Claiming Asylum and The Obstacles of the UK Asylum System.

Today we assess asylum and the obstacles of the UK asylum system for the many asylum seekers who apply for status. We will also be assessing the implications that the new Nationality and Borders Act 2022 which now poses a separate obstacle for asylum seekers.???

According to the Home Office national statistics dated 03 March 2022 there were 48,540 asylum applications (relating to 56,495 people) in the UK in 2021. This is 63% more than the previous year (2020) and the highest number for almost two decades.??

This feature highlights the growing demand in this sector for those fleeing conflicts and seeking the UK as their safe home.?

What is an asylum seeker??

In summary, the concept of seeking asylum was introduced by way of the 1951 Refugee Convention which asserts that a refugee should not be returned to a country where they face serious threats to their life or freedom. This principle is practiced as international law.?

The basis of this definition also means that a person claiming asylum cannot claim this whilst being in the country they are claiming against and can only effectively make an asylum claim upon entering a safe country.??

An asylum seeker is someone claiming asylum whereas the term refugee is the term used once the asylum seeker is officially granted recognition as someone who meets the definition of a refugee. They are then referred to as a refugee.??

If granted refugee status a five-year leave is granted, and the refugee is then entitled to apply for settlement and British nationality 12 months after the settled status. It is worth noting that this is the present requirement as demonstrated below, the Nationality and Borders Act 2022 makes changes to this effect by 28 June 2022, which will be explored later in this article.???

What basis can an asylum seeker make an asylum claim??

A conception that is wrong regarding claiming asylum is that this must be resulting in a conflict. An asylum claim can take on many forms. The core focus will be whether the asylum seeker can live safely in the country the asylum seeker has left. This persecution must involve the following:?

(a) be based on race.?

(b) be based on religion.?

(c) be based on nationality.?

(d) be based on political opinion.?

(e) if not either of the above, anything that puts the asylum seeker at risk because of the social, political or cultural situation in the asylum seeker's country.?

It is the last category that covers circumstances of sexual orientation, gender, and gender identity which from assessing the others would not be covered. It is not exclusive to these circumstances, so those that feel that the circumstances being faced may not on face value meet the above list should always seek legal advice to verify whether their situation can form the basis of the last category and under the asylum category.??

It is worth adding that not in all circumstances an asylum seeker will be granted a successful asylum claim but the Home Office can grant an alternative status known as humanitarian protection which recognises that the asylum seeker needs to remain in the UK rather than meeting the high threshold of risk of serious harm due to the (a) to (e) factors described above, the individual meets the criteria of risk of indiscriminate violence for no particular reason other than their mere presence in the country of origin.??Nonetheless, the asylum seeker under the present rules will be granted the same five-year leave as if granted under refugee status.?

What are the obstacles to the current UK asylum system??

In assessing the Home Office statistics which are available on the national statistics for the Home Office (Gov.UK), 14,734 people were granted protection in the year 2021 and of these 14,734, 81 percent were granted asylum. In total in 2021 there were 48,540 applications which means that less than 14,734 out of 48,540 were successful in their asylum claim.?

As a partner of the firm, I have undertaken a range of asylum claims and many obstacles hinder a refugee status from being granted. Here is a summary.???

(a)???There is always the difficulty of evidence to support an asylum claim. There is a heavy emphasis placed on evidence which becomes problematic as a person fleeing for their lives may not afford the time or opportunity to gather relevant documents that will later assist them in evidencing the nature of their fear/persecution. In many cases where the asylum seeker is able to acquire substantial evidence, it can easily be disputed as to the authenticity of the documents being provided which places an asylum seeker in a difficult dilemma regarding evidence. It is always best practice to provide supporting evidence if able to be acquired. In the alternative, an asylum seeker may wish to place more focus on an expert country report or country of information guidance depending on the nature of the claim.??

(b)??The interview process can also pose to be a difficulty. Many who claim asylum would have encountered many traumatic events but the nature of having both a screening interview and a substantive interview (main interview) means asylum seekers are subjected to hours of questioning and repeating very traumatic experiences. Whilst one will argue that this can only be the basis for acquiring the full information of the said claim, asylum seekers that are unable to remember dates or are not consistent with the chronology of events do face the risk of credibility factors being raised against them by the Home Office. One would argue that credibility is too easy of a basis for the Home Office to rely on in light of the above. It is always good practice to write a list of all events that can be remembered in a chronology of events list so that when attending the interview clarity can be provided.??

(c)???A final obstacle being faced is the Home Office's strengthened stance on inadmissible claims. As correctly emphasised in their National Statistics, the Home Office as a result of Brexit took the step of focusing on inadmissibility. This is where the Home Office fails to recognise an asylum claim because the asylum seeker had passed what is known as a safe country before eventually entering the UK. In 2021, up to 9,622 asylum claimants were deemed inadmissible on this basis in accordance with the Home Office national statistics. It is advised to seek legal advice if a decision concerning an application being inadmissible is raised.??

Nationality and Borders Act 2022 and further obstacles to the UK Asylum system??

As of 28 June 2022, the Home Secretary Priti Patel's overhaul of the current asylum system will take effect. On 28 April 2022, the Bill received Royal Consent and despite the controversy and legal challenges, the changes will be soon part of the new asylum system.??The basis of the controversy was the basis of the new two-tier asylum system being implemented which does pose new restrictions for those now considered to be "temporary refugees". ?

Below are the key changes:?

(a)???Previously if an asylum seeker is successful under refugee or humanitarian protection a five-year visa is granted. However, a new concept of temporary refugee status has been introduced whereby if the asylum seeker did not come directly into the UK from the territory where they consider their lives to be threatened only 30 months of temporary leave is granted if successful. There will be the chance to apply for an extension of leave before these initial 30 months come to an end.???

(b)??If granted Humanitarian protection an asylum seeker will no longer be granted five years but only 30 months of leave. There will be the chance to apply for an extension of leave before these initial 30 months come to an end.???

(c)???Those granted either temporary refugee status under (a) or humanitarian protection status under (b) will not be eligible for settlement after completion of 5 years leave. This may come as a surprise to many but even after two consecutive grants of temporary leave settled status will not be granted. However, despite this restriction, presently this does not appear to restrict an asylum seeker from taking advantage of the 10-year continuous residence route to settlement.???

(d)???Whilst previously asylum seekers could apply at any stage for their families to join them on a family reunion visa. If considered under temporary refugee, family members will not be able to join, unless they meet exceptions which include the fact that a refusal of the family reunion will undermine the UK’s obligation of human rights (under Article 8).??

(e)???Another significant update is the rules that now those convicted and sentenced to 12 months or more must now have their refugee status revoked which is no longer a discretionary exercise.??

The changes are not all negative, it is worth highlighting an introduction being that adult children can now apply to enter the UK under exceptional circumstances and this can either be when their parent has refugee status, temporary refugee permission, or humanitarian protection.??

Conclusion?

With the Home Office plans to now shift what they deem as unlawful asylum seekers to Rwanda the crux of the 1951 Refugee Conventions appears to have been undermined. One would argue that the statistics of granted applications will likely reduce with so many more obstacles being introduced on top of what was an already difficult status to acquire in the UK.?