Asylum and Refugee Law

The UK is obliged under International law to provide protection to individuals who are at a real risk of persecution in their country of origin. The process for seeking such protection is to apply for asylum.

Asylum applicants will be invited to an initial screening interview followed by a full asylum interview where a representative for UK Visas and Immigration will conduct an in-depth investigation into the basis for the individual’s fear of persecution. The asylum interview can last many hours and is often a very stressful process for the applicant, who has to provide a detailed account of the persecution they have suffered to the interviewer. The applicant is welcome to have a lawyer present during this interview.

The UKVI refuse many asylum applications not because they are untrue, but because there is limited time to prepare all the evidence to make a strong claim. An experienced immigration and asylum lawyer can assist you through the asylum application process and give you a greater chance of success.

Our immigration barristers have vast experience in providing advice, representation and advocacy to individuals applying for asylum and refugee status in the UK, including attendance at interviews, preparing witness statements, instructing expert witnesses, and representing at the First-tier and Upper Tribunals.

 

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Relevant Immigration Rules for Asylum and Refugee Law

The following Immigration Rules are relevant to Asylum and Refugee law:

Immigration Rules Part 11: Asylum

 

Definition of a Refugee

The Refugee Convention defines a refugee as ‘a person unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion’.

 

Definition of EU asylum applicant

326C. Under this Part an EU asylum applicant is a national of a Member State of the European Union who either;

(a) makes a request to be recognised a refugee under the Refugee Convention on the basis that it would be contrary to the United Kingdom’s obligations under the Refugee Convention for them to be removed from or required to leave the United Kingdom, or

(b) otherwise makes a request for international protection. “EU asylum application” shall be construed accordingly.

 

Definition of asylum applicant

327. Under the Rules an asylum applicant is a person who either;

(a) makes a request to be recognised as a refugee under the Refugee Convention on the basis that it would be contrary to the United Kingdom’s obligations under the Refugee Convention for them to be removed from or required to leave the United Kingdom, or

(b) otherwise makes a request for international protection. “Application for asylum” shall be construed accordingly.

327A. Every person has the right to make an application for asylum on their own behalf.

 

Applications for asylum

328. All asylum applications will be determined by the Secretary of State in accordance with the Refugee Convention. Every asylum application made by a person at a port or airport in the United Kingdom will be referred by the Immigration Officer for determination by the Secretary of State in accordance with these Rules.

 328A. The Secretary of State shall ensure that authorities which are likely to be addressed by someone who wishes to make an application for asylum are able to advise that person how and where such an application may be made.

329. Until an asylum application has been determined by the Secretary of State or the Secretary of State has issued a certificate under Part 2, 3, 4 or 5 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 no action will be taken to require the departure of the asylum applicant or their dependants from the United Kingdom.

330. If the Secretary of State decides to grant refugee status and the person has not yet been given leave to enter, the Immigration Officer will grant limited leave to enter.

331. If a person seeking leave to enter is refused asylum or their application for asylum is withdrawn or treated as withdrawn under paragraph 333C of these Rules, the Immigration Officer will consider whether or not they are in a position to decide to give or refuse leave to enter without interviewing the person further. If the Immigration Officer decides that a further interview is not required they may serve the notice giving or refusing leave to enter by post. If the Immigration Officer decides that a further interview is required, they will then resume their examination to determine whether or not to grant the person leave to enter under any other provision of these Rules. If the person fails at any time to comply with a requirement to report to an Immigration Officer for examination, the Immigration Officer may direct that the person’s examination shall be treated as concluded at that time. The Immigration Officer will then consider any outstanding applications for entry on the basis of any evidence before them.

332. If a person who has been refused leave to enter makes an application for asylum and that application is refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules, leave to enter will again be refused unless the applicant qualifies for admission under any other provision of these Rules.

333. Written notice of decisions on applications for asylum shall be given in reasonable time. Where the applicant is legally represented, notice may instead be given to the representative. Where the applicant has no legal representative and free legal assistance is not available, they shall be informed of the decision on the application for asylum and, if the application is rejected, how to challenge the decision, in a language that they may reasonably be supposed to understand.

333A. The Secretary of State shall ensure that a decision is taken on each application for asylum as soon as possible, without prejudice to an adequate and complete examination.

Where a decision on an application for asylum cannot be taken within six months of the date it was recorded, the Secretary of State shall either:

(a) inform the applicant of the delay; or

(b) if the applicant has made a specific written request for it, provide information on the timeframe within which the decision on their application is to be expected. The provision of such information shall not oblige the Secretary of State to take a decision within the stipulated time-frame.

333B. Applicants for asylum shall be allowed an effective opportunity to consult, at their own expense or at public expense in accordance with provision made for this by the Legal Aid Agency or otherwise, a person who is authorised under Part V of the Immigration and Asylum Act 1999 to give immigration advice. This paragraph shall also apply where the Secretary of State is considering revoking a person’s refugee status in accordance with these Rules.

 

Grant of Refugee status

334. An asylum applicant will be granted refugee status in the United Kingdom if the Secretary of State is satisfied that:

(i) they are in the United Kingdom or have arrived at a port of entry in the United Kingdom;

(ii) they are a refugee, as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006;

(iii) there are no reasonable grounds for regarding them as a danger to the security of the United Kingdom;

(iv) having been convicted by a final judgment of a particularly serious crime, they do not constitute a danger to the community of the United Kingdom; and

(v) refusing their application would result in them being required to go (whether immediately or after the time limited by any existing leave to enter or remain) in breach of the Refugee Convention, to a country in which their life or freedom would be threatened on account of their race, religion, nationality, political opinion or membership of a particular social group.

335. If the Secretary of State decides to grant refugee status to a person who has previously been given leave to enter (whether or not the leave has expired) or to a person who has entered without leave, the Secretary of State will vary the existing leave or grant limited leave to remain.

 

Relevant Home Office policy for Asylum and Refugee law

Under the Refugee Convention, the UK has a fundamental responsibility to properly consider claims and make well reasoned decisions. In order to do so, the Home Office has to  investigate the relevant issues against the background of country of origin information.

The policy objective in considering asylum claims and assessing credibility is to ensure that:

►  Asylum claims are correctly decided, in accordance with our international obligations under the Refugee Convention and the ECHR, in a timely and sensitive way and on an individual, objective and impartial basis.

►  All claimants are treated with respect, dignity and fairness regardless of age, disability, ethnicity, nationality, race, gender, sexual orientation, religion or belief.

►  Protection is granted to those who need it and refused where the claimant does not have a well-founded fear of persecution.

►  Clearly unfounded cases are certified under section 94 of the Nationality, Immigration and Asylum Act 2002.

►  While recognising that all asylum seekers are potentially vulnerable, ensuring that particularly vulnerable claimants are given help in accessing appropriate services, for example, where there are concerns over physical and mental health, experience of torture, trafficking, sexual or domestic violence or child protection concerns.

 

 

 

 

 

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