The Home Office has explained in newly published guidance ‘Asylum decision-making prioritisation‘ how they will decide the order for decision making of asylum claims. This provides some much-needed clarity to the process.
As anyone working in the sector can tell you, there is no fixed timeframe for an asylum claim to be decided. Getting updates from the Home Office on progress, challenging delay and asking for expedition can often be a fruitless exercise.
Following the Prime Minister’s pledge to clear the asylum backlog by the end of 2023 there has been a push by the Home Office towards progressing certain asylum claims – whether in the form of issuing decisions, invites to interviews or treating claims as withdrawn.
Who does the guidance apply to?
The process set out in this guidance is separate to the questionnaire being used in the ‘streamlined asylum process’. The guidance also does not apply to asylum claims made by Albanian nationals, as those are being dealt with by a dedicated decision making unit.
The guidance identifies two main groups. The first group comprises people who claimed asylum before certain provisions of the Nationality and Borders Act 2022 were brought into force on 28 June 2022, these are referred to as ‘legacy’ cases. The PM’s commitment to clear the backlog applies only to ‘legacy’ cases.
The second group of cases is those made after that date, referred to as ‘flow’ cases. The newer ‘flow’ claims will not be prioritised until 2024, save in the exceptional circumstances identified below.
Children’s asylum claims should continue to be prioritised and there are two decision making units dedicated to these cases. The guidance recognises that the Home Office must carry out its functions in a way that is compatible with Section 55 of the Borders, Citizenship and Immigration Act 2009.
How will cases be decided?
Cases meeting the legacy criteria will be separated into groups using factors including nationality, volume of claims, grant rate, compliance rate and receipt of asylum support.
For some of these groups, a bespoke questionnaire will be issued ahead of an asylum interview. The form can be completed digitally via an online Home Office form or returned via post/email. Repeated failure to return a questionnaire risks a claim being treated as withdrawn. In the first instance this will apply to Iranian and Iraqi claims by adults as this group has the highest number of outstanding claims within the legacy backlog.
Other applicants will be invited to interview unless a decision can be made on the information already available. When a case is suitable this would be a good opportunity to ask for a decision to be made on the papers alone where there is detailed evidence to support the claim and/or where there has already been lengthy delay.
Exceptional case prioritisation
The guidance acknowledges that there are exceptional circumstances outside of the above programmes which will require prioritisation. The guidance provides a non-exhaustive list of cases that can be prioritised:
- cases involving the Hague Convention
- extradition cases
- cases involving deportation of foreign national offenders
- complex or severe physical or mental health cases
- cases of severe vulnerability – examples include but are not limited to severe safeguarding concerns such as where there has been suicidal ideation or torture and this is evidenced by relevant medical evidence, for example a medico-legal report
Requests should be in writing and sent to the main asylum casework team at: Asylumcentralcommunicationshub@homeoffice.gov.uk. Evidence must be submitted within ten working days of making the request.
Helpfully, the guidance states that expedition requests must be considered, so anyone seeking prioritisation should push for a written response. In some cases, it might be helpful to request review by a senior caseworker. Any response from the Home Office should include an indicative time frame for a decision.
Additionally, updates can be requested where six months has passed and the Home Office should respond with a time frame for decision making, as required under paragraph 333A of the immigration rules. The Home Office is however not obliged to comply with the given time frame.
This guidance may well have been produced to try to see off delay based judicial reviews (Asylum Aid was recently granted permission in such a case). Version 2 of the guidance was published just days after version 1 which suggests that the processes are still in a state of flux.
Where a pre action letter has been sent or a judicial review lodged and the Home Office agrees that the case should be prioritised, they will provided a time frame for a decision in response. Otherwise, the guidance states that:
Where there are no reasons to expedite and prioritise the asylum claim, the case will be considered in line with the current priorities as outlined in this guidance. Litigation operations caseworkers will maintain this position in the PAP response or JR grounds of defence.
This position will need to be borne in mind when considering whether or not it is appropriate to lodge a judicial review.
Tips for expediting an asylum claim
Anyone seeking expedition should:
- ensure that the Home Office has their up to date contact details. This should mean that any communication regarding prioritisation is received and avoids the risk of their claim being treated as withdrawn;
- take this opportunity to request a decision on the papers alone where there is detailed evidence such as a medico-legal report;
- take this opportunity to request updates and seek timeframes for decision making.
It is also worth being aware of when the Home Office will consider that there is a barrier to progression of a case. This includes where they are waiting for evidence that will be important to the decision (including medico-legal reports), where there is a pending prosecution, or where there is a “change in country situation requiring an update in country information note leading to a pause in deciding cases from a particular nationality”.
Secondary asylum casework
Interestingly, the guidance also has a section called ‘secondary asylum casework’. This includes cases that have been reinstated after being withdrawn, that were considered under pre-28 June 2022 inadmissibility processes and subsequently admitted to the asylum system, and where a case has been remitted to the decision maker at the review stage of an appeal. These cases will be considered in chronological order unless they meet the above criteria for exceptional case prioritisation.
Where cases have been considered for inadmissibility since 28 June 2022 and then admitted into the asylum system they will be considered in the legacy or flow groups according to the date of application and any other relevant prioritisation criteria set out in the guidance.
Whether the prioritisation process leads to a more responsive and uniform approach from the Home Office remains to be seen. However this guidance provides some concrete details on a process which until now has been largely a mystery.