The SEF is back! Not as we know it, but under the guise of the Preliminary Information Questionnaire(PIQ). The Home Office have in recent weeks been sending out the questionnaire to a good number of adults who have claimed asylum, been screened but are yet to be substantively interviewed.
The use of the Statement of Evidence Form (SEF) so as to gather information from an adult asylum claimant has been redundant for several years. What has however sometimes been utilized by the Home Office, more so for those claiming asylum whilst in detention, is a requirement to complete and return a Preliminary Information Form (PIF) within a certain number of days. This form requires that the asylum claimant provide the Home Office with information about their reasons for seeking protection in the UK.
Whilst the requirement for an adult claimant to complete and return a SEF fell away at some point years ago, the practice of preparation and submission of an asylum statement prior to the asylum interview has correspondingly and increasingly become a matter of choice for the claimant. Submission of an asylum statement to the Home Office is an altogether different matter to detailed fact gathering in relation to a claim but with such information being retained on file by the legal representative. Although it is desirable that an asylum statement be prepared, either way, both the claimant and the legal representatives will be fully aware of the basis of the claims as well as the strength and weakness including the evidence required to address relevant issues. Home Office asylum interviewers themselves have over the years adopted a practice of beginning the asylum interview enquiring, not with whether the claimant agrees with the contents of their asylum statement( because in some or most cases there will be none served) but with whether an claimant has read and understood the contents of their screening interview.
Without a SEF, a questionnaire or asylum statement served in advance of the asylum interview, bar the brief contents of the screening interview, Home Office interviewers have clearly put themselves in a position of having to approach a case “ cold”, not being aware at all of the fuller details of the asylum claim. But with the increased use of the Preliminary Information Questionnaire, submission of a detailed asylum statement or at the very least very detailed information prior to the asylum interview may likely now no longer remain a matter of choice for the claimant. This is because the letter accompanying the 19page questionnaire makes it clear that:
“To help us to consider your case and ensure that the decision maker, dealing with your claim is fully aware of the reasons why you are claiming asylum, we ask that you complete the attached Preliminary Information Questionnaire( PIQ). The form must be completed and return to the above address by 00/00/2018. …If you do not complete and return the Preliminary information Questionnaire and you have not provided an explanation before or immediately after the date mentioned above, your asylum claim may be treated as withdrawn in line with paragraph 333C of the Immigration Rules………..If your personal circumstances have changed and you no longer with to continue with your asylum claim you can withdraw your claim by signing the Withdrawal form at the ned of this letter…….This is your opportunity to provide the Home Office with details of your asylum claim before your interview. It is important that you provide as much detail and information as you can. This will help with your interview”.
A previous practice of non- compliance-based refusals for failure to return a SEF:
What can be gleaned from a Court of Appeal case of nearly a decade ago and referred to below, is that the Secretary of State appeared previously to routinely utilise the non-compliance refusal procedure where it was thought that there was a failure to return a completed SEF Form. The main issues and principles arising out of that caselaw are not relevant for current purposes, however a seeming entrenched practice of SEF non-compliance based refusals is evident from the factual history applicable to the two Appellants in S & Ors, R (on the application of) v Secretary of State for the Home Department  EWCA Civ 142:
“52.S arrived in the United Kingdom on 9 January 2000 and claimed asylum. On 30 May 2000 S was issued with a Statement of Evidence Form (“SEF”). Asylum seekers are required to complete such a form. It sets out the factual basis for their claim. He completed and returned it to the Secretary of State within the required 21 days. Due to administrative confusion in the Immigration and Nationality Directorate, the SEF was not linked to S’s file. There was further confusion………..
58.In a letter of 26 June 2003 the Secretary of State notified S that it was accepted his SEF had been returned in time: that the (unsent) non-compliance refusal of 26 June 2000 would be withdrawn. A fresh decision would be taken after an interview.
88.On 4 July 2000 H was sent an SEF to complete and return before 25 July 2000. By a letter dated 13 July 2000 H’s representatives sent the completed SEF form…………..
89.There was similar administrative confusion as in the case of S. By a letter dated 30 August 2000 the Secretary of State refused H’s application for asylum on the basis of non-compliance. It was said:
“You have applied for leave to enter the United Kingdom on the grounds that if you were required to leave you would have to go to Pakistan where you fear persecution.
On 4 July 2000 you were requested to complete and return a Statement of Evidence Form in support of your application for asylum on or before 25 July 2000. You have failed to return this form”.
90.It is unclear whether this letter was sent to H or to his representatives. However, on 5 October 2000 fresh solicitors sent to the Secretary of State the previously completed and sent SEF form. On 19 February 2001 a decision was taken that there should be substantive consideration of H’s application. Between February and October 2001 H’s claim was part of the enormous backlog of asylum applications, owing, it was said, to the very high number of claims in that and previous years. …………………..On 31 July 2003 the non-compliance decision was formally recorded as having been withdrawn”.
The picture above is clear: the Home Office had no qualms about generating non- compliance based refusal decisions arising from their own administrative failures. It would of course have been more than clear for those operating in this field at the time that a considerable number of claimants were being refused asylum arising from an erroneous belief that the SEF had not been returned. The Home Office itself would have been acutely aware of this. On appeal, the Tribunal Judges of course subsequently undertook a clean-up exercise, moping up the mess, in effect being treated as the initial decision-makers in the absence of an asylum interview setting out the claimant’s basis of claim.
Extent of the problem of the previous non – compliance based refusals : ILPA’s Guide
The extent of the problem of non compliance based refusal decision is set out in a Guide from ILPA, a Guide which I have continued to utilise from 2002, when I first entered the field of immigration and asylum law. ILPA’s Making An Asylum Application, A Best Practice Guide, May 2002, bpg_making_an_asylum_application.pdf provides:
“The statement of evidence form (SEF)
There are still some asylum seekers whose claims are dealt with under the SEF scheme. This requires your client to complete and submit a SEF within a very strict time limit.
There are ﬁve types of form, a different form being used depending on whether your client is for example a port applicant, an in-country applicant, or a minor etc. An interview that takes place after a SEF has been submitted will generally be recorded on a SEF (interview) form.
Time limits: Where your client has been issued with a SEF1 and a one stop notice,2 these must be returned to IND within 10 working days of the date of issue to the correct post ofﬁce box number by recorded or special delivery. The document must be completed in legible English. It is generally acceptable for the initial sections of the form to be completed in longhand. Any supporting statement should be typed…….The content of the SEF will be the basis on which a decision is taken whether to recognise your client as a refugee, grant exceptional leave or interview him.
IND is extremely reluctant to extend the time limit for submission of the SEF. It should be assumed that an application to extend the time limit will be refused. Failure to submit in time can lead to a serious risk of your client’s application being refused on the grounds of non-compliance.
The SEF in use at the time of writing (and previous forms used by IND) consists of boxed questions with spaces for answers. Different sections deal with different areas, for example one section deals with personal details, another with family members. Each ‘boxed’ section of part C of the SEF is designed to elicit information that will establish whether an applicant is at risk of persecution or serious harm. It is debatable whether the ‘key questions’ posed are helpful in the construction of your client’s claim. You should not feel constrained by the format of the form. Rather than trying to break down your client’s narrative into headings, which may in any case overlap, you should write ‘see attached statement’ in the relevant sections of the form and then append a comprehensive statement explaining your client’s reasons for claiming asylum in the UK.
Non-compliance refusal decisions
Failure to submit the SEF within the requisite time, without permission to extend the original deadline, will result in your client’s application for asylum being refused on the grounds of ‘non-compliance.’ In the recent past, some 7000 applications for asylum were refused erroneously on the grounds of ‘non-compliance’ because IND had failed to record applications which had been lodged correctly. In the light of administrative confusion, IND established a dedicated post box in Croydon for the receipt of SEFs and it is hoped that SEFs will now be received and recorded swiftly”.
Overall, what is of concern is the current undisguised “threat” of a non compliance based refusal decision in the event of a failure to return the preliminary information questionnaire- ie the refusal of the asylum claim without substantive consideration, having regard, in most cases just to the contents of the screening interview but without a substantive asylum interview having been carried out.
Very serious consequences arising out of non compliant action:Withdrawal of claims
The consequences of non compliant action on the part of the claimant during the asylum process has very serious consequences. This is because claimants who fail to complete an asylum questionnaire, such as a Preliminary Information Form (PIF) or Statement of Evidence Form (SEF), without a reasonable explanation, when requested to do so, may have their asylum claim treated as implicitly withdrawn under paragraph 333C of the Immigration Rules.
What information does the Preliminary Information Questionnaire require:
1.Claimant information such as:
Home Office reference
Date of birth
Country of birth
2.Reasons for asking for asylum in the UK. The claimant is required to address the following questions:
Why do you fear returning to your home country?
Details of specific events which happened to you in your country that make you fear going home
Details of what made you decide to leave
Details of any specific events in which you were personally involved that relate to your asylum claim
If you fear a specific person, organisation or group in your country, tell us their names and as much detail as you can about them. You should try to tell us what they have done that has made you afraid to return home
Details of any thing that has happened since you arrived in the UK which has made you afraid to return home
What you believe will happen to you if you return to your country of origin or the place where you were previously living
Please include dates of events where you can
Information about your family members currently in our country or another country
3.Please tell us everything which is important to you or which you believe we should know.
4.Please tell us all of the places you have lived in the past 5years and how long you have lived there.
5.Tell us what level of education you studied to, if you do not know please tell us at what age your education stopped.
6.Please tell us any place you have worked in the last 5years and what your role was.
7.If you have any family members living in the UK, can you tell us their current immigration status. If you know it, please provide their Home Office reference number.
8.National Insurance number details
9.Tell us about any medical conditions, treatment, medication or other support you are receiving from a doctor or other clinician. If you have already told us about something, you do not need to tell us again unless your condition has changed. You should provide evidence of your medical conditions when you return this form. If you intend to provide evidence but this not available, you should return the from and tell us you intend to provide more evidence. You should also include details of any mental health care or support you are receiving.
10.Tell us any other information about your personal circumstances you think we should know.
Please provide details of your family below
Spouse/Partner: their name, date of birth, country of birth, town and city of birth, nationality, date of marriage if married, date you started living with your partner as if you were a married couple, when did you last have contact with them, where is your spouse/partner now, home office reference for your spouse/partner if relevant, contact details for your spouse/partner
Please provide details of all your children, ie name, date of birth, place and country of birth, nationality, current location, when did you last see or have contact with them
If your child is in the UK and are attending school, please tell us
If you have been in contact with social services please tell us
Tell us about any medical conditions that your child/children/or spouse/partner may have, or any treatment that they may be receiving. You should also include details of any mental health care or support they are receiving
Tell us if there is anything else in your personal circumstances that increases the risks to your own or your dependant’s health and well being
12.What language would you like your asylum interview conducted in?
Do you speak any other languages?
13.Documentation in support of your claim:
Any documents you submit must be original documents
If the documents are not in English, you must enclose a certified English translation as well
You must provide all documentation that you are able to provide about your age, background, identity, nationality, previous places of residence and travel routes in line with paragraph 339I of the Immigration Rules
Please list all documents you wish to submit providing the following: what the document is, if the document is dated, provide the date, how the document relates to your asylum claim, what language it is written in, if not currently in your possession, when you will be submitting it
Burden of Proof and how the Home Office gather evidence:
The burden of substantiating a claim lies with the claimant, who must establish to the relatively low standard of proof required that they qualify for international protection.
Paragraph 339I of the Immigration Rules emphasises the burden on the claimant to provide evidence and the duty of the Home Office caseworker to assess the information put forward “in co-operation with the person”. Caseworkers must examine, investigate and research the available evidence and, if appropriate, invite submission of further evidence.
Evidence to be considered includes – but is not limited to:
Screening Interview (SIR)
Statements made to an Immigration Officer prior to the claim being made, or information supplied when he/she applied for a visa
Preliminary Information Form (PIF)
Asylum interview (SEF – Statement of Evidence Form)
Other evidence submitted by the claimant, e.g. written statements, newspaper or internet articles, witness statements from family or associates, police or medical reports, political party membership cards Country of origin information (COI)
Files relating to previous applications by the claimant or his/her relatives
Passports: where available, checked for entry/exit stamps, visas, to confirm the claimant’s immigration status and history
‘Section 8’ type conduct prior to asylum claim being lodged
Medical reports (including Rule 35 reports completed by detention centre doctors)
Other expert evidence
Home Office Guidance Policy on Non Compliant claims:
Non-compliance is the Asylum policy guidance on non-compliant asylum and human rights claims.
The policy on Non-Compliance clarifies that it is designed to encourage compliant behaviour but also notes that in some cases, as a result of non-compliance, applicants fail to establish their claim.
Asylum or human rights claims can be refused where as a result of non-compliance a person has failed to establish that they qualify to remain on asylum or human rights grounds.
Non-compliance is relevant to a refusal of asylum or a human rights claim when a person has failed without reasonable excuse to make a prompt and full disclosure of material facts or otherwise to assist the Secretary of State to the full in establishing the facts of the case. This includes:
failure to report at a designated place to be fingerprinted;
failure to return or late return of the Statement of Evidence Form (SEF) Self Completion or other asylum questionnaire;
failure to attend a screening interview about the application;
refusing, without reasonable explanation, to answer questions relating to the application;
leaving an interview, without reasonable explanation, prior to its completion; or
failure to report to an Immigration Officer for examination.
A failure to comply will usually, but not always, mean that the applicant has not established that they qualify for asylum, humanitarian protection of discretionary leave and so result in the refusal of the application.
The Guidance states that some asylum applicants are given a SEF and asked to return it within ten working days (by a specific date). A further period of 5 working days is allowed for the SEF to be linked to the applicant’s file.
All requests to extend the 10 working days time limit for the return of the SEF should be considered on their merits and discretion exercised reasonably where there are exceptional circumstances. An extension will not be granted to enable the applicant to instruct a legal representative to complete the form.
In all cases the decision as to whether there has been non-compliance should be taken as soon as possible after the deadline for the receipt and consideration of the form. The guidance on non compliance states that a decision to refuse on grounds of non-compliance should only be made if the SEF has not been received by the date on which the decision is made.
Non compliance and children asylum claimants:
The Non-compliance guidance further provides that officers must not apply the actions set out in the instruction either to children or to those with children without having due regard to Section 55.
When making a decision as to whether it is appropriate to make a non-compliance decision in the case of a child, Home Office Case Owners must have regard to Section 55 of the Borders, Citizenship and Immigration Act 2009.
The guidance makes it clear that it is of particular importance to exercise discretion and greater sensitivity when making noncompliance decisions in the case of children. When investigating whether a non-compliance decision is appropriate, the Case Owner should, if required, contact the child’s responsible adult, and/or representative, and/or social services for information on the reasons for noncompliance.
Relevant caselaw – Non Compliance:
The Immigration Appeal Tribunal case of Ali HADDAD, (HX/74078/97 (STARRED))/[00/HX/00928] considered how the decision maker should approach cases of non-compliance. It confirmed that any information held about a claim, however brief, must be considered. This information may be in the form of brief comments noted by an Immigration Officer on arrival, comments recorded in the Asylum Screening Unit, correspondence from a legal representative etc.
The determination also confirmed that in a case of non-compliance the refusal is on the grounds that the person has not established their claim and so must be made under paragraph 339M of the Immigration Rules (non-compliance) and paragraph 336 (asylum).
From 9 October 2006, humanitarian protection has been placed on a statutory basis under the EU Qualification Directive and has been included in the Immigration Rules. If humanitarian protection is to be refused this should be under paragraph 339F and 339M. Paragraph 339M cannot be used alone to justify a refusal of asylum or humanitarian protection. Any refusal under non-compliance will usually be under paragraphs 336, 339F and 339M.
Explanations and treatment of incorrect refusals on non-compliance grounds
The Guidance on non compliance makes it clear that it is important that consideration is given to any explanation provided by the applicant or their legal representative for the non-compliance. If consideration is given to refusal of asylum then the grant of humanitarian protection must also be considered.
Treatment of incorrect refusals on non-compliance grounds
In cases where it becomes clear that a refusal on non-compliance grounds is flawed it will be necessary to take corrective action.
Examples of where this would be the case include:
where a decision to refuse on non-compliance grounds is made on the basis that the applicant failed to return the SEF and it subsequently turns out that the form had been received by the time the decision to refuse was made but had not been linked to the file;
where a decision to refuse on non-compliance grounds is made on the basis that the applicant failed to attend a screening interview or asylum interview (before 7 April 2008 failure to attend an asylum interview could result in a non-compliance refusal decision) but it subsequently turns out that the invitation was despatched to the wrong address.
Port Cases :- In a Port Case the decision that must be withdrawn in the event of an incorrect refusal on non-compliance grounds is the refusal of leave to enter. Only an immigration officer (IO) can cancel this decision and make a fresh decision. Following changes introduced in Section 119 of the Nationality, Immigration and Asylum Act 2002, the IO has an additional option under paragraph 6(3) of schedule 2 to the 1971 Act. When cancelling the refusal of leave to enter the IO can:
require the applicant to submit to further examination; or
grant limited leave to enter; or
grant indefinite leave to enter.
Should the IO fail to take one of these courses of action within 24 hours of the cancellation of the refusal of leave to enter the applicant is deemed to have been given six months leave to enter subject to a condition prohibiting employment.
If an appeal has not been lodged the letter cancelling the refusal of leave to enter should include an apology and notify the asylum applicant that they are required to submit to further examination. Arrangements should be made for the application to proceed to interview after which a substantive decision will be made.
If a valid appeal had been lodged the same action should be taken but, additionally, the case owner or Presenting Officer should notify the Tribunal that the decision to which the appeal relates has now been withdrawn and a new decision will be made.
In-Country Cases:- If an appeal has not been lodged, the immigration decision that triggered the right of appeal should be withdrawn as flawed by letter (including an apology) and substantive consideration of the asylum application should continue.
If an appeal has been lodged the same action should be taken but, additionally, the case owner or Presenting Officer should notify the Tribunal that the decision to which the appeal relates has now been withdrawn and a new decision will be made.
Non compliance and right of appeal:
Decisions to refuse asylum on the grounds of non compliance must be implemented in the same way as substantive decisions but may require a different reasons for refusal letter. Home Office Caseworkers are required to use one of the following reasons for refusal templates:
ASL.1000 IA– where the claimant failed to attend the asylum screening interview or return a Statement of Evidence Form (SEF) or Preliminary Information Form (PIF) if requested to complete one and there is insufficient evidence on file to make substantive consideration
ASL.0015 ACD IA – where there is sufficient evidence on file to make a substantive consideration (ie SEF, PIF or Witness Statement received, but non-attendance at substantive interview)
Refusal under non-compliance is still a refusal of a protection claim; the relevant right of appeal is under section 82 of the 2002 Act.
Knock on effect- withdrawal of asylum claims:
It is equally important to be aware of the Rule and Policy Guidance as regards withdrawal of asylum claims because claimants who fail to complete an asylum questionnaire, such as a Preliminary Information Form (PIF) or Statement of Evidence Form (SEF), without a reasonable explanation, when requested to do so, may have their asylum claim treated as implicitly withdrawn under paragraph 333C.
Paragraph 333C sets out the circumstances in which it is appropriate to treat an asylum claim as withdrawn. It only applies to requests for international protection as outlined in Paragraph 327 of the Immigration Rules (definition of asylum claimant), not to non-protection based human rights claims. The Rule was introduced on 7 April 2008 and does not have retrospective effect, meaning that implicit withdrawal under this rule can only be applied to claims made on or after that date.
Withdrawing asylum claims, is the relevant asylum policy guidance on withdrawing asylum claims. The instruction provides guidance on the implicit and explicit withdrawal of asylum claims.
Valid explicit withdrawals
An asylum claim can only be treated as explicitly withdrawn under paragraph 333C when the claimant has signed and submitted a valid withdrawal form such as:
another relevant form provided by the Secretary of State
An asylum claim cannot be treated as explicitly withdrawn unless a valid withdrawal is provided.
When an asylum claim is withdrawn all other issues relating to that claim are also considered to be withdrawn and should not be considered.
Following explicit withdrawal of the asylum claim, if the claimant does not otherwise have the legal right to remain in the UK, for example leave to remain on other grounds following a separate application or they have submitted an application and are waiting for a decision, they will be liable for removal as they require, but do not have leave to remain.
Implicit withdrawal under paragraph 333C can only be applied to asylum claims made on or after 7 April 2008. For claims made before 7 April 2008 refusal under Paragraph 339M on the grounds of non-compliance should be considered.
An asylum claim may be treated as implicitly withdrawn under paragraph 333C of the Immigration Rules if the claimant:
fails to complete an asylum questionnaire when requested to do so
fails to attend their substantive asylum interview and is unable to demonstrate within a reasonable time that failure to do so was due to circumstances beyond their control, or
leaves the UK before a decision is made
This process allows cases to be concluded without further consideration where the claimant has absconded or is refusing to cooperate by attending a substantive interview. In such cases, the guidance states that the claim should normally be treated as withdrawn and any asylum support terminated.
The guidance is further clear that claims that can be treated as withdrawn should not normally be refused on non-compliance grounds (which will generate a right of appeal).
Failure to report to substantive interview letter
The policy guidance is clear that in order to determine whether failure to attend the substantive asylum interview should be treated as an implicit withdrawal, or if the interview should be rebooked, a failure to report to substantive interview letter (ASL.3724) must be sent immediately to the claimant and an ASL.4826 covering letter with a copy of the ASL.3724 sent to their representative (if applicable) to establish why the claimant did not attend. The deadlines for a response to this letter are 5 working days in non-detained cases or 24 hours in all detained cases.
Where no explanation is received by the deadline, the asylum claim must be treated as implicitly withdrawn. If an explanation is received within the deadline, the Home Office caseworker is required to consider whether there is sufficient evidence to show that failure to attend was due to circumstances beyond the claimant’s control and decide whether to rebook the interview or treat the claim as implicitly withdrawn. The onus is on the claimant to provide an acceptable explanation for non-attendance, for example reliable evidence of illness or travel disruption.
If the claimant is not represented and no valid address has been provided, the ASL.3724 letter must be served to file and handed to the claimant when they are next encountered.
If an acceptable explanation is received, another interview must be arranged and the claim must not be treated as implicitly withdrawn. The claimant (and legal representative if applicable) must be informed that the explanation provided has been accepted. If it is possible to rebook the interview immediately this should be done as part of a new invitation to interview letter.
If the explanation is not acceptable, or no response is received, the asylum claim should normally be treated as implicitly withdrawn. The claimant must be informed that the claim is being treated as implicitly withdrawn using template letter ASL.3725. If necessary, the Home Office caseworker is required to explain why any reason provided was not accepted. If the claimant is represented, covering letter ASL.4826 must be sent to the legal representative along with a copy of the ASL.3725.
Although it will normally be appropriate to treat asylum claims as implicitly withdrawn where the claimant has either failed to provide a reasonable explanation, or has replied after the deadline without a reasonable explanation for the delay, there may be circumstances where discretion should be exercised, and further investigation may be required. Template letter ASL.3725 must be issued to obtain specific further information from the claimant and/or legal representative before a decision is taken in such cases.
Following implicit withdrawal of the asylum claim, if the claimant does not have legal status to remain in the UK, for example leave to remain on other grounds following a separate application or an outstanding application, they will be liable for removal as they require, but do not have leave to remain.
Implicitly withdrawing asylum claims from children
The guidance on Withdrawing asylum claims states that it is important to exercise discretion when handling non-attendance at asylum interviews or failure to return a SEF or PIF by children. Greater sensitivity must be used and if an acceptable explanation for non-attendance is not received the decision maker must take steps to establish all relevant facts. This may include (but is not limited to) contacting the child’s responsible adult, legal representative, social services or accommodation provider for information on the reasons for non- attendance.
In cases where an unaccompanied child seeks to explicitly withdraw their asylum claim they must do so through a responsible adult or their representative because it is important to ensure they are aware of the consequences of withdrawal. If there are any cases where an asylum seeking child fails to comply with the process, decision makers must liaise with the legal representative and Social Services before consideration is given to implicit withdrawal.
Asylum seeking children are required to complete a SEF and return it within 60days. Home Office guidance, Processing children’s asylum claims provides that when a SEF has not been returned, the interview should not go ahead. Noncompletion of the SEF is not on its own sufficient to treat the claim as withdrawn, but the case worker must write to the legal representative in advance of the interview to establish why the SEF has not been completed and ask for confirmation as to when the form will be returned. If the SEF remains unreturned, the case worker must discuss the child’s access to legal representation with the social worker to ensure that the legal representatives are acting in the best interests of the child and that the child will have the opportunity to explain the basis of their application. Where the SEF does not contain sufficient information the case worker must write to the child through their representative, copied to the social worker and ask them to provide further information within 10 working days.
The guidance on withdrawals further states that in cases where it is clear that an asylum claim has been withdrawn incorrectly, the withdrawal decision must be cancelled. A letter must be sent to the claimant and representative (if applicable) confirming that the decision to treat the claim as withdrawn has been cancelled and the claim will be considered substantively
Where an appeal has been lodged challenging the withdrawal decision, in addition to issuing a letter to the claimant, the decision maker or presenting officer must also notify the First-Tier Tribunal that the decision to which the appeal relates has been withdrawn by the Home Office and a new decision on the asylum claim will be made.
Re-application following withdrawal – Further Submissions
If a claimant attempts to claim asylum again following the withdrawal of their claim under paragraph 333C, it must be treated as a further submission in line with the Asylum policy instruction: further submissions Paragraph 353 may be applied to further submissions made after an original asylum claim has been withdrawn or treated as withdrawn under paragraph 333C of the Immigration Rules. In such cases, further submissions may succeed on the first test (material has not already been considered) as the content may not have been considered previously. However it does not automatically follow that the submissions will meet the threshold to succeed at the second test (that, when taken together with the previously considered material, the submissions create a realistic prospect of success before an Immigration Judge, notwithstanding the rejection of those submissions).
Appeal rights after withdrawal
A decision to treat an asylum claim as explicitly or implicitly withdrawn does not attract a right of appeal because it is not an appealable decision under Section 82 of the Nationality, Immigration and Asylum Act 2002 (as amended). Although a claimant can decide nonetheless to plough ahead and lodge a “timely” appeal and then deal with issues of the Tribunal’s proper jurisdiction should this be subsequently raised, consideration can also be given to challenging the adverse decision by way of judicial review.
The Claimant’s statement:
ILPA’s Making An Asylum Application, A Best Practice Guide, May 2002, bpg_making_an_asylum_application.pdf, remains a favorite for its guidance on taking instructions through to preparing an asylum statement:
Your client has sought advice on remaining in the UK. What are the most important substantive matters to address initially?
Establish the current and previous immigration status of your client and whether he has leave to remain or enter, and if so, when that leave expires.
Check your client’s passport or any other documents presented.
Has your client any claim to remain in the UK by virtue of for example: EU citizenship, commonwealth or grandparental connection, spouse, length of residence?
Establish the mode of entry to the UK.
Establish whether your client has travelled through any other country en route to the UK and/or had a period of residence in another country.
Establish whether a claim for asylum has been submitted previously either in the UK or elsewhere.
Assess whether there is a possibility of removal to a third country without consideration of the substantive claim.
Has your client indicated a fear or anxiety about returning to the country from which he has come? If so, more detailed questioning will be needed to discover the nature of the problems presented and whether lodging an asylum or Article 3 application is the appropriate course of action.
If your client is not given a SEF to complete he will be interviewed in connection with the asylum claim. A decision has to be taken whether to submit a written statement either before or after interview. If a statement is submitted there will be a legible record of what your client has to say instead of a handwritten record of an interview which may not be particularly legible. This could assist the IND caseworker in coming to a decision on the claim.
Even if a decision is taken not to submit a written statement to IND it is advisable to prepare one. This will help your client to order his thoughts. It will also assist in the preparation of any subsequent appeal.
The function of a statement is to present the salient points of your client’s claim in a coherent and concise way. The statement should clearly establish why your client is at risk of persecution, serious harm or some other human rights abuse.
The statement should reﬂect as directly as possible your client’s idiom and experiences. There should be a clear distinction between your client’s testimony and any written representations you may wish to forward with the statement. Try to ensure that your client’s asylum claim is plausible and as coherently argued as possible. References in written representations to external research materials which you may choose to append to the statement must be pertinent.
Points to consider when preparing statements
You should have an outline knowledge of political problems and human rights abuses in your client’s home country before you take detailed instructions.
The statement should consist of a chronological narrative.
The information contained in the statement should be vivid and believable.
Building a proﬁle
You are aiming to demonstrate that your client is a refugee as deﬁned by the 1951 Convention, and/or that he is at risk of human rights abuse and should not be refouled contrary to Articles 32 and 33 of the Refugee Convention. The statement should therefore cover the following:
The type of persecution, harassment or harm experienced (including torture, ill treatment, threat of ill treatment, sexual abuse, threat to family members, etc).
The reasons for persecution. Return to the deﬁnition of a refugee set out in the UNHCR handbook and consider the scope of possible deﬁnitions of persecution. Avoid focusing exclusively on the most obviously recognisable forms of persecution. Be aware that there are more oblique manifestations of persecution and harm. Remember that many seemingly trivial social acts may be imbued with complex meaning and that an assessment of the risk to your client will depend upon a reasonable understanding of the context of the claim.
Be aware that IND often dismisses the risk of persecution on the grounds that, for example, an applicant’s political involvement is at ‘too low a level’ . Be wary of ignoring apparently insigniﬁcant events or actions and consider whether limited or apparently trivial actions place your client in any danger in his home country.
Establishing risk: try to show the link between actual and potential persecution, your client’s fears for the future and the motivation for flight from home country. Aim to show that your client has been and/or will be persecuted rather than simply discriminated against or punished for something he has done. The boundary between ‘persecution’ and ‘discrimination’ is not easily deﬁned. Evidence of discrimination or harassment may be relevant to show that persecution had taken place in the past or would take place in the future.Numerous acts of discrimination may amount to persecution.
The authorities in your client’s country of origin may attribute characteristics to him, for example membership of an ethnic group, which may lead to an assumption of particular political opposition.
The authorities conducting the persecution will normally be clearly deﬁned agents of the state. However, in some cases it will be necessary to show that the perpetrators of persecution should be considered as government agents due to government tolerance or tacit approval of their acts, or an inability by the State to control their actions.
Be aware that some clients will refrain from discussing some types of persecution because they are habituated to ill-treatment, or because they consider that these experiences, however brutal, are too ‘everyday’ to merit special consideration. If your client mentions that he was tortured or maltreated take full instructions concerning what has happened. Remember that torture may affect your client in a number of ways, some dramatic and immediately palpable (emotional distress, continuing pain from injuries sustained in torture) some less obvious (Post Traumatic Stress Disorder or more diffuse symptoms of distress such as loss of concentration, insomnia, irrational fears etc).Ask your client to describe his symptoms, injuries and any long term or permanent scars or psychological effects. Discuss referring your client to a specialist medical practitioner to obtain a medical report.
Anticipate possible IND objections to your client’s claim and ensure that these issues are adequately addressed in your statement. These may include:
Possession of national passport
Delay in lodging the claim
Delay in leaving country of origin
Application as a refugee sur place
Refusal to disclose sensitive information
Escape from detention
Family members left behind
Terrorism legislation and proscribed organisations
What to include in the statement
Whether or not you decide to provide the statement to IND will depend on the circumstances of the case. See chapter 8. Even if the statement is not given to IND, both you and your client will ﬁnd future conduct of the case easier if a statement has been prepared as early as possible.
Your initial instructions should have included detailed information concerning your client’s journey to the UK. This should now be incorporated into the statement. Include a full account of how your client left his home country, information about whether a travel document was used and whether any problems were encountered on exit. The statement should explain precisely how your client travelled to the UK and whether asylum was sought en route. If so, what was the outcome? If not, why not?
It is essential that you supply full information regarding family members, ensuring that names and dates of births are correct as failure to do so may cause problems for your client at a later date (for example with family reunion).
Your client’s statement should be presented, to the extent to which it is possible, as a chronological narrative. Key events such as dates of arrest, detention etc should be clearly explained. Your client’s last period in their home country and the events which motivated his departure will be of particular interest to IND. The ﬁnal portion of your client’s statement should therefore provide an unambiguous summary of the factors which motivated departure.
The statement should clearly provide a context within which the elements required to prove a sustainable asylum claim are evident. Unless your client uses the words of the Refugee Convention himself you should not refer in terms in the statement. It is your duty to ensure that the statement is ordered in such a way that each and every element that has to be established in an asylum claim can be ascertained from the statement”.
It will now be clear for claimants that rather than simply await receipt of a preliminary information questionnaire, there is a need to enable full details of the claim to be gathered before or very soon after the asylum screening interview and a statement prepared. Such a statement should address the issues and more raised in the questionnaire and also as referred to above having regard to the ILPA Guide.
What will however once again be of concern is whether the Home Office will cope administratively where each and every asylum claimant is required to complete and return a preliminary information questionnaire. If there is selective use of the questionnaire, the relevant question will be why? Why should one asylum claimant be required to complete and return a questionnaire and another not?
Is the use of the questionnaire likely to lead to the increased use of asylum refusal decisions based on non- compliance or treated as impliedly withdrawn? If so, more so in cases of non- compliance decisions, will this see First Tier Tribunal Judges in effect and in practice becoming the initial decision makers during the appeal process itself?