Making the application
- Apply either “at port” on arrival – by telling the immigration officer checking your passport, or “in country” at an Asylum Screening Unit (ASU), or to an Immigration Officer if arrested/detained.
- Ensure prior to applying that you have all the information and documents you will require in support of your case, both subjective (your personal experience) and objective (published information about treatment of lesbian & gay people in your country). The main categories of evidence are:
- personal witness statement describing (i) your experience of coming to terms with who you are as a person who is LGBT or I; (ii) any experiences in your country of origin (if you have had such experiences); (iii) if relevant, any explanation about why you have not applied for asylum earlier.
- any documents, witness statements (of friends, family, partners), medical reports, which can support (i) what you say about your sexual identity and (ii) if applicable, anything that has happened to you.
Not everybody will have, or need, all of these.
- any human rights reports, press articles or similar sources of information which show what the situation in your country is, as evidence that you are at risk of serious harm as a person who is LGBT or I.
- The first step taken by the Home Office after you claim asylum is the Screening Interview. You will be asked questions so that the Home Office can establish who you are, how you arrived in the UK and you will be asked some basic questions about your claim.
- You will be fingerprinted and the Home Office will check their records to see if you have previously visited the UK or had leave to remain, or whether you may have made a claim for asylum in another European country.
- You will have the right to use an interpreter provided by the Home Office free of charge, but very often the interpreter will be on the other end of the telephone. It is important that you are happy that you and the interpreter understand each other well.
- On the basis of this interview, the Home Office will decide whether you will be detained until they make a decision on your claim, or released (given temporary admission).
Detention or Release
- If the Home Office thinks that your claim can quickly be determined, you will be detained and your claim subject to Detained Fast Track. (See further below). People in this situation should have access to free legal advice by solicitors who have special contracts to give advice to people in detention.
- You may also be detained if you have made a claim in another European country, or in some cases if you have criminal convictions or are considered to be an absconding risk. If you are detained for those reasons, it is essential to get legal advice.
- If your claim is considered by the Home Office to be complicated or if there are reasons for you to be released, such as, for example, because you were in the past a victim of torture, or you are suffering from a serious physical or mental illness which cannot be treated in detention, you will be granted temporary release. In this case, if you have no means of supporting yourself, you may be eligible for NASS (National Asylum Support Service) which means that you can get accommodation provided by the Home Office and a small amount of financial support.
How the application is considered
- Option 1: you will be interviewed in depth about your asylum claim.
- If you are in Detained Fast Track, this should happen within 14 days. The Home Office will decide your case normally a day after your interview.
- If you are released on temporary release, this will happen when the Home Office can organise an appointment to see you. They aim to decide your case a few weeks after your interview. Usually this happens in a few months, and as at July 2014, Home Office are aiming to make the decision on any asylum claim within 6 months.
- Option 2: given a Statement of Evidence Form (SEF) to complete and return within 2 weeks (this now applies to children (under 18) only); Thereafter the Home Office may or may not interview a child.
- Outcome 1: granted Refugee Status for 5 years.
- Outcome 2: granted Humanitarian Protection for 5 years.
- Outcome 3: granted Discretionary Leave for 2 years and 6 months.
- Outcome 4: refused – with a right of appeal in the UK.
- Outcome 5: refused – no right of appeal until after removal, i.e. certified cases [remedy is Judical Review, i.e. application to the High Court].
You can appeal to the First Tier Tribunal (Immigration and Asylum Chamber) “FTT(IAC)” against refusal. The deadline for doing that will be different depending on whether you are on temporary release, in detention, or in Detained Fast Track.
Your appeal will be heard by a judge who is independent from the Home Office. You will have a chance to submit more evidence about your claim and also to speak in court. You will be asked questions by the Home Office and if you have witnesses, they will also be able to speak and be asked questions.
- Appeal Outcome 1: appeal allowed. Home Office have a right to appeal against this decision. The procedure they follow and possible outcomes are the same as they are for your appeal (described at Appeal Outcome 2 below). If Home Office does not appeal against the decision of the First Tier Tribunal, they should issue you with Refugee or Humanitarian protection status.
- Appeal Outcome 2: appeal dismissed. It is very important that you have lawyers to advise you if this happens because:
- You have a right to apply for permission to appeal against the decision of the First Tier Tribunal to the Upper Tribunal. This is done in writing.
- Permission to appeal will be granted only if the First Tier Tribunal Judge had made a material error of law.
- If you think there is a material error of law, then you can ask the First Tier Tribunal to give you permission to appeal to the Upper Tribunal, and then, if they refuse, you can ask the Upper Tribunal to give you permission. This is normally done in writing.
- If permission to appeal is refused by the Upper Tribunal, there is a difficult legal process to appeal this further in a very limited number of cases and you will need a lawyer to help you with this.
- If permission to appeal is granted, Upper Tribunal will then hold a hearing to decide whether there is an error of law made by the First Tier Tribunal.
- If an error of law is found, then the Upper Tribunal will re-make the decision, or will send it back for the First Tier Tribunal to re-hear the case.
- If after a re-making, the appeal is dismissed, there is a possibility of appealing to the Court of Appeal. Again this is a difficult process which is possible only in a limited number of cases and you will need a lawyer to help you with this.
- This is available if a person does not have sufficient funds to pay for a solicitor privately.
- Legal Aid solicitors have very strict limits to Legal Aid spending.
- Legal Aid solicitors will only agree to continue if they think there is more than a 50% chance of success
- You have a right to appeal a solicitors decision to stop Legal Aid for a case (using CW4 form).
- You must tell the Tribunal that he/she is not ready if they have been unable to get representation, but must show that they have tried.
Survivors of Torture
- Must not be detained and should always be referred to the Medical Foundation (for the care of victims of torture) or the Helen Bamber Foundation.
- If one of those organisations agrees to assess a person who says that they have been subject to torture, then the case should automatically be taken out of Fast Track
- There are several routes by which a torture survivor might arrive at the MF. Those who have recently fled to Britain are likely to be referred by one of three main front-line agencies that try to smooth the path for new asylum seekers – the Refugee Council, the Refugee Arrivals Project or Migrant Helpline, each of which liaises closely with members of the MF’s Early Intervention Team, which identifies those needing dedicated help. The team also sees those who refer themselves. Doctors, community mental health teams and refugee community organisations also refer cases. Immigration lawyers send asylum applicants who, to support their claim, need documentation, by way of an official medico-legal report, of the torture they have suffered, and its lasting effects.
- Home Office figures for 2013 showed that 99% of asylum claims in the Detained Fast Track were refused.
- You or your solicitor should ask the judge to adjourn and/or have your case taken out of the fast track/super fast track if you think you do not have enough time to prepare your case.
Bail for Immigration Detainees – How to get out of detention
There is a list of useful organisations on the web page of Detention Action