- British system of justice is adversarial
- asylum seeker’s legal representative and Home Office representative ‘fight it out’ before a neutral judge
- judge hears their arguments against criteria based on (1951) Geneva Convention supplemented by ‘case law’
Who pays for lawyers?
Legal Aid if you have no money. (It is paid for by British taxpayers)
Legal Aid Solicitors must have a ‘Legal Aid Franchise’ (Solicitors who do not do Legal Aid cases must tell clients about the existence of Legal Aid)
Choosing a lawyer
Check whether they are members of ILPA/ the Immigration Law Practitioners Association. DO NOT ACCEPT offers to find you a solicitor from:
- interpreters or advisers at airports
- Immigration officials or NASS hostel staff who may provide you with lists
- Find out first who is good!
Two types of legal representation
Solicitors: they take information and instructions from you (Most do not have the right or the training to address the Court)
Barristers: they get instructions from solicitor and are expert on law details. (A barrister has the right to address the court but will not take evidence or instructions from you. He/she usually only speaks with you for a short time before the court hearing.)
3) For appeals, solicitors prepare the case, barristers present it in court.
How does the asylum procedure work?
- You have to prove that you are not safe in your country of origin
- Home Office will oppose you at every stage and will NOT tell you (or the judge) about possible evidence which may help you succeed
- They will try to prove you are NOT at risk personally
They will deny your country poses a danger to you
Stages of the Asylum Procedure
Applications for asylum have to be made in person either at a port of entry or after entering the UK.
Most port applicants receive temporary admission into the UK, in the form of an IS96 document. This lets the applicant stay in the UK until they get a decision on their asylum application.
Asylum applicants who are already in the UK are called in-country applicants. They might be a visitor, student, overstayer or illegal entrant.
In-country applicants must apply for asylum in person at one of the UK Border Agency (UKBA) Asylum Screening Units (ASUs) in Croydon or Liverpool.
2. Screening and induction
At screening interview Home Office tries to find out:
- The applicant’s identity
- How they got to the UK – did they pass through a third country and apply for asylum there?
- Details about family members who might be dependants on the asylum application
- Does the applicant have entry clearance?
- Have they applied for UK visas before?
- When did they arrive in the UK?
Interviewing officers ask questions to help them decide if they can fast-track an application or if they can return the applicant to a safe third country without having to consider their application. UKBA may interview port applicants in detail about their claim straight after the screening. Asylum applicants should be given a copy of the interview record.
The authorities will check whether an applicant has the passport or document on which they travelled to the UK.
During the screening interview applicants (including dependants) are fingerprinted, photographed and allocated a case owner. The case owner is responsible for the case from application to the granting of status or removal.
UKBA can detain applicants at this stage and will also decide in which segment to put the case (this determines how their case is dealt with and includes Third Country, minors, safe country, detained fast-track, and general case categories.)
After the screening interview the applicant is issued an ARC (Application Registration card), which proves identity, status and entitlement to services in the UK.
If UKBA cannot issue an ARC after screening, it will issue a standard acknowledgement letter (SAL) instead which is a temporary document stating that the person has applied for asylum.
In cases of disputed nationality the Home Office will hold a nationality interview
Adult asylum applicants must submit all evidence for their asylum claim before or at the interview. (The case owner can allow additional evidence to be submitted subsequently within five days of the interview.)
Reporting and induction: Most asylum applicants (who are not detained) must report to a reporting centre. (If they have to travel more than three miles to report they can apply for help to pay for transport.)
Adult asylum applicants are expected to receive an initial induction within a few days of making their asylum application. During induction, applicants can apply for asylum support and get information on the asylum process, services available to them and on their rights and responsibilities in the UK. UKBA case owners manage any support an applicant may be entitled to.
3. Asylum interview
It is very important to see a legal representative before the interview.
Dates and times of interview appointments are usually given to the applicant when reporting for the first time. It is vital to attend any interview. If you don’t attend, the UKBA can refuse your claim on ‘non-compliance’ grounds. Most interviews take place at the offices of the case owner team. Detained applicants being fast-tracked are normally interviewed in their detention centre.
During the asylum interview, an asylum seeker is expected to give all the information about why they have claimed asylum. People who have been tortured or suffered traumatic incidents may find it very hard to talk about such events, but the applicant has to try to provide proof that these things have happened. Any papers or other evidence should be given to the case owner at the interview.
If an applicant is too unwell to attend the interview, medical evidence must be provided to show they are unfit to attend. (In such cases the interview may be postponed.)
Recording the interview: At the end of the interview, asylum seekers are asked to sign a copy of the interview record. They should not sign it if they are unclear about its contents or have not been given enough time to carefully read through it. (They should also be given a copy of their interview record.)
Asylum seekers can have their asylum interview tape recorded but should tell the authorities 24 hours before the interview that they want it tape-recorded. They should also make sure they get a copy of the tape at the end of the interview. (If UKBA doesn’t have the right equipment, the interview should be delayed.)
Interpreters: The Home Office provides an official interpreter if needed. If the asylum seeker is not happy with the interpreting, s/he should tell the interviewer at once and insist on a new interview. Women asylum seekers can request female interpreters.
Travel to interview: Applicants on UKBA asylum support should get a travel warrant to cover the cost of transport to their main asylum interview. This should be arranged by their case owner at the time of their first reporting event.
National insurance application: During the asylum interview, the Home Office asks questions to help them put in an application for a national insurance number for the applicant. If an applicant gets a positive decision from the Home Office, they will get a national insurance number at the same time.
POSSIBLE OUTCOMES: (and next steps)
- Refusal – Appeal
- Humanitarian Protection or Discretionary Leave – Upgrade appeal
- Refugee Status
- Certified on 3rd country grounds – Removal or Judicial Review
APPEAL : If you have been refused you can appeal but MUST do it within the deadline given on the refusal letter.
It takes about a month to properly prepare for an appeal. Proper preparation needs serious work. For you: to get as much genuine evidence to prove your claim as you can get: Letters, arrest warrants, death certificates, press cuttings, letters from political organizations you joined, or known and respected individuals in your community in the UK or your home country …
DON’T EVER fabricate false evidence or get people to write things which are not true … you WILL almost certainly get found out during questions in court!
The good solicitor will:
- Arrange an interview with you to go through any errors in the interview record, go through your letter of refusal, explain your reasons for asking for asylum more fully, and to provide new personal documentation if you have any
- The resulting statement from this interview will need to be checked and agreed with you
- Some legal research will need to be done as well as research on the conditions in your country when you left and the current situation
- Instruct a barrister (once a date for your appeal hearing has been set) who will find more legal arguments and decide on how to present your case.
Preparing an appeal takes time: MAKE SURE LAWYERS HAVE IT.
What do I need to prove I am a genuine refugee?
The questions the judge decides upon, are mainly the following:
- Are you who you say you are?
- Are you from the place you say you are?
- If you passed through other European countries why did you not ask for asylum there?
- Did you suffer real and personal danger and persecution? Who did it? Who might do it?
- Is there a place within your own country where you could be/have been safe?
- Who persecuted you? Was it a ‘Geneva’ recognised group, eg. Political/religious/gender; or a civilian, eg. Criminal group? It is very much harder to get acceptance for the latter.
- If it is not your government, can your government offer adequate protection:
- If your government doesn’t offer protection, does it cooperate with the persecution?
- If you return, will you be safe? If not, why not?
- Has your asylum application increased the risk for you upon return, by bringing you to the attention of the persecutors?
- Have you engaged in activity in this country which will put you at risk when you return? Eg. Demonstrated, written or spoken publicly, or met contacts likely to be in touch with the persecutors?
- Can you show clear evidence of any violence, torture or abuse you said you suffered?
SUCCESS? After Leave to Remain
Registering for benefits and for work
As soon as you receive the Home Office decision letter, Immigration Status Document and a NASS 35 form:
- go to your local Jobcentre Plus office
- find out how to access the mainstream benefits system before UKBA ends support (You only have 28 days)
NASS 35: Home Office document stating UKBA support will be ended because applicant has received a positive decision on asylum application. (It also provides proof the applicant has received asylum support in the past.)
If you receive a positive decision on your asylum application but don’t receive a NASS 35, you should still visit the local Jobcentre Plus office and ask staff to request a NASS 35. Jobcentre Plus can do this by contacting UKBA.
Even if NASS 35 is delayed, Job Centre Plus should process a claim for Job Seekers Allowance or other benefits. The Department for Work and Pensions’ policy is that evidence for processing a claim through Job Centre Plus can be Immigration Status Document and Home Office letter. (The NASS 35 can be presented later.)
Moving on from initial accommodation: People in initial accommodation will not receive a NASS 35 automatically. They should show proof of their newly granted status at their local Jobcentre Plus office. Jobcentre Plus staff will need to request a NASS 35 form from UKBA themselves.
Accommodation: As soon as you have received the NASS 35 letter, go to your local authority’s Homeless Persons Unit, and register as someone who will soon be homeless. (If you have been given accommodation by relatives or friends who are no longer able to house you, you will need to get a letter from them saying they have looked after you in the past but cannot continue to do so.)
Benefits can be confusing. There is good information on the Advice Now website (www.advicenow.org.uk).