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Home Office guidance on asylum claims by EU nationals

Home Office guidance on asylum claims by EU nationals

The Home Office has updated its guidance on asylum claims by EU nationals (Asylum Policy Instruction EU/EEA Asylum Claims) to reflect changes to the Immigration Rules taking effect on 21 November 2015. These changes introduced a presumption that asylum claims by EU nationals are inadmissible and will not be considered unless exceptional circumstances are shown.

The first thing to point out is that there is a very small number of such claims and they were already all being declared clearly unfounded, meaning any appeal would be out of country, so this whole policy is a bit unreal. The latest immigration statistics show that in 2014 there were 223 asylum claims by EU nationals and their dependents, 141 of which were by Poles (taken from asylum data table 2).

The guidance says that an asylum claim by an EU national should be declared inadmissible “as soon as it is made” unless at the time it is made reasons are given for why exceptional circumstances apply. Those exceptional circumstances may include:

  • the member state of which the claimant is a national has derogated from the ECHR in accordance with Article 15 of that Convention – Article 15 allows states to derogate from certain rights guaranteed by the Convention in time of war or other public emergency threatening the life of the nation
  • the procedure in Article 7(1) of the Treaty on European Union (TEU) has been initiated, and the Council or, where appropriate, the European Council, has yet to make a decision as required in respect of the member state
  • the Council has adopted a decision in accordance with Article 7(1) of the TEU in respect of the member state, or the European Council has adopted a decision in accordance with Article 7(2) of that Treaty in respect of the member state

The guidance goes on to say that:

EU countries respect the rule of law, are bound by and abide by their obligations under the ECHR and provide sufficiency of protection, and redress where it is needed, to it citizens.

Even where a claim is not declared inadmissible and exceptional circumstances are shown, the case will still be presumed to be “clearly unfounded” and be handled by that team within the Home Office. Any appeal against refusal would have to be pursued from abroad.

Interestingly, part of section 6.6 on granting asylum to EU nationals has been redacted, as have several other parts of the policy.

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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