Author
Provision for a subsequent claim is made in the Immigration Rules.[1] Where an asylum seeker makes further representations that are sufficiently different from previous submissions in that the content has not previously been considered, and which, taken together with previously submitted material create a realistic prospect of success, these submissions can be treated as a ‘fresh claim’. If they are treated as a fresh claim then a refusal attracts a right of appeal to the FTT (IAC), and all provisions are the same as for an appeal regarding a first asylum application (see section on Regular Procedure: Appeal).
Case law provides that the threshold to be passed for submissions to be treated as a fresh claim is a ‘relatively modest’ one.[2] In practice, lawyers and NGOs say that the threshold employed is very high.
The is no opportunity to appeal. Judicial review is the only means to challenge refusal to treat submissions as a fresh claim, and it is only available with the permission of the tribunal. In such a challenge the Court must consider whether the Home Office considered the right question, namely, not whether the caseworker thinks it is a strong case, but whether there is a realistic prospect of an immigration judge, applying ‘anxious scrutiny’ (i.e. a “heightened degree” of scrutiny),[3] thinking that the applicant will be exposed to a real risk of persecution or serious harm on return. In so doing, Home Office caseworkers themselves must also use ‘anxious scrutiny’. Whether this has been done is a question the court can consider for itself on the basis of the evidence that the Home Office caseworker had.[4]
In practice, the shortage of publicly funded legal advice[5] means that poorly reasoned refusals may go unchallenged, with the asylum seeker often resorting instead to making another set of further submissions. The Home Office does not publish the number of fresh claims but in answer to a parliamentary question the Minister stated that in 2021, 6,760 further submissions were made in support of fresh claims.[6] Statistics are not routinely published as to what proportion of further submissions are considered to amount to a fresh claim, although a response to a Freedom of Information Request highlights that a significant number of those making further submissions are granted a form of leave.[7]
Further representations must be made to the Home Office in Liverpool or Glasgow. Where the claimant is over 18, this must be done in person unless there are exceptional circumstances such as disability or severe illness or the best interests of a child require an exception to be made.[8] There is no fixed limit to the number of further submissions that can be made. The response to further submissions is decided on the basis of written submissions and without an interview, but the submissions must be delivered in person at an appointment.
Once they have an appointment (usually 3 to 10 days after it is arranged by calling the booking line[9]), applicants need to have the means to travel to lodge their further submissions. This is problematic as the Home Office will not pay travel expenses, and most refused asylum seekers who have further submissions to make are destitute. Liverpool is more than a day’s round trip by cheapest transport methods (usually bus) from many parts of the UK. Although destitute applicants should be eligible for Section 4 support (see section on Reception Conditions: Criteria and Restrictions) as soon as they have alerted the Home Office to the existence of further submissions,[10] in practice, it is extremely difficult to access support while waiting for an appointment, and any support is unlikely to materialise before the appointment. It may also be difficult to access Section 4 support while waiting for a decision on whether those further submissions constitute a fresh claim.[11] In effect, this means that people with further submissions may be left destitute.
A person may not be removed before a decision is taken on any submissions they have outstanding.[12] Removal directions (the order to a carrier to take the person on a particular flight or crossing) may remain in place while further submissions are being considered, only to be cancelled if the claimant is successful or if the Home Office decides they need more time to decide. Further submissions may be allowed or refused at any time until the asylum seeker is actually removed. A last-minute refusal may leave no time for any further legal challenge, and there is no obligation for the Home Office to respond in time for the asylum seeker to take advice or challenge a refusal.
Preparation of further submissions is funded under Legal Help in the same way as initial claims are (see Legal Assistance). Again this puts pressure on lawyers, challenging conscientious representatives to maintain quality work. Funding for expert reports can be obtained from the Legal Aid Agency, though the agency is generally reluctant to grant any additional funding and it is normal for legal representatives to have to argue for this.
The procedure for further submissions is different for unaccompanied children who are still under the age of 18 when any leave they have expires. The decision maker must make enquiries as to the situation of the child to ascertain if it has changed since the original grant of leave and conduct a best interest assessment.[13]
[1] Para 353 Immigration Rules Part 12.
[2] Court of Appeal, WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, 9 November 2006, available at: http://bit.ly/2jVIRJ5.
[3] Court of Appeal, Sivakumar v Secretary Of State For Home Department [2001] EWCA Civ 1196 at paragraph 30, available at: https://bit.ly/3T8Qxbq.
[4] Court of Appeal, R (on the application of YH) v Secretary of State for the Home Department [2010] EWCA Civ 116, available at: https://bit.ly/4bMI0lF.
[6] Kevin Foster, ‘Response to written question’, answered 28 February 2022, available at: https://bit.ly/3McUmHj.
[7] Home Office, Response to FOI request made on 2 October 2023, 27 February 2024, available at: https://tinyurl.com/3vkxymmv.
[8] Home Office, Further Submissions, June 2022, available at: http://bit.ly/2jweaZ5.
[10] High Court, MK and AH v Secretary of State for the Home Department [2012] EWHC 1896 (Admin), available at: https://bit.ly/3UOxLr0.
[11] ASAP, Section 4 Support – Factsheet 2 (Breach of Human Rights), October 2018, available at: https://bit.ly/2GbzAa4.
[12] Para 353A Immigration Rules.
[13] Home Office, Processing children’s asylum claims, June 2022, available at: http://bit.ly/2jfz4uD.