One of the aspects of the asylum and immigration system in the UK that we at Right to Remain get asked about most, and around which support groups can do a great deal to help someone going through the legal process, is fresh claims.
This post is the first in a series of posts on asylum and human rights fresh claims, based on our brand new Right to Remain Toolkit.
Further submissions/evidence can be given to the Home Office at any point after an asylum claim or human rights application is refused, but a fresh claim can only be made when appeal rights are exhausted.
You or your lawyer give the Home Office the further submissions (new evidence/documentation) and the Home Office decides if it’s a fresh claim, using the legal test below.
Although the evidence you submit is not technically a ‘fresh claim’ unless the Home Office says it is, people tend to use the term more widely than this. For example, gathering evidence to be submitted to be considered as a fresh claim is more easily phrased ‘preparing a fresh claim’.
The basis of a fresh claim might be new evidence about the original reason you claimed asylum; or it might be that your situation has changed since you claimed asylum and had an appeal heard and dismissed; the situation in your country may have changed; or subsequent case law (other people’s cases) might have changed the way cases are dealt with or decided.
The evidence you submit to be considered as a fresh claim might be emphasising a point already made, or providing a new source of evidence for a fact that has previously been disputed. The evidence may be on an entirely new matter that hasn’t been raised with the Home Office/courts before. To be considered as a fresh claim your new evidence must include new and relevant information.
Poor quality submissions to be considered as fresh claim are very likely to be rejected, and this can put you in a worse position than before. Read this page to make sure you put in the best evidence possible, but also read the rest of the Toolkit to decide if a fresh claim is the best option for you. There may be other routes to securing the right to remain that are more likely to succeed, and therefore you should focus on them, not preparing a fresh claim.
Fresh claims legal test
When you submit evidence to be considered as a fresh asylum or human rights claim, the Home Office will use the following legal test from the immigration rules, to decide whether they will consider it a ‘fresh claim’:
353. When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim.
The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered.
The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.
The key points are:
1) “significantly different from the material that has previously been considered”.
If it’s material that hasn’t been considered before, why hasn’t it been considered? If you’ve had access to the evidence all along and haven’t submitted it without a good reason, the Home Office could use that a reason to say it’s not a fresh claim. If you’ve only just managed to get the evidence, you need to explain why you couldn’t get it before. Remember you also need to explain how you got the evidence, especially if it’s documentary evidence from your country, such as a birth certificate, arrest warrant or proof of political activity.
A fresh claim is not just arguing your case in a better way – there has to be evidence that is new to back up your arguments. ‘New’ in this context doesn’t necessarily mean it’s just been created or it contains information that the Home Office or courts have never heard before, just that it hasn’t been seen by the Home Office or courts in relation to your case.
2) “taken together with previously considered material”.
It’s not a clean slate. Indeed, your starting point for preparing a fresh claim should be, ‘what did the court say when my appeal was dismissed?’ If you did not have an appeal, your starting point will be your Reasons for Refusal Letter from the Home Office, and there is likely to be a lot of negative findings to counter in that!
If further submissions are all based on your evidence (with no objective evidence), and the Home Office/courts have found your testimony or evidence you have submitted to be incredible, this could be a reason for the Home Office to say your submissions do not meet the fresh claim test.
You may see reference, particularly in Home Office letters rejecting a fresh claim, to a case called ‘Devaseelan’, which established the principle that a judge’s starting point should be the previous judge’s determination. This is relevant to fresh claims, because the Home Office when considering your new evidence, are looking at whether an immigration judge would agree with their decision that it is not a fresh claim (see below).
Previous findings of incredibility (not being believed) are not set in stone, however. For example, if the Home Office have decided that a document you submitted in your original asylum claim is not genuine, this is not necessarily fatal to your whole case. Your case and the evidence has to be considered ‘in the round’ for assessing potential risk if you are removed.
Additionally, a fresh claim is an opportunity to reverse negative credibility findings. Often in asylum cases, not being believed on one issue can lead to the Home Office and the courts not believing you on other issues. If, through the evidence submitted for a fresh claim, you can prove you are credible on one issue, your entire case may be treated more positively.
3) “a realistic prospect of success”
You may have new evidence, but is it relevant to your situation? Is it material (central) to your case and the grounds on which you are seeking asylum or the right to remain based on a human rights argument?
For example, there may have been a big political change in your home country, but if your claim is based on your sexuality, and the political change can’t be seen to impact on that, it won’t be considered a fresh claim.
The credibility issues mentioned above are a factor here. For example, you may have new evidence about the persecution of a subclan in Somalia. If the Home Office and courts do not believe you are a member of that subclan, however, that evidence is unlikely to give you a realistic prospect of success. You would need to provide evidence showing that the Home Office and the courts were wrong to doubt your clan identity.
Your submissions for a fresh claim may include good evidence from reputable sources about human rights abuses and persecution, and the Home Office/the courts may not dispute that this evidence is true. The problem can be that the Home Office does not believe these problems or events mean that you are at risk of persecution.
Fresh claim outcomes
Once you have submitted your new evidence to be considered as a fresh claim, the Home Office will consider your evidence, based on the legal test above. One of the following things will then happen (they are listed from most positive first, to least positive. The most positive outcome is also the least common outcome, and the least positive is the most common):
1) The Home Office decides that your evidence meets the fresh claim criteria and that the new evidence shows you are in need of protection/meet human rights claim rules you are granted refugee status; humanitarian protection; or other leave based on your human rights claim.
2) The Home Office decides that your evidence meets the fresh claim criteria, they have considered your new claim, and have refused it: they have decided you are not in need of protection or leave to remain based on a human rights claim. If this happens, you will be given the right to appeal the refusal of your claim. This is a relatively positive outcome, as the court/Tribunal is more likely to look favourably on your evidence than the Home Office.
This outcome is what the phrase “notwithstanding its rejection” refers to in point (ii) of the fresh claim test above. The Home Office decision-makers should be looking at whether the evidence submitted creates a “realistic prospect of success” first and therefore meets the fresh claim test even if they have decided the claim itself will not lead to a grant of protection/status. It is this realistic prospect of success that generates the appeal right of the refusal.
Before making decisions 1 or 2, the Home Office may decide they need to interview you again. Think of it as re-entering the asylum process from the point of the substantive interview.
Alternatively, the Home Office will just make a decision based on the evidence you have submitted and write to you to tell you they have granted you status, or that you did meet the fresh claim test but they have refused your new claim.
3) The Home Office decides that your new evidence does not meet the fresh claim legal test. In these circumstances, you are not given the right of appeal.
Your options may include exploring other legal options to regularising your immigration status; preparing a further, better fresh claim, or possibly a judicial review of the Home Office decision that your evidence doesn’t meet the legal test. Judicial reviews are very hard to do without legal representation.
The basis of a fresh claim
This is a guide to the kinds of situations that commonly mean people are in a position to make a fresh claim, not an exhaustive list.
New evidence is available supporting your original asylum claim
- For example, documents proving your political activity has only just arrived from your country of origin. Always keep the envelopes these arrived in and any proof of delivery/receipt.
- You have received news from back home. Have you recently received information that the people who persecuted you are still looking for you? People may have come round to your house, or maybe a family member or friend has recently been targeted. It may be possible to get a witness statement or police/court documents to prove this.
- There is new ‘objective’ evidence (see below) relevant to your asylum claim. For example, you may have described a situation in your home country that wasn’t believed by the Home Office and/or the courts. Is there a new human rights report or new, trusted journalism that backs up what you said?
- You may have new evidence because of your activity in the UK, since your asylum appeal was refused. This might be involvement in LGBT groups in the UK, or political activity. How can you evidence this activity? Remember, the Home Office position is likely to be that this activity is ‘self-serving’ – that you are doing it to provide evidence for your asylum claim. Be prepared for that, and think about how you might address that in the letter/legal arguments you make that accompany the evidence.
Change of circumstances back home
- Has there been a change in the your country since you left?
- 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.
- A change in circumstances back home may provide evidence for a fresh claim based on your original grounds for claiming asylum (things have got worse), or you may have claimed asylum for one reason and the changes mean you are now at risk for another reason.
Case law/legal developments
- This may be a change in country guidance case law.
- There could also be a reported judgment (in someone else’s case) that the Home Office 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 the Home Office 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.
New claim on a new basis
- This could include previously undisclosed risk because of sexuality. Some people do not feel ready to tell the Home Office/the courts about their sexuality at first. Some people have not told anyone about their sexuality, and the time spent in the UK means they are more comfortable expressing this. The Home Office position is most commonly that they do not believe the person is gay, and that they should have disclosed sexuality at the beginning of the original asylum claim.
- Conversion to Christianity is another reason people may have a new claim for asylum. This might be because of time spent in the UK, where many asylum seekers have positive interactions with church groups providing material and emotional support. As the dominant religion in the UK, people previously devout in another faith may find Christianity an obvious and attractive way of continuing their faith having been displaced from their home country.
- The Home Office is likely to doubt the genuineness of the conversion. With both sexuality and conversion cases, you need to think about providing evidence about something that is perhaps not a tangible, concrete thing. However, your involvement with LGBT or church groups is a good place to start when thinking about evidence. The fact that the Home Office does not believe you, while relevant to how your claim is treated, is not actually the crucial point of whether or not you are at risk. If people back home perceive you as being gay, or Christian, this could put you at risk.
- There may be other, previously undisclosed, reasons you would be at risk. Many victims of trafficking do not disclose they have been trafficked, and often give a story to the Home Office and courts that they trafficker has told them to say.
- You may have entirely new family/private life grounds for a fresh claim on a human rights basis, particularly if you’ve been in the UK a long time. If there were human rights reasons for getting the right to remain at the beginning of your case, these should made at the same time as you claim asylum. But you may have new circumstances, such as a new relationship, a child, or a health condition. Read more about Article 8 human rights claims here.
Find out how to prepare a fresh claim, and the submission procedure, in upcoming posts.