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Fresh claims for asylum
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I thought it was high time for a general advice post, as it’s been a while since the last one. This one is about fresh claims for asylum.
A failed asylum seeker can apply for asylum again; this is referred to as a ‘fresh claim’. By ‘asylum’, I’m referring here to both the Refugee Convention and to human rights protection. To stop people claiming asylum over and over again, there is a test that a fresh claim has to meet before it will be properly considered by the Home Office. This test for whether a claim is fresh is set out in Immigration Rule 353 and is essentially:
1. Does the asylum seeker have anything new to say, or has anything changed since last time?
2. Does this change of circumstances or new information give the new asylum claim a realistic prospect of success in front of an immigration judge?
The procedure is that the asylum seeker gets together all of the relevant new information and submits it to the Home Office, usually by post rather than attending in person. The Home Office then decide (a) whether the test for a fresh claim is met and then if so (b) whether to grant asylum. One might have thought that if the test for a fresh claim was met, the Home Office would grant asylum, but what often happens in practise is either the Home Office say the fresh claim test is not met or even if it is met, they still refuse to grant asylum. There is no appeal in the first scenario, there is a right of appeal in the second scenario.
If the Home Office will not even accept that the fresh claim test is met, the only way the decision can be challenged is by a process called judicial review. This is not a straightforward process and a solicitor is needed.
There are a lot of failed asylum seekers still in the UK. No-one seems to know how many. This is the consequence of the Home Office policy of kicking failed asylum seekers out of their accommodation and making them destitute but not removing them; inevitably, many drop off the radar and end up working illegally to try and feed themselves.
The main types of fresh claims are as follows:
- Where there is a change of country conditions, which means that those who were previously refused asylum because their country was relatively safe are now potentially in danger. There have recently been a lot of Sri Lankan and Zimbabwean fresh claims on this sort of basis.
- Where there is a change in a person’s personal circumstances. For example, if after the last claim was decided a person enters into a serious relationship and/or has children or develops a serious medical condition, that person might have a fresh human rights claim to put forward.
- Where new evidence comes to light. If the person’s personal credibility as a witness of truth was completely destroyed in an earlier claim for asylum, any evidence that he or she puts forward will of course be looked at with scepticism. Generally evidence from an independent and perhaps verifiable source is more useful. If the evidence was previously available then questions will be asked about why it was not put forward previously.
Succeeding in fresh claims is not easy. However, with a good and persistent lawyer and with good evidence, fresh claims for asylum can and do succeed.
Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.
Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.
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4 responses
Very concise and clear. Thank you.
Any statistics available? It would be interesting to know how many f. claims are made and how many are recognised as such.
“A failed asylum seeker can apply for asylum again; this is referred to as a ‘fresh claim’”.
You can apply again but the application is not referred to a “fresh claim” at that stage.
“The procedure is that the asylum seeker gets together all of the relevant new information and submits it to the Home Office, usually by post rather than attending in person. The Home Office then decide (a) whether the test for a fresh claim is met and then if so (b) whether to grant asylum”
(a) and (b) are the wrong way round. What the FAS sends are “further submissions” to the Home Office. The Home Office will consider the further submissions. The Home Office must decide whether to reverse a previous refusal of asylum (or human rights claim). If decides to reverse – result!
If the Home Office will not reverse a previous refusal, it must then decide if the further submissions amount to a “fresh claim”. This is done by applying the test you refer to – “2. Does this change of circumstances or new information give the new asylum claim a realistic prospect of success in front of an immigration judge?”.
If the Home Office decides there is a realistic propect of success in front of an Immigration Judge, then the claim is a “fresh claim”. That means that you would have an in country right of appeal to the AIT against the refusal.
If it decides there would not be a realistic prospect of success for an Immigration Judge – that the further submissions do not amount to a “fresh claim” – there is no right of appeal against the refusal of the further submissions. However, the Home Office’s decison to refuse to treat further submissions as a “fresh claim” can be challenged by applying for judicial review.
I have applied for Fresh claim. when is it possible for Home office to consider, I mean the time frame. how much time it take for the home office to reply.
Thanks.