1. THE LAW

What is asylum?

If a person is recognised as having refugee status it means he is given protection by the UK authorities and he will not be sent back to the country from which he fled. Like many other countries around the world, the UK has signed a treaty called the 1951 UN Convention Relating to the Status of Refugees. This treaty sets out an agreed legal definition of a refugee (see below) and obliges the countries that have signed the treaty to offer protection to anyone who fits within the definition of a refugee. Since October 2000 there has been another form of protection against removal available in the UK through the Human Rights Act. This Act forbids the UK authorities from breaching a person’s fundamental human rights. If a person can show that to return him to the country from which he fled would breach one of his fundamental human rights, he will be offered protection in the UK. If protection is offered on refugee grounds, the applicant gets what is called Indefinite Leave to Remain (ILR). ILR means the applicant can stay permanently in the UK. If, however, protection from removal is granted on human rights grounds, the applicant usually gets Discretionary Leave to Remain or Humanitarian Protection, usually for a period of three years, after which continuing protection needs are reassessed.

What is the definition of a refugee?

A refugee is defined as a person with a well-founded fear of persecution because of his or her nationality, race or ethnic origin, political opinion, religion or social group and who is unable or unwilling to seek the protection of the authorities of his or her own country. For more information see the UNHCR website. The definition is forward-looking, so even if an asylum-seeker has suffered terrible harm in the past, he will not get asylum if there is no risk of anything happening to him in the future if he is returned to his country.

What does this actually mean?

‘Well-founded fear’ means that there must be a real risk that the person will suffer persecution in the future. It can be difficult to establish to the Home Office that an asylum-seeker’s fear is well founded. Proving a well-founded fear is often a question of finding objective evidence about the country from which the asylum-seeker has fled which suggests that the problems experienced by the asylum-seeker are common, or at least not unknown. ‘Persecution’ can be defined as ‘serious harm’. Normally, persecution means physical injury, torture or a threat to life, but it can be severe discrimination or psychological suffering. The ‘Convention reasons’, as they are known (nationality, race, etc) are important because an asylum-seeker cannot be recognised as a refugee without showing that the persecution of which they have a well-founded fear is linked in some way to one of the five reasons. ‘Social group’ is very difficult to define, but past examples include women in Pakistan, families, tribes and homosexuals but it is not limited to these examples. Finally, an asylum-seeker must also be able to show that he is unable or unwilling to get protection from the authorities in the country from which he has fled.

The Home Office’s Immigration and Nationality Directorate, the branch of the civil service which makes the initial decision in asylum applications, has its own website which contains some very useful information, including the guidelines its own staff use to make decisions. These guidelines are called the Asylum Policy Instructions.

Does an asylum-seeker need to prove all these things to get asylum under the Human Rights Act?

With the exception of the Convention reasons, the answer to this question seems to be ‘yes’. Under the Human Rights Act, the reason for the persecution does not matter, so asylum-seekers who have not been persecuted because of one of the Convention reasons might still be able to stay in the UK, even if they cannot be recognised as ‘refugees’ in the technical sense.

What are the human rights protected by the Human Rights Act?

The human rights protected are basically the same as those contained in the European Convention on Human Rights (ECHR). The Human Rights Act incorporated most of the ECHR into UK law. The important rights protected by the Act are set out in articles 2 to 14. These rights include Article 2, the right to life, and Article 3, the right to be free from torture or inhuman or degrading treatment or punishment.

2. THE ASYLUM PROCESS

How and where can an asylum application be made?

It is not generally possible to enter the UK in a legal manner in order to claim asylum, although the Home Office started a small pilot programme in 2003 to grant asylum to some existing refugees in Africa. Asylum can usually only be claimed from inside the UK.

Asylum claims can and should, wherever possible, be made to an immigration officer as soon an asylum seeker arrives. Once a person has passed through immigration control and is inside the UK, he or she must claim asylum at one of three designated centres. At the time of writing, these are Croydon, near London, Solihull, near Birmingham, and Liverpool. Claims must be made in the morning, before 1pm, unless the asylum seeker is a minor.

It is crucial for an asylum-seeker to claim asylum as soon as possible, preferably upon entry into the UK. If an asylum application is not made as soon as an asylum-seeker enters the UK, they may be denied welfare support and accommodation and it may be detrimental to their claim later on.

What happens after the initial claim for asylum?

There are currently several different ways in which asylum applications are processed. All these ways involve an interview with staff from the Home Office. Often there will be an initial ‘screening interview’ in which the Home Office only takes the personal details of the applicant and gives that person a reference number for their application. The ‘substantive interview’, or ‘asylum interview’, when the applicant gets an opportunity to describe what happened to them and what it is he or she fears, is held some time afterwards. Some applicants are taken to the Oakington Reception Centre, where their application is ‘fast-tracked’. They are held in detention while a decision is made on their application within seven days. Some applicants are detained at Harmondsworth detention centre in London, where claimants will be detained throughout their application and appeal. The entire process usually takes only four to six weeks.

What happens if an asylum-seeker fails to do as the Home Office asks?

Some asylum-seekers risk receiving a ‘non-compliance refusal’ if they fail to act as the Home Office requires, for example by failing to meet the deadline for the return of a Statement of Evidence Form (SEF). A SEF is usually given to asylum-seekers following the making of the initial claim and it asks for the details of what has happened to the asylum seeker and what he or she fears if returned to the country of origin. If an asylum-seeker fails to meet the conditions imposed by the Home Office for Temporary Admission, for example by failing to attend a scheduled interview, then the asylum-seeker could be refused asylum or could even be taken into detention. If an asylum-seeker has been refused asylum (see below) and fails to meet the ten-day time limit for lodging an appeal, the asylum-seeker can be removed from the country.

It is strongly advisable for an asylum-seeker to do everything the Home Office asks. If possible, an asylum-seeker should seek legal advice before trying to take any complicated steps themselves, such as completing a SEF or lodging an appeal. If legal advice cannot be found in the short time available, the asylum-seeker should try to fill in the forms themselves and then write on the forms that they have not had any assistance in filling them in.

How long does it take to get a decision after an application has been made?

The length of time taken to reach decisions is being reduced. In previous years an asylum-seeker would often have to wait for two years or more. The Home Office intends for a decision to be made in two months and this target is often achieved for new applications. For those detained at Oakington, the time taken is less than one week. At Harmondsworth, it takes even less time.

What happens to an asylum-seeker whose application has been refused?

Some asylum-seekers have a right of appeal to the courts. Some do not automatically have a right to an appeal inside the UK, if they come from certain countries listed by the Home Office. At the time of writing those countries are Albania, Bangladesh, Serbia and Montenegro (including Kosovo), Jamaica, Moldova, Sri Lanka, Romania and all EU member states. Claims by citizens of these countries are presumed to be clearly unfounded and they are only entitled to appeal from outside the UK, after they have been removed. In exceptional cases, claimants from the above countries may be permitted an appeal from inside the UK.

At an appeal, an independent adjudicator, who is not employed by the Home Office, hears the appeal. The Home Office intends all appeals to be heard within two months of the initial decision. For those asylum-seekers who have had their decision ‘fast-tracked’ and have been sent to Oakington or Harmondsworth, the appeal is heard around four weeks after the initial decision.

Once this appeal has been heard, the decision usually arrives within two weeks. After that, some asylum-seekers will be able to appeal further and others will not. It is only possible to appeal further, to the Immigration Appeals Tribunal (IAT), on a point of law, and legal advice will be necessary to decide whether it is possible to appeal.

Is asylum easy to get in the UK?

The statistics suggest that asylum is not easy to get in the UK as such, but that at the same time a considerable number of applications are found to be genuine. Estimates differ but it is thought that around 50% of all applicants are granted some sort of status in the UK, although often this is only temporary status for three years or so.

Each individual asylum-seeker has his or her case assessed on its own facts. There is no quota for the acceptance or refusal of applications or appeals.

Asylum statistics for applications and appeals are available from the Home Office website.

How does an asylum-seeker live in the UK while the asylum application is being considered or while he or she is appealing against a refusal?

Most asylum applicants are given what is called ‘Temporary Admission’, which means they are allowed to live freely in the UK on the condition that they live at a certain address and that they report to a certain police station or immigration officer either weekly or monthly. Asylum-seekers must always inform the Home Office if they move address.

Some asylum applicants are detained. This only happens to a relatively small number of applicants. If the Home Office does decide to detain an applicant, it will usually be because they believe that the person will fail to maintain voluntary contact with the Home Office and will disappear. The Home Office tends to believe this of asylum-seekers who use deception, for example by using false identity documents once inside the UK (using false documents to enter the UK should not be penalised in this way) or by failing to declare themselves as asylum-seekers as soon as they have entered the country.

If the Home Office believes that an asylum seeker has not made a claim for asylum as soon as reasonably possible after arrival in the UK, the Home Office can refuse to grant support or accommodation to the applicant. However, support and accommodation must be provided if the applicant will have to live in inhuman or degrading circumstances otherwise. Being homeless does not automatically amount to inhuman or degrading treatment, although one or more days of homelessness may well quickly become so. At the time of writing this Government policy is under legal challenge.

For those asylum-seekers who do receive welfare support from the Government, the scheme is administered by the National Asylum Support Service (NASS). Asylum-seekers can also be allocated accommodation by NASS, almost always somewhere in the north of England or in Scotland. It is almost impossible to secure accommodation in London or the southeast through NASS. Parents and dependent children (under 18) are allocated accommodation together and NASS can usually allocate relatives accommodation in the same town or region. If NASS refuses to offer support to an asylum-seeker or refuses to continue giving support, an asylum-seeker does have a right of appeal against that decision. It is best to contact a Citizen’s Advice Bureau or local Refugee Council centre for the details of how to do this.

How can a genuine asylum seeker maximise his or her chance of success?

Perhaps the best ways a genuine asylum-seeker can ensure he or she is granted asylum are (1) to claim asylum as soon as he or she enters the country, at the place he or she enters the country, and (2) to seek legal advice as soon as possible. There are several organisations and firms of solicitors that can offer free assistance to asylum-seekers, including IAS, providing the asylum-seeker meets certain criteria as set out by the Legal Services Commission (which funds lawyers).

It is very helpful to an application if an asylum-seeker can provide some sort of evidence of the things he or she has suffered or anything that suggests their account is true. Such documents are helpful, but they are not essential for a successful asylum application. It is very important that all asylum-seekers tell the truth when they are claiming asylum, as the Home Office and adjudicators are very good at noticing inconsistencies and have access to a lot of information about the countries from which asylum-seekers come. The Home Office also employs experts in distinguishing real from forged documents.

The above information is no substitute for proper legal advice given by a qualified practitioner and is intended only as a basic outline of the law on asylum and on the asylum process, not as a guide to seeking asylum in the UK.