An asylum applicant must be present in the United Kingdom in order to be granted permission to stay as a refugee
The Court of Appeal in the case of AB v Secretary of State for the Home Department  EWCA Civ 383 had to decide whether under the immigration rules in order for a person to be granted refugee status, that person had to be present in the country at the time that a decision was to be made. The Court of Appeal found that this was a requirement.
The case concerned a man anonymised as AB who claimed that he was the leader of a political movement in his country of nationality. He entered the UK on a visitor’s visa in May 2006 and applied for asylum. His immigration history is complex but the main point to note is that on 3 August 2012, the Home Office undertook to remake a decision on his asylum application. In the meantime, AB travelled abroad to another country using a passport issued to him by an unnamed friendly state without informing the Home Office of his whereabouts.
The Home Office enquired about his whereabouts and when his solicitors were unable to confirm this, wrote to him on 21 September 2012 stating that the Home Office would not make a decision on his asylum claim as he was not in the UK. AB issued a judicial review claim against the Home Office refusal to make a decision on his asylum claim.
The Court of Appeal in finding that it was a requirement under the immigration rules for a person to be present in the UK in order to be granted refugee status relied on the following reasons:
- The wording of the immigration rules strongly suggested that a person had to be in the UK in order to obtain refugee status;
- Nothing in the Refugee Convention created an obligation on the UK to provide protection to refugees outside its territory. It has long been a principle of refugee law that countries do not need to admit refugees onto their territory but once a refugee had entered the territory they are prohibited from removing that refugee to a state where they would be in danger;
- European law also did not create any obligations which required that refugee protection be given to people outside the territory of the UK.
The Court did find that the Home Office have a power to grant refugee status to people outside the immigration rules which the Home Office would have to consider if a person raises arguments as to why they should be granted refugee status despite falling foul of the rule.