Asylum and asylum seekers have been near-constant features of the news cycle in the UK for several years now. With the recent introduction of the Nationality and Borders Act, the Rwanda policy and the government's proposed Illegal Migration Bill, the topic is set to remain highly relevant.
Undeniably however, asylum and refugee law also remain widely misunderstood. This article will define the key terms associated with asylum and explain how these kinds of applications are made in the UK.
What is asylum?
'Asylum' is a type of protection, established as a legal concept by the UN Refugee Convention in 1951, partly in response to the refugee crisis created by the Holocaust and the Second World War, which saw millions of people displaced throughout Europe and the world.
In 1948 the UN Human Rights Convention recognised a right for people to seek protection from persecution in another country (Article 14). The Refugee Convention, written a few years later, was intended to codify this right. The UK was an original signatory to the Refugee Convention and played a key role in drafting its terms.
What's the difference between an asylum seeker and a refugee?
The terms 'refugee' and 'asylum seeker' refer to people at different stages of the process of seeking protection.
All asylum seekers are potential refugees. Asylum seekers are people who have left their home country to escape dangerous circumstances and are looking to claim international protection under the Refugee Convention. Asylum seekers can make a claim for protection (an asylum claim) in any country which is a signatory to the Refugee Convention. A refugee is a person who has been found to be eligible for that protection.
How do you claim asylum?
There is no requirement under the Refugee Convention for an asylum seeker to claim asylum in the first safe country they arrive in after leaving their country of origin. This is partly to prevent countries in particularly dangerous regions from bearing the majority burden of international protection.
However, in the UK it is considered that those in need of international protection should claim asylum in their first safe country they reach. Following the introduction of the Nationality and Borders Act, 2022, asylum seekers who are not considered to have arrived in the UK directly from a country or territory where their life or freedom was threatened will receive differential treatment, most notably receiving a different type of leave to remain if they are found to qualify for refugee status.
Under the Refugee Convention signatory states are required to consider applications for asylum made from within their country. States will assess whether the asylum seeker meets the definition of a 'refugee' as set out in the Convention.
Asylum seekers in the UK must register their claim once they enter the UK by telling a member of the UK Border Force that they wish to claim asylum. Some applicants will enter the UK another way – for example using a Visitor or Student visa – but later find that their circumstances have changed and that they now fear persecution in their home country. People in this position should register a claim for asylum as soon as possible after their circumstances change, by telephoning to make an appointment to claim asylum at the Asylum Screening Unit (ASU) in Croydon.
How are asylum claims decided in the UK?
In the UK, the decision making process is carried out by the Home Office, which conducts two interviews with an asylum seeker: a screening interview and a substantive interview.
The screening interview is a short preliminary meeting to establish key details about the asylum seeker and their claim. The interviewer will ask about the asylum seeker's background, family and journey to the UK and will scan their fingerprints and take their photo. The screening interview is the asylum seeker's opportunity to set out why they are claiming asylum.
The Home Office has also recently introduced a paper form which is designed to replace the screening interview for applicants from certain countries. This is in order to speed up the decision-making process – which is currently extremely delayed, with decisions taking years to be made.
The substantive interview is a much longer interview, where the asylum seeker will be asked in detail about their claim. The decision maker will ask a series of questions to try to establish whether the asylum seeker meets the definition of a 'refugee' and is entitled to protection in the UK. The interview is audio recorded and the information provided by the asylum seeker will form a central part of the evidence used by the Home Office to decide the claim. Asylum seekers can also bring documentary evidence to this interview to support their assertions.
What is a refugee?
Under Article I of the Refugee Convention a refugee is a person who:
"owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country"
In very simple terms then a refugee is a person who fears that they are at risk of individual persecution. This definition above is made up of several different elements. Asylum applicants must meet each element for their application to be successful.
The Immigration Rules make it clear that the burden is on the claimant to provide evidence to support their claim. This evidence should be provided 'as soon as possible' and must also meet the 'standard of proof' – which, following the 2022 Nationality and Borders Act, is slightly different for different elements of the definition.
This is obviously very challenging for asylum applicants, as they effectively need to build a legal case without necessarily having legal expertise. They may also have difficulty providing documentary evidence to support their claim, as they may have had to flee without time to gather the evidence, cannot safely contact family or friends in their home country to request documents or because threats of persecution are not recorded in document form.
Decision makers have a duty to conduct a holistic assessment of all of the available evidence, and to assess the information provided 'in cooperation' with the applicant, but practically speaking applicants need, to the best of their ability, to convince the decision maker that they meet each of the elements of the refugee definition, by providing as much helpful information and evidence as possible.
Well-founded fear
The individual must show that they have a 'well-founded fear' of persecution in their home country. Applicants do not need to show that persecution has already occurred or that it will definitely take place if they were to return to their home country, but they do need to show that there is a real risk of such persecution.
It is important for applicants to set out exactly why they themselves are afraid of persecution. This is something which asylum applicants often struggle with. For example, a human rights report setting out the situation in a certain country is useful supporting evidence, but will often not be enough on its own to show that the individual themselves is at real risk of persecution. Instead asylum seekers need to explain where their own personal fear comes from. This might include having already experienced such persecution, having been threatened with persecution or having witnessed it happening or heard of it happening to others – perhaps to friends or family members.
Applicants should also try to provide objective evidence which can support their account of events. This evidence might include arrest warrants, court documents, newspaper coverage or letters from others who can support the account.
Persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion
Persecution is defined as:
"serious, targeted mistreatment of an individual because of their identity under one or more of the following specific grounds:
- race
- religion
- nationality
- political opinion
- membership of a particular social group"
The Home Office guidance states that persecution:
"must be sufficiently serious by its nature or repetition as to constitute a severe violation of a basic human right [...] or an accumulation of various measures, including a violation of a human right, which is sufficiently severe as to affect an individual in a similar manner"
Further detail on this point can be found here.
As with the 'real risk' part of the refugee definition, asylum seekers need to be as specific as possible when explaining the persecution they fear. They should be able to explain not only why they specifically fear this persecution, but also what form it would take (bearing in mind the definition of persecution given here), and how this would specifically relate to one of the characteristics listed above.
Standard of proof
The decision maker must consider these first two elements of the refugee definition together, in a two stage assessment. First, the decision maker must determine whether it is more likely than not that:
- The claimant has a characteristic which would cause them to fear persecution for one or more of the convention reasons, and
- That they do in fact fear persecution
Then the decision maker will assess whether there is a reasonable likelihood that there is:
- A real risk that the claimant would in fact face the harm they fear
Essentially, the decision maker must first make an objective determination that the claimant is who they say they are and that they have made an asylum application because of a fear of specific persecution – rather than, for example, economic reasons. Then the decision-maker must make a more subjective assessment of whether that fear is a reasonable one.
Unwilling or unable to avail themselves of the protection of their country
Finally, an asylum seeker will need to be able to explain or show that they can't rely on the protection of their government to prevent the persecution they fear.
The Home Office will consider whether the asylum seeker would be safe from persecution in another city or region, and whether they could simply move there, rather than needing to be granted asylum in the UK. This is called 'internal relocation'.
To meet the definition of a refugee an asylum seeker will need to show why internal relocation would not protect them. For example, an asylum seeker would need to show that they fear persecution from their country's government or police force, meaning that they would not be safe anywhere. An asylum seeker might also show that although they could escape persecution they would face other risks.
The Home Office must consider whether asking the asylum seeker to relocate would be 'unduly harsh'.
What does it mean to be granted asylum?
If the Home Office finds that an asylum applicant does meet the definition of a refugee then, under the Convention, the UK has an obligation not to return (or in the language of the Convention, 'refoule') that person to a territory where they may be at risk of persecution.
Therefore, having established that a person has 'refugee status', the UK will generally offer that person protection and allow them to remain. At this point a person is referred to as a 'refugee', as they have been found to meet that definition under the Convention.
In the UK this is generally a grant of leave for 5 years, after which the asylum seeker can apply to settle permanently in the UK.
This will differ for refugees who are not considered to have arrived in the UK directly from a country or territory where their life or freedom was threatened. These refugees will be granted temporary refugee permission to stay, which it not a route to permanent settlement in the UK.
What is Humanitarian Protection?
The key feature of a refugee claim is that the person fears persecution aimed at them because of a specific characteristic they possess. This is very different from a generalised fear of harm or death, for example as a result of conflict. People escaping from widespread violence may not qualify for refugee status.
Where there is a "serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict", applicants will have their case decided under a different part of the Refugee Convention.
Applicants who meet this definition can be offered a grant of Humanitarian Protection. As with asylum, this will attract a grant of leave for 5 years, after which individuals can apply for indefinite leave to remain in the UK.
Conclusion
Claiming asylum in the UK is a lengthy and complicated process. Nevertheless, in 2022 75% of initial decisions made in the UK resulted in a grant of asylum or humanitarian protection.
For expert advice and assistance in relation to an asylum application, please contact our immigration barristers in London on 0203 617 9173 or via the enquiry form below.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
