Asking for Asylum under British Law

A very good source of information, including MPs, the process, contact details etc is www.aviddetention.org.uk. Please also refer to this site for the latest developments.

PART 1: British law differs from European law

PART 2 : How does the asylum procedure work?

PART 3: What is 'evidence', what is 'proof'

PART 4: Solicitors

PART 5: KEEP SANE : Finding support, studying, volunteering.

PART 6: Case Resolution Programme

PART 7: SUCCESS? After Leave to Remain: Registering for benefits and for work

PART 8: Advice and Help Contacts

Part 1: British law differs from European law

1.1) Introduction

The British system of justice is adversarial, like the American. It is not the same as the European system of investigative justice in which a judge directs the examination of evidence and legal argument. In 'Adversarial' justice the asylum seeker's legal representative and the Home Office representative fight it out before a neutral judge. This judge decides the quality of their arguments against a set of basic criteria based on the (1951) Geneva Convention, supplemented by 'case law'. ('Case law' is a collection of important judicial decisions which have established clear answers to the major asylum questions. Case law of course changes slowly over time.)

1.2) Who pays for lawyers?

The cost of your asylum procedure is paid for by the British taxpayers through Legal Aid if you have no money.

Solicitors who can offer you help without payment are those who have a licence to claim Government money from the 'Lord Chancellor' (=UK Minister of Justice)'s department, the Legal Aid Board/LSC. When choosing a solicitor always ask if they have such a 'Legal Aid Franchise'. If they do not have one and want you to pay they still have to tell you about Legal Aid……

Also ask whether they are members of ILPA/ the Immigration Law Practitioners Association, many but not all of whose members are skilled and committed. The best ones are also the busiest, so do not wait to the last minute; some have waiting lists of many weeks. But if you have the time, and are not waiting for an approaching deadline date, it may be worth your while to wait for a good one…..

A good solicitor can sometimes win a weak asylum case; a bad one will lose even a very strong case

DO NOT ACCEPT an offer to find you a solicitor from an interpreter or advisor at one of the arrival ports into the country, or from the list provided by Immigration officials or even some NASS hostel staff… you need to find out first who is good, but these tend to be very bad….The people approaching you will get paid for any client they bring in…. it is called TOUTING and it is illegal. Good advice agencies are listed below.

There are also some expert public charity organisations of lawyers funded by the government's department of Justice (called Department of Constitutional Affairs in Britain) to represent you without payment. They are independent, that is, NOT influenced by the Home Office just because they receive public money!

The main trustworthy organisation is Refugee and Migrant Justice (RMJ). There is also the Immigration Advisory Service (IAS).

If you are detained in prison especially, you may not have a solicitor yet, or one the Immigration Service gave you on arrival and who has not done anything except ask you to sign the 'Green Form' for claiming Legal Aid money. If that is the case you must ask prison staff at once for an appointment with the Detention Advisory Service (DAS), who visit prisons, or get a visitor from one of the Asylum Visitors' voluntary groups who can find you a good source of advice on lawyers.

Or ring BID/Bail for Immigration Detainees, or Refugee and Migrant Justice. Below you will find some hints on how to decide if someone is a good lawyer.

1.3) Two types of legal representation

In Britain there are two types of lawyers:

1) Solicitors, who take information and instructions from you the client. Most solicitors do not have the right or the training to address the Court.

2) Barristers, who get instructions from the 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 only speaks with you for a short time before the court hearing.

For appeals, solicitors prepare the case, barristers present it in court.

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PART 2 : How does the asylum procedure work?

The burden of proving that you are not safe in your country of origin rests upon you, the asylum seeker.
It is the Home Office's job to oppose you at every stage and NOT TO alert you or the judge to possible evidence which may help you to succeed. They will seek to provide evidence you are NOT at risk personally, and seek to deny your country poses a danger to you or people like you: UNLESS your solicitor helps you to disprove this, you will lose.

STAGES OF THE ASYLUM PROCEDURE

1. Application:

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 the screening interview the Home Office tries to find out information such as:

• 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)
1. Refusal - Appeal
2. Humanitarian Protection or Discretionary Leave - Upgrade appeal
3. Refugee Status
4. 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.



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PART 3: What is 'evidence', what is 'proof'

'Evidence' will be used by your lawyer to argue that you have 'proved' your case. Other evidence will be used by the Home Office lawyer to 'prove' you have not made your case.

In asylum law it need not be a perfect proof, but should have a carefully decided degree of credibility, based on your evidence, on evidence on your country, and also on legal rules derived from the law and from previous judgments.

3.1) Objective evidence:

this comes from:

• Country position reports' from the United Nations High Commissioner for Refugees.
• Country reports from Amnesty International and such Non-Governmental organisations.
• Bulletins from Foreign Ministries of Britain, USA, or other countries with asylum seekers.
• Newspaper reports.

Anything new your lawyer may research and find which helps your case.

3.2) Personal evidence:

This may consist of:

• Your own identity documents: birth certificates, passport, school/college certificates, party membership cards, marriage/baptism certificates, arrest warrants, etc.
• Local, national or international media reports, which name you, or people you can show you know.
• Letters of attestation of membership of a known social/ethnic group, party, religion at risk of persecution. The letter may be from your country or this country. If it was sent from abroad KEEP ENVELOPES, with stamps, etc. High profile continued activity in the UK may become an additional argument in your case, if it can be shown to endanger you on return. But not if you do it just for that reason! Often faxes are mistrusted, because they are easily falsified; get originals if at all possible without risk to the foreign sender.
• Letters or documents from others, especially those in organisations at risk, and know you and can be checked out.
• Having verifiable documented details of friends or family who have already gained refugee status here or elsewhere.

3.3) Medical reports.

If you have been tortured or suffered war effects, a report from a specialist in diagnosing and treating such people is important in court. In Britain the main group is the Medical Foundation for the Care of Victims of Torture ('MF'), and a small number of specialists, often connected to it. Even if you do not achieve the standard of proof needed for full refugee status, such a report may help in getting you leave to remain on humanitarian grounds.

Their doctors are very skilled; trust them. You cannot 'fake' the effects of torture or rape … so don't try, just answer their questions. Don't be afraid to cry or remember fear and anger …

The MF is always overloaded with work, so your solicitor should ask for such a report at the earliest opportunity.

3.4) 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?

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PART 4: Solicitors

A good lawyer will help you make the best of your case, but is professionally not allowed to make misleading representation knowing that is the case … So if from further instructions you give during the procedure s/he learns the truth to be otherwise than what s/he presented on your behalf to the Home Office or Court previously s/he may have to decide to pass your case to another solicitor. This is called 'professional embarrassment'.

Merits Test: Solicitors must justify getting paid Legal Aid. They must judge beforehand whether a claim has a more than 50% chance of succeeding. If he/she judges the claim to have less than 50% chance, he/she declares it 'without merit'. Such a judgment is subjective; another lawyer may view the claim differently. The solicitor must give you a written reason for 'dropping your case' for lack of merit. If he/she says the LSC/Legal Services Commission has refused, you can ask them to appeal that refusal.

What is 'a bad solicitor'?

A BAD solicitor will :

• Persuade you or push you to change your story, embroider it, offer to change it.
• Take money from you or relatives for representation without telling you you have a right to free representation on Legal Aid.
• Fail to inform you of court dates, decisions, send you copies of letters sent on your behalf to the authorities (called 'making representations').
• Fail to interview you, make a statement, ask you to agree it as correct, send it to court.
• Fail to submit evidence you provided, or find evidence about your country to support your story.
• Not have a barrister in court with you when you agreed s/he would send one.
• 'Drop you'; telling you a few days before hearing they will not come to court with you.
• Fail to appear, when they said they would.
• If detained, not visit you to 'take instructions' from you.

If one, several, or all of these things happen to you, ask how to complain to the Office for the Supervision of Solicitors, the OISC.

What is 'a good solicitor'?

Here are the signs of a GOOD solicitor:

• S/he will meet with you well before the date of hearing for at least one thorough interview, to prepare you for tough questioning, to correct errors and omissions in your story, and to rehearse it with you, until you are both confident you each know it.
• S/he will send you the written statement based on this discussion, and ask you if it is correct, then ask you to sign it.
• S/he will clearly explain procedure, your role, and his role.
• S/he will write to you in good time about actions to take, progress of your case, hearing dates.
• S/he will use good interpreters, and pay attention to your comments about it.
• S/he will not pressure you to change your story towards untruth to 'help' you.

Even if afraid, do NOT make rash decisions! E.g. to leave the country, not to attend, not to communicate, or go into hiding. It will be the end of your chance of asylum and of your credibility. If caught, it will land you in detention.

Don't attempt to force quick solutions. If you have been admitted as an asylum seeker you cannot leave Britain before the procedure is finished; to leave will cut short your application. If later you return to make another application, you will find you have lost what little credibility the Home Office grants asylum seekers, and it will be even harder to start another one. The risk of being detained will be higher.

You can change solicitor at any stage simply by instructing another one to ask the previsous one to pass your file. If in doubt, and you lose an appeal, take advice on the quality of your solicitor. It may sometimes but not always, be their fault.

For good advice see list of agencies at the end.

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PART 5: KEEP SANE : Finding support, studying, volunteering.

After the first excitement of having made it into the UK, your first four months, up to 2 years, in Britain will be very uncertain, you will find yourself without much help, and without money. Since July 23 2002 you will no longer be allowed to seek work at all, even if six months after your date of asylum application you still have no decision, as was the case…. In practice it means virtually no one can work till there is a final decision.

Keeping sane: Without work or money, or knowing what the outcome of your asylum application will be, or because of missing your own people and language, you will probably get anxious and depressed. You will spend many months of insecurity and no resources. To fight depression, give yourself a daily timetable of things to do or learn or achieve, and keep to it, even if your mind finds this hard. And make contacts…

Finding support: Make friends, socialise, join church, mosque or temple of your faith, language and culture, to strengthen you. If you don't trust your own community (which happens to many asylum seekers) find a voluntary refugee support group, there are many, hidden in corners of the cities, in churches, places of prayer, community centres etc. Social ties are the source.

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PART 6: CASE RESOLUTION PROGRAMME

Older asylum claims made before March 2007 are known as 'case resolution' (formerly legacy) cases. These cases are dealt with separately by a Case Resolution Directorate (CRD). They include cases:

• that have not been fully determined
• applications for further leave
• cases awaiting appeal
• those that have exhausted their appeal rights but remain in the UK

Case resolution can lead to the grant of status to an individual or to a refusal of leave to remain and removal from the UK. It is not an amnesty for individuals whose cases are unresolved.
How does the CRD deal with older unresolved cases? Each older case has been given to a case owner. The case owner will check computer records against paper files, correct data errors and delete duplicate records.

Priority cases are:

• people that may pose a risk to the public
• applicants who can be removed swiftly
• people receiving asylum support
• people who may be allowed to stay in the UK

Notifying individuals: If cases are selected for consideration the Home Office will contact individuals requesting further information where appropriate.

This may be in the form of a questionnaire or a letter containing:

• an explanation that their case has been selected to be case worked
• information and contact details for the case owner
• a standard paragraph explaining how to obtain legal advice
• information about how they could return home voluntarily one stop notice

If asylum seekers receive a notification letter they should get legal help.

If individuals have not been sent a letter but wish to tell the CRD that circumstances have changed (eg, if they have a child, marry or change address) they should contact the Immigration Enquiry Bureau by telephone on 0870 606 7766.

Getting legal advice: Many people whose initial applications were refused or lost at appeal find it difficult to get legal representation. They must be prepared to explain why their case requires further attention.

Good grounds for asking for advice and representation include:

• there is a real danger of serious harm if returned to their home country as new circumstances affecting themselves or their country of origin have arisen
• previously submitted evidence relating to their case has never received a response. New evidence has become available and never been considered.
• there may be human rights considerations in that their removal may have a disproportionate effect on family or private life.
• they may qualify under the Long Residence Rules if they have been here lawfully for 10 years or unlawfully for 14 years.
• they are one of a group of cases that should have but did not benefit from earlier Home Office policies in place at the time of their application
  
  
  

PART 7: SUCCESS? After Leave to Remain: Registering for benefits and for work

Now starts a busy time: 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 and find out how to access the mainstream benefits system before UKBA ends support (You only have 28 days)

NASS 35: This is a Home Office document stating that UKBA support will be terminated because the applicant has received a positive decision on his/her asylum application. It also provides proof the applicant has received asylum support in the past.

The Home Office should send a NASS 35 with its decision letter.

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 the NASS 35 is delayed, this should not stop Job Centre Plus processing 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 the Immigration Status Document and Home Office letter. (The NASS 35 can be presented at a future date.)

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).

PART 8: Advice and Help Contacts

If you need a good solicitor, or advice on your current one, or on paying for lawyers

1) Refugee and Migrant Justice (RMJ) (tel 020 7780 3200); Nelson House, 153-157 Commercial Road, London E1 2EB.

2) The Joint Council for the Welfare of Immigrants, JCWI (020 7251 8708) 115 Old Street EC1V 9RT (underground station Old Street)

If you need advice on your current solicitors or news on your asylum procedure, especially if in prison

1) The Detention Advice Service (tel 020 7254 6888) , [email protected]

2) BID/Bail for Immigration Detaineees (see below for contact details)

If you are suffering because of past persecution, detention, torture, or sexual abuse

Having unbearable memories of past experiences may cause you to fall ill in body or mind, now or later: You are NOT crazy even if you or some people seem to think so. Find help! Don't hide it, it may not ever go away totally but it can be made a lot better with good help.

The Medical Foundation for the Care of Victims of Torture, 111 Isledon Rd, London N7 7JW, tel. 020 7697 7777

If you are detained and want a visitor

AVID, the national Association of Visitors to Detention Centres (Box 1496, Oxford OX4 9DY), have a list of visitors groups attached to various detention centres and prisons. Administrator: tel.01865 250690

AVID will also advise and train those who want to start a visitors group themselves.

If you are detained and need bail in immigration court because your solicitor doesn't do it

BID can usually help; except at certain points in the asylum procedure; Ask their advice. They get BUSY!

BID/Bail for Immigration Detainees, [email protected] tel. 020 7247 3590
BID Portsmouth: 023 9281 6633; BID Oxford: 0845 330 4536

If you need a surety for bail in court but have no British contacts, friends or relatives

The Bail Circle: tel. 07861229954

Refugee Council: 240-250 Ferndale Rd, Brixton, London SW9 8BB; tel: 020 7346 6700; fax 020 7346 6701

London Advice line: 020 7346 6777 (Mon, Tues, Thurs, Fri 10-1pm, 2-4 pm; Wed 2-4 pm)

They are experts at helping with welfare problems.


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