Further representations and fresh claims: call for evidence, and new toolkit section
NCADC is concerned about the very high rejection rates when individuals submit further representations after a refusal of their asylum or human rights applications. The rejection letters from UKBA will say that the further representations do not meet the legal test of paragraph 353 of the immigration rules and therefore do not constitute a fresh claim.
We, along with other organisations, are compiling case studies of these refusals. We are seeking anecdotal evidence (or statistical evidence if you have it) of good quality further representations being rejected by UKBA, particularly if the decision is made within a matter of days of submission.
You may be a local community group or work with/ support asylum seekers and migrants and be able to give a general picture of what is happening in your area. We’d love to hear from you.
If you would like to know more, or have evidence you would like to share, please contact email@example.com
Below is another sneak preview of our campaigning toolkit, which will be available soon in full, online and in printed hardcopy !
Difference between further representations and fresh claims
- further representations (or further submissions) can be submitted to the UK Border Agency (UKBA) at any point after an asylum claim or human rights application is refused, but a fresh claim is only when appeal rights are exhausted.
- further representations might be emphasising a point already made, but to be considered as a fresh claim, must include new information
- a helpful way to think about a fresh claim is that it will either need to provide evidence of a new fact, or provide a new source of evidence for a fact that has previously been rejected
- your or your lawyer submit the further representations; UKBA decides if it’s a fresh claim
The legal test
From the immigration rules:
353. When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.
The key points are: significantly different from the material that has previously been considered. If it’s material that hasn’t been considered before, why hasn’t it been considered? If you’ve had access to the evidence all along and haven’t submitted it without a good reason, UKBA will use that a reason to reject it.
And a realistic prospect of success: You may have new evidence, but is it relevant to your situation? Is it material (central) to your case? There may have been a big political change in your home country, but if your claim is based on sexuality for example, and the political change can’t be seen to impact on that, it won’t be considered a fresh claim. Other things UKBA will consider in this is whether the evidence can be trusted. Previous ‘negative credibility findings’ may count against you here, and objective evidence becomes even more important.
Credibility has other implications. If for example you have new evidence about the persecution of Elai subclan in Somalia, this will not be considered to have a realistic prospect of success, no matter how good the evidence, if it is not believed that you a member of that sub-clan. You would need to also provide evidence showing that UKBA and the courts were wrong to doubt your clan identity. A more common example is political persecution in countries such as Iran and Zimbabwe. Political oppression in these countries is well known and is accepted to occur by UKBA, and you may find many news reports and human rights reports confirming this is occurring and so submit this as a fresh claim. But unless you can show that you are from these countries, a political activist, and high profile (at least at the level of the activists mentioned in the reports), it is likely that UKBA will reject the fresh claim.
Many fresh claims are rejected on this basis. They may include good evidence from reputable sources about human rights abuses and persecution, and UKBA/the courts may not dispute that this evidence is true. The problem is that UKBA do not believe these problems and event are relevant to you.
It’s not just arguing your case in a better way – there has to be material that is new to back up your arguments.
What might be included in a fresh claim?
NB This is not advice about what to put in your further representations, and is not an exhaustive list. It is an explanatory list of some examples of how situations can change, leading to there being new evidence.
- Evidence supporting your original asylum claim that you have only just received. For example, documents proving political activity that have only just arrived from your country of origin. NB – always keep the envelopes these arrived in and any proof of delivery/receipt
- Personal news from back home. Have you recently received information that the authorities/whoever was persecuting you is still looking for you? People may have come round to your house, or maybe a family member or friend has recently been targeted. It may be possible to get a witness statement from people back home to support this claim.
- Change of circumstances back home. For example, political developments. These developments must be relevant to your case. How would a change of government, a new law or policy introduced put you at risk if you were returned there? A change of circumstances might be reflected in new country guidance case law. Case law can be slow to catch up with political developments, however, so you may be submitting further representations before this has been heard and therefore be relying on other evidence.
- Case law/legal developments. This may be a change in country guidance case law (for example, the historic case of RN and Zimbabwe). This could also be a reported judgement (in someone else’s case) that UKBA was wrongly applying a policy, or that the procedure for determining asylum should be done in a certain way. If you can show that your case was refused because UKBA was using a certain policy, or certain procedures were used that have now been found to be unlawful, your fresh claim may ask for you case to be reconsidered on that basis.
- Human rights (article 8 ) arguments. Article 8 grounds (family or private life in the UK) are meant to be included when you first apply for asylum. It may be that there have been changes in your life since then (new relationship/child etc), or that you have new evidence to prove the existence of this family and private life. Letters of support from friends, family, community, church/mosque/temple, school/college might be considered as evidence to submit. Documentary evidence such as birth or marriage certificates might fall into this category. You might be able to get a professional or an expert to comment on the impact to you/your family if you were removed from the UK – this is best done through a legal advisor.
Where can you find objective evidence?
Objective evidence in this section refers to sources that aren’t connected to you. Generally, good places to find this evidence are through human rights organisations or reputable media sources.
Good places to look for information on human rights in a country of origin are:
Human Rights Watch
International Crisis Group
Irish Refugee Documentation Centre
U.S. State Department Human Rights Reports
Voice of America news
The Guardian newspaper
The New York Times
Asylum Research Consultancy (especially commentaries on OGN)
European Country of Origin Information Network
These are all considered as reputable sources of information, and the media sources listed are ones that have good world news sections and are interested in human rights. If you are getting evidence from other sources, think about who has written the report or article. If it’s a group that is in opposition to a government, for example, UKBA and the courts might not consider it to be objective/good evidence.
How do you submit a fresh claim?
This normally has to be done in person in Liverpool, although occasionally exceptions are made. If you are in detention, you should be able to fax it to UKBA, or a solicitor does this for you.
- Most further representations are not accepted as being fresh claims. This means that they are not looked at substantively, instead UKBA say that what has been submitted does not meet the legal test (see above).
- There is no right of appeal when a fresh claim is certified (not accepted to meet the test). Your legal options may be a judicial review of this decision, or a new/different fresh claim.
- If a fresh claim is accepted as being a fresh claim, this does not mean UKBA accepts your story. It just means you are back in the system. Your claim will then be assessed on its merits (this changes what financial support you are entitled to, and your appeal rights are the same as the first claim).
Fresh claims and removals
The Immigration Rules say:
353A. Consideration of further submissions shall be subject to the procedures set out in these Rules. An applicant who has made further submissions shall not be removed before the Secretary of State has considered the submissions under paragraph 353 or otherwise.
BUT submitting further representations does not mean you are safe. UKBA frequently issue the letter saying your further representations are not considered to be a fresh claim at the same time as issuing removal directions. They may also attempt removal if you cannot prove you have submitted a fresh claim – so make sure someone has evidence you have submitted it, and evidence of receipt by UKBA.