We are pleased to provide a follow-up Q&A from our webinar 'Asylum in the UK: Changes to the international protection regime under the Nationality & Borders Act' held on Wednesday 5 October 2022.
Our speakers Mark Symes, Raza Halim and Hannah Lynes have drafted answers to some of the key burning questions raised by delegates at the webinar.
1. What do you think about refugees from Ukraine who have in fact claimed asylum prior to 28 June 2022 rather than applying for temporary protection under the Ukraine Scheme – are their asylum/ humanitarian protection claims based on indiscriminate violence likely to succeed?
Whatever the date of their claim they will be eligible for leave under r339CA as facing serious harm due to indiscriminate violence. But if they claim after 28 June 2022, they will be treated in line with Group 2 refugees, because Appendix Settlement Protection denies them access to ILR and the Asylum Part 11 Rules at 352FA(viii), etc demand insurmountable obstacles be established to live elsewhere before family reunion is granted. As to the merits of the indiscriminate violence claim, they will need to make their case as per the legal regime as set out eg in SMO Iraq  UKUT 400 (IAC) 206ff. It will be politically difficult for the SSHD to argue the contrary one might think.
In general, the conditions of permission, access to work etc, are likely to be superior under Appendix Ukraine, then from seeking international protection, not least because of the likely period as an asylum seeker pending a decision on one’s case, so presumably most Ukraine nationals would be better off going via the Appendix – though if for some reason international protection was preferred, one route would be Part 11A of the Rules on Temporary Protection (one of the sparse surviving bits of EU retained law) which would be hard to refuse given the EU Council has recognised a mass influx, query how UKVI would advance such a case.
2. Due to the backlog of cases, the circumstances of some asylum seekers may change. For example, they might develop private and family life ties (such as having a child with a settled person in the UK). Do you think that an asylum seeker in these circumstances post-28 June 2022 has better prospects to settle in the UK?
The general position is that there will be no access to Indefinite Leave to Remain (ILR) – they are simply “ineligible to apply” as the introduction to Appendix Settlement Protection puts it. However it is always possible to apply for accelerated ILR outside the Rules: the Guidance Permission to stay on a protection route says, in the context of children's best interests that ‘It is … very unlikely that best interests considerations in an individual case will override the wider policy intention to require all individuals to complete an appropriate period of permission to stay.’
However, that is just the sort of generalised statement which has previously hit the buffers in various JRs. It is certainly worth making strongly evidenced applications which might sustain a JR challenge if refused: e.g. the leave outside the Immigration Rule (LOTR) policy emphasises that "there may be an exceptionally unusual case where ILR is the only viable option because a short period of leave is not appropriate because there are the most exceptional compelling compassionate grounds": mental health vulnerability, being a modern slavery survivor or the best interests of children are likely to be relevant.
3. I understand there is no time frame to make a decision on admissibility following Notices of Intent to remove asylum seekers to Rwanda or other third countries, but at what point do you consider a challenge to the delay (under the old admissibility rules it was 6 months)?
The initial benchmark is the Inadmissibility guidance, which posts 6 months as the benchmark, but encourages a more fact-sensitive approach, permitting a longer period where the asylum seeker is responsible for the delay or because of a pause for (presumably negative) NRM consideration. Pressure points for a challenge would be overt mental health deterioration and other vulnerabilities, or (more optimistically) seeking disclosure of what efforts are being made and the fruits they are bearing to achieve third-country acquiescence.
4. While the UK has no agreements with any third countries, apart from Rwanda, is there anything to worry about re inadmissibility etc?
The UK cannot return to the European Union presently as it seems no progress has been made in securing readmission agreements. So that leaves returns to other destinations, which are few and far between in terms of transit locations, hence the attractiveness of identifying non-transit countries which are nevertheless willing to admit the UK’s asylum seekers. At the political level, it is understood that the UK is seeking to repeat the Rwanda arrangements with other locations.
5. Is it safe to conclude that upon removal to a third country, the UK government ceases to have any responsibilities towards the person?
Yes. Schedule 4 provides for the summary removal of an asylum-seeker to a third country. Once they are removed, their asylum claim will be dealt with under the third country’s laws, and the UK will not necessarily play any continuing role. It follows that they will not necessarily enjoy the full panoply of protections that they would enjoy in the UK.
6. Is there any difference in relation to the route to settlement for group 1 or group 2 refugees and if so, where is this set out?
Asylum-seekers recognised as ‘Group 1’ refugees will be granted 5 years’ Refugee Permission to Stay (“RPTS”): see Rule339QA(i) of the Immigration Rules. They can apply for settlement on the protection route if they have spent a continuous period of at least five years in the UK with RPTS (validity and suitability criteria also apply): see Immigration Rules, Appendix Settlement Protection, STP 1.1 – STP 4.1.
Asylum-seekers recognised as ‘Group 2’ refugees will be granted 30 months’ Refugee Temporary Permission to Stay (“RTPS”), unless exceptional circumstances apply: see Rule339QA(ii). Those with RTPS can apply for further permission to stay after 30 months (the application must be made within the last 28 days of their current grant of permission to stay).
‘Group 2’ refugees are not eligible to apply for settlement on the protection route. Instead, they can apply for settlement under the Long Residency Rules after they have spent a continuous period of at least ten years in the UK. The rules for settlement on the basis of long residence in the UK can be found in Paragraphs 276A to 276D of the Immigration Rules.
7. If a person arrives in the UK clandestinely, is not detected immediately on their arrival, and later claims to have travelled directly from his or her country of origin, will s/he be treated as a Group 1 refugee?
Where an asylum-seeker claims to have travelled directly from his or her country of origin, that claim will be subject to an assessment of credibility (i.e. the Secretary of State will accept or reject the asylum-seeker’s account of how they came to the UK). The other criteria for recognition as a ‘Group 1’ refugee will also need to be satisfied, including that the asylum-seeker presented themselves without delay to the authorities (NBA 2022, Section 12(2)(b)). An asylum-seeker who is not detected on arrival and only later makes a claim for asylum may, depending on the circumstances, find it more difficult to satisfy the latter requirement.
8. Do the different refugee regimes, distinguishing between Group 1 and Group 2 refugees, apply to fresh claims accepted as fresh claims post 28 June 2022 but where the original claim was decided before 28 June 2022, possibly years ago?
Applying first principles, an asylum claim is made on the date it is initiated. In the case of an original asylum claim, that would be the date it is originally lodged with UKVI. In the case of further representations, these crystallise into an asylum claim only when the Immigration Rule 353 test is deemed satisfied by UKVI: at that moment further become an asylum claim. However, that asylum claim has been determined rather than made at the latter date. Presumably, the asylum claim was made at the date of the further representations. For example, Appendix Settlement Protection states:
“Only those granted refugee status or humanitarian protection as a result of asylum applications made before 28 June 2022 or granted refugee status and refugee permission to stay on asylum applications made on or after 28 June 2022, are eligible to apply on the settlement protection route.”
A successful fresh claimant would not have been granted status on the back of their original unsuccessful asylum claim but as a result of the further representations which were accepted as a fresh claim.
The express transitional provisions for the differentiation regime do not appear in the Act (in contrast to the transitional provisions for the refugee definition s30(5)): they are found in the HC 17 Statement of Changes, which state:
“… if a claim for asylum or an application for entry clearance, leave to enter or leave to remain has been made before 28 June 2022, such applications will be decided in accordance with the Immigration Rules in force on 27 June 2022.”
The analysis above works perfectly well with that form of words: the “claim for asylum” is the further representations which are deemed a “claim for asylum” when the r353 test is satisfied.
The Home Office policy guidance on Further Submissions version 10.0, published on 28 June 2022, states that the policy of distinguishing between two groups of refugees “also applies to further submissions lodged on or after 28 June 2022” (page 32 of the policy guidance). This rather concise form of words does not really answer the question but is also consistent with the theory above. So in short, we think that fresh claimants should enter the differentiation regime based on the date of their further representations leading to refugee recognition.