Claiming asylum in the UK
This section is intended to provide useful background for visitors supporting people in detention at any stage of the asylum process.
Since the pandemic there has been an increase in the number of people in detention who are asylum seekers and refugees. Previously asylum seekers made up around 50% of the detained population. Since 2021 this has been closer to 80% and above. This is because of the government response to the increase in people arriving via the channel following Brexit and diminishing safe and regular routes by which to claim asylum. Whilst, in 2023, detention was less commonly used for people arriving via the channel, of those released from detention on bail (75% of the detained population), this was usually due to an asylum application being raised.
As of 2000, a proportion of people who made asylum claims were detained by the Home Office with the intention of determining their application quickly and removing them more easily if their claim is refused. In practice, these accelerated procedures never functioned fairly or particularly quickly. Legal challenges to the Detained Fast Track asylum process resulted in it being found to be operating unlawfully in 2015. Asylum seekers can now still be detained under the new Detained Asylum Casework process, but not solely on the basis of having lodged an asylum claim.
The standard asylum procedure
An application for asylum in the UK can be made at a port, in-country, or from another country via a UNHCR scheme. In practice, people make applications for asylum under many different circumstances, including:
● On arrival in the UK at an airport or port to the UK Border Force
● ‘In country’ at the Asylum Intake Unit at the Home Office in Croydon, south London.
● After being apprehended in an immigration raid
● In prison or in a police station, while being held on a criminal matter
● While detained pending removal or deportation from the UK
The Home Office requires asylum applications to be made ‘as soon as is reasonably practicable’ after arrival in the UK. It is therefore important that anyone wanting to claim asylum gets legal advice straight away.
A person may have some form of leave to enter or be present in the UK when they make their asylum claim, may have had leave but it has expired, or may never have had leave to enter or stay in the UK. Asylum claims which are made months or years after entry to the UK, or after a person is discovered living or working in the UK without leave, run the risk of being viewed by the Home Office as ‘late and opportunistic claims’. However, changes in the situation in the country of origin which occur after a person has arrived in the UK have the potential to create a risk on their return, and may give rise to a ‘sur place’ claim for protection.
After an initial screening interview, at which basic information is taken from the applicant, the Home Office decides how the asylum application will be dealt with. The routine procedure for adults is dispersal within the UK for a regional immigration office to handle the claim. Unaccompanied children are currently referred to local authorities for care while their asylum claim is being determined. The Home Office is also seeking to deport people to “safe” third countries for their claims to be processed although the prospect of this is uncertain at present.
During the decision-making process, asylum applicants must generally report at regular intervals to a Home Office reporting centre or a police station. Failure to report can lead to detention and may mean that accommodation and support is discontinued.
Other key asylum facts
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Recent changes to asylum law
The Nationality and Borders Act 2022: On 28 April 2022, the Nationality and Borders Act 2022 (‘NABA 2022’) entered into force and introduced significant changes to immigration and asylum law. The Act applies to asylum claims made on or after 28 June 2022. Given the substantial changes it introduced, legal challenges to NABA 2022 should be expected. It also remains unclear as to how the government intends to operate much of its provisions.
NABA 2022 enables the Home Office to treat asylum claims as “inadmissible” if the person seeking asylum has a connection to a safe third country. This means that the Home Office will not substantively consider their asylum claim with a view to granting international protection in the UK. The intention is instead for the safe third country to determine the asylum claim. In practice, this is complex and difficult to implement without agreements with the country in question.
A “connection to a safe third country includes the following circumstances[1]:
(i) whether the safe third country has granted an asylum-seeker international protection and they are not at risk of persecution there;
(ii) where they have claimed asylum in a safe third country and the claim remains undecided or refused;
(iii) where they were present and eligible to make an asylum claim in the safe third country but did not despite it being reasonable for them to have done so;
(iv) when it would have been reasonable for them to have claimed asylum in the safe third country in light of their personal circumstances.
It is also important to note the following:
It does not matter how briefly a person seeking asylum was present in the safe third country; they may have passed through or have had family there.
The safe third country the Home Office proposes to remove the asylum seeker to does not have to be the same one they have a connection to (e.g. Rwanda).
Whether a country is “safe”[2] depends on whether the Home Office is satisfied that the asylum-seeker will not face persecution there and that they will not be sent to another state from the safe third country unless this is in accordance with the Refugee Convention, does not breach Article 3 of the ECHR (freedom from torture or inhuman or degrading treatment) and they can claim asylum in accordance with the Refugee Convention there. The Supreme Court found in the Rwanda litigation[3] that Rwanda is not a safe third country because there is substantive evidence that people sent to Rwanda are at risk of refoulement.
Asylum claims made by EU nationals are to be deemed “inadmissible” unless there are “exceptional circumstances.” There are examples of what might constitute “exceptional circumstances” such as when the EU is attempting to suspend a member state for breach of EU values or where the state has deviated from the ECHR.
As set out in the Home Office’s published policy, the country proposed for return must agree to admit the person in question before an admissibility decision is formally made.[4] If the Home Office then decides to certify a third country as safe, the person seeking asylum may be removed there unless they challenge the decision to certify by way of judicial review.
If the Home Office cannot remove someone to a safe third country, they will eventually be allowed to have their claim processed in the UK.
The Illegal Migration Act 2023: The Illegal Migration Act 2023 received Royal Assent on 20th July 2023 however, many of its provisions are not yet in force.
On 23rd July 2024, the new Home Secretary, Yvette Cooper, published amendments to the Illegal Migration Act so that the Duty to Remove (the primary purpose of the legislation) will apply to individuals who arrive after the provision comes into force. Under the previous UK government - who introduced the Illegal Migration Act - this applied to people who arrived on or after 20th July 2023. As a result, people who arrived after this date can now have their asylum claims processed as normal. Subsequent amendments were made to include this new date in related provisions - including Section 30 of the act which bars people who entered the UK via an irregular route from leave to enter and/or remain, entry clearance or an electronic travel authority. This bar now applies from the date which the Duty to Remove comes into force (as apposed to 7th March 2023, the date which it previously applied).
Whilst this is a welcome change, it falls of short of the vital need to repeal the act in its entirety. You can read more about the damaging implications of the Illegal Migration Act in this blogpost.
Section 12 is one of the few provisions of the IMA is in force which changes the powers of detention so that the length of someone's detention is determined by The Secretary of State for such a period as it “reasonably necessary to enable the examination or removal to be carried out, the decision to be made, or the directions to be given.” Read more about this in Lawfulness of Detention.
Future Watch: Look out for whether and/or when provisions of the Illegal Migration Act 2023 relating to detention are likely to come into force. |
What happens if an asylum claim is successful?
If refugee status is granted by the Home Office at the first decision, or following a successful appeal to the immigration tribunal, the claimant will be given leave to remain in the UK for five years and allowed to settle in the UK after 5 years’ lawful residence. The Nationality and Borders Act 2022 allowed the Home Office to grant different forms of refugee leave depending on how the individual entered the UK. Those who passed through a safe third country and/or did not claim asylum without delay were to be granted temporary refugee permission of 30 months’ leave with an option to settle after 10 years’ lawful residence. However, the government has now paused its intention to differentiate between refugees in this way.
If asylum is refused, under certain circumstances a claimant may nonetheless be granted a form of leave to stay called Humanitarian Protection. A grant of Humanitarian Protection is an acknowledgement by the Home Office that removal to the country of return may result in a serious risk to life or the person, even if they don’t qualify for refugee status. The Home Office may also grant discretionary leave to remain in the UK for a limited period.
People who are granted refugee status, humanitarian protection, or discretionary leave to remain will have their asylum support terminated twenty-eight days after the decision, and will be entitled to work and claim mainstream benefits. Previously the 28 days was taken to begin after someone received their Biometric Residence Permit which also includes someone’s national insurance number and is necessary for someone to move on from asylum support. However, this recently change to the point from which someone’s asylum claim is accepted leaving people with only 7 days to move on from asylum support and find and pay for new accommodation. The result is that more people are being made destitute and forced into homelessness. [5]
Further submissions and fresh claims
A person who has been refused asylum or humanitarian protection and has exhausted all avenues of appeal can make further submissions to the Home Office on the basis of new evidence not previously considered by the Home Office which, taken together with the previously considered material, creates a realistic prospect of success, notwithstanding its earlier rejection. The Home Office will determine whether submissions amount to a fresh claim by applying certain legal tests, and if they do will then make a decision on that further claim. A refusal may be appealable[6].
Detention of asylum seekers after claiming asylum
Following the suspension of the Detained Fast Track scheme (DFT), the Home Office introduced the Detained Asylum Casework (DAC) process which allows for asylum seekers’ claims to be determined whilst they are in detention. The decision to detain must only be taken after considering the individual’s personal circumstances (including any vulnerabilities) and their eligibility for detention. If the Home Office concludes at any time that a person’s ongoing detention would be inappropriate (for example, if they have a serious medical condition which detention is detrimentally impacting), then they should be considered for release, in line with the Home Office’s Adults at Risk policy. If the asylum claim of a person detained claim is allocated to the DAC, this does not prevent them from being eligible to apply for or be granted immigration bail by an immigration judge.
There is no set timescale for the processing and resolution of asylum claims under the DAC. However, the Home Office’s policy states that a person detained must always have 5 full working days between the time their legal representative is confirmed to the asylum interview and a further 5 full working days after the interview to submit further representations before an asylum decision is made. Further time to submit additional representations can be requested by the detainee or their legal representative.[7]
The UNHCR published an audit of the DAC procedure in June 2023 and found that the average timescale from claim to service of decision was 49 days with a variation from 24 to 93 days. It stated that improvement was required in respect of decision-making to ensure compliance with international standards (for example in assessing credibility) and that extreme care was required in order to justify and maintain detention for the purpose of considering asylum claims.
The Nationality and Borders Act 2022 introduced an Accelerated Detained Appeals (ADA) scheme, which only gives people, whose appeals are considered suitable for a quick decision, five days to appeal their refusal, following which the First-tier Tribunal would make a decision within 25 working days. The basis on which an appeal is considered suitable for the ADA is presently unclear. Any application for permission to appeal to the Upper Tribunal would need to be determined within 20 working days after being given notice of the First-tier Tribunal’s decision. There is limited information about the operation of the ADA scheme at present but the principle of resolving something as serious and consequential as an asylum claim within such a short period of time is concerning.
Future watch: Look out for how the Accelerated Detained Appeals is rolled out and how it operates. |
Statutory defences available to asylum seekers charged with document offences resulting from their entry into the UK
Document offences, such as obtaining leave to enter or remain in the UK by deception or possession or control of false identity documents with improper intention, may result from entry into the UK. Under certain circumstances, a person who uses false documents to enter the country for the purpose of claiming asylum may be able to rely on a statutory defence against prosecution.
Section 31 of the Immigration and Asylum Act 1999 brought into domestic legislation the protection provided in article 31 in the Refugee Convention 1951, namely a defence against the possession or control of false documents, or the failure to have an immigration document at a leave or asylum interview, so long as the person can demonstrate that they have:
● come to the UK directly from a country where their life or freedom was threatened
● presented themselves to the authorities in the UK without delay
● showed good cause for their illegal entry or presence, and
● made a claim for asylum as soon as was reasonably practicable after their arrival in the UK.
However, people continue to be convicted of document offences because their criminal representatives are not aware of this statutory defence. There is an obligation on solicitors and barristers representing defendants charged with an offence of possession of an identity document with improper intention to advise them of the existence of a possible section 31 defence. The Court of Appeal has taken a dim view of this type of error by solicitors.
Section 40 of the Nationality and Borders Act 2022 amends section 24 of the Immigration Act 1971 to now make it extremely difficult to claim asylum after entering or arriving in the UK in a way that does not first commit a criminal offence. This imposes a catch-22 situation for people seeking sanctuary, many of whom are unable to safely and legally claim asylum without entering the UK in the first place. If prosecuted and convicted for illegal entry, individuals can be sentenced for up to four years’ imprisonment or five years if they entered in breach of a deportation order. Section 41 also amends offences on facilitating/ assisting unlawful immigration however, there is a statutory defence for “rescuers” under section 41(4) which insert a new section 25BA into the Immigration Act 1971. A rescuer must prove that the assisted individual had been in danger or distress at sea, that the act of facilitation was an act of providing assistance to the individual at any time between when they were first in danger or distress at sea and the time when they were delivered to a place of safety.
It is questionable as to whether penalizing asylum seekers for entering the UK without permission is in fact, consistent with article 31 of the Refugee Convention. If the Crown Prosecution Service decide to prosecute, it may be possible in certain cases to challenge the prosecution itself on the basis that it is an abuse of process.
Any conviction, caution, or custodial sentence may have a negative effect on an asylum claim, and other immigration applications and decisions. There may be grounds for appealing the conviction or challenging the decision to prosecute. The Criminal Cases Review Commission has referred a number of such cases involving asylum seekers and refugees to the appeal courts, on the basis that the individuals had a statutory defence available to them him under s31 IAA 1999, and that the statutory defence would probably have succeeded.[8]
How you can help someone in detention who may have been convicted wrongly of a document offence
As a visitor you may meet people in detention who have been convicted of document offences but who, the evidence suggests, should have been advised of the statutory defence available to them.
As a lay person you cannot assess the person’s circumstances but you can provide them with information about the Criminal Cases Review Commission (CCRC) and encourage them to make contact with the CCRC without delay, as well as their immigration advisor if they have one. A person does not need a legal representative in order to apply to the CCRC.
The conviction need not be recent. The CCRC website describes cases referred to the appeal courts in 2016 relating to convictions handed down in 2007. Criminal Cases Review Commission, ‘Important information for people who are thinking of applying to the CCRC’. Available at http://www.ccrc.gov.uk/wp-content/uploads/2015/01/CCRC-Useful-information-for-potential-applicants.pdf If someone is facing charges for immigration related reasons, they should seek advice from a criminal law solicitor. Visitors can support people to find a criminal law solicitor and support individuals to ensure that they understand the advice that is given to them as well as how this relates to any advice they are receiving on their broader immigration case from an immigration lawyer. |
S. 80C. of the 2002 Act
80B(4) of the 2002 Act
AAA v Secretary of State for the Home Department (Rwanda) [2022] EWHC 3230 (Admin)
Home Office policy: “Inadmissibility: safe third country cases (Version 7.0) (28 June 2022) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1084315/Inadmissibility.pdf
https://freemovement.org.uk/home-office-change-in-practice-increases-risk-of-homelessness-for-recognised-refugees/
See Right To Remains explanation of asylum fresh claims, ‘What is a fresh claim?’ at http://www.righttoremain.org.uk/legal/what-is-a-fresh-claim/
Detained Asylum Casework (DAC) – asylum process (Version 5) 2019. Available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/788720/detained-asylum-process-v5.0.pdf
“The Criminal Cases Review Commission (CCRC) has since 2012 referred over 30 separate cases to the relevant appeal court including eight to the Court of Appeal (Criminal Division)” .The Law Society, (2015), ‘Practice Note: Statutory defences available to asylum seekers charged with document offences’. Available at http://www.lawsociety.org.uk/support-services/advice/practice-notes/statutory-defences-available-to-asylum-seekers-charged-with-document-offences/
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