Further Submissions: So Are the Home Office Serious About Making Failed Asylum Seekers Submit Charged Applications In Non – Protection based Human Rights Claims?

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The Home Office published a new policy on 19 February 2016 as regards Further Submissions from failed asylum claimants.  There still  remains the general requirement   for claimants  to  submit their  further submissions in person  at Liverpool( subject to certain exceptions),  however  a new stated Policy Intention has been  published.   This  includes relevantly, requiring protection based further submissions from failed asylum seekers to be made in person in Liverpool.  Further submissions on non-protection human rights grounds  are  required to be made by means of a valid charged  application by post to the Home Office.

In this regards, the  new  policy states that in cases where the exemptions( Rule  276A0 of the Immigration Rules and in paragraph GEN 1.9 of Appendix FM of the Rules)  do not apply and a valid application is not made, Home Office  caseworkers can consider whether to reject the request to consider further submissions and advise the claimant that they should make a valid application. However, having regard  to the  said Rules  taken together with the  new  policy, questions arise  which are  not  addressed  by the policy.  Firstly, it appears that the mentioned Rules are at odds with the  new  policy  intention.  The said  Rules as  currently drafted  appear to  still be catering for the March 2015 Further Submissions  policy which  did not differentiate   between protection and non -protection based human rights claims requiring to be submitted in person in Liverpool following the refusal of  an asylum or humanitarian protection claim. Secondly,  having regard to the wording used within certain sections of the new policy, some uncertainty appears evident, where it seems as  it does now  from Section  3.9 of the new policy, that where the exemptions do not apply as clarified above, a Home Office caseworker can in effect exercise some  discretion. Where this is correct, then  the Home Office should  publish relevant clearly defined exceptions  enabling  Home office caseworkers  to so exercise  any such  discretion. Such  exceptions should be made known to claimants.

Further, since the stated policy intention requiring protection based further submissions from failed asylum seekers to be made in person in Liverpool  is  to ensure they maintain contact with the Home Office and to minimise the risk of fraud by checking their identity, then  this begs the question; why,  simply because failed asylum seekers are to  submit  non – protection based claims by post,  they too as per the previous policy,  would  not  be required to make submissions in person in order to   maintain contact with the Home Office and to minimise the risk of fraud.  Upon submission of a postal  human rights claim, biometric are required to be taken by the applicant; this assists  in ascertaining their identity.  In  practice,  the Home Office usually also  require biometrics to be taken in relation to protection based further submissions   especially if the claimant is  shortly to be granted leave; this too assists in ascertaining  their  identity.   In addition, it is very likely that  generally, failed asylum claimants are subject to regular  reporting requirements- this also  ensures that they maintain contact with the Home Office.  Charged valid applications also require payment of  the NHS Health surcharge.  A statement from the government  on 19 March 2015 in relation to the NHS Health Surcharge  stated that the government was set to recoup up to £1.7 billion over the next ten years to help pay for the cost of NHS treatment given to temporary migrants.  Therefore, unless  the  policy has been amended with  this goal in mind or  from the  Home Office point of  view,  to  ensure  that   “unmeritorious” protection  claims from failed asylum seekers  are detected quickly  with claimants  being detained and  submissions  refused with a view to  speedy removal, it is  unclear why   the new policy  has drawn lines  and sought  to differentiate between protection and non- protection based claimants when   making a  requirement as to which types of further submissions are to be submitted by way of a valid charged application.

THE RELEVANT IMMIGRATION  RULES

Rule 353  currently states,

“Fresh Claims

  1. When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection. This paragraph does not apply to claims made overseas.

353A. Consideration of further submissions shall be subject to the procedures set out in these Rules. An applicant who has made further submissions shall not be removed before the Secretary of State has considered the submissions under paragraph 353 or otherwise”.

Rule 353B currently provides:

“Exceptional Circumstances

353B. Where further submissions have been made and the decision maker has established whether or not they amount to a fresh claim under paragraph 353 of these Rules, or in cases with no outstanding further submissions whose appeal rights have been exhausted and which are subject to a review, the decision maker will also have regard to the migrant’s:

(i) character, conduct and associations including any criminal record and the nature of any offence of which the migrant concerned has been convicted;

(ii) compliance with any conditions attached to any previous grant of leave to enter or remain and compliance with any conditions of temporary admission or immigration bail where applicable;

(iii) length of time spent in the United Kingdom spent for reasons beyond the migrant’s control after the human rights or asylum claim has been submitted or refused; in deciding whether there are exceptional circumstances which mean that removal from the United Kingdom is no longer appropriate. This paragraph does not apply to submissions made overseas. This paragraph does not apply where the person is liable to deportation”.

SOME BACKGROUND

On 14 October 2009, a Home Office policy required that all further submissions following the refusal of asylum were to be made in person. Previously such submission were forwarded to the Home Office by post.

A Ministerial Statement of 13 October 2009 stated as follows:

“From 14 October, anyone wishing to make a further submission will need to do so in person by appointment, and we will stop accepting further submissions by post. The following arrangements will be in place:

those who claimed asylum before 5 March 2007, and whose case is being managed by CRD, will be required to make any further submissions by appointment and in person at Liverpool Further Submissions Unit;

those who claimed on or after 5 March 2007 will be required to make any further submissions in person at a specified reporting centre in their region.

In the very exceptional case where a person is genuinely unable to attend one of these sites, alternative arrangements will be made to ensure that person can still make further submissions”;

http://www.publications.parliament.uk/pa/cm200809/cmhansrd/cm091013/wmstext/91013m0002.htm

From 30 March 2015 the home office changed their policy again- this time   requiring that all further submissions following the refusal of asylum, be made in person at the Further Submissions Unit in Liverpool. The new change therefore meant, (subject to some exceptions) that unlike the initial policy of 2009, the requirement to make submissions in Liverpool in person was not just confined to those who had lodged claims prior to 5 March 2007. The 2015 policy stated that Reporting Centres   were no longer to accept further submissions on or after 30 March 2015 unless an appointment had been made to do so prior to 30 March 2007.

On 19 February 2016, the Home Office changed their policy once again- the general requirement is still  for claimants to make further submissions in person in Liverpool however there is a difference between the 2015 and 2016 policies in that now the Home Office require that protection based claims be submitted in person but that non -protection based human claims be submitted via valid charged applications by post to the Home Office.

DIFFERING NEW POLICY INTENTION AND THE RELEVANT PROVISIONS ON NON – PROTECTION BASED HUMAN RIGHTS CLAIMS

30 March 2015 Policy:

The 30 March 2015 Policy stated as follows as regards the Home Office Policy Intention:

“1.1 Purpose of instruction

This guidance explains the policy, process and procedure which must be followed when considering further submissions lodged following the refusal of an asylum or human rights claim, or where an asylum claim has been withdrawn or treated as withdrawn under parpgahs 333C of the Immigration Rules.

………………………

1.3 Policy Intention

The policy objective when dealing with further submissions is to maintain a firm but fair and efficient immigration system that grants protection or leave to those that need it, but tackles abuse and protects public funds by quickly rejecting unfounded claims by:

  • requiring further submissions to be made in person to ensure failed asylum seekers maintain contact with the Home Office and to minimise the risk of fraud by checking the identity of those making further submissions
  • quickly considering whether the new evidence changes the original decision to refuse, thus granting protection or leave to remain to those who need it
  • ensuring   that further submissions which are clearly unfounded are refused quickly to facilitate removal and, in asylum cases, prevent or limit access to asylum support
  • dealing quickly with unfounded claims or those who rely on evidence previously considered, to deny access to the labour market to those who do not  comply with the process and submit such claims to frustrate removal
  • ensuring that those who are not in need of protection and have no other right to be in the UK either leave voluntary or have their removal enforced quickly

……………………

3.1 Application Process

All further submissions made following the refusal of an asylum claim must be considered in person”.

19 February 2016 Policy:

The 19 February 2016 Policy currently states as follows :

“About this guidance

…………………

Changes from last version of this guidance

  • updated to reflect Immigration Act 2014 changes since v8.0
  • clarification on how paragraph 353 applies to human rights only cases, including valid applications made under the Immigration Rules after an earlier asylum or human rights claim has been refused
  • additional circumstances in which paragraph 353 does not apply to further asylum or human rights claims.  

 

  • 1.1 Purpose of instruction
  • ………………

This guidance explains the policy, process and procedure which must be followed when considering further submissions following the refusal of an asylum or human rights claim, or where an asylum claim has been withdrawn or treated as withdrawn under paragraph 333C of the Immigration Rules.

……………………..

1.3 Policy intention

The policy objective when dealing with further submissions is to maintain a firm but fair and efficient immigration system that grants protection and/or leave to those who need it, or qualify for it, but tackles abuse and protects public funds by quickly rejecting unfounded or repeat claims. This is achieved by:

  •  requiring protection based further submissions from failed asylum seekers to be made in person to ensure they maintain contact with the Home Office and to minimise the risk of fraud by checking their identity
  • requiring further submissions on non-protection human rights grounds to be made by means of a valid application
  • quickly considering whether the new evidence changes the original decision to refuse, to ensure we grant protection and/or leave to remain to those who qualify for it
  • dealing quickly with unfounded claims and using immigration detention to ensure those who do not need protection and have no other right to be in the UK leave voluntarily or have their removal enforced quickly (and in the meantime cannot access financial support)”.

“3.1 Application process for failed asylum seekers

All further submissions made on protection grounds following the refusal of asylum or humanitarian protection must be made in person at the Further Submissions Unit (FSU) in Liverpool.

…………….

3.3 Waiving the ‘in-person’ requirement

………

Those who raise non-protection based further submissions

Where a failed asylum seeker wishes to raise further submissions on non protection grounds, for example, on the basis of family or private life, they should submit a valid postal application (with the appropriate fee) as set out in Section 3.9 below, although they can submit their submissions in person in Liverpool. Regardless of how the submissions are lodged, paragraph 353 must still be applied.

3.9 Non-protection human rights cases

Further submissions made on ECHR Article 3 (medical) or Article 8 family or private life grounds following the refusal or withdrawal of an earlier application and the conclusion of any appeal must normally be submitted as a valid application to UK Visas and Immigration (UKVI) Temporary Migration unless they are made in the context of deportation. Further submissions in non-deportation cases can be submitted by post to the address on the application form or in person at a Premium Service Centre by way of a valid application on:

 the FLR(FP) form on the basis of family and private life

 the FLR(O) form on the basis of medical grounds

The circumstances in which the requirement to submit a valid application will not be applied are set out in paragraph 276A0 of the Immigration Rules and in paragraph GEN 1.9 of Appendix FM of those Rules. In cases where the exemptions do not apply and a valid application is not made, caseworkers can consider whether to reject the request to consider further submissions and advise the claimant that they should make a valid application.

Alternatively, where further submissions are submitted, for example in response to a Section 120 notice by way of a statement without a valid application, caseworkers can deal with such claims under paragraph 353 and either grant leave (if appropriate) or enable enforcement action to be taken against those who submit such claims to frustrate removal.

In criminal deportation cases where Article 8 issues are raised, caseworkers must consider whether the family and private life rules in Part 13 are met. See Criminality guidance for Article 8 ECHR cases”.

PARAGRAPH 276A0 OF THE IMMIGRATION RULES AND GEN 1.9 OF APPENDIX FM

Paragraph 276A0:

Paragraph 276A0 of the Immigration Rules currently provides:

“276A0. For the purposes of paragraph 276ADE(1) the requirement to make a valid application will not apply when the Article 8 claim is raised:

(i) as part of an asylum claim, or as part of a further submission in person after an asylum claim has been refused;

(ii) where a migrant is in immigration detention. A migrant in immigration detention or their representative must submit any application or claim raising Article 8 to a prison officer, a prisoner custody officer, a detainee custody officer or a member of Home Office staff at the migrant’s place of detention; or

(iii) in an appeal (subject to the consent of the Secretary of State where applicable)”

GEN 1.9 of Appendix FM:

GEN 1.9 of Appendix FM currently states :

“GEN.1.9. In this Appendix:

(a) the requirement to make a valid application will not apply when the Article 8 claim is raised:

(i) as part of an asylum claim, or as part of a further submission in person after an asylum claim has been refused;

(ii) where a migrant is in immigration detention. A migrant in immigration detention or their representative must submit any application or claim raising Article 8 to a prison officer, a prisoner custody officer, a detainee custody officer or a member of Home Office staff at the migrant’s place of detention; or

(iii) in an appeal (subject to the consent of the Secretary of State where applicable); and

(b) where an application or claim raising Article 8 is made in any of the circumstances specified in paragraph GEN.1.9.(a), or is considered by the Secretary of State under paragraph A277C of these rules, the requirements of paragraphs R-LTRP.1.1.(c) and R-LTRPT.1.1.(c) are not met

Paragraph A277C

Paragraph A277C of the Rules provides:

“A277C. Subject to paragraphs A277 to A280B, paragraph 276A0 and paragraph GEN.1.9. of Appendix FM of these rules, where the Secretary of State deems it appropriate, the Secretary of State will consider any application to which the provisions of Appendix FM (family life) and paragraphs 276ADE to 276DH (private life) of these rules do not already apply, under paragraphs R-LTRP.1.1.(a), (b) and (d), R-LTRPT.1.1.(a), (b) and (d) and EX.1. of Appendix FM (family life) and paragraph 276ADE(1) (private life) of these rules. If the applicant meets the requirements for leave under those provisions (except the requirement for a valid application), the applicant will be granted leave under paragraph D-LTRP.1.2. or D-LTRPT.1.2. of Appendix FM or under paragraph 276BE(1) of these rules”.

THE  PROBLEM  

Paragraph 3.9 of the new Further Submission Policy is clear  that where not  caught  by  the exemptions  in paragraph 276A0  and paragraph GEN 1.9 of Appendix FM of the  Rules and if a valid application is not made, Home Office caseworkers can consider whether to reject the request to consider further submissions and advise the claimant that they should make a valid application.

The first problem appears to be that as currently drafted, the above  set out provisions of the Immigration Rules do not differentiate between submissions made in person in relation to protection or non -protection based human rights claim requiring to be made by way of valid application as intended by the new Policy. The above Rules state that the requirement to make a valid application does not apply when an Article 8 claim is raised as part of a further submission in person after an asylum claim has been refused. The Rules as they are currently drafted, are more in accordance with the March 2015 policy which flatly stated at Section 3.1 that all further submissions made following the refusal of an asylum claim must be considered in person. The Rules therefore seem to be at odds with the new current amended policy which is clear at paragraph 3.1 that all further submissions made on protection grounds following the refusal of asylum or humanitarian protection must be made in person at the Further Submissions Unit but for further submissions on non-protection human rights grounds to be made by means of a valid application.

Secondly, the substantive content  itself of the new policy is ambiguous- it is  not made quite clear   whether  it is a must ( subject to any  relevant exceptions)  that non – protection based human rights  claims   be made  by way  of valid application, with a fee.  Section  3.3 of the new policy,  states that where a failed asylum seeker wishes to raise further submissions on non protection grounds, for example, on the basis of family or private life, they “should” submit a valid postal application (with the appropriate fee) as set out in Section 3.9,  although they “can” submit their submissions in person in Liverpool. The policy then  goes  on  immediately  to state that   regardless of how the submissions  are lodged, paragraph 353  must still be applied.  The question then  becomes how does a non – protection  based claim requiring valid submission but  submitted in person in Liverpool  become valid unless  the  matters  raised in Guidance – Specified application forms and procedures – version 17.0 Published for Home Office staff on 03 March 2016  are met?

Paragraph 3.9 of the new policy also states  that in cases where the exemptions( paragraph 276A0 and Gen 1.9 of Appendix FM) do not apply and a valid application is not made, Home office  caseworkers “can” consider whether to reject the request to consider further submissions and advise the claimant that they “should” make a valid application. So  is discretion to be applied in this regards by Home Office caseworkers  and if so what is the criteria?

If Article 8 claims are indeed  to be made by way of  valid charged application   but not Article 3 medical  claims, why not  simply state so?  If  non – protection based human rights  claims, are  to be charged applications, unless a few waiver/exemption applies, why not clearly state so  within the same Policy   but  also refer  claimants to the relevant   policy – ie Fee Waiver for FLR(FP)  & FLR(O) Forms?

By comparison, the Home Office Policy Instructions Human rights claims on medical grounds, version 6.0 Valid from 20 May 2014, is clear that Article 3 applications made on Form FLR(O) for Discretionary Leave to Remain  on  medical grounds are non – charged. As regards  “mixed” article 3 and article 8 applications however, the policy states that where an applicant also cites other articles of the European Convention of Human Rights (ECHR) as a reason of claim (including article 8), Home Office  caseworkers will need to decide if the article 3 claim constitutes a genuine reason of claim, or if it is cited only to prevent the applicant from paying a fee.  Provided article 3 is a genuine basis for a claim, then the whole application (including consideration of any of the other elements of the claim) will be uncharged. Where the Home Office caseworker is  concerned that the  article 3 claim was included only so the applicant did not have to pay a fee, it may be appropriate to refuse the article 3 claim, and request that the applicant make a further  charged  application for any other reasons.  The new policy should also  be equally clear in relation to “mixed”  protection and non- protection based  human rights submissions  put forward at the same time in person in Liverpool.

If the new Further Submissions policy has been amended but left  deliberately vague,  without clear certainty  or any defined exceptions as  to the  requirement in relation to  charged non- protection based human rights human rights further submissions from failed asylum seekers, then the  current Home office further submissions  policy fails to take into account the  following among other matters:

  • that relevant non protection based human rights applications are forthcoming from failed asylum seekers, who may never have worked in the UK.   A friend or relative they are residing with may not wish to provide a letter of support confirming they are residing with the claimant- the question therefore is where a fee waiver request is refused or cannot be made, how are such failed asylum seekers expected to afford both the home office application fee and NHS Surcharge?
  • that families, with for example a qualifying child for the purposes of the “7 year Rule” in relation paragraph 276ADE, who have always lived in asylum supported accommodation and also very most   likely not eligible for legal aid in relation to straightforward article 8 claims, should not be caught by the charging requirements. Expecting such a family, known already to the Home office to live in asylum supported accommodation, to   go through the process of preparing fee waiver applications in addition to the main application form seems redundant.

In light of the new policy as currently drafted, where failed asylum  seekers are looking into making a valid   non protection based  human rights application by post  accompanied by a fee,  then whilst  the current   policy  remains vague, that  is a fee the Home Office arguably should not  seek to take  in all fairness.

Overall, having regard to the new policy, and without further clarifications from the home office,   the question remains – is there a clear  unambiguous  requirement  that  non- protection based human rights  claims  are to  be submitted  by way of  charged application  by post?

FURTHER SUBMISSIONS: SUMMARY OF THE CURRENT PROCEDURE AND CONSIDERATION PROCESS – AS PER THE 19 FEBRUARY 2016 POLICY

How to Make Further Submissions:

The general requirement is that claimants must make an appointment to attend the Further Submissions Unit (FSU), in Liverpool, unless they fall into one of the exceptional categories.

The FSU operates an appointment only system. To make an appointment, individuals must contact the FSU (the telephone number is 0151 213 2411).

The FSU will send written confirmation of the appointment (by letter or e-mail) to the individual, including the address of the FSU.

Claimants are required to complete a form and bring it to their appointment in Liverpool. The FSU address is Level 1, 6 Union Street, Liverpool, Merseyside, L3 9AF.

Complex Casework Directorate (CCWD) is responsible for managing further submissions in cases where there has been an initial asylum claim, including cases where the claimant has left or was removed from the UK and later returned, regardless of the initial date of claim. However, where a foreign national offender submits further submissions, the case may be managed by Criminal Casework.

Evidence required for further submissions in person when attending the FSU to submit further submissions, claimants are required to bring the following documents:

  • a completed Further Submissions form detailing the additional information the claimant would like the Home Office to consider
  • supporting documents, including, where available, any reasons for refusal letters or appeal determinations/decision from the Tribunal
  • Application Registration Card if still in possession of this
  • passport (of the claimant and all dependants in the UK, if not with the Home Office)
  • Evidence of family life in the UK (for family or private life based submissions)
  • Police Registration Certificates (if held)
  • any other Identity documents (if held)
  • 4 un-separated passport-sized photographs (of the claimant and any dependants)
  • evidence of accommodation (if not provided by the Home Office)
  • any other documents relevant to the claim

All documentary evidence to be considered must be submitted at the further submissions appointment as a decision will be made on the evidence available.

Exceptional Circumstances- Waiving the ‘in-person’ requirement:

In exceptional circumstances, further submissions from failed asylum seekers may be accepted either through local arrangements or by post. The claimant is required to provide supporting evidence about the reasons why a postal claim or local arrangements are appropriate and obtain prior agreement from the FSU. Postal further submissions may be accepted where at least one of the following limited circumstances applies:

  • Inability to travel – Those who have a disability or severe illness and are physically unable to travel may submit written further submissions by post. Medical evidence is required.
  • Children – Unaccompanied children under the age of 18 who wish to lodge further submissions can do so by post and are not required to travel to Liverpool. However, former unaccompanied asylum seeking children aged 18 or over who wish to lodge further submissions on protection grounds following an earlier refusal of asylum should do so in person in Liverpool. Failed asylum seekers granted non-protection based leave to remain in the UK may apply to extend that leave by way of a valid postal application on the appropriate route.
  • Ongoing judicial review – Where the claimant has an ongoing judicial review challenging a removal or enforcement decision, or where a judicial review application has been granted permission, further submissions may be accepted by post.
  • Removal is imminent and the individual is detained – Where an individual is detained pending removal and wishes to make further submissions, they should immediately contact the team handling their case, who will advise them on the action to take.
  • Criminal cases -Where an individual is serving a custodial sentence they can submit further submissions by post or fax to Criminal Casework.
  • Cases in the Family Returns Process – In family cases, it may be appropriate to accept further submissions at a local reporting event where self check-in removal directions are imminent or the Family Returns Process is at an advanced stage. There may also be other exceptional reasons, for example, where a single parent is unable to make alternative childcare arrangements and would face particular difficulties as a result and it is in the best interests of the child – though they would be expected to fully comply with the family returns process.
  • Individual comes to light through enforcement action – Where a failed asylum seeker or illegal migrant is encountered as a result of enforcement action, further submissions can be submitted in person to enforcement staff where the person is detained.
  • Those who raise non-protection based further submissions -Where a failed asylum seeker wishes to raise further submissions on non protection grounds, for example, on the basis of family or private life, they should submit a valid postal application (with the appropriate fee) as set out in Section 3.9 below, although they can submit their submissions in person in Liverpool. Regardless of how the submissions are lodged, the home office position is that paragraph 353 must still be applied.

The Consideration Process:

Further submissions in all cases are   considered by the Home Office in accordance with their Further Submissions Instructions of 19 February 2016.

Paragraph 353 only applies where an earlier protection or human rights claim has been refused, withdrawn or treated as withdrawn under paragraph 333C of the Immigration Rules. Paragraph 353 does not apply in any of the following circumstances:

  • a claimant has not previously lodged a protection or human rights claim
  • a claim is pending and an initial decision has not been made
  • there is an appeal pending against a previous claim

The claimant must have raised protection or human rights issues by means of a claim to the Home Office. For example, paragraph 353 cannot be applied where asylum or human rights grounds are raised for the first time in grounds of appeal. There does not have to have been an appeal for paragraph 353 to apply to further submissions raised after an earlier claim has been refused.

Protection Based Claims – These are considered by the home office in accordance with the principles set out in their asylum instruction, Assessing credibility and refugee status.

Article 8 of the ECHR, Right to private and Family Life- non deportation cases – These cases including those made by way of a valid application, are considered by the home office in accordance with the relevant family guidance at: IDI Chapter 8: Appendix FM: 1.0b Family and private life – 10 year route’.

Article 8 of the ECHR, Right to private and Family Life- deportation cases – Further submissions on Article 8 grounds in criminal deportation cases are considered by the home office in accordance with Part 13 of the Immigration Rules.

Deportation Cases, Other than criminal convictions- Further submissions in deportation cases, for reasons other than criminal convictions, are considered by the Home Office outside the Immigration Rules.

The starting point for consideration are the findings in any final appeal determination/decision which override conclusions in the original Home Office decision letter. Where there is no appeal, the last decision of the home office becomes relevant.

There needs to be a consideration of the further submissions against a ‘two part test’ ie has the material already been considered. If the material has not previously been considered, Home Office caseworkers are then required to assess whether the new material, taken together with material previously considered, creates a realistic prospect of success. The question is whether, in light of all the evidence available, the new material could persuade an Immigration Judge – in other words whether it is arguable notwithstanding rejection.

However, where further submissions simply repeat information that has already been considered, Home Office caseworkers unusually refer to the previous refusal and appeal determination/decision in rejecting the claim.

Right of Appeal      

The Immigration 2014 Act states that the refusal of any human rights or protection claim will attract a right of appeal, however a further submission is not a human rights or protection claim if it does not satisfy the test in paragraph 353. Therefore, there is no right of appeal against the outright refusal of further submissions which do not meet the test in paragraph 353. There will only be a right of appeal under Section 82 of the 2002 Act (as amended by the Immigration Act 2014) if the further submissions are considered to amount to a fresh protection or human rights claim under paragraph 353.

Where a claimant was refused asylum before 6 April 2015 but granted another form of leave for one year or less there was no right of appeal against the asylum refusal because section 83 of the 2002 Act only provided a right of appeal where leave of more than one year had been granted. Such individuals had no opportunity to appeal against the refusal of asylum, where they were granted less than one year’s leave, whereas in contrast the new appeals provisions under section 82 of the 2002 Act (as amended) do provide that opportunity. Therefore, Home Office caseworkers do not apply paragraph 353 to any asylum or human rights submissions lodged after the refusal of the asylum claim in cases where limited leave of one year or less was granted for other reasons before 6 April 2015.

Where a claimant was refused asylum before 6 April 2015 but granted another form of leave in excess of one year, they would have had a right of appeal against the refusal of asylum under section 83 of the Nationality, Immigration and Asylum Act 2002. This was repealed on 6 April 2015 by the Immigration Act 2014. However, as they were granted leave on another basis, they will not have been able to appeal on human rights grounds under previous appeals provisions. Under section 82 of the 2002 Act (as amended by the Immigration Act 2014), the refusal of a protection or human rights claim attracts a right of appeal – irrespective of whether leave is granted for other reasons, for example, on a discretionary basis. The Home Office therefore do not apply paragraph 353 to human rights further submissions lodged after asylum was refused where there has not been any previous opportunity to appeal to the Tribunal on human rights grounds.

Where a claimant has had a previous human rights claim refused but has never claimed asylum, paragraph 353 should not be applied to the asylum claim. In these cases, Home Office caseworkers must consider the asylum claim in the same way as an initial claim under Part 11 of the Immigration Rules.

Certification?

Section 94 of the Nationality, Immigration and Asylum Act 2002 – In line with ZT (Kosovo [2009] UKHL 6), paragraph 353 must be applied to further submissions where the initial claim has been certified as clearly unfounded under section 94 and the claimant is still in the UK and has not exercised their out of country appeal. It will not be appropriate to certify further submissions considered under paragraph 353 as ‘clearly unfounded’ under section 94. Where further submissions are considered to be clearly unfounded, they will not meet the fresh claim test in paragraph 353 and there will be no right of appeal against rejection. As such there is no appeal right to certify and a certificate is not required. Equally, if it is accepted that there is a fresh claim (as the new material creates a realistic prospect of success), it would not be appropriate to certify under section 94 on grounds that the further submissions are clearly unfounded.

Section 94B of the Nationality, Immigration and Asylum Act 2002 – Certification under section 94B may be appropriate if the person is liable to deportation and they meet the relevant criteria. The effect of this type of certification is that any appeal against refusal can only be brought out of country. Paragraph 353 must be applied to further submissions where the initial claim has been certified under section 94B and the claimant is still in the UK and has not exercised their out of country appeal.

Section 96 of the Nationality, Immigration and Asylum Act 2002 – Section 96, provides a mechanism for removing the right of appeal against a decision to refuse a protection or human rights claim where that claim could have been made earlier, either at an appeal or following service of a section 120 notice. Section 96 is intended to prevent claimants from raising matters at the last minute to frustrate removal. It only applies when a right of appeal has been generated. Paragraph 353 must be applied to any further submissions before section 96 is considered. Consideration of certification only applies to cases in which the Home Office have refused the further submissions but accepted that they amount to a fresh claim once the decision is taken to refuse.

Judicial Review:

As per Waqar, R (on the application of) v Secretary of State for the Home Department (statutory appeals/paragraph 353) ( IJR) [2015] UKUT 169 (IAC):

“20. If an applicant is aggrieved by a decision not to categorise submissions as a claim, then s/he has a remedy in judicial review proceedings. Where a claim has already been determined, submissions made subsequent to that require a decision as to whether they amount to a claim. If determined to be a claim the decision to refuse that claim will trigger a right of appeal, subject to certification. If the submissions are determined not to be a claim, as here, there is no decision and thus no right of appeal”.

OF NOTE GENERALLY IN RELATION TO FURTHER SUBMISSIONS

  • It is clear that where a failed asylum seeker submits protection based further submissions by post but do not fit one of the exceptional case types, they will rejected by the Home Office without substantive consideration. Forwarding protection based further submission by post   for whatever reason, where not caught by the exceptions, leaves a claimant vulnerable to removal during the period that the Home office takes to   return the submission unconsidered.
  • When further submissions are lodged by those who are not already detained, Home Office caseworkers are required to consider whether the case is suitable for routing into detention to effect removal in. According to the Home Office, cases which may be suitable for detention include absconders who later resurface to make further submissions; those who have otherwise failed to comply with the asylum process; those who have lodged repeated unfounded claims designed to delay removal and those who have previously given false or unreliable information about the reasons why they cannot return to their country of origin to avoid enforced removal. On the other hand, if a person makes a valid postal non -protection human rights claim, detention issues are not immediately evident, unless the claim is not subsequently accepted as a fresh claim such that a person may be detained upon reporting and served with the decision at the same time.
  • Home Office policy is that where an application for section 4 asylum support is submitted, any further submissions lodged at the same time, or that are pending, are normally be decided within 5 working days. In section 4 cases where further submissions involve vulnerable adults or children, the cases are to prioritised and should normally be considered within 2 working days. In cases where it is not possible to consider the further evidence and respond within these timescales, it may be appropriate to grant support. As part of this consideration, Home Office caseworkers must consider whether a decision can be made on the same day and, if refused outright without a right of appeal, make arrangements to detain those who are readily removable pending removal. Therefore claimants who are destitute but with what appears to them viable further submissions, intending to be given section 4 accommodation following submission of that claim, may   well find themselves with a negative decision and possibly detained   within a matter of days soon after making a further claim
  • Depending on the facts of the case, the Home Office may consider it appropriate to interview a claimant again and this can be done during the FSU appointment.
  • Where further submissions on asylum or human rights grounds (in non-deportation cases) are refused, paragraph 353B of the Immigration Rules requires caseworkers to consider whether exceptional circumstances prevent removal. Paragraph 353B is considered in combination with Chapter 53 of the Enforcement Instructions and Guidance. Exceptional circumstances can also be considered where an asylum or human rights claim has been refused, appeal rights have been exhausted and there are no outstanding further submissions. In such cases paragraph 353B should be applied by the Home office and as such making representations in this regards within the further submissions may be relevant.
  • If a person is named as a dependant on another person’s asylum or human rights claim, and they then go on to make a claim in their own right, paragraph 353 does not apply. This is because the person has not made an earlier asylum or human rights claim in their own right. However, it may be appropriate for the Home Office to certify any subsequent decision to refuse under section 96 of the 2002 Act on the grounds that the dependant received a one-stop notice under section 120 of the 2002 Act when they were dependant on another person’s claim.

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