NCADC Campaigning Toolkit
The following advice is from the ROW 2012 handbook, "Seeking Refuge?" pages 79-81.
You will need:
If you find a new legal adviser, you must give full and complete information about all your previous immigration applications, and UKBA decisions, and especially all Determinations by the Immigration Tribunal. No properly accredited legal adviser or solicitor could advise you properly without seeing your complete immigration history. It would be dangerous for you to give new information to the UKBA without carefully explaining any differences with what you may have said before, and explaining carefully how you came to receive the new information.
If you do not have all of these documents (and even if you do), you or your legal representative can obtain a copy of your Home Office file, by writing to the Home Office Data Protection Unit, Lunar House, Wellesley Rd, Croydon CR9 2BY, with a cheque for £10 payable (at the time of publication) to the Accounting Officer, Home Office, giving your full name, date of birth, nationality and your signature. By law they must provide, within 40 days, a complete copy of your file, which will include not just all the above documents, but also all the notes written by UKBA and immigration officials about your case. You should be able to see when your case has been looked at, and what they did with it. When your file arrives you should keep the pages carefully in their envelope, in the order in which they are given to you. If you want to use any information from this file in your fresh claim, then carefully photocopy the page you want, and keep the original in its place in the envelope.
If you have not had any contact with the UKBA for a long time, you are unlikely to know what they have been doing in your case, even if you think they have not been doing anything. Some people may be at risk of being detained as soon as the UKBA know where to find them. Therefore, if you have not been reporting to the Immigration Service for a long time, or if you have never reported, you are strongly advised to get legal advice before contacting the UKBA, even to obtain a copy of your file.
Look at the Determination in your first appeal and write down the Judge’s findings of fact and look at the evidence you already provided for each fact. Then look at your new evidence and new information and think how that evidence would challenge the Judge’s findings, and whether it is strong enough.
If possible, get independent expert reports to back up your new evidence. If you have legal representation helping you under legal aid, the cost of getting an expert report can be paid out of legal aid. Without legal aid this will be very expensive.
You need to write a letter (called further submissions or representations) beginning ‘I wish to make a fresh claim for asylum’ and explaining what the new evidence is, how you obtained it, why it should be believed, and how your claim now amounts to a fresh claim. If you have a legal representative, she will write this letter for you.
There is a Further Submissions form at the UKBA website but you do not have to use it.
Two examples:
‘…In my appeal, the Judge did not believe I was raped in that prison. But I now have a witness statement from a woman who was in that prison at the same time as me, to whom the same thing happened, and who saw what happened to me. I could not provide this information before, because I have only just found out that this woman was in the UK. Her name is xxxx, her Home Office Reference Number is yyyy. She has been granted asylum. I believe my case amounts to a fresh claim under Immigration Rules paragraph 353.’
‘…In my appeal, the Judge believed that I am a lesbian. But he said that there would be no problems for me if I went back to Jamaica. But now the case of SW (Lesbians) Jamaica CG [2011] UKUT 251 says that lesbians are persecuted in Jamaica. I believe my case should be looked at again and counted as a fresh claim under Immigration Rules paragraph 353.’
It will be difficult to present a strong fresh claim without legal advice. Therefore, if you have new evidence or further information, or if you hear about a legal case which might affect your asylum claim, you should seek legal advice.
Here are some suggestions of what might be included in further submissions. It is not an exhaustive list, and it is not advice about what you should include in your submissions – each case is different.
For example, documents proving political activity that have only just arrived from your country of origin. Always keep the envelopes these arrived in and any proof of delivery/receipt.
For example, political developments. These developments must be relevant to your case. How would a change of government or a new law put you at risk if you were returned there? A change of circumstances might be reflected in new country guidance case law. Case law can be slow to catch up with political developments, however, so you may need to rely on other evidence.
This may be a change in country guidance case law (for example, the historic case of RN and Zimbabwe, referred to above). This could also be a reported judgment (in someone else’s case) that UKBA was wrongly applying a policy, or that the procedure for determining asylum should be done in a certain way. If you can show that your case was refused because UKBA was using a certain policy, or certain procedures were used that have now been found to be unlawful, your fresh claim may ask for your case to be reconsidered on this basis.
Article 8 grounds (family or private life in the UK) are meant to be included when you first apply for asylum. It may be that there have been changes in your life since then (new relationship/child, etc.), or that you have new evidence to prove the existence of this family and private life. Letters of support from friends, family, community, church/mosque/temple, school/college might be considered as evidence to submit. Documentary evidence such as birth or marriage certificates might fall into this category. You might be able to get a professional or an expert to comment on the impact on you/your family if you were deported from the UK – this is best done through a legal advisor.
Objective evidence in this section refers to sources that aren’t connected to you. Generally, good places to find this evidence are through human rights organisations or reputable media sources.
NCADC has a Country of Origin Information blog where we collect reports that may be useful if you are researching a fresh claim. We also post reports and news stories through our Facebook page and our Twitter account.
Good places to look for information on human rights in a country of origin are:
For more suggestions of where to look for evidence, see this list on the NCADC Country of Origin blog, where sources are also listed thematically: http://ncadc.org.uk/coi/sources-of-information/
These are all considered to be reliable sources of information, which have a good reputation for being accurate, and the media sources listed are ones that have good world news sections and are interested in human rights. If you are getting evidence from other sources, think about who has written the report or article. If it’s a group that is in opposition to a government, UKBA and the courts might not consider it to be objective/good evidence.
In most cases, you now have to submit a fresh claim in person in Liverpool. If you cannot attend in person, for example because you are in detention or if you are seriously ill or have a serious disability, you can fax your further submissions to 0151 213 2008 with written evidence of why you cannot travel. You should speak to UKBA first to tell them this is what you are going to do.
If your first claim for asylum was made after 5 March 2007 you should be able to hand in further evidence at a local reporting centre. For example, if your original asylum application was made after 5 March 2007 and you live in Scotland, you submit your fresh claim in person at the UKBA office in Brand Street, Glasgow.
From ROW 2012 handbook "Seeking Refuge?" page 80:
Further Submission Appointment in Liverpool
You should make a bundle of the important papers and your letter and photocopy all of it. One copy is to hand to the UKBA and the other is for you to keep.
The telephone number is 0151 213 2411. The address of the Further Submissions Unit is The Capital Building, 6 Union Street, Liverpool, L3 9AF. When you have made your appointment the UKBA will write to you with information about how to find that office, and what documents you need to bring with you.
At your appointment the UKBA will check that they have your fingerprints, photographs and up-to-date address, and ask you for your further submissions. This is your letter setting out your fresh claim, plus the documents from your previous asylum claim. They should provide you with a receipt showing the date you have made your fresh claim. Keep this very safe, with your own copy of all your documents.
At that appointment, the UKBA are unlikely to interview you, or tell you anything about how they will decide your case.
You are unlikely to be detained, but if you have a very weak fresh claim, if you have failed to report to the Immigration Service over a long period, and if you are from a country to which the UKBA can remove you easily, then you may be detained. You are strongly advised to seek legal advice before making a fresh claim.
If UKBA accept that your new evidence passes the fresh claim legal test (see above) your fresh claim has been accepted. In some cases, UKBA will write to tell you that your evidence meets the fresh claim criteria and they have decided to grant you status; or UKBA may accept that your new evidence passes the fresh claim legal test, but refuse your case in the same letter. In this situation, you would have the right to appeal; or UKBA may accept that your evidence meets the fresh claim criteria but they have not yet made a decision on the merits of the case. They will then look at your entire case again, taking into account your new evidence. You may be interviewed again at this point. You could then either be granted status, or refused status. If you are refused, you will have the right to appeal; or
the most common outcome is that your further submissions are said to not pass the fresh claim legal test. The refusal letter might say something like this:
‘The question therefore is whether these submissions taken together with the previously considered material would create a realistic prospect of success not withstanding its rejection. The question is not whether the Secretary of State herself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of another Immigration Judge, applying the rule of anxious scrutiny, thinking that your client will be exposed to a real risk of persecution on return to his home country.’
This is UKBA saying that your further submissions do not meet the fresh claims test, and they believe that an immigration judge would agree with them. Crucially, you do not get the chance to ask an immigration judge if they agree.
If your further submissions are not accepted as being a fresh claim (remember, this is before they can even look at whether they think your new claim is true), you do not get the right to appeal.
Your legal options may be a judicial review of this decision, or a new, stronger fresh claim.
The Immigration Rules say:
353A. Consideration of further submissions shall be subject to the procedures set out in these Rules. An applicant who has made further submissions shall not be removed before the Secretary of State has considered the submissions under paragraph 353 or otherwise.
But submitting further evidence does not mean you are safe. UKBA frequently issue the letter saying your further submissions are not considered to be a fresh claim at the same time as issuing removal directions. They may also attempt deportation if you cannot prove you have submitted a fresh claim – so make sure someone has evidence you have submitted it, and evidence of receipt by UKBA.
If you have already been issued with removal directions and then you submit further evidence, typically UKBA will consider and refuse the further evidence very quickly (as not being a fresh claim) and say that the removal directions still stand.
