Refugee Week special

This week is Refugee Week when we recognise the contribution that refugees make to the UK and the international obligation that we have to offer protection to asylum seekers. Yet many asylum seekers are facing considerable delays in having their claims processed in the UK at present. Georgia Lee, a trainee solicitor in our immigration department, explores the issue;

Delays in decision making within the Home Office are widespread, particularly for asylum seekers. After an individual has registered an asylum claim in the UK on the basis that they would be at risk of persecution in their country of origin, they wait to be invited to a substantive interview where they will be asked to explain how they were persecuted in the past and why they are afraid to return. A decision maker within the Home Office will consider the information provided in the interview alongside the submitted evidence, and decide whether the claim has been established to a reasonable degree of likelihood (the relevant standard of proof). If so, they will be granted refugee status in the UK and if refused there is a statutory right of appeal against that decision. We regularly advise asylum seekers throughout this process and assist them in presenting their claims to the Home Office.

The Home Office are under a legal duty to decide asylum applications ‘as soon as possible’ (Paragraph 339A Immigration Rules) and within a ‘reasonable’ timeframe. What is ‘reasonable’ depends on the particular circumstances of the given application. The Home Office controversially scrapped the 6 month processing time target in May 2019 supposedly in order to allow decision makers to focus on prioritising cases with ‘acute vulnerability’ including unaccompanied asylum seeking children. (https://www.theguardian.com/uk-news/2019/may/07/home-office-abandons-six-month-target-for-asylum-claim-decisions)

It is common for asylum seekers who we represent to experience delays of at least 12 months before being invited to their substantive interview, and further delays while their claim is considered and a decision reached and implemented. This is hugely stressful for our clients, who are forced to remain in this limbo until their claim is considered. This ongoing uncertainty can exacerbate existing mental health conditions and inhibits their ability to move forward from past traumatic experiences.

These delays are often further compounded for clients with a trafficking element to their claim. In such cases, the asylum claim is not decided until the NRM Single Competent Authority (a separate, trafficking specific decision-making team within the Home Office) have considered the case and made a decision on whether the person is a victim of trafficking which is issued in a ‘Conclusive Grounds’ decision.

There have been several attempts to challenge the systemic nature of these delays through the courts. In R (MK) v SSHD [2019] EWHC 3573 (Admin) an unaccompanied minor brought a challenge on the basis that systemic delays generally meant that the Home Office was failing to ensure a fair and lawful system for the determination of asylum claims by unaccompanied asylum seeking children. He also challenged the delay in his specific case. His claim was dismissed on the basis that the Home Office had rational procedures in place, made appropriate use of resources available to them and were under a significant administrative burden due to the volume and complexity of claims to be considered. The Judge stressed that the level of resourcing provided by government to the Home Office was a matter for politicians and not the Courts. It was acknowledged that delay can have very distressing consequences and it was stressed that it remains open to individuals to bring a challenge where delay is unreasonable in their particular circumstances.

We have advised our clients that in circumstances where there has been a substantial delay in the resolution of their asylum claim, and there is evidence that this delay is adversely impacting them (such as practical difficulties caused by not being able to work and/or access mainstream benefits, mental health deterioration, or risk of further exploitation for trafficking victims) it may be open to them to issue judicial review proceedings challenging the delay.

The particular impact of COVID-19

The Home Office’s internal working practices are inevitably impacted in some respects by COVID-19 lockdown measures. All face-to-face substantive interviews were paused from 19 March 2020 on the basis that it was not considered to be safe in light of government guidance on social distancing. Interviews are lengthy interactions, and applicants were often required to travel long distance of public transport to attend. An interview will be necessary for many asylum claims to be properly considered and a decision cannot be made without this procedural step having been taken.

In these circumstances we have sought to take a proactive and conciliatory approach in delay cases in order to avoid litigation where possible and to protect the best interests of our clients. In cases where our clients are awaiting their substantive interview we have advised that where possible, they should seek alternative measures from the Home Office to mitigate the impact of delay. For an asylum-seeking client whose substantive interview in April 2020 was cancelled due to COVID-19, we have requested that he is granted short-term discretionary leave, to allow him to work, have a degree of stability and enable him to engage and benefit from his psychological therapy while his asylum claim remains pending. We have suggested in the alternative that where a positive decision can be made on the basis of evidence already available, that refugee status is granted at this stage.

Another of our clients is a victim of child trafficking and has been waiting 27 months for his asylum claim to be resolved. In this case his interview has already taken place and the Home Office had previously committed to making a decision by a specific date. This was in light of evidence submitted by the professionals engaged in his care which raised their concerns about his mental health deterioration and his increased susceptibility to re-exploitation while his claim remained unresolved. When the timeframe was not met, the explanation provided was couched in very general terms. The Home Office argued that COVID-19 constituted ‘exceptional circumstances’ which had impacted decision making and further delay may arise which was out of their control. No revised timeframe for decision making was provided.

Such a response is highly unsatisfactory in such circumstances where the delay has already been significant and highly stressful before lockdown measures were put in place. In addition it fails to acknowledge that the social distancing measures in place due to COVID-19 has exacerbated the impact of delay and will have a particularly severe impact on vulnerable people. For individuals who have previously been trafficked, restriction of movement may be triggering and bring back memories of past trauma. In lockdown there are constraints on accessing essential mental health and other support services.

The fact that there is a global pandemic does not release the Home Office from their duty to act reasonably, including to provide reasonable and case-specific justification for delays in asylum decision making. In situations like these we have advised our clients to issue judicial review proceedings to challenge the delay.

If you are affected by a delay which you consider to be unfair please contact us for advice on potential remedies. We are able to investigate merits and advise under our legal aid contract for those financially eligible.

Georgia is available at g.lee@wilsonllp.co.uk or call 0208 808 7535 to make an appointment.