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 or gender 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.
- It is possible to be detained at the screening unit, but because the detained fast track is suspended, this is now unlikely.
After your screening interview, you will then need to wait for your substantive interview. The time you will wait differs from applicant to applicant. Some interviews are scheduled quickly while some take several months. It is at the substantive interview that you will be questioned about the details of your claim. These interviews can take several hours.
It is on the basis of the substantive interview and the documents you have provided that the Home Office will make a decision on your claim.
- Outcome 1: granted Refugee Status for 5 years.
- Outcome 2: granted Humanitarian Protection for 5 years.
- Outcome 3: granted another form of leave.
- 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.
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.
Note: Confidentiality in Appeals
All appeals at any tribunal or court in the UK are public and any member of the public may attend. Often there will be other people who have their own appeal in the same hearing room in the room when your case is being discussed. Also the determination of any appeal (the written decision which sets out the detailed reasons) is a public document and will have the names of the appellant and any witnesses recorded in it. If your case mentions your sexual orientation or gender identity you may not mind that being public, but if you do then you must tell the tribunal that you need that private information to be kept confidential from other people. They will not do so unless you ask them to.
There are 2 things you can ask the tribunal to do :-
(a) anonymise the appeal by replacing the name of the appellant with a set of initials or, if there is a very strong reason, removing names from whole determination. This means although the names are in the copies of the determination sent to the appellant and the Home Office, the names will not be in the public record copy and the names will not be on the list of cases on the wall outside the hearing room;
(b) have any discussion about the case in private with no one else allowed in the room.
You can ask for one or both things. You should ask at the earliest stage – usually when you send an appeal form to the tribunal. You should get a decision from the tribunal before the hearing takes place about whether they agree your requests, but you should make sure you ask the tribunal staff before the hearing starts to make sure that a private hearing or anonymity have been ordered.
- 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.
There is a list of useful organisations on the web page of Detention Action