|Claiming Asylum in the UK|
A foreign national who fears persecution in their country of origin can claim asylum in the UK. Asylum must be claimed in person in the UK and cannot be claimed from overseas.
The UK is bound by the terms of the 1951 United Nations Convention Relating to the Status of Refugees which defines a refugee and the rights of refugees as well as the obligations of signatory states. The UK is also bound by the European Convention on Human Rights (ECHR) which protects the human rights of those individuals in the territory of a signatory state.
What is a refugee?
The Convention defines a refugee as someone who:-
In order to be granted asylum an applicant must show to the UK Border Agency they satisfy each of the above requirements. Given the obvious difficulties many asylum claimants may have in proving their case the standard of proof is a low one, i.e. they must show there is a ‘real risk’ or a ‘reasonable degree of likelihood’ of persecution and need not prove their case entirely.
The Convention reasons
The well-founded fear of persecution must be for one of the five Convention reasons: political opinion, race, religion, nationality or membership of a social group. If the claimant cannot show the cause of the persecution comes within one of these reasons their asylum claim will fail. However, they may still be granted Humanitarian Protection (leave to remain on a human rights basis) if it is accepted there are at a real risk of serious harm for any reason on return to their country of origin.
The Convention reasons are self-explanatory except for membership of a particular social group which can be a complex issue in terms of defining the social group. The group must have a common ‘immutable characteristic’, i.e. something about themselves they cannot change. Some examples of particular social groups include women who are at risk of FGM (female genital mutilation) or LGBT (lesbian, gay, bisexual or transgender) individuals.
No protection in country of origin
The claimant must be able to show that they were not able or not willing, for very good reason, to seek the protection of their national authorities. The authorities in their country of origin could be the government, the state, the military or the police which have not been able to offer them protection. Before they can be offered international protection there must also be nowhere safe in their country to where they could reasonably be expected to relocate.
What is persecution?
Persecution is any act or acts that violate a person’s basic human rights. It can of course include acts of violence, torture and any form of sustained oppression but it need not be physical. It can include legal or administrative measures which are discriminatory, prosecution where there would be no fair trial or prosecution where the punishment would be disproportionate or discriminatory.
The persecution can be committed by either state agents or non-state agents against whom the state can offer no effective protection.
How to claim asylum in the UK
Asylum should be claimed at the port of entry or as soon as reasonably practicable. Failure to claim asylum as soon as possible may result in the delay being held against the claimant in terms of credibility or may even affect their entitlement to NASS support (financial support for asylum seekers).
If the asylum seeker has already entered the UK without claiming asylum they must claim asylum in person at the UK Border Agency Asylum Screening Unit at Lunar House, Croydon. Any dependants must attend with the main claimant. A ‘screening interview’ will be conducted. This is a short administrative interview where the claimant’s details are taken and the brief basis for the asylum claim established. It is not intended to be a means of exploring or assessing the asylum claim but will often be used against a claimant if he or she gives any information here which contradicts information given later in the process. An asylum claimant is given Temporary Admission to the UK (with certain conditions attached) whilst their asylum claim is under consideration.
Once asylum is claimed the claimant’s case is allotted to a UKBA caseworker who will then arrange an asylum interview. The asylum claim is properly assessed at this interview and any evidence in support of the claim should be submitted at this stage. The decision on the claim is often made within weeks of this interview and should be decided within six months but it can take much longer.
If you have been granted Refugee status or have been granted Limited Leave to Remain under Humanitarian Protection, you will be able to bring your dependant(s) to the UK to join you if you were separated when you were forced to leave your country. This application can be submitted prior to you obtaining British Citizenship. Your dependant(s) must be :
1. Your legally married partner or civil partner (your unmarried partner can only join you if you were granted your status on or after 9 October 2006 and you have lived together in a relationship like in a marriage or civil partnership for 2 years), you and your partner must intend to live together and continue your relationship after they apply;
2. Your child(ren) as long as they are under the age of 18, that they will live with you and be supported by you without recourse to public funds, and provided that they are not married or in a civil partnership and are not in full time employment.
Your dependants will be granted the same leave status as you.
Right of appeal
If an asylum claim is refused there is an automatic right of appeal unless the claim is certified as ‘clearly unfounded’, i.e. totally without basis, by the UK Border Agency.
If an asylum claim is unsuccessful and all appeal rights exhausted the claimant faces removal from the UK.
Leave to remain
An asylum seeker who is recognised as a refugee is given leave to remain in the UK for five years, as is a unsuccessful asylum claimant who is found to qualify for Humanitarian Protection.
At the end of these five years both refugees and those with Humanitarian Protection can apply for indefinite leave to remain, which is very likely to be granted unless there has been a fundamental change in circumstances.
Refugee status can be taken away in very limited circumstances, i.e. if conditions have changed in the country of origin so that the person is no longer at risk or where the person has since been to the country of origin which might show they are no longer at risk.