The New Plan for immigration proposes several significant changes to the existing asylum procedure.
Illegal entry v. legal entry
Those who enter the UK illegally when it was possible for them to seek refuge else will be inadmissible to the asylum system. Instead, the UK will seek to rapidly return them to a safe country and only where this cannot be done, will their claim to asylum be considered. Such a claim results in a grant of temporary status for a maximum of 30 months after which the illegal entrant will be regularly reassessed for removal and have lesser benefits compared to a legal entrant.
Those who enter the UK legally will stand to be granted indefinite leave to remain immediately on arrival so that they can enjoy their life in the UK. They will also enjoy considerably more benefits such as assistance in settling in the UK through a support programme, enhanced family reunion rights and recourse to public funds where required.
Strengthening the Well-Founded Fear of Persecution Test
Asylum claims are proposed to be assessed against a more rigorous standard for testing the well-founded fear of persecution. The test will be divided into two elements.
The first element assesses whether the asylum seeker is the person who they say they are and are experiencing a genuine fear of persecution. This will have to be proved on a balance of probabilities and will include a credibility assessment and the opportunity to claim asylum elsewhere.
The second element will consider whether the asylum seeker is likely to face persecution if they return to their country of origin. This will need to be proven to a standard of ‘reasonable likelihood.’ Where risk is claimed due to being part of a group, the asylum seeker will have to prove that the group is suffering from persecution or the asylum seeker himself is personally at risk of persecution.
The definition of persecution is also to be set out in the statute.
Challenging a refusal
Currently, if a person’s asylum claim is refused, they have an automatic right to appeal the refusal to the First-Tier Immigration and Asylum Tribunal. If such an appeal is dismissed, further permission to appeal applications can potentially be made up to the Court of Appeal.
If all appeal rights are exhausted, an asylum seeker currently has the option of bringing a fresh asylum claim, the refusal of which can potentially be challenged via appeal once again.
Where no in-country right of appeal is offered when an asylum claim is refused, there is also the possibility of making an application for judicial review.
The New Plan proposes to make the asylum and appeals system ‘faster and fairer’ by:
- Developing a “good faith” requirement set out principle for asylum seekers and their representatives to follow when dealing with public authorities and the courts. This includes not providing misleading information or bringing late evidence where it was available earlier. Failure to act in good faith may be relevant in assessing the credibility of an asylum claim;
- Introduce a ‘one-stop’ process to ensure that asylum, human rights claims, and any other protection matters are raised and considered ahead of any appeal hearing. This requires asylum seekers and their representatives to set out full details of the claims honestly and comprehensively to the Home Office at the outset. Raising a new claim after having been through the ‘one-stop’ process may be given minimal weight;
- Provide more access to advice including legal advice to avoid last-minute claims;
- Quickly handling claims and appeals made from detention;
- Provide a quicker process for judges to make decisions on claims which the Home Office refused without the right of appeal. This is aimed at reducing costs and delays associated with judicial reviews;
- Creating a panel of pre-approved experts or require experts to be jointly agreed upon by parties;
- Increase use of wasted costs orders in asylum and immigration matters and make a presumption in favour of making one to cover wasted costs of both the parties and the courts;
- Expand the fixed recoverable cost regime to cover immigration judicial reviews. This will set out a fixed sum the winning party can recover from the losing party; and
- Introduce a new fast-track appeal process for cases deemed to be unfounded or late.
Disclaimer:
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Connaught Law and authors accept no responsibility for loss that may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Connaught Law. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Connaught Law.
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