Country Report: United Kingdom

2020
Update1

Acknowledgements & Methodology
The preparation of the first report and subsequent four updates was prepared by Gina Clayton on a
consultancy basis, under the coordination of Asylum Aid. The 2016-2020 updates were prepared by Judith
Dennis of the Refugee Council, and edited by ECRE.
Information was obtained through a combination of desk-based research and consultation with relevant
stakeholders. The author relied heavily on information and analysis provided by a variety of sources, inparticular the Immigration Law Practitioners’ Association (ILPA), Association of Visitors to Immigration
Detainees (AVID) and Asylum Support Appeals Project.
The information in this report is up-to-date as of 31 December 2020, unless otherwise stated.

The Asylum Information Database (AIDA)The Asylum Information Database (AIDA) is coordinated by the European Council on Refugees and Exiles(ECRE). It aims to provide up-to date information on asylum practice in 23 countries. This includes 19 EU
Member States (AT, BE, BG, CY, DE, ES, FR, GR, HR, HU, IE, IT, MT, NL, PL, PT, RO, SE, SI) and 4
non-EU countries (UK, Serbia, Switzerland, Turkey) which is accessible to researchers, advocates, legal
practitioners and the general public through the dedicated website www.asylumineurope.org. The
database also seeks to promote the implementation and transposition of EU asylum legislation reflecting
the highest possible standards of protection in line with international refugee and human rights law andbased on best practice.

This report is part of the Asylum Information Database (AIDA), funded by the European Programme forIntegration and Migration (EPIM), a collaborative initiative by the Network of European Foundations, andthe European Union’s Asylum, Migration and Integration Fund (AMIF). The contents of this report are thesole responsibility of ECRE and can in no way be taken to reflect the views of EPIM or the European
Commission.

2

Table of Contents

Glossary ..................................................................................................................................6
List of Abbreviations ..............................................................................................................7
Statistics .................................................................................................................................9
Overview of the legal framework .........................................................................................11
Overview of the of the main changes since the previous update .....................................13
Asylum Procedure ................................................................................................................15A.

General ........................................................................................................................................ 15
1.

Flow chart ................................................................................................................................. 15

2.

Types of procedures ................................................................................................................. 16

3.

List of authorities intervening in each stage of the procedure .................................................. 16

4.

Number of staff and nature of the determining authority .......................................................... 16

5.

Short overview of the asylum procedure .................................................................................. 17

B.

Access to the procedure and registration ............................................................................... 19
1.

Access to the territory and push backs .................................................................................... 19

2.

Registration of the asylum application...................................................................................... 20

C.

Procedures ................................................................................................................................. 22
1.

Regular procedure .................................................................................................................... 22

2.

Dublin ....................................................................................................................................... 30

3.

Admissibility procedure ............................................................................................................ 37

4.

Border procedure (border and transit zones) ........................................................................... 39

5.

Accelerated procedure ............................................................................................................. 41D.

Guarantees for vulnerable groups ........................................................................................... 45
1.

Identification ............................................................................................................................. 45

2.

Special procedural guarantees ................................................................................................. 48

3.

Use of medical reports ............................................................................................................. 49

4.

Legal representation of unaccompanied children .................................................................... 51

E.

Subsequent applications ........................................................................................................... 53

F.

The safe country concepts............................................................................................................ 55

3

1.

Safe country of origin ............................................................................................................... 55

2.

Safe third country ..................................................................................................................... 56

3.

First country of asylum ............................................................................................................. 58

G.

Information for asylum seekers and access to NGOs and UNHCR ...................................... 58

H.

Differential treatment of specific nationalities in the procedure .......................................... 60

Reception Conditions...........................................................................................................62
A.

Access and forms of reception conditions ............................................................................. 62
1.

Criteria and restrictions to access reception conditions ........................................................... 622.

Forms and levels of material reception conditions ................................................................... 67

3.

Reduction or withdrawal of reception conditions ...................................................................... 68

4.

Freedom of movement ............................................................................................................. 69

B.

Housing ....................................................................................................................................... 70
1.

Types of accommodation ......................................................................................................... 70

2.

Conditions in reception facilities ............................................................................................... 72

C.

Employment and education ...................................................................................................... 74
1.

Access to the labour market ..................................................................................................... 74

2.

Access to education ................................................................................................................. 75

D.

Health care .................................................................................................................................. 77

E.

Special reception needs of vulnerable groups ....................................................................... 79

F.

Information for asylum seekers and access to reception centres ....................................... 81
1.

Provision of information on reception ....................................................................................... 81

2.

Access to reception centres by third parties ............................................................................ 82

G.

Differential treatment of specific nationalities in reception .................................................. 82

Detention of Asylum Seekers ..............................................................................................83
A.

General ........................................................................................................................................ 83

B.

Legal framework of detention ....................................................................................................... 84C.

1.

Grounds of detention ................................................................................................................ 84

2.

Alternatives to detention ........................................................................................................... 85

3.

Detention of vulnerable applicants ........................................................................................... 87

4.

Duration of detention ................................................................................................................ 90
Detention conditions ................................................................................................................. 90

4

1.

Place of detention ..................................................................................................................... 90

2.

Conditions in detention facilities .............................................................................................. 92

3.

Access to detention facilities .................................................................................................... 95

D.

Procedural safeguards .............................................................................................................. 96
1.

Judicial review of the detention order ....................................................................................... 96

2.

Legal assistance for review of detention .................................................................................. 98E.

Differential treatment of specific nationalities in detention .................................................. 98Content of International Protection .....................................................................................99
A.

Status and residence ................................................................................................................. 99
1.

Residence permit...................................................................................................................... 99

2.

Civil registration ........................................................................................................................ 99

3.

Long-term residence............................................................................................................... 100

4.

Naturalisation.......................................................................................................................... 100

5.

Cessation and review of protection status ............................................................................. 101

6.

Withdrawal of protection status .............................................................................................. 101

B.

Family reunification ................................................................................................................. 102
1.

Criteria and conditions ............................................................................................................ 102

2.

Status and rights of family members ...................................................................................... 103

C.

Movement and mobility ........................................................................................................... 104
1.

Freedom of movement ........................................................................................................... 104

2.

Travel documents ................................................................................................................... 104

D.

Housing ..................................................................................................................................... 105

E.

Employment and education .................................................................................................... 106
1.

Access to the labour market ................................................................................................... 106

2.

Access to education ............................................................................................................... 106

F.

Social welfare ............................................................................................................................ 106

G.

Health care ................................................................................................................................ 107

5

Glossary
Country guidance case

Decision by the Upper Tribunal (Immigration and Asylum Chamber) ona specific country, with binding effect on other cases

Discretionary leave toenter/remain

Residence granted on humanitarian grounds

Dubs amendment

Section 67 of the Immigration Act 2016 introduced obligations on the
Secretary of State for the Home Department to make arrangements torelocate a specified number of unaccompanied children to the UK fromother European countries. Named after a peer, Lord Dubs, who first
introduced the amendment to the then Immigration Bill.

Humanitarian protection

Subsidiary protection in the meaning of the Qualification Directive.

Immigration BailAn alternative to detention granted to people who are in the UK without
leave, including people seeking asylum. It replaced the previous termof ‘temporary admission’ as well as Immigration Bail which waspreviously only applied to those people who had been detained.

Judicial Review

A specific legal challenge to the legality of a decision, act or failure toact made by a statutory authority. This process is separate for theappeal process. Judicial review proceedings do not consider the meritsof a decision, but only whether the decision maker has approached thematter in the correct way. A request to have a decision judiciallyreviewed will be made to the High Court (England and Wales), theCourt of Session (Scotland) and High Court (Northern Ireland). If thedecision challenged was immigration related the case may be heard in
the Tribunal but the process is the same as if it were heard in the High
Court or Court of Session.

Rule 35 report

Relevant to Detention. Rule 35 of the Detention Centre Rules provides
that, where there is evidence that a detainee has been tortured, or for
any other reason their health would be injuriously affected bydetention, a report should be made to the caseworker for release to beconsidered

Section 4 support

Relevant to Reception Conditions. Section 4 of the Immigration andAsylum Act 1999 provides support to a former asylum seeker, now
appeal rights exhausted, on the basis that the individual (and theirdependants) have a temporary legal or medical reason for being
unable to return to their country of origin. Conditions are set out inregulations (secondary legislation).

Section 95 support

Relevant to Reception Conditions. Section 95 of the Immigration andAsylum Act 1999 provides that support is given to adults and theirdependants with an outstanding asylum claim or appeal and who areaccepted to be destitute or will be destitute within the next 14 days.

Section 98 support

Relevant to Reception Conditions. Section 98 of the Immigration andAsylum Act 1999 provides mainly for non-cash assistance to applicantsduring the asylum procedure.

6

List of Abbreviations
AIRE

Advice, Issue reporting and Eligibility Service

APPG

All Party Parliamentary Group/s

ARE

Appeal Rights Exhausted

ASAP

Asylum Support Appeals Project

AIU

Asylum Intake Unit

ASU

Asylum Screening Unit

AVID

Association of Visitors to Immigration Detainees

BID

Bail for Immigration Detainees

BRP

Biometric Residence Permit

CIO

Chief Immigration Officer

CJEU

Court of Justice of the European Union

DFT

Detained Fast Track System

EASO

European Asylum Support Office

ECHR

European Convention on Human Rights

ECtHR

European Court of Human Rights

EWCA

England and Wales Court of Appeal

EWHC

England and Wales High Court

FOI

Freedom of Information

FFT

Freedom From Torture

FTT (IAC)

First-Tier Tribunal Immigration and Asylum Chamber

IMB

Independent Monitoring Board

ILR

Indefinite Leave to Remain

IRC

Immigration Removal Centre

JCWI

Joint Council for the Welfare of Immigrants

NAAU

National Asylum Allocation UnitNGO

Non-Governmental Organisation

NHS

National Health Service

NSA

Non-Suspensive Appeal

OLCU

Older Live Cases UnitOSSOne Stop Services

PTSD

Post-Traumatic Stress Disorder

SSC

Service Support Centres

STHF

Short-Term Holding Facility

TPTransition Period (after the UK left the EU)

UKBF

United Kingdom Border Force

7

UKCISA

United Kingdom Council for International Student Affairs

UKHL

United Kingdom House of Lords (highest appellate court, now UKSC)

UKRP

United Kingdom Resident Permit

UKSC

United Kingdom Supreme Court

UKVI

United Kingdom Visas and Immigration

UT (IAC)

Upper Tribunal Immigration and Asylum Chamber

VPR/VPRS

Vulnerable Person Resettlement Scheme (previously known as Vulnerable
Persons Relocation Scheme

8

Statistics
Overview of statistical practice
Statistics on asylum are published as part of a package of immigration statistics on a quarterly basis by the National Statistics authority,1 using Home Officeadministrative sources. Where statistics are not made available, they are requested directly from the Home Office using a Parliamentary Question.2 Difficulties
have also been encountered with regard to Home Office responses to freedom of information (FOI) requests. 3 The numbers include dependants.
Applications and granting of protection status at first instance: 2020

Total

Pending (andFirst time
pending
Refugee status
Applicants4 appeal) at endof 2020 5
36,04164,895
7,546

Subsidiary
protection

Rejection

Refugee rate6

Sub. Prot. rate

Rejection rate

1,012

6,675

34%

5%

30%

3
91
4
1
2
6
10
1
1
9

364
871
540
46
56
19
336
540
547
148

78%
25%
40%
95%
93%
95%
61%
30%
1%
64%

0.2%
6%
0.4%
0.1%
0.1%
1%
1%
0.1%
0.2%
2%

21%
62%
55%
5%
6%
3%
37%
61%
94%
30%

Breakdown by countries of origin of the total numbers
Iran
Iraq
Albania
Eritrea
Sudan
Syria
Afghanistan
Pakistan
India
Vietnam

4,199
3,281
3,071
2,604
2,153
1,746
1,546
1,525
1,046
2,818

6,056 (333)5,244 (846)
8,163 (328)
3,044 (67)2,215 (65)2,205 (26)2,894 (333)3,889 (352)
2,119 (158)982 (128)

1,363
356
395
827
817
551
554
268
6
313

Source: National Statistics Authority; Home Office. All percentages are calculated from total decisions omitting inadmissibility decisions and withdrawn claims.

1
2
3
4
5
6

National Statistics Authority, available at: https://www.statisticsauthority.gov.uk/. See also Home Office, Immigration Statistics, available at: https://bit.ly/3awmb9O .
Parliament, Parliamentary Questions, available at: http://bit.ly/2kL0olB.
See e.g. Information Commissioner, Decision FS50646722, 12 January 2017, available at: http://bit.ly/2kQ5TiU.
No information on subsequent applicants is available.
Pending initial decisions. Number in brackets is number of additional cases pending an appeal
All percentages are calculated from total decisions omitting inadmissibility decisions and withdrawn claims.

9

Gender/age breakdown of the total number of applicants: 2020
Number

Percentage

Total number of applicants

36,041-Men

20,671

57

Women

7,707

21

Children

5,348

15

Unaccompanied children

2,291

5

Source: UK government statistical data release February 2021.

Comparison between first instance and appeal decision rates: 2020
First instanceAppealNumber

Percentage

NumberTotal number of decisions7

15,788-3,784

Positive decisions8

9,048

57%

•

Refugee status

7,546

48%

•

Humanitarian protection

1,012

6%

•

Discretionary leave

92

0.6%

6,750

43%

Negative decisions9

Percentage

1,481

39%

1,882

50%

Source: UK government statistical data release February 2021. The figures relating to appeal refer to number of cases, not individuals (i.e. they do not include dependants),
while the percentage of appeals does not include withdrawn appeals.

789Excludes withdrawn claims and inadmissibility decisions
Includes grants of other leave.
The total of refusals and grants of UASC leave.

10Overview of the legal framework
Main legislative acts relevant to asylum procedures, reception conditions, detention and content of protection
Title (EN)Abbreviation

Web Link

Immigration Act 1971

IA 1971http://bit.ly/1JKaigx

Immigration and Asylum Act 1999

IAA 1999

http://bit.ly/1C2MkVQNationality Immigration and Asylum Act 2002

NIAA 2002

http://bit.ly/1Sat0PR

Asylum and Immigration (Treatment of Claimants etc.) Act 2004

AITOCA 2004

http://bit.ly/1Sat3Lt

Borders Citizenship and Immigration Act 2009

BCIA 2009http://bit.ly/1L4XlOC

Immigration Act 2014

IA 2014

http://bit.ly/1cPORMc

Immigration Act 2016

IA 2016

http://bit.ly/2jqhiEv
https://bit.ly/2M7jiFO

Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020

Main implementing decrees and administrative guidelines and regulations relevant to asylum procedures, reception conditions, detention andcontent of protection
Title (EN)Abbreviation

Web Link

Statement of Changes in Immigration Rules HC 395 Part 11

Immigration Rules

http://bit.ly/1FY1JYi

Statement of Changes in Immigration Rules HC 395 Part 11B

Immigration Rules

http://bit.ly/1KKr1zi

Statement of Changes in Immigration Rules HC 395 Part 12

Immigration Rules

http://bit.ly/1MOpgjX

Asylum Seekers (Reception Conditions) Regulations 2005 SI 7

Reception Conditions Regs 2005

http://bit.ly/1L52LsU

Asylum Support Regulations 2000 SI 704

Asylum Support Regs 2000

http://bit.ly/1C2R7GQ

Asylum Support (Amendment) Regulations 2005 SI 11

Asylum Support Regs 2005

http://bit.ly/1Fd2wUj

Transfer for Determination of an Application for International Protection (Detention) (Significant
Risk of Absconding Criteria) Regulations 2017

Dublin Retention Regs 2017

http://bit.ly/2jTZ6Ir

Detention Centre Rules

http://bit.ly/1GBXGY2Detention Service Orders

DSOs

http://bit.ly/1MOpyr7

Asylum Process Guidance and Asylum Policy Instructions

APG/API

http://bit.ly/1BaVIvv

The Detention Centre Rules 2001 SI 238

11

The Tribunal Procedure (First-tier Tribunal) (Immigration andAsylum Chamber) Rules 2014 (S.I. 2014 No.2604 (L.31))

Procedural Rules

http://bit.ly/1eawcw7Statement of Changes in Immigration Rules 2018

Immigration Rules

https://bit.ly/2weGiYf

Statement of Changes in Immigration Rules 2019

Immigration Rules

https://bit.ly/2tkZNQLStatement of Changes to Immigration Rules October 2020

Immigration Rules

https://bit.ly/3iCSM2P

Statement of Changes to Immigration Rules December 2020

Immigration Rules

https://bit.ly/2LVidRp

12

Overview of the main changes since the previous update
The report was previously updated in March 2020.
During 2020 the United Kingdom (UK) government passed legislation and began to reveal its plans for
its Immigration system to be brought in at the end of the EU transition period. Some guidance has beenchanged simply to remove reference to EU law and processes but some are more substantial.
Asylum procedure❖ Impact of COVID-19 on the asylum procedure: Access to registration and the asylum procedureremained open throughout the COVID-19 pandemic including the national lockdowns. In April 2020
six Home Office premises were made available for people to claim asylum without having to travelto the national centre. At the time of writing these remained open but only on a temporary basis.
Substantive interviews were paused between mid-March and the end of June 2020. When they
resumed they mainly take place via video link; the asylum seeker is invited to the usual Home Officepremises but the interviewing officer may be working from home or in a different office. Some faceto-face interviews have resumed.
❖ Extended scope of the admissibility procedure (post-Dublin): The UK is no longer part of the
Dublin regulation and associated processes so the guidance on Dublin III has been removed. A
new instruction was introduced to deal with transfers already in process on 31 December 2020. For
applications after that date, the guidance on inadmissible claims and the screening and routing
guidance were amended in December 2020 to reflect that the UK will change its approach toinadmissibility. The scope of inadmissibility is widened to any country that would agree to takeresponsibility for the person’s asylum claim, even if there is no connection with that country. The
rules allow an inadmissibility decision to be taken on the basis of a person’s earlier presence in orconnection to a safe third country, even if that particular country will not immediately agree to thepersons return.
❖ Lodging an application for international protection: people are not permitted to claim asylum in
UK territorial waters.
Reception❖ Reception conditions: There were some changes to reception conditions due to the restrictions
on movement brought in through the Coronavirus regulations and through announcements by
Ministers and officials. These are detailed below but included a temporary pause of evictions andcessation of asylum support.
❖ Reception capacity: The accommodation estate suffered severe pressure, in part as a result of
the decision not to evict anyone when they received a decision on their claim. The accommodation
providers procured contingency accommodation: some hotels were repurposed for use as Initial
Accommodation and several former military barracks were rapidly repurposed, which has resulted
in media attention. The Independent Chief Inspector of Borders and Immigration released in March
2021 some key findings following the team’s visit to both sites formerly used as military barracks. It
reported issues in management and leadership, mental health problems among residents, animpoverished, run-down and unsuitable environment for long-term accommodation. Cleanliness at
both sites was variable at best and cleaning was made difficult by the age of the buildings. Someareas were filthy.

13❖ People entitled to ‘section 95’ support were not always moved to more independentaccommodation. Late in 2020 the government agreed to pay a small amount of cash to such people
when they were living in full board accommodation.
Detention of asylum seekers❖ Decreased detention: Given the prevalence of Covid-19 cases in detention and the lack ofopportunity for the Home Office to remove people from the UK there were calls throughout the year
to release everyone from immigration detention. Whilst this call was not heeded, i.e. there was nochange in law and policy, the use of detention fell during 2020. Guidance was issued to Immigration
Removal Centres (IRCs) and Short-Term Holding Facilities (STHF) for how to manage detention
during Covid-19 including responding to outbreaks, preventative measures including cohorting andcontrolling of visits.

Content of international protection❖ Registration: Applicants for visas and extensions of permission to stay, including refugees
applying for Indefinite Leave following five years refugee leave, are required to re-register theirbiometrics at a Service and Support Centre run by a private company. Whilst they are required
to provide free appointments to those who make free applications (including refugees) there
are very few centres with free appointments available. The Independent Chief Inspector has
begun an inspection into this issue.

14

Asylum Procedure
A. General
1. Flow chart
On the territory
UK Visas &Immigration

From detention
Home Office

At portUK Border Force

Subsequent application
UK Visas & Immigration

Screening interview
Not treated as
fresh claim

Third-Country Unit
UK Visas &Immigration

UK responsible

Regular procedure
UK Visas &Immigration

Accepted

Refugee status
Humanitarian protection
Discretionary leave
Section 67 leave / Calais
leave (children only)

Judicial review
Upper Tribunal

Safe third country

Under 18
UK Visas &Immigration

Accelerated procedure
Non-Suspensive
Appeal
Detained Fast-Track-

RejectedAppealFirst-Tier Tribunal

Permission

AppealUpper Tribunal(points of law)

Permission

Court of Appeal(points of law on
restricted grounds)

Permission

Supreme Court(points of law &public importance)

Certifiedclearly
unfounded

Treated as
fresh claim

Judicial review
Upper Tribunal

If cannot return,
granted UASC leave152. Types of procedures
Indicators: Types of Procedures
Which types of procedures exist in your country?
❖ Regular procedure:
Yes
No▪ Prioritised examination:10
Yes
No▪ Fast-track processing:11
Yes
No❖ Dublin procedure:
YesNo❖ Admissibility procedure:
YesNo❖ Border procedure:
YesNo❖ Accelerated procedure:12
Yes
No❖ Other:
Are any of the procedures that are foreseen in the law, not being applied in practice?
Yes

No

The UK left the EU on 31 January 2020 but has remained subject to the Dublin Regulation during theTransition Period (TP). The UK issued guidance explaining how to process cases where a Dublin
Regulation responsibility request was made by a Dublin State to the UK prior to the end of the TP at 23h
00 on 31 December 2020 but either no decision has been made in relation to that request or a decision
has been made but the transfer has not taken place before the end of the TP (see Dublin).

3. List of authorities intervening in each stage of the procedureStage of the procedure

Competent authority (EN)Application at the border❖ At the border❖ On the territory
Dublin and safe third country(responsibility assessment)

Home Office UK Border Force (UKBF)
Home Office UK Visas and Immigration (UKVI)Home Office UK Visas and Immigration (UKVI), Third Country Unit

Refugee status determination

Home Office UK Visas and Immigration (UKVI)

Appeal procedures❖ First appeal❖ Second (onward) appeal
Subsequent application(admissibility)

First Tier Tribunal, Immigration and Asylum Chamber (FTT (IAC))
Upper Tribunal, Immigration and Asylum Chamber (UKUT (IAC))
Home Office UK Visas and Immigration (UKVI)

4. Number of staff and nature of the determining authority
Name

Home Office Visas andImmigration (UKVI), Asylum
Casework Directorate

Number of staff

Ministry
responsible

Is there any political interference
possible by the responsible
Minister with the decision making inindividual cases by the determining
authority?

Home Office
597

Yes

No

Source: Home Office. The number of staff is valid as of March 2020.

Responsibility for the asylum process rests with the Secretary of State for the Home Department, who isa government minister (the Home Secretary). Within the Home Office, asylum decision-making is
10
11
12

For applications likely to be well-founded or made by vulnerable applicants.
Accelerating the processing of specific caseloads as part of the regular procedure.
Labelled as “accelerated procedure” in national law.

16

allocated to a department called UK Visas and Immigration (UKVI) and within this to the Asylum Intake
and Casework Directorate. The Home Office is responsible for all aspects of immigration and asylum:
entry, in-country applications for leave to remain, monitoring compliance with immigration conditions, andenforcement including detention and removal.
The operational guidance of the UKVI is available online. It includes inter alia asylum instructions on thedecision-making process, on screening asylum seekers and routing them to regional asylum teams; aswell as on asylum applications involving children or how to make decisions about detention of asylum
seekers. Moreover, country of origin information (COI) reports are also made available online and are
frequently quoted by other countries’ authorities.

5. Short overview of the asylum procedure
A first application for asylum in the UK can be made either on arrival at the border, or at the Asylum
Screening Unit (ASU) in Croydon (South of London), or, where a person is already detained it may bemade from the detention centre. The ASU has been renamed the Asylum Intake Unit (AIU), but this nameis not yet used in all guidance.
The centre remained open throughout the Covid-19 pandemic including the national lockdowns. In April
2020 six Home Office premises were made available for people to claim asylum without having to travelto the national centre. At the time of writing these remained open but only on a temporary basis. 13
First instance procedure
In most cases the application is first screened, which involves an interview in which biometric data istaken, health and family information, details of the route of travel, and the broad outline of the reasons forclaiming asylum. Children making a claim in their own right are not screened; if they are already in thecare of the local authority their claim is registered with the Home Office at a scheduled interview. If theHome Office encounters them first, the child will be subject to a ‘welfare interview’.
On the basis of the screening interview the National Asylum Allocation Unit (NAAU) of the Home Officedecides which route the application will follow. The alternatives are: unaccompanied children – referred
to a specially trained decision maker; accelerated procedure (Detained Fast Track14 or clearly unfoundedwith Non-Suspensive Appeal); safe third country procedure or general casework, which is the regularprocedure. In all cases the procedure deals with both refugee status and subsidiary protection.
Potential safe third country cases are referred to the third country unit of the Home Office, which decides
whether to refuse to consider the claim on the basis that the person can be removed to another country,
including EU Member states (this policy does not apply to claims made from EEA nationals). Such
inadmissibility decisions may be certified in which case appeal is limited and the right to appeal nonsuspensive. The decisions to declare an asylum claim as inadmissible, to remove an appeal right (in thecase of asylum inadmissibility decision certificates) or to make an appeal right exercisable only fromabroad (in the case of a human rights claim certified as clearly unfounded), may be challenged in the UK
only through judicial review. An application made to the Upper Tribunal can only be made with permissionof that tribunal.15 Judicial review proceedings do not consider the merits of a decision, but only whether
the decision maker has approached the matter in the correct way.

13

14
15

Correspondence with stakeholders, reflected on the Refugeehttps://bit.ly/39WSwrC.
Currently suspended but remains in the description of the procedure.
Section 16 Tribunals Courts and Enforcement Act 2007.

Council

website,available

at:

17

The UK operated Detained Fast Track (DFT) procedures where Home Office officials considered that thecase could be decided quickly. Following a series of legal challenges, the DFT policy is currently
suspended.16 The current guidance for applications considered whilst the applicant is detained wasrevised in March 2019.17 The main change is to separate the casework on the asylum claim from the
management of the decision to continue detention; decisions in each are handled by different sections of
the Home Office.
In the regular procedure, decisions are made by a regional office of the Home Office. There is no time
limit for making a first decision and a previous policy to apply service standards in terms of specific lengthsof time has now been abandoned.18 A replacement standard has not been announced. Information for
applicants still states that decisions will usually be made within six months. 19 Reasoned decisions arenormally sent by post, although they may be delivered to the asylum seeker in person when they attend
the Home Office reporting centre.
AppealAppeal is to the First Tier Tribunal (Immigration and Asylum Chamber), an independent judicial bodywhich is part of the unified tribunal structure in the Ministry of Justice. The appeal is suspensive unlesscertified otherwise and must be lodged within 14 days of the asylum refusal being sent. The tribunal
proceedings are broadly adversarial, with the Home Office represented by a presenting officer.
A further appeal on a point of law may be made to the Upper Tribunal with permission of the First Tier
Tribunal, or, if refused, of the Upper Tribunal. Application for permission to appeal must be made within
14 days of deemed receipt of the First Tier Tribunal decision. Asylum appeals before the First Tier andUpper Tribunals are heard by a specialist Immigration and Asylum Chamber.
Appeal from the Upper Tribunal to the Court of Appeal on a point of law may only be made with permissionof the Upper Tribunal or the Court of Appeal. A final appeal to the Supreme Court may only be made ona point of law of public importance, certified by the Court of Appeal or Supreme Court. The Court of Appeal
and Supreme Court are superior courts with a general jurisdiction.
Rules and guidance
Immigration Rules and guidance govern the day-to-day operation of immigration and asylum decisionmaking. Immigration Rules are made by the Home Secretary and are laid before Parliament in aprocedure that does not routinely involve scrutiny. In relation to asylum most of the rules are concernedwith the process rather than the substance of the decision, but they do include, for instance, factors
relevant to credibility. A breach of the rules is grounds for an appeal, although this is rarely relevant inasylum cases.
The Home Office also issues detailed practical guidance for asylum decision-making. Guidance deals
with a wide range of issues including how to conduct interviews, how to apply some legal rules, countryof origin information, and detailed procedural and administrative matters. Guidance is not directly binding,but should be followed, and failure to do so can be grounds for an application for judicial review.

16

17
18

19

House of Commons, Written Statement made by The Minister of State for Immigration (James Brokenshire),
HCWS83, 2 July 2015.
Home Office, Detained Asylum Casework- asylum casework, March 2019, available at https://bit.ly/36UrFtv.
Clarified in parliament in response to a Parliamentary Question, 18 February 2019, available at:https://bit.ly/2NvXkJU .
UK Government, Claim asylum in the UK (Information on government website for people making an asylum
claim), available at: https://bit.ly/2FTbxMO .

18

The Immigration Rules and guidance are available on the government website, www.gov.uk, including
information about countries of origin used in asylum decision-making and guidance for staff on how tomake asylum decisions.

B. Access to the procedure and registration
1. Access to the territory and push backs
Indicators: Access to the Territory
1. Are there any reports (NGO reports, media, testimonies, etc.) of people refused entry at theborder and returned without examination of their protection needs?
YesNo
2. Is there a border monitoring system in place?

Yes

No

❖ If so, who is responsible for border monitoring? National authorities
NGOs
Other
❖ If so, how often is border monitoring carried out?
Frequently Rarely
Never

Juxtaposed border controls in France and Belgium allow the UK to limit access to the territory. On 18
January 2018 the two governments reiterated their commitment to juxtaposed controls in the Sandhurst
Agreement, although no new measures were introduced relating to the operation of those controls. 20
Since 2018, possibly as a result of the increased security measures in the Sandhurst agreement the
number of people attempting to cross the channel in small boats increased, with much media attention.21
The government responded with statements condemning the actions and pledging both to return those
who travel from France and promising to treat such people in the criminal justice system as well as making
agreements with the French government to prevent people from leaving in this manner.22 The Home
Secretary appointed a Clandestine Channel Threat Commander in August 2020.23 In September 2020 a
parliamentary committee opened a new inquiry on the issue of channel crossings and asylum-seeking
routes thought the EU and has taken written and oral evidence.24 At her political party’s annual conference
the Home Secretary pledged to amend the system; giving the message that the mode of arrival is relevantto the way someone’s claim should be dealt with.25 In the autumn the government increased the transfers
under the Dublin Regulation, apparently as the deadline for such transfers was approaching. It began
tweeting this information from the Home Office’s account on a regular basis, usually conflating thetransfers with removal of former offenders.26 The Clandestine Threat Commander stated that this waspart of a deterrent measure.27 These transfers, often using charter flights, were widely criticised,28
particularly as it was revealed that people arriving irregularly from France, primarily in small boats, were
subject to superficial questioning to ascertain little more than their recent journey and failure to identify
20

21

22

23

24
25

26
27
28

Secretary of State for the Home Department, ‘Statement to Parliament’, HCWS415, 19 January 2018,available at: http://bit.ly/2DokzPb.
Skynews, Desperate migrants cheer 'UK' as several boats cross English Channel in one morning, 11 August
2020, available at: https://bit.ly/2KQ5YoJ; BBC, Home Office seeks military help over migrant crossings, 8August 2020, available at: https://bbc.in/3a9E2EM.
Tweet from official Home Office twitter account stating that in 2020 116 arrests were made. See for example:
https://bit.ly/2LUM5xq
Government announcement: Home Secretary appoints small boats commander, August 2020, available at:https://bit.ly/2Nr9F50
Home Affairs Select Committee, at: https://bit.ly/3iMHjhu
Home Secretary’s speech to the Conservative Party conference, October 2020, available at:https://bit.ly/39e7Z7o
Tweets from the Home Office account at: https://bit.ly/3iOJb9t
Dan Mahoney twitter,at: https://bit.ly/2M5s4UOMedia report with Freedom of Information data, Deportation Flights to the EU Have Increased Threefold, As
the UK Rushes to Return Asylum Seekers Before Brexit, 20 November 2020, available at:https://bit.ly/2YdDusc

19vulnerabilities. This practice had to cease when it was challenged legally; the Home Office was ordered
to conduct the interviews according to its regular procedure. 29

2. Registration of the asylum application
Indicators: Registration
1. Are specific time limits laid down in law for making an application?
Yes

No

2. Are specific time limits laid down in law for lodging an application?
❖ If so, what is the time limit for lodging an application?

Yes

No

3. Are registration and lodging distinct stages in the law or in practice?

Yes

No

❖ If so, what is the time limit for making an application?

4. Is the authority with which the application is lodged also the authority responsible for its
examination?
Yes
No
5. Can an application be lodged at embassies, consulates or other external representations?
Yes
No

The Secretary of State for the Home Department is responsible in law for registering asylum
applications.30 This responsibility is carried out by civil servants in the UK Visas and Immigration Section(UKVI) of the Home Office. If a person claims asylum on entry to the UK, immigration officers at the port
have no power to take a decision on the claim, and must refer it to UKVI.31
Where a couple or family claim asylum, the children normally apply as dependants on the claim of one of
their parents. Also one partner may apply as the dependant of the other. This means that the outcome of
their claim will depend upon that of the main applicant. It is policy to inform women separately that they
may claim separately from their partner,32 although there is no recent research or regular auditing to checkthat this is routinely done.
There is no specific time limit for asylum seekers to lodge their application. A claim may be refused if theapplicant ‘fails, without reasonable explanation, to make a prompt and full disclosure of material facts.’33
However, ‘applications for asylum shall be neither rejected nor excluded from examination on the soleground that they have not been made as soon as possible. 34 In practice, where someone is present in the
UK in another capacity, e.g. as a student or worker, and then claims asylum after some years, whether or
not they have overstayed their immigration leave, this may be treated as evidence that they are not infear. Financial support and accommodation can be refused if the person did not claim ‘as soon asreasonably practicable’,35 but not if this would entail a breach of human rights (see Reception
Conditions).36
First applications made from inside the UK must be registered by appointment at the Asylum Intake Unit
(AIU) – formerly Asylum Screening Unit (ASU) – in Croydon in the South East of England unless theasylum seeker is in detention or unless an applicant successfully argues that they cannot be expected to

29
30
31
32

33
34
35
36

Case note and link to judgment Da and Ors, available at: https://bit.ly/3iRG1BF
Section 113 Nationality, Immigration and Asylum Act (NIAA) 2002.
Para 328 Immigration Rules Part 11.
Home Office, Gender issues in the asylum claim, September 2010, available at: http://bit.ly/1CbiHBK, para
7.1; Home Office, Dependants and former Dependants, May 2014, available at: http://bit.ly/2Bjz5G8.
Para 339M Immigration Rules Part 11.
Para 339MA Immigration Rules Part 11.
Section 55 NIAA 2002.
House of Lords, Limbuela v Secretary of State for the Home Department [2005] UKHL 66.

20

travel to the AIU.37 This includes all applications not made at the port of entry, even if only hours after
arrival and where the asylum seeker has left the port. New rules were laid in 2020, coming into force on
31 December 2020, to designate the place of claim. It has been explained that this is to make clear thatclaims cannot be made in territorial waters and that anyone attempting to do so will be brought to the UK
to make their claim.38
There is no government funding for fares to the AIU. Particularly where asylum seekers are newly arrived
in the UK, and may be confused, disoriented and understanding little English, making this journey
successfully is very problematic.
Applicants are required to telephone the AIU before they can apply in person, and give some basic
personal details over the phone, but not details of their asylum claim. They are then given an appointment
to attend and register their claim. In the meantime they are unable to access financial support or
government-provided accommodation. In exceptional circumstances – destitution or extreme vulnerability– the Home Office can accept walk-in applications or offer a same or next-day appointment. In practice,
it is hard to prove that the applicant is destitute or sufficiently vulnerable and applicants are advised thatthey may need to advocate for their need to be seen without an appointment. 39 Temporary facilities wereopened in April 2020 at six additional Home Office premises, to reduce the need for travel during the
pandemic. These remain in place at the time of writing.
There is no rule laying down a maximum period within which an asylum claim must be registered, after
the authority has first been notified of the claim. Appointments for the screening interview are usually fixedwithin one or two weeks after the telephone call, but a 2017 inspection showed that screening officers
struggle to meet their targets.40 A person who claims asylum on being arrested or detained or during
detention is not taken to the AIU but may be screened in detention or at a regional office or even in apolice station. The screening interview in such a case is carried out by an immigration official, not a police
officer, but information disclosed during a police interview under caution may be disclosed to the asylum
authorities.
At the screening interview, fingerprints are taken for comparison with databases including Eurodac andthe route of travel is inquired into. As from 2021 access to Eurodac is limited to transfer requests madeprior to the beginning of 2021. The asylum seeker is asked basic details of their claim. Althoughconfidential space is now provided for interviewing at the Croydon screening unit, there is no supervisedchildcare for this first stage of the process.41 The lack of child care provision at the AIU remains an
obstacle to disclosure of sensitive information such as an experience of torture or rape since children may
be in the same room as the parent while information on the basis of the claim is taken.
The government published new guidance relating to this stage of the process in 2018 and this was revisedin 2020.42 Although details of the asylum claim should not be required at this stage, a decision will bemade as to which kind of procedure the application will be routed through, including inadmissibility (onSafe Third Country grounds) and suitability for detention.
There is no provision for publicly funded legal assistance at the screening interview except forunaccompanied children. Applicants who have applied from within the UK may have had legal advice
37

38
39
40

41

42

Home Office, Asylum Process Guidance: Registering an asylum application in the UK, available at:
http://bit.ly/1BkfXXq, para 7.1.
Statement of changes to Immigration rules December 2020, available at: https://bit.ly/3ccIw00
Right to Remain, Toolkit (information for people making an asylum claim), available at: https://bit.ly/2tnuIfd.
Independent Chief Inspector of Borders and Immigration, An inspection of asylum intake and casework,
November 2017, available at: http://bit.ly/2hZAIBC.
See Joint Committee on Human Rights, Violence against Women and Girls Sixth report of session 2014-15,
HL Paper 106 HC 594, recommendation 37.
Home Office, Asylum Screening and Routing, December 2020 available at: https://bit.ly/2sAbGC4

21

prior to screening, but those applying at a port will not have had that opportunity. The Screening Unit does
not have direct access to appointments for legal representatives, but officers can use a public access partof the government website called ‘Find a Legal Adviser’ which enables a search for contact details of legal
representatives listed by subject matter and by region. The officer can search in the region where theasylum seeker is going to be sent for initial accommodation (see Reception Conditions). There is no
obligation on screening offices to help in finding legal representation.
Registration of unaccompanied children
The policy is to treat unaccompanied children differently and this system is now the norm.43 The policy
guidance, first issued in July 2016 and updated, most recently in December 2020 reflects the practice that
had emerged following a report by the Office of the Children’s Commissioner for England,44 and a
judgment of the Court of Appeal.45 Children encountered prior to them being cared for by a local authority
are interviewed by an immigration officer in a ‘welfare interview’ which is designed to elicit information
about the safety of the child and enable a referral to be made. If the child is already in the care of the local
authority the appointment with an immigration officer is to register the claim. At both types of interview thechild’s biometrics are taken. If under 16, the process requires a responsible adult (independent of theHome Office) to be present for the biometrics.

C. Procedures
1. Regular procedure
1.1. General (scope, time limits)
Indicators: Regular Procedure: General
1. Time limit set in law for the determining authority to make a decision on the asylum application
at first instance:None
2. Are detailed reasons for the rejection at first instance of an asylum application shared with theapplicant in writing?
Yes
No
3. Backlog of pending cases at first instance as of 31 December 2020:

51,321

As mentioned in Number of staff and nature of the determining authority, the Home Office has
responsibility for all aspects of immigration, and is directly responsible for policy development. The
department dealing with the processing of asylum claims is the UK Visas and Immigration (UKVI). Within
the UKVI the directorate dealing with asylum claims is known as the Immigration and Protection
Directorate; Asylum Intake and Casework is within that directorate. Responsibility for border control lies
with the UK Border Force, an executive agency of the Home Office which combines immigration, policing
and customs functions. Subjects covered by the publicly available guidance for case workers include
making an asylum decision.46
There is no enforceable time limit for deciding asylum applications, but the immigration rules say that thedecision must be taken ‘as soon as possible’. 47 The target to deal with ‘straightforward’ applications was
six months, or 182 days, although in February 2019 the government announced that this strict target had

43
44

45
46
47

Home Office, Processing children’s asylum claims, December 2020, available at: http://bit.ly/2jfz4uD.
Adrian Matthews, Office of the Children’s Commissioner, Landing in Dover: The Immigration process
undergone by unaccompanied children arriving in Kent, 2012, available at: http://bit.ly/1MIjwYn.
Court of Appeal, R (AN and FA) v Secretary of State for the Home Department [2012] EWCA Civ 1636.
Home Office, Asylum decision making guidance (asylum instructions), available at: http://bit.ly/1Q7pK5Z.
Para 333A Immigration Rules Part 11.

22been abandoned,48 no replacement has yet been agreed, although discussions between UKVI colleagues
and NGOs took place in early 2019. Statistics were regularly published as to the performance of the UKVI
against the six month target and how many cases were pending after being in the system for more thansix months. At the end of December 2020, it had reached a record level of 36,679 cases.
If a decision is not taken within six months, a caseworker should inform the applicant of the delay. This iscommon in cases designated as ‘non-straightforward’; in 2017 the internal guidance on nonstraightforward cases was contained in a report by the Independent Chief Inspector of Borders andImmigration and much criticism made of the processing of such claims. 49 Criticisms included lack ofattention to a case once it has been designated ‘non-straightforward’ and some reports of designation as‘non-straightforward’ simply on the basis that the 182-day deadline was fast approaching. Most legal
challenges relating to delays, even of unaccompanied minors,50 do not succeed unless it can be shownthat the delay was deliberate, which was the case in one case, TM v Secretary of State for Home
Department, during 2018 where it was found that the case was unlawfully put on hold.51
It is not possible to say how many applicants have been waiting for an initial decision for over a year,
because the published figures are of decisions pending for less than six months – 14,642 at the end of2020 – and for more than six months – 36,679 at the end of 2020. Adding the two figures indicates thatthe total number of pending cases at first instance reached 51,321 as of 31 December 2020.
A 2019 report entitled “Lessons not Learned: the failures of asylum decision-making in the UK” documents
flawed credibility assessments and finds that the current system places an unrealistic and unlawfulevidential burden on asylum applicants. It compiles findings from over 50 publications issued over the lastfifteen years on the quality of decision-making processes in the UK Home Office. Built on an analysis ofover 1,800 asylum cases and 140 interviews, the report charts the consistent failure of the Home Office
to implement recommendations to improve procedures. 52

1.2. Prioritised examination and fast-track processing
There is no established system in the UK for prioritising the cases of people who are particularly vulnerable
or whose case appears at first sight well-founded, although since the abandonment of the six-month target
the Home Office claims that vulnerable clients (undefined publicly) are prioritised.53 The only system forexpediting decisions was the Detained Fast Track, which has been suspended since 2015.

48

49

50

51

52

53

Immigration Minister, Reply to Asylum: Applications: Written question – 220305, 18 February 2019, available
at: https://bit.ly/2VBYXre.
Independent Chief Inspector of Borders and Immigration, An inspection of asylum intake and casework,
November 2017, available at: http://bit.ly/2hZAIBC.
Including in December 2019, see for example: England and Wales High Court (Administrative Court) Decisions,[2019] EWHC 3573 (Admin), Case No: CO/3942/2018, 20 December 2019 available at: https://bit.ly/2FUcxR9.
Upper Tribunal, TM v Secretary of State for Home Department [2018] UKUT 299 (IAC), 23 August 2018,available at https://bit.ly/2SUhU6R.
FFT, Lessons not Learned; The failures of asylum decision-making in the UK, September 2019, available at:https://bit.ly/36ee2UH.
UK Parliament, Answer to written parliamentary question, February 2019, available at: https://bit.ly/2VBYXre.

23

1.3. Personal interview
Indicators: Regular Procedure: Personal Interview
1. Is a personal interview of the asylum seeker in most cases conducted in practice in the regularprocedure?
YesNo❖ If so, are interpreters available in practice, for interviews?
YesNo
2. In the regular procedure, is the interview conducted by the authority responsible for taking thedecision?
Yes
No
3. Are interviews conducted through video conferencing?

Frequently

RarelyNever

4. Can the asylum seeker request the interviewer and the interpreter to be of a specific gender?
YesNo❖ If so, is this applied in practice, for interviews?
Yes
No
Applicants are entitled to a personal interview, 54 and this is standard practice. There is an initial screening
interview before the substantive interview. Most applicants are given a questionnaire to complete andreturn prior to the substantive interview. This is not universal and no additional legal help is afforded tothose who are required to complete it. This form is now available to download.55
Interviews may be dispensed with in defined circumstances including where:• a positive decision can be taken on the basis of the evidence available;• the facts given in the application only raise issues of minimal relevance or which are clearly
improbable or insufficient or designed to frustrate removal;• or the applicant is unfit or unable to be interviewed owing to enduring circumstances beyond his
control.
Where a refused asylum seeker returns to the UK and wishes to claim asylum again, guidance to Home
Office officers is that this should be treated as a further submission. 56 In this case they may be refused
an interview. Applicants under 12 years old are not normally interviewed, though they can be if they arewilling and it is deemed appropriate.57 In summary, it is very rare for an asylum applicant over 12 yearsof age on their first application in the regular procedure not to have an interview.
Personal interviews are usually conducted by the authority responsible for taking the decisions, i.e. by theHome Office caseworkers, although it will not always be the same individual. In 2020 the Home Officetrialled the use of external Agency staff to assist with interviews but no information is publicly available inthis regard.58 Asylum seekers are entitled to have a legal representative with them at the personal
interview, but there is no public funding for this for adult claimants, save in the case of lack of mental
capacity,59 and so few are able to do so in practice. Where there is a legal representative present, theirrole is not to put the asylum seeker’s case, but to ensure that their client is able to participate fully andproperly in the interview.
The guidelines on gender issues require provision of child care so that parents do not have to have theirchildren present while being interviewed about possibly traumatic experiences. 60 This is now formally inplace in every location (other than offices with no interview facility) although different arrangements arein place at each venue and there have been some gaps due to a change of provider or location.
54
55
56
57
58
59
60

Para 339NA Immigration Rules Part 11.
Preliminary Information Form available at: https://bit.ly/3piXiGs
Home Office, Asylum Process Guidance: Routing Asylum Applications, para.3.9.
Home Office, Children’s Asylum Claims, available at http://bit.ly/2Bcs1Le.
Discussions with stakeholder organisations and reported in the media, available at: https://bit.ly/2Yfk4D3
The Civil Legal Aid (Immigration Interviews) (Exceptions) Regulations 2012, available at: http://bit.ly/2BbxjH6.
Home Office, Asylum Policy Instruction, Gender issues in the asylum claim, para 7.1.

24

Videoconferencing
Increasingly, substantive interviews may take place through video conferencing facilities, to accommodate
an interviewing officer or interpreter being located in a different area from the applicant. The guidance has
been revised to reflect this.61 Substantive interviews were paused between mid-March and the end ofJune 2020. When they resumed they mainly take place via video link; the asylum seeker is invited to theusual Home Office premises but the interviewing officer may be working from home or in a different office.
Some face-to-face interviews have resumed.62
Interpretation
Interpreters are required by the Immigration Rules and are provided by the Home Office. There is a codeof conduct for these interpreters, which was revised in 2020,63 but in practice asylum seekers are unawareof it and of what to expect from their interpreter unless they have a legal adviser who has informed them
about this beforehand. Since inconsistencies on matters of detail in the asylum interview are a common
reason for refusing asylum, problems with interpreting can have a significant impact. If the asylum seeker
has a representative present, best practice, and guidance issued to Home Office caseworkers, in the caseof interpreting problems, suggests that the representative is permitted to interrupt the interview to raise
the problem.64 Home Office caseworkers are not always familiar with this, and it can be difficult for
problems of interpretation to be raised and rectified at the time they occur. Asylum seekers are allowed
to take an interpreter of their own choosing to the interview, but there is no public funding for this in most
adult cases, so taking one's own interpreter is unusual. The Independent Chief Inspector of Borders andImmigration published its report into the use of language services, including interpreters, in 2020. 65 It
recommends that the Home Office should:❖ Appoint a Borders, Immigration and Citizenship System (BICS) ‘owner’ for language services,with accountability across BICS for the formulation and implementation of policies andprocesses, collection of data and performance monitoring, planning and delivery of the required
resources and capabilities, risk management, internal and external communications, monitoringand management of contracted out services, and stakeholder engagement.
❖ Create, publish and resource a comprehensive programme of improvements to the provision anduse of language services, with clear timelines and deliverables. This should include theidentification of urgent tasks and ‘easy wins’ as well as longer-term projects.
❖ Ensure that the risks and issues in relation to language services are fully and accurately reflectedin the Risk Registers, and that mitigations and actions are regularly reviewed. 66
Normal good practice is that asylum seekers are asked at the screening interview whether they wish to
be interviewed by a man or a woman, and the policy and practice is to respect this preference, subject toavailability of staff.67 This policy also applies to interpreters although no monitoring is conducted relating
to adherence to this policy.
Recording and transcript

61
62
63

64
65

66

67

Home Office, Asylum Policy Instruction Asylum Interviews, 2019, available at: https://bit.ly/36dLJps.
The resumption of substantive asylum interviews, Home Office, August 2020, available at: https://bit.ly/3cfexVf
Home Office, Asylum Policy Instruction: Asylum Interviews Section 8: Interpreters, available at:https://bit.ly/36dLJps.
Interpreters code of conduct, available at: https://bit.ly/3t0vYig
Inspection report on the use of language services in the asylum process Independent Chief Inspector of
Borders and Immigration 2020, available at: https://bit.ly/2LY8zh2
Inspection report on the use of language services in the asylum process Independent Chief Inspector of
Borders and Immigration 2020, available at: https://bit.ly/2LY8zh2
Home Office, Asylum Policy Instruction, Gender issues in the asylum claim, para 7.1, available at:
http://bit.ly/1CbiHBK.

25

Audio-recording of interviews is permitted and should be arranged as a matter of routine where theequipment is available, unless a request has been made in advance by the asylum seeker for the interview
not to be recorded. The recording must be provided to the applicant after the interview. Five working days
are allowed to make comments or corrections before the first instance decision is taken. In 2020 the NGO
Freedom From Torture published research based on interview transcripts and testimonies form survivorsof torture and their experiences of being interviewed in relation to their asylum claim. The criticisms andrecommendations have wider applicability than the subject of the research. 68

1.4. Appeal
Indicators: Regular Procedure: Appeal
1. Does the law provide for an appeal against the first instance decision in the regular procedure?
YesNo❖ If yes, is it
Judicial
Administrative❖ If yes, is it suspensive
Yes
Some grounds
No
2. Average processing time for the appeal body to make a decision:

40 weeks69

1.4.1. Appeal to the First Tier Tribunal
There is a right to appeal against an initial asylum decision under the regular procedure. Appeals are
made to the Immigration and Asylum Chamber of the First Tier Tribunal (FTT (IAC)) on both facts andlaw. This is a judicial body, composed of immigration judges and sometimes non-legal members. The
Tribunal can assess and make findings of fact on the basis of the evidence presented including evidence,
which was not before the Home Office decision-maker. The time limit for appealing is 14 days from thedate that the Home Office ‘sent’ the decision.70 Lodging an appeal suspends removal from the UK, unlessthe case is certified as ‘clearly unfounded’.
Given the limited availability of publicly funded representation in practice, these time limits are short andasylum seekers may resort to sending in the appeal forms without legal representation. The blank appeal
forms which also inform asylum seekers about their right to appeal are sent by the Home Office with therefusal letter, however, administrative mistakes made by an unrepresented asylum seeker in lodging anappeal can result in the appeal not being accepted by the Tribunal office.
A fee of £140 (€158) is required for an oral hearing of an asylum appeal in the regular procedure.
Applicants do not need to pay if they are receiving asylum support (see Reception Conditions) or if they
have public funding to be represented. 71 It is also possible to apply to have the fee waived, and destituteasylum seekers without asylum support would qualify for this, but may not have the advice or information
to make the application. In practice most asylum seekers are not liable to pay the fee because most arereceiving asylum support at this stage of the process.
The complexity of the law and procedure and the barrier of language make it extremely difficult for asylum
seekers to represent themselves. Several research reports refer to the variance in quality and availabilityof legal advice and this area.72 Tribunal rules require all evidence to be translated into English where
68

69
70
71

72

Beyond Belief; How the Home Office fails survivors of torture at the asylum interview, Freedom from Torture
2020, available at: https://bit.ly/3tGxJRk
For the period July to September 2020, appeals relating to asylum/protection, see: https://bit.ly/389ossO
Rule 19 The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014.
HM Courts and Tribunals Service, Immigration and Appeals Tribunal Fees Guidance, available at:
http://bit.ly/1d19Fk0.
Refugee Action and NACCOM, Tipping the Scales, 2018, available at: https://bit.ly/30LaMiM; Dr Jo Wilding,Droughts and Deserts, 2019, available at: https://bit.ly/2NGOGIY

26

relevant and sent to all parties in advance of the hearing. 73 It is difficult for an unrepresented asylum
seeker to know what is required, or to get access to resources and advice to prepare papers for a hearing.
The BBC used Freedom of Information Act requests to reveal the variance in appeal success rates byhearing centre,74 although other factors may influence the outcome of appeals.
Research by Asylum Aid and the National Centre for Social Research in 2017 looked at the way womenexperienced the asylum appeals process, what are the factors contributing to successful cases at appeal
and how the guidance for Immigration Judges is implemented in practice. 75 In 2020 a report was publishedfollowing a research project involving observations and interviews with appellants, representatives and,staff. It concluded that asylum seekers at their appeal hearings are hampered by six factors; confusion,anxiety, mistrust, disrespect, communication difficulties and distraction and 34 recommendations are
made.76
Asylum seekers give evidence in person at the appeal hearing, and the Tribunal provides interpreters onrequest. Hearings are public. Decisions are in theory public documents, but decisions of the FTT (IAC)
are not usually published.

1.4.2. Onward appeal to the Upper Tribunal
There is an onward appeal to the Immigration and Asylum Chamber of the Upper Tribunal (UT) (IAC) ona point of law. This is with permission of the FTT (IAC). Application must be made within 14 days ofreceiving the refusal.77 If the FTT (IAC) refuses permission, an application for permission may be madeto the UT (IAC). If this is refused, there is no appeal, but application may be made to the High Court, orin Scotland the Court of Session, for permission to apply for judicial review within a specially shortened
time limit of 16 calendar days (as compared with three months for a usual judicial review application).
Permission will only be granted on grounds:
1. that there is an arguable case, which has a reasonable prospect of success, that both the decisionof the UT (IAC) refusing permission to appeal and the decision of the FTT (IAC) against which
permission to appeal was sought are wrong in law; and2. that either:a. the claim raises an important point of principle or practice; orb. that there is some other compelling reason to hear it. 78
Lodging an appeal or an application for permission to appeal against an asylum refusal suspends removalfrom the UK, unless the case has been certified under Section 94 Nationality, Immigration and Asylum
Act (NIAA) as clearly unfounded.79
If permission is granted to appeal to the UT (IAC), the UT (IAC)’s decision may be appealed again withpermission on the same limited grounds on a point of law only to the Court of Appeal. In rare cases
permission may be given for a final appeal to the Supreme Court where the Court of Appeal or Supreme
Court certifies that the case concerns a question of law, which is of public importance.
73
74
75

76

77
78
79

Rule 12 The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014.
BBC, ‘Asylum seekers face appeals “lottery”’, 29 November 2017, available at: http://bbc.in/2AiFm66.
Asylum Aid and NatCen, Through her eyes; enabling women’s best evidence in asylum appeals, 2017,
available at: http://bit.ly/2BpN0KN.
Experiencing Asylum Appeal Hearings: 34 ways to improve access to justice at the First Tier Tribunal,
University of Exeter and Public Law Project 2020, available at: https://bit.ly/3qWJO3h
Rule 33 Procedure Rules.
Rule 54.7A Civil Procedure Rules.
Home Office, Section 94 guidance, 12 April 2017, available at: http://bit.ly/2DfyJlK.

27

Although the asylum decision is appealable in the regular procedure, there are many decisions affecting
asylum seekers against which there is no right of appeal: e.g. a decision to detain, or giving directions forremoval, or the refusal to treat further submissions as a fresh claim (subsequent asylum application), ora decision to remove to a safe third country. Where there is no right to appeal the only recourse is to
judicial review. This is a procedure which does not examine the merits of the complaint, but only whether
the decision maker has acted correctly, for instance by taking into account relevant considerations andnot being influenced by irrelevant considerations.
Where the only remedy is judicial review, this is only available with the permission of the reviewing court.
Judicial review is now in the Upper Tribunal’s jurisdiction.

1.5. Legal assistance
Indicators: Regular Procedure: Legal Assistance
1. Do asylum seekers have access to free legal assistance at first instance in practice?
Yes
With difficultyNo❖ Does free legal assistance cover:Representation in interview
Legal advice
2. Do asylum seekers have access to free legal assistance on appeal against a negative decisionin practice?
Yes
With difficultyNo❖ Does free legal assistance coverRepresentation in courts
Legal advice
Free legal assistance is available to asylum seekers as part of the state funded scheme of free legal aid
in restricted areas of legal practice for people who do not have sufficient resources. Although the
Immigration Rules provide that asylum seekers shall be allowed ‘an effective opportunity’ to obtain legal
advice,80 access to this is not guaranteed. Statistics on applications for legal aid at first instance were notmade available by the Home Office in response to parliamentary questions.81
Legal aid is available for appeals, subject to a means test and in England and Wales a merits test, andavailability of a representative. This means some appellants appear unrepresented.82
Few asylum seekers obtain advice before their screening interview.
In England and Wales, legal aid for legal advice and representation for the initial stage of an asylum
case, from claim, through interview up to decision, is paid as a fixed fee of £413 (€477).83 Exceptions
include unaccompanied children applicants, and where the representative can evidence that they haveundertaken work that equates to over 3 times the value of the fixed fee. An hourly rate can then be paid
if the Legal Aid Agency, which assesses the claim for costs, accepts that 3 times the level of work wasdone and warranted.84
The low fixed fee and the significant jump to achieve an hourly rate both put pressure on conscientious
representatives. The low fixed fee at these pre-appeal stages also makes it difficult to conduct a thoroughexamination of a complex case. The grant of legal aid for appeal depends on this assessment by thelawyer, and the award of legal aid contracts by the Legal Aid Agency depends on performance indicators
including success at appeals. While dedicated lawyers continue to do high quality work, the system
80
81
82

83
84

Para 333B Immigration Rules Part 11.
Wendy Morton answer to written question on Legal Aid Scheme, available at https://bit.ly/2InOdbp.
UK government, Guidance Unrepresented appellants - Immigration and Asylum Tribunal, available at:https://bit.ly/38sKSTE
Schedule 1, Table 4(a) Civil Legal Aid (Remuneration) Regulations 2013, available at: http://bit.ly/1fiODPA.
Immigration Specification to the 2013 Standard Civil Contract, available at: http://bit.ly/1QFm9jO.

28

operates to discourage less scrupulous lawyers from granting legal aid at appeal and makes it difficult for
quality representatives to stay in business with high standards. 85
Legal assistance is not provided at the AIU or at the port of entry. Free legal assistance (funded as
described above) is limited to advising the asylum seeker before and immediately after their asylum
interview. This may include making additional written representations to the Home Office, which as amatter of usual policy are only allowed within five days after the interview. With some exceptions (including
unaccompanied children and people who lack capacity), there is no public funding for a legal
representative to attend the asylum interview. 86
The legal aid fixed fee for appeals was changed in 2020; 87 whilst it was raised lawyers were required to
conduct more work and the complex fee structure meant that in fact lawyers lost money in the new
system.88 Following a successful challenge,89 the new regulations were revoked and until a fullconsultation is completed, the rates have been amended. 90
The pressures described above do not apply in Scotland, where fees are not fixed, and there is no merits
test for representing at a first appeal. For an appeal to the UT (IAC) where the FTT (IAC) has not given
permission to appeal, a lawyer in Scotland must assess the merits of the case, and payment may bedisallowed if the Scottish Legal Aid Board takes a different view.
The amount that is payable per case in England and Wales has been reduced steadily over a period ofyears. The Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 took immigration
advice out of scope for all except asylum and trafficking. A legal challenge in regulation to children in
immigration proceedings was settled before it reached the court and the law in relation to this was changed
as a consequence; the Immigration Rules were changed to this effect on 25 th October 2019.91 The
difficulties and constrictions applied by the system of contracted providers by region, based on historical
data, result in a general feeling that there is insufficient supply to meet the demand. The ‘market’ approachto the provision of legally aided immigration advice has been criticised in a key academic study. 92
In 2014 legal aid was abolished for civil court cases where the merits are assessed as ‘borderline’, i.e.
over 50% but not more than 60%.93 Further cuts to legal aid in 2014 entailed that legal aid would not be
granted for judicial review applications unless the court granted permission for the judicial review to go
ahead. This meant that solicitors must do the preparatory work including the application at their own
financial risk. Given that success in judicial review is anyway difficult to achieve, it is increasingly difficult
for asylum seekers to find a lawyer who will apply for judicial review. Following a post-implementation
review published in 2019, the government considers that this change has reached its policy aim of
reducing unmeritorious judicial reviews, although acknowledges that this change was not the only factor. 94
85

86

87

88
89
90

91

92
93

94

Julie Gibbs and Deri Hughes-Roberts, Justice at Risk: Quality and Value for Money in Asylum Legal Aid,
Runnymede Trust, 2012, and see Christel Querton, I feel like as a woman I’m not welcome: a gender analysisof UK law, policy and practice, Asylum Aid 2012.
Legal Aid, Sentencing and Punishment of Offenders Act 2012, Schedule 1 Part 1 (30), available at:
http://bit.ly/1J5vmy0.
Civil Legal Aid (Remuneration) (Amendment) (Coronavirus) regulations 2020, available at:https://bit.ly/36ehce7
Government criticised over new fixed fee, Law Society Gazette , May 2020, available at: https://bit.ly/2YhLesU
Statement by legal team following consent order between the parties.
Changes to fee payments for immigration work; Government announcement, 7 October 2020, available at:https://bit.ly/3beIFzn
Government announcement Separated children given better access to legal aid 25th October 2019, available
at: https://bit.ly/2sJIrN3.
Droughts and deserts; a report on the immigration legal aid market, Dr Jo Wilding 2019 https://bit.ly/3t0yDIIThe Civil Legal Aid (Merits Criteria), (Amendment) Regulations 2014 No. 131, available at:
http://bit.ly/1epJg0S.
Ministry of Justice, Post-implementation review of Legal Aid, Sentencing and Punishment of Offenders Act
2012 (LASPO), February 2019, available at: https://bit.ly/2UoIK8v.

29

2. Dublin
The UK left the EU on 31 January 2020 but has remained subject to the Dublin Regulation during theTransition Period (TP). The UK issued guidance explaining how to process cases where a Dublin
Regulation responsibility request was made by a Dublin State to the UK prior to the end of the TP at 23h
00 on 31 December 2020 but either no decision has been made in relation to that request or a decision
has been made but the transfer has not taken place before the end of the TP.
Cases introduced after the Transition period can be treated under the new inadmissibility rules on safe
third countries. “The rules allow an inadmissibility decision to be taken on the basis of a person’s earlier
presence in or connection to a safe third country, even if that particular country will not immediately agree
to the persons return.” The guidance on inadmissibility of asylum claims explains that: “the safe countries
most likely to be identified in asylum claims will be the UK’s near neighbours in the EU. Other EU member
states, the wider EEA countries (Iceland, Liechtenstein and Norway) and Switzerland may also be
identified, as may country such as the United States of America, Canada, Australia and New Zealand”(see further under Admissibility procedure).

2.1. General
Dublin statistics: 2020
Outgoing procedure

Incoming procedure

Requests

Transfers

Requests

Transfers

Total

8,502

105

Total

2,331

882

Germany

2,084

43

Greece1,146551

France1,197

25France

461

90

Spain

268

10

Ireland228

17

Source: Home Office, available at: https://bit.ly/39sFbWD.

In February 2018, the government published up-to-date Dublin statistics for the first time, having
previously referred enquirers to Eurostat figures, even as recently as in responses to parliamentaryquestions in January 2018.95 These statistics are produced annually.
The UK issued outgoing 8,502 requests and received 2,331on the following grounds in 2020:
Outgoing and incoming Dublin requests by criterion: 2020
Dublin III Regulation criterion

Outgoing

Incoming

Family provisions: Articles 8-11

106

933

Regular entry: Articles 12 and 14

72

184

Irregular entry: Article 13824

9

Dependent persons: Article 16

9

Humanitarian clause: Article 17(2)2724“Take back”: Articles 18 and 20(5)

7,498

472

Total outgoing and incoming requests

8,502

2,331

95

See e.g. Minister for Immigration, Reply, Asylum: Written question, 121419, 11 January 2018, available at:
http://bit.ly/2FDVnGs.

30

Source: Home Office.

The Home Office finally issued guidance in November 2017 on the operation of the Dublin III Regulation,96
following a consultation period with key stakeholders in September 2016. It has been amended several
times during 2020 initially to reflect changes in approach to DNA evidence, subsequently to change
guidance relating to the transfer of unaccompanied children.97 As the UK is no longer part of the Dublin
Regulation new guidance was issued to inform Home Office staff how to deal with the remaining requests
made prior to 31 December 2020.98
The majority of requests to third countries were based on Eurodac hits, as these are objective and easy
to identify for the authorities. If the applicant wished to be transferred out of the UK, a referral was madeto the Third Country Unit (TCU) and the Home Office would not normally object. However, if the applicant
wished to have his or her claim substantively considered in the UK, it was the obligation of the applicant
or their legal representative to submit documentary evidence such as status papers, passports, asylum
interview records etc. of family members, as well as representations explaining why the UK should
consider the claim.
The family criteria
The Upper Tribunal detailed in the case of MS the state’s duty to “act reasonably” and to take “reasonable
steps” in discharging the duty to investigate the basis of a “take charge” request sent by another country.
This includes the option of DNA testing in the sending country or, if not, in the UK. 99
DNA tests were not routinely carried out. This would only be necessary if there is no other way to prove
relationship. If the applicant fails to declare he or she has family members in the UK at an early stage,
normally the Home Office attempt to proceed with removal. However, a judicial review challenge can bebrought if there is a good reason for the lack of disclosure; for example the applicant only found out later
the whereabouts of his family.
With regard to Article 9, the Upper Tribunal clarified in April 2018 that a family member acquiring
citizenship in the UK after having received international protection remains a “family member who is abeneficiary of international protection” for the purposes of the Dublin III Regulation.100
Statistics show that in 2020, 724 requests were made for the UK to take in an applicant under thehumanitarian clause, while 321 people were transferred under this article in the same period. Tworequests but no transfers were made by the UK under that clause.
In addition to the rise in transfers out of the UK some unaccompanied children were reunited with family
members. The government drew attention to this101 during the same period as publicising the returns ofasylum seekers under the Dublin Regulation.
During 2020 there were many efforts by campaigners to force the government to negotiate ‘replacements’for the family unity clauses of Dublin III. The UK government published draft agreements, which were notreciprocated by the EU. The two proposals related to general returns agreement and a specific measure
to allow unaccompanied children to unite with family members. The UK has indicated it will attempt to
96
97
98

99
100
101

Home Office, Dublin III Regulation, April 2019, available at: https://bit.ly/2wBbuE0.
Dublin Regulation guidance v 4 August 2020, available at: https://bit.ly/3ojHQZhRequests made to the UK under the Dublin III Regulation prior to the end of the transition period, available at:https://bit.ly/39hMp1SUpper Tribunal, MS v Secretary of State for the Home Department [2019] UKUT 9 (IAC), 19 July 2018.
Upper Tribunal, HA v Secretary of State for the Home Department [2018] UKUT 297 (IAC), 19 April 2018.
Government news story https://bit.ly/2Yd1U53

31

negotiate returns agreements with individual EU member states.102 The revised inadmissibility guidanceadvises that if a person can be removed to another country, including a Dublin III state, the claim should
be refused as inadmissible in the UK.
During the passage of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020,103
the government agreed to publish the existing routes for family reunification in the UK. This was fulfilled
on 31st December with a document outlining existing routes (most not specific to refugee or people
seeking asylum).104The government also committed to a review of safe and legal routes to the UK; in
February 2021 it fulfilled its obligation to update parliament with routes available to reunite families, which
was a reiteration of the December 2020 document.105

2.2. Procedure
Indicators: Dublin: Procedure
1. Is the Dublin procedure applied by the authority responsible for examining asylum applications?
YesNo
2. On average, how long does a transfer take after the responsible Member State has accepted
responsibility?
Not available
UK legislation provides for different lists of ‘safe third countries’ to which an asylum seeker can be returned
without their asylum claim being considered in the UK. They are called ‘third’ countries because they are
not the UK and not the country of origin.
The First List is set out in the statute and consists of EU member states (except Croatia), Iceland, Norway
and Switzerland. There is no reference to the Dublin III Regulation, but the legislation states that the listed
countries are to be treated as places in which a person will not be at risk of persecution contrary to the
Refugee Convention, and from which they will not be sent in breach of the Refugee Convention orEuropean Convention on Human Rights (ECHR).106
Whether the person can be removed to one of these countries is determined in the first instance bywhether they can be shown to have travelled through that country. During 2020 the UK had access to theEurodac system but from 2021 access is limited to transfer requests made prior to the beginning of 2021.
Enquiries as to the route of travel are also a routine part of the screening process in all cases. The asylum
seeker's account of their route of travel and other evidence of the person having lived in or travelled
through a country will influence whether the application is referred to the Third Country Unit 107.
On the Second List, see the section on Admissibility Procedure.
Individualised guarantees
The UK did not formally recognise any requirement to request individual guarantees of adequate reception
facilities. The judgment of the High Court in MS [2015] EWHC 1095 (Admin),108 referring to the ECtHR
case of Tarakhel, maintained that there was no such general requirement where children were not
involved, even where applicants have experienced trauma and have mental health difficulties. This did
102

103
104
105
106
107
108

A summary of these proposals and of commitments made to review the routes available to families is provided
in the House of Commons library note.
Legislation available at: https://bit.ly/3oiCJsf
Overview of family reunion options in the Immigration Rules: see: https://bit.ly/36fdReH
Statement on gov.uk, available at: https://bit.ly/3qqmp9P
Schedule 3 Part 2, First List AITOCA.
Inadmissibility guidance December 2020, see: https://bit.ly/3qUdPki
High Court, R (NA) v Secretary of State for the Home Department [2015] EWHC 1095 (Admin), 22 April 2015,
available at: http://bit.ly/2jqTmFD.

32

not mean that guarantees are never sought in individual cases, since officers in UKVI may do so, but it
meant that the UK did not seek guarantees as a matter of routine practice or policy.
The Court of Appeal judgment on the case, referred to as NA (Sudan),109 broadly maintained this position.
It decided that Tarakhel did not extend to other vulnerable persons and was only ever intended to apply
to families with children. And the two appellants in NA (Sudan) were extremely vulnerable, suffering a
range of health problems including severe depressive disorder, and the risk of suicide, with one appellant
suffering a history of rape and sexual abuse in Italy.
In coming to this conclusion, the Court relied on the decision of several cases decided since Tarakhel
involving individuals suffering from serious PTSD, health problems, and the risk of suicide. In some,children were involved, and it decided that general, rather than specific, assurances were sufficient,
representing a further rollback of Tarakhel.
In line with the Supreme Court’s ruling in EM (Eritrea),110 the Court of Appeal reaffirmed the fundamental
question as being whether, in assessing all the circumstances of an individual’s case, substantial grounds
have been shown for believing that the person concerned faces a real risk of being subjected to treatment
meeting the Article 3 threshold. But the starting point is always going to be the presumption, labelled asa ‘significant evidential presumption’ by the Court, that Member States will comply with their obligations.111
The Court decided in the case of Italy that the presumption was not rebutted, taking the opportunity toremind us all that: ‘the situation in Italy is in no way comparable to that in Greece and that a general ban
on returns to Italy cannot be justified’.112
Transfers
Once the EU Member State or Schengen Associated State took or was deemed to take responsibility for
examining the asylum application on the basis of the Dublin III Regulation, the claim was refused as
inadmissible on third country grounds without its substance being considered in the UK.
Regulations laid in 2017 provided a list of criteria to consider prior to deciding to detain but give wide
discretion e.g. whether there are reasonable grounds to believe that a person is unlikely to return
voluntarily to any other participating State determined to be responsible for consideration of theirapplication for international protection under the Dublin III Regulation.113
The Home Office was not able to provide figures on the average duration of the Dublin procedure in recent
parliamentary questions.114. Anecdotal evidence from ngos and legal reps is that particularly during theperiod September to November transfers of people who had arrived in small boats were processed very
quickly after arrival, with minimal checks conducted to ascertain whether or not transfer is appropriate.

109

110

111

112
113

114

Court of Appeal, NA (Sudan) v Secretary of State for the Home Department [2016] EWCA Civ 1060, 1
November 2016, available at: http://bit.ly/2kLNdAY.
Supreme Court, EM (Eritrea) v Secretary of State for the Home Department [2014] UKSC 12, 19 February
2014, available at: http://bit.ly/1dM83eJ.
Court of Appeal, NA (Sudan) v Secretary of State for the Home Department [2016] EWCA Civ 1060, paras
107 and 156.
Ibid, para 110.
UK Legislation, The transfer for determination of an application for international protection (detention)
regulations 2017, available at: https://bit.ly/2RG35q2.
Minister for Immigration, Reply, Asylum: EU Countries: Written question, 202853, 25 January 2019, available
at: https://bit.ly/2S0vCt3.

33

2.3. Personal interview
Indicators: Dublin: Personal Interview
Same as regular procedure
1. Is a specific personal interview of the asylum seeker in most cases conducted in practice in the
Dublin procedure?
Yes
No
No personal interview took place specifically relating to the Dublin procedure.
Information obtained in the screening interview, particularly about route of travel, is used to make adecision that the case should be referred to the Third Country Unit. The standard information read out
from the screening form includes the following:“It is possible that the United Kingdom may not be the state responsible for considering yourasylum application. You will be informed of any application or decision to transfer your case toanother country.”
The screening process was criticised and legally challenged in 2020 after it was revealed that somequestions were not being asked of asylum seekers; the omitted questions related to the identification ofcharacteristics that may have resulted in them not being transferred under the Dublin Regulation. An orderin relation to the challenge forced the Home Office to ensure these questions would be asked. 115

2.4. Appeal
Indicators: Dublin: Appeal
Same as regular procedure
1. Does the law provide for an appeal against the decision in the Dublin procedure?
Yes

No

There was no appeal on asylum grounds against a decision that a person may be returned to anothercountry on the First List – i.e. through the Dublin III Regulation, and no appeal against a decision in the
Dublin procedure could be made on the grounds that the asylum seeker would be sent to another country
in breach of their rights under the ECHR or in breach of the Refugee Convention. 116 The one ground of
appeal available against a Dublin removal (i.e. a removal to a First List country) was that the person's
ECHR rights would be breached in the receiving country.117 A human rights appeal of this kind may only
be brought in the UK if the Home Office does not certify that the human rights claim is clearly unfounded.
The Home Office, however, is required to certify that it is clearly unfounded unless there is evidence tothe contrary.118 The two Dublin states that fall outside of the First List are Croatia and Liechtenstein; inthese cases if an appeal is made under the ECHR as outlined above, the case must be discussed with asenior caseworker to establish if it is appropriate to certify as clearly unfounded.119
In cases where an appeal is available, an out of country appeal must be brought within 28 calendar days
(where the human rights appeal is certified clearly unfounded); an in-country appeal (where the humanrights appeal is not certified) must be brought within 14 days. There are very few appeals of this kind.
Normally any challenge to removal based on breach of human rights in the receiving country is made by
judicial review application challenging the Secretary of State’s certificate that the human rights claim is
115
116
117
118
119

DA ad Ors v Secretary of State for the Home Department, 13 November 2020, available at: https://bit.ly/3ol8IIq
Schedule 3, Part 2 AITOCA.
Para 5, Schedule 3 Part 2 AITOCA.
Ibid.
Home Office, Dublin III Regulation Guidance, available at: http://bit.ly/2rmazo9.

34

unfounded. The result is that the only suspensive appeal against a Dublin removal would be the rare caseof a human rights claim, which is not certified by the Home Office as clearly unfounded. Otherwise, thedecision to remove under the Dublin Regulation can only be challenged by judicial review.
On the Second List, see section on Admissibility Procedure.
With regard to judicial review against the refusal to accept a “take charge” request, the Upper Tribunal
held in 2018 that the principle of fairness requires the applicant to be given an opportunity to know the‘gist’ of what is submitted against him or her in respect of the application of the Dublin criteria. Therefore
in judicial review against the rejection of a “take charge” request by the UK, it is for the court or tribunal todecide whether the Dublin criteria have been correctly applied. 120

2.5. Legal assistance
Indicators: Dublin: Legal AssistanceSame as regular procedure
1. Do asylum seekers have access to free legal assistance at first instance in practice?
Yes
With difficultyNo❖ Does free legal assistance cover:Representation in interview
Legal advice
2. Do asylum seekers have access to free legal assistance in judicial review against a Dublin
decision in practice? 121
YesWith difficultyNo❖ Does free legal assistance coverRepresentation in courts
Legal advice
Before a Dublin certificate was issued, an asylum seeker had the same opportunity as any other asylum
seeker to obtain access to free legal representation. They were affected by the limited resources and thelack of incentive for legal representatives to advise before the screening interview (see Regular
Procedure: Legal Assistance). Once the Dublin decision was issued they were likely to be detained. Ifthey already had a legal representative that person could continue to represent them. If not, they could,
again subject to resources, obtain access to representation in detention (see section on Legal Assistancefor Review of Detention). There were no special restrictions on legal aid in Dublin cases (see section on
Regular Procedure: Legal Assistance) and judicial review was funded by legal aid, although only if themerits were considered strong, and if the Court granted permission for the case to go ahead. In practicethat is likely to restrict any legal challenge.

2.6. Suspension of transfers
Indicators: Dublin: Suspension of Transfers
1. Are Dublin transfers systematically suspended as a matter of policy or jurisprudence to one ormore countries?
Yes
No❖ If yes, to which country or countries?
Greece, Hungary

Greece: Transfers to Greece were generally suspended as a matter of practice following the European
Court on Human Rights (ECtHR) judgment in M.S.S. v. Belgium and Greece,122 and in anticipation of the
Court of Justice of the European Union (CJEU) decision in NS.123 This was an executive decision applying
120
121
122
123

Upper Tribunal, MS v Secretary of State for the Home Department [2019] UKUT 9 (IAC), 19 July 2018.
The ticked box concerning appeals refers to judicial review since there is no appeal.
ECtHR, M.S.S. v Belgium and Greece, Application No. 30696/09, Judgment of 21 January 2011.
The Parliamentary Under-Secretary of State, Home Office House of Lords, 25 Oct 2011: Column WA121,
available at: http://bit.ly/1LkBdg0.

35

to all potential transfers to Greece, and is kept under review in conjunction with the European Asylum
Support Office (EASO) and UNHCR.124 However, decisions can still be made to return asylum seekers to
Greece under the Dublin procedure, even if they are not implemented. There is no automatic legal
mechanism to prevent such returns actually being carried out. Challenges must be made in individual
cases, and practitioners say that some returns to Greece have been made since the decisions in M.S.S.
v. Belgium and Greece.
Hungary: In the case of Ibrahimi and Abasi,125 two Iranians challenged their removal to Hungary on thebasis that they were at risk of refoulement, referred to in the case as ‘chain refoulement’ i.e. along a
succession of unsafe countries including Serbia, Macedonia, Greece and Turkey. The High Court, in its
ruling of 5 August 2016, referred to AIDA and UNHCR reports in its judgment and criticised the UK
government for its “broad and sweeping generalisations about presumptions of compliance”.126 Transfers
are still being suspended.
Italy: In the NA (Sudan) ruling of 1 November 2016, the Court of Appeal upheld a transfer to Italy on thebasis that no risk of treatment contrary to Article 3 ECHR was demonstrated. The High Court has also
dismissed appeals challenging transfers to Italy earlier in the year. 127 In SM, however, the Upper Tribunal
found that the circumstances before it, relating to a vulnerable person, were “markedly different” fromestablished High Court case law on transfers to Italy. 128
Bulgaria: The High Court found in Khaled (No 1) that the deficiencies of the Bulgarian asylum systemwere not such as to warrant a suspension of Dublin transfers.129 In its assessment, the Court took into
consideration elements such as the fact that UNHCR has not issued any position relating to returns to
Bulgaria.130 Despite the Court of Appeal’s dismissal of the appeal in HK (Iraq),131 all Dublin transfers to
Bulgaria were suspended until 15 July 2018, stayed behind a case known as JA (Iraq), heard in June
2018. Transfers have not resumed since then.
Austria: In Abdulkadir and Mohammed, the High Court decided on 28 June 2016 that a transfer to Austria
was lawful, on the ground that there was no evidence of ‘systemic failure’ in the Austrian legal system toamount to an Article 3 ECHR violation or infringe upon Article 18 of the EU Charter. Although transfers
have resumed only three people were transferred to Austria in 2019.
The UK does not automatically assume responsibility for examining asylum applications where transfers
are suspended. If discussions with the receiving country become protracted so that it appears there is no
realistic prospect of the transfer taking place, the asylum seeker may be released from detention. Oncereleased from detention in these circumstances, asylum seekers may be granted accommodation andcash support. An asylum seeker who is the subject of a Dublin decision qualifies for reception conditions
on the same conditions as those in the regular procedure.132
124

125

126
127

128

129

130
131

132

Parliamentary Under Secretary of State for the Home Office, House of Lords, 23 January 2013, col. WA 209,
available at: http://bit.ly/1fjjefT.
High Court, Ibrahimi and Abasi v Secretary of State for the Home Department [2016] EWHC 2049 (Admin), 5
August 2016, available at: http://bit.ly/2bbliWq.
Ibid, para 16.
High Court, R (BG) v Secretary of State for the Home Department [2016] EWHC 786 (Admin), 12 April 2016,
available at: http://bit.ly/1NooJV8; R (Adam) v Secretary of State for the Home Department [2016] EWHC 1352
(Admin), 9 June 2016, available at: http://bit.ly/2jQTq07.
Upper Tribunal, R (SM) v Secretary of State for the Home Department (Dublin Regulation – Italy) [2018] UKUT
429 (IAC), 4 December 2018.
High Court, Khaled (No 1) v Secretary of State for the Home Department [2016] EWHC 857 (Admin), 18 April
2016, available at: http://bit.ly/2jr7pLv.
Khaled (No 1), para 94.
Court of Appeal, R (HK) v Secretary of State for the Home Department [2017] EWCA Civ 1871, 23 November
2017, available at: http://bit.ly/2sZu7PV.
Information provided by ASAP. See also CJEU, Case 179/11 Cimade & GISTI v Ministre de l’interieur, 27
September 2012.

36

2.7. The situation of Dublin returnees
There are no reported issues regarding the situation of adults returned to the UK under the Dublin
regulation. Children reunited with family under Article 8 are not considered to be unaccompanied even if
they are not dependants on a family member’s asylum claim. Concerns have been raised about the
support they receive and the difficulties arising from them being part of families e.g. many do not qualify
for legal aid and are not routinely assisted thought the asylum procedure. 133

3. Admissibility procedure
3.1.

General (scope, criteria, time limits)

During 2020 the policy declared that an asylum application was to be declared inadmissible where theapplicant:134
1. Has been granted refugee status in another EU Member State;
2. Comes from a First Country of Asylum;
3. Comes from a Safe Third Country;
4. Has been granted a status equivalent to refugee status in the UK; or
5. Is allowed to remain in the UK and is protected from refoulement pending the outcome of a safe
third country procedure.
UK law also reflects the Protocol on Asylum for Nationals of the EU and in December 2015 the policy
guidance was issued stating that applications from such nationals are to be treated as inadmissible savein exceptional circumstances.135
The only admissibility procedure in the UK strictly speaking is the safe third country procedure, either
removal to an EU country using the Dublin Regulation or another Safe Third Country. There is noscreening for admissibility on the basis of the merits of the case (see Dublin: Procedure). During 2020 thepolicy and process was separate for Dublin transfers and other safe third country returns. In December
2020 Immigration Rules were changed so that from 1 January 2021 the applicant, if there is evidence thathe/she has a connection with or travelled through another ‘safe’ country prior to his/her claim in the UK,
may be transferred to any ‘safe’ country that will accept the applicant. At the time of writing no returnagreements had been reached to this effect. It is understood that individual casework will include attempts
to return applicants under this policy.
As described in the context of the Dublin procedure, in effect the Dublin Regulation countries constitutethe First List. Legislation gives a power to create a Second List. A country on the Second List is treatedas a place to which non-nationals can be returned without a breach of the Refugee Convention, either inthat country or through risk of being sent elsewhere (see Safe Third Country).136 Additionally, there is apresumption that claims from non-nationals to be removed to the same list of countries will be unfounded,
unless stated otherwise, meaning a human rights claim against removal to that country would usually be
non-suspensive.137
Presently no countries are listed in the Second List, and non-Dublin safe third country returns take place
on a case-by-case basis.
133

134
135

136
137

Greater Manchester Immigration Aid Unit, Briefing paper on the experiences of children from the Calais campin the north west of England, March 2017, available at: https://bit.ly/2rWEiD8.
Immigration Rules applicable during 2020, available at: https://bit.ly/39iikz7Home Office, Asylum Policy Instruction: EU/EEA Asylum Claims, 9 December 2015, available at:https://bit.ly/30HmEC9.
Parts 3 and 4 Schedule 3 AITOCA.
Part 3 Schedule 3 AITOCA.

37

New Immigration Rules were laid in December 2020, in part to replace the Dublin procedure but widened
the scope of inadmissibility to any country that would agree to take responsibility for the person’s asylum
claim, even if there is no connection with that country. 138 The explanatory notes state that the purpose of
the change is to enhance our capacity to treat as inadmissible to the UK asylum system asylum claims
made by those who have passed through or have connections with a safe third country.139 But theguidance explains that the Rules allow an inadmissibility decision to be taken on the basis of a person’s
earlier presence in or connection to a safe third country, even if that particular country will not immediately
agree to the person’s return. More significantly, if someone is inadmissible, the new provisions permit
their removal to any safe third country that will take them (not just the specific country or countries throughwhich they travelled or have a connection)140
There is no time limit in the rules for taking a decision but the guidance states that general if no return isagreed six months after the asylum claim was made the applicant should be admitted into the UK asylum
system. If a third country has agreed to admit an inadmissible claimant, the removal should be processed
without undue delay. The new guidance also states that inadmissibility decisions will generally not betaken on unaccompanied children’s claims although the rules are silent on this matter.
The Home Office dismissed 3,303 asylum applications on third country grounds in 2020.

3.2. Personal interview
Indicators: Admissibility Procedure: Personal Interview
Same as regular procedure
1. Is a personal interview of the asylum seeker in most cases conducted in practice in theadmissibility procedure?
YesNo
As stated in relation to Dublin: Personal Interview, there is no provision for a specific, separate personal
interview in safe third country cases; information is taken from the screening interview.

3.3. Appeal
Indicators: Admissibility Procedure: Appeal
Same as regular procedure
1. Does the law provide for an appeal against the decision in the admissibility procedure?
Yes
No
Similarly to the Dublin procedure there is no appeal on asylum grounds against a safe third country
decision. However, an appeal may be made on the grounds that the person would be sent by that third
country to another country in breach of their rights under the ECHR (e.g. indirect refoulement on humanrights grounds) or that their ECHR rights would be breached in the receiving country. These human rights
appeals may only be brought in the UK if the Home Office does not certify that they are clearly unfounded.
In the case of the ‘second list’ there is an obligation to certify human rights claims as clearly unfounded
unless the decision maker is satisfied that they are not unfounded. 141 Where an appeal is available an outof country appeal must be brought within 28 calendar days; an in-country appeal must be brought within
14 days. The same problems may arise as with the 14 day limit in the regular procedure (see section on
Regular Procedure: Appeal).
138
139
140
141

Statement of changes to the Immigration Rules, available at: https://bit.ly/36eKxVG
Explanatory memorandum, available at: https://bit.ly/3iO8SGV
Inadmissibility guidance, December 2020, available at: https://bit.ly/2LXZKUs
Parts 3 and 4 Schedule 3 AITOCA.

38

The result is that the only suspensive appeal against a third country removal would be where a humanrights claim is not certified as clearly unfounded. When a decision is made that the person can be returned
to a safe third country, a certificate is issued to that effect, and the decision can only be challenged by
judicial review. The certificate that the case is unfounded can also only be challenged by judicial review.
The scope of judicial review is described above in relation to the regular procedure, but in the case of a
judicial review based on human rights, the court looks more closely at the substance of the decision.142

3.4.

Legal assistance
Indicators: Admissibility Procedure: Legal AssistanceSame as regular procedure

1. Do asylum seekers have access to free legal assistance at first instance in practice?
Yes
With difficultyNo❖ Does free legal assistance cover:Representation in interview
Legal advice
2. Do asylum seekers have access to free legal assistance on appeal against an inadmissibility
decision in practice?
Yes
With difficultyNo❖ Does free legal assistance coverRepresentation in courts
Legal advice
There are no special rules or restrictions applying to legal assistance in the safe third country procedure.
As with applicants who are subject to the Dublin procedure (see section on Dublin: Legal Assistance), inprinciple an asylum seeker subject to a third country decision has the same opportunity as any otherasylum seeker to obtain access to free legal representation. However, for both Dublin and other third
country procedures, once the decision to use a third country procedure has been made, the person is
likely to be detained. If they already have a legal representative that person may continue to represent
them. If not, they may, again subject to resources, obtain access to representation in detention (seesection on Legal Assistance for Review of Detention).
Judicial review is funded by legal aid, subject to the means of the asylum seeker and the merits of thecase. However, as in all judicial reviews, this is broadly speaking only if the court grants permission forthe judicial review.

4. Border procedure (border and transit zones)
In the UK there is no provision for asylum decisions to be taken at the border. An application for asylum
may be made at the port of arrival, and immigration officers from the UK Border Force may carry out thescreening interview, but then refer the claim to UKVI (see Regular Procedure). The substance of the claim
is not examined at the border.
If a person claims asylum, immigration officers grant temporary admission or, since January 2018,
immigration bail,143 to enable the claim to be made. It is not an immigration status and therefore there areno rights attached to the admission. It is analogous to release from detention on licence. Detention in an
airport is limited to relatively short periods (less than 24 hours). Short-term holding facilities (STHF) in
airports are not subject to the usual rules, which govern immigration detention, but are inspected by thegovernment’s Prison Inspectorate.144
142

143

144

House of Lords, R v Secretary of State for the Home Department ex p Daly [2001] UKHL 26, available at:
http://bit.ly/1IbyKpJ.
Immigration Bail replaced temporary admission on 15 January 2018 (see Home Office guidance document,
available at: http://bit.ly/2FTmf50). Many guidance and policy documents still refer to Temporary Admission.
See reports from the HM Inspectorate of Prisons on the Ministry of Justice, available at: http://bit.ly/1Blx77p.

39

The Equality Act 2010 permits immigration officers to discriminate on grounds of nationality if they do soin accordance with the authorisation of a minister. 145 This discrimination may include subjecting certain
groups of passengers to a more rigorous examination. Ministerial authorisations are made on the basisof statistical information of a higher number of breaches of immigration law or of adverse decisions inrelation to people of that nationality. The statistical basis is not published. Immigration officers have thepower to refuse entry at the border unless the passenger has a valid entry clearance or claims asylum. It
is not known whether and if so how many people sent back from the border wished to claim asylum but
did not say so to immigration officers or were de facto not given an opportunity to do so. In 2020, 13,072
people were refused entry at the UK port of whom 6,112 were at the juxtaposed controls (see below) andwere denied access to the UK.146 The information states that these are non-asylum cases, although it is
now known how many wished to claim asylum.
The UK also operates juxtaposed controls in France and Belgium. In the control zones in France andBelgium, no asylum claim can be made to UK authorities,147 and the acknowledged purpose of these
agreements with France and Belgium was to stop people travelling to the UK to claim asylum. 148 This wasreiterated by the statement from the Home Secretary following talks between the leaders of France andthe UK on 18 January 2018.149 Of the 6,112 people turned back in control zones in 2019,150 it is not known
how many wished to claim asylum. There is little or no information about any attempted claims, andwhether those who attempt to claim are referred to the authorities of the state of departure, as theregulations require.
During an investigation by the Children's Commissioner for England in 2012, the Home Office officials
disclosed the 'Gentleman's Agreement'.151 This operates in relation to people intercepted on landing in
the UK who are considered to have made an illegal entry and who do not say that they wish to claim
asylum. The agreement is between the UK and France and obliges France to accept the return of suchpassengers if this can be effected within 24 hours. Returns under the Gentleman's Agreement are carriedout without a formal refusal of leave to enter. Following the Commissioner's discovery that this was being
applied to young people, the practice was stopped in relation to acknowledged children. This agreement
still applies to adults and those who appear to be adults. The 2003 Le Touquet Treaty, which is still
applicable, states that anyone claiming asylum at the juxtaposed controls will be dealt with by the Frenchauthorities.152
The ministerial authorisation to discriminate in refusing leave to enter also takes effect in control zones.153
Therefore, although there is little or no substantiated evidence of refoulement taking place at the border,
current UK policy and practice creates a risk of this occurring. However, further research would be
required in order to assess this accurately.

145
146
147

148

149

150
151
152
153

Section 29 and Schedule 3, Part 4 Equality Act 2010.
Home Office, Immigration Statistics admission tables, Quarter 4 2019.
In the case of France, this is stated in Article 4 of the Additional Protocol CM 5015 to the Protocol between
the United Kingdom of Great Britain and Northern Ireland and the French Republic concerning FrontierControls and Policing, Co-operation in Criminal Justice, Public Safety and Mutual Assistance relating to the
Channel Fixed Link, Cm 2366, signed at Sangatte on 25 November 1991. It is not explicit in the Belgian
agreement.
Independent Chief Inspector of Borders and Immigration, An Inspection of Juxtaposed Controls, 2013,
available at: http://bit.ly/1ImrYsF.
Secretary of State for the Home Department, ‘Statement to Parliament’, 19 January 2018, available at:
http://bit.ly/2DokzPb.
Home Office, Immigration Statistics.
Article 9 Le Touquet Treaty, available at: http://bit.ly/2BSdpVx.
Article 9 Le Touquet Treaty, available at: http://bit.ly/2BSdpVx.
Para 17(4)(A) Ministerial Authorisation, para 4; Schedule 3, Part 4 Equality Act 2010.

40

5. Accelerated procedure
5.1. General (scope, grounds for accelerated procedures, time limits)
There are two kinds of accelerated procedures: the non-suspensive appeal procedure (NSA) and thedetained fast-track procedure (DFT). The Detained Fast Track Procedure is currently suspended rather
than ceased.
Non-Suspensive Appeal (NSA)
Firstly where the claim is certified by the Home Office as clearly unfounded, there is no in-country appeal.
These are called Non-Suspensive Appeal (NSA) cases. The majority of cases certified in this way are ofapplicants from a deemed safe country of origin, but cases are also certified as clearly unfounded on an
individual basis. The applicant may often be detained, though not always, and guidance to Home Officedecision makers refers to the procedure as a Detained Non-Suspensive Appeal (DNSA). 659 claims154,
about 8% of the total, were certified clearly unfounded in 2020.155 India, Albania, Nigeria and Brazil werethe most common nationalities, between them accounting for around 80% of those people whose claims
were certified unfounded during 2020.156
The most common reason for a claim to be certified as clearly unfounded and thus routed through the
NSA procedure is that the asylum seeker comes from a country, which is considered to be safe. Countries
are treated as safe if they are designated as such in binding orders made under Section 94 NIAA or in
the Act itself (see Safe Country of Origin).157
There is no time limit for a decision to be made in such a case, although the Home Office guidance statesthat the aim is to decide within 14 calendar days. The Home Office is responsible for making the decision.
The policy is that all decisions on a potential NSA case must be made by a caseworker who is trained tomake NSA decisions, and must be looked at by a second 'accredited determining officer' who decides
whether to accept the first officer's recommendation. 158 The Independent Chief Inspector of Borders andImmigration noted a lack of objective standards in accrediting this officer, and of consistent understandingof this role and its remit.159 Guidance to decision makers advises that where the claim is for asylum andhuman rights protection, both or neither should be certified as unfounded, since any appeals of the twoissues must be heard together. The guidance also states that when the asylum seeker comes from adesignated state the refusal should not normally be based on the credibility of the individual applicant but
on objective country material.160 This is general practice and is unlike the regular procedure where nosuch guidance is given and refusal is commonly based on credibility. The guidance on certification ofclaims under Section 94 NIAA has been amended and reissued to reflect the necessity to distinguish thedecision to certify from the decision to refuse and to underline the need to explain both decisions. Thiswas done following a case in the Upper Tribunal known as FR and KL.161 In 2018 the Tribunal determined

154
155
156
157
158

159

160

161

Total number subject to certification was 755 (including dependants)
Home Office, Immigration Statistics.
Ibid.
Section 94 NIAA.
Home Office, Asylum decision-making guidance: Non-Suspensive Appeals (NSA): Certification under s.94,
October 2014, available at: https://bit.ly/3awaYqr.
Independent Chief Inspector of Borders and Immigration: An Inspection of the Non-Suspensive Appeals
process for ‘clearly unfounded’ asylum and human rights claims July 2014, available at: http://bit.ly/1Bq4LIW.
Home Office, Asylum decision-making guidance: Non-Suspensive Appeals (NSA): Certification under s.94,
para. 2.2.
Court of Appeal, FR and KL v Secretary of State for the Home Department [2016] EWCA Civ 605, 26 June
2016, available at: http://bit.ly/2mRtYs6.

41

that individualised decisions must be made as to the necessity in out of country appeal hearings of hearing
directly from the applicant.162
A claim may also be certified clearly unfounded and routed through the NSA on an assessment of theindividual merits of the case, not only on the basis of a deemed safe country of origin. This should only
be done where the caseworker considers that the claim is incapable of succeeding before an independenttribunal.163 On that basis, 74 cases were individually certified in 2020.164
Detained-Fast Track (DFT) – currently suspended
The DFT procedure was suspended in July 2015, following a series of successful legal challenges relating
to the safety and fairness of the procedure, but hasn’t been formally abandoned. 165 The Detained Fast
Track procedure (DFT) applied where the Home Office considered that the claim could be decided quickly.
In theory the two procedures are very different in that NSA implies that there is no merit, whereas DFT isbased on speed. However, informally the DFT also appeared to operate as an 'unfounded' procedure.
The defining characteristics of the DFT procedure were speed and detention throughout the decision
process. The criteria for being routed into the DFT only required that the case was considered after thescreening interview to be capable of being decided quickly and that the asylum seeker was not excluded
from the DFT.
The DFT has not been reinstated nor abandoned. The final ‘nail in the coffin’ leading to the suspension
was the appeals part of the process.166 The Ministry of Justice consulted on the Tribunal Procedure Rules
for the DFT in autumn 2016 proposing that new rules be laid to enable these expedited appeals to comply
with the law.167 Plans were then outlined in April 2017,168 but the new procedure has not yet been
approved by the Tribunal Procedure Committee. No new developments have taken place since then.

5.2. Personal interview
Indicators: Accelerated Procedure: Personal Interview
Same as regular procedure
1. Is a personal interview of the asylum seeker in most cases conducted in practice in theaccelerated procedure?
YesNo❖ If so, are questions limited to nationality, identity, travel route?
Yes
No❖ If so, are interpreters available in practice, for interviews?
YesNo
2. Are interviews conducted through video conferencing?

Frequently

RarelyNever

There are no grounds in the accelerated procedure to omit a personal interview.

162

163
164
165

166
167

168

Upper Tribunal, AJ (s. 94B Kiarie and Byndloss questions) v Secretary of State for the Home Department[2018] UKUT 115 (IAC), 28 February 2018, available at: https://bit.ly/2HiNEQV.
Court of Appeal, NA (Iran) v Secretary of State for the Home Department [2011] EWCA Civ 1172.
Home Office, Immigration Statistics.
House of Commons, Written Statement (HCWS83) Home Office Written Statement made by: The Minister ofState for Immigration, 2 July 2015, available at: http://bit.ly/1H3ig0I.
Detention Action, ‘The legal challenge’, available at: http://bit.ly/2jITAYA.
Ministry of Justice, Expedited immigration and asylum appeals for detained appellants, available at:
http://bit.ly/2l7kEBS.
Ministry of Justice, Expedited immigration and asylum appeals for detained appellants, 18 April 2017, available
at: http://bit.ly/2l7kEBS.

42

Non-Suspensive Appeal Procedure
The same immigration rules apply to the interview as in the regular procedure (see Regular Procedure:
Personal Interview) but they must be conducted by NSA trained caseworkers in the NSA procedure.
Detained-Fast Track Procedure
In the DFT procedure the interview was required to take place on the day after arrival. In practice asylum
seekers in the DFT could wait on average 11 days for an interview. 169 The interview was conducted by aHome Office case worker. Unlike the regular procedure, the interview takes place in detention. No study
has been done on the impact of personal interviews taking place in detention. Lawyers said that the qualityof interviewing in the DFT was less skilful, tending to focus extensively on detail and not on the major
issues in the claim.
Transcripts and tape recordings were provided of interviews in the DFT as in the regular procedure.
Interpreters were available as in the regular procedure.

5.3. Appeal
Indicators: Accelerated Procedure: Appeal
Same as regular procedure
1. Does the law provide for an appeal against the decision in the accelerated procedure?
YesNo❖ If yes, is it
Judicial
Administrative❖ If yes, is it suspensive
NSA
Yes
No
DFT
Yes
No
Non-Suspensive Appeal Procedure
In the NSA the appeal is non-suspensive, i.e. it may not be made from within the UK. Appeals must be
made within 28 calendar days of leaving the UK. 170 The scope of the appeal is the same as for in-country
appeals, but in practice it is very difficult to appeal from outside the UK as people will not have readyaccess to their legal representative and obviously would not be able to participate in proceedings soeasily, depending on their circumstance.
Detained-Fast Track Procedure
The DFT is currently not operational.
In the DFT no removal would take place until the appeal had been decided, but the appeals took place ina building adjoining the detention centre, and detention was maintained until the case was concluded or
removed from the DFT. There have been two different challenges to the lawfulness of detained fast track
appeal process. These have resulted in the suspension of the operation of the DFT.
Firstly, detention pending appeal in the DFT was held by the Court of Appeal to be unlawful unless it isjustified on normal detention grounds, i.e. with regard particularly to risk of absconding and imminence ofremoval. The Court found that the practice which had developed in the DFT was to detain people pending

169

170

Independent Chief Inspector of Borders and Immigration, Asylum: A Thematic Inspection of the Detained Fast
Track, ICIBI, 2012, available at: http://bit.ly/1JXaARf.
The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 SI 2604 rule 19.

43

appeal in the DFT purely based on the criteria of speed and convenience without considering whether
they were at risk of absconding. This was unlawful.171
In a second case, Detention Action challenged the lawfulness of the rules governing the fast track
appeals.172
The Court of Appeal held that:“[T]he time limits are so tight as to make it impossible for there to be a fair hearing of appeals ina significant number of cases…The system is therefore structurally unfair and unjust. The scheme
does not adequately take account of the complexity and difficulty of many asylum appeals, thegravity of the issues that are raised by them and the measure of the task that faces legal
representatives in taking instructions from their clients who are in detention.” 173
In a judgment that was promulgated on 20 January 2017, 174 the High Court found that the unlawful policy
had been in operation from 2005 to 2014, affecting many more asylum seekers. However, it refused toquash the appeals. This decision was upheld by the Court of Appeal in December 2018. 175

5.4. Legal assistance
Indicators: Accelerated Procedure: Legal AssistanceSame as regular procedure
1. Do asylum seekers have access to free legal assistance at first instance in practice?
Yes
With difficultyNo❖ Does free legal assistance cover:Representation in interview (in the DFT only)
Legal advice
2. Do asylum seekers have access to free legal assistance on appeal against a negative decisionin practice?
Yes
With difficultyNo❖ Does free legal assistance coverRepresentation in courts
Legal advice
The following information relates to the Detained Fast Track Procedure as it operated immediately prior
to its suspension in 2015. Unlike in the regular procedure, fast track detainees were entitled to have apublicly funded legal adviser present at their initial interview. However, the judge commented in the 2014
Detention Action case that:

171

172

173
174

175

Court of Appeal, R (on the application of Detention Action) v Secretary of State for the Home Department[2014] EWCA Civ 1634.
The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 SI 2406 Schedule
rule 5; TheTrib unal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 SI 2406
Schedule rules 7 and 8; The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules
2014 SI 2406 rule 10. For more detailed information on the applicable time limits during that time consult:
AIDA, Country report: United Kingdom, Update 2018, available at www.asylumineurope.be.
Court of Appeal, The Lord Chancellor v Detention Action [2015] EWCA Civ 840, para 45.
High Court, R (TN) v Secretary of State for the Home Department [2017] EWHC 59 (Admin), 20 January 2017,
available at: http://bit.ly/2kPYike. See also Detention Action, ‘High Court rules asylum-seekers denied justicein detention for 10 years’, 20 January 2017, available at: http://bit.ly/2kfJNGQ.
Court of Appeal, TN (Vietnam) v Secretary of State for the Home Department [2018] EWCA Civ 2838, 19
December 2018, available at: https://bit.ly/2RzKtKP.

44

“Legal representatives are not excluded from the interview, if the applicant already has arepresentative, but where the applicant does not have one, the presence of a lawyer is notfacilitated.”176
Asylum seekers in the DFT were not guaranteed legal representation before the tribunal. Research in2011 revealed that 63% of asylum seekers were unrepresented at their DFT appeal, 177 and Freedom ofInformation requests showed that in 2012, 59% asylum-seekers in Harmondsworth were unrepresented
at the first appeal. 1% won their appeals, compared to 20% of those with a representative. 178
To obtain publicly funded legal advice in making their claim they were limited to a representative from asolicitors firm with a contract to do DFT work and who was available. There is substantial dissatisfaction
among asylum seekers with the quality of legal representation available in detention. Lawyers who workin the DFT say that it is very difficult to do the work effectively. They may have no opportunity to take
instructions or meet the client before the asylum interview. This was endorsed by the High Court in the2014 Detention Action judgment.

D. Guarantees for vulnerable groups
1. Identification
Indicators: Identification
1. Is there a specific identification mechanism in place to systematically identify vulnerable asylum
seekers?
Yes
For certain categories
No❖ If for certain categories, specify which: Unaccompanied children
2. Does the law provide for an identification mechanism for unaccompanied children?
Yes
No

1.1. Screening of vulnerability
There is no specific mechanism to identify adult asylum seekers who need specific procedural guarantees.
The inadequacy of the screening interview to identify such vulnerabilities is discussed in Registration and
Accelerated Procedure. The standard questionnaire used asks only basic questions about health. As
previously stated reports on the DFT procedure agree that torture survivors were placed in the DFT,
against policy, partly because there was no effective mechanism to identify them.179 The concern remains
regarding the use of detention, albeit not in an accelerated procedure, and the lack of safeguards. Of
particular concern has been the definition used by the Adults at Risk policy, which is a more restricted
definition of torture than was previously stated. This is explained more fully in a report by the charity
Medical Justice.180 This definition was ruled unlawful and amended. In light of this and ongoing
discussions, the charity agreed not to proceed with its second challenge to the definition, although it had
been given permission to proceed.181 Draft policy has been issued to bring victims of modern slavery into

176

177

178
179

180
181

High Court, Detention Action v Secretary of State for the Home Department [2014] EWHC 2245 (Admin), para
96.
Tamsin Alger and Jerome Phelps, Fast Track to Despair, Detention Action, 2011, available at:
http://bit.ly/1LhrIl6.
Detention Action, DFT Briefing, 2013, available at: http://bit.ly/1JX05NV.
See e.g. Independent Chief Inspector of Borders and Immigration, Asylum: A Thematic Inspection of the
Detained Fast Track, ICIBI, 2012; Tamsin Alger and Jerome Phelps, Fast Track to Despair, Detention Action,
2011.
Medical Justice, Putting Adults at Risk, 2017, available at https://bit.ly/2NNBLVp.
Medical Justice, Press release: ‘Home Office revises definition of torture after Medical Justice highlights
problems’, 23 September 2019, available at: https://bit.ly/36aZDc9.

45

the remit of the adults at risk policy. Subject to Parliamentary approval this will come into force in May
2021.182

1.2. Age assessment of unaccompanied children
The procedure for identifying unaccompanied children is governed by guidance and case law. At thescreening stage, where a person appears to an Immigration Officer or the Home Office caseworker to beunder 18, policy guidance is that they are to be treated as a child. In case of doubt, the person should betreated as though they are under 18 until there is sufficient evidence to the contrary. 183 Where theirappearance strongly suggests to the officer that they are over 25, a second opinion must be sought froma senior officer. If they agree that the person appears to be over 25, the asylum seeker is treated as anadult. In this case, an age assessment can be triggered by the young person or any third party referringto the local authority for an age assessment. However, the result of immediate treatment as an adult while
this process is ongoing means that people who are in fact under 18 will be treated as adult in the asylum
and support processes.
In June 2016 the High Court ruled that the Home Office had acted unlawfully in detaining a young asylum
applicant under this policy without establishing as a matter of fact whether his claim was true i.e. thedecision to detain cannot be based on an officer’s ‘reasonable belief’ that the claimant was adult.184 Thisdecision was upheld in the Court of Appeal in February 2017. 185 The Home Office policy guidance on
assessing age was amended on 26 February 2018 to reflect this judgment.
The revised guidance also contains changes that NGOs have called for in recent years; unless theclaimant is being treated as adult under the ‘over 25 policy outlined above (now amended, see below),
the authorities are required to record the stated age given by the child until a final assessment has
concluded differently; also clearer guidance on how a decision on age affects credibility in an asylum
claim.
In 2019, the Home Office issued interim guidance on age assessment of unaccompanied asylum-seeking
children,186 following a successful challenge of its policy in the case of BF (Eritrea) before the Court ofAppeal. In its ruling of 23 May 2019,187 the Court of Appeal held that the Home Office policy on age
assessment, which gave Immigration Officers the power to decide an applicant is adult if their appearance
and demeanour very strongly suggest the person is “significantly over 18”, was not sufficiently precise as
to avoid huge differences in how it was applied, giving rise to the risk that children would be wrongly
deemed adults and treated as such in the asylum system.
According to the new guidance, first published on 29 May 2019, “for a person to be assessed as an adultin these circumstances, their physical appearance and demeanour must very strongly suggest that they
are 25 years of age or over“. The guidance was updated in December 2020, along with many other piecesof guidance, to reflect the end fo the transition period for the UK to leave the EU.
If the Home Office has referred to a local authority because they felt there was doubt about the claimed
age, the social worker responsible for an assessment must assure the Home Office that they haveconsidered the age and this would usually be communicated a child through an agreed template.188 A
182
183
184

185

186
187
188

Adults at risk in Immigration detention February 2021, available at: https://bit.ly/3quhapPHome Office, Processing children’s asylum, claims, 12 July 2016, available at: http://bit.ly/2iO8XKe.
High Court, R (AA) v Secretary of State for the Home Department [2016] EWHC 1453 (Admin), 20 June 2016,
available at: http://bit.ly/29enIoB.
Court of Appeal, Awed Ali v Secretary of State for the Home Department [2017] EWCA Civ 138, 9 March
2017, available at: http://bit.ly/2mScM67.
Home Office, Assessing age, May 2019, available at: https://bit.ly/2JeXtP1.
EWCA Civ 872, Case No: C2/2017/2550, 23 May 2019, available at: https://bit.ly/38vOxQw.
ADCS, Age assessment guidance and information sharing guidance, available at: http://bit.ly/2kpC77s.

46

stand-alone assessment is not necessary but the Home Office must be satisfied that the areas listed on
the template have been considered by the social worker. The Home Office must also be satisfied that any
assessment complies with case law – often referred to as ‘Merton compliant’ as Merton was the first pieceof case law dealing with the lawful procedure for age assessments. It would then be usual for the Home
Office to adopt the age decided by the social worker but more detail is given in guidance.189
Social workers conducting age assessments must comply with all case law which includes the need to beregistered social workers, trained in conducting age assessments, adhere to correct procedures including
taking into account all relevant information. Assessments must be conducted in the presence of an‘appropriate adult’ and a written record made. Guidance issued by the Association of Directors ofChildren’s Services (ADCS) in October 2015 gives more detail about lawful procedure and goodpractice.190
It remains the case that judicial review is the sole remedy to resolve a complaint that the age assessment
was conducted unlawfully or failed to reach the correct conclusion.191 The quality of age assessments has
been heavily criticised for several years.192 It is not easy to determine whether or not practice is improving
although judicial reviews still take place and result in some social work decisions being overturned.193
Many such decisions are not reported and many do not have a bearing on other cases, as they are findingof fact cases. A summary of some key cases in 2020 was published by lawyers in December.
Concerns were raised about the practice of local authorities following the judgment in BF (Eritrea) as theresultant increase in referrals to local authorities (due to the new guidance binding on Immigration
Officers) led to some local authorities making very brief decisions apparently based on appearance rather
than professional assessments.
In January 2020 a judge ruled that although the local authority was not legally bound by the ‘over 25’
threshold as the Home Office was due to BF (Eritrea) nevertheless the abbreviated assessment in thiscase was judged to be unlawful as it failed to adequately acknowledge the potential margin for error. 194
Concerns continue to be raised, not least because in 2020 the Home Office employed social workers at
the Intake Unit in Kent to assist in making these short assessments of age.195
Greater Manchester Immigration Aid Unit assisted some young people affected by age assessments toissue guidance to social workers undertaking the process and young people affected. 196

189

190
191

192

193

194
195
196

Home Office and ADCS, Age assessment: Joint working guidance, June 2015, available at:
http://bit.ly/2k7FIHt.
ADCS, Age assessment guidance, October 2015, available at: http://bit.ly/1MUduDi.
Supreme Court, R (on the application of A) v London Borough of Croydon and R (on the application of M) v
London Borough of Lambeth [2009] UKSC 8, 26 November 2009.
Coram Children’s Legal Centre, Happy Birthday, 2013, available at: http://bzfd.it/2jcSct3 and UK section ofMaria Antonia Di Maio, Review of current laws, policies and practices relating to age assessment in sixteen
European Countries, Separated Children in Europe Programme, Thematic Group on Age Assessment, 2011,
available at: http://bit.ly/1IohB7T; Refugee Council, Age disputed young people in the asylum system, June
2019, available at: https://bit.ly/2vqWfgh.
Peter Yeung, ‘Wrongly Classifying Child Asylum-Seekers as Adults Has Cost UK Millions of Pounds’, 18January 2017, available at: http://bzfd.it/2jcSct3.
AB v Kent County Council EWHC [2020] 109 (Admin), available at: https://bit.ly/3cvpfoa.
Home Office, Kent Intake Unit social worker guidance, December 2020, available at: https://bit.ly/3pxDK0Q
Age Assessments, GMAIU 2020, available at: https://bit.ly/36h1Wxb

47

The Strategic Migration Partnership in Wales issued its own guidance in 2015.197 In Scotland, theScottish Refugee Council and Glasgow City Council have collaborated to produce a good practice guideas an aid to achieving consistency of practice. 198 Both of these pieces of guidance are still in use.
A tribunal is also entitled to decide a person's age as a question of fact in the context of an asylum claim,
where age is relevant to the claim, for instance because it has a bearing on other findings such as thecredibility of the asylum seeker, but the age found is not binding outside that context, and does not binda local authority. Since the Supreme Court decision, the child is able to obtain a binding finding of factfrom the court. This is important because previously a young person could be in the position where thetribunal, and thus the Home Office, accepted that they were under 18, but the local authority did not. The
Home Office has no power to support a child, and the local authority in that situation would not do so, yet
the child had no power to obtain a resolution. 199 This judicial review power transferred to the Upper
Tribunal.200 A summary of some of the key age related Judicial Reviews of 2020 was published in
December.201
Statistics are available for age assessments ordered by the Home Office, which do not include age
assessments ordered by local authorities. In 2020 there were 732 of these. The initial decisions from local
authorities (598) were that 232 were children and 366 adult. Some of these decisions will be subject tochallenge and no information is given on the final resolution of these.

2. Special procedural guarantees
Indicators: Special Procedural Guarantees
1. Are there special procedural arrangements/guarantees for vulnerable people?
Yes
For certain categories
No❖ If for certain categories, specify which: People for whom detention is accepted to bedamaging; unaccompanied children, torturesurvivors
The Home Office has introduced the notion of “safeguarding leads”, supervised by a senior official ashead of the “safeguarding hub”. There is limited information on the work of these hubs, however, as thesafeguarding policy is an internal document, although limited detail is available through the funding
document.202 More information about the safeguarding hubs and the Home Office’s approach tovulnerable adults can be found in the 2019 inspection report from the Independent Chief Inspector of
Borders and Immigration.203
Guidance on gender issues in the asylum claim sets out good practice in recognising gender-specificforms of persecution and the difficulties that women may face in accessing protection. 204 The guidancerecognises that discrimination may amount to persecution in countries where serious legal, cultural orsocial restrictions are placed upon women, and the need to be rigorous in understanding country of origin
information when deciding women’s claims.

197

198

199
200
201
202

203

204

Wales Strategic Migration Partnership, Age assessment of unaccompanied asylum seeking children, June
2015, available at: http://bit.ly/2jU3Jhb.
Karen Dyball, Graham McPhie, Clare Tudor, Age Assessment Practice Guidance: An Age Assessment
Pathway for Social Workers in Scotland Scottish Refugee Council and Glasgow City Council 2012.
Laura Brownlees and Zubier Yazdani, The Fact of Age, 2012, Children’s Commissioner.
First Tier Tribunal and Upper Tribunal (Chambers) Order 2010, available at: http://bit.ly/1fm4pJI.
Age assessments in 2020; A year in review, Doughty Street Chambers https://bit.ly/3pfLp3X
Home Office, Asylum, Migration and Integration Fund: List of Actions allocated funding, July 2018, available
at: https://bit.ly/2C5Yq9y.
Independent Chief Inspector of Borders and Immigration, An inspection of the Home Office’s approach to theidentification and safeguarding of vulnerable adults, January 2019, available at: https://bit.ly/2NN8fOC.
Home Office, Asylum Policy Instruction: Gender Issues in the Asylum Claim: process, 2018, Available athttps://bit.ly/2NPSqYr

48

Guidance on the substantive interview was revised in 2019 and addresses issues of disclosure, gender
based violence as well as experiences of torture. 205
There are limited concessions to the requirement to make an asylum claim in person. Discretion isafforded to UKVI staff to allow someone to register a claim more locally if they are unable to travel to the
Asylum Intake Unit due to severe health or disability issues or, with the agreement of an NGO in Scotland.
People with mental illness severe enough to affect their mental capacity may have a publicly funded
representative at their asylum interview.
Exemption from detention and special procedures
There are no other procedural guarantees in law for vulnerable adult applicants relating to decisionmaking or application process, except that they should not, according to policy, be detained. Rule 35 of
the Detention Centre Rules provides that where there is evidence that a detainee has been tortured, orfor any other reason their health would be injuriously affected by detention, a report should be made to
the caseworker for release to be considered. Rule 35 guidance was updated in 2019.206
However, the detention of people with mental illness remains a major source of concern and is covered
further in the section on Detention of Vulnerable Applicants. A case in 2019 confirmed that the Home
Office need not introduce a process equivalent to Rule 35 for immigration detainees held in prisons.207
There are no other published criteria which would prevent someone who had suffered torture or otherextreme violence from being routed into the NSA procedure. The policies about vulnerable applicants,
although they are unevenly applied, concern suitability for detention, not for a non-suspensive appeal.
Guidance to officers making a decision after the screening interview also advises that where a person
through illness has a need for care and attention over and above destitution, they should be referred to a
Local Authority for a needs assessment.208 In practice, local authority support is difficult to obtain, andpolicies vary in different local authority areas.

3. Use of medical reports
Indicators: Use of Medical Reports
1. Does the law provide for the possibility of a medical report in support of the applicant’s statements
regarding past persecution or serious harm?
Yes
In some cases
No
2. Are medical reports taken into account when assessing the credibility of the applicant’s
statements?
Yes
No
Medical evidence may be submitted but the initiative for obtaining a report comes from the applicant or
their lawyer. There is no legal provision which requires the provision of a report for the purposes of theasylum claim.
Asylum Policy Guidance on medical evidence provides for the possibility of delaying an asylum decisionpending receipt of a medical report from the NGOs Helen Bamber Foundation (HBF) or Freedom from
205
206

207

208

Home Office, Policy and process guidance: asylum interviews, June 2019, available at: https://bit.ly/2G9MQft.
Home Office, Detention services order 09/2016 Detention centre rule 35 and Shortterm Holding Facility rule32, March 2019, available at: https://bit.ly/2RLvoDw.
MA (Pakistan) and AO (Nigeria), EWHC 3567 (Admin), Case No: CO/2701/2018 & CO/4233/2018, 20
December 2019, available at: https://bit.ly/39k30PM.
Home Office, Guidance: Asylum seekers with care needs, August 2018, available at: http://bit.ly/2n6BzU7.

49

Torture (FTT).209 FFT and the Helen Bamber Foundation are the most established organisations which
prepare medico-legal reports, and their work is widely respected. Referral to obtain an appointment for a
Medico-Legal report from FFT can normally only be made by a lawyer, and referrals may be accepted if
FFT considers that a medico-legal report has the potential to make a material difference to the outcomeof the claim.210 If a report from FFT or the Helen Bamber Foundation is received after a refusal of asylum
the case must be reviewed.
Home Office caseworkers make this decision and should act reasonably. They are required to take into
account whether the applicant declared a medical condition at the screening interview, whether there is
written evidence of an appointment with a medical professional, and the length of time the applicant has
been in the country and so had the opportunity to consult a medical practitioner. The guidance advisesthat postponements should be fixed, and preferably only for five to ten days, and that the asylum interview
should not be postponed in order to obtain a medical report. 211
Where a solicitor is funded by legal aid they can request authority from the Legal Aid Agency for payment
for medical reports, and this may be granted depending on the relevance and importance of the report tothe claim. The solicitor has authority to spend £400 (approx. €453) on an expert report without involving
the Legal Aid Agency, but this is often not adequate to fund a full expert report.
Where the asylum seeker has an appointment with the NGO Freedom from Torture (FFT) the effect isdifferent, as the decision must be deferred until the report is available unless the caseworker is anyway
considering granting leave to remain.212
The Detention Centre rules require that a medical examination should be conducted within 24 hours ofarrival in a detention centre, but this must not be used in determining the asylum claim; its purpose is toascertain fitness for detention.213
Case law requires that medical reports are taken into account in deciding the applicant's credibility.214 The
courts have also cautioned against tribunal judges reaching their own diagnoses which depart from the
medical evidence and discounting psychological evidence on the basis that it is founded in part on what
applicant says.215 Recommendations from FFT state best practice, which includes that evidence should
be considered as a whole, including expert medical evidence, and a conclusion on the overall credibilityof a claim not reached before consideration of an expert medical report. FFT also recommends that due
consideration must be given to the medical expert’s opinion on the degree of consistency between theclinical findings and the account of torture. 216 The Upper Tribunal endorses this but also says that theclinician’s judgement is not to be equated to a judgment made by a Tribunal. 217 Despite the availability ofbest practice guidance and the judgments of the higher courts, this guidance is not consistently followed.
Examples in case law show that medical reports are still sometimes downgraded or discounted on the

209

210

211
212

213
214

215

216

217

Home Office, Asylum Policy Instruction, Medico-Legal Reports from the Helen Bamber Foundation and the
Medical Foundation Medico Legal Report Service, July 2015, para 2.4. (This is still applicable).
Freedom from Torture, Make a referral for therapy and practical help (Referrals to The Medical Foundation
Medico Legal Report Service), available at: https://bit.ly/37gvzMA.
Asylum Policy Instruction (non-Medical Foundation cases).
Asylum Policy Instruction Medico-Legal Reports from the Helen Bamber Foundation and the Medical
Foundation Medico-Legal Report Service, July 2015.
Rule 34 Detention Centre Rules.
See e.g. Upper Tribunal, JL (medical reports – credibility) China [2013] UKUT 145 (IAC), 8 April 2013, available
at: http://bit.ly/2jUess3.
See e.g. Court of Appeal, Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367, 17
March 2005, available at: http://bit.ly/2kpyrCo.
Jo Pettit, Body of Evidence – Treatment of Medico-Legal Reports for Survivors of Torture in the UK Asylum
Tribunal, 2011, Freedom from Torture.
Upper Tribunal, KV (scarring - medical evidence) Sri Lanka [2014] UKUT 230 (IAC), 23 May 2014, available
at: http://bit.ly/2kU9Hil.

50

basis that the decision maker does not believe the applicant, rather than using the report as evidence
which contributes to assessing the applicant's case.218 Research by Freedom from Torture in 2016
showed evidence of errors by decision makers in deciding claims where there was a FFT medico-legal
report. Errors identified included failing to apply the correct legal test and failing to recognise the expertiseof those who prepared the reports.219 This remains a concern and is listed amongst concerns raised in a2019 report, named ‘Lessons not Learned; The failures of asylum decision-making in the UK’, relating to
the standard of proof in asylum decision making published by FTT and seven other NGOs.220
Medical reports may be prepared based on the Istanbul Protocol, and this is regarded as best practiceand is standard for experienced practitioners.221
The long running case of KV (Sri Lanka) progressed to the Supreme Court and judgment was handed
down in March 2019.222 The case concerned the question of the extent to which a medical expert could
comment on the likelihood of torture being self-inflicted by proxy, that is, by another person at his invitation.
Whilst the Supreme Court remits the case to the Upper Tribunal to reconsider, it invites the Upper Tribunal
to note that very considerable weight should be given to the fact that injuries which are self-inflicted byproxy are likely to be extremely rare.

4. Legal representation of unaccompanied children
Indicators: Unaccompanied Children
1. Does the law provide for an identification mechanism for unaccompanied children?
Yes
No
2. Does the law provide for the appointment of a representative to all unaccompanied children?
Yes
No
In addition to the social work duty, the Immigration Rules require that the Home Office caseworker takes
steps to ensure that an unaccompanied child has a legal representative. 223 The Refugee Council should
be notified within 24 hours.
This duty applies to a person who is under 18 or who is being given the benefit of the doubt for the time
being. There is no stated exception, and the duty accrues as soon as an asylum application has been
made, which therefore includes a child who is subject to a Dublin procedure.
Unlike the case of adults, the representative is publicly funded to be present in the asylum interview, andthe asylum interview of a child may not take place without a responsible adult present who is not
representing the Home Office.
The Home Office has a statutory duty to safeguard and promote the welfare of children in the UK who aresubject to its procedures.224 The duty of a representative of a child includes ensuring that this duty is
218

219

220

221

222

223
224

See e.g. High Court, R (Kakar) v Secretary of State for the Home Department [2015] EWHC 1479 (Admin),
22 May 2015.
Freedom from Torture, Proving torture: Demanding the Impossible, November 2016, available at:
http://bit.ly/2gib2OM.
FFT, Lessons not Learned; The failures of asylum decision-making in the UK, September 2019, available at:https://bit.ly/36ee2UH.
Office of the United Nations High Commissioner for Human Rights, Manual on the effective investigation anddocumentation of torture and other cruel, inhuman or degrading treatment or punishment, ‘Istanbul Protocol’,2004, available at: http://bit.ly/1DVAApu.
Supreme Court, KB (Sri Lanka) v Secretary of State for the Home Department [2019] UKSC 10, 6 March 2019,available at: https://bit.ly/2SOVG6a.
Para 352ZA Immigration Rules, Part 11, available at: http://bit.ly/1JRSeku.
Section 55 BCIA 2009, available at: http://bit.ly/1L4XlOC.

51

complied with at all stages of the asylum process and to challenge where it is not. The code of practicefor implementing Section 55 of the Borders Citizenship and Immigration Act 2009, 'Every Child Matters',
which is binding on Home Office officers, requires that the voice of the child is heard in the proceedings,
and this was reiterated by the Supreme Court, affirming that the wishes and feelings of the child must be
taken properly into account by decision makers.225 The representative accordingly has a duty to ensurethat they take the child's own independent instructions and that these form the basis of theirrepresentations.
The Immigration Law Practitioners Association (ILPA) produced a good practice guide, 226 but use of theguide is not mandatory. In order to receive public funding for representing a refugee child, a solicitor mustbe accredited at Level 2 of the Immigration and Asylum Accreditation Scheme. The Legal Aid Agency
framework for authorising legal aid payment requires that work with refugee children is carried out by asenior caseworker at level 2 or above, who has had an Enhanced Disclosure and Barring Service (often
referred to as DBS) check in the previous two years. A publicly funded immigration adviser of a childasylum seeker is under an obligation to refer the child for public law advice where the child has difficulties
with the local authority carrying out its duties towards them under the Children Act 1989. 227 A child isentitled to have a publicly funded legal representative at their initial asylum interview, but only where theHome Office does not dispute that the claimant is a child. 228
Difficulties obtaining good quality legal advice (see Regular Procedure: Legal Assistance) also apply tounaccompanied children. Research conducted by the Children’s Society in 2015 showed that the situation
had deteriorated since the coming into force of the legal aid restrictions.229 This research was updated
and a new report published in 2017.230
UASC leave
Unaccompanied children seeking asylum whose claims are refused are very rarely returned to theircountry of origin unless they are believed to be over 18. It is standard practice to grant periods of limited
leave. This leave is referred to as ‘UASC leave’ – this is granted for 30 months or until the age of 17½,
whichever is shorter.231 Leave can be renewed up to age 17½, but if a further application is made at thisstage, then there must be an active review in which their need for protection is considered again, and if
this is turned down they may be faced with removal.
Discretionary leave
Where asylum claims fail, sometimes a family is given discretionary leave on the basis of Article 8 ECHR.
The High Court has held that the practice of giving children this limited leave (3 years was the normal
policy at the time of the case) conflicts with the duty in Section 55 of the Borders Citizenship andImmigration Act 2009 to have regard to the welfare of children. 232 This does not have a direct impact on

225

226

227
228

229
230
231
232

Supreme Court, ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, 1 February
2011, available at: http://bit.ly/2juhDe8.
Heaven Crawley, Working with Children and Young People Subject to Immigration Control, Guidelines forBest Practice, 2nd edition 2012, available at: http://bit.ly/1etJowr. See also ILPA’s Resources Guide for Legal
Practitioners Working with Refugee Children Shauna Gillan with Sarah Myerscough and Alison Harvey Fourth
Edition March 2014.
The Civil Specification 2010, section 8, Immigration, paragraph 8.
The Civil Legal Aid (Immigration Interviews) (Exceptions) Regulations 2012 SI No. 2683, available at:
http://bit.ly/1Bs5dX3.
The Children’s Society, Cut off from Justice, June 2015, available at: http://bit.ly/2jw8U7K.
The Children’s Society; Cut off from Justice August 2017, available at: http://bit.ly/2Gbx9TE.
Para 352ZE Immigration Rules.
High Court, R (SM, TM JD and others) v Secretary of State for the Home Department [2013] EWHC 1144
(Admin), 8 May 2013, available at: http://bit.ly/2kQ6lgW.

52

the normal practice in the case of unaccompanied children, which is to grant leave until they are 17.5
years, but is an important statement of the impact on children of insecurity of status.
Two new forms of leave were introduced in 2018 relating solely to specific groups of unaccompanied
children transferred to the UK from elsewhere in Europe. Those children transferred under section 67(Dubs’ amendment) who do not qualify for leave as a refugee or subsidiary protection are granted ‘section
67 leave’,233 initially for five years. A change to the Immigration Rules was made in October 2019 so thatthese children are granted section 67b leave automatically although they are able to apply for asylum inthe usual way.234 The guidance associated with this change was updated in February 2020. It is describedas non-protection based leave but envisaged that a beneficiary will be entitled to settlement after five
years.
Children transferred to the UK from Calais to join family members under the Dublin III Regulation, if thetransfer took place between 17 October 2016 and 13 July 2017, have similarly been provided with nonprotection-based leave if they did not qualify for leave as a refugee or for subsidiary protection.
Beneficiaries will be entitled to apply for settlement after ten years.235 Most of the guidance relating to
unaccompanied children’s claims was revised in December 2020 to reflect the change in relationshipbetween the UK and EU as the transition period ended. 236 References to EU law, including processes
relating to Eurodac and Dublin III were removed but no other material changes made.
Policy allows for children’s claims to be certified so it is possible that a child’s appeal is non-suspensive;
however, the general policy applies regarding removal of children, so that a certified claim will only resultin a non-suspensive appeal if adequate reception arrangements are in place in the child’s country oforigin.237
2,291 unaccompanied children sought asylum in the UK in 2020.238

E. Subsequent applications
Indicators: Subsequent Applications
1. Does the law provide for a specific procedure for subsequent applications?

Yes

No

2. Is a removal order suspended during the examination of a first subsequent application?
❖ At first instanceYes
No❖ At the appeal stageYes
No
3. Is a removal order suspended during the examination of a second, third, subsequent application?
❖ At first instanceYes
No❖ At the appeal stage
Yes
No
Provision for a subsequent claim is made in the Immigration Rules.239 Where an asylum seeker makes
further representations that are sufficiently different from previous submissions in that the content has notpreviously been considered, and which, taken together with previously submitted material create arealistic prospect of success, these submissions can be treated as a ‘fresh claim’. If they are treated as a
fresh claim then a refusal attracts a right of appeal to the FTT (IAC), and all provisions are the same as
for an appeal regarding a first asylum application (see section on Regular Procedure: Appeal).
233
234
235
236
237
238
239

Home Office, Section 67 of the Immigration Act 2016 leave, July 2018, available at: https://bit.ly/2u3v5bL.
Statement of change of Immigration Rules, September 2019, available at: https://bit.ly/2tkZNQL.
Home Office, Calais Leave, November 2018, available at: https://bit.ly/2Ulczag.
Children (asylum policy guidance), available at: https://bit.ly/3t4u00C
Processing children’s asylum claims, August 2019, available at: http://bit.ly/2Bcs1Le.
Home Office, Asylum Statistics Q4 2019.
Para 353 Immigration Rules Part 12.

53

Case law provides that the threshold to be passed for submissions to be treated as a fresh claim is a'relatively modest' one.240 In practice, lawyers and NGOs say that the threshold employed is very high.
The majority of cases are not treated as a fresh claim and given a right of appeal.
A small percentage of further submissions are treated as fresh claims by the Home Office. Judicial review
is the only means to challenge refusal to treat submissions as a fresh claim, and it is only available withthe permission of the tribunal. In such a challenge the Court must consider whether the Home Officeconsidered the right question, namely, not whether the caseworker thinks it is a strong case, but whether
there is a realistic prospect of an immigration judge, applying ‘anxious scrutiny’, thinking that the applicant
will be exposed to a real risk of persecution or serious harm on return. In so doing, the Home Officecaseworker themselves must also use 'anxious scrutiny'. Whether this has been done is a question the
court can consider for itself on the basis of the evidence that the Home Office caseworker had. 241
In practice, the shortage of publicly funded legal advice and the limitations of judicial review as a remedy
mean that poorly based refusals may go unchallenged, with the asylum seeker resorting instead to making
another set of further submissions. The Home office does not publish the number of fresh claims but inanswer to a parliamentary question the Minister stated that in 2020, 7,341 further submissions were madein support of fresh claims.242
Further representations must be made to the Home Office in Liverpool. Where the claimant is over 18,
this must be done in person unless there are exceptional circumstances such as disability or severe illness
or the best interests of a child require an exception to be made.243 There is no fixed limit to the number offurther submissions that can be made. The response to further submissions is decided on the basis ofwritten submissions and without an interview, but the submissions must be delivered in person at an
appointment. This was changed in March due to the Covid restrictions and although other Home Officeappointments have resumed it remains the case that further submissions are currently accepted by email
or post.
Once they have an appointment (usually 3 to 10 days after it is arranged), applicants need to have themeans to travel to lodge their further submissions. This is problematic as the Home Office will not pay
travel expenses, and most refused asylum seekers who have further submissions to make are destitute.
Liverpool is more than a day’s round trip by cheapest transport methods (usually bus) from many partsof the UK. Although destitute applicants should be eligible for Section 4 support (see section on Reception
Conditions: Criteria and Restrictions) as soon as they have alerted the Home Office to the existence offurther submissions,244 in practice, it is extremely difficult to access support while waiting for an
appointment, and any support is unlikely to materialise before the appointment. It may also be difficult toaccess Section 4 support while waiting for a decision on whether those further submissions constitute a
fresh claim.245 In effect, this means that people with further submissions may be left destitute.
A person may not be removed before a decision is taken on any submissions they have outstanding. 246
Removal directions (the order to a carrier to take the person on a particular flight or crossing) may remainin place while further submissions are being considered, only to be cancelled if the claimant is successful
240

241

242
243
244
245

246

Court of Appeal, WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, 9November 2006, available at: http://bit.ly/2jVIRJ5.
Court of Appeal, R (on the application of YH) v Secretary of State for the Home Department [2010] EWCA Civ
116.
Chris Philip Question for Home Office and response, March 2021, available at: https://bit.ly/3vqhtFZ
Home Office, Asylum Policy Instruction: Further Submissions February 2016, available at: http://bit.ly/2jweaZ5.
High Court, MK and AH v Secretary of State for the Home Department [2012] EWHC 1896 (Admin).
ASAP, Section 4 Support – Factsheet 2 (Breach of Human Rights), October 2018, available at:https://bit.ly/2GbzAa4.
Para 353A Immigration Rules.

54

or if the Home Office decides they need more time to decide. Further submissions may be allowed or
refused at any time until the asylum seeker is actually removed. A last-minute refusal may leave no time
for any further legal challenge, and there is no obligation for the Home Office to respond in time for theasylum seeker to take advice or challenge a refusal.
Preparation of further submissions is funded under a limited form of legal aid (Legal Help). Again this puts
pressure on lawyers, challenging conscientious representatives to maintain quality work. Funding forexpert reports can be obtained from the Legal Aid Agency, though the representative will usually have toargue for this.
The procedure for further submissions is different for unaccompanied children who are still under the ageof 18 when any leave they have expires. The decision maker must make enquiries as to the situation of
the child to ascertain if it has changed since the original grant of leave and conduct a best interest
assessment.247

F. The safe country concepts
Indicators: Safe Country Concepts
1. Does national legislation allow for the use of “safe country of origin” concept?
❖ Is there a national list of safe countries of origin?
❖ Is the safe country of origin concept used in practice?

Yes
Yes
Yes

No
No
No

2. Does national legislation allow for the use of “safe third country” concept?
❖ Is the safe third country concept used in practice?

Yes
Yes

No
No

3. Does national legislation allow for the use of “first country of asylum” concept?

Yes

No

1. Safe country of origin
Legislation allows for a safe country of origin concept. 248 States are designated safe by order of theSecretary of State for the Home Office. The Secretary of State may make such an order where they aresatisfied that ‘there is in general in that State or part no serious risk of persecution of persons entitled toreside’ there, and that removal there ‘will not in general contravene’ the European Convention on Human
Rights. In making the order, the statute requires the Home Secretary to have regard to information ‘fromany appropriate source (including other member states and international organisations’.
Orders are in force in relation to: Albania, Macedonia, Moldova, Bolivia, Brazil, Ecuador, South Africa,
Ukraine, Kosovo, India, Mongolia, Bosnia-Herzegovina, Mauritius, Montenegro, Peru, South Korea andSerbia. The section also allows partial designation, and currently designated as safe for men are: Ghana,
Nigeria, Gambia, Kenya, Liberia, Malawi, Mali and Sierra Leone. There is no appeal against designations.
Designation may be challenged by judicial review. After successful challenges Bangladesh and Jamaica
were removed from the list of designated countries.249
Where an asylum claimant comes from a designated country, the UKVI caseworker is obliged to certify
the case as clearly unfounded unless satisfied that the individual case is not clearly unfounded. The
consequence of the certificate is that an appeal against refusal may only be made from outside the UK(see Accelerated Procedure: Appeal).
247
248
249

Home Office, Processing children’s asylum claims, August 2019, available at: http://bit.ly/2jfz4uD.
Section 94 NIAA.
High Court, R (on the application of Zakir Husain) v Secretary of State for the Home Department [2005] EWHC
189 (Admin); Supreme Court, R (on the application of Brown) Jamaica [2015] UKSC 8, para 36.

55

Challenges by judicial review to safe country of origin decisions are also difficult to establish on a case bycase basis, but some do succeed. For instance, in a case in which the Court of Appeal held that it was
not irrational to treat Gambia as safe in general, the court still held that the applicant’s asylum claim was
not bound to fail. He had already been ill-treated in detention because of his politics, and faced a possible
trial for sedition.250 The general designation as safe is often perceived to be very risky for particular groups
who have not been taken into account in the assessment of the country as safe, as illustrated in theSupreme Court case of Brown mentioned above. In particular, the safety of women has been shown tohave been left out of account. Lesbians, trafficked women, single women who are outside the acceptedfamily structure may all be at risk in some countries designated as safe. Designation is also not reviewed
routinely and there is no automatic review in response to changes in country conditions.
Asylum applicants in 2020 from countries designated as safe were as follows:
Country of origin

Asylum applicants

Albania

3,071

India

1,046

Nigeria (men)484

Brazil

205

Ukraine113

Ghana (men)91

Gambia (men)83

Sierra Leone (men)79South Africa

66

Kenya (men)56

Mali (men)38

Mauritius

32

Mongolia

25

Kosovo15

Malawi (men)12

Bolivia

10

Peru

7

Ecuador6

Liberia (men)5South Korea

2

Serbia1

It appears from this that there is no consistent pattern in terms of the relevance of designation to thenumbers of asylum seekers coming from these countries to the UK.

2. Safe third country
Where it is certified by the Third Country Unit that an asylum claimant comes from a safe third country,
their asylum claim will not be decided in the UK. For different kinds of safe third country decisions, and250

Court of Appeal, MD (Gambia) v Secretary of State for the Home Department [2011] EWCA Civ 121.

56

for challenges to them by judicial review see section on Admissibility Procedure. The concept is usedwidely in practice.
Until the end of 2020 the Immigration Rules defined a “safe third country” a country where: 251(1) the applicant’s life and liberty will not be threatened on account of race, religion, nationality,
membership of a particular social group or political opinion in that country;(2) the principle of non-refoulement will be respected in that country in accordance with the Refugee
Convention;(3) the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman ordegrading treatment as laid down in international law, is respected in that country;(4) the possibility exists to request refugee status and, if found to be a refugee, to receive protectionin accordance with the Refugee Convention in that country;(5) there is a sufficient degree of connection between the person seeking asylum and that country
on the basis of which it would be reasonable for them to go there; and(6) the applicant will be admitted to that country
The rules were amended in December 2020, to come into force at the exact time the UK left the transition
period of exit from the EU. The new rules make no distinction between EU and non-EU states. The newrules remove the requirement for the individual to have a connection to the country to which it is proposed
they be returned. The rules explicitly state that “When an application is treated as inadmissible, theSecretary of State will attempt to remove the applicant to the safe third country in which they werepreviously present or to which they have a connection, or to any other safe third country which may agree
to their entry.”
The Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (AITOCA) provides for the use of asafe third country concept. All EU Member states (except Croatia) as well as Norway, Iceland andSwitzerland are listed in the statute. There is a power to add further countries by order of the Secretaryof State. The only one to have been added is Switzerland. There is no obligation to review the lists, andthere is no appeal against the inclusion of a country on the list.
Safe third country removals may take place on an individual basis to other countries.

2.1. Safety criteria
As regards the required level of protection available in a third country, the High Court assessed theratification of the 1951 Refugee Convention in Ibrahimi and Abasi, although the case concerned a Dublintransfer to Hungary. The applicants complained that their transfer to Hungary would subject them to “chain
refoulement” as the applicants would risk removal to Iran along a chain of unsafe States, including Serbia,
Macedonia, Greece and Turkey. The Court found that Turkey ‘is considered to be an unsafe country’,inter alia since it retains discretion to provide asylum seekers with ‘limited residence but with a status
short of refugee status.’252

2.2. Connection criteria relevant to claims made prior to 31/12/20
The Immigration Rules relevant to claims in 2020 set out a number of non-exhaustive criteria forestablishing a connection between the individual applicant and a safe third country. 253 These include:a. Time spent in the country;

251
252

253

Para 345A-C Immigration Rules.
High Court, Ibrahimi and Abasi v Secretary of State for the Home Department [2016] EWHC 2049 (Admin),paras 136-137 and 176.
Para 345D Immigration Rules Part 11.

57

b. Relations with persons in that country, who may be nationals of that country, habitually resident
non-nationals, or family members seeking protection there;c. Family lineage, regardless of whether family is present in that country; andd. Any cultural or ethnic connections.
Since the change in rules it is clear that a case may be considered under the inadmissibility policy if thereis evidence that an applicant has spent time in or travelled through a country where it is deemed they
could have made a protection claim and benefitted from the principle of non-refoulement. However, theinstruction goes on to state that removal can be to any country that will accept them. Whilst no returnagreements are in place at the time of writing the stated intention is that people seeking asylum will be
returned despite the lack of participation in Dublin III as a mechanism to facilitate that.

3. First country of asylum
The “first country of asylum” concept is defined as a country where an applicant: either (a) has beenrecognised as a refugee and may still enjoy that protection; or (b) otherwise enjoys sufficient protection
including protection from refoulement. In both cases, the applicant must be able to be readmitted to thatcountry.254
The policy in force during 2020 (The October 2019 Home Office policy) states that ‘if the individual has
not been granted protection, they may nonetheless be removable to the country if it has an organised andfunctioning asylum system, if it could be expected to make a valid decision regarding protection status inreasonable timescales, and if it applies the principle of non-refoulement.’255 This principle still exists in the
new rules and guidance i.e. it must be reasonably expected that a claim for protection can be made anddecided upon.

G. Information for asylum seekers and access to NGOs and UNHCR
Indicators: Information and Access to NGOs and UNHCR
1. Is sufficient information provided to asylum seekers on the procedures, their rights andobligations in practice?
Yes
With difficultyNo❖ Is tailored information provided to unaccompanied children?

Yes

No

2. Do asylum seekers located at the border have effective access to NGOs and UNHCR if theywish so in practice?
Yes
With difficultyNo
3. Do asylum seekers in detention centres have effective access to NGOs and UNHCR if theywish so in practice?
Yes
With difficulty
No
4. Do asylum seekers accommodated in remote locations on the territory (excluding borders) haveeffective access to NGOs and UNHCR if they wish so in practice?
Yes
With difficultyNo
The Immigration Rules provide that asylum applicants should be informed ‘in a language they may
reasonably be supposed to understand and within a reasonable time after their claim for asylum has beenrecorded of the procedure to be followed, their rights and obligations during the procedure, and thepossible consequences of non-compliance and non-co-operation. They shall be informed of the likely

254
255

Para 345B Immigration Rules Part 11.
Home Office, Inadmissibility; Safe Third Country cases December 2020, available at: https://bit.ly/3ccbSM9.

58

timeframe for consideration of the application and the means at their disposal for submitting all relevant
information’.256
Further, they shall be informed in writing and in a language they may reasonably be supposed tounderstand 'within a reasonable time not exceeding fifteen days after their claim for asylum has beenrecorded of the benefits and services that they may be eligible to receive and of the rules and procedureswith which they must comply relating to them.’
The Home Office is also required to provide information on non-governmental organisations and persons
that provide legal assistance to asylum applicants and which may be able to help or provide information
on available benefits and services. 257 The charity Migrant Help provides a service, under a contract with
the Home Office. This contract was renewed in January 2019, initially for four years but with a possible
extension for a total of ten.258
Information on the asylum process is given in the initial accommodation centres, both in person and byvideo presentation. Information is also available about the asylum process on the Migrant Help website.259
One to one appointments are offered in initial accommodation centres, and at some outreach locations,at which applications for support can be made, and asylum seekers can make appointments with legal
representatives. However, these are limited.
At the AIU a Point of Claim leaflet is provided,260 which explains the next steps if the case is put into theregular procedure, and what it means to be granted or refused asylum. Unaccompanied children are also
given a leaflet about the Refugee Council Children’s Advice Service and a specific Point of Claim leaflet
aimed at children is still being developed by the Home Office, in consultation with NGOs.261 A letter prior
to the screening appointment also gives information and the Home Office website explains what
documents the asylum seeker needs to bring to the screening interview, and rights and responsibilities
throughout the asylum process in English only.262
A notice giving the contact details of the AIU and the requirement to claim there for a person already in
the UK is linked to the Home Office's website in 15 languages.
There is no provision in the rules for information to be given at later stages. Asylum seekers were notsystematically informed about the Dublin procedure and its implications until they were detained fortransfer to the responsible EU Member State or Schengen Associated State. It is unclear what information
will be provided to applicants regarding the inadmissibility policy, until they are informed they may betreated as inadmissible, through the ‘notice of intent’.

256
257
258

259
260

261

262

Para 357A Immigration Rules Part 11B.
Para 358 Immigration Rules Part 11B.
Home Office, ‘New asylum accommodation contracts awarded’, 8 January 2019, available at:https://bit.ly/2SUJgdM.
Migrant Help advice and guidance, see: https://bit.ly/2GaXCC2.
Point of claim leaflet, available at: https://bit.ly/2ve47Su (English Version; also available in 14 otherlanguages).
The leaflet is not available online but contains contact details, amongst other information. More information
available at: http://bit.ly/2krGHS7.
Home Office, How to claim asylum, available at: http://bit.ly/1G7rHtp.

59

H. Differential treatment of specific nationalities in the procedure
Indicators: Treatment of Specific Nationalities
1. Are applications from specific nationalities considered manifestly well-founded?
❖ If yes, specify which:

Yes

No

2. Are applications from specific nationalities considered manifestly unfounded? 263
YesNo❖ If yes, specify which:Albania, India, Ukraine, South Africa, Mauritius,
Mongolia, Brazil, Bolivia, Ecuador, Bosnia- Herzegovina,
Macedonia, Moldova, Peru, Serbia, Montenegro.
For men only: Ghana, Nigeria, Gambia, Kenya, Liberia, Malawi,
Mali and Sierra Leone.

From time to time the Home Office announces that removals of refused asylum seekers to particularcountries are suspended. This is rare and there are no such concessions currently in force. The only one
in the last ten years was in relation to Zimbabwe, but this is no longer in force. When there is such a
concession in force, refused asylum seekers from that country become eligible to apply for a specific formof support, known as “Section 4 support” and which covers accommodation and non-cash support (seesection on Reception Conditions).264
The response to a political / humanitarian crisis can also be through immigration routes. Immigration visa
concessions have been authorised by Ministers on an annual basis; although the current guidance statesthat the concession ends on 29 February 2020 and no new concession has been published at the time ofwriting.265
The Upper Tribunal (IAC) has the power to make findings of fact which constitute binding ‘country
guidance' for other cases. Depending on whether these issues are brought before the tribunal in aparticular case, there may from time to time be binding country guidance about the impact of a crisis.
Currently there is a country guidance case which says that, due to the high levels of repression in Syria,
any forced returnee from the UK including refused asylum seekers would face a real risk of arrest anddetention and of serious mistreatment during that detention. 266 This does not result in a proactive grant of
status from the asylum authorities but can be relied on by asylum seekers and refused asylum seekers inmaking representations to the Home Office.
From time to time the Home Office may accept that as a matter of fact there is no safe route of return forcertain refused asylum seekers. This may be as a result of country guidance from the Tribunal or as aresult of the Home Office's own factual findings. This qualifies the asylum seekers for a specific form of
support (see section on Reception Conditions) but does not in itself entail a grant of status.
When considering the treatment of particular caseloads at first instance, it is worth noting that thecountries with some of the highest success rates at appeal during 2020 were:Appeal success rates for key nationalities: 2020

263
264
265
266

Country of origin

Successful appeals

Success rate

Turkey43

61%

Eritrea35

59%

Section 94 NIAA.
Home Office, Asylum support, Section 4 policy and support, available at: http://bit.ly/1Ht8SBE.
Home Office; Concessions to the Immigration Rules for Syrian Nationals, available at: https://bit.ly/39C5Hww.
Upper Tribunal, KB (Syria) v Secretary of State for the Home Department [2012] UKUT 00426.

60

Albania

128

50%

Afghanistan

99

41%

Iran

171

48%

Source: Home Office.

In 2020, there were 422 grants of refugee status to Syrians, and the overall refugee status rate was 95%.
Those rejected would normally have a right of appeal, unless the refusal was on the basis that another
Dublin state has responsibility for the claim. Although data on disputed nationality are not published, we
understand that a proportion of refused applicants from countries with very high refugee recognition rates
will include those whose claimed nationality is disputed. Revised guidance on this issue was published in2017.267
The first specific resettlement programme was announced in January 2014; this had no specific quota. In
September 2015 the government committed to resettle 20,000 Syrians by the end of the parliament in2020. By the end of 2020, 19,776 of these had arrived in the UK. 823 resettled refuges came to the UK
in 2020.
In June 2019 the then Home Secretary committed to resettling 5,000 refugees in the year following theend of the current programme (from April 2020). 268 The resumption of resettlement arrivals, suspended
in March 2020 due to the Covid-19 pandemic, has not yet been announced.
In March 2017 the Home Secretary announced that from 1 July 2017 people who have been resettled
would be granted Refugee Status and those already here under a resettlement programme would beallowed to convert their status to recognise them as refugees.269 In July 2017 the Home Secretaryannounced that people of any nationality fleeing Syria would be eligible for resettlement, if they fulfilled
the other criteria. 270
The government launched a Community Sponsorship scheme as part of the VPRS programme. There
are strict criteria for becoming a sponsor, including the type of organisation that can apply and the need
to be approved by the local authority before applying to the Home Office. Guidance was issued at thesame time as the scheme was launched.271
The government has also committed to resettling an additional 3,000 individuals under a ‘children at risk’programme. In partnership with UNHCR, the UK will bring children from the Middle East and North Africa(MENA) region; a minority of whom are expected to be unaccompanied. The government announced theprogramme in response to calls to bring children from Europe. By the end of December 2020, 1,826
individuals had been resettled under this programme.

267
268
269

270

271

Home Office, Nationality; disputed, unknown and other cases, October 2017, available at: http://bit.ly/2F8ky2f.
New global resettlement scheme for refugees announced, June 2019, available at: https://bit.ly/2IhUGoe.
Secretary of State for the Home Department, ‘Statement to Parliament’, 22 March 2017, available at:
http://bit.ly/2DLo4QG.
Secretary of State for the Home Department, ‘Resettlement: Written statement’, 3 July 2017, available at:
http://bit.ly/2DyHeMZ.
Home Office, Community sponsorship, 19 July 2016, available at: http://bit.ly/29VQxZI.

61

Reception Conditions
Short overview of the reception system
First time applicants, that prove to be destitute, are entitled to accommodation and/or a weekly sum ofmoney. Most asylum seekers are provided with initial accommodation (reception centres) designed for
two or three weeks, and then further accommodation, if assessed as eligible for longer term supportusually self-contained for families and shared housing for other adults. This further accommodation mainly
exists of privately owned flats and houses, managed by the companies contracted to the Home Office, orby their sub-contractors. Those on longer term support are also eligible for a weekly cash allowance.
Asylum seekers choosing to live with friends or family are eligible for the cash support but not any
contribution to the accommodation costs. Those refused asylum but supported to avoid a breach of their
human rights can be moved to specific accommodation.
Those awaiting a decision on the longer term support are not given any cash. As the use of full board
accommodation for those on longer term support increased during 2020 (e.g. hotels and repurposed
military barracks) a small amount of cash is now given in addition to the full board.

A. Access and forms of reception conditions
1. Criteria and restrictions to access reception conditions
Indicators: Criteria and Restrictions to Reception Conditions
1. Does the law make material reception conditions to asylum seekers in the following stages of
the asylum procedure?
❖ Regular procedure
Yes
Reduced material conditionsNo❖ Dublin procedure
Yes
Reduced material conditions
No❖ Admissibility procedure
Yes
Reduced material conditionsNo❖ Accelerated procedure
Yes
Reduced material conditions
No❖ First appeal
Yes
Reduced material conditions
No❖ Onward appeal
Yes
Reduced material conditions
No❖ Subsequent application
Yes
Reduced material conditions
No
2. Is there a requirement in the law that only asylum seekers who lack resources are entitled tomaterial reception conditions?
Yes
No
In all procedures for determining a first claim asylum seekers, who can show that otherwise they would
be destitute, are entitled to accommodation and/or a weekly sum of money.
Most asylum seekers are provided with initial accommodation (reception centres) for two or three weeks,
and then further accommodation which is in the same region of the country as administratively defined by
the Home Office. This may be at a considerable distance from where they made their initial claim.
Following a tender process new contracts to provide accommodation were announced in January 2019. 272
One of the previous providers did not receive a contract this time. In March 2019 the government
responded to the Parliamentary Committee’s report about this process and its recommendations forsmooth transition.273 The transition was heavily criticised, and the service provided under the new

272

273

Home Office, ‘New asylum accommodation contracts awarded’, 8 January 2019, available at:https://bit.ly/2SUJgdM.
Government response to the Home Affairs Select Committee on asylum accommodation, available at:https://bit.ly/30M6Yhi.

62

contracts continue to receive attention including in a joint report in July 2020.274 The accommodation andsupport contracts were also investigated by the National Audit Office which has a responsibility to audit
the use of public funds.275 Its report, in July 2020, was then, as a matter of protocol, discussed by theparliamentary committee the Public Accounts Committee.276 The theme of all the criticism is that thecontractors are not meeting the needs of people in the asylum system. By the time of the Public Accounts
Committee inquiry the focus had moved to the increased use of ‘contingency accommodation’; the use ofwhich increased from the beginning of the Covid-19 pandemic although had begun before that time. The
Home Affairs Select Committee conducted an inquiry specifically into the use of contingency institutional
accommodation with a focus on the response the pandemic. 277 Its key recommendation to the Home
Office was to work on a strategy to end the use of this type of accommodation. The government’s
response largely repeated its position in the support and advice provided. 278
The assessment of destitution
In practice asylum seekers are required to prove that they are destitute and this is strictly enforced. All
assets which are available to them are taken into account, whether in the UK or elsewhere, if they consistof cash, savings, investments, land, cars or other vehicles, and goods held for the purpose of a trade orother business.279 If relevant assets come to light which were not declared, support can be stopped andpayments made can be recovered, although it appears that recovery happens infrequently in practice. 280
Asylum seekers are expected to use the assets they have before being granted asylum support, but once
they are assessed as destitute there is no requirement for contributions from them.
At the point at which an asylum support application is made, the applicant completes the form ASF1; they
can get help from the voluntary sector to do this. Applicants have to state that they understand thefollowing as part of the form:“Failure to disclose all necessary information or to provide false information regarding myself or
any of my dependants may lead to information being passed to the police or other agencies forinvestigation. Note that failure to supply the required information may result in your application forsupport being refused.”Specific questions are asked about financial resources available to the applicant, on this form.
Quality of decision making on support applications has been a significant obstacle, particularly in relation
to the destitution test. Between 1 April 2019 and 31 March 2020 the Asylum Support Tribunal allowed
66% of the appeal cases where the client was represented by lawyers from the Asylum Support Appeals
Project (ASAP) and remitted a further 9% back to the Home Office to retake the decision. 281

274

275
276

277

278

279
280
281

Wake up call; how government contracts fail people seeking asylum, Asylum Matters, Refugee Action andothers, July 2020, available at: https://bit.ly/39kS3Ai
Asylum accommodation and support National Audit Office, July 2020, available at: https://bit.ly/3a7T8L8
Asylum support and accommodation transition programme Public Accounts Committee, November 2020,
available at: https://bit.ly/3acK2wN
Home Office preparedness for coronavirus (Covid 19) institutional accommodation, Home Affairs SelectCommittee, July 2020, available at: https://bit.ly/3a6838B
Home Office preparedness for coronavirus (Covid 19) institutional accommodation, government response,
November 2020, available at: https://bit.ly/2KSVNzD
Reg. 6 Asylum Support Regulations 2000, available at: http://bit.ly/1C2R7GQ.
Reg. 20 Asylum Support Regulations 2000.
ASAP, Bulletins and quarterly stats, available at: https://bit.ly/3t6wM4t.

63

1.1. Emergency support: Section 98 Support
During the assessment of a person’s eligibility for Section 95 support, asylum seekers may receive
support on a temporary basis (“Section 98 support”).282 This can only be received once the claim isregistered and is mainly non-cash assistance. The application must be made on a prescribed form, andthis is the only formal requirement.283 There is a policy that a destitute asylum seeker should be seen thesame day so that they can register their asylum claim and claim Section 98 support.
Home Office guidance provides that asylum seekers may stay in initial accommodation for a short timeafter their initial support under Section 98 has ended.284 Where further support has been refused this canbe up to 7 days; where leave has been granted, up to 28 days; where leave has been refused, 21 days.
If there are children, support can continue. 285 This also continued in response to the Covid-19 pandemic
and although the Home office began to cease support to refused applicants in the autumn of 2020, thiswas legally challenged and an order from the judge ensured that at the time of writing refused applicants
support usually continued, although this was not automatic and cessation of support letters had to beappealed.286

1.2. Section 95 Support
Once the destitution assessment is complete, an asylum seeker who is accepted to be destitute receives
what is commonly referred as Section 95 support. They are considered destitute if they do not haveadequate accommodation or any means of obtaining it, or else they do have adequate accommodation
but no means of meeting their other essential needs, or else they will be in this position within 14 calendar
days.287 The entitlement to Section 95 support covers the asylum procedure and continues until 28
calendar days after a form of leave is granted or, if the claim is refused, until 21 calendar days after a
non-appealable decision or the expiry of the time allowed to appeal the most recent decision (this is called
Appeal Rights Exhausted, ARE). Support is provided using a card (ASPEN) which works on the visa
platform; it can be used as a debit card or to withdraw cash from an ATM (cash is available for s95
beneficiaries only).
Once an asylum claim is refused and appeal rights exhausted, Section 95 support stops, except forfamilies with children. In August 2015 the government launched a consultation proposing to stop the
support of families also when claims are refused. 288 Before the results of the consultation wereannounced, a Bill was introduced into Parliament to bring these proposals into law. The Immigration Act
2016 outlined the measures,289 although that part of the Act is yet to be enacted and details will not beknown until a month prior to the introduction. Asylum seekers then become absolutely destitute, with noentitlement to accommodation or money. People in this position may be reliant on friends, who maythemselves be in asylum support accommodation which prohibits guests, and who thus risk losing theirsupport by hosting a friend. Many destitute refused asylum seekers rely on charities for food vouchers,
food parcels, sometimes accommodation (mainly through voluntary hosting schemes) or small amountsof money. One reason that the backlog of unresolved asylum cases has caused such public concern isthat refused asylum seekers, who may still be trying to establish their claim, may spend years indestitution.

282
283
284
285
286

287
288
289

Section 98 IAA 1999.
Home Office, Application for asylum support: Form ASF 1, 11 January 2016.
Para 1.1.2, Asylum Support Policy Bulletins Instructions, available at: http://bit.ly/1LjSzbh.
Home Office, Asylum Support Bulletin 73: Access to Support.
High Court Interim relief order in QBB v Secretary of State and Asylum Support Tribunal available to download
from: https://bit.ly/2NBeskp
Section 95 IAA 1999.
Schedule 11 Immigration Act 2016.
Ibid.

64

Obstacles to claiming support include that the application form is 33 pages long,290 is in English only andis only available online. A 17-page guidance document gives advice on how to complete it. Telephoneadvice is also available from the charity Migrant Help under a government contract. The Migrant Help
website also has multilingual guides to claiming asylum support, amongst other issues. Any supporting
documentation is also handled by Migrant Help; documents can be scanned and communicated to theHome Office via Migrant Help, avoiding the need to submit original documents. Asylum seekers in initialaccommodation centres are assisted to make this application and face to face advice is available there.
Where asylum claimants have been in the UK for some time without government assistance, it may bedifficult for them, especially without advice, to gather the right evidence for support claims. They may needto get letters from friends / acquaintances they have lost touch with for example, to show what support
they have and why this is no longer available to them. Information on Migrant Help’s website informs
applicants that all information and supporting documents must be provided before the application is
submitted to the Home Office. If applicants do not have this information they will experience a delay intheir application for support being processed.291
The policy of dispersing asylum seekers round the UK and usually away from the south east may also
provide a disincentive to ask for accommodation from the Home Office. Asylum seekers may decide tolive in poor conditions with friends or relatives in London rather than move far away from them andperhaps their legal adviser.
Support may be available (accommodation and subsistence payments, the level determined by need)from local authorities where the person is destitute and in need of care and attention because of physicalor mental ill health, but recognition of this statutory provision is very uneven around the country and somelocal authorities simply do not assess refused asylum seekers, or delay for lengthy periods, despite thestatutory duty to do so.292 Where ill health results from destitution, and not from another condition, local
authority support is not available. Thus it does not present any solution for the people whose health isruined by years in destitution. Revised guidance was published in 2018 reflecting the provisions in theCare Act (applying to England) and similar provisions in devolved administrations and the relationshipbetween local authority duties and Home Office asylum support provision. 293
There is a provision for support to be refused if asylum has not been claimed as soon as reasonably
practicable, unless to do so would breach the person's human rights. 294 This is rarely used for claims
made soon after arriving in the UK, but may be used where a person claims asylum after a period ofresidence in the UK. Human rights protection, following the House of Lords case of Limbuela,295 meansthat a person will not be made street homeless as a result of this provision, but may be denied cash
support if they have somewhere to stay.
The levels of asylum support are reviewed on an annual basis. At the beginning of the national lockdown
in March 2020 and subsequent to the government’s announcement that recipients of the main welfare
benefit would receive an increased level of support during the pandemic, ngos wrote to the Immigration
minister to ask for a similar measure to be taken with regard to asylum support. Instead the usual review
was undertaken; an interim decision in June revised the rate to £39.60 (€44.87) per week and in October
the rate increased to £39.63 (€44.90). The rate prior to June was £37.75 (€42.76). This rate also now
applies to those on section 4 support.

290
291
292
293
294

295

Home Office, Application for asylum support: form ASF1, 11 January 2016, available at: http://bit.ly/1RfS1qt.
Migrant Help advice, see: https://bit.ly/2Gg1Qsc.
Section 9 Care Act 2014.
Home Office, Asylum Seekers with Care Needs, August 2018, available at: https://bit.ly/2DcZBFa.
Section 55 NIAA 2002; House of Lords, Limbuela v Secretary of State for the Home Department [2005] UKHL
66.
House of Lords, Limbuela [2005] UKHL 66.

65

Those asylum seekers supported in full board accommodation do not ordinarily receive any cash
payment. However, in October it was confirmed that in recognition of the increased use of suchaccommodation, those supported under section 95 and section 4 would receive £8 (€9) in cash per week
to allow them to pay for essential toiletries and travel296.

1.3. Additional support: Section 96(2) Support
In 2017 the Home Office published guidance on how to make applications under Section 96(2)Immigration and Asylum Act 1999.297 The policy is not new but guidance had never been issued despite
the government relying on its existence to ensure that applicants and/or their dependants in particular
circumstances would have their needs met. Examples of such circumstances given in the guidance
include a person whose medical needs result in higher costs or has their belongings destroyed in a fire.

1.4. Section 4 Support for rejected asylum seekers
A minority of refused asylum seekers qualify for no-choice accommodation and a form of non-cash
support from the Home Office (“Section 4 support”) if they meet one of the qualifying conditions set out inthe next paragraph.298 During 2017 the delivery of Section 4 support changed to the ASPEN card; whilst
cash may not be withdrawn recipients of Section 4 support may now use the card as a debit card at any
retailer accepting Visa. This card had a weekly value of £35.39 (approximately €41) per person until June
when the rate rose to equal the rate of people supported under section 95. In October this rate wasconfirmed as £39.63 (€44.90).
Section 4 support is available only if refused asylum seekers can show either that they are not fit to travel,that they have a pending judicial review, that there is no safe and viable route of return, that they aretaking all reasonable steps to return to their home country, or that it would be a breach of their humanrights not to give this support.299 In practice this latter category is used mostly where the asylum seeker
has further representations outstanding. The principle underlying this is that if a person does not meet
one of the other conditions, and does not have further representations outstanding, it is not considered abreach of their human rights to leave them destitute; because it is considered that they can return to theirhome country. The period of Section 4 support is tied to meeting the condition. So people may submit
further representations; obtain Section 4 support, move, and a few weeks later receive a refusal of theirfurther representations and so return to destitution. This process may be repeated.
The absence of a safe and viable route of return is rarely accepted unless there is a Home Office policyof non-return in relation to the country in question. Attempting to prove that they have taken all reasonable
steps to return is problematic for those who come from countries with which diplomatic relations are
suspended, or whose embassies have complex requirements which are difficult to fulfil, or who belong toa group which is denied documents by their country of origin. There are also practical problems, giventhat they are destitute, in obtaining the fare to visit their embassy, the resources to send faxes, makephone calls, and so on.
Applications for Section 4 support for refused asylum seekers must be made through the online andtelephone service, except for vulnerable applicants who can have a face to face appointment at the initialaccommodation centres or at an outreach centre where these exist.

296
297
298
299

Letter to ngos from the Immigration Minister, October 2020, available at: https://bit.ly/3a60w9T
Home Office, Applications for additional support, March 2017, available at: http://bit.ly/2G9AD94.
The numbers of refused asylum seekers in the UK are unknown, but the proportion on Section 4 is small.
Immigration and Asylum (Provision of Accommodation to Failed Asylum Seekers) Regulations 2005.

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For all refused asylum seekers who cannot fulfil the conditions for Section 4 support, with the exceptionof families who have retained Section 95 support, (see below) there is no support available. If, for whateverreason, they are unable to return to their country of origin, these asylum seekers are left destitute andhomeless.
The numbers of refused asylum seekers who are absolutely destitute in the UK is unknown. The British
Red Cross used to provide regular updates on its website on the asylum seekers it helps because ofdestitution. The last time it publicly reported was in 2017 when the charity supported more than 15,000
destitute asylum seekers and refugees.300 In its annual report of 2019 it stated that it had helped 40,500
refugees and asylum seekers, including 14,300 people facing destitution because of their legal status.301

2. Forms and levels of material reception conditions
Indicators: Forms and Levels of Material Reception Conditions
1. Amount of the monthly financial allowance/vouchers granted to asylum seekers as of 31
December 2019 (in £ and in €):❖ Section 95 support per person:£171.73 / €194.52❖ Section 4 (non-cash) support per person:£171.73 / 191.52❖ An additional £8 (€9) is paid to those in full board accommodation, if supported under
section 95 or section 4.
Section 95 cash support amounts to £171.73 per calendar month per person. There are no different rates,
depending on the claimants’ ages and household compositions.
The amounts of Section 95 support are set by regulations, while Section 4 rates are a matter of policy. 302
Small additional payments are available for pregnant women (£3 per week) if they claim this. They may
also claim a maternity allowance of £250 (Section 4) or £300 (Section 95). Home Office guidance makes
it explicit that pregnant women can be provided with the cost of a taxi journey when they are or may be inlabour.303 Parents on section 4 support may claim an additional £5 on the card per week for children under
12 months, £3 per week for children between 1 and 3 years, and a clothing allowance for children under
16. None of these payments are made automatically, and if the asylum seeker is not aware of them or
has difficulties in applying, the payments are not made. Section 4 support (for rejected asylum seekers)
is paid at a flat rate of £ 39.63 per person per week. In practice, families who have dependent children
before they have exhausted all appeal rights normally stay on cash support (Section 95) after their claim
has been refused for as long as they remain in the UK or until the youngest child turns 18, although thiscan be removed if they do not abide by conditions. 304
The amount of support is not adequate to meet basic living needs. Asylum support under Section 95 is
now 52% of the rate of welfare benefit for a UK national. People on Section 4 support receive even less,and the restriction to non-cash support means that they may not be able to take advantage of the cheapest
options such as local shops and markets. Applicants for section 4 support are also experiencing delays
and difficulties, as outlined in research conducted in 2019. 305 Children of families on Section 95 andSection 98 support receive free school meals, but children of families on Section 4 do not.
Before the reduction in asylum support rates the adequacy of Section 95 support was the subject of acourt challenge. Judgment was given in the High Court on 9 April 2014, criticising the methodology used

300
301
302
303
304
305

British Red Cross, ‘Speaking up for ending refugee poverty’, 2017, available at: https://bit.ly/2GsWrOJ .
British Red Cross, Annual Review 2019, available at: https://bit.ly/3l98q7p.
Asylum Support (Amendment No.2) Regulations 2015, SI 2015/944.
Home Office, Asylum Process Guidance – additional services or facilities under the 2007 Regulations.
Melanie Gower, Asylum: Financial Support for Asylum Seekers, House of Commons note SN/HA/1909, 2013.
Refugee Action and NACCOM, Missing the Safety Net, 2019, available at: https://bit.ly/37nC5lB.

67

to calculate the rates.306 The Secretary of State was required to remake the decision in the light of thecourt’s guidance. Following review the government concluded ‘that families were receiving more cash
support to meet their essential living needs than they need, because the existing rates do not reflect thepossibility of economies of scale within households’.307 The rates are reviewed annually and consultation
is invited.
Further problems come from faults in the operation of the system, particularly when changes occur, suchas moving from Section 95 to Section 4, or getting refugee status. Families may be left for weeks without
any form of support through administrative delays and mistakes.308

3. Reduction or withdrawal of reception conditions
Indicators: Reduction or Withdrawal of Reception Conditions
1. Does the law provide for the possibility to reduce material reception conditions?
Yes
No
2. Does the legislation provide for the possibility to withdraw material reception conditions?
Yes
No
Legislation does not permit the amount received to be reduced, but support can be withdrawn if the Home
Office has reasonable grounds to believe that the supported person or his dependant has:a. Committed a serious breach of the rules of their collective accommodation;b. Committed an act of seriously violent behaviour whether at the accommodation provided orelsewhere;c. Committed an offence relating to obtaining support;
d. Abandoned the authorised address without first informing the Home Office;e. Not complied with requests for information relating to their eligibility for asylum support;
f. Failed, without reasonable excuse, to attend an interview relating to their eligibility for asylum
support;g. Not complied within a reasonable period, (no less than 10 working days) with a request for
information relating to their claim for asylum;h. Concealed financial resources and therefore unduly benefited from the receipt of asylum
support;i. Not complied with a reporting requirement;
j. Made or sought to make a further different claim for asylum before their first claim isdetermined, in the same or a different name; ork. Failed without reasonable excuse to comply with a relevant condition of support. 309
The credit checks and requirement to show documentary evidence of any other possible forms of financial
or in kind support prior to receiving asylum support means it is not common for support to be withdrawn
in practice. Where it does happen, the most common reason is as a sanction for breach of conditions ofsupport, for instance being absent from the accommodation or allowing others to stay in it. 310 New
guidance for caseworkers on assessing destitution was issued in 2019.311
306

307

308

309
310
311

High Court, R (Refugee Action) v Secretary of State for the Home Department [2014] EWHC 1033 (Admin),available at: http://bit.ly/1iweLSx.
House of Commons, Asylum support: accommodation and financial support for asylum seekers, Briefing paper
no.1909.
See e.g. British Red Cross, Still an ordeal, December 2018, available at: https://bit.ly/2APRYCW; RefugeeCouncil, Refugees without refuge: Findings from a survey of newly recognised refugees, September 2017,
available at: http://bit.ly/2wNIdEz; England’s forgotten refugees, May 2016, available at: http://bit.ly/1U4c3VH.
See also Guardian, ‘“Destitution is routine”: refugees face homelessness even after gaining asylum’, 8
September 2017, available at: http://bit.ly/2wOcuAM.
Reg. 20 Asylum Support Regulations 2000, available at: http://bit.ly/1C2R7GQ.
ASAP, Factsheet 1: Section 95, available at: http://bit.ly/2hpwv9s.
Home Office Assessing Destitution, November 2019, available at: https://bit.ly/37mQlLg

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The risk of destitution is assessed when a decision to withdraw asylum support is taken. Destitution isdefined as a person ‘not having access to adequate accommodation or unable to meet their essential
living needs now or in the next 14 days.’ As described in Forms and Levels of Material Reception
Conditions, refused asylum seekers on cashless support (Section 4) are in practice on lesser conditions
than those pursuing a first claim who are on Section 95 cash support.
Asylum seekers can appeal to the First Tier Tribunal (Asylum Support) in London against a decision towithdraw their support.312 On application the Home Office sends travel tickets to attend the hearing. 313
No emergency measures have been applied in reception centres due to large numbers of arrivals, though
as mentioned in the section on Types of Accommodation, there has been some overcrowding and use of
hotels to deal with the oversubscription.

4. Freedom of movement
Indicators: Freedom of Movement
1. Is there a mechanism for the dispersal of applicants across the territory of the country?
Yes
No
2. Does the law provide for restrictions on freedom of movement?

Yes

No

Movement is not restricted to defined areas, but temporary admission or bail, which is the usual status ofasylum seekers, is usually conditional on residence at a particular address, and there is a requirement tokeep the Home Office informed of any change of address.
Asylum seekers accommodated by the Home Office are not permitted to stay away from theiraccommodation, and the Home Office will cease providing accommodation in practice if an asylum seeker
stays elsewhere for more than a few days.
Allocation to accommodation is done by the private company, which manages property in the relevant
region on the basis of the availability of housing. The initial allocation to a region and to an initialaccommodation centre is arranged after the screening interview. The availability of housing in a region
depends on procurement by the private company, which is affected by local housing markets, and local
authority policy. There has been an increase in the use of institutional accommodation including
repurposed military barracks, which has resulted in media attention.314 The Independent Chief Inspectorof Borders and Immigration announced an Inspection into the use of contingency accommodation and in
March 2021 released some key findings following the team’s visit to both sites formerly used as military
barracks.315 Residents at both sites were normally able to come and go. The exception was during the
major COVID-19 outbreak at Napier, when over a hundred people were confined to their billets forapproximately four weeks and unable to go outside except to use the mobile toilets or showers. They
were warned that they might be arrested if they left the camp. In at least one case, a resident was forcibly
returned to the camp by the police. 316

312
313
314

315

316

Section 103 IAA 1999.
ASAP, Factsheet 3: Appealing to the Support Tribunal, available at: http://bit.ly/2wHmyPo.
The Guardian, Asylum seeker housing conditions under scrutiny at third ex-military site, 14 January 2021,
available at: https://bit.ly/39n1f7m This report includes links to others and summarises concerns.
Independent Chief Inspector of Borders and Immigration, An inspection of the use of contingency asylum
accommodation – key findings from site visits to Penally Camp and Napier Barracks, March 2021, available
at: https://bit.ly/3bBqLXz
Independent Chief Inspector of Borders and Immigration, An inspection of the use of contingency asylum
accommodation – key findings from site visits to Penally Camp and Napier Barracks, March 2021, available
at: https://bit.ly/3bBqLXz

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The limits on asylum seekers’ choice of location have been described in the section on Criteria andRestrictions to Access Reception Conditions. There is no appeal against the location allocated.
Asylum seekers live among the rest of the population and have no restrictions on their freedom of
movement except that imposed by lack of resources and the requirement to stay at the allocated address.
That they stay at the address is monitored by routine visits by the housing providers, and by therequirement to report regularly (anything from twice weekly to every six months) at a regional Home Officereporting centre.317

B. Housing
1. Types of accommodation
Indicators: Types of Accommodation
1. Number of reception centres:
8318
2. Total number of places in the reception centres in 2020:
12,235
3. Total number of persons in dispersed accommodation in 2020: 41,302
4. Type of accommodation most frequently used in a regular procedure:
Reception centre
Hotel or hostel
Emergency shelter
Private housing

Other

5. Type of accommodation most frequently used in an accelerated procedure:
Reception centre
Hotel or hostel
Emergency shelter
Private housing

Other

1.1. Initial accommodation centres
Reception centres, called initial accommodation, each accommodate around 200 people – fewer in
Glasgow and Northern Ireland. These centres are the usual first accommodation for any asylum seeker
who asks for support and is not immediately detained, apart from unaccompanied children. If a placecannot be found on the first night after claim, asylum seekers may be accommodated in an interim hostel
in Croydon while accommodation is found, or in hotels in any region where the initial accommodation isfull. Accommodation in the initial accommodation centres is usually full board with no cash provided.
The short-term use of bed and breakfast accommodation has tended to rise in times of an increase inapplications, although in its response to the Home Affairs Select Committee the government stated thatthe accommodation providers had taken measures to lessen the need for this. The drawback is thatpeople accommodated in a hotel, even if only for one or two nights, have limited or no access to many of
the reception-related rights granted to asylum seekers, with reported cases of persons having only
restricted access to accommodation. The consequence of such temporary ‘emergency’ accommodationis that it additionally delays their access to the support system and other welfare services to which they
are entitled, as it may take a couple of days before they access advice and complete an application for
asylum support.319
Asylum seekers should not stay in initial accommodation for any longer than 3-4 weeks320 days but there
can be dispersal backlogs and it is common to find asylum seekers stuck in initial accommodation for over
3 weeks due to a lack of dispersal accommodation.321 There has been a huge increase in the use of hoteland other full-board accommodation during 2020. The Home Office has issued a statement about the use

317
318
319
320
321

A list of Home Office reporting centres is available at: http://bit.ly/2ryZGPZ.
Many more temporary centres were set up in 2020 because of the Covid-19 pandemic measures.
Information provided by Refugee Action.
Home Office, A guide to living in asylum accommodation, available at: https://bit.ly/30qVIHA
Home Affairs Select Committee, Asylum Accommodation, January 2017, available at: http://bit.ly/2n0KUwI.

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of hotels and other temporary accommodation. 322 A challenge was made by three unaccompanied
children who were being accommodated in a hotel by a local authority, which argued that it wasappropriate. A judge ordered that the case could be heard and in the meantime ruled that a hotel was not
appropriate for unaccompanied children.323 A UK charity has written a guide to the 2019 contracts andhas details about all types of accommodation and services covered.324
If the asylum seeker qualifies for Section 95 support he or she is moved into smaller units, mainly flatsand shared houses, in the same region, but as regions are large this may not be within travelling distanceof their legal representative if they have one. Accommodation is in the North, Midlands and South Westof England and in Wales and Scotland, not in the South or in London. Asylum seekers have no choiceof location. If asylum seekers are not detained after screening there is no distinction in the initialaccommodation based on the claim or its route.
Where a person has family and friends with whom they can live they can claim cash support. There arereports that some asylum seekers take only cash support and continue to ‘sofa-hop’ i.e. move from one
person to another, staying on floors and in shelters, because they do not want to leave London. The
Home Office may consider a request to be accommodated in London or the South East if the applicant
is in receipt of therapeutic services from the Helen Bamber Foundation or the NGO Freedom from Torture.
At the end of 2020, Initial accommodation centres, hotels and former military barracks wereaccommodating people receiving section 98 support. The numbers were much higher than usual as the
pandemic resulted in the Home Office providing accommodation to more people seeking asylum; this wasdue to an agreement (and subsequently a court order) that people would not be evicted to destitution,
and also because of an increasing backlog of asylum decisions. It was not due to a rise in the number ofpeople seeking asylum. The number of people supported under section 98 at the end of 2020 was 12,235(3 times higher than at the end of 2019).

1.2. Dispersed accommodation
All accommodation for asylum seekers is managed by three large private companies under contract tothe Home Office, much of which is provided though sub-contracts to smaller companies. The assessment
process for eligibility for the accommodation remains with the Home Office, which is ultimately responsible
in law for the provision of accommodation. The companies remain responsible to the Home Office under
the terms of their contracts to provide and manage the accommodation. New contracts were approved in
January 2019 for a ten-year period.325
The contract between the Home Office and the private companies requires that families shall be housed
in self-contained accommodation.326 In practice there is some use of hostel-type accommodation forfamilies with small children, and some lone parent families are housed with unrelated families, though
nuclear families are normally kept together.327 Accommodation frequently fails to meet the needs ofsupported persons, particularly those with children or mobility and health needs. Asylum accommodation
has been repeatedly criticised for failing to provide security, respect for privacy and basic levels of hygiene
and safety, particularly for women; in the media and in the House of Commons Home Affairs Select

322
323
324
325

326
327

Home Office media blog, available at: https://bit.ly/30rr0OJ
The order is not publicly available but is discussed in detail, see: https://bit.ly/3cf7mwe
Asylum Matters; The Asylum Accommodation and Support Contracts – a guide, 2019, https://bit.ly/38vIlYs.
Home Office, ‘New asylum accommodation contracts awarded’, 8 January 2019, available at:https://bit.ly/2SUJgdM.
Home Office, Compass Project: Schedule 2, Accommodation and Transport, Statement of Requirements, B.8.
Evidence given to the Parliamentary Enquiry on Asylum Support for Children and Young People.

71

Committee report published in December 2018.328 The same committee looked at the government’s
Covid-19 preparedness with a focus on Institutional Accommodation in 2020.
The most common form of accommodation after the initial period in the initial accommodation centres isin privately owned flats and houses, managed by the companies contracted to the Home Office, or by
their sub-contractors.
Section 4 support can only be provided as a package including accommodation, in a location determinedby the Home Office, and ‘facilities for accommodation’ i.e. the ASPEN card with no facility for cash.
Consequently, the recipient cannot choose to receive financial support only (as they can with Section 95)
and continue to live with family members who are not included in the support application. This means thatthe family will be split, possibly over some distance, the person on Section 4 having no cash with whichto travel to visit.

2. Conditions in reception facilities
Indicators: Conditions in Reception Facilities
1. Are there instances of asylum seekers not having access to reception accommodation becauseof a shortage of places?
Yes
No
2. What is the average length of stay of asylum seekers in the reception centres?

Not available

3. Are unaccompanied children ever accommodated with adults in practice?329

Yes

No

The most common form of accommodation is the initial accommodation centres and then privately owned
flats and houses.

2.1. Conditions in initial accommodation centres
In the centres food is provided at fixed times. There is little choice but sometimes people who make theirneeds known will be given food that is more suitable for them. One of the centres, opened in 2017,provides self-catering accommodation with cooking facilities and vouchers for a local supermarket. Thissystem has not been extended to other centres.
Lighting is not always sufficient, since it may in some centres be turned off. Rooms are generally lockable,
but the fact of sharing with a stranger removes some of the benefit and practicality of this.
In the initial accommodation centres, there is no guarantee that single people will be accommodated on
single sex corridors; this is the practice in some centres but not in others. The Home Affairs selectCommittee received several reports of women feeling unsafe and made strong recommendations in thisregard. It was also critical of the conditions for pregnant women and new born babies.330
The initial accommodation is for a short stay (government advice is that it should usually be for 3-4 weeks).
Asylum seekers are able to go outside at any time.
There has been an increase in the use of institutional accommodation including repurposed military
barracks, which has resulted in media attention. 331 The Independent Chief Inspector of Borders and
328

329
330
331

House of Commons, Asylum accommodation: Replacing COMPASS, December 2018, available at:https://bit.ly/2A164kM.
If the Home Office makes an initial assessment that the unaccompanied child is an adult.
Home Affairs Select Committee, Asylum Accommodation, January 2017, available at: http://bit.ly/2n0KUwI.
The Guardian, Asylum seeker housing conditions under scrutiny at third ex-military site, 14 January 2021,
available at: https://bit.ly/39n1f7m This report includes links to others and summarises concerns.

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Immigration announced an Inspection into the use of contingency accommodation and in March 2021
released some key findings following the team’s visit to both sites formerly used as military barracks. 332 It
reported issues in management and leadership, mental health problems among residents. People at highrisk of self-harm were located in a decrepit ‘isolation block’ which the Inspection considered unfit for
habitation. It also found that residents who may have been children were also housed in the same block
pending an age assessment. The environment at both sites was found to be impoverished, run-down
and unsuitable for long-term accommodation. Cleanliness at both sites was variable at best and cleaning
was made difficult by the age of the buildings. Some areas were filthy. 333

2.2. Conditions in dispersed accommodation
Dispersed accommodation, in flats and houses among the general population, is where asylum seekers
stay for most of the time while their claim is being decided. Basic furniture and cooking equipment isprovided. Although nuclear families are housed together, two single parent families may be placed in one
house together, and this has caused significant problems. In the north east of England in particular there
have been difficulties caused by the new contractor failing to reach an agreement with a former subcontractor around the provision of housing. 334 The relevant Parliamentary Committee had paid muchattention to this issue and questioned the government about arrangements. 335 The increased use of
institutional accommodation, as well as the new accommodation contracts, has been the subject of much
scrutiny in 2020 and is discussed at the beginning of the accommodation section.
As there is no choice of accommodation, families may be separated if they are not claiming asylum
together. For instance, where the father of a child is not an asylum seeker or is not part of the sameasylum claim as the mother, mothers are placed in accommodation without their partners. This
accommodation is, in most cases, in a different city, and sometimes in a different region, from where thechild’s father lives. Being close to the child’s father is not normally accepted as a reason to be in aparticular location. ‘The strict rule that no-one else is allowed to stay overnight in accommodation provided
by the Home Office deprives the new-born baby, and indeed other children in the family, of the opportunity
to build a relationship with their father’.
The impact of living on Section 4 support is discussed in the section Forms and Levels of Material
Reception Conditions.

332

333

334

335

Independent Chief Inspector of Borders and Immigration, An inspection of the use of contingency asylum
accommodation – key findings from site visits to Penally Camp and Napier Barracks, March 2021, available
at: https://bit.ly/3bBqLXz
Independent Chief Inspector of Borders and Immigration, An inspection of the use of contingency asylum
accommodation – key findings from site visits to Penally Camp and Napier Barracks, March 2021, available
at: https://bit.ly/3bBqLXz
Reported in the local media including: The Chronicle, ‘Hundreds of North East asylum seekers could be forcedout of their homes at the end of August’, 25 August 2019, available at: https://bit.ly/2TWFjbI; Teesside Live,‘Families will be forced to move from their homes as new housing provider takes over’, 2 September 2019,available at: https://bit.ly/2NQYQH1.
Home Affairs Committee, Asylum accommodation: replacing COMPASS: Government Response to theCommittee’s Thirteenth Report of Session 2017–19, 8 March 2019, available at: https://bit.ly/38BM0Ey.

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C. Employment and education
1. Access to the labour market
Indicators: Access to the Labour Market
1. Does the law allow for access to the labour market for asylum seekers?
❖ If yes, when do asylum seekers have access the labour market?

Yes
1 yearNo

2. Does the law allow access to employment only following a labour market test?

Yes

No

3. Does the law only allow asylum seekers to work in specific sectors?
❖ If yes, specify which sectors: listed shortage occupations

Yes

No

4. Does the law limit asylum seekers’ employment to a maximum working time?
❖ If yes, specify the number of days per year

Yes

No

5. Are there restrictions to accessing employment in practice?

Yes

No

Asylum seekers are not generally allowed to do paid work. The limited exception is that they may apply
to the Home Office to be given permission to enter employment when their claim has been outstanding
for a year.336 The same applies when further submissions have been outstanding for a year, whether or
not they have been recognised as a fresh claim.337 If permission is granted it is limited to applying forvacancies in listed shortage occupations. These are specialist trades and professions which are in short
supply in the UK and are defined very specifically although many medical and teaching occupations haverecently been included. Self-employment is prohibited.338 The lack of discretion in the policy allowing theHome Office to grant permission to take up employment not on the shortage occupation list waschallenged successfully at the end of 2020. Two cases, one specifically relating to a refugee who wasalso a victim of trafficking339 and a refugee who was not340 successfully challenged the fact that discretion
to grant such permission had never been used; therefore the policy was declared unlawful. No change
has yet been made.
A campaign was launched in 2018 to Lift the Ban341 which refers to the above policy; the main campaign
aims are for the government to reduce the waiting time to get permission to work to six months and toallow access to all vacancies, not those on the shortage occupation list. The campaign has manymembers from refugee and other sectors and has some parliamentary support, leading to debates, ashort Bill and an amendment to the Immigration and Social Security Co-ordination (EU Withdrawal) Billduring 2019.342
Two legal judgments towards the end of 2020 ruled that the Home Office has the discretion to allow
asylum seekers to work in any occupation.343 One case involved an individual who had been trafficked.344
The policy has not yet been changed.

336
337
338
339

340

341
342
343

344

Para 360 Immigration Rules Part 11 B.
Court of Appeal, ZO (Somalia) v Secretary of State for the Home Department [2009] EWCA Civ 442.
Para 360D Immigration Rules Part 11 B.
LJ (Kosovo), R (On the Application Of) v Secretary of State for the Home Department [2020] EWHC 3487
(Admin) (18 December 2020), available at: https://bit.ly/3eo5dPV
Garden Court, Home Office work policy declared unlawful, C^ - judgment reported by legal team, 14 January
2021, available at: https://bit.ly/38o3LJt
See: https://www.refugee-action.org.uk/lift-the-ban/
Lift the ban coalition website: http://lifttheban.co.uk/ .
CG v Secretary of State for the Home Department lawyers note and judgment available at:https://bit.ly/39lqVkE
LJ (Kosovo) v Secretary of State for the Home Department, available at: https://bit.ly/3a6wfYt

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The main obstacle is that since these occupations are so narrowly defined, the chances that an asylum
seeker will qualify are quite low. The asylum seeker’s residence status does not change as a result ofobtaining permission to work. They remain on bail and subject to conditions which may include residing
at an address that they give. There is no special access to re-training to enable access to the labour
market. Any vocational training is subject to the conditions for education set out in the section on Accessto Education.

2. Access to education
Indicators: Access to Education
1. Does the law provide for access to education for asylum-seeking children?

Yes

No

2. Are children able to access education in practice?

Yes

No

Education is compulsory for children from 5 to 16. This includes children seeking asylum, who attend
mainstream schools local to where they live under the same conditions, formally, as other children in theirarea. However, destitution may affect their access to education. For instance, children on Section 4
support are not entitled to free school meals or other benefits and yet have no cash to pay for school
meals. There are not generally preparatory classes to facilitate access. If children seeking asylum havespecial educational needs these may be assessed and met as for other children.
There is no general legal bar to adult asylum seekers entering into education, although specificprohibitions on people claiming asylum can be placed through a bail condition,345 and many people havebeen affected by it, particularly as the first iteration of the guidance was unclear in the government’s
position that there should not generally be bar on asylum seekers accessing education until a refusal ofasylum.346 The Home Office also conceded a judicial challenge establishing that there should not be a
general bar on refused asylum seekers accessing education. 347
Whilst children are entitled to access free school education, the barriers for adults in further and higher
education are financial since (other than in Scotland) in addition to the high fees and lack of access toloans they also have no access to mainstream benefits or work. Indeed, the UK maintains different
provisions for 'home' students and 'overseas' students for further and higher education. Regulations
permit universities to charge higher fees to overseas students than to home students.348 The regulations
do not compel universities to charge these higher fees, but a government subsidy is only paid for home
students, and so for economic reasons universities charge the higher fees. Asylum seekers are routinely
classed as overseas students, and are thus liable to pay overseas student fees for university educationof £8,500 to £29,000 per year (approx. between €10,100 - €34,500). This is prohibitive generally forsomeone seeking asylum.
In Scotland, the child of an asylum seeker or a young asylum seeker (under 25) is treated as a home
student if they meet a set of residence conditions including 3 years residence in Scotland. 349

345
346
347

348

349

Home Office, Immigration Bail, August 2018, available at: https://bit.ly/2xxta19.
Refugee Council, Immigration bail and right to study, July 2018, available at: https://bit.ly/2C8yFWd.
Duncan Lewis Solicitors, News: ‘Home Office concedes unlawful imposition of study restriction as a bailcondition on individuals who are ‘appeals rights exhausted’, November 2019, available at:https://bit.ly/36qhFr3.
Reg. 4 Education (Fees and Awards) (England) Regulations 2007 SI 779; Reg. 4 Education (Fees andAwards) (Wales) Regulations 2007 SI 2310. The residence requirements in England are mitigated by Supreme
Court judgment in R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills
UKSC [2015] 57 which held that the English requirement for the applicant to be settled (i.e. have indefinite
leave to remain) was discriminatory and unlawful. Other residence requirements remain in place.
Reg. 4 Schedule 1 Higher Education (Fees) (Scotland) Regulations 2011 SI 389.

75

In England, Wales and Northern Ireland some universities have agreed to treat asylum seekers(generally on a limited individual basis) as home students. However, there has been a judicial
development in relation to education costs for young people who have been in local authority care. The
Court of Appeal held that there is a duty on a local authority to make a grant for educational expenses aspart of its support to a child leaving its care, to the extent that the child’s educational needs require this.
The court held that their immigration status was relevant to their need. The resources of the local authority
were not relevant.350
If a person is eligible under the regulations to pay ‘home’ fees, it is worth checking the relevant student
support regulations. Student support is governed by ordinary residence in the country where they havebeen living, not where the educational institution is. So someone could be a 'home' fee payer if studying
in Wales, Northern Ireland or Scotland, but if ordinarily resident in England before moving to undertake
their course, they would not be eligible for any student support at all when they claim it (from Student
Finance England) in England.351 Even where a university agrees to treat an asylum seeker as a home
student, that person may still need finances to pay the fees. The United Kingdom Council for International
Student Affairs (UKCISA) gives advice and information on student finance and fee status.352
As explained in Unaccompanied Children, young people whose asylum claim is refused are commonly
given ‘UASC leave’. They may apply to extend this before their 18th birthday, and so may be applying tohigher education while still on UASC leave. Young people in this position are also treated as overseas
students. This can impose obstacles on young people who have sought asylum and are leaving local
authority care.353
Under certain conditions asylum seekers are treated as home students for the purposes of further
education. In England, this is the case for those aged 16 to 18, or who have been waiting for a Home
Office decision for more than six months, or who are on Section 4 support or other statutory assistance.
In Wales those on asylum support are treated as home students. In Northern Ireland asylum seekers andtheir families are treated as home students. 354 In Scotland, the conditions are as for higher education,and in addition full-time English courses for speakers of other languages (ESOL) and other part-timecourses may be taken by asylum seekers as home students. One effect is that in England there is a six
month wait for eligibility for free English classes. Research conducted in 2019 reported upon the practicalbarriers and provides a summary of the changes in ESOL provision in recent years. 355
In addition to financial difficulties, language, interrupted education due to experiences as a refugee, andincompatibility of educational systems and qualifications may all be barriers to access to further and higher
education.

350
351

352
353
354
355

Court of Appeal, R (Kebede) v Newcastle City Council [2013] EWCA Civ 960.
The residence requirements for access to student loans in England are mitigated by Supreme Court judgment
in R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57
which held that the English requirement for the applicant to be settled (i.e. have indefinite leave to remain)
was discriminatory and unlawful. Other residence requirements remain in place.
UKCISA, Home or overseas fees: the basics, available at: http://bit.ly/1xWsqix.
STAR, How to Campaign for Equal Access: a Guide, available at: http://bit.ly/1Lv3DUQ.
Circular FE 15/12 of the Department of Employment and Learning.
Refugee Action, Turning words into action, June 2019, available at: https://bit.ly/2RiDynC.

76

D. Health care
Indicators: Health Care
1. Is access to emergency healthcare for asylum seekers guaranteed in national legislation?
Yes
No
2. Do asylum seekers have adequate access to health care in practice?
Yes
LimitedNo
3. Is specialised treatment for victims of torture or traumatised asylum seekers available inpractice?
Yes
LimitedNo
4. If material conditions are reduced or withdrawn, are asylum seekers still given access to health
care?
Yes
LimitedNo
In England, there is free hospital treatment to asylum seekers with a current claim, those refused asylum
seekers who are receiving Section 95 or Section 4 support and unaccompanied children in the care of thelocal authority.356 Current asylum seekers are entitled to register with a general doctor although in practicemany face barriers in registering. In 2016, for example, Doctors of the World assisted 1,906 people,
including asylum seekers, to access the National Health Service (NHS).357 More recent figures are notavailable although some information in this regard is contained in a study by the same charity reportingon issues related to Covid-19.358 The people who are not registered with a GP are highly likely to be
excluded from routine vaccination against Covid-19 as this is being organised through GP practices.
Direct access centres will often ask for ID documents that asylum seekers will not have. Although
everyone is eligible to receive the vaccine significant barriers exist for many migrants, including somepeople in the asylum system. A campaign to remove the barriers has received support from over 300
organisations.359
Free hospital treatment is not generally available to asylum seekers who are not on Section 95 or Section
4 support. Hospital doctors should not refuse treatment that is urgently needed for refused asylum seekers
who are not receiving Section 95 or Section 4 support, but the hospital is required to charge for it. The
hospital also has discretion to write off the charges. Any course of treatment should be continued if it isunder way at the time when asylum is refused, and thus when Section 95 support stops for single
people.360
Accident and emergency services (but not follow-up in-patient care) and treatment for listed diseases arefree to all including refused asylum seekers who are not on asylum support. General doctors have thesame discretion to register refused and unsupported asylum seekers that they have for any person livingin their area.361
In Scotland all asylum seekers are entitled to full free health care, including those refused asylum seekers
not on Section 4 support and including the spouse/civil partner and any dependent children of any ofthese people.362
In Northern Ireland, exemptions for refugees and asylum seekers are similar to those in England exceptthat refused asylum seekers are able to obtain free health care while they remain in Northern Ireland. 363
356
357
358

359
360
361

362

363

Part 4 HM Government National Health Service (Charges to Overseas Visitors) Regulations 2015 No. 238.
Doctors of the World, Our UK clinics, available at: http://bit.ly/2lL5nWf.
A rapid needs assessment of excluded people in England during the 2020 Covid-19 pandemic, available at:https://bit.ly/2Mc636P
Vaccine for all, campaign website available at: https://bit.ly/30tgpTt
Department for Health, Guidance on implementing the Hospital Charging Regulations 2015, para 7.51.
British Medical Association, Access to health care for asylum seekers and refused asylum seekers – guidancefor doctors, April 2012, available at: http://bit.ly/1CqjDlN.
Scottish Government Healthcare Policy & Strategy Directorate, April 2010, CEL 9 (2010) Overseas Visitors’
Liability to Pay Charges for NHS Care and Other Services.
Provision of Health Services to Persons Not Ordinarily Resident Regulations (Northern Ireland) 2015 SI No.
27 reg. 9, available at: http://bit.ly/1PcmHMJ.

77

Access to mental health services is not guaranteed, and is often lacking.364
Specialised treatment for victims of torture and traumatised asylum seekers is available, but is in short
supply. It is provided by a number of independent charities, the largest being Freedom from Torture, theHelen Bamber Foundation, and the Refugee Therapy Centre. Specialist trauma practitioners, including
psychiatrists, psychologists and trauma counsellors and therapists, also work in health authorities andtrusts around the country, but they are few and access is extremely limited. Language and cultural barriers
also hinder appropriate referrals from workers with initial contact, and impede asylum seekers' own
awareness of what is available. Smaller NGOs also specialise in counselling for refugees. 365
In practice, inadequate levels of support, destitution and the charging regime impede and discourage
access to healthcare. Mothers on asylum support who are required to move during pregnancy usuallylose continuity of ante-natal care. Moves during pregnancy may take place including at very late stagesof pregnancy, even when doctors and midwives advise against a move, and are thought to contribute to
the far higher infant and mother mortality rate which there is among asylum seekers.366 Moves sometimes
entail a break of several weeks in antenatal care including monitoring and treatment of conditions suchas diabetes or hepatitis, which need to be sustained during pregnancy. 367 Moves are not frequent onceaccommodation is allocated, but can happen for instance when an asylum seeker is allocated Section 95
or Section 4 housing away from the area where she has been previously living.
Charges for those with no leave to remain in the UK were introduced in April 2015. 368 Respondents to agovernment consultation which preceded these charges voiced concerns that to introduce charges for
migrants which are not fully understood would result in more loss of care for very vulnerable asylum
seekers and refused asylum seekers.369 Guidance was issued by the Government (Department of Health)in April 2016.370 A report from the National Audit office in 2016 reported that the policy has unintended
consequences and that some people are wrongly charged.371 Similar findings were revealed in a reportand review of evidence published by the Equality and Human Rights Commission in 2018. 372
In 2017 the government announced its intention to extend charging for many more frontline services(except GPs) and to introduce a duty for health services in England to check a person’s immigration status
before treating. To enable this to happen regulations were introduced to Parliament; some changes weremade in August 2017 and others in October 2017.373 During a parliamentary debate the government
agreed to review the impact of the regulations. There has been a lot of lobbying on the issue.374 A reportby Doctors of the World in 2017 concluded that people were being deterred from seeking medical care as

364

365

366
367
368

369
370

371

372

373

374

Yohannes Fassil and Angela Burnett, Commissioning mental health services for vulnerable adult migrants
August, 2014, available at: http://bit.ly/2jHiNle.
Some, such as Nasfiyat intercultural Therapy centre, are long established https://www.nafsiyat.org.uk/ andsome specialise in particular groups e.g. Vietnamese Mental Health Service vmhs.org.uk.
Refugee Council and Maternity Action, When Maternity Doesn’t Matter, 2013.
Ibid.
Section 38 Immigration Act 2014 and National Health Service (Charges to Overseas Visitors) Regulations
2015 No. 238.
Department of Health: Migrant Access to the NHS: Consultation, July 2013, available at: http://bit.ly/1JdI3Xw.
Department of Health, Guidance on overseas visitors hospital charging regulations, 6 April 2016, available at:
http://bit.ly/1mU47FG.
National Audit Office, Recovering the cost of NHS treatment for overseas visitors, October 2016, available at:
http://bit.ly/2e4ri6z.
Equality and Human Rights Commission, ‘Asylum seekers in Britain unable to access healthcare’, 29November 2018, available at: https://bit.ly/2QW9WJe.
The National Health Service (Charges to Overseas Visitors) (Amendment) Regulations 2017, available at:
http://bit.ly/2tFXxxz.
See e.g. Health Stream of Sanctuary, ‘Changes to Accessing Healthcare – Impact on Refugees & AsylumSeekers – Take Action Now!’, 31 August 2017, available at: http://bit.ly/2wrObsh.

78

a result of the charges.375 A scoping study of the impact on maternity services conducted in 2017 showedsimilar findings. 376

E. Special reception needs of vulnerable groups
Indicators: Special Reception Needs
1. Is there an assessment of special reception needs of vulnerable persons in practice?
Yes
No
There is no mechanism laid down by law to identify vulnerable groups or persons with special reception
needs, although there is policy that instructs caseworkers to assess whether the asylum seekers haveany special medical needs that will affect dispersal. 377 This policy was revised in 2016, adding specificinstructions to safeguard the continuity of care for pregnant women.
If the asylum seeker has e.g. a medical report, which already shows that they are vulnerable, or has someother individual assessment showing this, the accommodation provider is required to take theirvulnerability into account in providing accommodation.378 The arrangements for accommodation ofchildren have been described above (see section on Types of Accommodation). Aside from this the law
provides no specific measures to address the reception needs of vulnerable groups. A challenge to theprovision of unsuitable accommodation to pregnant women and mothers of new-borns is ongoing.379
If an asylum seeker discloses a health need during screening (i.e. before dispersal) the Home Office must
provide sufficient information to the accommodation provider to ensure that necessary arrangements fordispersal are put in place i.e. appropriate travel, accommodation and location. The accommodation
provider is contractually obliged to take an asylum seeker to a General Practitioner within 5 days ofdispersal if he or she has a pre-existing condition or is in need of an urgent General Practitioner review. 380
Whether needs are addressed in fact is variable according to local practice. Initial accommodation centres
are run by private companies under contract to the Home Office. The Initial Accommodation includes ahealthcare team who offer a basic screening of the health needs of all residents. In practice, unlessvulnerability is identified at one of the initial accommodation centres by a healthcare provider, it is unlikely
to be identified until the asylum seeker discloses a problem to a voluntary, community or community
advice organisation. The provision of suitable accommodation to people with disabilities, in particular thedelays in providing such accommodation was found to be unlawful in a case in December 2020. 381
The Home Office has a ‘protected period’ of eight weeks for women not to be moved for four weeks before
and after giving birth.382 However, the accommodation allocated during this time is in initialaccommodation centres, in which conditions are often not conducive to the care of a new baby. 383 The
particular difficulties for pregnant women and new mothers were highlighted in both the 2018 Home Affairs

375

377
378
379

380
381
382
383

Doctors of the World, Deterrence, delay and distress, 2017, available at: http://bit.ly/2n5nANs.
Maternity Action et al, The impact on health inequalities of charging migrant women for maternity care, 2017,
available at: https://bit.ly/2GuxCSi.
Home Office, Healthcare needs and pregnancy dispersal policy, available at: http://bit.ly/1Vgcw9H.
Asylum Seeker (Reception Conditions) Regulations SI 2005/7.
No.5 Barristers Chambers, Permission to apply for Judicial Review granted in systemic challenge to asylum
accommodation for pregnant women and new-born mothers (Note on the case of r(DK) by the legal team), 12
January 2021, available at: https://bit.ly/30v95qi
Ibid, Home Office Asylum Process Guidance.
AA v Home Office, [2020] EWHC 3416 (Admin), 14 December 2020, available at: https://bit.ly/3buURvU
Home Office, Healthcare needs and pregnancy dispersal policy, available at: http://bit.ly/1Vgcw9H.
Home Affairs Select Committee, Asylum accommodation, January 2017.

79Committee report,384 and the Independent Chief Inspector’s report on the same subject. The government
issued an assurance action plan with its response to the latter report.385 Research from the Asylum
Support Appeals Project, Scottish Refugee Council and Refugee Council revealed the lack of attention to
women’s safety in asylum support accommodation. 386 The government issued revised guidance tocaseworkers in 2019 which included provision for refuge spaces to be funded in cases where that isdeemed necessary.387
If it comes to light that an asylum seeker has been trafficked, they may be referred to special
accommodation run by the Salvation Army where specific support is given and the trafficking caseconsidered. In 2018 the amount of subsistence paid to these individuals was cut to bring it in line withothers in the asylum support system. This change was challenged in court and was successful.388 In
January 2019 guidance was issued by the government advising affected victims how to claim backdated
payments arising from the unlawful cut.389

1. Reception and care of unaccompanied children
Those who are given the benefit of the doubt and those who are accepted as being under the age of 18
are referred to a local authority social services department which becomes responsible for their care. 390
They should be looked after according to the same standards as other young people in the care of local
authorities. There is little practical guidance for social workers on the specific needs of these children,
although statutory guidance for England and Wales was reissued in 2017 and contains more practicalguidance.391 Some helpful information for local authorities has been provided as a result of the transfer
scheme, this guidance was revised in 2018.392 The joint safeguarding strategy published in November
2017 identified future work such as resources for professionals, guidance and training.393 An update ofthis work in 2019 shows that much is still to be completed. 394 No formal update was given in 2020.
In practice the experience of these children varies; some make good relationships with their carer andfeel fully supported. Some are very confused and frightened, are not treated well, and do not have a
named social worker responsible for them. The named social worker is responsible for the implementationof the care plan which details how the child should be looked after through the process. This includes
helping them to find a legal representative. Many discharge this function through referral to the RefugeeCouncil’s Children’s Advice Service (formerly named the Panel of Advisers); funded by the Home Officesince 1994 to assist unaccompanied children through the asylum process including finding legal
representatives for the children.395
Some local authorities, such as those with a port of entry and immigration control within their boundary,
have become responsible for a disproportionate number of unaccompanied children, as the responsibility
384

385
386

387

388

389

390
391

392
393
394
395

Home Affairs Select Committee, Asylum accommodation, December 2018, available at:https://bit.ly/2XBNvOh.
Home Office, Asylum support – Assurance Action Plan, available at: https://bit.ly/2NMOTJt.
Helen Baillot and Elaine Connelly, Women seeking asylum: safe from violence in the UK?, 2018, available at:https://bit.ly/2IWFbFi.
Home Office, Responding to reports of domestic abuse from asylum seekers, 2019, available at:https://bit.ly/36ggBpj.
High Court, R (K and AM) v Secretary of State for the Home Department [2018] EWHC 2951 (Admin), 8
November 2018, available at: https://bit.ly/2Fy4WJE.
Home Office, Claim a subsistence rates back payment: victims of modern slavery, 17 January 2019, available
at: https://bit.ly/2TnE867.
Home Office, Asylum Policy Instruction: Processing an Asylum Application from a Child.
Department of Education, Statutory guidance for unaccompanied migrant children and victims of modern
slavery, November 2017, available at: http://bit.ly/1tZSXZv.
National Transfer Scheme Interim Protocol, available at: http://bit.ly/2l53tMt.
Government, Joint Safeguarding Strategy, November 2017, available at: http://bit.ly/2mXriMd.
Letter to the Chair of the Education Select Committee, June 2019, available at: https://bit.ly/37Aj8wg
Refugee Council Children’s Section Advice Project, available at: http://bit.ly/2F9wTmS.

80

lies with the local authority where the child is first identified. When numbers started to rise in 2015-2016,
particularly around the port of Dover, some local authorities, particularly Kent, reported that they were
finding it difficult to look after them appropriately and asked other local authorities to offer placements forthem. The Immigration Act 2016 included provision for the legal transfer of responsibility from the initial
local authority to a second local authority that has volunteered to take over the care. Initially possible onlyin England; in 2018 the government extended it to Scotland, Wales and Northern Ireland.396 A protocol,
along with information and advice for social workers is available on the ADCS website.397 Funding isprovided to local authorities for the care of unaccompanied children and those who have left care but are
still the responsibility of the local authority. 398
The Refugee Children’s Consortium produced a briefing note outlining some of its members’ concerns
about the operation of the transfer scheme, particularly focusing on the difficulties children face when theirtransfer is uncertain or delayed.399 There had been a drop in the overall numbers transferred since thescheme began; however, the numbers rose in 2020, largely due to the declaration in August that Kent
County Council (responsible for children arriving at the port of Dover) that they had reached their capacity
and would not be taking children into its care. Children were transferred directly from the port into local
authorities around the country. A report by the Children’s Commissioner for England was critical of thetime some children spent at the port awaiting transfer.400 257 children were transferred in total in 2020.
The total number of unaccompanied children seeking asylum children cared for by local authorities inEngland is published regularly. At the end of March 2020 this figure was 5,000, which is 6% of the total
population of children cared for by local authorities in England. 401 An additional 80 are in the care of local
authorities in Wales.402 The governments of Scotland and Northern Ireland do not publish statistics of thiskind.
Once appeal rights have been exhausted the care of young people over 18 is often limited to those forwhom a withdrawal of support would breach their human rights. This tends to be a more minimal provision
than that provided to other young people. Provisions of the Immigration Act 2016 will restrict further the
support that local authorities can provide to those over 18 who are appeal rights exhausted but this has
not yet been enacted.

F. Information for asylum seekers and access to reception centres
1. Provision of information on reception
Paragraph 358 of the Immigration Rules is the only provision in law on information concerning reception
conditions (see section on Accelerated Procedure). Paragraph 344C requires a person who is granted
asylum to be provided with access to information, as soon as possible, in a language that they may
reasonably be supposed to understand which sets out the rights and obligations relating to refugee
status.403
The charity Migrant Help has been providing the Asylum Support Applications UK and Asylum Advice andGuidance services since 2013. In 2019 they retained the contract under a new tender, called Advice,
396

397
398

399
400

401
402
403

The Transfer of Responsibility for Relevant Children (Extension to Wales, Scotland and Northern Ireland)
Regulations 2018, available at: https://bit.ly/2Ry84vI.
National Transfer Scheme Interim Protocol, available at: http://bit.ly/2l53tMt.
Home Office, Unaccompanied asylum seeking children and leaving care: funding instructions, October 2018,available at: https://bit.ly/2DfgsHn.
Refugee Children’s Consortium 2017, available at: http://bit.ly/2DBT2Nv.
Children’s Commissioner, Detention of unaccompanied children arriving in Kent during 2020, 5 February 2021,
available at: https://bit.ly/2OQIPnS
Department for Education, Statistics, available at: https://bit.ly/3vikE2b
Welsh Government, Statistics, available at: https://bit.ly/3bGaDEs
Para 344C Immigration Rules Part 11.

81

Issue Reporting and Eligibility. They provide general information, advice and guidance through a
Telephone Advice Centre, or face-to-face appointments at the initial accommodation centres or outreachsessions. In the first few months of the new contract the organisation was heavily criticised for failing to
respond to the number of calls they were receiving. A number of NGOs wrote to the government tohighlight their concerns in this regard. 404 Migrant Help’s regular newsletters have sought to addressconcerns with regular updates about what action they are taking to improve the access to the service.405
Multilingual information is given via Migrant Help’s website in different forms: web/video presentations,audio briefings and written briefings. These are in 15 languages and may be downloaded.
Asylum seekers are asked at the screening interview if they wish to apply for support. Apart from thedifficulties in claiming (see section on Criteria and Restrictions to Access Reception Conditions), there
are no other significant reported problems in obtaining access to initial support including s.95. Initial
information appears to be adequate.

2. Access to reception centres by third parties
Indicators: Access to Reception Centres
1. Do family members, legal advisers, UNHCR and/or NGOs have access to reception centres?
YesWith limitations
No
Contract terms between the Home Office and the private companies provide that there shall be accessand facilities in initial accommodation for nominated third parties, including NGOs, UNHCR and legal
advisers. Advice and guidance on the asylum process, asylum support applications, welfare and life in
the UK is delivered free by the charity Migrant Help, funded by the Home Office. Advice is generally
available in person at the initial accommodation centres. There is usually access to an initial healthscreening, often provided by a local enhanced primary care service, homeless health service or a General
Practitioner. In at least some regions the obligation to give access to legal advisers is met by an electronic
appointments system in the initial accommodation centre. Through this, appointments are made with local
solicitors or legal representatives who have the legal aid contract and facilities to be able to offer advice
in an office that is close enough to the centre to be accessible for the asylum seeker to find their own way
there.

G. Differential treatment of specific nationalities in reception
There is no differential treatment relating to nationality.

404
405

Letter to Minister of State, 30 October 2019, available at: https://bit.ly/2S072Wv.
Migrant Help, AIRE newsletters, https://bit.ly/2O7m4ZB.

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Detention of Asylum Seekers
A. General
Indicators: General Information on Detention
Total number of asylum seekers detained in 2020:
Number of asylum seekers in detention at the end of 2020:
Number of detention centres:407
Total capacity of detention centres:408

1.
2.
3.
4.

9,620406
438
9
2,671

When asylum seekers are detained, they are detained in immigration removal centres (IRC), usually under
the same legal regime and in the same premises as other people subject to immigration detention. 65%
of immigration detainees in 2020 were asylum seekers. The centres consist of 7 IRC and 2 short-termholding facilities (STHF). The published statistics now include immigration detainees held in prisons; in2020 there were 2,709 immigration detainees held in prison at some point during the year, but it is notknown how many of these claimed asylum either prior to being detained or whilst in detention.
Detention during the asylum decision-making process is not usual. Most asylum seekers whose claim has
not yet been decided are at liberty on a status known as immigration bail. The main exception is inaccelerated procedures. In Dublin and non-suspensive appeal cases, although the individual is not always
detained, detention is more common than in the regular procedure.
If the person is already in immigration detention when they claim asylum, whether they are then released
will be determined by whether criteria for detention continue to exist after the asylum claim has beenmade. These are the criteria set out in the section on Grounds for Detention. Making an asylum claim
does not of itself secure release. Alternatively, if in the judgment of the Home Office official who screens
the asylum application, the claim is capable of being decided quickly, the applicant may be transferred
into fast track detention. This means remaining in immigration detention, but may mean a transfer to adifferent centre.
Asylum seekers may also be detained after their claim has been refused, in preparation for removal. Mostof the content of this section therefore refers to asylum seekers who are detained in preparation forremoval, after final refusal of their claim.
The number of people who had sought asylum at some time and have been detained (“asylum detainees”)
in recent years is as shown in the table below. Many detainees were released during the period of theCovid-19 restrictions on travel, as the law allows for detention when removal will be possible in a specifictime period.
“Asylum detainees” in the United Kingdom: 2014-2020

406

407
408

Detentions throughout the year

Detained at the end of the year2015

14,751

1,250

2016

13,230

1,626

2017

12,916

1,508

2018

12,637

1,085

2019

14,086944

This number relates to the number of incidents of people entering detention, as some people are detained
more than once it is not possible to say how many different individuals were detained in any specific period.
Including short-term holding facilities.
Source; AVID detention. There is an agreement for an additional 600 immigration detention places in prisons.

83

2020

9,620

438

Source: Home Office, Immigration statistics, Detention Tables dt1 and dt13. Note that this does not necessarily meandetention of asylum seekers during the course of the procedure.

Guidance was published in 2017 relating to asylum claims made from detention. 409 It is aimed at thoseconsidering asylum claims from people detained at the point of making their claim, as well as considering
the detention of people during their claim. It does not replace or replicate other guidance on considerationof asylum claims; it is complementary to other guidance.

B. Legal framework of detention
1. Grounds of detention
Indicators: Grounds for Detention
1. In practice, are most asylum seekers detained❖ on the territory:❖ at the border:

Yes
Yes

No
No

2. Are asylum seekers detained in practice during the Dublin procedure?
Frequently
RarelyNever

3. Are asylum seekers detained during a regular procedure in practice?
Frequently
RarelyNever

There are no special grounds in legislation for the detention of asylum seekers. They may be detained on
the same legal basis as others who are subject to immigration control. There is a power to detain pending
a decision as to whether to grant leave to enter or remain; pending a decision as to whether to remove;and pending removal. This power may only be exercised if there is a policy reason to detain this person,
and if they have not already been detained for an unreasonable length of time. The policy reasons arethat:❖ The person is likely to abscond if released;❖ There is currently insufficient reliable information to decide whether to release them (for instancetheir identity cannot be verified);❖ Removal from the United Kingdom is imminent;❖ The person needs to be detained whilst alternative arrangements are made for their care;❖ Release is not considered conducive to the public good;❖ The application may be decided quickly using the fast track procedures.410
Whether a person is likely to abscond is decided on the basis of such factors as whether they haveabsconded before, whether they have a criminal record, whether they have significant relationships in theUK, whether they have reported regularly to the Home Office if required to do so.
Following the Court of Justice of the European Union (CJEU)’s ruling in Al Chodor, which required
Member States to lay down objective criteria for the interpretation of the ‘significant risk of absconding’needed in order to impose detention pending a Dublin transfer, the Transfer for Determination of an
Application for International Protection (Detention) (Significant Risk of Absconding Criteria) Regulations
2017 were introduced. There is a list of eleven criteria to be considered; some are based on an applicant’s
immigration history but the criteria include whether there are reasonable grounds to believe that theapplicant is likely to fail to comply with any conditions attached to a grant of temporary admission orrelease or immigration bail; which is subject to interpretation. The regulations were unsuccessfully
409
410

Home Office, Asylum claims in detention, September 2017, available at: http://bit.ly/2rwD2HN.
Home Office, Chapter 55 – Enforcement Instructions and Guidance, available at: http://bit.ly/2t3RRCs.

84

challenged in a judicial review.411 A challenge to the pre-Al Chodor policy ruled that the claimants had
been unlawfully detained, as the Enforcement guidance had not been compatible with the Dublin
Regulation, specifically Articles 28(2) and 2(n).412
Most asylum seekers are not detained before their claim is decided. However, detention in Dublin cases
is more frequent. When a take charge or take back request has been accepted or deemed accepted by
the prospective receiving country, the asylum seeker will usually be detained prior to removal.
The main development in jurisprudence was the final judgment in the case of applicants detained purely
for the purpose of Dublin transfers, from the Supreme Court. On 27 November 2019 the Supreme Court
unanimously rejected an appeal by the UK Home Office to overturn a landmark ruling from the Court ofAppeal declaring the detention of asylum seekers while their cases were being assessed in the Dublin
Procedure unlawful. The case concerns the pre-removal detention of five Iraqi and Afghan nationals
during the Dublin procedure. Under the Dublin III regulation only people considered at “significant risk ofabsconding” can be detained and none of the five people in question were categorized as such by the UK
Home Office admission.413 The ruling could potentially affect thousands of people unlawfully detained
during the period between January 2014 when the Dublin III regulation came into force and March 2017
when the UK regulations were changed.
The initial processes of a case concerning the ‘removal window’ whereby individuals liable for removal ordeportation receive notice with no specified date for removal was ruled unlawful.

2. Alternatives to detention

1.

Indicators: Alternatives to Detention
Which alternatives to detention have been laid down in the law?

2.

Are alternatives to detention used in practice?

Reporting duties
Surrendering documents
Financial guarantee
Residence restrictions
Other: Tagging
Yes

No

Alternatives to detention are permitted by legislation but not required. Permitted are:(a) Electronic tagging;414(b) Regular reporting;415(c) Bail with sureties;416(d) Residence restrictions.417
Guidelines say that detention should only be used as a last resort. However, no proof is required thatalternatives are not effective. Residence restrictions and regular reporting are routinely applied to all
asylum seekers, and bail will always include residence restrictions and reporting. Breach of these
conditions may result in detention. Electronic tagging is in frequent use mainly for ex-offenders and may
be a bail condition. Numbers of asylum seekers tagged are not available. New guidance relating to
411

412

413

414
415
416
417

Court of Appeal, Omar v Secretary of State for the Home Department [2019] EWCA Civ 207, 21 February
2019, available at: https://bit.ly/2F7kanI.
Court of Appeal, Hammati v Secretary of State for the Home Department [2018] EWCA Civ 2122, 4 October
2018, available at: https://bit.ly/2S1EtLk.
Supreme Court, R (on the application of Hemmati and others) (AP) (Respondents) v Secretary of State for theHome Department (Appellant), [2019] UKSC 56, 27 November 2019, available at: https://bit.ly/2Unm2iC.
Section 36 AITOCA.
Para 21(2) Schedule 2 Immigration Act 1971.
Section 61 Schedule 10 Immigration Act 2016.
Para 21(2) Schedule 2 Immigration Act 1971.

85

Immigration Bail was issued in August 2018.418 This guidance includes the process for referring detainees
for automatic bail consideration, in most cases, four months after the person was first detained and every
four months thereafter.
In September 2016, Detention Action published a report on community-based alternatives to detention,
exploring their potential use in the immigration control context and calling for their further development.419
The Detention Forum has produced a guide to alternatives to detention.420
In response to the second report by Stephen Shaw on the detention of vulnerable people, 421 thegovernment announced that some specific projects (alternatives) would be developed in partnership withthe voluntary sector.422 Details of the first of these was announced in December 2018. 423 Details ofprogress on this pilot and plans for future pilots were outlined in October 2019 by UNHCR which isevaluating the pilots.424
An inquiry by the parliamentary Joint Committee on Human Rights published evidence as it was submitted(oral and written), including evidence from the government.425 In evidence to the Committee the
Immigration Minister stated that in the 10 months since the automatic bail policy was introduced 10% of
automatic bail hearings have resulted in the detainee being granted bail. 426
The Committee published its report on 7 February 2019 and made five main recommendations:427
1. The decision to detain should not be made by the Home Office but should be madeindependently.
2. Introduce a 28-day time limit to end the trauma of indefinite detention.
3. Detainees should have better and more consistent access to legal aid to challenge theirdetention.
4. More needs to be done to identify vulnerable individuals and treat them appropriately.
5. The Home Office should improve the oversight and assurance mechanism in the immigration
detention estate to ensure that any ill-treatment of abuse is found out immediately and action istaken. Concerns over the distressing effect of indeterminate detention.
The government responded in July 2019.428 The response highlighted progress in the areas oftransparency of data, vulnerable people in detention and the introduction of a two-month auto referral for
bail in February 2019.

418
419

420

421

422

423

424

425

426

427

428

Home Office, Immigration bail, August 2018, available at: https://bit.ly/2xxta19.
Detention Action, Without detention: Opportunities for alternatives, September 2016, available at:
http://bit.ly/2kS7qoR.
Detention Forum, Alternatives to detention: Frequently asked questions, July 2018, available athttps://bit.ly/2pDYpmF.
Stephen Shaw, Welfare in detention of vulnerable people review: progress report, July 2018, available at:https://bit.ly/2JQVvmb.
Home Office, ‘Home Secretary statement on immigration detention and Shaw report’, 24 July 2018, available
at: https://bit.ly/2uVZdGQ.
Home Office, ‘New pilot schemes to support migrants at risk of detention’, 3 December 2018, available at:https://bit.ly/2QQEj3X.
UNHCR, Terms of reference: Evaluation of UK Home Office Alternatives to Detention Community Engagement
Pilot Series, October 2019, available at: https://bit.ly/36Dtvhp.
Minister of State for Immigration, ‘Use of immigration detention: The Government’s strategic approach’, 3
December 2018, available at: https://bit.ly/2DdzNc0.
Joint Committee on Human Rights, Oral evidence session, HC 1484, 5 December 2018, available at:https://bit.ly/2TjsfON.
Joint Committee on Human Rights, Immigration Detention Inquiry, 7 February 2019, available at:https://bit.ly/2HVfZyF.
Letter from the Minister of state for Immigration to the chair of the Joint Committee on Human Rights, 23 July
2019, available at: https://bit.ly/2O7PA1a.

86

3. Detention of vulnerable applicants
Indicators: Detention of Vulnerable Applicants
1. Are unaccompanied asylum-seeking children detained in practice?
Frequently
Rarely❖ If frequently or rarely, are they only detained in border/transit zones?
2. Are asylum seeking children in families detained in practice?
Frequently

Rarely

Never
Yes

No

Never

Domestic policy is that vulnerable people are unsuitable for detention, and that they should only bedetained exceptionally, or when their care can be satisfactorily managed. Those who, according to policy
guidance, should be treated as vulnerable are the same in relation to detention generally as in the
Detained Fast Track.429 In practice vulnerable individuals are detained.
Following a review of the treatment of vulnerable people in detention (“the Shaw Review”) in January
2016,430 NGOs expected that guidance would follow the main message of the report – that fewer people
should be detained and that better systems need to be designed to reduce the number of vulnerable
people detained. However, the policy guidance issued in response the report, which also fulfilled therequirements of section 59 of the Immigration Act 2016, makes it more difficult to secure release basedfor example on their experiences of torture or of their deteriorating mental health.431 The definition in the
Adults at Risk policy was more limited than that provided in the UN Convention against Torture (UNCAT).
In a case brought by Medical Justice the definition in this new policy was challenged; the case was heard
in March 2017 and judgment delivered in October 2017.432 At an early stage of the case the Home Office
was ordered to revert to the more generous UNCAT definition, which as the case was successful, remains
the policy.
Stephen Shaw was asked to review the extent to which his recommendations have been met; this review
began in autumn 2017 and was published in July 2018,433 alongside a response from the Home
Secretary.434 The response elicited a mixed reaction from stakeholders although in its evidence to the
Joint Committee on Human Rights the government laid out details of its strategy. Criticisms of thesafeguards introduced as a result of the initial report remain.435 Oversight of the Adults at Risk Policy
forms part of the work of the Independent Chief Inspector of Borders and Immigration. 436

3.1. Detention of women
Pregnant women may only be detained where (a) they will shortly be removed from the UK; and (b) there
are exceptional circumstances justifying detention. 437

429
430

431
432
433

434

435

436

437

Home Office, Enforcement Instructions and Guidance – Chapter 55 Detention, para 55.10
Stephen Shaw, Review into the Welfare in Detention of Vulnerable Persons, Cm 9186, January 2016,
available at: http://bit.ly/2kqYkln.
Home Office, ‘Adults at Risk’ in immigration detention, 6 December 2016, available at: http://bit.ly/2l4ZXkS.
Medical Justice, available at: http://bit.ly/2gyI1zM.
Stephen Shaw, Welfare in detention of vulnerable people review: progress report, July 2018, available at:https://bit.ly/2JQVvmb.
Home Office, ‘Home Secretary statement on immigration detention and Shaw report’, 24 July 2018, available
at: https://bit.ly/2uVZdGQ.
See e.g. BID, Adults at Risk: the ongoing struggle for vulnerable adults in detention, July 2018, available at:https://bit.ly/2AsQbUK.
Independent Chief Inspector of Borders and Immigration, Call for evidence: ‘Adults at Risk’ in immigration
detention, 25 January 2019, available at: https://bit.ly/2ETM5XY.
Section 60 Immigration Act 2016.

87During the passage of the Immigration Act 2016, the government announced a time limit for the detentionof pregnant women.438 This was in response to amendments proposed to the Bill by various
parliamentarians calling for a complete prohibition, a recommendation that had been made in the “Shawreview”, published in January 2016. The Home Office published specific guidance concerning thedetention of pregnant women in July 2016.439
The latest inspection of Yarl’s Wood IRC in June 2017, the detention centre for women, reported thatsome conditions had improved since the previous report although:- 70% of detained women were released into the community, not removed from the UK.
- few women were released on the basis of torture evidence; it was noted that the Home Office
were reluctant to see rape as torture;- Whilst the number of pregnant women detained had reduced, 28 were detained in the six months
leading up to the inspection.440
Although there were no official reports of the numbers of pregnant women detained the practice continues,
as described in a media article.441 In 2020 the government changed the use of Yarl’s Wood IRC from awomen’s removal centre to hold those arriving having crossed the channel in small boats. 442 The decision
to repurpose a prison in Hassockfield to hold women detainees has prompted a campaign to prevent its
opening.443

3.2. Detention of children
Where a person is treated after screening as under 18 they are not detained. The published policy of theHome Office is that children may be detained for short periods pending removal if other steps in the family
removal procedure do not result in their leaving the UK, 444 and this is the purpose of the family ‘Pre
Departure Accommodation’, which has been located at Tinsley House Removal Centre since May 2017.
23 children entered detention in 2019.
The instances of applicants detained as adults and found to be children has reduced since the case of
AA in June 2016,445 although they do still occur but are not recorded.

3.3. Detention of seriously ill persons
The High Court has found a number of breaches of Article 3 ECHR in relation to the detention of severely
mentally ill people and such detention has also repeatedly been found unlawful under domestic law and

438

439

440

441

442

443
444

445

Government, ‘New time limit planned for pregnant women in detention’, 18 April 2016, available at:
http://bit.ly/2lcjhBE.
Home Office, Enforcement instructions and guidance – Chapter 55a Detention of pregnant women, 12 July
2016, available at: http://bit.ly/2jDmhBK.
HM Inspector of Prisons, Report on the unannounced inspection of Yarl’s Wood, June 2017, available at:
http://bit.ly/2iidM16.
The Guardian, ‘Unlawfully detained woman who miscarried receives £50k payout’, 19 August 2019, available
at: https://bit.ly/31N8dx3.
BBC report, Women no longer held as Yarl’s Wood repurposed for Channel migrants, 18 August 2020, available
at: https://bbc.in/3qDBJjK
Women for Refugee Women campaign, available at: https://bit.ly/3vbeAse
Home Office, Enforcement Instructions and Guidance, Chapter 45 Families and Children, Family Returns
Process operational Guidance.
High Court, AA v Secretary of State for the Home Department [2016] EWHC 1543 (Admin), 20 June 2016.

88

in the Court of Appeal.446 Torture survivors continue to be detained even after Rule 35447 reports (seesection on Special Procedural Guarantees).448 A report for the Home Office by the Tavistock Instituteconcluded that vulnerable detainees could deteriorate in detention, partly because of antagonism between
different agencies and the conflicted aims of detention. This could only be remedied by a culturechange.449 Members of Parliament who conducted an inquiry into immigration detention found that people
suffering from mental health conditions were detained for prolonged periods and that it was not possible
to treat mental health conditions in IRC. They recommended that at the very least the policy around mental
health should be changed to that which was in place before August 2010, which stated that individuals
with a mental health condition should only be detained under exceptional circumstances. 450 A report byAmnesty International UK looked into the use of detention and its consequences; in their interviews withdetainees and their families the most common consequences reported were damage to mental andphysical health and harm for family members, particularly women and children.451
Following the Shaw Review in January 2016, 452 NGOs expected that guidance would follow the main
message of the report – that fewer people should be detained and that better systems need to be designed
to reduce the number of vulnerable people detained. However, the policy guidance issued in response
the report, which also fulfilled the requirements of Section 59 of the Immigration Act 2016, makes it moredifficult to secure release based for example on their experiences of torture or of their deteriorating mental
health.453 The definition in the Adults at Risk policy was more limited than that provided in the UN
Convention against Torture (UNCAT). In a case brought by Medical Justice the definition in this new policy
was challenged; the case was heard in March 2017 and judgment delivered in October 2017.454 The
Immigration Rules were amended to reflect the new definition of torture. 455 The Adults at Risk policy has
also been revised.456 The Independent Chief Inspector of Borders and Immigration is conducting anannual review of adults at risk in Immigration Detention but the government has yet to publish the firstyear’s report.

446

447
448

449

450

451

452

453
454

455
456

For example, R (S) v Secretary of State for the Home Department [2011] EWHC 2120 (Admin); R (BA) v
Secretary of State for the Home Department [2011] EWHC 2748 (Admin); R (HA) v Secretary of State for theHome Department [2012] EWHC 979 (Admin); R (D) v Secretary of State for the Home Department [2012]
EWHC 2501 (Admin); R (on the application of Lamari) v Secretary of State for the Home Department [2013]
EWHC 3130 and R (on the application of Das) v Secretary of State for the Home Department [2014] EWCA
Civ 45, R (on the application of MD) v Secretary of State for the Home Department [2014] EWHC 2249
(Admin). See Jed Pennington, ‘Deplorable Failure, Bureaucratic Inertia and Callous Indifference: The
Immigration Detention of Mentally Ill People by the UK Border Agency’ (2013) 27:1 Journal of Immigration
Asylum and Nationality Law 41-46.
Rule 35 Detention Centre Rules.
Independent Chief Inspector of Borders and Immigration and Chief Inspector of Prisons, The effectivenessand impact of immigration detention casework, 2012, available at: http://bit.ly/1BGKAH8 and Natasha
Tsangarides, The Second Torture: immigration detention of torture survivors, Medical Justice, 2012, available
at: http://bit.ly/1GC9Yg2.
Home Office, Review of Mental Health Issues in Immigration Removal Centres Immigration & Border Policy
Directorate, 2015.
All Party Parliamentary Group on Refugees & the All Party Parliamentary Group on Migration, The Report of
the Inquiry into the Use of Immigration Detention in the United Kingdom, 2015, available at:
http://bit.ly/1GLjtbG.
Amnesty International, A matter of routine; the use of immigration detention in the UK, December 2017,
available at: http://bit.ly/2BoDAPC.
Stephen Shaw, Review into the Welfare in Detention of Vulnerable Persons, Cm 9186, January 2016,
available at: http://bit.ly/2kqYkln.
Home Office, ‘Adults at Risk’ in immigration detention, 6 December 2016, available at: http://bit.ly/2l4ZXkS.
High Court, Medical Justice v Secretary of State for the Home Department [2017] EWHC 2461 (Admin), 10
October 2017, available at: http://bit.ly/2gyI1zM.
The Detention Centre (Amendment) Rules 2018, Rule 2, available at: https://bit.ly/2T5EHh3.
Home Office, Adults at Risk in Immigration Detention, July 2018, available at: https://bit.ly/2TTPfj9.

89

4. Duration of detention
Indicators: Duration of Detention
1. What is the maximum detention period set in the law (incl. extensions):❖ Pregnant women and children❖ Other groups
2. In practice, how long in average are asylum seekers detained?

72 hours, or 7 days
None
Not available

The Home Office is responsible for ordering detention of asylum seekers. It is difficult to give meaningful
data on the average length of detention of asylum seekers (outside the Detained Fast Track, for which
see the section on Accelerated Procedure). There is no maximum period set in law, with the exception ofdetention of pregnant women and children which cannot exceed 72 hours, or 7 days with Ministerial
approval. While data on length of immigration detention is now available for the last six years, the figures
do not distinguish between asylum seekers and other immigration detainees. Periods of immigration
detention including asylum seekers and other foreign nationals vary enormously from a few days toseveral years.
During 2020, 15,449 left immigration detention. Of these:
Persons released from detention by duration of stay: 2016-2020
Duration of stay indetention

2016

2017

2018

2019

2020

Less than 29 days

18,281

18,36817,65518,042

11,924

From 29 days to 2
months

5,271

4,675

3,480

3,623

1,766

From 2 to 4 months

3,261

3,304

2,400

1,871

1,020

848

634

From 4 months to 12
monthsFrom 1 to 2 years

179

194

186

122

97

At least 2 years

29

31

14

6

8

Source: Home Office, Immigration Statistics, Detention.

However, there is no cross-referencing of the number of asylum detainees in 2020 and length of detentionof those who had sought asylum. The longest periods of detention are usually of people awaiting
deportation after having served a criminal sentence.

C. Detention conditions
1. Place of detention
Indicators: Place of Detention
1. Does the law allow for asylum seekers to be detained in prisons for the purpose of the asylum
procedure (i.e. not as a result of criminal charges)?
Yes
No
2. If so, are asylum seekers ever detained in practice in prisons for the purpose of the asylum
procedure?457
Yes
No
457

If a person claims asylum from prison, they will be kept there.

901.1. Immigration Removal Centres (IRC)
There are currently 7 Immigration Removal Centres (IRC) where immigration detention is implemented:
Immigration Removal Centres
IRC

Population
detained

Capacity

Occupancy end
2018

Occupancy
end 2019

Occupancy
end 2020

Harmondsworth

Men

615

447

394

478

Yarl’s Wood

Women458

406

159

133

238

Dungavel House

Men; women

217

61

42

112

Tinsley House

Men; families

154

57

54

0459

Brook House

Men

448

240

230

304

Morton Hall

Men

392

216

232

413

Colnbrook

Men; women(limit 8)

420

199

169

265

2,652

1,379

1,254

1,810460

Total
Source: Home Office

1.2. Short-Term Holding Facilities (STHF)
There are currently 3 residential Short-Term Holding Facilities (STHF), which can hold detainees for up
to seven days, in addition to a small facility in Yarl’s Wood, where some people are detained for screening.
Many airports or reporting centres have short term holding facilities where people are held under detention
powers for up to 24 hours.
Short-Term Holding Facilities
STHF

Capacity

Occupancy end
2018

Occupancy end
2019

Occupancy
end 2020

Colnbrook

8

2

6

16

Larne House

19

3

5

0

Manchester

32

4

13

6

Total

59

9

24

22

Source: Home Office, Immigration statistics: Q4 2020, Detention (capacity courtesy of AVID detention)

1.3. Prisons
At the end of December 2020,1,661 359 individuals were detained under Immigration Act powers inprisons in England and Wales.461 It is not recorded whether any and if so how many of these people hadat any point claimed asylum. Asylum seekers are normally detained in immigration removal centres (IRC)
in preparation for removal together with other third-country nationals who are there for immigration
reasons. They are not detained in prisons purely in order to process an asylum claim or to remove themafter they have been refused asylum.
458
459
460
461

The purpose of Yarl’s Wood changed during 2020 from holding women to men.
Tinsley House has temporarily ceased to hold immigration detainees.
An additional 1,661 held in prisons.
Association of Visitors to Immigration Detainees (AVID), Prison statistics, available at: http://bit.ly/1N0tKpz.

91

If someone who is serving a prison sentence claims asylum, including if they do so in response to adecision to deport them, they may continue to be detained in prison while their asylum claim is processed.
There is no data presently available on the extent of this. The practice of holding immigration detainees
in prison is problematic, as detainees in prison experience much greater barriers to accessing legal advice
and basic information about their rights, particularly in isolated local prisons. There is no regular advice
surgery as there is in the IRC, and detention of a person held under immigration powers in a prison is notgoverned by the Detention Centre Rules and Orders. This means that the detainee may have legal advice
on their asylum claim if they can contact an adviser outside the prison, and if necessary obtain legal aid
to fund the advice, but there is no on-site access to asylum advice.
There is an agreement between the National Offender Management Service and the Home Office for
immigration detainees up to a specified limit (presently 600) to be held in the prison estate. Detention
policy specifies the criteria for detaining a person in a prison for immigration reasons after they have
served their criminal sentence, but the policy allows for people to be detained in prison ‘before’consideration is given to transferring them to an IRC – thus allowing continued detention in prison without
an obligation promptly to transfer to an IRC. It also expressly provides that, if prison beds available for
immigration detention are not filled by those in the risk categories, those beds should be filled byimmigration detainees who do not meet the criteria for detention in prison.462
A court case in 2019 established that it is not necessary for the safeguards for vulnerable immigration
detainees in prisons to be equivalent to those in Immigration Removal Centres. 463

2. Conditions in detention facilities
Indicators: Conditions in Detention Facilities
1. Do detainees have access to health care in practice?
Yes❖ If yes, is it limited to emergency health care?
Yes

No
No

2.1. Overall conditions
The purpose built IRC (Colnbrook, Brook House and the later wings at Harmondsworth) are built to‘Category B’ (high security) prison designs, and are run by private security companies. While some efforts
are made by contractors to distinguish regimes from those in prisons, in practice the physical environment
means that most detainees experience these centres as prisons.464 Morton Hall is a converted prison,
albeit with lower security and was criticised for its prison-like physical environment.465
Women and children are detained separately from men except where there are family units. The Cedars,
the family facility opened in 2010, was closed in 2016 and a new facility at Tinsley House has replaced
it.466
Other than the family units, there are no special facilities for vulnerable people. In theory health careprovided to detainees is not limited to emergency health care; however, in practice detainees havedifficulty obtaining access to care. Inspection reports frequently mention issues concerning the care of
462
463

464

465

466

Home Office, Enforcement Instructions and Guidance, Chapter 55.10.1.
MR (Pakistan) and ors, EWHC 3567 (Admin), Case No: CO/2701/2018 & CO/4233/2018, 20 December 2020,
available at: https://bit.ly/2UTJPbP .
See e.g. Gatwick Detainees Welfare Group (GDWG): A Prison in the Mind: Mental health implications ofdetention in Brook House Immigration Removal Centre, 2012, available at: http://bit.ly/1THGggs.
HM Inspector of Prisons, Report of an unannounced inspection of Morton Hall, November 2016, available at:
http://bit.ly/2F3EGCL.
Robert Goodwill MP, ‘Cedars pre-departure accommodation: Written statement’, 21 July 2016, available at:
http://bit.ly/2jHytVM.

92

vulnerable individuals.467 A report by the British Medical Association expressed concern at how healthneeds were met in detention, as well as commenting that some disabilities are not identified. 468
Provision of showers, laundry facilities, etc. is usually to an adequate level so that detainees have access,but standards of cleanliness and repair are variable, with some detention centres having a much better
maintained environment and others poor. In particular some of the older prison buildings can be poorly
maintained and drab. A 2019 report of an inspection of Colnbrook described prison like conditions andexcessive use of handcuffing.469
Detainees normally wear their own clothes. IRC have made attempts through the provision of ‘cultural
kitchens’ where detainees can occasionally cook food of their choice, but the general provision is still
considered to be poor.470
In 2017 an employee of Brook House IRC worked with the BBC to report undercover, resulting in adocumentary broadcast in September 2017.471 The company that runs the IRC suspended staff andbegan an internal investigation.472 The Home Affairs Select Committee opened an Inquiry and took
evidence from key individuals.473
On 5 November 2019 the government announced the conversion of the Prisons and Probation
Ombudsman (PPO) investigation of Brook House immigration removal centre to a statutory inquiry, in
accordance with the Inquiries Act 2005. This conversion was needed so that the Inquiry would have thestatutory powers to compel witnesses and establish the truth of what took place at Brook House. 474 The
government announced this conversion following the High Court findings that the Home Secretary’s
investigation into immigration detention at Brook House is inadequate.475
One HMIP Inspection report was published in relation to an IRC in 2020, following an inspection
undertaken in 2019. Morton Hall was reported to have improved since the previous inspection althoughlevels of self-harm remained high and levels of force described as too high. The vulnerability of the
population was noted and criticism of the length of time that some detainees had been held; for example
one person had been waiting for 11 months for a decision on their asylum claim. 476
Given the prevalence of Covid-19 cases in detention and the lack of opportunity for the Home Office toremove people from the UK there were calls throughout the year to release everyone from immigration
detention.477 Whilst this call was not heeded., the use of detention fell during 2020.
Guidance was issued to IRCs and STHF for how to manage detention during Covid-19 including
responding to outbreaks, Preventative measures including cohorting and controlling of visits. 478
467

468
469

470

471
472

473
474
475

476
477

478

HM Inspector of Prisons, Report on an unaccounted Inspection of Colnbrook Immigration Removal Centre,
2019, available at: https://bit.ly/3b0bi19.
British Medical Association, Locked up, locked out, 2017, available at: http://bit.ly/2n4dmh3.
HM Inspector of Prisons, Report on an unaccounted Inspection of Colnbrook Immigration Removal Centre,
2019, available at: https://bit.ly/3b0bi19.
HM Inspector of Prisons, Report on the unannounced inspection of Yarl’s Wood, June 2017, available at:
http://bit.ly/2iidM16.
BBC, ‘What I saw when I went undercover’, available at: http://bbc.in/2wyzHsj.
The Guardian, ‘G4S staff suspended from Brook House immigration centre over abuse claims’, 1 September
2017, available at: http://bit.ly/2n4x4sV.
House of Commons, Brook House Immigration Removal Centre inquiry, available at: http://bit.ly/2n4ifGO.
Written statement Home Secretary to Parliament 5th November 2019, available at: https://bit.ly/3aY6zg7
EDAL, ‘The United Kingdom: High Court finds Home Secretary’s investigation into immigration detention
inadequate’, 14 June 2019, available at: https://bit.ly/2OTYiR5.
HMIP inspection of Morton Hall report published March 2020, available at: https://bit.ly/3qKsUo1
See joint letter “Coronavirus: call to release all people from immigration detention”, March 2020, available at:https://bit.ly/3s4Pqte
Home Office, Guidance for Immigration Removal Centres (IRCs), Residential Short-Term Holding932.2. Activities
The rules require that each detainee should have the opportunity of at least one hour in the open air everyday. This can be withdrawn in exceptional circumstances for safety or security. Most IRCs have a gym or
fitness suite and outdoor exercise space. Access is variable, ranging from being generally accessible
during daylight hours to restricted access.
The HMIP report into Colnbrook was critical of the policy to remove a detainee’s right to work within the
IRC if the individual was deemed to be uncooperative with efforts to remove him. At the time of theInspection 200 detainees had been deprived of the opportunity to work in the first 211 months of 2018.
Detainees have access to the detention centre library and to the internet. Facilities normally include a fax
machine. Following a Channel 4 TV programme exposing an abusive culture in Yarl’s Wood detention
centre, detainees reported that access to the website for the NGO Habeas Corpus was blocked, as wellas access to other sites.479 Access to social media and skype are prevented. 480 The All Party
Parliamentary Group inquiry into detention found that ‘in practice, detainees are often blocked fromaccessing sites that appear to have no security risk. These include the websites of Amnesty International,
the BBC, IRC visitors’ groups, foreign language newspapers and other NGOs. The panel were particularly
alarmed by reports that areas of the inquiry’s own website were not accessible in some IRCs.’481 New
guidance was issued by the Home Office in 2016, aiming to make the access in detention centres moreconsistent and ensure that sites were not inappropriately blocked, although it does not apply to those held
in prisons. This guidance was updated in 2019.482

2.3. Health care and special needs in detention
The Detention Centres Rules provide that there must be a medical team in each detention centre, andthat each detainee must be medically examined within 24 hours of arrival.483 The only provision in therules as to what access to the medical team a detainee can expect or request is that where a detainee
asks a detention centre officer for medical attention, the officer must record the request and pass it to the
medical team, and the medical practitioner must pay special attention to any detainee whose mental
condition appears to require it. The charity Medical Justice has documented the denial of crucial medicalcare.484 The All Party Parliamentary Group and the Tavistock Institute are among those who have reported
on failings in medical care in detention. In 2017 the British Medical Association published a report raising
several concerns, including how doctors deal with the conflict of interest inherent in providing healthcare
to people who are detained and made a number of recommendations. 485 The guidance on ‘Rule 35’
reports was revised in 2019 although HMIP reports still refer to insufficient safeguards to vulnerable
detainees and reports not submitted for suicidal detainees.

479

480

481
482
483
484

485

Facilities (RSTHFs) and escorts during the COVID-19 pandemic, January 2021, available at:https://bit.ly/3extHGD
Habeas Corpus Project, ‘Yarl’s Wood Detention Centre Blocks Detainees from Accessing Our Website’, 27
March 2015, available at: http://bit.ly/1Gw1KEj.
HM Inspector of Prisons, Report on unannounced inspection of Yarl’s Wood Immigration Removal Centre,
May 2015, available at: http://bit.ly/1IQVwQe; Report on an unannounced inspection of The Verne Immigration
Removal Centre, March 2015.
The APPG Inquiry into the Use of Immigration Detention in the United Kingdom, 43.
Home Office, Detention Services Order January 2020, available at: https://bit.ly/2UbjB42.
The Detention Centre Rules 2001 SI No. 238, available at: http://bit.ly/1iFchXN.
Medical Justice, Detained and Denied: the clinical care of detainees living with HIV/AIDS, 2011, available at:
http://bit.ly/1QLSKoq.
British Medical Association, Locked up, locked out, 2017, available at: http://bit.ly/2n4dmh3.

94Whilst guidance has been produced for those needing to be taken to hospital from detention,486 anecdotalreports of last-minute cancellations are common. The follow up Shaw review, published in July 2018,487
includes a detailed analysis of healthcare provision and contains concerns as well as remarking on
improvements. The report includes a description of healthcare in each centre and comments on thephysical environment as well as discussing issues with staff, detainees and NGOs. Some improvementfrom the previous report was identified but concerns remain that healthcare in detention does not matchthe standards expected in the community.
Health care in England has been transferred to the National Health Service (NHS) commissioning
provisions. This was a change which had been argued for by medical professionals, Parliamentarians andothers. However, the NHS has contracted the healthcare in IRC to commercial companies which havebeen running detention and escort services and not to specialist health providers. As a result, staff andfacilities for identifying and treating mental illness and distress vary greatly between IRC. 488 The Home
Office does not collect data on the numbers of people with mental illness in immigration detention. NGOs
regularly request the numbers of incidents of self-harm in immigration detention which required medical
treatment. These were 428 in 2018, with 1,819 individuals at risk.489 A charity reported ongoing concerns
about this issue in September 2019.490
Detention centres have a local group of approved visitors, who provide an external point of reference fordetainees and the centre. Visitors increasingly report that detainees are experiencing high levels ofanxiety and distress, are self-harming, have symptoms of depression or post-traumatic stress disorder(PTSD), or are suffering from severe and enduring mental illness.491

3. Access to detention facilities
Indicators: Access to Detention Facilities
1. Is access to detention centres allowed to❖ Lawyers:❖ NGOs:❖ UNHCR:❖ Family members:

Yes
Yes
Yes
Yes

LimitedLimitedLimitedLimited

No
No
No
No

Detainees may have visits during visiting hours. All visits take place within the sight of a detention centre
officer, but not within their hearing. There are no limits on the frequency of visits, but visits are required totake place during visiting hours. As long as visitors provide the requested forms of identification there isno obstacle to their visiting.492 Individual visitors may be prohibited for reasons of security but this cannot
be applied to a legal adviser. Media and politicians have no special access but may be treated like othervisitors. Detainees are issued with a mobile phone that is not capable of taking photographs. Although
the signal may be poor in parts of some IRC, it is usually possible for detainees to communicate withpeople outside.

486

487

488

489

490

491

492

Detention Services Order – Medical Appointments outside of the detention estate, available at:
http://bit.ly/2DFbTYa.
Stephen Shaw, Assessment of government progress in implementing the report on the welfare in detention ofvulnerable persons, July 2018, available at: https://bit.ly/2LlDGl8.
Ali McGinley and Adeline Trude, Positive duty of care? The mental health crisis in immigration detention, AVID
and BID, 2012, available at: http://bit.ly/1BGukWG.
No Deportations (NGO), Self-Harm in Immigration Detention January through December 2018, available at:https://bit.ly/2UoFp9x.
Self Harm and Suicide in Immigration detention, Bail for Immigration Detainees, September 2019, available at: https://bit.ly/2THa0A9 https://bit.ly/2THa0A9.
Ali McGinley and Adeline Trude, Positive duty of care? The mental health crisis in immigration detention, AVID
and BID, 2012.
Government information on IRCs and information for visitors, available at: http://bit.ly/2DA3s0W.

95

There are NGOs who provide support to detainees. Each IRC has a visitors’ group, which is anorganisation of volunteer visitors (AVID) who provide support, practical help and friendship to detainees.
Some visitors’ groups such as Detention Action engage in policy and advocacy work and research. Bailfor Immigration Detainees (BID) provides advice and information for detainees generally including selfhelp packs to make bail applications. The charity Medical Justice works for good medical care for
immigration detainees and to obtain evidence of torture and the release of those who are ill. UNHCR does
not have the capacity to represent people in detention and in practice detainees rarely seek help from the
UNHCR.
BID has carried out surveys twice a year since 2010 and found that, in relation to immigration detainees
held in IRC, usually between 43% and 69% of detainees had legal representatives. The latest figure,published following its survey in spring 2019,493 was 64%. 31% were paying a solicitor privately. One in
six at the time of the last survey had never had a legal representative while they were in detention. Thereare concerns among NGOs about the movement of detainees between different centres, and the resulting
disruption in their access to legal advice.

D. Procedural safeguards
1. Judicial review of the detention order
Indicators: Judicial Review of Detention
1. Is there an automatic review of the lawfulness of detention?
2. If yes, at what interval is the detention order reviewed?

Yes

No

4 months

Detainees have a right to be informed of the reason for their detention. This is generally done by ticking
a box on a standard list of reasons, and sometimes is inaccurate or omitted. The reasons for detention
should be subject to regular monthly reviews by detention officers, and a breach of this requirement canmake the detention unlawful if the effect is that the continued legality of the detention has not beeneffectively considered.494
A detainee can apply for bail at any time, although if they are detained while their application is being
considered they must have been in the UK for seven calendar days. Applications can be made to theChief Immigration Officer (CIO),495 who is part of the Home Office or to the FTT (IAC). Since the decision
to detain was made by the Home Office, it is not common for bail to be granted by the CIO.
A Tribunal is prevented from granting bail if removal directions are in force for a date less than 14 days
from the application, unless the Secretary of State consents to bail. The Immigration Act 2014 also
prohibits the Tribunal from granting bail at a hearing within 28 days of a previous refusal of bail unlessthere is a proven change of circumstances.496
A bail application to the Tribunal involves a hearing before an immigration judge. The Home Office isrequired to provide a summary before the hearing of the reasons for opposing bail. Studies of bail hearings
show that in practice the summary may occasionally be late, or non-existent, but the most persistentproblem is reliance on standard reasons without evidence that they apply to the particular applicant. The
hearing may then focus on unsubstantiated risks of absconding or offending but fail to focus on how longthe person has been detained and what prospect there is of the Home Office being able to arrange their

493
494
495
496

BID, Legal Advice Survey, spring 2019, available at: https://go.aws/2uVqBrs.
Supreme Court, Kambadzi v Secretary of State for the Home Department [2011] UKSC 23.
Application form available on the government’s website at: http://bit.ly/2n6OmpA.
Schedule 10 Immigration Act 2016.

96

removal from the UK, matters which are critical to the lawfulness of detention.497 First-Tier Tribunal judges
hearing bail applications do not have the jurisdiction to consider the lawfulness of detention, and there isno full reasoned decision given by the judge.
Bail hearing centres may be far removed from the detention centre, and the use of video conference
systems has become routine. While this avoids long journeys for the detainee, the lack of personal contact
with the judge, and problems in quality of sound and visual transmission are also experienced as
obstacles to an effective hearing. Detainees in prisons may have video links cut off before the end of thebail hearing if it continues over 60 minutes. Technical problems may compound the difficulty of speaking
through an interpreter. In video conferencing cases the lawyer is only allowed 10 minutes to speak with
their client before the hearing. This is insufficient. 498
Bail hearings are timetabled so that several can be heard in one day, and this creates pressure on theproceedings, sometimes with the result that an interpreter is not given time to interpret everything that issaid.499 BID has reported delays in providing a bail address.500
Friends or family can stand as sureties for the applicant, which means that they undertake to ensure thatthe person reports again when they are required to, and they forfeit a sum of money if this does not
happen. Sureties are not essential, but there is a tendency to require them. There is no concept ofcontinuing surety, meaning sureties who wish to continue to stand are required to travel to each hearing,even if bail is refused many times, and even if bail is granted and then applied for again after a further
detention without any breach of conditions by the asylum seeker. Repeat detentions can occur for asylum
seekers when further submissions are refused, and they are detained with a view to removal, but without
giving time for them to challenge the refusal of further submissions, or else when they are detained whilefurther submissions are being prepared but have not yet been made. Removal cannot take place while achallenge or consideration of submissions are pending, and good legal representation can mean that they
are released while the challenge or consideration of new submissions takes place, only to be re-detainedin the same circumstances if there is a further refusal.
Automatic bail referrals were introduced in 2018. Officials make referrals four months after initial detention
started and every four months thereafter. This does not appear to have resulted in many more individuals
being released from immigration detention. In February 2018 a pilot began to refer people for automaticbail hearings after two months which aims to run for a limited period (one calendar month). There has
been no further announcement relating to the outcome or extension of this pilot and guidance issued in
February 2020 only refers to the four month timescale for automatic bail referrals. 501
The lawfulness of detention may be subject to judicial review in the High Court, with the permission ofthat court. The criteria for lawfulness are, as mentioned above, that it is for a statutory purpose, and forapproved policy reasons, and the length of detention must not be unreasonable (see section on Grounds
for Detention). The lack of a statutory limit on the length of detention has consequences for the potential
for effective challenge. Case law states that the length of detention must be reasonable to achieve thepurpose for which the person is detained. 502 The usual legal issue which affects the length of detention
for refused asylum seekers is whether the Home Office can arrange the detainee's removal within areasonable period. No clear and coherent case law on reasonable periods has emerged. However, theHome Office's own guidance on whether removal is 'imminent' is that ‘removal could be said to be
497

498
499
500

501
502

Adeline Trude, The Liberty Deficit, Bail for Immigration Detainees, 2012, available at: http://bit.ly/1L2oUai; Bail
Observation Project, Second report, 2013.
Ibid.
Adeline Trude, The Liberty Deficit, Bail for Immigration Detainees, 2012, available at: http://bit.ly/1L2oUai.
BID, No Place to Go: delays in Home Office provision of s.4 (1)(c) bail accommodation, September 2014,
available at: http://bit.ly/2wIwR5E.
Immigration Bail; Home Office February 2020, available at: https://bit.ly/32SxyGh.
High Court, R (Hardial Singh) v Governor of Durham Prison [1983] EWHC 1 (QB) and https://bit.ly/3cEhuwe

97imminent where a travel document exists, removal directions are set, there are no outstanding legal
barriers and removal is likely to take place in the next four weeks’.503 Revised guidance that was issued
to Immigration Judges in January 2018 advises that it is generally accepted that detention for threemonths would be considered a substantial period and six months a long period.504
Challenges are also made to the lawfulness of detention in civil proceedings for unlawful imprisonment,
when damages may be awarded.
The case law and the legal structure of challenge to immigration detention make no distinction between
the detention of asylum seekers and the detention of other foreign nationals.

2. Legal assistance for review of detention
Indicators: Legal Assistance for Review of Detention
1. Does the law provide for access to free legal assistance for the review of detention?
Yes
No
2. Do asylum seekers have effective access to free legal assistance in practice?
Yes
No
Access to legal assistance is subject to the same means test as for immigration and asylum legal aid
generally. Detention centres provide legal surgeries run by legal aid providers who have exclusive
contracts with the Legal Aid Agency to do immigration and asylum work in IRC. Detainees cannot obtainlegal aid to instruct a lawyer other than those with a contract for that centre. Delays in getting an
appointment at a legal surgery mean that in practice they may face removal before they can obtain an
appointment, although some centres operate a priority system for people who have removal directions.
BID’s survey showed that 43% had to wait more than a week.505 Notice of removal may be as short as 72
hours, and five days is common.
The All Party Parliamentary Inquiry into Detention recorded a lot of discontent and distress from detainees
about the quality of representation in detention and being left without information. 506
Discussions with lawyers are held in private. Lawyers can contact their clients by mobile phone or fax, or
they may also be able to speak to them on the IRC’s phone, or leave a message for them.
In 2020 it was confirmed by the court that detainees held in prisons should have the same access to legal
advice as those held in IRCs. This has been a long-standing issue and the government has been ordered
to take action to ensure that it facilitates this. 507

E. Differential treatment of specific nationalities in detention
No differential treatment is reported.

503
504

505
506
507

Home Office, Enforcement Instructions and Guidance – Chapter 55, para 55.3.2.4.
Tribunals Judiciary, Guidance on Immigration Bail for Judges of the First-Tier Tribunal, January 2018,available at: https://bit.ly/2suYjzj.
BID, Legal Advice survey Spring 2019, available at https://go.aws/2uVqBrs.
The APPG Inquiry into the Use of Immigration Detention in the United Kingdom, 46.
SM, R (On the Application Of) v Bail for Immigration Detainees [2021] EWHC 418 (Admin), 25 February 2021,
available at: https://bit.ly/3rKlpig.

98

Content of International Protection
A. Status and residence
1. Residence permit
Indicators: Residence Permit
1. What is the duration of residence permits granted to beneficiaries of protection?
❖ Refugee status
5 years❖ Subsidiary protection
5 years
Beneficiaries of refugee status and subsidiary protection (“humanitarian protection”) receive 5 years’ leave
to remain. For most people, applying for settlement, also known as Indefinite Leave to Remain (ILR), after
the end of the 5 year period of leave is a straightforward process.508 Difficulties encountered relate to thelength of time it takes for the application to be processed, as all documents must be submitted to theauthorities. Therefore, although legally the period of leave is extended by virtue of the new application,
this is difficult to prove to employers and or providers of services that may require evidence of leave toaccess. This is becoming an increasing problem, as the government seeks to deny more services to those
who cannot provide evidence of leave.509
An additional problem has increased during 2020 although is not specifically a result of travel restrictions
due to Covid-19. Applicants for visas and extensions of permission to stay, including refugees applying
for Indefinite Leave following five years refugee leave, are required to re-register their biometrics at aService and Support Centre run by a private company.510 Whilst they are required to provide freeappointments to those who make free applications (including refugees) there are very few centres withfree appointments available. The Independent Chief Inspector has begun an inspection into this issue.
This same Home Office policy explains the circumstances in which a person’s application for unlimited
leave (“settlement”) is denied.
Applicants must have held a UK Resident Permit (UKRP) for a continuous period of 5 years which must
not have been revoked or not renewed. The Rules also enable the Home Office to delay granting
settlement to those with a criminal history or where there is any evidence of extremist behaviours that run
contrary to British values, either permanently or for set periods of time depending on the severity of thecrime or behaviour. In these cases, the application for settlement may be refused but if the applicant isstill in need of international protection, additional periods of time limited leave may be granted.511

2. Civil registration
A child born to any person in the UK is expected to be registered in the same way as any other child andmust be done within 42 days of the child’s birth in England, Wales and Northern Ireland and within 21
days in Scotland.512 A child born to a refugee who is settled can be registered as a British citizen. If the

508

509

510
511
512

See Home Office, Asylum Policy Instruction: Settlement protection, 2 February 2016, available at:
http://bit.ly/2kSFC3n.
See e.g. Joint Council for the Welfare of Immigrants (JCWI), Passport please, February 2017, available at:
http://bit.ly/2kBLCNw; Independent Chief Inspector of Borders and Immigration, Report on the ‘hostileenvironment’, October 2016, available at: http://bit.ly/2eeZ7Qw.
See: Visas and Immigration Service and Support Centres on gov.uk, available at: https://bit.ly/3chdC6P
Home Office, Asylum Policy Instruction: Settlement protection, 2 February 2016, Section 7.
Government website – applies to England, Wales and Northern Ireland, available at: http://bit.ly/2GcmI2d.
For Scotland, available at: http://bit.ly/2n8u3au.

99

child is born during the five years limited leave as a refugee, they will be granted ‘leave in line’ to expire
on the same date as the parent, and can be included in a subsequent application for settlement.
Beneficiaries are subject to the same rules as UK or EEA nationals if they wish to marry in a register
office; notice of the intention to marry must be given at a designated register office.513 This also applies
to non-EEA nationals who wish to marry in a religious ceremony.
The only difficulties, if both parties are in the UK, would arise if one of the parties did not have a Biometric
Residence Permit or who didn’t have documentary evidence of a previous divorce, for example.

3. Long-term residence
The UK has not opted into the Long-Term Residence Directive.

4. Naturalisation
Indicators: Naturalisation
1. What is the waiting period for obtaining citizenship?
2. Number of citizenship grants to beneficiaries in 2020:

6 years
Not available

Those with refugee status and subsidiary protection may not apply for naturalisation as a British citizen
until they have been in receipt of Indefinite Leave to Remain (settlement leave) for 12 months. They are
subject to the same test of ‘good character’ as other applicants and must pass a ‘Life in the UK’ test andmeet the requirements for English language proficiency. There is also a fee, which can be up to £1,330(€1,537).514
The requirements that a person be of good character specifically refer to applicants who previously
entered the UK unlawfully i.e. through evading immigration control.515 This is despite policy that follows
Article 31 of the Refugee Convention, acknowledging that sometimes it is necessary to enter a country
unlawfully and be recognised as a refugee, and that the Refugee Convention requires signatory states toallow refugees to integrate.
130,568 grants of UK citizenship were made in 2020, of which 89,931 were from non-EU nationals. 67,769
grants of citizenship were made based on residence in the UK in 2020. This figure includes beneficiaries
of international protection but also other categories.516

513

514
515

516

A list of designated register offices in England and Wales is available at: http://bit.ly/2BQUev7 and for Scotland
at: http://bit.ly/2CIgX9D.
Home Office, Immigration and Nationality fees, available at: https://bit.ly/2PS2Ub0.
Annex D: Good character requirement, Section 9, Naturalisation at discretion (nationality instructions), Home
Office, September 2019, available at: http://bit.ly/2jDXJbv.
Home Office, Immigration statistics Q4 2019.

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5. Cessation and review of protection status
Indicators: Cessation
1. Is a personal interview of the asylum seeker in most cases conducted in practice in the
cessation procedure?
Yes
No
2. Does the law provide for an appeal against the first instance decision in the cessation
procedure?
Yes
No
3. Do beneficiaries have access to free legal assistance at first instance in practice?
Yes
With difficultyNo

The grounds of cessation are laid out in the Immigration Rules and follow the cessation provisions of the
Refugee Convention.517 The procedure is set out in Home Office guidance.518
The beginning of the procedure is not the same in all instances. There may be a different trigger, such as
the individual travelling back to the country of origin or being convicted of a serious offence which has led
to an investigation of the original grounds for asylum. In all cases the applicant is informed of the intention
and invited to submit their view to the caseworker. UNHCR will also be consulted, usually after any
submissions from the refugee have been received, given 10 days to submit its view, which must be taken
into consideration.519
The applicant would not usually be interviewed, unless there are specific reasons for doing so. Appeal
rights are suspensive i.e. the refugee remains in the country whilst the appeal is heard, unless s/he isoutside of the UK.
Review of status and consideration of cessation is not a routine consideration, save in criminal cases andthose where the refugee has spent more than 2 years out of the UK or where there is evidence he or she
has availed themselves of the protection of the country of asylum e.g. by obtaining a national passport.
It is not applied to specific groups as a matter of policy. In policy terms each case is dealt with on its own
merit and there are no reported concerns about how it is applied, other than occasionally in individual
cases. A case in 2019 confirmed that revocation procedures could not apply to the dependants of refugees
unless the dependant had been recognised in his or her own right.520

6. Withdrawal of protection status
Indicators: Withdrawal
1. Is a personal interview of the asylum seeker in most cases conducted in practice in thewithdrawal procedure?
Yes
No
2. Does the law provide for an appeal against the withdrawal decision?

Yes

No

3. Do beneficiaries have access to free legal assistance at first instance in practice?
Yes
With difficultyNo

The grounds for withdrawal / revocation of international protection are set out in the Immigration Rules
and include: (a) the grounds for exclusion in the Refugee Convention; (b) misrepresentation of facts to
517
518

519
520

Rules 339A to 339AB Immigration Rules.
Home Office, Asylum policy instruction: Revocation of refugee status, 19 January 2016, available at:
http://bit.ly/2kkxPvi.
Ibid, para 3.6.
JS (Uganda), [2019] EWCA Civ 1670, Case No: C5/2018/2614 and C2/2019/1244, 10 October 2019, available
at: https://bit.ly/2RVyFjm.

101

obtain refugee status; and (c) being a danger to the UK. 521 The procedure is outlined in the section on
Cessation.
The legal framework for withdrawal of leave is Section 76 of the NIAA 2002. Indefinite leave (ILR) will betaken from a person or considered to have lapsed when that person:❖ Is liable to deportation or administrative removal but cannot be deported or removed because of
the UK’s obligations under the Refugee Convention or the ECHR (ILR is revoked);❖ Has obtained leave by deception (ILR is revoked);❖ Is deported from the UK (ILR is invalidated);❖ Ceases to be a refugee because of their own actions (ILR is revoked);❖ Remains outside of the UK for more than two years (ILR lapses).
The only appeal against a decision to take away leave is if that is accompanied by a decision to remove
protection status i.e. the appeal is against the refusal of protection status.

B. Family reunification
1. Criteria and conditions
Indicators: Family Reunification
1. Is there a waiting period before a beneficiary can apply for family reunification?
Yes❖ If yes, what is the waiting period?

No

2. Does the law set a maximum time limit for submitting a family reunification application?
Yes
No❖ If yes, what is the time limit?
3. Does the law set a minimum income requirement?

Yes

No

The UK has not opted into the Family Reunification Directive.
There is no waiting period for a beneficiary of refugee status or humanitarian protection. Nor is there amaximum time limit after which the beneficiaries are no longer entitled, as long as they do not become
UK citizens. There is no charge for the application nor requirement for the sponsor to have an income tosupport their family members. There is no distinction between refugees and those with humanitarian
protection.
Eligibility is restricted to the immediate family as it existed prior to the sponsor’s flight and the only people
automatically eligible to join the refugee in the UK are:
- Spouse / same sex partner; and- Dependent children under the age of 18.
Refugee children are not eligible to sponsor their parents and or siblings. In 2016, a child successfully
challenged the policy under Article 8 ECHR and his parent and sibling were brought to the UK to joinhim.522 Whilst the judge was critical of the policy, it has not led to a change. A number of NGOs arecollaborating in campaigning for changes to the Immigration Rules on Refugee Family Reunion, including
this issue. Two Private Members’ Bills have been introduced into Parliament; the first was debated in
521
522

Rules 339A to 339AB Immigration Rules.
Upper Tribunal, AT (Family Reunification: Eritrea) [2016] UKUT 227 (IAC), 24 March 2016, available at:
http://bit.ly/2kvjm1S.

102

December 2017.523 The second was debated in the House of Commons on 16 March 2018 and passed
that stage.524 Due to the lack of parliamentary time made available by government the Bill will not proceed.
A report published by Amnesty International UK, Refugee Council and Save the Children in 2019
summarised the criticisms made by external scrutineers and parliamentary Committees, as well as
providing evidence of the impact of the current policy position. 525
Applications and decisions on family visa are published by the government. The category under which
refugee family reunion cases fall may include other types, but is generally relied on by the government todescribe a figure for refugee family reunion visa. In 2020, 5,428 family reunion visas were issued; 2,992
of them to children.526
The refugee family reunion process was inspected by the Independent Chief Inspector of Borders andImmigration in 2016.527 The inspection was overall critical of the restrictiveness of the family reunification
procedure, and noted that the possibility to examine applications outside the Immigration Rules in‘exceptional circumstances’ or where ‘compassionate factors’ arise is very rarely applied. This waswitnessed in none of the 181 applications inspected at the visa sections of the Home Office in Jordan,
Turkey and South Africa.528 A re-inspection of the handling of Refugee Family Reunion applications inAmman in 2018 concluded that not all of the previous recommendations had been resolved. 529 Since thisreport the decision making on refugee family reunion applications has largely been moved to the UK
although not entirely. It further inspected the system, including progress against previous
recommendations, the report of which was finally published by the Home Office in September 2020 530,
along with its response531. The Inspector had invited the government to explain and justify its position on
the eligibility criteria in the light of the Private Members Bills and activities of the Families Together
coalition.532
The Home Office also revised its policy and guidance; it was reissued in 2016 although the policy
remained the same.533 Better explanation was given about the circumstances in which extended family
members could be admitted but no changes to the criteria were made. It was further revised in December
2020 to reflect the end of the transition period for the UK to leave the EU.

2. Status and rights of family members
Family members do not receive the same status as their sponsor. They receive ‘leave in line’ i.e. leave toremain to expire at the same time as their sponsor. If the sponsor has limited leave, the family members
all apply for settlement at the same time. There are difficulties for estranged partners in thesecircumstances.
523
524

525

526
527

528

529

530

531
532
533

Hansard, Refugees (Family Reunion) Bill [HL], 15 December 2017, available at: http://bit.ly/2DBWyIq.
Refugee Council, ‘MPs vote to reunite refugee families torn apart by conflict’, 16 March 2018, available athttps://bit.ly/2RSdVuR.
Amnesty International, Without my Family; the impact of family separation on separated children in the UK,
2019, available at: https://bit.ly/2GFxM9m.
Home Office, Immigration statistics Q4 2020.
Independent Chief Inspector on Borders and Immigration, An inspection of family reunion applications,January – May 2016, available at: http://bit.ly/2khoPav.
Ibid. See also Refugee Council, ‘Watchdog: Government should show more compassion in reuniting refugees’,
15 September 2016, available at: http://bit.ly/2kWbXFX.
Independent Chief Inspector of Borders and Immigration, A re-inspection of the family reunion process,focusing on applications received at the Amman Entry Clearance Decision Making Centre, September 2018,available at: https://bit.ly/2oK8QVy.
An inspection of family reunion applications Independent Chief Inspector of Borders and Immigration, available
at: https://bit.ly/3cgh0yN
Government response to the Inspection of family reunion applications, available at: https://bit.ly/36hJLaKFamilies Together, see: https://bit.ly/39puvum
Home Office, Family reunion: for refugees and those with humanitarian protection, December 2020, available
at: https://bit.ly/32YpbJp.

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C. Movement and mobility
1. Freedom of movement
There are no restrictions on freedom of movement for refugees, those with humanitarian protection or
their family members. Some difficulties arise when people want to move away from where they have beendispersed and relocate to a place where they have no previous connection. New duties in the
Homelessness Reduction Act which came into force in April 2018 should alleviate this problem although
there is still a high incidence of homelessness amongst newly recognised refugees. New research reports
relating to this issue from NGOs in 2018 include Mind the Gap from the No Accommodation Network(NACCOM),534 and Still an Ordeal from the British Red Cross.535 The government’s Integration Action
Plan, published in February 2019,536 includes commitments to improve the information provided to newrefugees and to better coordinate government departments to improve new refugees’ access to existing
services. New information was published during 2019, one general document,537 translated into elevenlanguages and one specifically advising how to claim welfare benefits,538 available in English only.

2. Travel documents
Refugees and their dependants, including those who are united through the refugee family reunion
process, can apply for a ‘Convention Travel Document’. The cost is the same as a UK national passport.
An adult’s travel document will expire after 10 years or at the same time as the refugee’s limited leave (ifduring the first 5 years of leave) if that is earlier. A child’s travel document will expire after 5 years or at
the expiry of their leave.
Beneficiaries of subsidiary protection and other forms of leave, including their dependants, are expected
to apply to their national authorities for a passport, unless the humanitarian protection is granted followinga refusal of asylum and it is accepted that the beneficiary has a fear of their national authorities.539 This
includes those resettled under the Syrian Resettlement Scheme who are granted humanitarian protection.
Other than these individuals, including dependants, those with leave following a refusal of asylum,
including beneficiaries of subsidiary protection where it is not accepted that the person is in fear of thenational authority, are expected to show evidence of refusal to issue a document following contact with
their national embassy.
All those who are not entitled to a Convention Travel Document, including all beneficiaries of subsidiary
protection, can apply for a certificate of travel, which costs more than three times that of a Convention
Travel Document and a maximum validity of 5 years. It will only be issued when the individual has morethan 6 months leave remaining.
The procedure for all travel documents is via an online or paper form.540 Travel documents that are not
CTD, issued by other countries, would often need to be accompanied by a visa.

534
535
536
537
538
539
540

NACCOM, Mind the Gap, May 2018, available at: https://bit.ly/2H7voKQ.
British Red Cross, Still an Ordeal, December 2018, available at: https://bit.ly/2APRYCW.
Government, Integrated communities Action Plan, February 2019, available at: https://bit.ly/2XC9EMe.
Welcome: a guide for new refugees, available at: https://bit.ly/2SL2UtM.
Claiming Universal Credit and other benefits if you are a refugee, available at: https://bit.ly/3bxAk7S.
Home Office, Travel Documents Guidance Notes, March 2016, available at: http://bit.ly/2jGkr2M.
Home Office, Application Form TD11 BRP, March 2016, available at: http://bit.ly/2kWsDh4.

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The numbers of travel documents issued are to third party nationals who do not have a passport, so are
not exclusively travel documents for beneficiaries of international protection. In 2020, 22,788 of thesewere issued.

D. Housing
Indicators: Housing
1. For how long are beneficiaries entitled to stay in Home Office accommodation?
28days
2. Number of beneficiaries staying dispersal accommodation as of 31 December 2020: 41,302
The reception centres are designed for short term support, almost all residents will move to ‘dispersal
accommodation’ in self contained houses or apartments. This is known as ‘Section 95’ support (seeReception Conditions: Criteria and Restrictions).
On receipt of a decision to grant asylum or leave that would entitle the individual to work, apply for state
welfare benefits and rent, buy or take on a public housing tenancy, that individual and their dependants
will only receive Home Office accommodation and funding for a maximum of 28 days. This is often termedthe ‘move on period’. This is regardless of whether or not any alternative source of income andaccommodation has been secured. In practice few refugees find alternative accommodation within thistime. The main obstacles they face are the processing times for welfare benefits, the lack of a bankaccount or online credit history. Public housing is restricted to those with children or who are considereda priority because of ill health or disability and those whose illness is mental rather than physical faceparticular difficulties. The latter category often finds difficulty persuading the authorities to provide themwith public housing. The Refugee Council has written a guide to making and pursuing theseapplications.541
This is in stark contrast to those resettled through programmes such as the Gateway Protection
Programme and the Syrian Vulnerable Persons Programme. Although individuals will have to open a bankaccount, sign a tenancy for housing and make a claim for welfare benefits on arrival, support is usuallyavailable to assist with this and a small monetary amount is given by the Home Office to ensure thatpeople have some funds on which to live when they first arrive. The Refugee Council has written a policy
briefing on this issue. 542
The British Red Cross produced a cost benefit analysis of the 28 day ‘move-on’ period in February 2020,
arguing that the UK government could save significant amounts of money including the cost of temporary
accommodation, if the 28 days was doubled to 56. 543
Despite a wealth of evidence, and efforts through parliamentary means to extend the period,544 the issue
continues to affect many new refugees and other beneficiaries of leave, resulting in homelessness anddestitution.545 The reasons for this are outlined in the research; it is acknowledged that many refugees
541

542

543
544

545

Refugee Council, Making homelessness applications for refugees in England, Refugee Council, March 2019,available at: https://bit.ly/2U9CYu9.
Refugee Council, Policy briefing :Support for refugees in England, December 2019, available at :https://bit.ly/38oSTsT .
British Red Cross; The cost of destitution, February 2020, available at: https://bit.ly/2VIwCmx
Refugee Council, Briefing on Asylum Support amendments to the Immigration Bill, February 2015, available
at: http://bit.ly/2k2u1QU.
British Red Cross, Still an ordeal, December 2018, available at: https://bit.ly/2APRYCW; Refugee Council,
Refugees without refuge: Findings from a survey of newly recognised refugees, September 2017, available
at: http://bit.ly/2wNIdEz; England’s Forgotten Refugees, May 2016, available at: http://bit.ly/1U4c3VH; 28 Days
Later; the experience of new refugees in the UK, 2014, available at: http://bit.ly/1CgV1gE; British Red Cross,
The move on period: an ordeal for new refugees, 2014, available at: http://bit.ly/1sHreYP.

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may not be aware that claims for welfare benefits usually take weeks to process and may not apply assoon as they are eligible, but recent reports show that in many cases the people advising them, employedby the department that processes claims, to advise that refugees are not able to make welfare benefits
applications whilst still receiving asylum support. Similar incorrect advice was found to be given regarding
eligibility for an advance payment to cover any gap in support. Additional barriers exist for refugees who
have not opened a bank account; unable to do this without a regular income, they then face additional
delays in welfare benefits payments which are usually made directly into a claimant’s bank account.
Unless eligible for public housing, refugees’ access to the private rental sector is impeded in practicebecause of the lack of funds; a refugee will not have been eligible for asylum support payments if s/hehas savings but will need a lump sum in order to pay a deposit. Without specific schemes such as one
operated by the Refugee Council in London, refugees are reliant on family, friends, refugee hosting
schemes or members of their community to avoid street homelessness.

E. Employment and education
1. Access to the labour market
The law provides for refugees and beneficiaries of humanitarian protection the same access to the labour
market as UK citizens.546 In practice, very few individuals will enter the labour market immediately; somewill need to ensure their qualifications allow them to practice their profession and may need to retrain or
pass exams to allow them to practice e.g. doctors. Many refugees may have had limited language
provision when they were seeking asylum so may need to learn English sufficient to access the labour
market.
There is little practical support provided by the state although when applying for the main welfare benefit
for those fit to work (Job Seekers Allowance) individuals are required to show evidence of applications forjobs they have made and are questioned about this by an adviser.

2. Access to education
Access to compulsory education (up to age 16) is the same for asylum seekers, refugees and UK citizens(see section on Reception Conditions: Education). Although mid-term admissions may cause additionaldifficulties, the ease access to school places is related more to the geographical area in which anindividual lives than their immigration status.
In England, Wales and Northern Ireland access to post-18 education is different and one of the
distinctions between beneficiaries of refugee status and subsidiary (“humanitarian”) protection is that forthe purposes of fees and student support, refugees are considered home students once they receive
status, whereas recipients of humanitarian protection are considered as overseas students until they have
lived in the UK for 3 years. In Scotland the only requirement is 3 years residence, rather than status.

F. Social welfare
The law provides access to social welfare for beneficiaries of international protection, although practicaldifficulties are encountered.

546

Paragraph 334B Immigration Rules.

106Social welfare is provided to beneficiaries under the same conditions and on the same level as fornationals, although public housing may be restricted to those with a history of living in a particular area,
so beneficiaries who move away from dispersal areas may encounter problems. The laws do apply to all.
The main authorities responsible for granting social assistance are the Department for Work andPensions, (national government department) administered by local Job Centres. The provision of social
welfare is not tied to a requirement to reside in a specific place or region.
Beneficiaries face various difficulties in accessing social assistance, outlined in research conducted by
the Refugee Council and British Red Cross.547 These include difficulties in obtaining the necessary
documentation, although a change in policy announced in 2017 should alleviate this. From 8 January
2018 the Residence Permit has the National Insurance Number printed on it,548 which should reduce
delays in making welfare benefit claims. The issues relating to opening bank accounts and finding enoughmoney to secure private rented housing (which require an upfront fee) remain unresolved. A new way ofadministering welfare benefits is being phased in to all Job Centres across the country. This has inbuilt
waiting times and applications can only be made on time, which has resulted in further hardship. There
has been a lot of interest from the relevant Parliamentary Committee in recent years 549; the Committee
has scrutinised many aspects of the government’s welfare benefits policy, many of which adversely affectrefugees. A parliamentary debate in March 2020 discussed many of the key difficulties in general as wellas the Red Cross report.550

G. Health care
The entitlement to health care is not affected in law for refugees and beneficiaries of humanitarian
protection but in practice there can be difficulties. Although not required in law, registering with a GP
practice for primary care often asks for proof of address; if a refugee has moved from asylum support
accommodation it may be difficult to obtain this.
Specialist medical support for refugees is patchy; waiting list for mental health services in particular canbe long. The issues in practice are very similar for refugees to those faced by asylum seekers, despite
the difference in status.

547

548

549

550

Refugee Council, Refugees without refuge: Findings from a survey of newly recognised refugees, September
2017, available at: http://bit.ly/2wNIdEz; England’s Forgotten Refugees, May 2016, available at:
http://bit.ly/1U4c3VH; 28 Days Later; the experience of new refugees in the UK, 2014, available at:
http://bit.ly/1CgV1gE; British Red Cross, The move on period: an ordeal for new refugees, 2014, available at:
http://bit.ly/1sHreYP.
Minister for Immigration, Answer to parliamentary question, 5 December 2017, available at:
http://bit.ly/2DDlEXL.
Work and Pensions Committee reports 2017-19; including Universal Credit, Benefit cap and the two child limit,
available at: https://bit.ly/2VLyJ99.
Asylum decisions (support for refugees) debate, 4 March 2020, available at: https://bit.ly/2PRcOtj.

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