If someone has had their original asylum claim refused and their appeal dismissed, they may need to submit a new application. This is often called a ‘fresh claim’ although the process is technically called ‘further submissions’. To assist, the Home Office provides a document known as a ‘Further Submissions pro forma’.
On page 1 of the pro forma, there is the following statement:
“Your claim has already been carefully considered by the Home Office and it has been decided that you do not need protection and do not qualify for any leave. You have also had the opportunity to have that decision reconsidered by an independent tribunal so any further submissions should relate to new evidence that you could not have submitted previously.”
The Home Office pro forma is intended to assist someone making a new protection claim to set out what is ‘new’, that is, what is different to what they have submitted in the past, before their original claim was refused by the Home Office and their appeal dismissed by the Tribunal.
However, ‘new’ does not, and should not, mean rejecting the ‘old’. For many people seeking asylum, the reasons that they claimed asylum in the first place remains the reasons that they still need protection.
The Home Office and Tribunal may have decided that the claim is, at worst, a fabrication or, at best, that the person does not need or qualify for protection, even if it is true. Whilst needing to start with the decisions on record, and particularly Tribunal decisions, the starting point should be a review of the original claim before even being able to know what might constitute ‘new’ evidence. For some people, however, legal representatives treat the original claim as a closed book, without even considering the ways in which the original claim, including statements and interviews, may not have been presented or considered properly.
Before looking at the pro forma, let’s look at the immigration rule about fresh claims.
The ‘fresh claim’ immigration rule
Paragraph 353 reads as follows:
“When a human rights or protection claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and,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 purpose of paragraph 353 is to decide if the person making further submissions qualifies for protection as a refugee or is eligible for humanitarian protection; only if that claim is rejected does the paragraph then require the Home Office to determine if it meets the criteria to be a fresh claim as defined in paragraph 353.
So, further submissions are the process by which someone who has already been refused protection (refugee status or humanitarian protection) maintains that they are at risk of persecution or serious harm if returned to their country of nationality (or origin).
A fresh claim is a decision by the Home Office that, although they have rejected the further submissions and concluded that the person still does not require protection, there is enough in the case to meet the definition of a fresh claim.
This means that a decision must be taken, first of all, as to whether the person needs protection. It obviously is not done in a vacuum but the Home Office is wrongly considering the further submissions using the definition of a fresh claim.
It is useful to look at the criteria for deciding that a new asylum claim is a ‘fresh claim’ and therefore one which attracts a right of appeal.
Firstly, the first part of the test is that the content of the further submissions has “not already been considered”
This does not mean that there can be no reference to the original claim. Key parts of an original claim may not, for example, have been drawn out or substantiated with documentary evidence, important elements of the claim may have been misunderstood or not even disclosed because the person claiming asylum was not aware of what was important or not able to disclose it, for example because of trauma. In addition, they may not have known what evidence was needed or not been able to obtain documentary evidence to substantiate their claim.
Secondly, the next part of the test is that the new claim, “taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection”
In other words, a different Immigration Judge might reach a different conclusion even though one Judge has already dismissed the appeal and the Home Office is not persuaded to grant protection at that stage.
However, before you get to that test, there is a decision to be made by the Home Office, according to section 353, as to whether to accept the new claim and grant some form of protection.
The difference between further submissions and fresh claims
As outlined above, further submissions are the process by which the Home Office considers whether a person, who has already been refused protection, is in fact at risk of persecution or serious harm if returned to their country of nationality (or origin). There is no prescribed procedure for this in the Immigration Rules. The process adopted by the Home Office includes completion of a form (not compulsory), booking and attending an appointment at the Home Office in Liverpool (with a few exceptions such as those detained) and a decision on whether to accept or reject the claim that the person is indeed in need of protection.
Only then should the criteria for what constitutes a fresh claim be applied.
However, the Home Office mixes the two stages, with guidance on further submissions stating:
“Caseworkers must usually consider such further submissions …. by applying paragraph 353 of the Immigration Rules.”
NO! Paragraph 353 should be applied only if the further submissions have been considered and protection still not granted.
The guidance continues:
“If the material, in whatever form it takes, has previously been considered by the Home Office or by an Immigration Judge at appeal, the first test required in paragraph 353 is not met and there is no fresh claim. In such cases, it is not necessary to consider whether the material creates a realistic prospect of success (the second test) and the further submissions can be rejected without being considered as a fresh claim.”
NO! The test of whether the material has previously been considered is the fresh claim test and only becomes relevant if the Home Office decide that the person does not need protection i.e. their claim has been rejected again.
The published guidance for Home Office caseworkers on Further Submissions (page 26) states:
“You must consider further submissions that raise protection grounds, in accordance with the principles set out in the assessing credibility and refugee status and humanitarian protection guidance.”
Home Office caseworkers dealing with asylum claims are told, (for example, in Assessing credibility and refugee status in asylum claims lodged before 28 June 2022, page 9), that one of the policy objectives is to ensure that:
“Asylum claims are correctly decided, in accordance with our international obligations under the Refugee Convention and the ECHR, in a timely and sensitive way and on an individual, objective and impartial basis.”
On page 57 of the Home Office guidance on Assessing Credibility, they are also told:
“To qualify as a refugee (or Humanitarian Protection) a claimant must demonstrate a well-founded fear of persecution (or real risk of serious harm).”
The fact that a claim has been found to be lacking in credibility or that a person does not need protection does not mean that it was not credible and that protection should not be granted. It is not just about the strength of the claim but also about the person’s ability to engage with the asylum process and how the original claim is presented and examined. That comes with all the uncertainty and vagaries of the appeals system where some judges are known for dismissing asylum appeals.
In that context, let’s look at the Home Office pro forma.
The Home Office Further Submissions pro forma
The form starts by saying:
“You should use this form if you need to make further submissions for asylum or humanitarian protection reasons. It is not compulsory for you to use this form but it will help you set your further submissions out effectively if you decide to make them. Using this form will also assist the Home Office to consider your further submissions by ensuring that you provide all the necessary information. All documentation relating to your claim must be submitted with this form.”
It continues:
“All further submissions should be:
“new, not old, and significantly different from the previous material – not a repetition of your previous claim.”
There are three main sections to the form:
- Submission based on a change in your Country of Claim which is relevant to you
- Submission to support your previous claim, based on evidence which was not previously available.
- Submission based on a change in your personal circumstances.
Section 1 asks for a list of the documents being submitted, what has changed and how the change affects the claimant personally.
Section 2 asks why the new evidence was not submitted before and why it is significant.
Section 3 invites information to be given (for example, about a new relationship or private life in the UK, including health).
As stated above, for many people, the original reasons given for a fear of return to their country often remain central to their fear if returned. Unfortunately, for some people, the original asylum claim may not have been properly advanced and supported; this may include the circumstances in which they were living at the time of any interview or, for example, because of a lack of or limited legal advice. Legal advisers may be reluctant to examine their own conduct or even criticise other practitioners, but it may be a vital part of the process in re-examining the claim. In addition, a statement from the person seeking protection is evidence in itself and cannot always be accompanied by another form of documentary evidence personal to the individual. The ‘new’ evidence might, instead, come in the form of country information or a decision of the courts.
Despite the varied reasons for the lack of proper information or supporting documentation at the time of the original claim, the Home Office gives the following warning in the pro forma:
“If you tell us now or later something which you could or should have told us earlier, or give us evidence which you could have given us earlier, we will consider whether and how your credibility is affected by your delay. Additionally, you may not be able to appeal if the application is refused, even if we find that your evidence is significant.”
The original claim, and its reasons for rejection, will need to be reviewed and where it was found to contain errors or be lacking, for example, in detail or corroboration, those aspects should be re-enforced in any new application for protection
Even if the new claim is, for example, based on an entirely different basis to fear return, it is still important not to ignore the findings on the original claim. A finding that the original claim was fabricated will go against the person applying even if the new application is on different grounds.
Like the Preliminary Information Questionnaire, If you look at the Home Office Further Submissions pro forma, it shows how the Home Office is getting it wrong. If that form is used, it is more likely to lead not only to a decision that the person does not need protection but also to a decision that the new claim is not a fresh claim and therefore that there is no new right of appeal.
