If a person has claimed asylum in the UK and that asylum claim is refused by the Home Office, a person has a right of appeal within the UK, initially to the First-Tier Tribunal (Immigration and Asylum Chamber) and subsequently, if there is an error of law in the first judge’s decision, to the Upper Tier Tribunal (Immigration and Asylum Chamber). It may be that an appellant has a further right of appeal to the Court of Appeal or in very rare cases the Supreme Court. In order to obtain a hearing in any of the courts other than the First-Tier Tribunal, an appellant must obtain permission to appeal. If they do not obtain permission to appeal, then they will become ‘appeal rights exhausted’.
What happens if my appeal rights are exhausted?
It is not unusual for a person to remain in the UK after becoming appeal rights exhausted. They will usually have no access to any supporting benefits any longer; they will also have no access to the rental market, the employment market, and so on. This is known as the ‘hostile environment’ (or the rebranded ‘compliant environment’).
Failed asylum-seekers have the right to make further submissions to the Home Office at any point after their asylum claim was refused and they are appeal rights exhausted. There are many reasons why a person may make further submissions. If the failed asylum seeker was politically active in their home country, it might be the case that they have been politically active in the UK. This is known as a sur-place claim.
Submitting new evidence in asylum cases
In other cases, new evidence becomes available that proves that the Home Office and judges involved in deciding their case were wrong. This might be physical evidence such as an arrest warrant, or a political membership card from their own country, or could be evidence of a witness, for example, someone that the failed asylum seeker knew in their home country. In some cases, the country situation has changed so dramatically since that failed asylum seeker was refused it would now be accepted that they could not return to that country.
If there is new evidence, the failed asylum seeker can travel to Liverpool to submit further submissions to the Home Office. Those submissions will amount to a ‘fresh claim’ if they are significantly different from the material that was previously considered by the Home Office and the tribunal. The Home Office will only consider those submissions to be significantly different, if, firstly, they have not already been considered, meaning that this is new information or new evidence that wasn’t before the Home Office or the tribunal and that taken with that previously considered material, the further submissions create a realistic prospect of success.
The 3 possible outcomes
There are three possible outcomes to putting in further submissions. Firstly, the applicant can be granted refugee status. Secondly, the applicant can be refused refugee status; however, the Home Office is satisfied that the further submissions amount to a fresh claim and therefore, there is right of appeal to the tribunal. Finally, the further submissions could be refused by the Home Office, and they could also conclude that there is no realistic prospect of success and therefore certify the claim, meaning that there is no right of appeal to the tribunal. The only challenge to the third outcome would be to review that refusal as being unreasonable or unlawful judicially. This may result in the Home Office reconsidering whether to treat the submissions as a fresh claim and ultimately refusing without certifying, so as to allow the applicant a right of appeal to the tribunal.