The UK Border Agency at the Home Office considers all asylum applications. But the Home Secretary has the ultimate authority in asylum determinations.
Decision-making criteria
Refugee Convention criteria
To be recognised as a refugee in the UK, a person has to demonstrate that s/he meets the Refugee Convention refugee definition. This defines a refugee as a person 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 or, owing to such a fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
Since the UK government has signed the Refugee Convention, it is committed to providing protection to those who meet the definition, according to its interpretation.
EU Refugee Qualification Directive
On 09 October 2006, the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 introduced the EU Refugee Qualification Directive into the UK law. See the Refugee Council’s response.
The language of this directive is slightly different to that used in the Refugee Convention. It defines the grounds for seeking asylum as follows:
- The concept of race shall include consideration of, for example, colour, descent or membership of a particular ethnic group.
- The concept of religion shall include consideration of, for example, the holding of theistic, non-theistic and atheistic beliefs, the participation in or abstention from formal worship in private or public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal practice based on or mandated by any religious belief.
- The concept of nationality shall not be confined to citizenship or lack of citizenship, but shall include, for example, membership of a group determined by its cultural, ethnic or linguistic identity, common geographical or political origins, or its relationship with the population of another state.
A group shall be considered to form a particular social group where, for example:
- Members share an innate characteristic or a common background that cannot be changed. Or they share a characteristic or belief that is so fundamental to their identity or conscience that they should not be forced to renounce it. The group’s identity is distinct in the country because it is perceived as being different by the rest of society.
- A particular group social group might include a group based on a common characteristic of sexual orientation (as long as the latter does not include acts considered to be criminal in line with UK law)
- The concept of political opinion shall include holding an opinion, thought or belief on a matter related to the potential actors of persecution (mentioned elsewhere in the Regulation) and to their policies or methods. It does not matter if the person has acted on such an opinion, thought or belief.
The Regulation also states that when the authorities decide if applicants have a well-founded fear of persecution, it is irrelevant whether they actually possess the racial, religious, national, social or political characteristic which attracts the persecution as long as the actor(s) persecuting them attributes those to them.
Human rights criteria
An asylum application will also be considered against the UK’s duties under the European Convention on Human Rights (ECHR). Under the ECHR, the UK cannot return someone to a country where their human rights would be breached. Human rights applications are normally only successful on Article 3 (right to freedom from torture or inhuman or degrading treatment) or Article 8 (right to family or private life). However, applications can be based on other ECHR articles.
The basis of a human rights claim is often the same as that of the asylum claim. The applicant submits the same statements in support of both. Case owners should assess all claims asylum against the ECHR even if the claimant has not explicitly stated a human rights claim.
Evidence
An applicant can produce the following in support of an asylum application:
- Evidence of the human rights record of the home country
- Evidence of the current political situation there
- Evidence of torture or detention experienced by themselves or their family
- Any other evidence relating to their individual circumstances at home that could result in a fear of persecution
Applicants can present evidence in the form of the following:
- Expert reports
- Medical reports
- Reports from political organisations
- Arrest warrants or court documents
- Witness statements
- Supporting witness
There is no limit on what type of evidence applicants can submit to support their asylum or human rights application.
The Country Specific Asylum Policy Team at the Home Office produces operational guidance notes and country policy bulletins for its staff which provide guidance on how to deal with particular country-specific issues arising in asylum and human rights applications. These can be found on the Home Office website.
Amnesty International, Human Rights Watch, the Refugee Legal Centre, the Electronic Immigration Network and UNHCR all provide information on the situation in individual countries. See Resources in the Archive section for contact details.
Victims of torture or organised violence and applicants suffering from post traumatic stress disorder should find help from the Medical Foundation for the Care of Victims of Torture.
Standard of proof
The Refugee Convention uses the term ‘well-founded fear of being persecuted’, which is open to interpretation and the subject of extensive case law. The Home Office assesses whether fear is well-founded or otherwise. However, appeal decisions have repeatedly confirmed that evidence provided in an asylum claim does not have to be conclusive.
It is sufficient to show a serious possibility or a reasonable likelihood of persecution if the UK were to send the applicant back to his/her country.
To be granted refugee status, an applicant does not need to have experienced persecution in the past. Past persecution is only an indication of what could happen in the future. Conversely, even if an applicant has been seriously abused in the past, this does not in itself prove that they need protection in the future. It may be that circumstances in the country have changed, such as a regime change, since the applicant left.
The asylum decision should also focus on the risk to the individual in their home country at the time of the decision, not when the applicant first lodged the claim. This can make a significant difference to the outcome of an asylum application.
Credibility
The Home Office often decides a claim by assessing an applicant’s credibility:
- Does his/her description of torture or abuse match up with the physical evidence?
- Has s/he given consistent evidence throughout the asylum process?
- Are there reports from political organisations?
- Did s/he disclose all the relevant evidence at the beginning of the asylum process?
- Does information provided on the country of origin correspond with official country reports?
The Home Office may also decide the application is less credible if the applicant did not apply for asylum as soon as he or she had the opportunity to do so. The Home Office tends to refuse many applications because it does not find them credible. However, the credibility issue should only be a factor if there is not other objective evidence to support the claim. The Home Office lists reasons for questioning someone’s credibility. See Refusal under the Asylum Decisions section.
Waiting for a decision
It is essential that asylum seekers keep the Home Office informed of their current address. This is particularly important for asylum applicants who lodged their claim before 05 March 2007 who may be contacted by the Home Office by post. If an asylum seeker receives a negative decision, the time limits for lodging an appeal are very strict. Changes of address should be sent by recorded delivery to the Home Office and Immigration Service (port of entry) as well as the Asylum and Immigration Tribunal where appropriate.
Applicants should keep their case owner informed of any changes of address or circumstances. Equally, they should be able to provide information on the progress of the case.
Reporting
Asylum applicants have to report regularly to the police or reporting centre while they wait for a decision. If applicants fail to comply with reporting instructions, the Home Office can detain them or refuse the application on non-compliance grounds and detain.
Applicants may be expected to travel long distances, which can take several hours in order to report. If an asylum seeker has to travel long distances very often s/he can get the Home Office to review reporting requirements.People on asylum support who live more than three miles away from their reporting centre, are entitled to have their travel expenses covered by asylum support except for the first reporting event. They should enquire about future travel assistance at that time. Applicants who live within three miles may only qualify for having their expenses covered in exceptional circumstances.
Travel abroad
Asylum seekers cannot travel outside the UK while their asylum or human rights application is pending. The UKBA will treat travel abroad as a withdrawal of the application. People who get a positive decision can apply for overseas travel documents. See Asylum decision.
Family reunion
Asylum seekers cannot apply to have their immediate family members join them in the UK. But they may want to apply if they have strong compassionate reasons for doing so. They will definitely need the help of a legal adviser in this case. See Entitlements to family reunion after a positive decision.
Fresh claims
If the UKBA refuses an asylum or human rights claim and the applicant has exhausted his/her appeal rights, s/he can make a subsequent asylum or human rights
claim. This is called a ‘fresh claim’. For a subsequent claim to be treated as a fresh claim, the applicant must present submissions which are considered by the UKBA as ‘significantly different’ from the original application.
Submissions are only considered significantly different if:
- The content of the submission has not already been considered; and
- Taken together with the previously considered material, they create a realistic prospect of success despite the rejection of the original claim.
Fresh claims usually occur if substantive new evidence emerges after the person has exhausted all appeal rights, or if there has been a significant change in the situation in his/her country of origin, or if the person has developed a life-threatening medical condition. Unless the submissions are considered significantly different and recorded as a fresh claim, the applicant will not be able to appeal against the claim being refused by the Secretary of State. If the UKBA does not record new submissions as a fresh claim, applicants may be able to challenge the decision by judicial review.
Family ILR exercise
In October 2003, the UKBA announced that it would consider giving indefinite leave to remain to families that had been waiting for an asylum decision for more than three years. This was to try to clear a backlog of outstanding asylum applications. The concession applied to families with children who applied for asylum before 02 October 2000 and included families where the appeals process had not been exhausted and where final decisions were made but removal was not affected. Families who think they meet the criteria for the concession should seek legal advice.
For more information, visit the Home Office website.
