Asylum claims in detention

Asylum claims in detention Version 4.0

Page 1 of 9 Published for Home Office staff on 18 September 2017

Contents Contents ..................................................................................................................... 2 About this guidance .................................................................................................... 3 Contacts ................................................................................................................. 3 Publication .............................................................................................................. 3 Changes from last version of this guidance ............................................................ 3 Handling of asylum claims and considering detention or temporary admission/release ...................................................................................................... 4 Process for deciding asylum claims in detention ........................................................ 6


About this guidance Since 2 July 2015, the Detained Fast Track process has been suspended. This instruction tells you about managing individuals in detention who have claimed asylum, in addition to entering suitable individuals into detention following an asylum claim. This instruction is for all staff in the National Returns Command (NRC), the Detention Gatekeeper (DG), the National Asylum Allocation Unit (NAAU), staff within Immigration Compliance and Enforcement (ICE) commands and reporting centres, CCU, NEXUS, Border Force staff and all staff in UKVI Asylum processing and decision making units, including the Detained Asylum Casework teams.

Contacts If you have any questions about the guidance and your line manager or senior caseworker cannot help you or you think that the guidance has factual errors then email the Asylum Policy team. If you notice any formatting errors in this guidance (broken links, spelling mistakes) or have any comments about the layout or navigability of the guidance then you can email the Guidance Rules and Forms team.

Publication Below is information on when this version of the guidance was published: • version 4.0 • published for Home Office staff on 18 September 2017

Changes from last version of this guidance • change in terminology so that all those responsible for considering asylum claims in detention are referred to as caseworkers throughout • reference to Adults at Risk policy guidance in Adults at Risk in Immigration Detention added • sub-section on Continual Case Progression brought forward

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Handling of asylum claims and considering detention or temporary admission/release This page tells you about the handling of asylum claims and how to consider detention and temporary admission or release There will normally be a reasonable likelihood of removal in Third Country Unit cases because asylum claims may be deemed inadmissible and therefore not considered substantively if the claimant can be returned to a safe third country. However, caseworkers will need to make a decision on the facts of the case in accordance with the general detention criteria in Chapter 55 of the EIG and, where relevant, the Adults at Risk considerations set out in Adults at Risk in Immigration Detention. Where an individual claims asylum whilst in detention pending their removal, or whilst detained following an enforcement visit, the case working unit that owns the case or the detaining Immigration Compliance and Enforcement (ICE) team should refer to the Detention Gatekeeper. The Detention Gatekeeper should review the case’s suitability for detention in accordance with the general detention criteria as set out in Chapter 55 of the EIG within 48 hours. Allegations of torture and other vulnerabilities set out in Adults at Risk in Immigration Detention should be carefully considered by the Detention Gatekeeper before referring a case to the Detained Asylum Casework Team. Where such allegations are supported by independent evidence such as medical records or a Rule 35 report indicating that detention for the period identified as necessary would be likely to cause harm, the case should not normally be referred to the Detained Asylum Casework Team. Similarly, claims from pregnant women are not suitable for consideration in detention. In cases where maintaining detention is considered to be appropriate, the Detention Gatekeeper should notify the Detained Asylum Casework Team who will: • •

take ownership of the case and inform the previous caseworker that the Detained Asylum Casework Team is now responsible arrange for the asylum screening interview to be carried out as soon as possible (if it has not already taken place)

Once the asylum screening interview has taken place, a caseworker should be in a better position to decide whether it is likely that the individual can be removed within a reasonable time, bearing in mind the nature of the asylum claim and all the circumstances of that individual. Detention should be reviewed by the Detained Asylum Casework Team in accordance with EIG 55.8. Particular attention should be paid to any vulnerabilities that have been raised in terms of suitability for detention as set out in Adults at Risk in Immigration Detention. Page 4 of 9 Published for Home Office staff on 18 September 2017

Detention should also be reviewed by the Detained Asylum Casework Team in accordance with EIG 55.8 where there may be a significant change in circumstances impacting on the likelihood of removal within a reasonable time frame. Examples include (but are not limited to): • • • •

after the asylum screening interview has been conducted on receipt of additional information in support of the asylum claim immediately after a decision is made on the asylum claim on the day that the Immigration and Asylum Tribunal informs the Home Office that an appeal is lodged • whenever there is any other significant change in circumstances Reviews that fall on the weekend must all be completed on the Friday before. If there is a Bank Holiday the reviews should be completed on the last working day beforehand. Asylum claims made at the Asylum Intake Unit, at port or once apprehended as a clandestine might initially seem to be suitable for detention due to a reasonable likelihood of certifying the claim as clearly unfounded, and of removing the individual within a reasonable timeframe. Such cases should be referred to the Detention Gatekeeper after screening has taken place for an assessment of suitability for detention. Particular attention should be paid to any vulnerabilities that have been raised (see Adults at Risk in Immigration Detention) and the ability to conclude the claim fairly within a reasonable timeframe. The Detention Gatekeeper should review the case within 48 hours of the claim being lodged in accordance with the general detention criteria as set out in Chapter 55 of the EIG. Decisions to detain an individual from an NSA country must be signed off by a Grade 7 in the Detention Gatekeeper team. Decisions to detain an individual from a nonNSA country due to exceptional circumstances (such as past criminality) must be signed off by an SCS1 in Asylum Operations or the NRC. Asylum claims passed to the Third Country Unit do not need Grade 7 or SCS sign off. If the decision is taken to maintain detention, the Detention Gatekeeper should notify the Detained Asylum Casework team who will take ownership of the case and inform the previous caseworker of the transfer of responsibility for the case. Where a decision is taken to release an individual from detention, consideration should be given to appropriate reporting conditions in accordance with Chapter 57 of the EIG and the case should be referred to NAAU to allocate to a casework team and arrange accommodation if needed. Related content Contents


Process for deciding asylum claims in detention This process must also be read in conjunction with the main asylum policy instructions, in particular; the guidance on: • • • • • • • •

conducting the asylum interview assessing credibility and refugee status drafting, implementing and serving asylum decisions guidance on detention rule 35 process gender issues in the asylum claim human trafficking - guidance for frontline staff sexual identity issues in the asylum claim the guidance on NSA cases and certification under section 94 of the 2002 Act

Particular care must be given to claimants who may, due to their particular circumstances, require their interview to be rescheduled, timescales for the submission of representations to be extended, or in some cases released from detention. These instructions apply to all cases, including those from NSA countries, which are accepted for processing whilst in detention. Continual Case Progression It is important that there is continual case progression to ensure that time in detention is minimised, and to maximise the prospect of removal within a reasonable timeframe. Caseworkers should therefore act diligently to progress asylum claims as quickly as the circumstances of the case allow while ensuring a fair process. This includes allowing flexibility with timescales where this is required. If it becomes apparent that, for any reason (including, for example, the claimant’s need to obtain further evidence, or operational reasons) the decision is likely to be significantly delayed, then detention should be reviewed in accordance with Chapter 55 of the EIG and the Adults at Risk in Immigration Detention policy to ensure that detention remains lawful. Induction interview Once a claimant is transferred to the relevant IRC, a DAC officer will conduct an induction interview within a day of their arrival. The purpose of the induction interview is to ascertain if the claimant needs assistance from a publicly funded legal representative or if they have instructed a firm privately. The claimant will be asked for consent to access medical information and asked whether they have any medical conditions of which the Home Office needs to be aware. The claimant will also be able to request a gender specific interviewer, their preferred language for the interview and for their asylum interview to be deferred for a short duration, for example if they are expecting to instruct a firm privately.


If a duty legal representative is requested then a referral will be made to a legal firm who has a contract with the Legal Aid Agency (LAA) to provide representation for the case. This referral should normally be made on the day of the induction interview; however it should be no later than one working day after the induction interview. Asylum Interview The DAC team is responsible for booking the asylum interview. There are no set timescales for the booking of an asylum interview as it will largely depend on the individual circumstances of the case. Officers should ensure that the claimant has sufficient time to instruct their legal representatives. Unless a claimant expressly requests it to take place earlier, asylum interviews should not take place any earlier than 5 working days from the date when the referral is sent to the legal representatives. This is consistent with national asylum operations. If the interviewing officer decides to ask for further evidence or if the claimant requests additional time in which to submit information of relevance to the claim, the claimant should be given a reasonable time in which to provide it - normally 5 working days. More time can be offered where it is appropriate to do so. The interviewing officer must, at the end of the asylum interview, agree a deadline for the submission of further evidence or legal representations where applicable. This does not prevent the claimant or the legal representatives from submitting a written request for an extension of the timescales after the interview. Whether or not the deadline is extended will depend on the individual circumstances of the case and the justification given for the request. Caseworkers can also agree to decide the case more quickly if the claimant does not intend to submit further evidence. Caseworkers must make a note on CID confirming the claimant has explicitly agreed that they will not be submitting any further information and does not object to a decision being made in less than 5 days. This does not prevent the claimant or the legal representatives from submitting a written request asking for additional time to submit prior information prior to the decision being served. Whether or not the deadline is extended will depend on the individual circumstances of the case and the justification given for the request. Handling of Helen Bamber / Freedom from Torture referrals and Medico Legal Reports Caseworkers should follow the guidance set out in the asylum instruction on MedicoLegal Reports from the Foundations, for asylum claims involving allegations of torture or serious harm, where a Medico-Legal Report (MLR) from the ‘Medical Foundation Medico-Legal Report Service’ at Freedom from Torture or the Helen Bamber Foundation is likely to form part of the evidence. Caseworkers should however note that section 2.11, relating to DFT, no longer applies. Decision making Where the caseworker has agreed to allow the claimant additional time to submit further representations, they should aim to make and serve the decision on the day after the agreed deadline. All relevant papers should be served on both the claimant and the legal representatives. Page 7 of 9 Published for Home Office staff on 18 September 2017

If a decision is made to grant asylum or any other form of leave, the claimant should normally be released from detention immediately, although all relevant processes will need to be completed prior to any release. If the claim is refused and the decision certified under s 94 or s 96 of the Nationality, Immigration and Asylum Act 2002, removal action can proceed as long as there are no other outstanding representations. If, however, the claim is refused and the decision attracts an in-country right of appeal, caseworkers should carefully consider whether detention remains appropriate whilst the appeal is being processed (see the Appeals section below). An asylum or a human rights claim can be treated as implicitly withdrawn when a person has failed without reasonable excuse to make a prompt and full disclosure of material facts or otherwise to assist the Secretary of State, to the full, in establishing the facts of the case. This may include one or more of the following: • failure to attend a screening interview or an asylum interview about the claim unless the claimant demonstrates within a reasonable time that that failure was due to circumstances beyond their control • leaving an interview, without reasonable explanation, prior to its completion • failure to provide a witness statement or other material evidence about the substantive basis of the application, when given an opportunity to do so Where no explanation is provided in relation to one of these scenarios in a reasonable timeframe, the asylum claim should be treated as implicitly withdrawn. If a reasonable explanation is received, caseworkers must consider whether there is sufficient evidence to show that failure to attend was due to circumstances beyond the control of the claimant and decide whether to rebook the interview or treat the claim as implicitly withdrawn. It is possible for claimants to request to reinstate their asylum claims, after they have withdrawn it explicitly or if a decision is made to treat their claim as implicitly withdrawn. Requests to reinstate an asylum claim should be considered as further submissions under paragraph 353 of the Immigration Rules as set out in the AI on Further Representations Review of detention Continued detention will be under review in accordance with general detention criteria as set out in Chapter 55 of the EIG and, where relevant in Adults at Risk in Immigration Detention.The caseworker should also give due regard to any Rule 35 reports and, in accordance with the guidance set out in the Rule 35 Detention Process , consider whether to release or maintain detention. The claimant should be released from detention immediately if their detention can no longer be justified under the criteria as set out in both Chapter 55 of the EIG and Adults at Risk in Immigration Detention.

Appeals Page 8 of 9 Published for Home Office staff on 18 September 2017

In cases where detention is maintained following the refusal of the asylum claim, caseworkers should note that any in-country appeals will be processed under the Principal Rules. Therefore, at both the decision stage and whenever there is a material change in the circumstances of the case, such cases should be regularly reviewed in line with the criteria as set out in both Chapter 55 of the EIG and Adults at Risk in Immigration Detention Further Submissions In cases where the original claim has been considered and appeal rights exhausted, further submissions will have to meet the requirements of paragraph 353 to be considered as a fresh claim (see the AI on Further Representations). Removals Removal directions can be arranged as set out in Arranging Removals in line with the following circumstances: • where the claimant has withdrawn their claim by signing a formal disclaimer form IS 101, their appeal by signing form IS 103 or has otherwise communicated through their legal representative a request for a voluntary departure • where the asylum decision is certified as clearly unfounded under s 94 of the Nationality, Immigration and Asylum Act 2002 or certified under s 96 of the same Act and there are no outstanding representations or other legal barriers • claimants who have exhausted their statutory appeal rights and there are no outstanding representations or other legal barriers Related content Contents
