Regular procedure

United Kingdom

Country Report: Regular procedure Last updated: 14/03/22

Author

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General

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. An Inspection by the ICIBI identified and detailed challenges to the UKVI casework progression and looked at the length of time taken to make a decision, on average for each quarter between January 2017 and May 2021. The first quarter of 2021 was found to be the longest, at an average of 473 days.[4]  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 2020, it had reached a record level of 48,680 cases.

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’;. 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 Refugee Council released statistics obtained from a Freedom of Information Act request detailing the length of delays longer than 6 months, as these data are not routinely published. A breakdown of lengths of waiting times for initial decision show an increase, amongst other statistics, that at the end of December 2020, 2,284 people had been waiting 3 years or more for an initial decision, of whom, 253 people had been waiting for 5 years or more, 55 of whom were children[7].

A 2019 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. [8]

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.[9] 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,[10] and this is standard practice. There is an initial screening interview before the substantive interview. Most 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. This form is now available to download.[11]

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.[12] 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.[13] 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 usually 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,[14] 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. New guidance on interviewing applicants was published in 2021[15]; changes include up to date information on childcare, specific guidance on interviewing unaccompanied children now over 18, videoconferencing, advice on inadmissibility and the recording of interviews.

The guidelines on gender issues require provision of childcare so that parents do not have to have their children present while being interviewed about possibly traumatic experiences.[16] 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.[17]  Substantive interviews were paused between mid-March and the end of June 2020. When they resumed they mainly take place via video link; the asylum seeker is invited to the usual Home Office premises but the interviewing officer may be working from home or in a different office. Some face-to-face interviews have resumed. [18] although they are likely to remain an exception rather than the rule, particularly in light of new casework specialisms meaning it is increasingly likely that the interviewing officer and decision maker will be located in a different region from the applicant.

Interpretation

Interpreters are required by the Immigration Rules and are provided by the Home Office. There is a code of conduct for these interpreters, which was revised in 2020,[19] 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.[20] 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. The Independent Chief Inspector of Borders and Immigration published its report into the use of language services, including interpreters, in 2020. [21] It recommended that the Home Office should:

  • Appoint a Borders, Immigration and Citizenship System (BICS) ‘owner’ for language services, with accountability across BICS for the formulation and implementation of policies and processes, collection of data and performance monitoring, planning and delivery of the required resources and capabilities, risk management, internal and external communications, monitoring and management of contracted out services, and stakeholder engagement.
  • Create, publish and resource a comprehensive programme of improvements to the provision and use of language services, with clear timelines and deliverables. This should include the identification of urgent tasks and ‘easy wins’ as well as longer-term projects.
  • Ensure that the risks and issues in relation to language services are fully and accurately reflected in the Risk Registers, and that mitigations and actions are regularly reviewed.[22]

All three of the recommendations were accepted by the Home Office but has given no update on implementation of them or any other progress or changes made since 2020.[23]

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.[24] 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 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. In 2020 the NGO Freedom From Torture published research based on interview transcripts and testimonies from survivors of torture and their experiences of being interviewed in relation to their asylum claim. The criticisms and recommendations have wider applicability than the subject of the research. [25]

The ICIBI Inspection of asylum casework examined the use of the aforementioned questionnaire and reference to it in the asylum interview. It also details inconsistencies in caseworker’s preparation for interview, the level to which they probe material issues, the use of video conference for interviews and quality assurance measures[26]. The government’s response was to accept the recommendations, although one relating to quality assurance was accepted only in part. However, it remains to be seen what improvements are made in practice, given the government’s determination to wholescale reform of the system.

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.[28] 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 (€180) 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.[29] 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.[30] Tribunal rules require all evidence to be translated into English where relevant and sent to all parties in advance of the hearing.[31] 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.

The BBC used Freedom of Information Act requests to reveal the variance in appeal success rates by hearing centre,[32] although other factors may influence the outcome of appeals.

In 2020 a report was published following a research project involving observations and interviews with appellants, representatives and, staff. It concluded that asylum seekers at their appeal hearings are hampered by six factors; confusion, anxiety, mistrust, disrespect, communication difficulties and distraction and 34 recommendations are made.[33]

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 usually 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.[34] 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.[35]

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.[36]

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,[37] 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.[38]

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.[39]

Few asylum seekers obtain advice before their screening interview.

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 (€496).[40] 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.[41]

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. 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.[42]

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.[43]

The legal aid fixed fee for appeals was changed in 2020; [44] whilst it was raised lawyers were required to conduct more work and the complex fee structure meant that in fact lawyers lost money in the new system.[45] Following a successful challenge,[46] the new regulations were revoked and until a full consultation is completed, the rates have been amended.[47] The consultation was held in late 2021[48] but was criticised as being too short and after too brief a time period to fully understand the impact.[49] The rates had not been changed at time of writing.

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.[50] 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. The ‘market’ approach to the provision of legally aided immigration advice has been criticised in a key academic study.[51]

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%.[52] 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.[53]However, the government announced further reform/ limitations on Judicial review in 2021 and introduced a new Bill which at the time of writing is proceeding through Parliament[54]. The reforms include restrictions on Judicial Reviews for decisions made by the Immigration and Asylum chamber of the Upper Tribunal. The proposals have been criticised by lawyers and human rights organisations[55]. Critics point out that whilst the government’s focus is on the low success rate of some types of Judicial Review, the impact on the people affected should not be minimised.

 

 

 

[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]  ICIBI Inspection of asylum casework published November 2021 https://bit.ly/3IdOQkA

[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]  Living in Limbo; a decade of delays in the asylum system, Refugee Council July 2021 https://bit.ly/3fEa1Ad

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

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

[10] Para 339NA Immigration Rules Part 11.

[11]   Preliminary Information Form available at: https://bit.ly/3piXiGs

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

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

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

[15] Asylum Interviews, Home Office June 2021.

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

[17]  Home Office, Asylum Policy Instruction Asylum Interviews, 2021, available at https://bit.ly/3ImU0e7

[18] The resumption of substantive asylum interviews, Home Office, August 2020, available at: https://bit.ly/3cfexVf

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

[20]  Interpreters’ code of conduct, available at: https://bit.ly/3t0vYig

[21]  Inspection report on the use of language services in the asylum process Independent Chief Inspector of Borders and Immigration 2020, available at: https://bit.ly/2LY8zh2

[22]  Inspection report on the use of language services in the asylum process Independent Chief Inspector of Borders and Immigration 2020, available at: https://bit.ly/2LY8zh2

[23]  Home Office response to the ICIBI Inspection on the use of language services 2020 https://bit.ly/33SBV97

[24] Home Office, Asylum Policy Instruction, Gender issues in the asylum claim, para 7.1, available at: http://bit.ly/1CbiHBK.

[25]  Beyond Belief; How the Home Office fails survivors of torture at the asylum interview, Freedom from   Torture 2020, available at: https://bit.ly/3tGxJRk

[26] Government response to the ICIBI Inspection of Asylum Casework, 2021 https://bit.ly/3nEsb9r

[27] For the period July to September 2020, appeals relating to asylum/protection, see: https://bit.ly/389ossO

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

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

[30] 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

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

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

[33] Experiencing Asylum Appeal Hearings: 34 ways to improve access to justice at the First Tier Tribunal, University of Exeter and Public Law Project 2020, available at: https://bit.ly/3qWJO3h

[34] Rule 33 Procedure Rules.

[35] Rule 54.7A Civil Procedure Rules.  

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

[37]  Para 333B Immigration Rules Part 11.

[38] James Cartlidge answer to written question on Legal Aid Scheme, available at https://bit.ly/35ptoeP https://bit.ly/2InOdbp.

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

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

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

[42]  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.

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

[44] Civil Legal Aid (Remuneration) (Amendment) (Coronavirus) regulations 2020, available at: https://bit.ly/36ehce7

[45] Government criticised over new fixed fee, Law Society Gazette , May 2020, available at:  https://bit.ly/2YhLesU

[46]  Statement by legal team following consent order between the parties.

[47] Changes to fee payments for immigration work; Government announcement, 7 October 2020, available at:  https://bit.ly/3beIFzn

[48] Ministry of Justice consultation on online system and legal aid fees https://bit.ly/3rCnaiG

[49] Response by Immigration Law Practitioners’’ Association https://bit.ly/3tIoLGl

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

[51]  Droughts and deserts; a report on the immigration legal aid market, Dr Jo Wilding 2019 https://bit.ly/3t0yDII

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

[53]  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.

[54]  Judicial Review and Courts Bill https://bit.ly/3sau0xF

[55] Liberty briefing for the second reading of the Judicial Review and Courts Bill October 2021 https://bit.ly/3I58BeF  

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