Updates, commentary, training and advice on immigration and asylum law
Asylum withdrawals guidance amended to halve time given to explain non-attendance at interview
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A new version of the Home Office caseworker guidance “Withdrawing asylum claims” has been published, halving the amount of time people are given to explain reasons for missing an interview as well as setting out some additional steps for those who miss an interview. You can see a comparison of the new and previous versions here.
Separately, it is also useful to note that OISC has published guidance “Guidance Note on explicit and deemed withdrawal of asylum claims” explaining what work those accredited at level 1 can do on withdrawals.
What has changed in the Home Office guidance?
References to a “substantive” asylum interview have been removed throughout the new version of the guidance. On page 19 this is now referred to as the “first scheduled appointment for an asylum interview”.
The length of time a person is given to provide evidence that their non-attendance at the first asylum interview was due to circumstances beyond their control has been halved, from ten to five working days (it is unclear whether this is from the date of the letter or date of deemed receipt). If no response is received by the Home Office in that time frame, the claim may be treated as withdrawn. Given the well-known delays with post at the moment, this seems highly likely to result in an increase in wrongfully withdrawn cases.
A new stage has been added for where a person misses an interview and has presumably provided an explanation for this that has been accepted by the Home Office (as in the absence of such an explanation the guidance indicates that the claim may be treated as withdrawn). The new stage provides for the Home Office decision maker to write out to the person or their lawyer if they need more evidence to make a decision about whether to accept the first non-attendance. The guidance says that: “If further information or evidence is required to assess the circumstances, you should contact the claimant using template letter ASL.5573 (Withdrawal Action Pending-Request Further Information for Failure to Attend Asylum Interview or Reporting Event).”
A whole new subsection “Multiple failures to attend an asylum interview” has then been inserted at pages 20 to 21. This says that where an interview is re-booked following a previous non-attendance, the person will be told in their interview invite letter that their claim “will” be withdrawn if they do not attend and have not advised the Home Office before or on the day of the interview that they are unable to attend due to circumstances beyond their control.
If the person fails to attend the rescheduled interview without prior notice being given, the guidance says that the decision maker “must” attempt to contact the person or their lawyer on the day of the interview, by telephone or email, to find out why the interview was missed. All such communications “must” be recorded on the case working system.
If the person or their lawyer does advise the Home Office in advance or on the day of the interview of non-attendance, the Home Office will then consider whether the reasons given and any supporting evidence are “a reasonable explanation for non-attendance”. Examples given of what is considered reasonable include ill health and travel disruption.
If it is accepted that the explanation is reasonable, the interview will be rescheduled. If the Home Office decision maker does not accept that the reasons for non attendance were beyond the person’s control, the claim “must” be withdrawn no earlier than two working days after the missed appointment.
The existing process for reinstating withdrawn claims can be used where the person provides evidence within ten working days that their claim was incorrectly withdrawn.
The introduction of an additional stage of writing out for more evidence to prevent withdrawal for non-attendance at an interview does not inspire confidence. The evidential threshold for non-attendance at an asylum interview should be low for someone who is clearly still in contact with the Home Office and has indicated that that they are still trying to pursue their claim.
To treat such cases as withdrawn because a Home Office decision maker does not accept the evidence as sufficient, or the reason given as good enough, does nothing to resolve the asylum backlog beyond fiddling the numbers. Some people will be able to access legal assistance to get their cases reinstated. Many will not.
Those people will still be here and at some point their claim will still need to be considered. That may very well end up being at the point of attempted removal, which does not benefit anyone as, in addition to the trauma caused to the person concerned, removal cases involve a lot more resources for all sides than simply processing the claim to begin with. In the period between having their case withdrawn and having it reconsidered, people will be unable to access support which is likely to lead to situations of exploitation.
A cynic might say that these changes have been made to allow for withdrawals to be made faster ahead of the arbitrary end of year deadline set by the Prime Minister to “clear the backlog”. To have a process that still heavily relies on a dysfunctional postal system, where interviews are often scheduled at short notice and where there are such serious consequences for missing deadlines, is dangerous.
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