Author
A first application for asylum in the UK can be made either on arrival at the border, or at the Asylum Screening Unit (ASU) in Croydon (South of London), or, where a person is already detained it may be made from the detention centre. The ASU has been renamed the Asylum Intake Unit (AIU), but this name is not yet used in all guidance. In certain circumstances[1] usually due to inability to travel, arrangements can be made to register a claim at a regional centre. Claims made at the port of Dover result in screening at a short-term holding facility at former military site Manston unless identified as an unaccompanied minor in which case the process takes place within the port.
First instance procedure
In most cases the application is first screened, which involves an interview in which biometric data is taken, health and family information, details of the route of travel, and the broad outline of the reasons for claiming asylum. Children making a claim in their own right are not screened; if they are already in the care of the local authority their claim is registered with the Home Office at a scheduled interview. If the Home Office encounters them first, the child will be subject to a ‘welfare interview’.
On the basis of the screening interview the National Asylum Allocation Unit (NAAU) of the Home Office decides which route the application will follow. The alternatives are: unaccompanied children – referred to a specially trained decision maker; accelerated procedure (Detained Fast Track[2] or clearly unfounded with Non-Suspensive Appeal); safe third country procedure (inadmissibility) or general casework, which is the regular procedure. In all cases the procedure deals with both refugee status and subsidiary protection.
Potential safe third country cases are referred to the third country unit of the Home Office, which decides whether to refuse to consider the claim on the basis that the person can be removed to another country, including EU Member states[3] (this policy does not apply to claims made from EEA nationals; separate guidance applies to such claims).[4] Such inadmissibility decisions may be certified in which case there is no right of appeal. The decisions to declare an asylum claim as inadmissible, to remove an appeal right (in the case of asylum inadmissibility decision certificates) or to certify the substantive claim as clearly unfounded may be challenged in the UK only through judicial review. An application made to the Upper Tribunal can only be made with permission of that tribunal.[5] Judicial review proceedings do not consider the merits of a decision, but only whether the decision maker has approached the matter in the correct way.
The UK operated Detained Fast Track (DFT) procedures where Home Office officials considered that the case could be decided quickly. Following a series of legal challenges, the DFT policy is currently suspended.[6] The current guidance for applications considered whilst the applicant is detained was revised in March 2019.[7] The main change is to separate the casework on the asylum claim from the management of the decision to continue detention; decisions in each are handled by different sections of the Home Office.
In the regular procedure, decisions are made by a regional office of the Home Office. There is no time limit for making a first decision and a previous policy to apply service standards in terms of specific lengths of time has now been abandoned.[8] A replacement standard has not been announced. Information for applicants still states that decisions will usually be made within six months.[9] Reasoned decisions are normally sent by post, although they may be delivered to the asylum seeker in person when they attend the Home Office reporting centre. Removal notices are not usually issued at the same time as refusals.
Section 12 of the Nationality and Borders Act permits differential treatment of recognised refugees, depending upon the mode of arrival; the test applied to distinguish is whether or not the refugee is considered to have ‘come directly’; this includes those resettled and those who came by an authorised route and claimed asylum as soon as they were able. Refugees are designated ‘group 1’ (arrived directly) or ‘group 2’ status (everyone else); Refugees are invited to make representations on this differentiation before being issued with their leave and documentation.
Appeal
Appeal is to the First Tier Tribunal (Immigration and Asylum Chamber), an independent judicial body which is part of the unified tribunal structure in the Ministry of Justice. The appeal is suspensive unless certified otherwise and must be lodged within 14 days of the asylum refusal being sent. The tribunal proceedings are broadly adversarial, with the Home Office represented by a presenting officer.
A further appeal on a point of law may be made to the Upper Tribunal with permission of the First Tier Tribunal, or, if refused, of the Upper Tribunal. Application for permission to appeal must be made within 14 days of deemed receipt of the First Tier Tribunal decision. Asylum appeals before the First Tier and Upper Tribunals are heard by a specialist Immigration and Asylum Chamber.
Appeal from the Upper Tribunal to the Court of Appeal on a point of law may only be made with permission of the Upper Tribunal or the Court of Appeal. A final appeal to the Supreme Court may only be made on a point of law of public importance, certified by the Court of Appeal or Supreme Court. The Court of Appeal and Supreme Court are superior courts with a general jurisdiction.
Rules and guidance
Immigration Rules and guidance govern the day-to-day operation of immigration and asylum decision-making. Immigration Rules are made by the Home Secretary and are laid before Parliament in a procedure that does not routinely involve scrutiny. In relation to asylum most of the rules are concerned with the process rather than the substance of the decision, but they do include, for instance, factors relevant to credibility. Interpretation of the Refugee Convention including a two-stage process for establishing that someone is a refugee, is now in primary legislation through implementation of the Nationality and Borders Act 2022. A breach of the rules is grounds for an appeal, although this is rarely relevant in asylum cases.
The Home Office also issues detailed practical guidance for asylum decision-making. Guidance deals with a wide range of issues including how to conduct interviews, how to apply some legal rules, country of origin information, and detailed procedural and administrative matters. Guidance is not directly binding, but should be followed, and failure to do so can be grounds for an application for judicial review.
The Immigration Rules and guidance are available on the government website, www.gov.uk, including information about countries of origin used in asylum decision-making and guidance for staff on how to make asylum decisions.
[1] Home Office, Asylum Screening and routing – Version 8.0, 3 February 2023, available at: https://bit.ly/3GoCPew.
[2] Currently suspended but remains in the description of the procedure.
[3] UK Government, ‘Inadmissibility -; third country cases: caseworker guidance’, last updated 28 June 2022, available at: https://bit.ly/3tH6VDM.
[4] UK government, ‘EEA and EU asylum claims: caseworker guidance’, last updated 28 June 2022, available at: https://bit.ly/34XL2Wl.
[5] Section 16 Tribunals Courts and Enforcement Act 2007.
[6] House of Commons, Written Statement made by The Minister of State for Immigration (James Brokenshire), HCWS83, 2 July 2015.
[7] Home Office, Detained Asylum Casework- asylum casework, March 2019, available at: https://bit.ly/36UrFtv.
[8] Clarified in parliament in response to a Parliamentary Question, ‘Asylum: Applications’, 18 February 2019, available at: https://bit.ly/2NvXkJU.
[9] UK Government, ‘Claim asylum in the UK’, available at: https://bit.ly/2FTbxMO.