank and Gaza
• https://www.al-monitor.com/originals/2024/02/pressure-piled-israelis-whospeak-palestinians
• https://www.theguardian.com/world/2024/apr/07/tens-of-thousands-ofisraelis-rally-against-netanyahu-as-gaza-war-reaches-six-month-mark
• https://backpainfree.life/what-is-hyper-mobility-syndrome-and-how-will-it-affect-me/
• https://www.tlvmd.com/category/medical-services-in-israel
• https://www.jpost.com/health-and-wellness/ancient-greek-drug-could-savelives- of-covid-patients-israeli-scientist-688730
• https://medlogist.com/en/directions/onkogematologiya-israil/al-amiloidozlecheniye#:~:text=ALamyloidosis%3A%20treatment%20methods%20and%20diagnostics%20in%20Israeli%20clinics,paid%20after%20the%20end%20of%20all%20manipulative%20procedures.
• https://www.gov.il/en/departments/topics/mental_health/gov.il-landing-page
• https://gethelpisrael.com/
• https://www.trade.gov/country-commercial-guides/israel-healthcare
• https://eurohealthobservatory.who.int/publications/i/health-systems-inaction- israel-2022”
45. We were not provided with all of those documents but were provided with a CPIT Response entitled “Israel: Political opposition, sur-place activities, airport procedures on return”, dated 7 May 2024, which appears to be the same document as listed above as Annex F. This consists of excerpts from a range of governmental, United Nations, NGO and media sources compiled by CPIT in response to the following questions from within the Home Office:
• What is the situation for Israeli citizens of Palestinian descent during the current Israel-Hamas conflict?
• Do people have the freedom to express pro-Palestinian views in Israel?
• How are low-level political protesters treated?
• Is social media monitored in Israel to identify political oppositionists?
• What are the airport procedures for returning refused asylum seekers?
46. The document does not include an “assessment” section setting out the Respondent’s conclusion as to whether Israeli citizens of A’s profile are at real risk of serious harm or persecution, and we have not been asked to come to our own conclusion on this question. We find it sufficient to note that the document contains evidence that a reasonable decision-maker could weigh both for and against recognising A as a refugee. This included, for example, parts of (1) an Amnesty International report from February 2022 entitled “Israel’s Apartheid against Palestinians”; (2) a US Department of State (USSD) International Religious Freedom Report from 2022, reporting hate crimes against Palestinian citizens of Israel and the criminalisation and investigation of such crimes by the authorities; (3) a Freedom House report dated February 2024 which stated that Palestinians suffered de-facto discrimination in education, social services, personal security and access to housing and permits and later stated that during protests in May 2021 excessive police violence occurred and vigilante attacks took place on unarmed residents and 200 arrests were made the majority of which were Arabs suggesting likely police discrimination; (4) a USSD Country Report on Human Rights Practices published in April 2024, recording NGOs’ reports that since 7 October 2023: protections against discrimination against minorities had been weakened; the legal protections for freedom of expression had been violated, particularly for Arab/Palestinian citizens of Israel and there had been 350 investigations for speech-related offences; inter-community tensions and hate crimes had increased; the legal definition of “terrorist acts” had been amended and one NGO had raised concerns about the potential for “arbitrary and unjust” applications of the law; (5) numerous sources reporting that protests were widely permitted and did occur, including large protests against the government, although some demonstrations were prohibited and some were broken up by force; (6) the systematic surveillance of online content, censorship of online material and the arrest of several named individuals for their social media posts, followed by detention and release after a few days; (7) restrictions on freedom of movement for Arabs. The document included as annexes two earlier CPIT Responses dated January 2022, one on the independence of the legal system, which supported the independence of the judicial system in defence of civil rights, and one on medical and psychiatric care in Israel, which stated that in 2015 psychiatric care was transferred to insurance-based healthcare providers but contained very little information.
47. Four months later, the decision under review was issued on 23.9.2024. Mark Hendry signed it off. The decision listed the materials considered, which included the appeal bundles, and the country evidence relied on in refusing the claim was detailed in the body of the decision. Whilst accepting a US State Department report from April 2024 which stated that Arab citizens faced de-facto discrimination in education, employment, social services, personal security and access to housing, the Respondent wrote that:
“20. It is accepted that discrimination may exist at a societal level, however this has been considered in the context of your own personal circumstances. You live in Kafr Qasem, a city 20km aways from the Capital Tel Aviv and on one occasion have lived in Tel Aviv. More widely, your town is surrounded by multiple other towns that are largely populated by Israeli nationals of Arab ethnicity. Your extended family, cousins, aunts and uncles also reside close by (AIR 20). You provided details that your extended family members, such as your grandparents, whom you have regular contact with, still reside in Israel. You further state that until recently, your father also lived in Israel (AIR, WS). You have not outlined any problems or issues that your family in Israel have specifically faced that will directly impact you. …
21. … it is considered there is no real risk of harm because you have access to police protection, which by your own account, you have not attempted to approach the police nor sought the protection from the authorities in Israel against any claimed discrimination. You have not tested the protection apparatus in place to support you. Your fear that you will not be provided assistance is considered speculative. External sources also show there are laws in Israel which prevent discrimination and persecution against citizens based on; gender, sexuality, religion, ethnicity, and age (USSD Report, 2023)….
44. … within your first WS (witness statement) you state your cousin was shot and killed by the police. By your own account you have never had an encounter with the authorities and have therefore demonstrated no reason as to why your cousin’s death suggests there is any adverse interest in you on their behalf.”
48. In our judgment these analyses are to be set against the undisputed fact that A had been brought up in in the UK for almost his whole life and had been in Israel for only 14 months in 2014-2015, long before the war, when he was 14/15. In finding that A would not be at risk of serious harm for expressing his political opinions, the Respondent pointed at reports from 2021, 2022 and 2023, at paras. 18, 23, 25 and 27, but these were all pre-war. The Respondent noted at para. 29 that A’s political opinion refusing to recognise the state of Israel was “not unique” but was “also held by a strand of ultra-orthodox Jews within Israel that openly reject Zionism and the state of Israel”. At para. 30 and again at paras. 32-35, the Respondent gave reasons for considering that A’s political activity in the UK and online would not have come to the attention of the Israeli authorities. The Respondent acknowledged instances of Israeli nationals being arrested, imprisoned and later released because of their social media activity but did not directly consider those events in the context of A’s mental health vulnerability. The Respondent set out the legal protection for nationals and the permits which had been issued for Israelis to protest against their own Government, which they had done, including in at least one large protest in which both Jewish and Palestinian citizens had participated. There had been one protest against the conduct of the Gaza War in an Arab Israeli village. The Respondent noted but distinguished several of the pieces of county evidence in A’s appeal bundle on the following grounds: (1) not relevant because it related to Palestinians from Gaza, the West Bank or East Jerusalem and not A’s own village district; (2) outdated; (3) unbalanced and too pro-Palestinian. The Respondent decided A did not have a well-founded fear of persecution in Israel.
49. After giving reasons for refusing A leave on Article 8 and Article 3 (health) grounds, the Respondent then dealt with A’s asserted SLE, based on the 11.3.2024 representations, “that you were entitled to refugee status and would be granted leave to remain subject to security checking”. The reasons for resiling were: (1) it was based on an erroneous assessment (para. 109); (2) there was no reasonable basis for it (para. 110); (3) it was wrong (para. 111); (4) it was contrary to the principle that such a decision must be made on the merits and up to date evidence (para. 112 and 113); (5) it would not be reasonable and proportionate (para. 114); (6) it would be contrary to the public interest in a fair and rules-based system because it was unjustified on the merits (para. 114). No detail supporting these assertions was provided.
Witness evidence
50. The evidence from the Applicant came from his two lawyers. We take that into account, there is no need to summarise it here. Their evidence consists almost entirely of a chronology of the communications between them and the Respondent on the 11th of March 2024, with some explanation of their thoughts and intentions at the time. It is uncontentious. They both confirm that after the conversation with Ms Amini by telephone, they understood that the Respondent would grant their client refugee status unless he failed security checks, and that they communicated this to their client.
51. The evidence from the Respondent came form Alex Sansom, Mark Hendry and Rachel Bickerton. Mr Sansom explained that he was called by Ms Mepsted, who wished to discuss the appeal with a view to withdrawal. Following those discussions and “having reviewed a number of original objective sources relied on” by A, he formed the view that the appeal was likely to be allowed on the basis of the “weight of the evidence” and A’s “specific circumstances.” He authorised the HOPO to withdraw “the appeal” (technically, the decision was to withdraw the refusal decision, which would normally lead to the appeal being treated as withdrawn by the Tribunal). His genuine view was that status “would be granted”, but he caveated that by adding in his witness statement that: “we are not responsible for the ultimate decision, that was a different team”. We note that no such caveat was put on the Triage Note or the representations made on 11.3.2024. Mr Hendry identifies himself as the Deputy Chief Caseworker “for the team responsible for reconsideration” of A’s asylum claim after his appeal was withdrawn. He does not say what his role was in the reconsideration, or identify the source of his factual assertions about how it was conducted. Thus, his evidence was apparently hearsay evidence. He stated that the case was “resubmitted” to Asylum Operations. He asserted that whether asylum was granted was “ultimately a decision for Asylum Operations” and they were not obliged to follow previous recommendations. An unidentified person in his team reviewed the “the country and background information submitted by the Applicant in the decision to withdraw”; this appears to refer to the country evidence submitted by the Applicant and relied on by the Respondent’s officials in the Triage Note. They were “not satisfied” that this evidence was “sufficient” to justify a grant of asylum and decided to conduct a full reconsideration, with the input of CPIT. Whilst he accepted that volatile country situations can make judgments about risks in-country difficult, the review went ahead. He stated that Asylum Operations formed the view that the WTG decision was “clearly wrong” and asserted that A did not have a well-founded fear in Israel and would not be at a real risk of harm. What he did not do was explain, with any detail, why the unknown decision maker took that view. Nor does he explain when and why he departed from the view he expressed to colleagues in his email of 2 April 2024, which was that, having considered the reasoning in the Triage Note and having discussed the claim with Mr Hussain, his superior, they were content for asylum to be granted.
52. At the rolled up hearing listed in this matter before Swift J and UTJ Ruddick on 9 April 2025, the Respondent applied for and was granted an adjournment in order to provide further evidence in the form of a witness statement addressing her reasons for departing from the 11.3.2024 WTG decision. It was noted that none had so far been provided. As a result, Ms Bickerton provided a witness statement. Her summary of the Triage Note explaining the WTG decision was not exactly full or complete (para. 6); she appeared to be referring here to the Short Triage Note, which it is accepted was incorrect. She decided, based on her experience, that the claim appeared to be “flawed” or “at best unusual”, given that “Israel is not a country from which we see a large number of claims for protection”. She stated that: “My understanding is that whilst the HOPO has the authority to withdraw the decision as not sustainable on appeal, it is for the decision-making team to determine whether someone is a refugee, and therefore entitled to refugee status”. In our judgment that understanding was incorrect in fact and in law as we will set out below. Ms Bickerton needed assistance when she became aware of the potential SLE raised by the 11.3.2024 WTG representations. She obtained advice and stated that she relied on it. It was in an email of 17.4.2024 from Dave Johnson which she extracted at para. 15 of her witness statement. She says that he agreed with her position. However, the extract in para. 15 did not distinguish between different withdrawal decisions taken in appeals: (1) WTR and (2) WTG, as shown by para. 21(b) “as David Johnson explained in his email of 17 April 2024 referred to above, that when a decision on a protection claim is withdrawn, it is passed to the appropriate, authorised, decision-maker to make a fresh decision.” This misunderstanding may have been at the root of her decision to review and appears to fit with the Respondent issuing a decision by Asylum Operations on 23.5.2024 which made no reference whatsoever to the WTG decision or to any justification for departing from it. In late April 2022 Ms Bickerton described the HOPO decision as “pretty weak” and she did appear fully to understand that resiling from the decision would open the Respondent up to litigation. She later asserted that HOPOs were not responsible for making asylum decisions and could not bind Asylum Operations. This authority issue is considered below.
The applicable Law
Withdrawal of decisions
53. Under the FTT Rules the Respondent may withdraw a decision and the effect of that on any appeal to the FTT is set out in r.17 which we set out above.
54. There are two types of withdrawal: withdrawal to reconsider (WTR) and withdrawal to grant (WTG). This was not in dispute between the parties. The operation of FTTR r.17 was considered in ZEI v SSHD [2017] UKUT 00292 (IAC), by the Vice President and UTJ Dawson. In summary they decided that Rule 17 envisages that in general an appeal will be treated as withdrawn if the Respondent withdraws the refusal decision. However, the tribunal will continue the appeal despite the withdrawal if a good reason is identified for allowing it to proceed. In such circumstances the appellant should be given the opportunity to show why the appeal should not be treated as withdrawn, and the SSHD needs the opportunity to respond. Examples were given of circumstances which might justify continuing with the appeal to a decision on the substantive merits, although they were not to be taken as exhaustive. The UT noted the SSHD’s policy on withdrawal of decisions and that decisions may be withdrawn expressly for reconsideration based on new evidence (WTR) – see para. 11. At para. 13 the UT noted the guidance it had issued in SM (withdrawal of appealed decision - effect (Pakistan)) [2014] UKUT 64 (IAC) with regard to the application of Rule 17 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“the UT Rules”). Although there are notable differences between the two versions of Rule 17 and the UT noted that SM was not directly on point, it nonetheless considered that the factors identified in SM as relevant to whether the UT would give consent to withdrawal under section 17(2) of the UT Rules were “likely to be applicable” when considering whether there was good reason for the appeal to continue under Rule 17(2) of the FTT Rules.
55. These factors included
“(a) the principle that the Secretary of State should, ordinarily, be the primary decision-maker in the immigration field;
(b) whether the matters potentially in issue are such as to require the Tribunal to give general legal or procedural guidance, including country guidance;
(c) the reasons underlying the Secretary of State’s withdrawal of the appealed decision;
(d) the appeal history, including the timing of the withdrawal; and
(e) the views of the parties.”
56. In paras. 14-18 the UT ruled that the task, when considering whether to continue in the face of a withdrawal, is not to determine whether the SSHD had a “good reason” for withdrawing her decision, but whether there is good reason to continue the appeal. This will include examination of the reason behind the withdrawal and the impact on the appellant. At para. 19, the UT listed various reasons that might be advanced by appellant and gave guidance as to whether they were likely to be “good reason” for an appeal to continue. With regard to the argument that the appeal should proceed because the appellant was likely to succeed, the UT said at para. 19(e)
“This is perhaps the reason most likely to be asserted, and it is not at all easy to assess before the hearing takes place. The appellant's aim in bringing the appeal is essentially fulfilled by the withdrawal. In all ordinary cases, it cannot matter very much whether the decision is withdrawn before an appeal is launched, or while an appeal is pending or because it falls because of the Tribunal's decision. We note that the Secretary of State will, as she is bound to do, take account of any relevant judicial determination in making a new decision, but she is in any event bound to apply the law; and the general duty to follow a determination cannot be said in general to justify the holding of hearings to determine issues except based on a need to set aside a disputed decision.”
57. A lack of dispute between the parties would, by implication, point against there being a good reason for the appeal to continue. Conversely, in SM at para. 77, the UT treated the fact that there was no indication that the respondent had changed her position about the appellant’s entitlement to refugee status as a factor that weighed in favour of continuing the appeal. The difference between a WTR and a WTG will therefore be a relevant factor in whether the Tribunal allows the appeal to continue. Indeed, the FTT Judge who decided to treat the appeal as withdrawn explicitly relied in his decision on the fact that the respondent intended to grant the appellant refugee status.
58. The Respondent’s policy “Withdrawing decisions”, Version 4.0 (09 December 2021) instructs her officials to act in accordance with what Collins J said in Glushkov, R (on the application of) v Secretary of State for Home Department & Anor [2008] EWHC 2290 (Admin) at [18]:
“It is clear beyond doubt, in my view, that the Secretary of State must not use the withdrawal power as a tactical exercise to avoid having to apply for an adjournment. She must only use it if she is genuinely of the view that she might change her mind on reconsidering the material that is put before her. It would be a wrongful exercise, and unfair to an appellant, if she were simply to use this power because she wanted more time to deal with the material that was put forward but had no intention of changing her mind as a result of it.”
The role of Home Office Presenting Officers
59. The role of Presenting Officers in the FTT was considered at length by the Presidents of the Upper Tribunal and First-tier Tribunal (IAC), in Awuah and Others (Wasted Costs Orders – HOPOs – Tribunal Powers) [2017] UKFTT 00555 (IAC), Mr Justice McCloskey and Mr M Clements. They concluded as follows:
“28. […] It is well-established that there is no distinction in law between a government minister and his civil servants. In the present context the minister is the Secretary of State and the civil servants are the HOPOs employed by the Home Office, the organisation which gives effect to the Secretary of State’s decisions and policies and is directly answerable to him. The principle engaged was formulated by the Court of Appeal in Carltona v Commissioners of Works and Others [1943] 2 All ER 560, at 563A, in these terms:
“In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them. To take the example of the present case no doubt there have been thousands of requisitions in this country by individual ministers. It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority, and, if for an important matter he selected an official of such junior standing that he could not be expected competently to perform the work, the minister would have to answer for that in Parliament. The whole system of departmental organisation and administration is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials. If they do not do that, Parliament is the place where complaint must be made against them.”
“This principle has been applied to the immigration context: in R v Secretary of State for the Home Department ex-parte Oladehinde [1990] 2 WLR 1195 at 1218B/D especially, per Lord Donaldson MR.
“29. We are of the opinion that the Carltona principle applies to the relationship of Secretary of State and HOPOs. While this principle is, as Lord Donaldson MR recognised in Oladehinde at 125E, capable of being “negative or confined by express statutory provisions”, or by “clearly necessary implication”, neither is identifiable in the present context. In this context we take cognisance of the analysis in Yeo (supra) that the Secretary of State and HOPO’s are a single entity and may be regarded as a litigant in person. It follows that the Secretary of State – and the Secretary of State alone – is fully responsible for the actions of HOPOs. No separate individual liability or responsibility attaches to such persons. As the Secretary of State and the HOPO are indistinguishable in law it follows that in the language of section 29(6) of the 2007 Act a HOPO does not conduct proceedings on behalf of the Secretary of State. Rather, the HOPO is, in this discrete context, the alter ego of the Secretary of State, one and the same person.”
Legitimate Expectation
60. The birth of the concept of legitimate expectation (LE) is attributed to Lord Denning MR in Schmidt v SSHA [1969] 2 CH 149, an immigration case concerning two US citizens who had been denied further leave to remain in order to continue their studies at the Hubbard College of Scientology. At that time, the focus was on legitimate expectation in relation to procedure (PLE) and the duty to consult. The ruling at p. 170 was as follows:
“…The speeches in Ridge v. Baldwin [1964] A.C. 40 show that an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say...”
61. LE was recognised and applied as a ground for judicial review by the House of Lords in O’Reilly v Mackman [1983] 2 AC 237; and Re Findlay [1985] AC 318. In that year Lord Diplock expressed a wider scope to LE, so that it encompassed legitimate expectation in relation to assurances. So, in Council of Civil Service Unions v Minister for Civil Service [1985] AC 374, Lord Diplock ruled as follows at p. 408:
“Judicial review, now regulated by R.S.C., Ord. 53, provides the means by which judicial control of administrative action is exercised. The subject matter of every judicial review is a decision made by some person (or body of persons) whom I will call the "decision-maker" or else a refusal by him to make a decision.
“To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker, although it may affect him too. It must affect such other person either:
“(a) by altering rights or obligations of that person which are enforceable by or against him in private law; or
“(b) by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn. (I prefer to continue to call the kind of expectation that qualifies a decision for inclusion in class (b) a "legitimate expectation" rather than a "reasonable expectation," in order thereby to indicate that it has consequences to which effect will be given in public law, whereas an expectation or hope that some benefit or advantage would continue to be enjoyed, although it might well be entertained by a "reasonable" man, would not necessarily have such consequences. The recent decision of this House in In re Findlay [1985] A.C. 318 presents an example of the latter kind of expectation. "Reasonable" furthermore bears different meanings according to whether the context in which it is being used is that of private law or of public law. To eliminate confusion it is best avoided in the latter.)”
62. In R. v Inland Revenue Commissioners, Ex p. MFK Underwriting Agents Ltd [1990] 1 W.L.R. 1545, at pages 1568–1569, Bingham LJ described the concept of legitimate expectation in this way:
“So if, in a case involving no breach of statutory duty, the [public authority] makes an agreement or representation from which it cannot withdraw without substantial unfairness to the [citizen] who has relied on it, that may found a successful application for judicial review … If a public authority so conducts itself as to create a legitimate expectation that a certain course will be followed it would often be unfair if the authority were permitted to follow a different course to the detriment of one who entertained the expectation, particularly if he acted on it.”
63. LE developed and by 1993, in the Divisional Court, in R v Jockey Club ex p RAM Racecourses [1993] 1 All ER 225, Stuart-Smith LJ considered whether a report from the Respondent created a legitimate expectation for the applicant that it would be granted 15 race fixtures. He ruled thus:
“For reasons which will appear I propose to consider the substantive issue before that of jurisdiction. The law in relation to legitimate expectation created by a public body was concisely stated by Bingham LJ in the recent case of R v Board of Inland Revenue, ex p MFK Underwriting Agencies Ltd [1990] 1 All ER 91 at 110, [1990] 1 WLR 1545 at 1569–1570. Bingham LJ said:
'In so stating these requirements I do not, I hope, diminish or emasculate the valuable developing doctrine of legitimate expectation. If a public authority so conducts itself as to create a legitimate expectation that a certain course will be followed it would often be unfair if the authority were permitted to follow a different course to the detriment of one who entertained the expectation, particularly if he acted on it. If in private law a body would be in breach of contract in so acting or estopped from so acting a public authority should generally be in no better position. The doctrine of legitimate expectation is rooted in fairness. But fairness is not a one-way street. It imports the notion of equitableness, of fair and open dealing, to which the authority is as much entitled as the citizen.'
“The doctrine has many similarities with the principles of estoppel in private law. In my judgment the matters that the applicant has to prove in this case are these. (1) A clear and unambiguous representation (see per Bingham LJ in Ex p MFK Underwriting Agencies Ltd [1990] 1 All ER 91 at 110, [1990] 1 WLR 1545 at 1569–1570). (2) That since the applicant was not a person to whom any representation was directly made it was within the class of persons who are entitled to rely upon it; or at any rate that it was reasonable for the applicant to rely upon it without more (see A-G of Hong Kong v Ng Yuen Shiu [1983] 2 All ER 346 at 351, [1983] 2 AC 629 at 638). (3) That it did so rely upon it. (4) That it did so to its detriment. While in some cases it is not altogether clear that this is a necessary ingredient, since a public body is entitled to change its policy if it is acting in good faith, it is a necessary ingredient where, as here, an applicant is saying, 'You cannot alter your policy now in my case; it is too late'. (5) That there is no overriding interest arising from their duties and responsibilities for the proper conduct or due encouragement of horse-racing as required in their charter which entitled the Jockey Club to change their policy to the detriment of the applicant.
“The burden of proving the first four points is, in my judgment, upon the applicant. It is the submission on behalf of the Jockey Club that it has failed to satisfy this burden in each respect. As to the fifth requirement, it seems to me that that is a matter for the Jockey Club to establish.”
64. Subsequent authority disavowed the connection with estoppel and rejected the Stuart-Smith LJ’s requirement, numbered (4), of reliance and detriment. However, reliance and detriment remain factors in the fairness decision which the Court has to take when the Respondent changes a decision in the face of a SLE and seeks to justify that change as fair.
65. The leading case on LE then became R v North and East Devon ex p Coughlan [2001] 1 QB 213, in which Woolf MR, Mummery and Sedley LLJ revisited LE and SLE specifically and ruled as follows:
“56. What is still the subject of some controversy is the court's role when a member of the public, as a result of a promise or other conduct, has a legitimate expectation that he will be treated in one way and the public body wishes to treat him or her in a different way. Here the starting point has to be to ask what in the circumstances the member of the public could legitimately expect. In the words of Lord Scarman in In re Findlay [1985] AC 318, 338, "But what was their legitimate expectation?" Where there is a dispute as to this, the dispute has to be determined by the court, as happened in In re Findlay. This can involve a detailed examination of the precise terms of the promise or representation made, the circumstances in which the promise was made and the nature of the statutory or other discretion.
“57. There are at least three possible outcomes, (a) The court may decide that the public authority is only required to bear in mind its previous policy or other representation, giving it the weight it thinks right, but no more, before deciding whether to change course. Here the court is confined to reviewing the decision on Wednesbury grounds (Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223). This has been held to be the effect of changes of policy in cases involving the early release of prisoners: see In re Findlay [1985] AC 318; R v Secretary of State for the Home Department, Ex p Hargreaves [1997] 1 WLR 906. (b) On the other hand the court may decide that the promise or practice induces a legitimate expectation of, for example, being consulted before a particular decision is taken. Here it is uncontentious that the court itself will require the opportunity for consultation to be given unless there is an overriding reason to resile from it (see Attorney General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629) in which case the court will itself judge the adequacy of the reason advanced for the change of policy, taking into account what fairness requires. (c) Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.”
66. Both parties in the case before us accepted that these paragraphs applied to the issues before the Court. SLE arose in R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ. 755, in which at para. 35, Laws LJ ruled that:
“… the notion of a promise or practice of present and future substantive policy risks proving too much. The doctrine of substantive legitimate expectation plainly cannot apply to every case where a public authority operates a policy over an appreciable period. That would expand the doctrine far beyond its proper limits. The establishment of any policy, new or substitute, by a public body is in principle subject to Wednesbury review. But a claim that a substitute policy has been established in breach of a substantive legitimate expectation engages a much more rigorous standard. It will be adjudged, as I have foreshadowed, by the court’s own view of what fairness requires. This is a principal outcome of this court’s decision in Ex p. Coughlan (see in particular paragraphs 74, 78, 81 and 82). It demonstrates the importance of finding the reach of substantive legitimate expectation.”
At para. 68 Sedley LJ stated that:
“A duty to consult before modifying policy may arise from an explicit promise to do so. … But there is no equivalent expectation that policy itself, and with it any substantive benefits it confers, will not change. It follows that the most that the beneficiary of a current policy can legitimately expect in substantive terms is, first, that the policy will be fairly applied or disapplied in his particular case, and secondly that if the policy is altered to his disadvantage, the alteration must not be effected in a way which unfairly frustrates any reliance he has legitimately placed on it.”
67. In Re Finucane’s application [2019] UKSC 7, a 5-judge court considered a judicial review application unrelated to immigration. Lord Kerr gave the lead judgment. He summarised the law in relation to LE thus:
“58. The key factor in Coughlan was, Laws LJ said, the limited number of individuals affected by the promise in question. Significantly, so far as concerns the present appeal, he also said at 1131:
“The more the decision challenged lies in what may inelegantly be called the macro-political field, the less intrusive will be the court’s supervision. More than this: in that field, true abuse of power is less likely to be found, since within it changes of policy, fuelled by broad conceptions of the public interest, may more readily be accepted as taking precedence over the interests of groups which enjoyed expectations generated by an earlier policy.”
“59. Laws LJ considered the evolving case law in this field in Nadarajah v Secretary of State for the Home Department [2005] EWCA Civ. 1363, albeit on an expressly obiter basis—see [67]. In explaining the basis for substantive legitimate expectations, he made these observations at [68]:
“It is said to be grounded in fairness, and no doubt in general terms that is so. I would prefer to express it rather more broadly as a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public. In my judgment this is a legal standard which, although not found in terms in the European Convention on Human Rights, takes its place alongside such rights as fair trial, and no punishment without law. That being so there is every reason to articulate the limits of this requirement—to describe what may count as good reason to depart from it—as we have come to articulate the limits of other constitutional principles overtly found in the European Convention. Accordingly a public body’s promise or practice as to future conduct may only be denied, and thus the standard I have expressed may only be departed from, in circumstances where to do so is the public body’s legal duty, or is otherwise, to use a now familiar vocabulary, a proportionate response (of which the court is the judge, or the last judge) having regard to a legitimate aim pursued by the public body in the public interest. The principle that good administration requires public authorities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances.”
“Laws LJ also returned in [69] to the theme of decisions not to fulfil an undertaking for policy reasons falling within the “macro-political” field. I will consider his remarks on this subject in the next section of this judgment….
“62. From these authorities it can be deduced that where a clear and unambiguous undertaking has been made, the authority giving the undertaking will not be allowed to depart from it unless it is shown that it is fair to do so. The court is the arbiter of fairness in this context. And a matter sounding on the question of fairness is whether the alteration in policy frustrates any reliance which the person or group has placed on it. This is quite different, in my opinion, from saying that it is a prerequisite of a substantive legitimate expectation claim that the person relying on it must show that he or she has suffered a detriment.”
68. We also take into account the earlier decision in R. v Secretary of State for Education and Employment Ex p. Begbie [2000] 1 WLR 1115 (although the paragraph numbering in the judgment is faulty). We guide ourselves when applying the law to the facts in this case by the following approach:
(1) Representations: To establish the asserted SLE the Applicant bears the burden of proving that the Respondent made representations which were clear and unambiguous in relation to the granting or continuation of the claimed substantive benefit or right (which may be conditional or unconditional) which gives rise to the SLE.
(2) Scope of SLE: The Applicant bears the burden of proving the terms and the scope of the asserted SLE arising from the representations.
(3) Class of beneficiaries: The Applicant bears the burden of proving that he/she/it was the person to whom the representations were directly made or was within the class of persons who were entitled to rely upon them or that it was reasonable for the Applicant to rely upon them without more.
(4) Fair Justification: Good administration requires public authorities to be held to their promises/representations. However, the Applicant will not be able to rely on a proven SLE arising from the representations if: (a) the Respondent provides sufficient justification. That may for instance be a clear and obvious mistake made leading to the representations or an overriding interest arising from the duties and responsibilities involved in the proper discharge of their functions or a change in the macro-political situation or policy and (b) the Court considers that the Respondent’s justification for overriding the SLE of the applicant was fair and proportionate in all of the circumstances.
Applying the law to the facts
69. Context When considering the representations made by the Respondent in this case it is important to consider the context in which they were made. The Respondent had made a decision in 2022 to refuse A’s 2019 asylum and human rights claim. That had been appealed to the FTT. The appeal had run its course over 1.5 years. Evidence had been submitted and was complete. The Respondent had been directed by the FTT to consider A’s served evidence of the risk of persecution on return and of his medical vulnerabilities and had been given ample time to do so. Five years had passed since the application for asylum. Following the Hamas terror attack of 7 October 2023, there had been a very significant escalation in the ongoing military conflict between Israel and Hamas in Gaza and between Israel and other groups in Lebanon and elsewhere and changes in the political and security situation within Israel. The Respondent had been given sufficient time to consult CPIT or other departments about these changes. Whether she did so or not was a matter for the Respondent. The representations said to give rise to the SLE were made at the last minute, the day before the appeal hearing, and if A had succeeded at that hearing, the Respondent would have implemented the FTT’s decision by granting him asylum unless he failed security checks. Tribunal proceedings are solemn and serious matters affecting the lives of appellants, costing public money and taking up judicial time. The overriding objective of the FTT is to deal with cases fairly and justly, including by acting efficiently and proportionately and avoiding delay. The parties are required to help the Tribunal further this objective (FTTR r.2). Although Presenting Officers are not bound by professional codes of conduct, they are required by the Home Office policy “Code of conduct for presenting staff” to “act with honesty, integrity, objectivity and impartiality” and to seek to further the overriding objective. In accordance with the Respondent’s policy, withdrawal is not a backdoor route to obtain further time; the appropriate step to take to obtain more time is to apply for an adjournment. Withdrawal is a substantive step in the appeal with real consequences which may or may not lead to the end of the appeal before a decision by the FTT judge, under the FTT Rules, r.17.
70. Authority The Respondent had the power to choose whom she wished to present her in the appeal. She could have chosen to be represented by a barrister or a solicitor advocate, or to act through her HOPO. She chose to act through her HOPO, and it is established in this jurisdiction that she was choosing thereby to act as a litigant in person. The Respondent had in place a published policy relating to withdrawal of decisions in appeals. That policy made it clear that the Respondent’s HOPO had authority either directly, or with assistance of a senior case worker, inter alia to: (1) defend the Respondent’s decision and fight the appeal; (2) concede issues or concede the whole appeal and hence facilitate the Tribunal in making a decision that would lead to a grant of leave; (3) withdraw the original decision for it to be reconsidered, but only if they are “genuinely of the view” that leave might be granted; or (4) withdraw and at the same time make a decision that leave should be granted; or (5) seek an adjournment. Although the guidance does not itself contain the phrases “withdraw to reconsider” or “withdraw to grant”, the evidence before us makes it clear that these terms are commonly used by all parties within the jurisdiction and in our view the distinction is reflected in the template withdrawal letter contained in the guidance, which prompts the HOPO to consider whether to delete the sentences, “It is anticipated that leave /visa/entry clearance will be granted, subject to any further checks that are required and the appellant providing any documents requested. If leave/entry clearance is not granted a new decision will be made.”
71. We reject the submissions made by the Respondent that the HOPO did not have authority to bind the Respondent by her decisions. In our judgment, the internal training, supervision and authority arrangements of the Respondent are not of relevance to the Tribunal or the Applicant in relation to the communications of the HOPO with the Tribunal and the Applicant. Apparent authority binds the Respondent for those communications within the purview of the appeal made by her HOPO. The Respondent appointed the HOPO to the appeal and the HOPO spoke as the Respondent and had apparent authority to do so. This apparent authority is enhanced by the decision in Awuah, holding that a HOPO is, as a matter of law, not the Respondent’s representative but is the Respondent in person. It would be unworkable if, for each communication from a duly appointed official of the Respondent, the Tribunal and the Applicant had to ask whether the HOPO had actual authority to send an email, write a letter or make the submission.
72. We reject the Respondent’s submission to the effect that everyone who works in the immigration field knows that asylum decisions can only be made by department A and not by department B or a HOPO, whether on the advice of a Senior Caseworker or not. This was not the view of A’s solicitors, who arranged a phone call with Ms Amini specifically to ask her to confirm that asylum would be granted and were satisfied by her response. It was not the view of the FTT judge, who thought the A’s concern that he might not be granted asylum was tantamount to a suggestion that the Respondent was being “disingenuous”.
73. The evidence of Mr Hendry and Mr Sansom to the effect that the decision is usually taken by one department (Asylum Ops) is nothing to the point. In so far as they and Ms Bickerton asserted that the decision could only be made by another department we consider that to be incorrect. The Respondent did not take us to any law or policy that justified such a finding. Nor was it the view of the majority of the Respondent’s officials at the time. The Respondent’s internal communications contain numerous occasions on which her officials treated the decision to grant asylum as one that had already been made and either fell to be implemented or would have to be overturned. This includes:
(1) Adrian Trigg’s email of 20 March 2024: “Has it been settled that the case will proceed through the usual “withdrawn to grant” process (and will be for asylum teams to implement the grant of refugee status)….”
(2) Ms Amini’s email of 21 March: “note to implementation team: Asylum DMU/Implementation team must notify POU Birmingham before sending any grant letters out. Further action may be pending that could impact on this decision to grant”;
(3) Adrian Trigg’s email of 26 March 2024: “I had understood that under the “withdrawn to grant” process, the triage minute would act in place of the grant minute, and that it would be a case of the secondary casework team implementing the decision, unless ALAR are minded to change their position and/or withdraw the grant minute and replace it.”
(4) An email from Asylum National Workflow dated 27 March 2024, referring to “recon” having been “done” on 11th March;
(5) The ITN of 13 March 2024, by Dave Johnson, stating that “the application will now fall to be granted” and that the “type of grant will be dependent” on what the Senior Caseworker (Mr Sansom) had to say about the basis for the withdrawal decision;
(6) The ITN of 14 March 2024, by Dave Beaumont, explaining that the decision to withdraw was “within the remit” of the decision-maker (Mr Sansom) and advising of the risk of “[a]ny attempt to row back” from this decision; and
(7) Mark Hendry’s email of 2 April 2024: “I have discussed with Zahid and he is content for secondary casework to proceed with implementing the grant of asylum, unless there are any objections.”
74. Dave Johnson said in an email of 26 March 2024 that “The effect of a withdrawal of a decision is that the application essentially remains outstanding and it is for the decision making area (in this case Asylum) to make a fresh decision in the case”, but on any reading of the Respondent’s disclosure, this was a minority view, albeit it is one that Ms Bickerton came to share. Ms Bickerton asserted in her witness statement of 6 May 2025 that “whilst the HOPO has the authority to withdraw the decision as not sustainable on appeal, it is for the decision-making team to determine whether someone is a refugee.” However, her emails of 16 April 2024 (asking in one “Is there any policy/instruction which allow POs to make decision to grant leave” and explaining in another “my understanding was the purpose of the application coming back to asylum was that we would reconsider it”) indicate that in April 2024, this was not yet clear to her. Mr Sansom said in his witness statement of 17 February 2025 that “neither myself or the HOPO unit are ultimately responsible for the decision whether or not to grant HI asylum. The decision is considered by a different team in a separate part of the Home Office who will decide the claim.” In his email to Ms Amini on the eve of the hearing, however, he explained that “the leave implemented would be consistent with” the basis of the withdrawal decision, in exactly the same process as if A’s appeal had been allowed. Nor did his Triage Note caveat his decision and no one complained when the Triage Note was sent out. In an internal memo he drafted on 19 July 2024, he defended his decision, admitted that he could have “consulted colleagues in Asylum” but explained that this was “Not a measure I take too often as the responsibility to determine if a decision is sustainable at appeal rests with the POU.” If the only effect of withdrawal was to send the matter back to Asylum colleagues for them to make a fresh decision, we do not understand his concern to apologise for not having sought their opinion before withdrawing.
75. Although these internal communications cannot have affected A’s lawyers’ understanding of the extent of a HOPO’s authority to make a decision to grant A asylum, we consider that they do undermine the Respondent’s argument that an informed observer would have known that they had no such authority. The Respondent’s own officials evidently thought that they did.
76. Nor does the Withdrawal Guidance say that the HOPO has no power to make a decision to grant asylum, subject to security checks. It gives the HOPO power to concede all or part of an appeal and to withdraw the decision if they believe leave should be granted. In our judgment, the HOPO and Mr Sansom did have authority: (1) to make a decision on the substantive merits of the appeal, (2) to withdraw the original decision for it to be reviewed later (WTR), (3) to withdraw with the intention of granting leave, subject to security checks (WTG), and (4) to concede the appeal, leading to a determination that the Appellant was entitled to leave which the Respondent would then be required to implement. It may be that what Ms Bickerton was saying was that, after a WTG, the actual grant is implemented by another department and not the HOPO. That appears to be clear. It also appears to be clear that other departments have the power to override the HOPO’s decision and substitute their own. That happened in this case, and A does not ask us to find that they had no authority to do so. But it does not mean that the HOPO had no power to make a decision that asylum should be granted and to tell the Tribunal and the Applicant so. We consider that the Respondent, through her HOPO, had power to make a WTG decision giving rise to a SLE of a grant subject to security checks.
77. The representations. Having set out the context, which was confirmed in the letter of withdrawal which expressly stated that the Respondent had reviewed the evidence in the appeal, on 11.3.2024 the Respondent stated that: “the Respondent wishes to grant the appellant refugee status” and “it has been concluded the decision to refuse is no longer appropriate and the immigration decision is therefore withdrawn. It is anticipated that refugee leave will be granted, subject to any further checks which are required”. Furthermore, in the telephone conversation that day the Respondent’s HOPO told A’s solicitors that the Respondent had an intention to grant refugee status, subject to checks. Objectively, in our judgment, those representations gave rise to a legitimate expectation by A that the Respondent intended to grant asylum to A subject to security checks. It was implied within that expectation that the Respondent did not intend to review the merits of the application again because that route, the WTR route, which was open to the Respondent, had not been chosen. The two routes are different and are well established. Furthermore, that choice was important, in the light of r.17, because withdrawal of the decision does not automatically lead to the withdrawal of the appeal. The FTT has a discretion to continue with the appeal and the Applicant had the right to make submissions that it should. Those submissions would have been more powerful and more likely to succeed if the Respondent had chosen to WTR. The substantial delays, the evidence served by A and unanswered by the Respondent, the fact that all of A’s family already had ILR in the UK and his mental health vulnerability may well have led the judge to refuse to treat the appeal as withdrawn and to go ahead, had WTR been the basis of the withdrawal. We take into account that Mr Beaumont advised the Minister that there was a “recognised legitimate expectation” of a grant of asylum. We take into account FTT Judge Mills’ comments on the Respondent not being “disingenuous” when making those representations. We take into account that Mr Trigg considered that the Triage Note stood in place of a Grant Note. We consider that approach is exactly the point. The Respondent is expected to make representations to the Tribunal and to the appellant, seriously, with bona fides and without a behind the scenes caveat that they may later seek to wriggle out of the representations on the grounds of lack of authority or another staff member taking a different view. Such decisions are taken at a point in time, they are not constantly reviewable or re-openable.
78. To establish the asserted SLE the Applicant bears the burden of proving that the Respondent made representations which were clear and unambiguous in relation to the granting or continuation of the claimed substantive benefit or right (which may be conditional or unconditional) which gives rise to the SLE. We consider that A has discharged the burden of proof.
79. Scope of SLE: The Applicant bears the burden of proving the terms and the scope of the asserted SLE arising from the representations. In our judgment the scope of the SLE was clear and unambiguous. A decision had been taken by the Respondent, through duly appointed staff, that the asylum claim was made out and A was entitled on the substantive merits of the claim to be granted refugee status, subject to security checks. The fact that the grant paperwork would be done by another team inside the Home Office was nothing to the point. The fact that security checks had to be carried out as a condition was likewise nothing to the point; a SLE can be subject to a condition. Whilst the Triage Note does not affect the objective interpretation of the words used, because it was not seen by the Tribunal or A, it sets out the substantive decision tied into the appeal evidence relating to the evaluative assessment of the risk of ill-treatment and A’s fragile mental health.
80. Class of beneficiaries: We consider that the representations were made directly to A and directly affected A so he is the beneficiary of the benefits promised.
81. Fair Justification: the real issue in the application related to whether the Respondent was justified in changing her mind on A’s asylum claim after stating clearly that she would grant it subject to security checks. The Triage Note sets out the reasons why Mr Sansom, a Senior Caseworker, whom we infer had experience of running tribunal appeals, agreed with the view of Ms Mepsted, a mentor and therefore also presumably with experience of running appeals, that the appeal would succeed. They considered that A’s evidence “made for compelling reading”. They considered that a fair appraisal of the evidence was that it was from a wide cross-section of sources, and reliable. The Tribunal was likely to place “significant weight on it”. They considered not only the evidence of country conditions before 7 October 2023, but also of country conditions thereafter. There had been a “clear and significant change in the country situation and particularly with regard to political opposition to the present conflict”. The Respondent had accepted that A was “genuinely, politically active” and the country evidence showed that if he continued to express his political opinions on return to Israel, this would “incur adverse attention”. They carefully considered whether this adverse attention would rise to the level of persecution and recognised that this depended on its effects on this particular appellant, given his personal characteristics. It is accepted that this was the legally correct approach to take. They took into account the unchallenged evidence of Doctor Gilberthorpe and considered that this showed both that the appellant had elevated vulnerabilities that affected the level of harm that should be considered persecutory and that there was a real risk of serious self-harm. They considered that the Tribunal was only likely to arrive at “one conclusion”: that if A expressed his political opinions on return, this was reasonably likely to result in treatment (arbitrary arrest, detention, elevated discriminatory administrative processes) that was serious enough to amount to persecution for him, given his vulnerabilities.
82. The Respondent admitted in submissions that, despite telling the Tribunal and A that they had withdrawn to grant, in fact they later decided to review and not to grant. It was submitted by the Respondent that there was no difference between the Respondent stating that it had decided to WTR or to WTG, because both would lead to review. We consider that submission to be wrong in fact, wrong in law and inappropriate both in the context of the FTT Rules r.17 and the established practice. These are different representations. The former leads to review, the latter leads, subject to conditions (which do not generally include review), to implementation of the decision that A is entitled to a grant of leave. The reason for the difference is not just that the applicant has a right to oppose the withdrawal of the appeal, and the Tribunal has a discretion to continue, and that both should be informed by a reliable indication of the respondent’s intentions. They include the requirements for fair dealing during an appeal and during the application process, and for decisions to be made reasonably expeditiously. We do not consider that review after WTG is impermissible but it needs fair justification. We do not consider that the possibility that another staff member may take a different view is fair justification.
83. The next question is when and why did the Respondent decide to review the merits? We make no finding about whether this was catalysed by the press reports after the events of 11.3.2024, generated by a questionable marketing press release by A’s lawyers. There was some implication that the decision occurred around 16.4.2024 but we make no finding on that. We find as a fact that the factual chronology of internal documents shows that the reason why the decision made on 11.3.2024 that A qualified for asylum was reviewed was that at least one staff member in the Respondent’s organisation (Ms Bickerton) thought that it was “weak”. Ms Bickerton later asserted that she considered that the WTG decision was “flawed”. She asserted that Dave Johnson of ALAR agreed with her for the file to be reviewed by her department. No internal memo was disclosed showing when that decision was taken. We find as a fact that Ms Bickerton appears not to have fully understood the difference between WTR and WTG. We summarised her witness statement above and paras. 15 and 21(b) disclose this. Whilst she was aware that, after a WTR, the Respondent could review the merits, she does not appear to have considered the difference between WTR and WTG. We have ruled on that above. In any event, she herself considered that review was required because the decision was “weak”.
84. The next question is: what was the justification for the change of decision and the frustration of the SLE? The decision of 23.9.2024 sets out the justifications. None were provided in the May 2024 decision. These were all long after the event. They were all different ways of asserting that the SLE decision was wrong, but they set out no detail. The Respondent went further in submissions and asserted that the WTG decision was irrational, yet no grounds for irrationality were put forwards. There was no evidence of a change in circumstances since the WTG decision. The medical evidence of A’s vulnerability was unchallenged. All that was done was that an unnamed person in the Respondent’s Asylum Operations department took a different view of the risk of persecution.
85. In our judgment, the key context was Tribunal proceedings, whereby A had the right to a decision on his asylum decision which would have been taken in the appeal, on 12.3.2024 or soon thereafter. Also, the context was of the Respondent de-railing that appeal by withdrawing the refusal decision and stating that she had reviewed the evidence and, “in light of” that review, she had not only concluded that the refusal decision was no longer appropriate but also intended to grant the appellant refugee status, subject to checks. In our judgment, the Respondent was not entitled simply to review the evidence again and take a different view. The WTG decision was an evaluative judgment based on multifactorial evidence. Mr Beaumont may have been correct to describe the decision to WTG as “finely balanced”. We find that he was right to advise that it “was within the remit of the person making the decision, in line with published withdrawal guidance and was within the range of reasonable decisions.” The Respondent has not put forwards any change of policy nor any macro-political overriding or contrary policy justification. We find that the Respondent has exaggerated what was at first merely a view that the WTG decision was “weak”, to the far higher submission that it was “irrational” without evidencing why.
86. The Respondent asserted that she was under a statutory duty not to grant asylum unless the relevant factors were satisfied and that is right. But it is no justification for resiling from her decision on 11.3.2024 and her promises to A and the resulting SLE. The Respondent’s HOPO and Mr Sansom considered the evidence and decided that, in the appeal, the Appellant was likely to succeed and thereby gain asylum. They decided that the evidence made compelling reading and stated internally that they had performed a fair appraisal of it which led to the conclusion that A faced the risk of persecution in Israel due to his genuine politically activity (which he was entitled to pursue) and the risk of treatment that would cause him serious harm in the light of his medical evidence. The fact that Ms Bickerton considered that decision to be weak does not justify resiling from that SLE. Nor does the fact that an unnamed person in the Asylum Operations took a different view from Mr Sansom, after reading a compilation of similar evidence compiled by CPIT and conducting their own internet research. The Respondent did not seek to take us to anything in that evidence that would justify forming the view that no reasonable decision-maker could have found that there was a real risk that A would suffer treatment in Israel that would rise to the level of persecution for him, given his vulnerabilities. We consider that the attempt to justify resiling from the SLE with the use of the term irrational is not made out.
87. We take into account that the scope of this SLE was person specific, a factor highlighted by the Supreme Court in Re Finucane. We understand that reliance and detriment are not preconditions of SLE, however they are relevant to fairness. We take into account that A relied upon the WTG representations when deciding whether to oppose the ending of the appeal. In doing so A suffered detriment. He could have argued delay and mental health issues, pressed ahead and sought to persuade the Tribunal to continue the appeal, had the Respondent decided to WTR instead of WTG. If he had been unsuccessful in persuading the FTT, he could have appealed to the UT. By relying on WTG and letting the appeal go, A suffered the loss of a judicial conclusion of the appeal because he may well have persuaded an FTT or UT judge to continue the appeal if the Respondent had decided to WTR. If the appeal had gone ahead, the HOPO’s instructions were to concede it on both Refugee Convention and Article 8 grounds, and it is highly likely that the appeal would have been allowed.
88. Applying the test in para. 62 of Re Finucane, taking all the circumstances into account, we do not consider that the justifications put forwards by the Respondent for departing from her SLE establish that it was fair for her to have done so.
Summary regarding whether withdrawals to grant in FTT proceedings can give rise to a SLE that leave will be granted.
89. In appeals before FTT, HOPOs bind the Respondent through representations they make to appellants and the Tribunal in the course of proceedings. Their authority reflects the Carltona principle and is recognised in practice by the Tribunal and the parties. It is also in the interests of the overriding objective of deciding appeals proportionately, efficiently and without delay. It would be unworkable if, for each communication from a HOPO, the Tribunal and appellants had to ask whether the HOPO had the authority to make it.
90. Among the actions a HOPO is empowered to take are withdrawing a refusal decision in order for it to be reconsidered and withdrawing a refusal decision and at the same time deciding that leave will be granted, subject to “any further checks which are required”. The second decision is commonly known as a “withdrawal to grant” or WTG.
91. The established understanding of a decision to withdraw to grant subject to “further checks” is that the further checks are related to criminality and security and do not involve a reconsideration of the claim on its merits.
92. If a HOPO informs the Tribunal and the appellant that a decision has been withdrawn and the expectation is that leave will be granted, subject to “further checks”, this is likely to give rise to a substantive legitimate expectation (SLE) that leave will be granted unless those checks disclose something that would justify not granting leave.
93. If the SSHD subsequently frustrates that SLE by reconsidering the claim on its merits and refusing it for some other reason, this will require justification, in line with the principles that generally apply to the frustration of SLEs by public bodies.
94. The fact that a different official within the Home Office disagrees with the decision to grant leave is unlikely to constitute fair justification.
Analysis of each Ground
95. Ground 1. In our judgment, the representations or promises made by the Respondent to the Tribunal and A on 11.3.2024 gave rise to a substantive legitimate expectation that the Respondent would grant asylum to A, subject to security checks. The withdrawal of the refusal decision and the statements of intention to grant asylum the day before the hearing of the appeal were serious, substantive decisions upon which both the Tribunal and A relied. The law requires public bodies to fulfil their promises. We have carefully considered the justifications put forwards for resiling from that promise which gave rise to A’s SLE and consider that they fail to establish that it was either fair or proportionate for the Respondent to do so.
96. Ground 2. At the hearing before us, Mr Chirico accepted that Ground 2 rose and fell with Ground 1. The Respondent’s delay in deciding A’s claim between 2019 and 2022 and in reviewing her refusal decision between November 2023 and March 2024 may not, taken by themselves, have been disproportionate. However, we consider that the additional delay since March 2024 renders the delay disproportionate, given that, if the Respondent had not resiled from her SLE, the grant of asylum would have been made within a few weeks, unless A had failed security checks.
Conclusion
97. We consider that the application on ground 1 is made out and quash the decision dated 23.9.2025. In its place we will order the Respondent to serve a decision on A, recognising him as a refugee, and to grant him leave to remain in the UK as a refugee. In making this order, we take into account that on 1 September 2025, Mr Biggs informed us that the criminality and security checks referred to in the representations of the 11th of March 2024 had been completed. Although the respondent indicated that she wished to “reserve the right” to conduct additional checks in future, we consider that the SLE was that refugee status would be granted, subject to the completion of security checks. Those checks have recently been completed.
Post-script
98. When we circulated our decision in draft to the parties, we invited them to agree a draft order giving effect to our decision, but no agreement was reached. An order giving effect to our decision will follow.
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