Fresh Claim for Asylum

What is a fresh claim for asylum?

A fresh claim for asylum refers to a situation whereby an asylum seeker has had their appeal heard and dismissed, but new evidence has since come to light and is pertinent to the case.

For a fresh claim to be accepted by the Home Office, the information provided must be used to reinforce an existing argument or provide an entirely new argument with evidence to back up the claim.

There must also be evidence that the evidence would result in a realistic prospect of success.

The Home Office will only consider new evidence that contains new and relevant information.

It is recommended to seek legal advice from a qualified immigration lawyer if you intend to submit a fresh claim for asylum. If you need support with your initial claim for asylum, we can also support you.

Call 0333 305 4846 for immediate support from our professional advisers. We are available to speak over the phone or by online video call.

Suspension of Asylum Differentiation Policy 2023

The Nationality and Borders Act 2022 introduced two groups of refugees in the UK: Group 1 and Group 2. Group 1 refugees are granted permission to stay for five years and can apply for settlement, while Group 2 refugees are given temporary permission to stay for 30 months on a 10-year route to settlement. This differentiation aimed to discourage illegal migration.

To further deter illegal entry, the government introduced the Illegal Migration Bill, which makes asylum claims inadmissible for those who arrive illegally through safe countries, and imposes a duty to remove them. As a result of these changes, the differentiation policy will be paused in July 2023, and all successful asylum applicants will receive the same conditions regardless of their group.

Additionally, a streamlined asylum processing model was announced for certain nationalities with high asylum grant rates, including Afghanistan, Eritrea, Libya, Syria, Yemen, and Sudan. Positive decisions for well-founded cases in these nationalities can be made without an additional interview, and no asylum application will be refused without an opportunity for an interview. Sudanese legacy claimants are being processed in line with established policies, with a commitment to clear the backlog of legacy asylum claims by the end of 2023.

Transparency in Withdrawing Asylum Claims 2023

The updated paragraph 333C clarifies the circumstances for withdrawing asylum claims and strengthens the process to promptly withdraw applications from non-compliant individuals. It specifies that withdrawn claims won’t be considered, allows flexibility for explicit withdrawals, and places the burden on claimants to keep the Home Office updated with their contact details. Failure to comply may lead to withdrawal of their asylum claim. These changes aim to focus decision-making resources on genuine asylum claimants in the UK. The changes to the Immigration Rules will be implemented in July and August 2023:

• In July 2023, the changes regarding Asylum including the pause of the differentiation policy took effect.
• All remaining changes will be enforced on 7 August 2023.

Who can make a fresh claim?

An individual who has submitted an original asylum application and been refused may submit a fresh claim if they meet the threshold.

You may be eligible to submit a fresh claim if you meet one of the following circumstances:

• You have recently come into possession of documents providing proof of your political activity
• There has been new information from your home country relating to your case
• There is new evidence that can be considered objective that has come to light in your case
• There may be new relevant evidence based on your activity in the UK (e.g., you have become involved with LGBT+ groups, religious groups, or political groups that may now be relevant to your asylum appeal)
• There has been a change of circumstances in your home country that is relevant to your case
• There has been a change in the case law legal guidance that the Home Office uses to apply judgements
• There is evidence that the Home Office used a policy or procedure in your case that has now been found to be unlawful
• You wish to make a new claim on a new basis. This could be on the basis of something that you felt unable to tell the Home Office in your original asylum interview (for example, a factor relating to your sexuality)
• You have since converted to a new religion and this may mean you have a basis for a new claim
• There is another reason why you may qualify for asylum that you previously did not disclose
• You may have a fresh claim based on the grounds of family life, private life, or human rights grounds (this may be the case if you have spent a long time in the UK)

This is a non-exhaustive list and it is important to speak with an immigration specialist if you have any questions about your eligibility for making a fresh claim.

What is the legal test?

There is a legal test that the Home Office will use to decide whether your fresh claim for asylum is eligible.

The underpinning criteria is that the evidence must be significantly different from any previous submission you have made to the Home Office.

As well as this, the rule for a submission being significantly different includes a requirement that:

• It has not already been considered
• That, together with the previously considered evidence, it has created a reasonable prospect of success, notwithstanding its rejection

Evidence not previously considered

The Home Office will require a comprehensive explanation for why you are submitting evidence now that you previously did not.

It is necessary for you or your legal representative to present a satisfactory reason why this was not previously submitted.

Alternatively, the Home Office may use this as a reason to refuse to accept the claim.

This new information must be relevant to supporting your case. It may include documentary evidence that has come into your possession, e.g., an arrest warrant in your country of birth, or a birth certificate showing your age.

Taken with previously considered evidence

As part of the legal test, the previously submitted evidence will be considered in light of why your appeal was unsuccessful.

The Home Office uses the previous judgement, including any previously failed appeals, as a point of departure based on the new evidence now being presented.

If there were previous questions over your credibility, this evidence could be an opportunity to prove that your case is substantial.

Realistic prospect of success

If the new information is relevant, the Home Office will judge whether the new information focuses on grounds for asylum or the right to remain based on a human rights argument.

The Home Office will also examine issues of credibility related to your case, including any earlier appeals.

If it is the case that you are presenting fresh evidence based on persecution as a member of a religious group, but you do not have objective evidence, your application may be unsuccessful.

How to submit a fresh claim

It is possible to submit a claim independently, but it can be extremely difficult, especially considering the complexity of asylum law.

If you have legal representation, you can discuss the basis of your new claim with them and they can advise you on how it should be submitted. Below is an outline of the process:

• Analyse the documents in your possession from your asylum case
• Prepare your new evidence
• Provide an explanation for the evidence you are presenting
• Make an appointment at the Further Submissions Unit (please note that this may change based on COVID-19 restrictions)
• Attend your appointment (unless this does not apply to your case) with your evidence and supporting documentation
• Ensure that you are provided with a receipt stating that you have submitted your claim
• Wait for a decision from the Home Office on your claim

What evidence do you need to submit?

Some of the evidence you may be required to submit include the following:

• Documentary evidence that has recently come into your possession. You should ensure that you keep the envelope that the evidence arrives in, showing receipt or date of delivery
• Evidence that individuals responsible for your persecution are still actively pursuing you
• Documentary evidence that demonstrates your credibility
• Any evidence showing your involvement with UK-based groups that are relevant to your asylum claim

If there are changes in case law or legal developments, your legal representatives will be able to provide the relevant evidence that shows why your claim ought to be assessed.

Can you stay in the UK if your claim is pending?

According to the immigration rules, individuals who have their claims pending “shall not be removed before the Secretary of State has considered the submissions under paragraph 353 [which refers to the fresh claim legal test] or otherwise.”

However, despite this guidance, it does not mean that you cannot be removed from the UK.

The Home Office may issue you a letter outlining that your submission was not considered to have grounds for a fresh claim and you may also be detained or informed that you will be removed.

You must ensure that you were issued a receipt when you submitted your claim, and if you cannot present evidence that your claim is pending, you may be at increased risk of removal.

Home Office decision on your claim

The Home Office will examine the new evidence presented in your claim and issue you with a decision, which will be one of the following:

1. The Home Office reviews the evidence and decides that it satisfies the criteria, showing that you require protection and/ or that you satisfy human rights law or other leave to remain based on your claim OR
2. The Home Office reviews the evidence and decides that while it meets the legal test, the claim is refused, and that you do not qualify for protection or leave to remain. In this case, you may have an opportunity to appeal your claim OR
3. The Home Office states that your new evidence does not satisfy the legal test for fresh claims and you may not appeal this decision

In the case of the third point, you may be able to submit a new fresh claim or request a judicial review.

For a judicial review, you will require legal representation because of the complexity of the process.

How can IAS assist you?

IAS are experienced immigration lawyers and have worked on numerous asylum cases on behalf of our clients. No matter what stage your asylum case is at, we can assist you. When you meet with your immigration lawyer, we will discuss your situation and all the available options for you.

Because of the complexity of asylum cases, you can expect a dedicated lawyer to work closely with you and outline all the information you need to know so that you can make informed decisions.

There are a number of reasons why it is recommended to use the services of an immigration lawyer with your asylum case. There may be language barriers preventing you from fully engaging with the process, as well as the complex legal processes involved in achieving a successful asylum decision.

Our qualified immigration solicitors will assist you with every stage of the process and ensure that you are given the highest standard of legal support. We provide assistance with the initial asylum application, appeals, judicial reviews, and all other stages in the asylum process.

If you require support with your case, call our friendly advisers today for a discussion about how we can assist you. We can also assist with private asylum cases, family reunification applications, and asylum appeals.

Call 0333 305 4846 for urgent support and advice.