Asylum seekers post 18

The High Court has backed a local authority's withdrawal of council support for a failed asylum seeker post-18. Carmel Maher, senior solicitor at Invicta Law, explains why.

In The Queen on the application of Wishyar Mustafa (Claimant)  and Kent County Council (Defendant) and the Secretary of State for the Home Department (interested party) [2018] EWHC 2025 (Admin) Kent County Council successfully defended a claim for ongoing support by a formerly looked-after child after his asylum application was refused.

The claimant had entered the UK as an unaccompanied asylum-seeking child and had been looked after by Kent County Council for some years. When he turned 18 he continued to be looked after as a former relevant child until his request for asylum was refused.

Kent County Council then carried out a Human Rights Act assessment and concluded that it was lawful to withdraw the support it had been providing as he was now a failed asylum seeker and no longer entitled to it.

The claimant lodged further submissions for a fresh claim with the Home Office (SSHD), claiming that these submissions once again made him an asylum seeker, as he had a current asylum application under consideration and was therefore once again entitled to support.

Kent County Council, advised by its wholly-owned ABS Invicta Law, rejected this definition of asylum seeker for the purposes of providing support and concluded that the further submissions were ‘manifestly unfounded’. The claimant filed a claim in the High Court, accepting that his further submissions were ‘manifestly unfounded’ but submitted that, nonetheless, he was an asylum seeker.

The claimant’s counsel argued that the UK had not adopted the definition of asylum seeker and asylum application as was intended by the European Council Directive. For Kent, Senior Counsel Stephen Knafler QC argued that the claimant is undoubtedly an “asylum seeker” as defined in the Council Directive, but that was beside the point for two reasons:

• The Directive contains its own definition of “asylum seeker”, whereas Schedule 3 to the Nationality Immigration and Asylum Act 2002 contains its own definition of “asylum seeker” for the purpose of defining eligibility for, among other things, support under the CA 1989.
• The claimant is not bringing any claim against the defendant under the Directive, as a refusal by the defendant to provide the claimant with accommodation and support does not breach any requirement imposed on the defendant by the Directive, given that accommodation and support was available under section 4 of the Immigration and Asylum Act 1999.

The judge dismissed the judicial review and the claimant’s application for permission to appeal to the Court of Appeal. He reinforced the interpretation of the meaning of the term asylum seeker as being that set out in the case of: R (Nigatu) v SSHD [2004] EWHC 1806, that the statutory support scheme draws a distinction between (i) “asylum seekers”; and (ii) those who were but are no longer are asylum-seekers, albeit that they may have sent the SSHD submissions that they wish him to accept as amounting to a new asylum claim and that this is not in breach of European Law.

The judge refused the claimant permission to appeal to the Court of Appeal, although the claimant's solicitors have since made an application for permission to appeal in the Court of Appeal.

The case is significant for local authorities as, in terms of the future asylum cases, a loss could have meant that no matter how many times the SSHD or the courts lawfully rejected an asylum claim, Children’s Services would be required to divert scarce resources towards young adults who were intended to become the responsibility of the SSHD.

Carmel Maher is a solicitor at Invicta Law. She can be contacted on 03000 416993 or This email address is being protected from spambots. You need JavaScript enabled to view it..