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  Immigration Law
   updates 2011

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                                  News & Views - Monday 28th November 2011 to Sunday 4th December 2011

Your asylum claim refused/appeal rights exhausted

Immigration Law Practitioners' Association (ILPA) have kindly given permission to circulate the briefing below, which gives a guide on making a 'Fresh Asylum Claim'.

Fresh Asylum Claims

A fresh claim is where someone who has previously made an asylum claim, which has been finally refused, makes a new claim that they should be granted asylum.

Immigration Rules
Paragraph *353 of the Immigration Rules states:

"…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…"

Fresh claim or further representations
The distinction between fresh claims and further representations is very important.

Further representations (or further submissions) are no more than information that is sent to the Home Office after asylum has been refused. These may or may not include new information. These may or may not relate to an identified asylum or human rights claim. Sometimes, the representations may do no more than restate any compassionate circumstances and ask the Home Office to exercise their general discretion to grant some form of status.

A fresh claim, however, must contain new information. That is information, which no decision-maker (whether the Home Office or an immigration judge) has yet considered. The effect of the new information must be that there is a real chance the claim will be successful.

Benefits of a fresh claim
If a fresh claim is made, this may enable a person to qualify again for welfare and housing support as an asylum-seeker. A person will usually have a new right of appeal against a refusal of a fresh claim. Also, a fresh claim may qualify for legal aid. In contrast, further representations will not usually lead to these benefits.

What counts as new information?
There is no limitation on what will count as new information - except that it must not have been considered before. New information might include:

new information about the individual asylum-seeker - e.g. documents received from his or her home country, such as an arrest warrant

new information related to the individual asylum-seeker - e.g. information from his or her home country of the arrest of a family member

evidence of a change of circumstances in the asylum-seeker's home country

a development in caselaw - e.g. a new judgment of the Court of Appeal or decision of the Asylum and Immigration Tribunal

These categories are not exhaustive. They merely indicate the range of information that may count as new. In particular, they show that new information may, but does not need to be, personal to the asylum-seeker.

A real chance of success
In addition to providing new information, a fresh claim must have a real chance of success. This means that the new information must be relevant. It must give reason to think that, despite previous decisions, the asylum-seeker is now at risk.

Necessary considerations before making a fresh claim
Firstly, it is vital to obtain the decisions made on the original (and any other) asylum claim. The evidence on which that claim was based is also needed. This information must be carefully considered to work out:

what information has already been considered?

what findings of fact have already been made?

Secondly, it is necessary to consider the new information. Having seen what information has already been considered, it is now possible to decide whether the information is indeed new. It will not be new unless it either provides evidence of some new fact or provides a new source of evidence for a fact that has previously been rejected.

Thirdly, it is necessary to consider whether any new information creates a real chance of success. This can only be done by considering the facts already decided. For instance, country information establishing that persons of a particular ethnic group are now at risk will not assist if it has already been decided that the asylum-seeker is not of that ethnic group - unless there is also new information giving reason to think that decision was wrong.

It will be necessary to consider why the new information has not been made available previously. Relevant questions will include:

from where and from whom has the new information come?

why has it been possible to obtain it now; and why was this not possible previously?

Asylum claims are often refused because the asylum-seeker is said not to be credible (not truthful, or not reliable). If the asylum-seeker has been found to be not credible, this may affect how much weight will be given to any new information. This will depend on the source of the new information. However, if the new information contains new and relevant evidence (not simply the asylum-seeker stating that something new has happened) it would usually justify a fresh claim - unless there were strong reasons to think the evidence was clearly unreliable.

Home Office policy on fresh claims

* The leading case on paragraph 353 is the decision of the Court of Appeal in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, in which Buxton LJ set out in terms both the task of the Secretary of State when deciding whether further submissions amount to a fresh claim and the test to be applied by a Court called on to review the Secretary of State's decision.

The following principles can be taken from paragraphs 6-11: the task of the Secretary of State under paragraph 353 is to decide whether the new material is "significantly different" from material already considered and rejected.

That task is twofold.

First, the Secretary of State must ask whether the new material was in fact considered on the asylum claim. If so that is the end of the matter, because the material is not new and cannot constitute a fresh claim.

Second, only if the new material has not already been considered, the Secretary of State must consider whether, when taken together with material previously considered, the whole creates a realistic prospect of success on a fresh asylum claim.

If the answer is yes, it is a fresh claim under 353.

In approaching the second limb of his task the Secretary of State's judgment will involve a judgment on the reliability of the new material, as well as a judgment on the outcome of a fresh asylum claim based on that material.

A Court reviewing a 353 decision similarly has a twofold task and must address two matters. First, has the Secretary of State asked himself the right question, namely whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, concluding that the applicant will be exposed to a real risk of persecution on return?

Second, in addressing that question, did the Secretary of State satisfy the requirement of anxious scrutiny? If the reviewing court cannot answer both of these questions affirmatively, it will grant the application for judicial review.



Self-Harm in Immigration detention Q3 2011

There have been three deaths in immigration detention between July and September 2011 inclusive. Two occurred at Colnbrook IRC and one at Campsfield House IRC. All three will be the subject of a Coroner's Inquest and it would be inappropriate to comment on the details in advance of their conclusions.

32 incidents of Self-Harm requiring medical attention

429 individuals being managed as having a risk of self-harm

Full breakdown of incidents can be found here . . . .

Immigration Statistics July - September 2011

UKBA released today their latest immigration statistics from Home Office administrative sources, covering July - September 2011 and can be sourced here . . . .

Removals and voluntary departures:
Quarter 3 of 2011, 13,253 people were removed or departed voluntarily, a 13% fall from 15,261 during the third quarter of 2010. This is the second lowest quarterly figure since the third quarter of 2001, although all the various types of removals and voluntary departures are higher than the second quarter of 2011, which was the lowest quarterly figure. Within the total number of people departing during the third quarter of 2011, there were 2,120 people (including dependants) who had claimed asylum (19% lower than during the third quarter of 2010)

Q3: Removals and voluntary departures by country of nationality

Top 10 destination countries

India 1,675
Pakistan 984
Nigeria 866
Brazil 713
United States 679
China 662
Bangladesh 484
Afghanistan 477
Albania 398
Sri Lanka 266

Quarter 3 of 2011 had the highest quarterly number of asylum applications (4,912) since the third quarter of 2009, mainly due to an increase in applications from nationals of Pakistan, Iran and Syria. Asylum applications continue to be significantly lower than levels seen in the early 2000's.

Quarter 3: Top 10 source countries

Iran 631
Pakistan 620
Sri Lanka 415
Eritrea 260
Afghanistan 292
Libya 204
China 175
Bangladesh 164
Sudan 161
Nigeria 160

Stateless 108



Facing imminent removal/deportation - involving your MP

Your MP does not have any powers to cancel a removal/deportation, but if 'new and compelling information has emerged, they may contact UKBA or the Minister's Private Office directly.'

UKBA may then agree to 'Defer' the removal to allow the case to be reviewed in light of the new information and any further representations from the applicant, his/her MP or a solicitor to be made.

In a late intervention an MP may be loath to present information that has already been considered by the Home Office or the court.

If you have been refused asylum (or have overstayed, or in the UK without permission) and facing imminent removal/deportation you may wish to involve your MP. The Home Office/Home Secretary will only respond to your constituency MP.

If you are in detention you can still involve your constituency MP. However if you are in detention and unable to engage your MP, you could contact the constituency MP for the detention centre.

There is no written definition of what exactly defines 'New and compelling information', however it could include compassionate circumstances, links with the community, the situation in your country recently deteriorating into civil strife, fitness to fly (including serious illness, advanced AIDS, severe mental health problems, etc).

If children are involved, the MP might mention how long they have been in the UK, if they have imminent exams, and a request to allow the children to finish their exams.

Best practice: If you have been refused asylum/applying for asylum, overstayed, or in the UK without permission, make an appointment with your MP. Take all appropriate documents with you.

You can contact your MP via House of Commons switchboard on 020 7219 3000 and ask for your MP by name. If you do not know their name then phone the House of Commons Information Office on 020 7219 4272.

It matters not whether you are in the UK with permission or without permission, where you live the MP for that constituency is your MP and you can approach them for help.

You can also find your MP via, your postcode @ 'Right to'

Below Chapter & Verse of UKBA guidelines on what MPs can do for you.

The guidelines are a living document and subject to change the information in this bulletin was correct @ 29th May 2011.


UKBA Enforcement Instructions and Guidance - Chapter 59 Members of Parliament (MP's) representations

Chapter 59 - Index
59. Members of Parliament (MP's) representations
59.1. MPs' representations when RDs are in place
59.2. MP's representations when there are no RDs in place
59.3. MP's representations received during week-ends, public holidays and out of hours
59.4. Time Limits and Detention
59.5. Cases where there has been an in country right of appeal
59.6. Cases where there has been no in country right of appeal
59.7. MP's request for deferral of removal in Deportation Cases

59. Members of Parliament (MP's) representations
Where an MP considers that new and compelling information has emerged, they may contact UKBA or the Minister's Private Office directly. In some cases, representations that are made to the UKBA and rejected might be repeated to the Minister's Private Office.

59.1. MPs' representations when RDs are in place
Where an MP chooses to contact the Minister's Private Office directly and RDs are in place for removal within the next 5 days, a decision on removal will be taken by the Minister's Private Office only after consultation with OSCU. OSCU will consider whether the information provided by the MP is both new and compelling.

Enforcement offices should handle all MPs' cases where RDs are in place urgently and refer the case immediately to OSCU where removal is to take place within the next 5 days to ensure that no delays occur. If the representations are made by phone the MP can be referred to the M P Removals Representation Desk in OSCU. Any written representations from an MP should be immediately faxed to OSCU.

In those urgent cases referred to above, OSCU will deal with any written representations in one of two ways:

- by drafting a reply for the Minister;

or in cases which do not require Ministerial sign off

- by sending an official reply.

In either event OSCU will *fax the LEO a copy of the signed reply and inform them that RDs can
remain in place. If the Minister is unavailable to sign off a response prior to removal it is possible that RDs will have to be deferred. In such cases it may be possible to keep the individual detained and arrange for a reply to be signed off as soon as the Minister becomes available. This would enable RDs to be reset without delay. In these circumstances OSCU will keep the LEO apprised of the situation. Similarly, in those cases where it is considered that the information supplied by the MP is sufficiently compelling to justify deferring removal the LEO will be informed by fax by OSCU.

In all cases where MPs' representations are received and RDs are in place for removal within the next 5 days all correspondence must be relayed through OSCU. The LEO should not liaise directly with the Minister's Private Office. If the Minister's Private Office contacts the LEO they should be informed that they must first notify OSCU and OSCU will then notify the LEO. When RDs are in place it is very important that all information is channelled through one office i.e. OSCU. If OSCU are not informed of any barriers, decisions or undertakings the potential to miss an important piece of information is increased as are the chances of an illegal removal.

*It is the responsibility of the individual LEO to ensure they have a system in place whereby their fax machines are checked at shift start and end times and if appropriate, during out of office hours for any such correspondence.

59.2. MP's representations when there are no RDs in place
Written representations from MPs' are received by UKBA either directly or via the core Home Office. They are scanned onto the correspondence tracking system and allocated to the appropriate unit dealing with the case to reply.

MPs are instructed to phone the MPs' hotline Monday to Friday 09:00hrs to 18:00hrs and OSCU between 18:00hrs and 21:00hrs on weekdays and on the weekends and public holidays. A new out of hours service provided by the command and control unit in Manchester will deal with representation at other times.
Late representations are normally sent by Private Office directly to OSCU or the MPs' hotline to allocate.

59.3. MP's representations received during week-ends, public holidays and out of hours
OSCU is open 365 days a year and its hours of operation are 07:00hrs to 21:00hrs on weekdays and 07:00hrs to 19:00hrs on weekends and public holidays. If an MP contacts an LEO by phone outside these hours about a case where removal is imminent they can be referred to the Command and Control Unit which is open 24 hours a day.

If written representations are received by an LEO outside these hours and the removal is due to take place before OSCU reopens, the RDs should normally be deferred.

59.4. Time Limits and Detention
If RDs are set and MPs' representations are received OSCU should advise the MPs Constituency Office immediately if it is considered appropriate to defer the removal. The LEO must also be informed if they were not the unit who received the representations.

There are no specific timescales set for the deferral period as the nature of the representations and the individual circumstances of the case will dictate how long this should be. In practice, this will mean exchanges by fax between the LEO, OSCU and the MPs Constituency Office to enable the representations to be considered quickly.

When the representations have been answered the MPs Constituency Office should also be advised if and when removal action will commence again. In cases where the representations do not necessitate the deferral of the removal the MPs Constituency Office should be advised immediately.

59.5. Cases where there has been an in country right of appeal
This would normally cover cases where there have been unsuccessful asylum applications or human rights allegations. In such cases the individual and/or their representatives will have had the opportunity to raise any compassionate or mitigating circumstances at any stage throughout the respective process. In such cases RDs will only be deferred when there is new and compelling information that has not been previously considered.

59.6. Cases where there has been no in country right of appeal
This would normally cover cases of illegal entry and administrative removal. In such cases the individual may not have had the opportunity to raise any compassionate or mitigating circumstances or any human rights allegations. In instances such as these removal directions may have to be deferred for consideration of the facts. However, each case will need to be considered on its individual circumstances.

59.7. MP's request for deferral of removal in Deportation Cases
Once a DO has been signed, requests by an MP for deferral of removal will only be granted exceptionally and if there is new and compelling information which was not available at the time the order was signed. The circumstances of the case must be referred to CCD for consideration.

Last Updated: 18 May 2011
Detention and Removals - Chapters 46-61

Chapter 59 : This manual contains guidance and information for officers dealing with enforcement immigration matters within the United Kingdom.

We have sought to present this manual in a form suitable for public disclosure but there is a small amount of material that cannot be disclosed because it may damage the effectiveness of the immigration control.

The masculine form is used throughout the manual to mean both he and she. The manual is a living document and is subject to change. Some sections may be unavailable if they are currently being updated.


Trafficked people being treated as criminals by officials, inquiry says

Women, men and children trafficked into Britain not seen as victims of crime whose rights have been breached Ð report. The victims of human trafficking, including women forced into the sex industry or trapped as unpaid domestic servants, are being unfairly treated as criminals and illegal immigrants, an inquiry has found.

The investigation by Lady Helena Kennedy QC has concluded that the police and immigration authorities fail to see the thousands of women, men and children trafficked into Britain as the innocent victims of organised crime whose own basic rights have been breached. Kennedy's report to the Scottish office of the Equality and Human Rights Commission (EHRC), published on Monday after an 18-month inquiry, calls on the UK and Scottish governments to introduce legislation and criminal justice policies which will tackle trafficking as a specific crime and support its victims.
Severin Carrell,, Sunday 27 November 2011

Quarter 3: During the third quarter of 2011, 6,834 people entered immigration detention. This was a slight increase from 6,771 in the third quarter of 2010. Of these 6,834, 30 were children, which compares with 48 in the third quarter of 2010.

Quarter 3: People leaving detention

6,593 people left detention of these:

4,085 were removed of which 1,475 were asylum detainees

2,508 were released into the community 38%

Quarter 3: People entering detention

Grand Total 6,834  of whom: asylum detainees 3,097

Brook House 698            Campsfield House 714
Dover 340                       Dungavel 351
Harmondsworth 903         Haslar 50
Lindholme 74                   Morton Hall 319
Tinsley House 549             Yarl's Wood 783

Short Term Holding Facilities

Colnbrook Short Term 1,401
Larne House 110                   Pennine House 523

Pre Departure Accommodation Cedars 19

Quarter 3: Top 10 nationalities entering detention

Pakistan 813           India 611
Nigeria 488              Afghanistan 456
Bangladesh 419       China 333
Sri Lanka 284            Vietnam 239
Albania 158                   Brazil 187

Freedom of Information request - Longest lengths of Detention

1 detainee has spent nearly 6 years in detention
5 detainees have been detained over 4 years
11 detainees more than 3 years

Quarter 3: As at 30 September 2011, management information shows that of the 2,909 people detained solely under Immigration Act powers, the 20 longest recorded lengths of detention are:

5.9 years (2,158 days) 1 detainee male
4.8 years (1,760 days) 1 detainee male
4.3 years (1,603 days) 1 detainee male
4.3 years (1,579 days) 1 detainee male
4.2 years (1,540 days) 1 detainee male
4.0 years (1,474 days) 1 detainee male
3.8 years (1,414 days) 1 detainee male
3.6 years (1,346 days) 1 detainee male
3.6 years (1,324 days) 1 detainee male
3.5 years (1,308 days) 1 detainee male
3.5 years (1,298 days) 1 detainee male
3.5 years (1,297 days) 1 detainee male
3.4 years (1,266 days) 1 detainee male
3.4 years (1,255 days) 1 detainee male
3.3 years (1,240 days) 1 detainee male
3.1 years (1,165 days) 1 detainee male
3.1 years (1,162 days) 1 detainee male
2.9 years (1,089 days) 1 detainee male
2.9 years (1,087 days) 1 detainee male
2.9 years (1,064 days) 2 detainees male


Last updated 30 November, 2011