Last updated: 24 June 2011
Once again, we are very grateful to Melanie Gower (Senior Researcher in the Commons Library covering asylum, immigration and nationality issues) for her help in writing and updating this guide.
We also have this very kind offer from Melanie Gower, repeated this month: “I’m happy to help MPs’ staff with general queries they may have on how to approach immigration and asylum casework or policy matters where I can. I’m on ext. 6166 or can be tracked down via the internal email address list. I’m always willing to meet up with Members’ staff when they are in Westminster for an informal chat if it might help – especially for new members of staff.” Most caseworkers are constituency-based so, if you are planning a trip to Westminster, do contact Melanie in advance.
- Asylum seeker or refugee – what’s the difference?
- ‘Legacy’ cases
- Refused asylum seekers
- Removal action
Asylum (and immigration) law and policy is constantly changing – there have been 6 major pieces of legislation since 1997, not to mention numerous other changes brought in by secondary legislation, rules changes, new policy guidance and legal challenges. Since 2006 the UKBA has been working on proposals to simplify immigration and asylum law, which would involve replacing all of the existing separate pieces of legislation with a single new Act, but as yet there’s no sign of when such a bill might be presented to Parliament.
Asylum applications are decided by the UK Border Agency (UKBA – an Executive Agency of the Home Office). There is a lot of information about the asylum process on the website of the UKBA – follow the ‘asylum’ link from the homepage http://www.ukba.homeoffice.gov.uk/. More detailed information about how it handles cases can be found in the ‘guidance and instructions’ section of the UKBA website http://www.ukba.homeoffice.gov.uk/policyandlaw/guidance/.
The Library has standard notes on many of the issues referred to in this guide, as well as a general guide to Constituency casework: immigration, nationality and asylum. These are available from their very useful Constituency casework toolkit on the intranet: http://intranet.parliament.uk/research-online/research/constituency-casework/ and many are now accessible from the Parliament website as well (see the asylum, immigration and nationality topical pages).
As with other types of immigration casework, the most common thing you’ll be asked to do is to chase up progress on a case. The general information and pointers in the w4mp guide to immigration casework are similarly applicable to asylum casework. It is particularly important to keep in mind the importance of providing general rather than specific advice to individual constituents on asylum matters.
Information you need to get from the constituent
Having some background information about the application will help you to identify what action you can usefully take to assist. Seeing copies of relevant paperwork (e.g. UKBA decision letters, copies of appeal determinations) can be helpful. If you are going to contact the UKBA on behalf of a constituent with an asylum problem, you will need to provide it with enough information so that it can trace the application – it is particularly important to quote the Home Office reference number for the case. The following is a list of general information that it is useful to take in all asylum cases:
- Full name and any other names by which the applicant has been known
- Home Office reference number (in the form of a letter followed by several numbers)
- Date of birth
- Current address and telephone number
- Date they applied for asylum and details of any decisions/appeals that have been made
- Name and address of solicitor
Other pieces of information (e.g. languages spoken by the asylum seeker, details of their previous addresses, etc.) may also be relevant, depending on the nature of the problem. If there is a query about whether the UKBA has received a constituent’s documents, quoting the recorded delivery number can help the UKBA to trace whether it has received the package or not. Constituents should be encouraged to always send their original documents to the UKBA by recorded delivery, and the sender should keep the receipt. This allows the package to be traced, should anything go wrong in transit, or if delivery is disputed. Recorded delivery items can be tracked online using the Royal Mail’s ‘Track & Trace’ facility.
Where a constituent already has a solicitor working on their case, it may be a good idea to contact the solicitor to check whether they think there is anything that your office can usefully do to assist. Sometimes solicitors (or other external parties) may require you to send proof that the constituent has authorised you to make enquiries on their behalf, in which case you will need to get the constituent to sign a consent form.
Some Members of Parliament represent areas with a high number of asylum-seekers, who come to the MP for assistance. Many of them speak little English and some have had no legal representation. It has been known for an applicant to present themselves to the MP and simply say “please help” and hand over the papers, unable to communicate any other information. In the event of this happening, it would be advisable to seek an interpreter; perhaps your local council can help, or you may know reliable refugee or advice organisations in the local community who may be willing to assist. However, you should bear in mind the confidentiality of the applicant’s information. There is also a confidential telephone interpreting service called ‘Language Line‘, which has a ‘pay as you go’ service, for which you will need a credit or debit card. We have recently checked with IPSA and they tell us that “interpreting services are claimable (along with translation and sign language services), under the GAE budget. This can be found at Part 10 (GAE), section 4 d(iv), or page 43 of the scheme”. Some not-for-profit legal providers operate telephone advice services which can be useful in providing some initial advice to persons who are otherwise having difficulties in finding a legal advisor (again, see the Library’s standard note on Constituency casework: immigration, nationality and asylum for details of some organisations working with asylum seekers).
2. Asylum seeker or refugee – what’s the difference?
As a general rule, ‘asylum seeker’ is used to refer to a person who has made an application for asylum, whereas ‘refugee’ is used for persons who have been granted protection in the UK following a successful asylum application. The website of the Refugee Council (a charity that works with asylum seekers) has a glossary of words which can help to cut through the jargon related to asylum law and documentation (http://www.refugeecouncil.org.uk/glossary). So does the UKBA website (http://www.ukba.homeoffice.gov.uk/glossary?letter=A).
Asylum applications can only be made from within the UK. They are either made at a “port of entry” (e.g. at immigration control at an airport) or “in-country” (at the offices of the UK Border Agency in Croydon, south London).
In 2007 the UKBA adopted a new process for handling asylum applications. Each asylum application is allocated to a case owner based in one of the UKBA’s regional offices. Case owners make the initial decision on the application and continue to be responsible for the case until the person is granted permission to remain in the UK or has left the country. The UKBA intends that each case will get to this stage within 6 months of the application being submitted, although it is not yet meeting this target in every case.
Generally, asylum seekers are not allowed to work (although there are some exceptions to this). Asylum seekers are also not allowed to access mainstream welfare benefits whilst they are waiting for a decision on their asylum application. Instead they can apply to the UKBA for asylum support (accommodation and/or cash support). Accommodation is provided on a no-choice basis outside London and the South-East.
There are 3 different types of immigration status that a person granted protection in the UK by the UKBA or an appeal court may be given, depending on the circumstances of the case:
- Refugee status – given if a person is recognised as a refugee under the terms of the 1951 Refugee Convention. Refugee status is given for 5 years.
- Humanitarian Protection – given if a person qualifies for protection in the UK under other human rights grounds. It is given for 5 years.
- Discretionary Leave – given if a person does not qualify for either of the other types of leave, but the UKBA accepts that they need to stay in the UK temporarily (e.g. unaccompanied asylum seeker children under 18 who cannot be returned to their country of origin). It is usually given for no more than 3 years at a time.
All these types of immigration status give the applicant the right to work in the UK and access mainstream welfare benefits. As they are all temporary forms of leave, people with these types of status have to apply for further leave to remain shortly before their leave expires in order to continue to have a valid immigration status.
If the UKBA refuses an asylum application, the applicant can appeal to the First-Tier Tribunal (Asylum and Immigration Chamber). This may result in the original decision being overturned or sent back to the UKBA to reconsider. Whether there are grounds for a further appeal will depend on the circumstances of the case.
If an asylum claim has been refused and there are no further appeal rights, the person is expected to make arrangements to leave the UK. If they do not, the UKBA may arrange an enforced removal (usually under the ‘administrative removal’ process – this is not the same as ‘deportation’).
5. ‘Legacy’ cases
‘Legacy’ (also known as ‘case resolution’) cases concern people who applied for asylum before March 2007 and either have an outstanding application (for asylum or further leave to remain), or have had an application refused but have not left the UK.
The UKBA has been working through this large backlog of ‘unresolved’ asylum files over the past five years. In some cases it has granted permission to remain, in others it has enforced removal from the UK.
The UKBA has stated that all of the ‘legacy’ cases have now been reviewed, although some have not yet been “fully concluded”. There is a section on the UKBA website which explains how persons who believe they have an outstanding legacy case can contact the UKBA: (http://www.ukba.homeoffice.gov.uk/asylum/oldercases/).
The UKBA has a network of 11 Immigration Removal Centres across the UK, in addition to short-term holding facilities (e.g. at airports). Asylum seekers can be detained at any stage in the asylum process. Some are routed to a detention centre very soon after applying for asylum, so that their asylum application can be dealt with under special ‘fast track’ procedures. Others may be taken into detention after their asylum application has been refused, in advance of being removed from the UK.
7. Refused asylum seekers
MPs’ offices are often the point of last resort, and this can be particularly true for refused asylum seekers. People who have exhausted the asylum and appeal process but have not left the UK (often referred to as ‘failed’ asylum seekers) have very limited support options and may become homeless and destitute in the UK. Some local and national voluntary organisations operate services for destitute refused asylum seekers who you may be able to refer such constituents to.
In some cases, a refused asylum seeker may wish to make a further asylum claim (often referred to as a ‘fresh’ claim) – for example, there may have been a change of circumstances in their country of origin, or a relevant development in caselaw. The UKBA will only agree to treat further representations as a fresh claim if they contain some new and compelling evidence which is significantly different to the person’s previous application. Again, a professional legal advisor is best placed to advise a constituent about this.
8. Removal action
Sooner or later you are likely to receive a telephone call from a frantic constituent – usually late on a Friday afternoon when you’re alone in the office – desperate for your boss to intervene to stop a refused asylum seeker being removed from the UK later that evening.
Chapter 59 of the UKBA’s Enforcement Instructions and Guidance deals with responding to representations from MPs offices in cases of persons liable to removal (http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/enforcement/detentionandremovals/). The Chief Executive of the UKBA confirmed in evidence to the Home Affairs Committee in July 2009 that the UKBA has a protocol whereby enforcement action is suspended whilst outstanding representations from an MP are responded to. However, if there are no outstanding representations or new and compelling reasons why removal action should be halted it can be difficult to persuade the UKBA to defer removal action.
MG February 2010
Update to Section 5 June 2011
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