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Are the new asylum questionnaires fit for purpose?
To try to reduce the asylum decision backlog, the Home Office has introduced a “streamlined” process, including a questionnaire to be completed, in English, by individuals from Afghanistan, Eritrea, Syria, Yemen and Libya who claimed asylum before 28 June 2022. Around 12,000 questionnaires are expected to be sent out, with the first having been received over the last couple of days.
People from these five countries have an asylum grant rate of over 95%, so a decision to fast-track these decisions is welcomed. However, issuing the type of questionnaire the Home Office have is not the way to do it. The only way to speed up consideration of such complex issues is through simplified requirements, a shared burden of proof and adequate administrative resources.
This post looks at the practicalities of the questionnaires for this group of asylum seekers. Practical information and guidance on completing the questionnaires, created by several experts, will be available soon.
The questionnaire fails in a number of serious ways. The questionnaire is effectively an alternative statement of evidence form (SEF). It requires an applicant to put in writing a significant amount of detail about their asylum claim, almost to the extent of a witness statement, but with complicated questions and unclear guidance.
The ‘questionnaire’ consists of a long letter full of questions, with a short form attached, addressed to people with English as a second language (if that) and sometimes not much formal education. Government bodies have spent decades designing forms to be completed by people like this. Yet this questionnaire appears to have learned nothing from this work.
The questionnaire is not written in the current ‘plain English’ style of a pension or Universal Credit leaflet. The questions often consist of sentences with multiple clauses and complex ‘if-then’ structures. The questions are not contained in the form itself, so it is unclear what has to be answered, or what will happen to someone who does not answer all the questions.
Complexity and vagueness
Some questions seem impossible to answer in a way that would aid swift decision-making. For example, one question asks for “details to evidence who you are and where you are from”, but there is no guidance as to what sort of details the Home Office is looking for.
Imagine a decision-maker facing a pile of questionnaires in which some applicants describe their childhood, others might talk about their town or village, others might concentrate on their grief after their mother was killed in front of them. In contrast, the statement of evidence form and oral interviews ask specific questions: ‘is there a river in your town? A railway station? A hospital? A church? What crops are grown? What is the telephone area code?
Some questions require what seems like substantial legal knowledge to answer accurately. Of particular concern is that there is only one question related to trafficking, which simply asks “were you subject to human trafficking?”. The question then sets out the legal definition of trafficking. It is unlikely that someone lacking knowledge of the English language, or who is using a translation tool, would understand those legal descriptions of the various activities included in the definition of trafficking.
It is more appropriate to ask simpler questions such as whether money is owed to anyone, or whether force or threatening behaviour was used during the journey to the UK or since then.
It is currently unclear how the Home Office intend to use this information; whether individuals will be referred to the National Referral Mechanism, or whether any additional protections for the victims of trafficking who fill out these questionnaires are being considered.
Burden of proof
The Home Office’s emphasis throughout the questionnaire is to lay the full burden of proof on the applicant. The questions are designed in such a way that the applicant must show and prove each fact they write about (or show and prove why they have not been able to evidence a fact). Sticking to these requirements will militate against speedy decision-making.
The Home Office has currently indicated that their policy is not to refuse any claim without having invited that individual to an interview, though an application might be treated as withdrawn if there is no response to the questionnaire. Regardless, answering the questionnaire well is a burden that still lies with the individual.
If these extensive questionnaires are not substantively answered, essentially amounting to a witness statement, and an individual is invited to a short or substantive interview, there may be difficulties further down the line in explaining why accounts at interview and in writing differ. Problems will also arise if an applicant provides different answers in these questionnaires from those given in their initial screening interview. Many in the sector are already aware of the need to ensure that mistakes made in screening interviews are corrected without delay.
It is unclear how and if the Home Office will rely on information from the questionnaires further down the line, or in the tribunals. Where the onus is on the individual to make their case well, in writing, in English, in only 20 days, the stakes are high.
A procedure designed to quickly grant leave to people from countries where the grant rate is very high and where most people are accepted to be genuine refugees requires moving towards a shared burden of proof and quick identification of information. For example, a simplified questionnaire and answers could read something along the lines of:
Where are you from? Eritrea
Describe your family, town, school, father’s job, (etc.)
Why have you fled your country? To avoid compulsory military service (the Home Office knows this system has been defined by the Tribunal as forced labour, in breach of article 4 of the European Convention of Human Rights) OR; Because my family are Jehovah’s Witnesses/Pentecostal Christians (the Home Office knows that these beliefs are illegal in Eritrea and people are tortured because of them).
Did you leave the country illegally? Yes (the Home Office knows that leaving illegally leads to punishment amounting to persecution for those captured)
This is a country-specific example. But there is nothing inherently discriminatory in having different tailored questionnaires for different nationalities. Questions on internal flight alternatives, for example, are not relevant for these countries. And for individuals who have been in the UK for at least eight months, having made their asylum claim before 28 June 2022, questions about their route into the UK, including travel through third countries, are a waste of time.
It would be unwise for the Home Office to treat any of these asylum claims as inadmissible for this reason. Given the passage of time, appeals would be likely and inadmissibility or differential treatment would not fare well.
It is unclear whether the Home Office has provided its decision-makers with a time frame by which they should be making decisions on these asylum claims, once they have received the completed questionnaires.
Making a decision on 12,000 claims, including reading through these extensive questionnaires, and potentially arranging follow-up interviews, will not be a quick task. It is unclear how others in the asylum backlog will fare and whether progress will continue to be made on their cases at the same time.
Currently, the Home Office’s policy is that individuals in contingent accommodation are not served grant letters whilst there. It is hoped that all those receiving questionnaires are in dispersal accommodation or receiving support only. If not, the Home Office will need to amend its policy, or decisions will inevitably take longer to be issued. After all, it is a legal necessity to inform someone of a decision on their application and in particular, a person cannot be deemed to have been refused until a decision letter has been received.
The complexity of the questionnaires, the burden of proof, and the language and communication barriers individuals face may lead to further delays. Many people may ask for an extension of time to complete their questionnaire, and many may be called into interviews. For individuals coming from countries with grant rates over 95%, the detail of the questionnaires and the hoops they will need to jump through to accurately answer the questions seems unnecessary.
By the look of the extensive and complex questions included, and from the lack of tailoring to the nationalities included in this streamlining process, it seems likely that this questionnaire is a generic questionnaire, to be further rolled out to other cohorts of asylum seekers in the UK in the future.
Meanwhile, for those from the five countries chosen for this procedure, the Home Office has to decide whether it really wants a quick procedure. It remains unclear at this stage whether the questionnaire is going to achieve its policy purpose, or whether it is simply showboating government policy a year before an election.
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Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.