Further submissions, sometimes referred to as a \u2018fresh claim\u2019, is a process for submitting a human rights or protection claim where a previous claim has been refused, withdrawn, treated as withdrawn or become appeal rights exhausted.<\/p>\n
It can be an effective tool for rectifying years of uncertainty for a failed asylum seeker or where new evidence has arisen. According to a freedom of information request<\/a>, between 2015 and 2021,14,151 people were granted some form of leave to remain following a fresh claim.<\/p>\n However, the approach to both the submission of and decision-making in a fresh claim has unique challenges and there are several pitfalls to watch out for.<\/p>\n Any fresh claim which is submitted to the Home Office will only be substantively considered if it meets what is known as the \u2018fresh claims test\u2019. The test is set out in Part 12 of the immigration rules at paragraph 353 and it is important for practitioners and applicants to be familiar with this.<\/p>\n This fresh claim test requires new evidence to meet two criteria:<\/p>\n The first limb of the test is straightforward. Has the new evidence been considered before?<\/p>\n The starting point for the Home Office is the first decision which will be either a Tribunal determination (if the matter was appealed) or a refusal letter. If the claim was withdrawn there may be no decision at all. Clearly, any evidence that has arisen since the date of that decision (or lack thereof) will satisfy the first limb.<\/p>\n That does not mean that evidence which pre-dates the last decision should not be relied upon. It can be. However, it would be wise to explain why <\/em>it was not available to the applicant earlier. One example of this would be where the applicant has only recently established contact with a family member who can provide them with new evidence.<\/p>\n New evidence might also relate to an account that was already considered and dismissed. For example, a psychological or scarring report might help to establish the credibility of a rejected account.<\/p>\n The second limb of the test should, in theory, also be straightforward and there is clear case law on its application. Unfortunately, it is this limb of the test which is often misapplied by decision-makers making it an area that is ripe for challenge (see section below on certification).<\/p>\n A \u2018realistic prospect of success\u2019 is explained in the guidance document \u2018Asylum policy instruction: further submissions\u2019<\/a> which supplements the immigration rules. It states:<\/p>\n You must consider all the available evidence when deciding whether there is a realistic prospect of success at appeal. Where further submissions are based wholly or partly on new evidence, this must not be considered in isolation, but must be considered in conjunction with the material previously submitted. The question is whether, in light of all the evidence available, the new material could (not necessarily would) persuade an Immigration Judge \u2013 in other words whether it is realistically arguable notwithstanding rejection.<\/p>\n<\/blockquote>\n The key part here is that the assessment is based on whether the new material \u2018could\u2019 not \u2018would\u2019 persuade an Immigration Judge.<\/p>\n The case of WM (DRC) v Secretary of State for the Home Department <\/em>[2007] Imm AR 337<\/a> provides authority on this at paragraph 11:<\/p>\n The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return. The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting point for that enquiry but it is only a starting point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind.<\/p>\n<\/blockquote>\n Therefore, an applicant need not establish that their claim is one which will <\/em>succeed in a Tribunal, merely that it has a realistic prospect that it could<\/em> do so. It is good practice to remind decision-makers of this in any written submissions.<\/p>\n As I have alluded to, there are often issues with both decision making and procedure in fresh claims. A recent UNHCR report<\/a> \u2013 our write up here<\/a> \u2013 highlights some of the key problems encountered in the process. I have extracted and summarised some of these here, incorporating my own experience, and anyone preparing a fresh claim would be advised to consider these points when preparing their evidence.<\/p>\n The report describes \u2018inordinate delay\u2019. This is nothing new in immigration cases but it does seem that fresh claims have some of the longest wait times. In the cases the UNHCR assessed delays were over 12 months.<\/p>\n The UNHCR cited \u2018concerning\u2019 issues arising from delay such as the cost to the State and host communities and hindering \u2018integration\u2019 of those with international protection needs. It also harmed individuals\u2019 mental health.<\/p>\n Whilst there is no single answer to delay, the UNHCR suggests an early filtration system for fresh claims so that they can be assigned to decision-makers at the earliest possible time and any issues with the format of evidence that has been submitted is raised at the earliest practicable opportunity. \u00a0<\/p>\n As a practitioner or applicant, regular contact with the further submissions unit is the best way to expedite a claim but long waits are a reality. If there is evidence of detriment caused by delay such as a medical issue, impact on children or housing, then this can be raised directly with the decision making unit. If this does not lead to progress, it would be sensible to consider issuing pre-action protocol or making a subject access request to see whether the Home Office as actually engaged with these requests.<\/p>\n As will be discussed further in this article there is currently a requirement to travel to submit a fresh claim. A claim should be lodged in-person at the Further Submissions Unit in Liverpool or at another of a limited number of Service Support Centres and appointments to do so must be made in advance. The UNHCR report recommends removing the requirement to travel altogether and allowing applications to be made by email or an online portal.<\/p>\n Part of the reason for the requirement to attend in person being so problematic is that usually such claims are made by someone without immigration status. This means that most who need to attend an appointment will be destitute and the journey can be expensive and long. Individuals will likely have to rely on charity or the help of friends or family to attend the appointment.<\/p>\n It is worth noting that during the pandemic the Home Office allowed further submissions to be made by email. This was far more efficient for those preparing and submitting claims, unfortunately that process has now ceased.<\/p>\n There are some exceptions to the requirements to travel which I explore later.<\/p>\n All legal representatives spoken to by the UNHCR identified that decision-makers decided cases to a higher standard of proof than is required and this is something I have consistently seen in practice.<\/p>\n Dealing with this issue requires structural change within the Home Office. The report recommends that cases are assigned to caseworkers based on their level of complexity. This means the more complex the case, the more experienced the caseworker is.<\/p>\n Unless or until this happens, it is advised that written submissions are prepared in a way which make it very clear for the decision maker what standard of proof is required to be applied.<\/p>\n For cases submitted before 28 July 2022, when certain provisions of the Nationality and Borders Act 2022 came into force<\/a>, the relevant standard is the \u2018lower standard of proof\u2019.<\/p>\n For cases submitted after that date, two different standards of proof are applied across different stages. The \u2018balance of probabilities\u2019 applies to decision as to whether a fear of persecution is well-founded and for a convention reason, and the lower standard of proof for whether they would be persecuted as a result of the characteristic and whether they would be protected. There\u2019s more on that here<\/a>.<\/p>\n As has been pointed out, the previous decision is the start point for any fresh claim.<\/p>\n The domestic law principles governing the relevance of a previous judgement in any subsequent claim are set out in the Upper Tribunal\u2019s decision in Devaseelan v Secretary of State for the Home Department <\/em>[2002] UKIAT 0070229<\/a> and endorsed by the Court of Appeal in cases, including LD (Algeria) v <\/em>Secretary of State for the Home Department<\/em> [2004] EWCA Civ 80430<\/a>, AL (Albania) v <\/em>Secretary of State for the Home Department<\/em> [2019] EWCA Civ 95031<\/a> and BK (Afghanistan)<\/em> [2019] EWCA Civ 1358<\/a>.<\/p>\n What is important to note is that very often \u2013 and as found by the UNHCR report \u2013 the principles are incorrectly applied by the decision maker. So, although Devaseelan says that the earlier determination is the starting point and should be followed unless there is a very good reason not to do so, every decision maker still \u2018has a fundamental obligation\u2026independently to decide each new application on its own merits\u2019.<\/p>\n Again, it is important that any fresh claim reminds decision-makers that they are required to consider these judicial decisions and correctly apply the relevant legal principles when assessing cases.<\/p>\n Once the evidence is ready, an appointment must be made in advance with the Home Office by calling 0300 123 7377. If you are acting on behalf of someone, you will need to send a letter of authority to\u00a0CSULOA@homeoffice.gov.uk<\/a>\u00a0at least 24 hours before attempting to book the appointment.<\/p>\n In \u2018exceptional circumstances\u2019 the Home Office will consider email submission of fresh claims. The Home Office applies a strict test. If an individual is unable to travel due to disability or severe illness, they will need clear medical evidence confirming this, and it should be emailed to\u00a0CSUEC@homeoffice.gov.uk<\/a>. If someone is under 18, there is no need to attend in person.<\/p>\n What evidence is required is detailed in the guidance in the section \u2018exceptions to the in-person process\u2019<\/a> and depends on why someone is saying they cannot attend in person.<\/p>\n If someone is being held in an immigration removal centre then submission will be by email to NRCDC@homeoffice.gov.uk<\/a>.<\/p>\n The further submissions appointment is a brief and administrative appointment. Anyone attending the appointment will need to take with them all the documents referenced on their invite letter as well as all the documentary evidence requiring consideration as part of the fresh claim.<\/p>\n Once in the appointment, a member of staff will scan the new evidence and upload it to the Home Office system and provide a further submissions receipt confirming the case has been submitted. Biometrics will also be taken for any future grant of leave to remain.<\/p>\n At present, a decision is unlikely to be made within six months and in most cases it will take much longer.<\/p>\n The Home Office policy on permission to work applies similarly to fresh claims as first asylum claims. After 12 months have passed an application for permission to work can be made. As per the asylum policy, it only applies to jobs on the shortage occupation list.<\/p>\n Whilst the claim is pending, a person cannot be removed from the UK so submitting the application can add a layer of protection for anyone without immigration status.<\/p>\n When a decision is received it could say one of three things.<\/p>\n In the best-case scenario, the application could be successful outright, meaning it is accepted that the evidence meets the fresh claim threshold and the Home Office accept the relevant standard of proof has been met and grant refugee protection or an alternative form of leave to remain.<\/p>\n More commonly, whilst the Home Office accept the case meets the fresh claim threshold, they will not accept the relevant standard of proof is met for a grant of leave to remain. In these cases there will always be a right of appeal. The appeal provides a good opportunity to update the fresh claim evidence and get the case before a judge for the new evidence to be assessed.<\/p>\n In some cases, there will be a refusal without a right of appeal. This should only occur when the Home Office determines that the new evidence does not amount to a fresh claim, i.e. that it does not meet the two limbs of the fresh claim test. \u00a0The question then becomes whether the decision maker has correctly applied the fresh claims test. It is common to find that they have not.<\/p>\n It might seem strange that a decision of this sort does not have a right of appeal. The\u00a0judgment<\/a>\u00a0in the case of\u00a0R (Akber) v Secretary of State for the Home Department (paragraph 353; Tribunal\u2019s role)<\/em>\u00a0[2021] UKUT 260 (IAC)<\/a>\u00a0provides useful context for understanding the background of this. As per R (Akber)<\/em>, the determination that a claim does not amount to a fresh claim is not recognised as a \u2018decision\u2019 that attracts a right of appeal. This is because there has been no substantive consideration of the evidence past the point of whether it meets the fresh claims test. As a result, the certification can only be challenged by judicial review applying ordinary public law concepts.<\/p>\n In any challenge on this basis, the question which the court will be considering is that cited in (WM):<\/em><\/p>\n First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return<\/p>\n<\/blockquote>\n Accordingly, any court determining a judicial review challenge is tasked with considering whether the Respondent\u2019s decision for rejecting the new material in light of the Tribunal\u2019s earlier findings has been applied in a lawful manner.<\/p>\n The procedure isn\u2019t easy and even attending the in-person appointment can be a challenge for someone without immigration status. However, once the claim is submitted and this hurdle is overcome the case will eventually reach a new decision-maker and the possible outcomes can be life-changing.<\/p>\n Anyone preparing such a claim would be advised to bear in mind the potential pitfalls and ensure that decision-makers adhere to the relevant rules. If a claim is refused without a right of appeal it is always worth considering whether judicial review is an option.<\/p>\n Further information can be found in the Free Movement\u00a0training module<\/a>.\u00a0<\/p>\n This article was originally published in December 2022 and has been updated by Katherine Soroya so that is it correct as of the new date of publication shown.<\/em><\/p>\n \u00a0<\/p>\nThe law<\/h2>\n
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Evidence not already considered<\/h3>\n
Realistic prospect of success<\/h3>\n
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Common problems and how to tackle them<\/h2>\n
Delay<\/h3>\n
Requirement to travel<\/h3>\n
Standard of proof<\/h3>\n
Dealing with previous decisions<\/h3>\n
Procedure<\/h2>\n
Ready to submit?<\/h3>\n
The appointment<\/h3>\n
Waiting for a decision<\/h3>\n
The decision<\/h2>\n
Refusal without a right of appeal, \u2018certification\u2019<\/h3>\n
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Conclusion<\/h2>\n
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