Evidence of previous persecutionNot everyone who claims asylum will have been persecuted in the past. And as we've said, refugee status determination is a forward-looking process. Asylum seekers do not have to have been persecuted before to be granted asylum. That said, those who have been victims of persecution or other incidents which led to them fleeing their country of origin, or being afraid of returning there, should absolutely provide evidence if available. For example, if their photograph was published in a newspaper, and they can get hold of that newspaper, that should be provided. It is, as always, important to keep in mind the Home Office's cynical attitude. It will often say that a piece of evidence has been fabricated, especially if it comes from a certain country (the Home Office is, for example, very suspicious of fatwas issued in Pakistan). Therefore, if submitting evidence which arrived from abroad, it is important that the claimant is able to explain how exactly they got hold of it, who sent it, why these people would have helped etc. If the evidence was sent by courier, a claimant should also submit the courier envelope. The person who helped may also write a short letter confirming this and explaining why they are helping, and enclosing a copy of their identity document. For some documents, one may also want to have their authenticity confirmed by an "expert".
Medical evidenceMedical evidence may be anything: a GP's letter, hospital records, a psychiatrist's report, a report commenting on the consistency of some scars with torture or other ill treatment. Medical evidence may go to the core of the claim. For example, a claimant having suffered female genital mutilation or being HIV-positive, where that is the basis of their fear of persecution. In the alternative, and perhaps more frequently, the medical expert will comment on the consistency of the claimant's mental health presentation with, for example, PTSD which would have followed past ill treatment, or their physical presentation with torture or other ill treatment. Evidence that a claim suffers from PTSD, on the other hand, can be used not only to confirm past ill treatment, but also to explain, for example, eventual inconsistencies during the interview. On the other hand, this "technique" might have been over-used in the past, resulting in further cynicism with medical evidence from the Home Office. The Home Office guidance says
A GP may also provide a letter detailing, for example, concerns about the health of their patient. Although the relevance or probative value of such letters may vary in relation to the asylum claim, letters from GPs and other medical professionals should be accorded due weight and must not be ignored.One should not slack in a medical report at anytime as it might do more harm than good. [post_title] => Other evidence [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => other-evidence [to_ping] => [pinged] => [post_modified] => 2018-02-19 18:01:51 [post_modified_gmt] => 2018-02-19 18:01:51 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=64906 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 64905 [post_author] => 4938 [post_date] => 2018-02-08 17:10:12 [post_date_gmt] => 2018-02-08 17:10:12 [post_content] => The written statement of the asylum claimant -- that is their account of what has happened to them and what they fear will happen to them should they be returned to their country of origin -- is often the most important, and sometimes the only available, piece of evidence in support of their claim. Before writing a statement, it is fundamental to recall what we are trying to prove:
- That there is a Convention reason, real or imputed. For example, those applying on the basis that they are gay and in danger in their country of origin will need to set out in detail how they came to the realisation that they are gay. Those who are applying on the basis of their political opinion will need to set out in detail what that opinion is, how they came to believe that, why it is important to them etc.
- That they have a well-founded fear. If something happened in the past, whether to them or to someone in the same social group, the asylum claimant will need to explain what happened. The "objective" part of well-founded fear is more dealt with by country of origin information, but the asylum claimant may of course have inside information on what happens to people of his group, and they must set that out too.
- That they fear treatment which amounts to being persecuted. Again, it is important that the asylum claimant explains what they fear will happen to them if returned. Setting out a fear of discrimination, for example a fear of not having access to employment, will not in and of itself constitute persecution.
- That they are unable or unwilling to obtain protection from the state, anywhere in the country. If they previously tried to seek the protection of the state and were not offered it, or indeed if they were persecuted by the state, the claimant should say so. The claimant should also be able to explain why they could not relocate to a different part of the country to escape the fear of persecution.
- Use a chronological order
- Write the statement in the claimant’s own words, even when not perfect grammar
- Add details where the claimant remembers them vividly only
- Ensure there are no inconsistencies within the statement or between the statement and other evidence submitted
- Write details, including dates, names or places, which the claimant might not remember at a later stage
- Have someone else write it
- Use a template
- Rehash a previous statement
Applying for asylum supportAn application for asylum support is made using form ASF1. The completed form must be emailed to:
Asylum support after a refusalThose who have been refused asylum may still receive some asylum support. This is called Section 4 support and claimants will be eligible if they are homeless, destitute and can show that there is a reason why they cannot leave the UK. They will receive short-term housing, help with prescriptions for medicine, dental care for your teeth, eyesight tests and glasses, and a payment card for food and toiletries. [post_title] => Asylum support [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => asylum-support-2 [to_ping] => [pinged] => [post_modified] => 2018-02-20 15:34:25 [post_modified_gmt] => 2018-02-20 15:34:25 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=64903 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 64902 [post_author] => 4938 [post_date] => 2018-02-08 16:59:42 [post_date_gmt] => 2018-02-08 16:59:42 [post_content] => Asylum is one of the very few areas of immigration law where legal aid is still available. At the stage of making an initial claim, an asylum claim will only need to pass the “means assessment” to qualify for legal aid. To pass the "means test", asylum claimants must, generally speaking
- earn a gross income of no more than £2,657 per month; and
- have a disposable income of no more than £733 per month; and
- have a disposable capital of no more than £8,000 - or £3,000 if their case is a controlled work immigration matter described in regulation 8(3).
- Show that there is a “well-founded fear” of persecution, i.e. that there is a sufficient, objective, likelihood of persecution taking place on return
- Show that the state is unable or unwilling to protect the claimant
- Show that the claimant’s account is plausible
Country expert reportIt is sometimes difficult to find evidence about risks to a specific group in a specific country, in which case claimants might want to instruct an expert on the country to write a report. The report would usually assess the future risk but may also be used to corroborate a claimant’s own account, by commenting whether their account of past events is consistent with known conditions in the country. That said, experts should be “objective”. It is advisable to remind experts that they should not comment on the credibility of a claimant being, for example, LGBT, but rather on the credibility of a claimant, if LGBT (which it is not for them to comment on), having been beaten because of being LGBT. As with the remaining evidence, the “objectivity” of country experts will also be assessed. For example, are they “activists” or academic (the latter being judged more “objective” than the former). [post_title] => Evidence on country of origin [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => evidence-country-origin [to_ping] => [pinged] => [post_modified] => 2018-02-19 18:07:54 [post_modified_gmt] => 2018-02-19 18:07:54 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=64882 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 64881 [post_author] => 4938 [post_date] => 2018-02-08 08:54:04 [post_date_gmt] => 2018-02-08 08:54:04 [post_content] => In the UK, the standard of proof for both past and future aspects of well-founded fear is that of "a reasonable degree of likelihood", which is lower than and different to the civil standard of the balance of probabilities. It has also been expressed as "substantial grounds for believing" or "real risk". Importantly, this low standard of proof is “because of what is potentially at stake – the individual’s life or liberty”. In addition, refugees should be given the “benefit of the doubt”. In theory that should make it easier for a claimant to win their case. The reality is that minor inconsistencies are often used by the Home Office to reject an account, and caseworkers must routinely be reminded of the low standard of proof and the benefit of doubt. Once one part of an account is not accepted, the rest of the account is often also rejected. Decision-makers also routinely use their own assumptions about how a person would react to a specific event to find a claimant’s account implausible, or decide that a past “bad” immigration history must mean that a person is a liar and therefore dismiss their entire account. The importance of making sure that there are no inconsistencies to start with, and that any inconsistencies are or at least can be explained, cannot be overestimated. In the same way that claimants should not give answers they are not sure of at the interview, they should not say things they are unsure of in their statement, nor submit false evidence. By claiming asylum, an individual is entering a minefield. The Home Office seems to be trying to catch people out in a lie rather than give them the benefit of the doubt and assess, with a low standard of proof, whether they will be at risk of persecution if returned to their country.
When to submit the evidenceWhenever possible, evidence should be submitted in advance of the substantive interview. This will allow Home Office caseworkers to review it before seeing the claimant, and should make the interview more focused and effective (assuming they do read the evidence in advance, which is often not the case!). There are instances where claimants may decide to submit evidence after the interview. For example, some evidence may not be essential unless a particular matter is raised during the interview, which one may not necessarily want to bring up voluntarily. In those instances, one may decide to wait to see if it is raised at the interview. If it is not, the evidence relating to that aspect will not be raised. If it is, the evidence will be submitted. [add example] Similarly, some claimants have particular difficulties telling their stories and remembering facts, including dates, names, locations etc. In those circumstances, one may decide that it is better not to submit a statement, or submit a very short statement, to lower the chances of the claimant then stating different things at the interview and having their claim refused on the basis of those inconsistencies. That said, it is also important to bear in mind that evidence submitted at a later stage, in particular a statement, might be seen as "convenient" and further undermine a claimant's credibility. As said above, this is a minefield, and every case will need to be assessed individually before deciding on a strategy of when and which evidence to submit. [post_title] => Warning about the Home Office attitude [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => warning-home-office-attitude [to_ping] => [pinged] => [post_modified] => 2018-02-19 17:44:11 [post_modified_gmt] => 2018-02-19 17:44:11 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=64881 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 64880 [post_author] => 4938 [post_date] => 2018-02-08 08:53:21 [post_date_gmt] => 2018-02-08 08:53:21 [post_content] => To succeed in their bid for asylum, claimants must prove that they meet the definition of “refugee” under the 1951 UN Convention on the Status of Refugees. That is:
Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, unwilling to return to it.Being outside of their country of nationality is never an issue, as one can only claim asylum once in the UK (or at the port). What needs to be proven, therefore, is
- That they have a well-founded fear – this is both a “subjective” test (is the claimant telling the truth about what happened to them or about what they fear will happen to them) and an “objective” test (is there a sufficient, objective, likelihood of those fears being realised)?
- That they fear treatment which amounts to being persecuted, where persecution is generally intended as severe violation of basic human rights.
- That they will be persecuted for one of five reasons, referred to as "Convention reasons": race, religion, nationality, membership of a particular social group or political opinion. All the reasons are relatively straightforward but for “membership of a particular social group”. The particular social group must exist independently of the persecution suffered. To constitute a group, the people in it must have an innate shared characteristic, or a shared characteristic that the person cannot or should not be expected to change. Examples of particular social groups, depending on the country context, can be: LGBT, people women, women fearing female genital mutilation, former victims of trafficking etc. It is also important to remember that a Convention reason may be imputed or attributed: that is, the person might not actually have the relevant characteristic, but be thought by their persecutors to have it.
- That they are unable or unwilling to obtain protection from their home government, anywhere in the country. The state must have set up and operate an "effective" system of protection for its citizens.
If an asylum claim is certified, or has been refused and all appeal rights were exhausted, then a claimant may make further submissions. Once further submissions are submitted, the Home Office will need to decide whether they constitute a "fresh claim".
The definition of a fresh claim is found at paragraph 353 of the Immigration Rules. Accordingly,
The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
Once further submissions have been submitted, the Home Office may:
- had not already been considered; and
- taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection. This paragraph does not apply to claims made overseas.
- decide that the new evidence is a fresh claim, and grant refugee status, humanitarian protection or some other type of leave; or
- decide that the new evidence is a fresh claim but the claimant is not in need of protection and refuge leave. If so, a claimant will be given a right of appeal; or
- decide that the new evidence does not constitute a fresh claim and refuse the application without a right of appeal.
Option 1 - permission to appeal is grantedIf permission to appeal is granted, then the claimant will appear before a judge of the Upper Tribunal. If permission to appeal is not granted by the First-Tier Tribunal, then a claimant may renew the application for permission to appeal and send that directly to the Upper Tribunal to decide. If permission to appeal is granted by the Upper Tribunal, again, the claimant will appear before a judge of the Upper Tribunal. The Upper Tribunal judge's first task is to decide whether there was an error of law. If there was none, then the appeal will be refused. If there was an error of law, then the Upper Tribunal may decide to:
- make a new decision on the same day
- list a hearing to make a decision
- or remit the decision back to the First-Tier Tribunal.
Option 2 - permission to appeal is not grantedIf permission to appeal is not granted, then the only possible challenge is by way of judicial review. To get permission to judicially review a decision by the Upper Tribunal, an appellant would need to show that there is an arguable case which has reasonable prospects of success, and that either the appeal raise an important point of principle, or there is some other compelling reason to allow the appeal to proceed.
Option 3 - permission to appeal is granted but Upper Tribunal finds that there is no error of lawAs set out above, even once an appellant has been given permission to appeal to the Upper Tribunal, the first step is for the Upper Tribunal to find whether there was an error of law. If they find that there was none, then an appellant may apply for permission to appeal at the Court of Appeal. Getting permission at this stage is quite difficult, as one will need to show a real chance of success at appeal, or another very strong reason why the appeal should be heard. [post_title] => First-Tier Tribunal and up - grounds of appeal [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => first-tier-tribunal-grounds-appeal [to_ping] => [pinged] => [post_modified] => 2018-02-20 15:26:22 [post_modified_gmt] => 2018-02-20 15:26:22 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=64864 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 64863 [post_author] => 4938 [post_date] => 2018-02-07 17:41:11 [post_date_gmt] => 2018-02-07 17:41:11 [post_content] => An asylum claim may be refused but the claimant may still be granted some leave which is not refugee status. In particular, it is possible to be granted:
- humanitarian protection, when a claimant does not qualify for protection under the Refugee Convention (if they will not be persecuted because of a "Convention reason") but are still in need of international protection. For example, there might be a risk of serious harm if they return to their country of origin. As of February 2018, Libyan nationals are entitled to Humanitarian Protection but not all may be refugees.
- leave under the Immigration Rules, for example on human rights grounds, on the basis that they have a partner in the UK or there would be "very significant difficulties to their reintegration in their country of origin" (under paragraph 276ADE of the Immigration Rules).
- limited leave to remain outside of the rules until the applicant is 17.5 years old. This is typically granted to unaccompanied minors.
- discretionary leave for those who are recognised victims of trafficking and need to stay in the UK, for example because they are assisting the police with inquiries or are seen as particularly vulnerable.
- restricted leave for those who are excluded from the Refugee Convention, for example because they are war criminals, but removing them would breach their rights under Article 3 of the European Convention on Human Rights.
- discretionary leave for those who have a very serious medical condition which could not be treated in their country of origin.
- Claimants should be reminded to listen carefully to the questions asked and answer to that question. Answering to a different question might lead to inconsistencies.
- It is OK for claimants to ask for a question to be repeated or rephrased. Interviewers may sometimes ask questions that the claimant does not understand. It is much preferable to ask for it to be repeated than to guess what was asked and answer wrongly.
- It is also OK for claimants to correct the interviewer. For example, if an Indian claimant is asked about what family they have in Pakistan, it is perfectly fine for them to say "I think you mean India?".
- If a claimant does not have the answer to a question, or does not remember, they should say so rather than inventing an answer. Dates are often tricky. It is preferable to say "I remember it was before I had my first child, and I remember it was during the summer because I wore a T-shirt" than saying "It was 15 August 1998" when that date is inaccurate. Inaccurate dates, even when close to the correct ones, will be used to refuse a claim.
The Home Office is required to allow claimants, with some exceptions, to have their asylum interviews audio recorded on request. The exceptions are those entitled to publicly funded legal representation at interview, or the resources to fund their own legal representation. Interviews should not normally be recorded where a legal representative is present, or where claimants with self-funded legal representation choose not to have their legal representative present.Claimants should give the Home Office at least 24 hours' notice of their request (or three days if in detention). In practice, my recent experience is that most interviews are audio recorded even where claimants are represented and indeed have their legal representatives with them at the interview. Both the written records and audio records are given to the claimant at the end of the interview. It is very important for claimants and their legal representatives to review the written records shortly after the interview. They will usually have five working days to make any comments on the records (for example, if some answers were not transcribed accurately or the claimant made a mistake that they want to rectify). Again, it is my experience that, if the Home Office is minded to refuse, they will do so by relying on mistakes which might have been rectified. The fact that they were rectified earlier on boosts the credibility of the claimant at the appeal stage. In those five working days, the claimant and their legal representatives can also submit any new evidence they may have in support of the claim. If inconsistencies have arisen during the interview, and those inconsistencies may be "corrected" by submitting further evidence, that should be encouraged. [post_title] => After the substantive interview [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => after-the-substantive-interview [to_ping] => [pinged] => [post_modified] => 2018-02-19 17:07:16 [post_modified_gmt] => 2018-02-19 17:07:16 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=64830 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 64829 [post_author] => 4938 [post_date] => 2018-02-07 09:28:42 [post_date_gmt] => 2018-02-07 09:28:42 [post_content] => The "substantive interview" is where the Home Office will assess the credibility of the claimant’s account, and whether they should be granted asylum. This will be done by asking questions about what happened to the claimant in the past, when, where, with whom etc. Interviewers will generally ask questions about documents which were submitted before, to check that what the claimant says is consistent with the documents. When an inconsistency arises, interviewers should give the claimant an opportunity to explain it. In practice, inconsistencies, even when explained, will often still be used to refuse claims. The interview is usually face to face. Some people are now invited to have their interview via video conference. That means that the asylum seeker will be in a room with their representative and, if needed, an interpreter, facing a screen. Interviews may last anywhere between one hour and six to seven hours (occasionally even longer), although I would say the average length is about long hours. The interviewer will often schedule breaks every one or two hours and it is also possible for the claimant to ask for breaks if needed.
Legal representative at the interviewLegal representatives are allowed to attend the interview but they may not interrupt unless to draw attention to a serious misunderstanding between their client and the interviewer. At the beginning of the interview, the interviewer will read the following declaration to the legal representative
Please do not intervene during the course of the interview unless it is necessary to avoid a significant misunderstanding. If you wish to make any comments you will have the opportunity to do so at the end of the interview.Interventions by the legal representative may, therefore, be justified on this basis. Apart from that, legal representatives will usually not speak until the very end, when they will have an opportunity to comment on the interview, whether the conduct of it or some specific questions which were asked or not asked. Despite the apparent limited role of the legal representative at the interview, it is crucial in that they can take records and then check them against the Home Office records (see next unit). In addition, the mere presence of a legal representative may well act as a deterrent to the interviewer asking inappropriate questions or otherwise conducting themselves inappropriately. Whenever possible, the legal representative should attend.