When a person enters the UK to seek protection from persecution, they enter a tough legal process to determine their right to stay. To get a sense of what an asylum interview can be like, watch our short video. Here our lawyers have cut through the complexity to help make things a little clearer.
Please note that the information below is only intended to be a general guide. Asylum law and processes are constantly changing. The following information should not be relied upon as an authoritative statement of the law or as a source of legal advice. If you think you have questions about the legal process, please contact us before making any decision about what to do.
What is asylum?
If someone is at risk of being persecuted in their own country, they may go abroad and ask for asylum in another country. Granting ‘asylum’ means giving someone permission to remain in another country because of that risk of persecution.
In legal terms, a person who has asked for asylum in the UK and is waiting for a decision on that claim is called an asylum seeker. Someone who has received a positive decision on his or her asylum claim is called a refugee.
Although some asylum seekers might enter the UK illegally, once they have applied for asylum they are no longer ‘illegal’. Anyone seeking protection is entitled to stay in the UK while awaiting a decision on their asylum claim.
The right to claim asylum is in international law. Governments are obliged to provide protection to people who meet the criteria for asylum. The UK has signed these international laws and they are part of UK legislation.
Types of application
Three pieces of international law can be used to support an asylum application in the UK.
- Under the 1951 Geneva Convention Relating to the Status of Refugees, asylum seekers must show that they have a well-founded fear of persecution due to their race, religion, nationality, political opinion or membership of a particular social group, and are unable or unwilling to seek protection from the authorities in their own country. The definition is forward-looking, so even if an asylum seeker has suffered terrible harm in the past, they will not get asylum if there is no risk of anything happening to them in the future. It is not always necessary to have been persecuted in the past for a future risk to exist – sometimes events that occur after a person’s arrival in the UK can give rise to a future risk of persecution in their own country (for example, due to changes of circumstances in the person’s country of origin since they left). These are known as ‘sur place’ claims.
- It is also possible for a person to apply to remain in the UK if removing them would be in breach of their rights laid down in the 1950 European Convention on Human Rights (ECHR). This is often called a human rights claim. The ECHR contains a number of ‘Articles’ of protected rights. Most human rights claims are based on Article 3 (prohibition on torture and inhuman or degrading treatment) or Article 8 (right to respect for family life and private life). A human rights claim can be part of an asylum claim under the Refugee Convention, or it can stand alone.
- The UK is also party to the European Union Asylum Qualification Directive. This has been adopted by EU member states as part of the process of establishing a Common European Asylum System. All asylum or human rights claims must be considered in light of the provisions of the Qualification Directive. It is intended to ensure that common criteria for identifying people in need of international protection are applied, and that a minimum level of benefits is available for those granted status in EU member states.
Decisions on asylum and human rights claims made in the UK are made by the UK Border Agency, which is an agency of the Home Office (a UK government department).
It is not legally possible to apply for asylum from outside the UK. Asylum seekers are protected from removal once they have made an asylum claim and are waiting for a decision.
Asylum claims can and should, wherever possible, be made to an immigration officer as soon as an asylum seeker arrives in the UK. Once a person has passed through immigration control and is inside the UK, he or she must claim asylum at the offices of the UK Border Agency in Croydon (in south London). If an asylum application is not made as soon as an asylum seeker enters the UK, the person may be denied welfare support and accommodation. The delay may also harm their claim at a later date. Asylum applicants should find a lawyer to represent them as soon as possible to help them during the asylum application process.
Asylum seekers have been convicted for using false passports or travel documents (for example, to leave their country of origin). Their conviction then adversely affects their credibility when their asylum claim is considered.
In 2007, the Home Office introduced a new process for dealing with asylum claims, called the New Asylum Model (NAM). Each asylum application is assigned to a specific member of UK Border Agency staff (known as a ‘case owner’) who will be responsible for the case, and for all decisions taken on it, from the time the application is made until the person is granted permission to stay or is removed from the UK. Decision-making is much faster than it has been in the past (usually within a few weeks).
There will be an initial ‘screening interview’ in which the UK Border Agency takes the personal details of the applicant and their journey to the UK, checks if they have claimed asylum in the UK or Europe before, and gives them a reference number for their application.
A few days later the applicant will be asked to attend a ‘first reporting event’ where they will meet the case owner who will deal with their case.
The ‘substantive interview’, or ‘asylum interview’, is held within the next couple of weeks. This is when the applicant gets an opportunity to describe to the case owner what has happened to them and what it is they fear in their own country.
Asylum seekers may be asked to attend regular reporting meetings with local UK Border Agency staff at all stages of the asylum process. The UK Border Agency also uses telephone reporting systems and electronic tagging of asylum seekers.
After the screening interview, some applicants are taken to Harmondsworth Immigration Removal Centre or Yarl’s Wood Immigration Removal Centre, where their application is ‘fast-tracked’. They are held in detention while a decision is made on their application within seven days. In these cases the entire decision-making and appeals process can be completed within nine days.
How decisions are made
UK Border Agency case owners must consider the applicant’s account of persecution and any supporting evidence they offer in order to decide whether it meets the criteria for granting asylum. For example, under the 1951 Geneva Convention, it is necessary to show that
- the harmful treatment the person fears amounts to ‘persecution’
- the person’s fear of such persecution is ‘well-founded’
- the persecution is for one of the five reasons specified in the Convention
- the person could not find protection in another part of their country
- the person would be at risk of experiencing such persecution in the future if they were returned
In addition to the evidence submitted by the asylum applicant, case owners take into account other information such as sources of information on the political and human rights situation in the person’s country of origin, and previous legal decisions about asylum that have been made in UK courts (case law).
Decisions often depend on whether the case owner finds the person’s account to be believable. There are a number of ways that an applicant’s credibility may be damaged, for example, if they have given inaccurate or inconsistent information. Case owners must also take the applicant’s behaviour into account. For example, their claim may be harmed if they delayed claiming asylum without good reason, or if they have been convicted of a criminal offence such as using false travel documentation, or if they did not claim asylum in the first safe country they reached after leaving their own country (known as a ‘safe third country’).
Decisions taken by case owners must be compatible with the guidance in the Home Office’s published Asylum Policy Instructions, which are available from the UK Border Agency’s website. The API on gender issues in the asylum claim states that the 1951 Geneva Convention Relating to the Status of Refugees has historically been interpreted through a framework of male experiences. It gives guidance on both evidential and procedural issues to which decision-makers should be sensitive when they are assessing women’s asylum claims. Consonant has produced useful resources about the Home Office gender guidance.
Most asylum-seekers have a right of appeal to the First Tier Tribunal if their claim is refused. They are allowed to remain in the UK while they wait for their appeal. However, some applicants do not automatically have a right to an appeal inside the UK, for example if they come from the countries that are presumed by the Home Office to produce clearly unfounded asylum claims, or if they have already claimed asylum in a safe third country. These applicants are usually only allowed to make an appeal after they have been removed from the UK.
The UK Border Agency aims for all appeals to be heard within two months of the initial decision, although these timescales are much shorter for cases that have been ‘fast-tracked’ in detention centres.
An independent Immigration Judge, who is not employed by the Home Office, hears the appeal. The deadlines for making an appeal application after a refusal decision are very short. Asylum seekers are only entitled to publicly funded legal representation (legal aid) to pursue their appeal if it has a 50 per cent or more chance of success.
Once the appeal has been heard, the decision usually arrives within two weeks. It is only possible to make a further appeal on a point of law. Legal advice will be necessary to decide whether it is possible to appeal further, and the timescale for making an application for a reconsideration is very short (usually five working days).
If the claim is allowed
If the claim is allowed on the grounds of the 1951 Geneva Convention, either by the UK Border Agency or at appeal, the applicant gets Refugee Status, which lasts for five years. The UK Border Agency can review this grant of status during this time if there is good reason, such as if the circumstances in the country of origin have changed. After five years, if it is still unsafe for the person to return to their own country, they will be able to apply for a legal status known as Indefinite Leave to Remain (ILR) in the UK.
If protection is granted on human rights grounds, the applicant usually gets Humanitarian Protection. This status is also initially granted for five years and subject to review.
Once a person is granted protection in the UK, they have the right to work, claim benefits and be re-united with their spouse and children (under 18). However, a child under the age of 18 who is recognised as a refugee does not have the same right to be joined by their parents or brothers/sisters.
In some cases, a more limited form of status called Discretionary Leave will be granted. It is initially granted for up to three years, after which time the person can apply for an extension if they still cannot be removed. After six years they can apply for Indefinite Leave to Remain (ILR). Discretionary Leave is usually used in cases involving children under 18 who cannot be returned to their country of origin. It is Home Office policy to grant such children Discretionary Leave until they are 17½ years old, even if their asylum claim has been refused.
If the claim is refused
In Consonant’s experience many asylum seekers go through the asylum process without adequate legal advice, or at a considerable speed in fast-track cases. It may not have been possible to gather all the evidence needed.
Courts have long recognised and protected the right to make a second asylum claim (also known as a “fresh claim”) if new evidence comes to light. The Home Office also recognises that there may be cases where a second asylum claim will be made in good faith. In Consonant’s experience, a number of second claims have been successful when new evidence is presented or because there has been a change in the law as a result of previous court decisions.
If there is no new evidence or change of circumstances, refused asylum seekers are expected to make arrangements for leaving the UK. The ‘Choices’ programme at Refugee Action runs voluntary returns programmes funded by the Home Office.
If a person does not leave the UK after his or her claim has been refused, the UK Border Agency may arrange an enforced return.
Asylum seekers are not allowed to work unless they have been waiting for a decision on their case for more than a year through no fault of their own, in which case they can apply to the UK Border Agency for permission to work.
Asylum seekers who need financial support and/or accommodation while they are waiting for a decision on their claim can apply to the UK Border Agency to provide this. Accommodation is provided on a no-choice basis outside of London and the South-East. Financial support alone can be provided if the person does not need accommodation. Asylum seekers do not continue to receive this support after their application has been refused and their appeal rights exhausted.
Asylum seekers whose applications have been refused are able to apply for a basic support package known as “hard case” or “Section 4” support if their circumstances meet the narrow eligibility criteria. The support consists of accommodation and board in the form of an ‘Azure card’ which can only be used in specific supermarkets. In order to receive this support the applicant must agree to return to their country of origin.
If an asylum seeker has a serious health problem or disability, it may be possible to ask the department of social services at the local council to provide accommodation and financial support instead.