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County council right not to treat man as asylum seeker: High Court

Kent County Council was right not to treat a man as an asylum seeker when he had made fresh representations on his case but the government had yet to decide on these, the High Court has found.

Wishyar Mustafa arrived in the UK in 2015 aged 16 and claimed asylum. This was rejected by the Home Office in 2016 and his appeal was rejected later that year.

In 2017 he submitted further representations stating that they constituted a fresh claim with new evidence, which he believed created a realistic prospect of success.

The Home Office is yet to decide on whether this amounts to a fresh claim for asylum.

On arrival in the UK, Kent provided Mr Mustafa with support under Part III of the Children Act 1989 and after he turned 18 he became a ‘former relevant child’ and was provided with support.

When his appeal was dismissed Kent determined he was no longer entitled to support.

Mr Mustafa argued that he was an asylum seeker by reason of making further representations, and that failing to provide him with support under the Children Act would breach his human rights.

Kent argued that case law has established that ‘asylum-seeker’ does not include a person who has made further submissions which have not yet been accepted under rule 353.

In Mustafa, R (On the Application Of) v Kent County Council [2018] EWHC 2025 (Admin) Judge Markus QC said: “The meaning of ‘asylum-seeker’ in Schedule 3 of NIAA is clearly established by case law.

“It does not include a failed asylum-seeker who has made further submissions which have not yet been accepted by the secretary of state as a fresh claim.

“Support available to failed asylum seekers under domestic legislation…satisfies the UK's minimum obligations to such persons under the Reception Directive…and so it is not necessary to interpret ‘asylum-seeker’ in Schedule 3 of NIAA so as to include someone in the claimant's position.”

Mark Smulian

Lexis Information Hub

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