Fresh claims for asylum since Rahimi - legal consequences and procedural barriers

An asylum claim in UK law, and the right to have that claim determined inside the UK, both rest straightforwardly on the UN Convention on Refugees and the prohibition of refoulement to the country of persecution. More problematic, and more contested, are the procedures applied to asylum-seekers, and the conditions under which they are forced to live. Driven by the significant increase in asylum-seeker numbers in the late 90’s, major new legislation dealt with the asylum process, with legal aid for asylum appeals, and with housing and social assistance for asylum-seekers. Lengthy delays in processing claims, along with rapid changes in country conditions, new wars, internal strife and genocides, led to the phenomenon of the ‘fresh claim for asylum’.

In 2005 Kent Law Clinic’s case of Rahimi , confirmed on appeal in WM(DRC) , determined that the threshold of ‘realistic prospect of success’ for a fresh claim was low, and that that ‘prospect’ referred to success before an adjudicator in an appeal.

The legal and practical importance of that judgment cannot be understated. The ‘recording’ of a claim as a fresh claim attracted a fresh in-country right of appeal, provided a passport to asylum support and, for some, the right to work. For many asylum-seeking communities and many representatives, a ‘fresh claim’ came to be seen as simply the next stage in their ‘case’. Government responses include controlling the instigation of a fresh claim and its consequent entitlement to housing and social assistance, the decision to hive off ‘fresh claim’ judicial reviews to the Upper Tribunal, and, from 26/1/2015, to require all ‘further submissions’ to be lodged in person in Liverpool.

This paper examines developments in the law on fresh claims, the impact of Home Office defensive measures, and legal challenges in response.