This section should be read in conjunction with Legal Advice and Representation. Visitors - who are not regulated to do so - should not give immigration advice as it is a criminal offence to do so and incorrect advice can have serious repercussions for the person involved.
The information in this section is useful background reading for visitors on the legal framework for asylum (which impacts a high proportion of people in detention) and the use of immigration detention; it provides visitors with an understanding of what to expect when someone makes an asylum claim; and it is written to better equip visitors with knowledge of what options are available to the person that they are visiting.
The Immigration Act 1971 provides the authority for the use of detention powers pending entry or removal to/from the UK.
Immigration control and the asylum system have been the subject of prolific legislation by successive UK governments in recent years, especially after the numbers of people seeking sanctuary increased in the 1990s and 2000s, and when immigration detention began to be used as a management tool in the UK asylum system. Subsequent legislation has resulted in further amendments and additions to The Immigration Act 1971, for example, on the use of detention for children and families (Immigration Act 2014), provisions relating to immigration bail (Immigration Act 2016) and most recently the expansion of powers to detain under the Illegal Migration Act 2023.
Key pieces of legislation and the resulting provisions, including the source of powers to detain for administrative purposes under immigration powers, are set out below. It’s not necessary to read all of this to inform your visiting, but you may find it useful.
You should be aware that provisions listed may not have been enacted, may have been repealed, or may have been amended by subsequent legislation. Home Office policy and practice arising out of legislation may have been subject to successful legal challenge and subsequently abandoned.
Home Secretary Kenneth Baker, 2 July 1991 HC Deb vol 194 c 167
House of Commons Library, Research Paper 99/16 19 February 1999, Immigration and Asylum. See page 16.
Immigration Act 1971
- Provided for a general scheme of immigration control, establishing who could come into the UK and under what circumstances.
- Provided authority for the use of detention powers in relation to the administrative acts of examination, removal or deportation.
- Provided for the making of deportation orders, and the right of appeal against immigration decisions.
- Provided for the granting of immigration bail and set out statutory restrictions on the grant of bail.
NB: The Immigration Act 1971 does not deal with asylum, but the rules made under the Act indicate that the UK's obligations under the Refugee Convention 1951 must be taken into account.
Asylum & Immigration Appeals Act 1993
“The 1993 Act was introduced to deal with a sharp increase in the number of those seeking asylum in the UK (from 3,998 in 1988 to 44,840 in 1991) by streamlining procedures and ensuring "the rapid rejection of a large number of unfounded claims””[1]
- Established a statutory scheme for asylum determination and appeal, defining a claim for asylum in terms of the UK’s obligations under the Refugee Convention 1951 and the 1967 Protocol.
- Introduced accelerated and fast track appeals procedures for claims certified as being “without foundation”. These were mostly third country cases where it was considered that the ability to return the applicant meant “there was no obligation to consider [the] case”[2]
- Introduced the right for the Secretary of State for the Home Department (Home Secretary or SSHD) to detain refused asylum seekers pending their removal.
Immigration & Asylum Act 1996
- Widened the scope of the accelerated asylum appeals procedure.
- Extended the ability to certify an asylum claim as “without foundation” if it related to a country which the SSHD had decided posed “in general no serious risk of persecution”. This “White List” of countries initially included Bulgaria, Cyprus, Ghana, India, Pakistan, Poland, and Romania.
- Removed the right to cash benefits from ‘in-country’ asylum applicants and applicants appealing a negative decision.
Introduced new criminal law provisions and powers of search and arrest, and financial and custodial penalties relating to immigration offences, including obtaining leave to enter or remain by deception.
Human Rights Act 1998
- Incorporated the rights set out in the European Convention on Human Rights (ECHR) into domestic British law. Opened a route for challenges to a breach of human rights law to be heard in a UK court rather than before the European Court of Human Rights.
Immigration & Asylum Act 1999
- Introduced the ‘one-stop’ asylum procedure and the principle of ‘one stop' appeals.
- Set up the National Asylum Support Service (NASS) and the dispersal of asylum seekers to accommodation around the UK.
- Removed any remaining benefit entitlement from asylum seekers and introduced a voucher system for asylum seekers arriving in the UK. Prohibited asylum seekers from working to support themselves.
- Gave the Secretary of State the power to provide facilities for accommodation to a person released from detention on bail or given Temporary Admission, whether or not they have ever claimed asylum via what became known as a ‘Section 4 bail address’, or ‘Section 4 support’.
- Required the SSHD to arrange for ‘automatic bail hearings’ for certain detainees before the eighth and thirty sixth day of detention. These provisions were never enacted, and were repealed in the Immigration & Asylum Act 2002.
Nationality, Immigration & Asylum Act 2002
- Introduced an obligation on the SSHD to certify asylum and human rights claims where they are ‘clearly unfounded’, withdrawing the right to appeal while the applicant remained in the UK, under a process known as Non-Suspensive Appeals (NSA).
Allowed the Home Office to withdraw support for in-country applicants who did not apply for asylum ‘as soon as is reasonably practicable’. In 2004 the Court of Appeal found that the policy breached Art 3 of the ECHR.
- Extended the power to detain, meaning an asylum seeker can be detained at any time during their application, not just prior to removal.
- Allowed for detention centres to be known instead as removal centres.
Asylum and Immigration (Treatment of Claimants, etc) Act 2004
- Set out additional types of case where asylum seekers can be sent to safe third countries without their case being considered in the UK.
- Introduced a range of provisions on accommodation for refused asylum seekers.
- Introduced a new offence of refusal to cooperate with the authorities to obtain new travel or identity documents (s35 offence), and an offence of entering the UK without a valid identity document without good reason.
- Set out that a detained person does not qualify for the National - - Minimum Wage “in respect of work which he does in pursuance of removal centre rules.”
- Introduced provisions governing the use of electronic monitoring as a condition of immigration bail.
Immigration, Asylum & Nationality Act 2006
- Allowed the SSHD to certify that a person is not entitled to protection under the Refugee Convention if they are deemed to have carried out or encouraged or induced others to carry out acts including committing, preparing or instigating terrorism.
UK Borders Act 2007
- Set out conditions and procedures for the ‘automatic’ deportation of non-EEA “foreign national offenders” convicted in the UK to a custodial sentence(s) of 12 months or more. So named because the Act removed the discretion of the SSHD over whether to deport “foreign criminals” convicted in the UK of a qualifying offence, with some exceptions.
Criminal Justice & Immigration Act 2008
- Amended s33(6) of the UK Borders Act 2007 (automatic deportation exceptions), adding an exception to comply with the UK’s obligations under the Council of Europe Convention on Action against Trafficking in Human Beings.
- Introduced measures on the repatriation of foreign criminals, eligibility for the Early Removal Scheme for foreign national prisoners and amended the Criminal Justice Act 1991 to provide for eligibility of foreign national prisoners liable to removal from the UK to have their cases considered by the Parole Board for early release on licence.
Borders, Citizenship & Immigration Act 2009
- s55 imposed a statutory duty on the SSHD, and hence the Home Office and its private contractors, to safeguard and promote the welfare of children in the UK. Critics pointed out that the new duty was incompatible with the continued detention of children for immigration purposes.
Legal Aid, Sentencing and Punishment of Offenders Act 2012
- LASPO heralded a new approach to defining the scope of legal aid. Under LASPO a legal matter was out of scope of legal aid unless specifically included in Schedule 1 of the Act. Whole categories of law were removed from the scope of legal aid using this Act. Under LASPO, legal aid is now not available for general immigration matters, including preparing, presenting, and engaging on a claim/case before the Home Office, and any appeal against a negative outcome. This generally includes deportation cases.
- Asylum claims, immigration bail applications, and claims by victims of trafficking for LTE or LTR (though not the initial decision under the National Referral Mechanism) remained in scope post-LASPO.
- While the fact of detention (loss of liberty) remained in scope of legal aid, there is now no legal aid for the underlying substantive immigration case which landed the person in detention, greatly limiting what lawyers can do.
- A provision for Exceptional Case Funding was set up to grant a right to civil legal aid for any out-of-scope matter where an exceptional case determination [‘ECD’] is made.
Immigration Act 2014
On the detention of children and families:
- The Act created a legislative basis for changes to government policy on child detention by setting a time limit on child detention in law.
- Required that Pre-Departure Accommodation for families (The Cedars) to be used for detained children and their families for not more than 72 hours (or not more than 7 days if authorised by a minister).
- Required that in every family returns case, and where a family with minor children are going to be detained, the Home Office Family Returns Panel must be consulted.
- Introduced restrictions on the detention of unaccompanied children in short term holding facilities.
The Act limited the independence of the Tribunal in bail decisions by: - Requiring SSHD’s consent in the event that the immigration tribunal grants release on bail where removal directions are in force and removal is to take place within 14 days of the bail hearing.
- Requiring Tribunal Procedure Rules to be changed so that if a person applies for bail within 28 days of having been unsuccessful the Tribunal must dismiss the application without a hearing, unless the applicant can demonstrate a material change in their circumstances.
The Act also introduced provisions intended to create a hostile environment in the UK for undocumented migrants, including a prohibition on entering into residential tenancy agreements, on opening a UK bank account, and on applying for or continuing to hold a UK driving licence.
Immigration Act 2016
- Required the SSHD to issue guidance on the detention of “particularly vulnerable” people.
- Introduced conditions for the detention of pregnant women, including a time limit of 72 hours (seven days if authorised at ministerial level).
- Provided for a new type of immigration bail to replace both Temporary Admission and existing immigration bail, as they were set out in IA 1971. CIO bail abolished.
- Introduced a new power for the SSHD to grant bail, with associated conditions, to a person who is ‘liable to detention’, whether or not they are currently in detention, and even if the person can no longer lawfully be detained.
- New duty on SSHD to “arrange consideration of bail” in the form of a reference to the tribunal within 4 months of the start of detention, or the last time the tribunal considered a bail application for the person. The duty does not apply if the person is detained with a view to deportation.
- New power for SSHD to re-detain someone granted immigration bail by the Tribunal.
- New provisions on the use of electronic monitoring, including the removal of discretion for the Tribunal over whether or not to impose a tagging condition.
- New powers of arrest without warrant of bailees where there are reasonable grounds for believing the person has failed/is failing to comply with a bail condition or will in the future fail to comply.
- New provisions for recovering financial conditions (sureties) in the event of a breach of bail conditions via an order from the county court/sheriff court.
- The right of appeal against refusal of asylum support is abolished for people who have no current protection claim and no outstanding further submissions.
- There is no power to provide support to a person who has never claimed asylum even if the person cannot be removed from the UK.
- Tightening of eligibility for support for refused asylum seekers with children, conditional on genuine obstacles to leaving the UK and attempts to remove.
Nationality and Borders Act 2022
- Allows for differential treatment of asylum seekers based on how they entered the UK in regard to accommodation and routes to settlement (this has now been paused by the government).
- Certain asylum claims can be deemed inadmissible on the basis that asylum seekers can be removed to a safe third country.
Allows decision makers (including Home Office officials and judges) to take into account “relevant behaviour” when assessing credibility such as providing evidence late in connection to a claim.
- Decision-makers are also empowered to have regard to the principle that minimal weight should be given to late evidence unless there are good reasons why it was provided late.
- Introduces the “accelerated detained appeals” process which enables the Home Office to certify certain claims allowing them to be decided within a short timescale.
- Key principles of asylum law are reformulated. One example is that past persecution now has to be assessed on a balance of probabilities, leaving only future risk to be assessed to a lower standard i.e. a reasonable degree of likelihood. Previously both past and future persecution were assessed to the lower standard. - The Home Office has the final say in respect of age assessments over local authorities and can conduct age assessments itself.
- Increased the penalty for people convicted of illegal entry or residence, if the offence took place on or after 28 June 2022, from a maximum of 6 months in prison to a maximum of 12 months or 4 years in prison (if the case goes to the Crown Court).
- Amendments made to the definition of “a particularly serious crime” which is now defined as one which attracts a sentence of at least 12 months.
Illegal Migration Act 2023
It is important to note that the vast majority of this Act is not yet in force.
- Sets out the duty to remove anyone who arrived in the UK via an irregular route on or after the date which on which this section comes into force (this date was changed from 20th July 2023 following an amendment to the regulations from the Labour Home Secretary). Anyone to whom this applies, including children, is subject to immigration detention for the first 28 days. Unaccompanied children can apply for bail after 8 days in limited circumstances such as when they have not yet received a removal decision.
- People to whom this applies, including those who passed through or entered the UK from a country where they were not at risk of persecution cannot be granted leave to enter or remain in the UK.
- There are new `immigration offences including where individuals disembark a vehicle after being put there in order to be removed. Captains also commit an offence if they knowingly allow someone to disembark in the UK.
- There is a discretion to remove children from the UK in certain circumstances such as to reunite them with a parent or where the child is a national of a designated safe country as defined under s.80AA of the Nationality, Immigration and Asylum Act 2002. Unaccompanied children can also be detained in certain circumstances. They can be granted bail after 8 days in limited circumstances.
- The duty to consult with the Independent Family Returns Panel is removed.
- Compelling circumstances will be required to establish that a trafficked person needs to stay in the UK to cooperate with an investigation or criminal proceedings. Those who have experienced modern slavery will have less protections enabling them to stay in the UK. For example, if they are deemed to be a threat to public order or have made a claim in “bad faith,” they can be denied leave to remain.
- Courts and tribunals may not grant interim relief preventing or delaying removal. If the European Court of Human Rights grants interim relief, then a Minister can decide not to remove them. If they choose not to, the ECtHR’s decision may be disregarded.
- Age assessments cannot be appealed and those attempting to challenge them via Judicial Review may be removed whilst the challenge is ongoing. Individuals who refuse scientific age tests can face adverse consequences including by being treated as though they were an adult.
Safety of Rwanda Act 2024
- Specifies that Rwanda is a safe country and should be treated conclusively as such by courts and decisions makers. This is unaffected by international law, including for refoulement challenges.
- There are exceptions (c.4(1)) – based on individual circumstances but a decision not to send someone to Rwanda cannot be made on grounds that Rwanda is generally unsafe.
NB: The Safety of Rwanda Act was passed under the previous conservative government. The current labour government has ended the plans to send people seeking asylum to Rwanda and is terminating the Migration and Economic Development Partnership with Rwanda. There are therefore no outstanding effects of the Safety of Rwanda Act.
The law following the UK’s exit from the EU is complex. This Handbook therefore sets out two of the most important legal developments namely, the Withdrawal Agreement and the EU Settlement Scheme.
The Withdrawal Agreement agreed between the EU and the UK establishes the terms of the UK’s withdrawal from the UK and is a comprehensive document addressing matters such as citizen’s rights, money and dispute resolution. Its protection is especially strong for those who were exercising free movement rights under EU law before the specified date (11pm on 31 December 2020).
Importantly for those facing deportation, the Withdrawal Agreement is clear that where someone’s “conduct” (or actions) giving rise to the deportation decision took place prior to the specified date, then EU law principles (which are far more generous than UK deportation provisions) apply. So, for someone who had permanent residence in the UK under EU law and committed an offence before the specified date, the Home Office must establish that there are “serious grounds of public policy and public security” before they can be deported, making it more difficult to remove them and potentially making their detention unnecessary and disproportionate because of this. For more information, please see the Home Office’s current policy titled, “Public Policy, public security or public health decisions.”[1]
EEA nationals and their family members (before the specified date) are required to apply for leave to remain in the UK under the EU Settlement Scheme (‘EUSS’). The requirements are contained in Appendix EU of the Immigration Rules and applications are free of charge. If successful, the individual may be granted pre-settled status (residence for five years) or settled status (indefinite leave to remain).
In order to benefit from the EU Settlement Scheme, the EEA national must meet certain “suitability” and “eligibility criteria,” including being a resident in the UK prior to 31st December 2020. The government allowed individuals to make EUSS applications until 30th June 2021 however, late applications can still be made provided the individual demonstrates that there are reasonable grounds for the delay in applying. The Home Office’s present guidance[2] states that reasonable grounds may include situations where an individual lacks the physical or mental capacity to apply, where they have a serious medical condition which prevented them from applying and other compelling practical or compassionate reasons. Reasonable grounds might also include an individual being detained and/or in prison however, whether this is accepted will depend on the Home Office’s assessment. It is therefore possible for people in detention who have not yet made an application under the EU settlement scheme to still be granted some form of leave if they apply now and cite reasonable grounds for doing so late.
When an individual makes an application under the EU Settlement Scheme, this will constitute a barrier to removal according to the Home Office’s own published policy.[3] Therefore, the Home Office should not attempt to remove individuals with an outstanding EUSS application. There are delays with EUSS decision-making[4] so if an EUSS application is made by a person detained, it may be that the Home Office is unlikely to remove them within a reasonable period of time, therefore increasing the chances of them being granted bail.
“Public Policy, public security or public health decisions.” (Version 7.0) (30 September 2022) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1109258/EEA_public_policy_and_public_security_decisions.pdf
Home Office: “Apply to the EU Settlement Scheme (settled and pre-settled status)"
https://www.gov.uk/settled-status-eu-citizens-families/eligibility#:~:text=Reasonable%20grounds%20may%20include%2C%20if,or%20mental%20capacity%20to%20apply
Home Office ‘Conducive Deportation (Version 2.0) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1162517/Conducive_Deportation.pdf (published on 8 June 2023)[p.22]
The 3 Million: EU Settlement Scheme Statistics https://the3million.org.uk/node/1100851650#:~:text=joining%20family%20members.-,How%20many%20people%20are%20waiting%20for%20a%20decision%3F,this%20huge%20and%20persistent%20backlog.
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.
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.
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.
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]
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].
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.
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]
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/
Other key asylum facts
Home Office staff make the initial decision on an asylum claim.
Appeals against Home Office refusals to grant refugee status are not decided by the Home Office but by the independent First-tier Tribunal (Immigration & Asylum Chamber).
An asylum appeal may or may not be ‘suspensive’ (meaning the removal of the appellant is suspended pending the appeal).
If there is a right of appeal it must be lodged within 14 days of the asylum refusal being sent by the Home Office.
Legal aid is available for asylum claims and asylum appeals, subject to the legal aid means and merits tests.
Asylum seekers can be detained in accordance with Home Office general detention criteria while they are waiting for a decision on their asylum claim (at any stage in the process).
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.
Future watch: Look out for how the Accelerated Detained Appeals is rolled out and how it operates.
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.
Asylum is a fundamental right, and granting asylum is an international obligation which was first recognised in the 1951 Refugee Convention on the protection of refugees. Two pieces of international law define who is considered a ‘refugee’ and outline the rights of displaced people and the legal obligations of states to protect and support them. These can be used to support an asylum application in the UK and are:
● The 1951 Refugee Convention, and the 1967 Protocol which expanded the scope of protection offered by the 1951 Convention
● The European Convention on Human Rights (ECHR)
Retained European Union law can also be used to support an asylum application in the UK.
Article 1 of the 1951 Refugee Convention defines a refugee as someone who:
“Owing to a 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 to, or owing to such fear, is unwilling to avail himself of the protection of that country”[1]
The UNHCR explains that:
“The core principle is non-refoulement, which asserts that a refugee should not be returned to a country where they face serious threats to their life or freedom. This is now considered a rule of customary international law.”[2]
The asylum process is determined by future risk. This means that no matter how badly an asylum applicant has been treated in their country of origin before they arrived in the UK, if there is a way for them to return and live in safety somewhere in their country of origin, then they may be refused refugee status. This applies even if they have to relocate within that country. However, the fact that they have been persecuted previously is usually considered a good indication that they would be persecuted in the future unless there are good reasons to the contrary.
In the UK, a person is recognised and referred to as a refugee only when their application for protection (their asylum claim) has been accepted by the Home Office or Court. An asylum seeker is the term for someone who has made an asylum claim but has not yet received a final decision in their case.
The 1950 European Convention on Human Rights (ECHR) is an international treaty to protect human rights and fundamental freedoms in Europe. It contains a number of Articles setting out protected rights, such as Article 5 (the right to liberty and security) or Article 6 (the right to a fair trial).
The UK, as a member of the Council of Europe, is a party to the ECHR. It gave effect to the rights and freedoms in the ECHR through the Human Rights Act (HRA) 1998, which means that these protected rights can be invoked in our domestic courts. As a signatory to the ECHR, the UK has also agreed to take into account ECtHR judgments. ECtHR decisions cannot directly change UK law, but the UK government may be required to ask parliament to change the law in order to comply [3].
Key ECHR Articles from an asylum, immigration and detention perspective are:
● Article 3 Prohibition of torture - “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”
● Article 5 Right to liberty - "You have a right to your personal freedom. This means no one shall be detained or imprisoned without good reason."
● Article 8 Right to respect for family and private life - "Everyone has the right to respect for his private and family life, his home and his correspondence."
It is possible for a person to apply to remain in the UK if removing them to their country of origin would be in breach of their rights under the European Convention on Human Rights. This is known as a ‘human rights claim’. A human rights claim can be part of an asylum claim under the 1951 Refugee Convention, or a standalone claim. Most human rights claims in the UK invoke Article 3 (the prohibition of torture) or Article 8 (the right to respect for private and family life).
The Convention also established the European Court of Human Rights (ECtHR). A person who considers that a state party has failed to protect his or her rights under the Convention can make an application to the Court. There is now a body of case law by the European Court of Human Rights relating in particular to Articles 3, 5, 8 and 13 of the ECHR. Getting a case considered by the ECtHR generally requires that the claimant has exhausted all domestic remedies (all relevant courts and complaint procedures in the UK) and has suffered ‘significant disadvantage’. It is a complex process that may take years to conclude [4]. Some people detained bring cases to the ECtHR as litigants in person, and the process is designed to be accessible to people without the resources of a state, but a positive outcome is more likely with a legal team.
The UK left the European Union on 31 January 2020 following the outcome of the 2016 EU referendum. The transition period, during which EU law continued to apply, ended at 11pm on 31 December 2020 (the ‘specified date’). The rules governing the new relationship between the EU and UK took effect on 1 January 2021. Whilst several parts of EU law have been repealed following the specified date, others have been “retained” through primary UK legislation.
The EU (Withdrawal Act) 2018 retained the Asylum Seekers (Reception Conditions) Regulations 2005, the Refugee or person in Need of International Protection (Qualification) Regulations 2006 and the Asylum (Procedures) Regulations 2007. The Nationality and Borders Act 2022 (s.30(4)) then repealed the Refugee or person in Need of International Protection (Qualification) Regulations 2006 but incorporated their substance into s.31-36 (these sections set out the key considerations when determining whether an applicant ought to qualify for asylum).
EU-law derived rights, obligations, restrictions, remedies and procedures can now only be relied upon if they are not inconsistent with or, otherwise capable of affecting the interpretation of, application or operation of the Immigration Acts (including the Immigration Rules).[5] The Directives may also only be relied on where certain rights were recognised by the European Court or any UK court or tribunal in the UK before the specified date.[2] The UK Court of Appeal and Supreme Court can now also depart from the case law of the Court of Justice of the European Union when interpreting retained EU Law.
The EU Charter of Fundamental Rights is also no longer part of UK law but fundamental rights and principles recognised in case law do form part of retained EU law.[6] The Dublin III Regulation (which allowed the transfer of people seeking asylum to the EU country responsible for considering and determining their asylum claim) has been repealed in its entirety. However, the government is attempting to transfer asylum seekers out of the UK for their asylum claims to be processed in line with the Nationality and Borders Act 2022 and The Illegal Migration Act 2023. At present, the plan to send asylum seekers to Rwanda has been deemed unlawful by the Supreme Court. The government is trying to push through the Rwanda Bill in order to legislate that Rwanda is a safe country. Other third countries could also be considered under these provisions, if the UK government is able to make an agreement with those countries.
UNHCR, Convention and Protocol Relating to the Status of Refugees. Text of the 1951 Convention Relating to the Status of Refugees, Text of the 1967 Protocol Relating to the Status of Refugees Resolution 2198 (XXI) adopted by the United Nations General Assembly with an Introductory Note by the Office of the United Nations High Commissioner for Refugees. See Article 1 “Definition of the term “refugee”. Available at http://www.unhcr.org/uk/3b66c2aa10
UNHCR website, The 1951 Refugee Convention. Available at http://www.unhcr.org/uk/1951-refugee-convention.html
The Council of Europe oversees how the UK government gives effect to the rulings of the ECtHR. NB: The Council of Europe (47 members) is entirely separate from the European Union (28 members in 2016). https://fullfact.org/europe/eu-and-human-rights/
See ‘Protecting migrants under the European Convention on Human Rights and the European Social Charter: A handbook for legal practitioners’, (2013) Council of Europe. http://www.coe.int/t/democracy/migration/Source/migration/ProtectingMigrantsECHR_ESCWeb.pdf
Sch 1, para 6, Immigration and Social Security Coordination (EU Withdrawal) Act 2020
(s.4(2)(b), EU (Withdrawal Act) 2018)
s5(4) EU (Withdrawal Act) 2018)
An example of an immigration detention related case brought before the European Court of Human Rights.
Abdi v United Kingdom (European Court of Human Rights, Application 2770/08, judgment 9 April 2013) in which the ECtHR considered the United Kingdom’s administrative detention of “foreign national offenders” for the purpose of deportation.
The ECtHR press release explains the case as follows:
“The case concerned a complaint by a Somali national that he was kept in detention for more than three years, pending his proposed deportation to his country of origin.
The Court found in particular that, where lawfulness of detention is in issue, the European Convention refers essentially to national law, laying down the obligation to conform to rules of national law. In Mr Abdi’s case, it held that his detention from 3 December 2004 to mid-April 2007 was not lawful under domestic law because the regular reviews required by the Secretary of State’s published policy on the detention of foreign national prisoners were not carried out. Indeed, the British Government had accepted the unlawfulness of Mr Abdi’s detention following the Supreme Court’s judgment in another similar case.
It also struck out Mr Abdi’s complaint under Article 3 (prohibition of inhuman and degrading treatment) that his removal to Somalia would put him at risk of ill treatment and therefore decided to lift its indication to the United Kingdom Government (made under Rule 39 of the Rules of Court – interim measures) that Mr Abdi should not be expelled until further notice.”
Available at http://bit.ly/2kPKme4
Future watch: Any new proposals for the repeal of the Human Rights Act and a new British Bill of Rights of similar legislation.