NCADC Campaigning Toolkit
The diagram below is a simplified overview of the asylum process. See relevant sections of the Toolkit and the Glossary for an explanation of terms used. For the process at the point of refusal, see Figure 11.
Start thinking about campaigning options while this process is ongoing and you are waiting for a decision
Start thinking about a public campaign (go to sections on Public Campaigning; Political campaigning; Community Campaigning)
Continue building community links (go to section on Building Communities)
Continue gathering evidence (go to section on Understanding Your Legal Case)
Asylum claims will be considered under the 1951 UN Refugee Convention (and its incorporation into European and UK immigration law).
To be granted refugee status, it’s necessary to show that you have a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership of a particular social group, you are outside your country of origin or normal residence, and you cannot get protection from your own country.
While the Refugee Convention does not define ‘persecution’, an explanation is given in the Qualification Regulations, which are the application of the Refugee Convention in UK law. This is therefore the definition UKBA should be using to assess whether a person has been persecuted. See the entry for ‘persecution’ in the Glossary for more details.
The Qualification Regulations state that persecution consists of an act that is "sufficiently serious by its nature and repetition as to constitute a severe violation of a basic human right" or "an accumulation of various measures". Discrimination is not the same as persecution, but if it is repeated or is very serious, it may then be considered persecution.
The important things to remember about the meaning of persecution and applying for asylum are:
To qualify for refugee status, you need to show that the reasons for which you have been persecuted or will be persecuted come under one of the Refugee Convention grounds. You do not need to specify or say in legal language which Refugee Convention grounds you are applying under. You tell the UK Border Agency (the department of the Home Office that decides on asylum/immigration applications) your reasons for fleeing, and they then consider which grounds this comes under. If you feel you have been refused because they applied the wrong grounds, this could be challenged.
It is rare to claim under ‘nationality’ (as most persecution along these lines fits under the category of ‘race’ and ethnicity). Race is a relatively straightforward ground (if often difficult to evidence), but imputed beliefs and particular social group require further explanation.
This may be relevant if you are claiming asylum because of political persecution, or religious persecution.
'Imputed belief' means that it does not matter if you actually hold particular political opinions or religious beliefs. What matters is that persecution occurred or will occur because the persecutor thinks you do.
This may be because a family member or friend is politically active or a member of a religious minority, and it is assumed you also hold these beliefs (this often applies to women applicants). It could be because you have spent time abroad: for example, when RN was the country guidance case for Zimbabwe, it was understood that Zimbabweans who had been living in the UK would be assumed by the Mugabe regime to be supporters of the opposition party in Zimbabwe and could be at risk on that basis.
Imputed beliefs may be assumed because of where you live, the job you do, and many other things outside of your control.
PSG is the most complicated area of the Refugee Convention grounds. This is because it is quite vague: it can be used to cover persecution defined since the Refugee Convention was drafted (that doesn’t come clearly under other Convention grounds), but it is hard to prove because it is hard to define. This Refugee Convention ground is heavily reliant on case law to explain what it currently means. Case law is the body of available writings explaining the verdicts in a case, and is used to explain the meaning of laws and policy. By looking at the outcomes of previous cases that deal with particular aspects of the law or policy (the ‘case law’), it can be decided what is lawful in a particular situation. This is needed because overarching laws (like the Refugee Convention) can be very general: the need to protect ‘particular social groups’ under the Refugee Convention could have many meanings, so individual cases where these meanings were addressed build a picture of how this part of law should be interpreted.
Gender and sexuality are not distinct Refugee Convention grounds but sexuality comes under PSG. Gender can come under PSG but needs to be more narrowly defined than just ‘being a woman’ or ‘being a man’. A certain category of women or men who face gender-specific persecution may fall under this category, such as ‘women at risk of domestic violence in Pakistan’.
The category of PSG is particularly important when dealing with non-state actors of persecution (see below), because it is often argued that while a person may be at risk, it is not for a Refugee Convention reason; therefore the UK has no obligation to offer protection. This may include claims involving domestic violence, honour killings, and gang violence/blood feuds.
You may fear persecution from the state (and its agents such as the army or the police) or a group that is functioning as the state (for example, Al-Shabaab may be considered to be ‘the state’ in areas of Somalia that it controls). Persecution might also come from ‘non-state actors’, such as a member of your family, a gang, religious or political opponents who are not part of the state but who will persecute you. To qualify for refugee status because you fear persecution from a non-state actor, you must show that you cannot be protected from this persecution by the state.
The protection of another country (in the form of refugee status) will only be granted if you can show you can’t get protection in your own country. If the state is the persecutor, this lack of protection is obvious. If you fear persecution from a non-state actor, you need to show you are unable or unwilling to get state protection. This may be because there is no protection available from your government (for example, no refuges or facilities to protect women fleeing domestic violence), or it may be that asking for protection would put you in danger (for example, if the person you are trying to get protection from has connections in the government).
Another factor that will be considered when deciding if refugee status is needed is whether there is somewhere else in your country you could go and be safe. This is frequently argued by UKBA – they may accept that you would be at risk in Baghdad, for example, but argue that you would be safe if you relocated to the Kurdish Regional Government (KRG) area of northern Iraq. Or accept that you may be at risk of persecution because of your clan identity in Mogadishu (capital of Somalia), but argue that you would be safe in Somaliland because your clan has protection from a majority clan there.
To show that internal relocation is not going to protect you, you would either need to prove that the risk you face would follow you to where you were relocated (e.g. you would be tracked down by the person trying to harm you), or that you may be safe from persecution but other risks would present themselves. This may be because you have no family or social networks there and could not safely begin a new life there. Economic and social factors should be considered here – would you be able to make a living if you didn’t know anyone and had no social, religious or ethnic connections? If you couldn’t make a living, what would happen to you? The test that is applied is whether asking you to relocate within your country would be ‘unduly harsh'.
In some cases, UKBA may take the view that a person should be excluded from protection under the Refugee Convention. This happens in cases where the person has committed a serious criminal offence, or where UKBA considers they may have been involved in human rights violations in their country of origin. This is a broad definition, and can extend to people who were employed in a wide range of roles in the government in their countries of origin if that government was involved in the oppression of other people.
One stage of the process where UKBA will try and find out if the exclusion clause applies to you is during the screening interview (explained next page). They will ask you questions about criminal convictions, arrest warrants, involvement in terrorism, detention as an enemy combatant and encouragement of hatred between communities. UKBA will also seek this information from elsewhere if they suspect it to be the case.
If UKBA raise exclusion in your case, or if you feel it is a possibility, it is very important to seek legal advice. You can appeal against being excluded from refugee protection, much as you can appeal against a refusal of asylum. Even if an exclusion is upheld, a person may be allowed to stay if they would be at risk if removed (see ‘Status').
