Regular procedure

United Kingdom

Country Report: Regular procedure Last updated: 30/11/20

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Regular procedure

General (scope, time limits)

As mentioned in Number of staff and nature of the determining authority, the Home Office has responsibility for all aspects of immigration, and is directly responsible for policy development. The department dealing with the processing of asylum claims is the UK Visas and Immigration (UKVI). Within the UKVI the directorate dealing with asylum claims is known as the Immigration and Protection Directorate; Asylum Intake and Casework is within that directorate. Responsibility for border control lies with the UK Border Force, an executive agency of the Home Office which combines immigration, policing and customs functions. Subjects covered by the publicly available guidance for case workers include making an asylum decision.[1]

 

There is no enforceable time limit for deciding asylum applications, but the immigration rules say that the decision must be taken ‘as soon as possible’.[2] The target to deal with ‘straightforward’ applications was  six months, or 182 days, although in February 2019 the government announced that this strict target had been abandoned,[3] no replacement has yet been agreed, although discussions between UKVI colleagues and NGOs took place in early 2019. Statistics were regularly published as to the performance of the UKVI against the six month target and how many cases were pending after being in the system for more than six months. At the end of December 2019, it had reached a record level of 22,549.

If a decision is not taken within six months, a caseworker should inform the applicant of the delay. This is common in cases designated as ‘non-straightforward’; in 2017 the internal guidance on non-straightforward cases was contained in a report by the Independent Chief Inspector of Borders and Immigration and much criticism made of the processing of such claims.[4] Criticisms included lack of attention to a case once it has been designated ‘non-straightforward’ and some reports of designation as ‘non-straightforward’ simply on the basis that the 182-day deadline was fast approaching. Most legal challenges relating to delays, even of unaccompanied minors,[5] do not succeed unless it can be shown that the delay was deliberate, which was the case in one case, TM v Secretary of State for Home Department, during 2018 where it was found that the case was unlawfully put on hold.[6]

The aforementioned Independent Chief Inspector report also reveals that a cohort of applicants are routed into casework without having had a screening interview; this is likely to delay the process as elements of the screening process must be conducted prior to a substantive interview being completed e.g. security checks. There is anecdotal evidence only of delays in applicants having their substantive interviews scheduled, as no statistics are collected on this issue and the Independent Chief Inspector’s report did not cover it. The author is aware of many unaccompanied child applicants who have been waiting more than six months for a substantive interview and several cases of up to two years delay.

It is not possible to say how many applicants have been waiting for an initial decision for over a year, because the published figures are of decisions pending for less than six months – 28,664 at the end of 2019 – and for more than six months – 22,549 at the end of 2020.

A report entitled “Lessons not Learned: the failures of asylum decision-making in the UK” documents flawed credibility assessments and finds that the current system places an unrealistic and unlawful evidential burden on asylum applicants. It compiles findings from over 50 publications issued over the last fifteen years on the quality of decision-making processes in the UK Home Office. Built on an analysis of over 1,800 asylum cases and 140 interviews, the report charts the consistent failure of the Home Office to implement recommendations to improve procedures. [7]

 

Prioritised examination and fast-track processing

There is no established system in the UK for prioritising the cases of people who are particularly vulnerable or whose case appears at first sight well-founded, although since the abandonment of the six-month target the Home Office claims that vulnerable clients (undefined publicly) are prioritised.[8] The only system for expediting decisions was the Detained Fast Track, which has been suspended since 2015.

Personal interview

Applicants are entitled to a personal interview,[9] and this is standard practice. There is an initial screening interview before the substantive interview. Some applicants are given a questionnaire to complete and return prior to the substantive interview. This is not universal and no additional legal help is afforded to those who are required to complete it. Failure to do so can result in the Home Office treating the claim as withdrawn.[10]

Interviews may be dispensed with in defined circumstances including where: a positive decision can be taken on the basis of the evidence available; the facts given in the application only raise issues of minimal relevance or which are clearly improbable or insufficient or designed to frustrate removal, or the applicant is unfit or unable to be interviewed owing to enduring circumstances beyond his control.

Where a refused asylum seeker returns to the UK and wishes to claim asylum again, guidance to Home Office officers is that this should be treated as a further submission.[11] In this case they may be refused an interview. Applicants under 12 years old are not normally interviewed, though they can be if they are willing and it is deemed appropriate.[12] In summary, it is very rare for an asylum applicant over 12 years of age on their first application in the regular procedure not to have an interview.

Personal interviews are conducted by the authority responsible for taking the decisions, i.e. by the Home Office caseworkers, although it will not always be the same individual. Asylum seekers are entitled to have a legal representative with them at the personal interview, but there is no public funding for this for adult claimants, save in the case of lack of mental capacity,[13] and so few are able to do so in practice. Where there is a legal representative present, their role is not to put the asylum seeker’s case, but to ensure that their client is able to participate fully and properly in the interview.

The guidelines on gender issues require provision of child care so that parents do not have to have their children present while being interviewed about possibly traumatic experiences.[14] This is now formally in place in every location (other than offices with no interview facility) although different arrangements are in place at each venue and there have been some gaps due to a change of provider or location.

Videoconferencing

Increasingly, substantive interviews may take place through video conferencing facilities, to accommodate an interviewing officer or interpreter being located in a different area from the applicant. The guidance has been revised to reflect this.[15]

Interpretation

Interpreters are required by the Immigration Rules and are provided by the Home Office. There is a code of conduct for these interpreters,[16] but in practice asylum seekers are unaware of it and of what to expect from their interpreter unless they have a legal adviser who has informed them about this beforehand. Since inconsistencies on matters of detail in the asylum interview are a common reason for refusing asylum, problems with interpreting can have a significant impact. If the asylum seeker has a representative present, best practice, and guidance issued to Home Office caseworkers, in the case of interpreting problems, suggests that the representative is permitted to interrupt the interview to raise the problem.[17] Home Office caseworkers are not always familiar with this, and it can be difficult for problems of interpretation to be raised and rectified at the time they occur. Asylum seekers are allowed to take an interpreter of their own choosing to the interview, but there is no public funding for this in most adult cases, so taking one's own interpreter is unusual.

Normal good practice is that asylum seekers are asked at the screening interview whether they wish to be interviewed by a man or a woman, and the policy and practice is to respect this preference, subject to availability of staff.[18] This policy also applies to interpreters although no monitoring is conducted relating to adherence to this policy.

Recording and transcript

Audio-recording of interviews is permitted and should be arranged as a matter of routine where the equipment is available, unless a request has been made in advance by the asylum seeker for the interview not to be recorded. The UKVI is currently rolling out digital recording of interviews to all locations although no public information is available on this. The recording must be provided to the applicant after the interview. Five working days are allowed to make comments or corrections before the first instance decision is taken.

Appeal

Appeal to the First Tier Tribunal

There is a right to appeal against an initial asylum decision under the regular procedure. Appeals are made to the Immigration and Asylum Chamber of the First Tier Tribunal (FTT (IAC)) on both facts and law. This is a judicial body, composed of immigration judges and sometimes non-legal members. The Tribunal can assess and make findings of fact on the basis of the evidence presented including evidence which was not before the Home Office decision-maker. The time limit for appealing is 14 days from the date that the Home Office ‘sent’ the decision.[20] Lodging an appeal suspends removal from the UK, unless the case is certified as ‘clearly unfounded’.

Given the limited availability of publicly funded representation in practice, these time limits are short and asylum seekers may resort to sending in the appeal forms without legal representation. The blank appeal forms which also inform asylum seekers about their right to appeal are sent by the Home Office with the refusal letter, however, administrative mistakes made by an unrepresented asylum seeker in lodging an appeal can result in the appeal not being accepted by the Tribunal office.

A fee of £140 (€162) is required for an oral hearing of an asylum appeal in the regular procedure. Applicants do not need to pay if they are receiving asylum support (see Reception Conditions) or if they have public funding to be represented.[21] It is also possible to apply to have the fee waived, and destitute asylum seekers without asylum support would qualify for this, but may not have the advice or information to make the application. In practice most asylum seekers are not liable to pay the fee because most are receiving asylum support at this stage of the process.

The complexity of the law and procedure and the barrier of language make it extremely difficult for asylum seekers to represent themselves. Several research reports refer to the variance in quality and availability of legal advice and this area.[22] Tribunal rules require all evidence to be translated into English where relevant and sent to all parties in advance of the hearing.[23] It is difficult for an unrepresented asylum seeker to know what is required, or to get access to resources and advice to prepare papers for a hearing.

There is no public information routinely made available by government sources, including Courts and Tribunals service, on processing times specific to asylum cases as the data refers to immigration hearings. A Parliamentary Question answered in January 2019 indicated that the average waiting time for asylum appeals from lodging to hearing was 29 weeks, during the period October 2018-September 2019-September 2018.[24]

The BBC used Freedom of Information Act requests to reveal the variance in appeal success rates by hearing centre,[25] although other factors may influence the outcome of appeals.

Research by Asylum Aid and the National Centre for Social Research in 2017 looked at the way women experienced the asylum appeals process, what are the factors contributing to successful cases at appeal and how the guidance for Immigration Judges is implemented in practice.[26]

Asylum seekers give evidence in person at the appeal hearing, and the Tribunal provides interpreters on request. Hearings are public. Decisions are in theory public documents, but decisions of the FTT (IAC) are not published.

Onward appeal to the Upper Tribunal

There is an onward appeal to the Immigration and Asylum Chamber of the Upper Tribunal (UT) (IAC) on a point of law. This is with permission of the FTT (IAC). Application must be made within 14 days of receiving the refusal.[27] If the FTT (IAC) refuses permission, an application for permission may be made to the UT (IAC). If this is refused, there is no appeal, but application may be made to the High Court, or in Scotland the Court of Session, for permission to apply for judicial review within a specially shortened time limit of 16 calendar days (as compared with three months for a usual judicial review application). Permission will only be granted on grounds:

 

  1. that there is an arguable case, which has a reasonable prospect of success, that both the decision of the UT (IAC) refusing permission to appeal and the decision of the FTT (IAC) against which permission to appeal was sought are wrong in law; and
  2. that either:
    1. the claim raises an important point of principle or practice; or
    2. that there is some other compelling reason to hear it.[28]

 

Lodging an appeal or an application for permission to appeal against an asylum refusal suspends removal from the UK, unless the case has been certified under Section 94 Nationality, Immigration and Asylum Act (NIAA) as clearly unfounded.[29]

If permission is granted to appeal to the UT (IAC), the UT (IAC)’s decision may be appealed again with permission on the same limited grounds on a point of law only to the Court of Appeal. In rare cases permission may be given for a final appeal to the Supreme Court where the Court of Appeal or Supreme Court certifies that the case concerns a question of law which is of public importance.

Although the asylum decision is appealable in the regular procedure, there are many decisions affecting asylum seekers against which there is no right of appeal: e.g. a decision to detain, or giving directions for removal, or the refusal to treat further submissions as a fresh claim (subsequent asylum application), or a decision to remove to a safe third country. Where there is no right to appeal the only recourse is to judicial review. This is a procedure which does not examine the merits of the complaint, but only whether the decision maker has acted correctly, for instance by taking into account relevant considerations and not being influenced by irrelevant considerations.

Where the only remedy is judicial review, this is only available with the permission of the reviewing court. Judicial review is now in the Upper Tribunal’s jurisdiction.

 

Legal assistance

Free legal assistance is available to asylum seekers as part of the state funded scheme of free legal aid in restricted areas of legal practice for people who do not have sufficient resources. Although the Immigration Rules provide that asylum seekers shall be allowed ‘an effective opportunity’ to obtain legal advice,[30] access to this is not guaranteed. Statistics on applications for legal aid at first instance were not made available by the Home Office in response to parliamentary questions.[31]

Legal aid is available for appeals, subject to a means test and in England and Wales a merits test, and availability of a representative. This means some appellants appear unrepresented.[32]

Few asylum seekers obtain advice before their screening interview. In the cases where they do, giving full instructions with an interpreter is not publicly funded, since the maximum that the solicitor can claim for work done before screening is £100 (€115) including disbursements.

In England and Wales, legal aid for legal advice and representation for the initial stage of an asylum case, from claim, through interview up to decision, is paid as a fixed fee of £413 (€477).[33] Exceptions include unaccompanied children applicants, and where the representative can evidence that they have undertaken work that equates to over 3 times the value of the fixed fee. An hourly rate can then be paid if the Legal Aid Agency, which assesses the claim for costs, accepts that 3 times the level of work was done and warranted.[34]

The low fixed fee and the significant jump to achieve an hourly rate both put pressure on conscientious representatives. The low fixed fee at these pre-appeal stages also makes it difficult to conduct a thorough examination of a complex case. The grant of legal aid for appeal depends on this assessment by the lawyer, and the award of legal aid contracts by the Legal Aid Agency depends on performance indicators including success at appeals. From December 2013 the rates paid for UT (IAC) work have been reduced, and this comes on top of the legal aid cuts referred to below. While dedicated lawyers continue to do high quality work, the system operates to discourage less scrupulous lawyers from granting legal aid at appeal and makes it difficult for quality representatives to stay in business with high standards.[35]

Legal assistance is not provided at the AIU or at the port of entry. Free legal assistance (funded as described above) is limited to advising the asylum seeker before and immediately after their asylum interview. This may include making additional written representations to the Home Office, which as a matter of usual policy are only allowed within five days after the interview. With some exceptions (including unaccompanied children and people who lack capacity), there is no public funding for a legal representative to attend the asylum interview.[36]

The pressures described above do not apply in Scotland, where fees are not fixed, and there is no merits test for representing at a first appeal. For an appeal to the UT (IAC) where the FTT (IAC) has not given permission to appeal, a lawyer in Scotland must assess the merits of the case, and payment may be disallowed if the Scottish Legal Aid Board takes a different view.

The amount that is payable per case in England and Wales has been reduced steadily over a period of years. The Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 took immigration advice out of scope for all except asylum and trafficking. A legal challenge in regulation to children in immigration proceedings was settled before it reached the court and the law in relation to this was changed as a consequence; the Immigration Rules were changed to this effect on 25th October 2019.[37] The difficulties and constrictions applied by the system of contracted providers by region, based on historical data, result in a general feeling that there is insufficient supply to meet the demand. Concerns are also raised at the decline in good quality legal advice in asylum, for the above and other reasons.[38]

In 2014 legal aid was abolished for civil court cases where the merits are assessed as ‘borderline’, i.e. over 50% but not more than 60%.[39] Further cuts to legal aid in 2014 entailed that legal aid would not be granted for judicial review applications unless the court granted permission for the judicial review to go ahead. This meant that solicitors must do the preparatory work including the application at their own financial risk. Given that success in judicial review is anyway difficult to achieve, it is increasingly difficult for asylum seekers to find a lawyer who will apply for judicial review. Following a post-implementation review published in 2019, the government considers that this change has reached its policy aim of reducing unmeritorious judicial reviews, although acknowledges that this change was not the only factor.[40]

 

 


[1]Home Office, Asylum decision making guidance (asylum instructions), available at: http://bit.ly/1Q7pK5Z.  

[2]Para 333A Immigration Rules Part 11.

[3]Immigration Minister, Reply to Asylum: Applications: Written question – 220305, 18 February 2019, available at: https://bit.ly/2VBYXre.  

[4]Independent Chief Inspector of Borders and Immigration, An inspection of asylum intake and casework, November 2017, available at: http://bit.ly/2hZAIBC.

[5]Including in December 2019, see for example: England and Wales High Court (Administrative Court) Decisions, [2019] EWHC 3573 (Admin), Case No: CO/3942/2018, 20 December 2019 available at:  https://bit.ly/2FUcxR9.

[6]Upper Tribunal, TM v Secretary of State for Home Department [2018] UKUT 299 (IAC), 23 August 2018, available at https://bit.ly/2SUhU6R.

[7]FFT, Lessons not Learned; The failures of asylum decision-making in the UK, September 2019, available at:  https://bit.ly/36ee2UH.

[8]UK Parliament, Answer to written parliamentary question, February 2019, available at: https://bit.ly/2VBYXre.

[9]Para 339NA Immigration Rules Part 11.

[10]UK government, Information for applicants: ‘after your screening’, available at: https://bit.ly/37avcEl.

[11]Home Office, Asylum Process Guidance: Routing Asylum Applications, para.3.9.

[12]Home Office, Children’s Asylum Claims, available at http://bit.ly/2Bcs1Le.

[13]The Civil Legal Aid (Immigration Interviews) (Exceptions) Regulations 2012, available at: http://bit.ly/2BbxjH6

[14]Home Office, Asylum Policy Instruction, Gender issues in the asylum claim, para 7.1.

[15]Home Office, Asylum Policy Instruction Asylum Interviews, 2019, available at: https://bit.ly/36dLJps.

[16]Home Office, Asylum Policy Instruction: Asylum Interviews Section 8: Interpreters, available at: https://bit.ly/36dLJps.

[17]Home Office, Asylum Policy Instruction: Asylum Interviews Section 7.3 Professional conduct.

[18]Home Office, Asylum Policy Instruction, Gender issues in the asylum claim, para 7.1, available at: http://bit.ly/1CbiHBK. For 12 months during the period October 2018-September 2019, asked by PQ (4 February 2020), available at: https://bit.ly/3ayFsYe.

[20]Rule 19 The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014.

[21]HM Courts and Tribunals Service, Immigration and Appeals Tribunal Fees Guidance, available at: http://bit.ly/1d19Fk0.  

[22]Refugee Action and NACCOM, Tipping the Scales, 2018, available at: https://bit.ly/30LaMiM; Dr Jo Wilding, Droughts and Deserts, 2019, available at: https://bit.ly/2NGOGIY

[23]       Rule 12 The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014.

[24]Chris Philp MP, answer to written question. For 12 months to end September 2019 asked by PQ on 28 January 2020, available at: https://bit.ly/3ayFsYe.

[25]BBC, ‘Asylum seekers face appeals “lottery”’, 29 November 2017, available at: http://bbc.in/2AiFm66.

[26]Asylum Aid and NatCen, Through her eyes; enabling women’s best evidence in asylum appeals, 2017, available at: http://bit.ly/2BpN0KN.

[27]Rule 33 Procedure Rules.

[28]Rule 54.7A Civil Procedure Rules.  

[29]Home Office, Section 94 guidance, 12 April 2017, available at: http://bit.ly/2DfyJlK.

[30]Para 333B Immigration Rules Part 11.

[31]Wendy Morton answer to written question on Legal Aid Scheme, available at https://bit.ly/2InOdbp.

[32]UK government, Guidance Unrepresented appellants – Immigration and Asylum Tribunal, available at:  https://bit.ly/38sKSTE

[33]Schedule 1, Table 4(a) Civil Legal Aid (Remuneration) Regulations 2013, available at: http://bit.ly/1fiODPA.

[34Immigration Specification to the 2013 Standard Civil Contract, available at: http://bit.ly/1QFm9jO.

[35]Julie Gibbs and Deri Hughes-Roberts, Justice at Risk: Quality and Value for Money in Asylum Legal Aid, Runnymede Trust, 2012, and see Christel Querton, I feel like as a woman I’m not welcome: a gender analysis of UK law, policy and practice, Asylum Aid 2012.

[36]Legal Aid, Sentencing and Punishment of Offenders Act 2012, Schedule 1 Part 1 (30), available at: http://bit.ly/1J5vmy0.

[37]Government announcement Separated children given better access to legal aid 25th October 2019, available at: https://bit.ly/2sJIrN3.

[38]MigrationWork, Quality of legal services for asylum seekers, January 2016, available at: http://bit.ly/2jzcw7V.

[39]The Civil Legal Aid (Merits Criteria), (Amendment) Regulations 2014 No. 131, available at: http://bit.ly/1epJg0S.

[40]Ministry of Justice, Post-implementation review of Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), February 2019, available at: https://bit.ly/2UoIK8v.

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection