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ABANDONED APPEALS

Table of Contents

Introduction Appeal to be treated as Abandoned As a consequence of the appellant leaving the UK By virtue of the appellant being granted leave If the officer is aware that an appeal has been lodged and the Home Office has granted Leave If the officer becomes aware of an appeal being lodged after granting leave. If the officer is not aware of an appeal being lodged. If Notice of Intention to Pursue Appeal not received or received outside of the 28 days deadline If Notice of Intention to Pursue Appeal received Glossary

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Introduction
This guidance sets out instructions for officers and team support in asylum and legacy on the processes and procedures to be followed where an appeal against an immigration decision is deemed abandoned by virtue of the Home Office granting a period of leave to enter or remain or the appellant leaving the United Kingdom. For information and guidance on dealing with the various aspects of asylum appeals see the section of The Appeals Process. Application of this instruction in respect of children and those with children Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the UK Border Agency to carry out its existing functions in a way that takes into account the need to safeguard and promote the welfare of children in the UK. It does not impose any new functions, or override existing functions. Officers must not apply the actions set out in this instruction either to children or to those with children without having due regard to Section 55. The UK Border Agency instruction Arrangements to Safeguard and Promote Childrens Welfare in the United Kingdom Border Agency sets out the key principles to take into account in all Agency activities. Our statutory duty to children includes the need to demonstrate: Fair treatment which meets the same standard a British child would receive; The childs interests being made a primary, although not the only consideration; No discrimination of any kind; Asylum applications are dealt with in a timely fashion; Identification of those that might be at risk from harm.
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Appeal to be treated as Abandoned


The following scenarios would deem the appeal to be abandoned As a consequence of the appellant leaving the UK Where an appeal has been lodged and the appellant leaves the United Kingdom prior to the appeal being heard, the appeal is deemed abandoned as stated in s104(4) of the 2002 Act as amended on 30th March 2006 by s9 of the IAN Act 2006. An appeal is also abandoned if the appellant signs a disclaimer and leaves the United Kingdom or fails to attend the hearing and there is evidence that he has left the United Kingdom. Unless the officer has been notified that any of the above has occurred, it is extremely unlikely that the officer will be aware that the appellant has left the UK. The officer generally may become aware if the appellant attempts to re-enter the UK at port. If the officer becomes aware that an appeal is abandoned by the fact that the appellant has left the UK, the officer may notify the Tribunal of this fact at once.

By virtue of the appellant being granted leave If the appeal was submitted and subsequently, the appellant is granted leave to remain (for more than 12 months) by the Home Office, the appeal could potentially be treated as abandoned. Here there may be three possible scenarios: If the officer is aware that an appeal has been lodged and the Home Office has granted Leave If the officer is aware that an appeal had been lodged then the Officer must advise the AIT by letter of the decision to grant limited leave (using letter ref: ASL.3267). The content of the letter must include: the date of decision to grant and the notification date of the grant

Once the AIT receives the UK Border Agency notification letter, The AIT will suspend the appeal and wait to see if the appellant submits a Notice of intention to pursue appeal form. The officer must at the point of granting leave via the Your Asylum Decision information sheet (ACD.2171; ASL.3225 or ASL.3226) advise the appellant that they may request a continuation of their appeal provided: It is done within 28 days of receipt of their decision letter (advising them of their grant of leave) and:

Either: o They are currently in the UK and have not been recognised as a refugee but have been granted leave to enter or remain for a period exceeding 12 months and o They consider that their removal would be in breach of the United Kingdoms obligation under the Refugee Convention. Or: o They are currently in the UK and have been granted leave to remain for a limited period and they want to pursue their appeal on race discrimination grounds. Uncontrolled if printed

The appellant would be able to obtain a Notice of intention to pursue appeal form from the AIT website. The appellant must complete and submit the form directly to the AIT. The officer will be sent a copy of the Notice of Intention to pursue appeal form from the AIT after receipt. On receipt of a copy of the Notice of Intention to pursue appeal form, the officer must: Update CID notes with the date of receipt Update the Case Management Plan

If the officer has not received a copy of the Notice of intention to pursue appeal form before the expiry of the 28 days deadline, then the officer may contact the AIT 48 hours after the 28 day deadline to check whether the notice has been received and whether the appeal will remain live. If the officer becomes aware of an appeal being lodged after granting leave. If the officer has granted leave for more than 12 months, and then receives notification from the AIT that the appellant has lodged an appeal, the officer must notify the AIT of the leave granted. See By virtue of the appellant being granted leave. If the officer is not aware of an appeal being lodged. If the officer serves the decision letter granting leave to enter or remain without being aware of the fact that the appellant has submitted an appeal, then the officer will be unable to advise the AIT of any steps they may need to take. If the officer becomes aware of an appeal lodged after granting leave, then the officer must notify the AIT of the leave granted. See By virtue of the appellant being granted leave.

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If Notice of Intention to Pursue Appeal not received or received outside of the 28 days deadline
If the appellant accepts the grant and does not send the Notice of intention to pursue appeal form within the 28 days deadline or If the Notice of intention to pursue appeal form is not received within 28 days of receipt of the Home Office decision to grant, then in accordance with Rule 18 (1B) of the AIT Rules, the appeal is abandoned. The officer must be sent a copy of the Acknowledgement of intention to pursue appeal outside of 28 days notice from the AIT, advising that the appeal is now classed as being abandoned. The officer must: Put the file in the hold area with a flag for when the leave to remain expires Update CID with the date the appellant was notified of being granted leave to remain Update CID with the date of expiry of leave to remain Update the Case Management Plan

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If Notice of Intention to Pursue Appeal received


If the Notice of intention to pursue appeal form is received within the 28 days, then the AIT (or High Court/Court of Appeal) will advise the appellant and the officer that the appeal will progress as previously notified. The officer must then continue with the appeals process and the AIT will list the appeal hearing in the usual manner. The officer must update CID notes and the Case Management Plan stating that the Appeal will continue.

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Glossary
Term ASL. 3267 ASL.3225 ASL.3226 Meaning Letter to AIT advising of leave granted Asylum Decision information sheet giving advise and information in relation to a decision made on an asylum claim Asylum Decision information sheet giving advise and information in relation to a decision made on a humanitarian protection claim Asylum Decision information sheet giving advise and information in relation to an asylum decision made where limited leave has been granted

ACD.2171

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Document Control
Change Record
Version 1.0 2.0 3.0 Authors MO EG RA Date 18/04/07 04/11/08 29/10/09 Change Reference published Update branding only Reference to s55 of BCIA 2009 included (Childrens Duty)

Review
Reviewed By Name Date Position

Issue Control
Approved for Publication by Name Iain Walsh Keith Lambert Hugh Ind Keith Lambert Date Role

02/04/07 02/04/07 12/04/07 22/10/09

Acting Director of AAPD Director of Appeals Director for Asylum (London and SE) Director of GLA

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ASYLUM APPEAL HEARING CASE MANAGEMENT REVIEW


Table of Contents

Introduction The purpose of the CMR Date and Location of the CMR Preparation for the CMR CMR List Non-Appearance of the Appellant or Representative at the CMR Appeal Determined at CMR Request to Concede Aspects of the Case Directions at Conclusion of the CMR Appeal to Proceed to Substantive Appeal Hearing Actions to be taken after the CMR has Taken Place Request for Appeal to be Adjourned Home Office seeks adjournment Where adjournment is agreed Glossary

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Introduction
This Section sets out guidance for New Asylum Model Case Owners and team support on the processes to be followed when dealing with the first stages of an appeal against the refusal of an asylum claim. Where an asylum claim is refused and the consequent immigration decision attracts a right of appeal, the appellant is required to lodge an appeal with the Immigration and Asylum Tribunal (AIT) within the following guidelines: Suspensive (in-country) right appeal not detained Suspensive (in-country) right appeal detained Non-suspensive right of appeal of 10 working days of service of decision of 5 working days of service of decision 28 working days from the date of departure from the UK

The AIT must notify the respondent as soon as an appeal has been lodged under rule 12 of the Procedure Rules. Under Rule 45 of the Asylum and Immigration Tribunal (Procedure) Rules 2005, the Tribunal can request for a Case Management Review (CMR) hearing to be held. A CMR hearing is held in respect of every asylum appeal (other than an appeal in respect of a detained fast track claim or where a Tribunal determination has been ordered to be reconsidered) where the appellant: Is present in the UK Has a right of appeal while in the UK

When an appeal has been lodged, AIT decides on the date and location of the appeal hearing, and also arranges a case management review (CMR). AIT notifies the appellant and the Appeals Processing Centre (APC), who update CID accordingly.

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The purpose of the CMR


The main purpose of the CMR is to confirm the points in issue prior to the substantive hearing. The judge conducting the hearing should be seeking to confirm the issues that will be raised by either side. Both parties are required to serve any documents and witness statements they intend to rely on, or confirm that these will be served. The CMR is regarded as a hearing of the appeal and is held before an Immigration Judge. Both the appellant and respondent (or their representatives) are directed to attend. Wherever practicable, the Case Owner who is responsible for the management of an asylum claim should present the Home Office case at both the CMR and the substantive appeal hearing. Application of this instruction in respect of children and those with children Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the UK Border Agency to carry out its existing functions in a way that takes into account the need to safeguard and promote the welfare of children in the UK. It does not impose any new functions, or override existing functions. Officers must not apply the actions set out in this instruction either to children or to those with children without having due regard to Section 55. The UK Border Agency instruction Arrangements to Safeguard and Promote Childrens Welfare in the United Kingdom Border Agency sets out the key principles to take into account in all Agency activities. Our statutory duty to children includes the need to demonstrate: Fair treatment which meets the same standard a British child would receive; The childs interests being made a primary, although not the only consideration; No discrimination of any kind; Asylum applications are dealt with in a timely fashion; Identification of those that might be at risk from harm.

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Date and Location of the CMR


The Asylum and Immigration Tribunal (AIT) will arrange for a CMR to be held 10 days after the appeal is lodged, in the same court as the substantive appeal which will take place on day 20 of the appeal process. The workflow team within each asylum team receives a daily report listing all appeals lodged in respect of cases allocated to the New Asylum Model. The Case Owner will therefore be notified within a day of an appeal being lodged at the AIT. APC are responsible for updating CID when an appeal is lodged and Case Owners can also confirm, by checking on CID, that an appeal has been lodged.

Preparation for the CMR Prior to going to the CMR Hearing, the Case Owner should prepare the following in order to take them to the CMR: Prepare a CMR Record Sheet ASL.2945 (available in DocGen) Ensure that the appeal bundles are prepared and despatched to both the AIT and the appellant in good time See Asylum Instruction on Appeal Bundling. Ensure that the appellant/representative have been notified of the CMR taking care that the information has been sent to the correct address. Prepare two copies of any documents that are to be taken to court, which were not included in the appeal bundle e.g. updated country information (one for the judge & the other for the appellant/re.) Prepare a typed copy of the interview record, if the written record is not legible. See Asylum Instruction on Sending illegible interview record to the FSD Typing Bureau. At the CMR, the Case Owner should complete the relevant sections of the CMR Record Sheet ASL.2945. CMR List It is usual for about 10 CMRs to be allocated to a specific court in one day. Asylum cases managed within the New Asylum Model are not listed separately from appeals to be presented by Presenting Officers. Therefore Case Owners must liaise with the appropriate Presenting Officers Unit (POU) to ensure that the Presenting Officer dealing with the other cases on that days CMR list is aware that an Asylum Team Case Owner will be presenting any New Asylum Model cases.

Non-Appearance of the Appellant or Representative at the CMR The hearing notice for the CMR draws the attention of the appellant and the respondent (or their representative) to the requirement to attend the CMR. Should neither the appellant nor their representative attend the CMR, the judge will consider whether the notice of the hearing was properly served. According to Rule 19 of the Procedure Rules 2005, the appellate authorities must proceed with the hearing in the absence of a party or their representative provided notice was given of the date, time and place of the hearing, and the appellant or representative are still absent without satisfactory explanation for the absence. At the CMR, the Case Owner should: Uncontrolled if printed

Draw to the judges attention the fact that the notice of hearing was correctly issued Draw to the judges attention any information which explains the appellants (or representatives) non-attendance

The judge may ask the Clerk to the Court to make enquiries to confirm that this is the case before proceeding. While the Clerk does so, the next case on the CMR list will be dealt with, and the Case Owner will be required to remain in Court until the issue is resolved. The judge may then decide to deal with the CMR in the absence of the appellant or representative, to adjourn the CMR until a later date, or, exceptionally, to determine the appeal.

Appeal Determined at CMR Rule 15(2) (c) and (d) of the Procedure Rules allows the judge to determine the appeal if there is no appearance or reply to directions. Exceptionally, the Immigration Judge may determine the appeal on the evidence already presented where neither the appellant, nor their representative, attends the CMR and where no reply has been made to directions. In these cases, it is important that the Case Owner brings to the attention of the Immigration Judge the fact that determining the appeal at the CMR can lead to considerable difficulties. The Immigration Judge would have to consider the appellants case extremely carefully in order to ensure that a reconsideration order is not requested. For the action to be taken when an appeal has been allowed or dismissed see Asylum Instruction in Appeal Hearings Service of Determinations.

Request to Concede Aspects of the Case Representatives or judges may ask the Case Owner to concede aspects of the case at the CMR. Prior to the CMR, the Case Owner should have identified any areas likely to become an issue and will have obtained approval from a Senior Caseworker to make any concessions. However, new evidence may be submitted or new issues may be raised at the CMR. Case Owners should refuse to concede points, even where the Home Office case appears weak, because the Case Owner will need the opportunity to research the issue before the substantive hearing. The judge does not have the power to require the Case Owner presenting the case to concede an issue. Following the CMR, the Case Owner should consider the request made and consult a Senior Caseworker if it is considered that it would be right to make a concession at the substantive appeal hearing.

Directions at Conclusion of the CMR At the end of the CMR the Tribunal will give the Case Owner any further written directions relating to the conduct of the appeal.

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In addition, the Case Owner should makes notes of any issues that have been agreed at the CMR hearing as being relevant to the determination of the appeal and of any concessions made by either appellant or respondent. The court directions should be attached to the file.

Appeal to Proceed to Substantive Appeal Hearing In the majority of cases both parties will be ready to proceed and the Immigration Judge will direct the substantive hearing to take place on the pre-arranged date. Following the CMR, the Case Owner should follow the guidance in Action to be taken after the CMR has Taken Place, see below.

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Actions to be taken after the CMR has Taken Place


On return to the office following the CMR, the Case Owner should complete the remaining sections of the CMR Record Sheet ASL.2945 and attach it to the file, update the Appeal Maintenance screen on CID, and update the CMP with: Whether the appellant and representative attended Any objective notes of the appellants behaviour Any new submissions presented by the appellants representative Any directions of the Immigration Judge Any other information that the Case Owner considers relevant to the case

Case Owners must ensure that they comply with any directions given to the Home Office at the CMR hearing. The Case Owner must then prepare for the substantive hearing. See Asylum Instruction on Substantive Hearings for further information

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Request for Appeal to be Adjourned


The rules relating to the circumstances in which a judge can grant an adjournment are contained in Rule 21 of the Procedure Rules 2005. The hearing of an appeal may not be adjourned unless the judge is satisfied that the appeal cannot otherwise be justly determined. A request for adjournment may be made to the AIT by the appellant or their representative at any time after the hearing date is set. Where the request is made by direct contact with the AIT, the Home Office will not be aware of the request unless and until it has been granted by the AIT. The AIT notifies APC, who in turn inform the relevant POU. It is the responsibility of Case Owners to check CID regularly to ensure that they are aware of any change to the date and location of the appeal hearing. A request may be made by the appellant or their representative at the CMR for the substantive appeal hearing to be adjourned to a later date. Such a request may also be made, as a preliminary issue, at the substantive hearing itself. The appellant or their representative may argue that more time is needed to obtain evidence to support the appeal, such as a medical report or document from abroad. In the majority of cases, the Case Owner must object to this request, arguing that it would simply delay proceedings and add to the overall cost. However, if the Case Owner believes that the appellant has not had sufficient time to gather information or that the evidence that the appellant is seeking to obtain, is particularly relevant to the appeal, then they should not object to adjournment request. The Case Owner should consider the time that has already been available to the appellant to gather evidence and also how central this evidence would be to the grounds of appeal. Where the asylum claim was refused under paragraph 339M as well as paragraph 336, i.e. where non-compliance was part of the reason for refusing the claim, the Case Owner should make strong representations to the judge that the appellant has previously failed to take advantage of opportunities to explain the basis of their claim and had not provided reasonable explanation for their actions. Therefore the Case Owner should argue that there should be no further justification for allowing additional time now. Should an adjournment be requested because of the appellants ill health, the Case Owner should, from their knowledge of the case and the appellant, be in a position to say whether the Home Office would object. And if necessary object to the request.

Home Office seeks adjournment There may be circumstances where the Home Office wishes to seek an adjournment. This may apply for example where a policy decision has been made to seek the adjournment of a particular category of asylum appeal pending resolution of a legal or policy issue. Case Owners should only apply for an adjournment in very exceptional cases, and should seek the approval of a Senior Caseworker.

Where adjournment is agreed Where the judges decides to adjourn the substantive hearing, Rule 21(4) requires that the revised date should be no later than is required by the circumstances and should not be more than 28 days after the original hearing date unless there are exceptional circumstances. Uncontrolled if printed

The Case Owner should: Update the case management plan to show the date and location of the rescheduled hearing and the reasons for the adjournment Attach a copy of the Directions to the file Update CID

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Glossary
Term ASL.2945 Meaning CMR Record sheet

This glossary is for the insertion of any letters or minute sheets referred to in the guidance

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Document Control
Change Record
Version 1.0 2.0 Authors SS RA Date 17/02/07 29/10/09 Change Reference New web style implemented Included reference to s55 BCIA 2009 (Childrens duty)

Review
Reviewed By Name Date Position

Issue Control
Approved for Publication by Name Keith Lambert Date Role

22/10/09

Director of GLA

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SUBSTANTIVE APPEAL HEARINGS


Table of Contents

Introduction Preparation for the Appeal Hearing Appeal to be heard before a Senior Immigration Judge or an Immigration Panel Request for Appeal to be Adjourned Home Office seeks adjournment Where adjournment is agreed Non-Appearance of the Appellant or Representative at the Appeal Hearing Record of Proceedings Preparing the SAT (Specialist Appeals Team) Minute Sheet Awaiting the Determination of the AIT Glossary

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Introduction
This section sets out guidance for Regional Asylum Team Case Owners and team support on the processes and procedures to be followed when dealing with the substantive appeal against the refusal of an asylum claim.

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Preparation for the Appeal Hearing


In preparation for the substantive hearing, the Case Owner should: Review the case file before the appeal hearing Review the Case management Plan Review CMR Record Sheet ASL.2945 and ensure that any actions arising from the CMR hearing have been completed Ensure that all relevant documents have been despatched to the AIT, the appellant and representatives Case Owners will develop their own method of written preparation to help them to present the case effectively at the hearing. This will include: Identifying the areas of strength and weakness in the Home Office case Any preliminary issues that will need to be addressed before the hearing can proceed Identifying areas that need to be confirmed/explored by means of cross-examining the appellant and any other witnesses, and decide appropriate lines of questioning A summary of the submissions they intend to make to the court Case Owners will need to bear in mind that their preparation may need to be revised in the light of developments at the CMR hearing. The Case Owner should liaise with the Presenting Officer who has been allocated the court list on which the Asylum Team appeal is listed to ensure that they are aware that the appeal will be presented by an Asylum Team Case Owner. The Appeal Maintenance screen in CID should be checked regularly by a Case Owner, to ensure that any changes of location or hearing date are picked up quickly so that arrangements can be made to reallocate the appeal to another Case Owner if necessary. For further details on how to prepare for an appeal hearing, please see the Asylum Instruction Appeal Process After Initial Decision Checklist Application of this instruction in respect of children and those with children Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the UK Border Agency to carry out its existing functions in a way that takes into account the need to safeguard and promote the welfare of children in the UK. It does not impose any new functions, or override existing functions. Officers must not apply the actions set out in this instruction either to children or to those with children without having due regard to Section 55. The UK Border Agency instruction Arrangements to Safeguard and Promote Childrens Welfare in the United Kingdom Border Agency sets out the key principles to take into account in all Agency activities. Our statutory duty to children includes the need to demonstrate: Fair treatment which meets the same standard a British child would receive; The childs interests being made a primary, although not the only consideration; No discrimination of any kind; Asylum applications are dealt with in a timely fashion; Identification of those that might be at risk from harm.

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Appeal to be heard before a Senior Immigration Judge or an Immigration Panel


AIT may decide (at any time before the substantive hearing) that the issues arising in a particular case are complex and therefore direct that the case should be heard before an Immigration Panel or before a Senior Immigration Judge rather than a single Judge. In these circumstances, the Case Owner should consult the team leader immediately to decide how to deal with the appeal if they are appearing before a panel for the first time. It may be appropriate for arrangements to be made for the file to be transferred to a senior presenting officer at the relevant POU to present the case before the appeal. If the case is transferred to a senior presenting officer to present before a panel, the Case Owner should liaise with the POU and ensure that the file is returned to the Asylum Team to continue consideration of the case once the appeal has been heard, and the Case Owner should ensure that contact with the POU is maintained in order to monitor the progress of the case.

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Request for Appeal to be Adjourned


The rules relating to the circumstances in which a Judge can grant an adjournment are contained in Rule 21 of the Procedure Rules 2005. The hearing of an appeal may not be adjourned unless the Judge is satisfied that the appeal cannot otherwise be justly determined. A request for adjournment may be made to the AIT by the appellant or their representative at any time after the hearing date is set. Where the request is made by direct contact with the AIT, the Home Office will not be aware of the request unless and until it has been granted by the AIT. The AIT will notify APC, who in turn informs the relevant POU. It is the responsibility of Case Owners to check CID regularly to ensure that they are aware of any change to the date and location of the appeal hearing. A request may be made by the appellant or their representative at the CMR hearing; however such a request may also be raised as a preliminary issue, at the substantive hearing itself. The appellant or their representative may argue that more time is needed to obtain evidence to support the appeal, such as a medical report or document from abroad. The Case Owner should consider the time that has already been available to the appellant to gather evidence and also how central this evidence would be to the grounds of appeal. Where the asylum claim was refused under paragraph 339M as well as paragraph 336, i.e. where non-compliance was part of the reason for refusing the claim, strong representations should be made to the Judge that the appellant has previously failed to take advantage of opportunities to explain the basis of their claim and had not provided reasonable explanation for their actions. There should therefore be no further justification for allowing additional time now. Should an adjournment be requested because of the appellants ill health, the Case Owner presenting the appeal should, from their knowledge of the case and the appellant, be in a position to say whether the Home Office would object.

Home Office seeks adjournment There may be circumstances where the Home Office may wish to seek an adjournment. This may apply for example where a policy decision has been made to seek the adjournment of a particular category of asylum appeal pending resolution of a legal or policy issue. Case Owners should only apply for an adjournment in very exceptional cases, and with the approval of a Senior Caseworker.

Where adjournment is agreed Where the Judge decides to adjourn the substantive hearing, Rule 21(4) requires that the revised date should be no later than is required by the circumstances and should not be more than 28 days after the original hearing date unless there are exceptional circumstances to extend beyond 28 days. The Case Owner should: Update the case management plan to show the date and location of the rescheduled appeal and the reasons for the adjournment Attach a copy of the Directions to the file Update CID

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Non-Appearance of the Appellant or Representative at the Appeal Hearing


The hearing notice for the substantive hearing draws the attention of the appellant and the respondent (or their representative) to the requirement to attend the hearing. Should neither the appellant nor their representative attend the hearing, the Judge will consider whether the notice of the hearing was properly served. According to Rule 19 of the Procedure Rules 2005, the appellate authorities must proceed with the hearing in the absence of a party provided notice was given of the date, time and place of the hearing, and the appellant or representative are still absent without satisfactory explanation for the absence. The Case Owner should Strongly resist any suggestion that the appeal should be adjourned due to the non appearance of the appellant or their representative Draw to the judges attention the fact that the notice of hearing was correctly issued Draw to the judges attention any information which explains the appellants (or representatives) non-attendance e.g. any instances of non-compliance with requirements such as reporting events and specifically non-compliance which led to the claim being refused partly on the basis of paragraph 339M of the Immigration Rules.

The Judge may ask the Clerk to the Court to make enquiries with respect to the non-appearance of the appellant or the representative before proceeding. While the Clerk does so, the next case on the case list may be dealt with, and the Case Owner will be required to remain in Court until the issue is resolved. The Judge may then decide to deal with the hearing in the absence of the appellant or representative, to adjourn the hearing until a later date, or, exceptionally, to determine the appeal. Where the appeal hearing proceeds in the absence of the appellant, the Case Owner will clearly be unable to cross examine them. The Case Owner should proceed and make their submissions. The appellants representative if present and chooses may also make submissions. The appeal will then be decided on the papers already before the AIT and the submissions made.

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Record of Proceedings
It is important that the Case Owner presenting the case makes a written record of the proceedings. The following details should be recorded: Name of Judge Name of appellants representative Any change to the appellants address Names of witnesses and their relationship to the appellant Any documents submitted by either party Any preliminary issues raised and how they were dealt with

While it is not necessary to make a verbatim record of the proceedings, all questions asked by the Judge, by the representative and by the Home Office, and of the responses given should be noted. A summary of submissions made should also be included. The record of proceedings should be attached to the Home Office file.

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Preparing the SAT (Specialist Appeals Team) Minute Sheet


On return to the office after a substantive appeal hearing, the Case Owner should complete a minute to of the Specialist Appeals Team (SAT), using the template ICD.2742. The minute should record: name of the judge name of the representative names of all witnesses which witnesses gave oral evidence and whether or not they were cross examined the main points made in submissions record of all material submitted by both parties on the day (such as case law) anything else the Case Owner considers relevant to considering whether to challenge an allowed determination an indication of what the Case Owner considers would be a fair and appropriate outcome of the appeal

The minute should be printed and attached to the file. By doing this, SAT staff will be able to access the minute through the Printed Documents facility in DocGen immediately they are notified that an appeal has been allowed, and they can consider the determination together with the ICD.2742 minute.

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Awaiting the Determination of the AIT


Immigration Judges have 10 working days to decide an appeal and forward their determination to the AIT, who in turn notify the Appeals Determination Management Unit (ADMU) by email or fax. From 27th April 2009, the Appeals Determination Management Unit (ADMU) became responsible for the service of the following asylum notices and determinations on behalf of the regional asylum teams: AIT 75 Immigration Judge hearing determination (first hearing) AIT 76 reconsideration hearing determination AIT 78 notice that the AIT has ordered reconsideration AIT 80 notice that the AIT has not ordered reconsideration High Court orders

ADMU will aim to serve all the above notices on representatives and appellants within 48 hours of receipt. ADMU are also responsible for updating CID for all asylum cases where an application for reconsideration has been made by the appellant (or representative) to the Asylum and Immigration Tribunal (AIT) or the High Court Case owners will still be able to choose to serve in person but must update the Special Conditions screen in CID and inform ADMU by email if they intend to do so (ADMU Determinations (Indigo) inbox)

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Glossary
Term CMR sheet ASL.2945 ICD.2742 Meaning Case Management Review sheet this is completed by the Case Owner at the CMR hearing Case Management Review sheet Specialist Appeals Team minute sheet to be completed by the Case Owner after a substantive appeal hearing

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Document Control
Change Record
Version 1.0 2.0 3.0 Authors SS JW RA Date 01/02/07 10/10/07 29/10/09 Change Reference Reviewed & style changed to suit web look Updated to reflect the new onwards rights process. ORAT replaced by SAT Included reference to s55 BCIA 2009 (Childrens duty)

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APPEALS BUNDLING
Table of Contents

Introduction Checking whether an Appeal has been Lodged Preparing the Appeal Bundle NAM Appeal Bundle Process Minute Sheet Glossary

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Introduction
The papers that are submitted to the Asylum and Immigration Tribunal (AIT) on behalf of the Home Office, and which form the basis of the Home Office case for defending an appeal against the refusal of an asylum and/or human rights claim are known as the Respondents Bundle. This section outlines the process that must be followed in order that the bundle is properly prepared, submitted and received by the AIT by day six (where day one is the day the appeal was lodged). This is based on the jointly agreed Service Level Agreement between the Agency and the AIT. Note that this is NOT the day 8 referred to in the relevant Procedure Rules. When a decision is made to refuse asylum and the consequent immigration decision attracts a right of appeal, the Case Owner making the decision should prepare a PF1 appeals proforma and indicate which documents should be annexed to the PF1 (see Asylum Instruction Preparing the PF1 Appeals Proforma and Annexing Documents ). Case Owners (or admin support staff on their behalf and this is understood within the remainder of this process) who are handling asylum claims within an Asylum Team should follow the process outlined below. Where the right of appeal is non-suspensive (i.e. an appeal can be lodged only from outside the UK), officers should follow the process for Removals (see Asylum Instruction Removals) In all other cases, the Case Owner should note, on the Decision notice the final date by which an appeal must be lodged. Where reporting is on a weekly basis, a reporting event should be set to coincide with the appeal by date. Application of this instruction in respect of children and those with children Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the UK Border Agency to carry out its existing functions in a way that takes into account the need to safeguard and promote the welfare of children in the UK. It does not impose any new functions, or override existing functions. Officers must not apply the actions set out in this instruction either to children or to those with children without having due regard to Section 55. The UK Border Agency instruction Arrangements to Safeguard and Promote Childrens Welfare in the United Kingdom Border Agency sets out the key principles to take into account in all Agency activities. Our statutory duty to children includes the need to demonstrate: Fair treatment which meets the same standard a British child would receive; The childs interests being made a primary, although not the only consideration; No discrimination of any kind; Asylum applications are dealt with in a timely fashion; Identification of those that might be at risk from harm.

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Checking whether an Appeal has been Lodged


The Asylum and Immigration Tribunal (AIT) electronically notify the Appeals Processing Centre (APC) when an appeal has been lodged and APC record this in the Appeals Maintenance screen on CID. Case Owners must therefore monitor CID after service of decision to check whether an appeal has been lodged (or use the Nam Admin report as a final check). APC will identify the appeals that need to be sent to Asylum teams by reference to the notice of appeal document which will have been previously endorsed in the top right hand corner of the front sheet to identify which Asylum team is dealing (it is important that this AIT-1 form is endorsed with the Asylum team dealing so that this can be easily determined). APC will send the hard copy of the appeal to the relevant Asylum team. If the hard copy has not been received within 48 hours of its being received in APC, the Case Owner should contact APC to request that it is forwarded immediately. To check on CID, the Case Owner should check the 'Appeal Rec'd in APC' field on the 'Appeal Maintenance' screen on CID to see whether the hard copy of the appeal has been received in APC.

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Preparing the Appeal Bundle


When it has been confirmed that an appeal has been lodged, the Case Owner should prepare the full bundle. A PF1 appeals proforma will have been prepared at the time the decision to refuse the asylum claim was made. Once the appeal is lodged, the remaining sections of the PF1 appeals proforma should be completed to record the date the appeal was received and any documents submitted in support of the appeal. The officer should add, at the end of the PF1, the date on which the PF1 is dispatched. The Case Owner should ensure that all details are correct on the following: PF1 proforma Reasons for Refusal Letter Decision Notices

Any errors should be rectified prior to preparing the full appeal bundle. Following the data quality check, the Case Owner should ensure that the full appeal bundle is prepared and dispatched. This process should begin as soon as the receipt of an appeal has been noted even if the hard copy of the appeal has not yet been received by the Asylum team. The Case Owner should produce the documents listed on the checklist The full bundle consists of the completed appeal notice and any documents submitted in support of the appeal. A copy of the most recent Country of Origin Information Service (COIS) report or US State Department Report (if COIS have not published a report for the country concerned) is attached to the full bundle behind the appeal documents from AIT. Do not omit this information (possibly based on historic practices where there was much delay between an appeal and the court hearing). Once the hard copy of the appeal has been received by the Asylum team, it should be copied as stated on the minute sheet. Three bundles of the documents should be collated: One for AIT One for the appellant or their representative One to remain on file

Once collated, a final quality check should take place prior to dispatch. A check should be made to ensure that all letters are signed and the original annexes are left on file. It has been agreed with the AIT that the UK Border Agency appeals bundles must reach AIT by 2.00 pm on Day 6 of the appeal timescale. Day 6 is the 6th working day after the appeal was lodged. Bundles should therefore be dispatched by Recorded Delivery, or where possible by IDS, as soon as possible and before Day 6, using the following Template covering letters available on Doc Gen: ICD.2731 (for dispatch to AIT) and ICD.2732 (to representative or appellant if they are not represented)

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The Case Owner should telephone AIT (0845 600 0877), quoting the AIT file reference, in order to ascertain the current whereabouts of the AIT file. It may be necessary to amend the AIT address on the template letter ICD.2731 to ensure that the bundle is addressed to that location. This should ensure that bundles have reached the Immigration Judge in time for the hearing. CID must be updated to record the dispatch of the appeal bundle and the Recorded Delivery reference numbers.

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NAM Appeal Bundle Process Minute Sheet


1. Prepare two copies of ICD.2731 (covering letter for AIT bundle) file, AIT 2. Prepare two copies of ICD.2732 (covering letter for Reps bundle) file, Rep Ensure you have 3 copies of the following (file, AIT, Rep) in following order. 1. Produce PF1 for Main App. ACD.1989 (list annexes) 2. Photocopy all marked Annexes on file 3. RFRL 4. Decision Notice for Main App (e.g. ACD1050, 151B etc) 5. Statement of Additional Grounds (if any) 6. Grant Letter (ACD2155/2158) regarding HP/DL (if any) 7. AIT Appeal Form 8. Dependants PF1 ACD.1991 (if applicable) 9. Dependants Decision Notice ACD.1082 (if applicable) 10. Country Information
Also ensure that bundles are secured with Treasury Tags (top left corner), and do not staple documents together Send bundles to AIT, and applicants Rep by recorded delivery, and note reference numbers on ACID. AIT Asylum Immigration Tribunal - Address: REC DEL STICKER ( AIT) REC DEL STICKER ( APPS REP) Asylum Immigration Tribunal Arnhem House 31 Waterloo Way Leicester LE1 6LR REPS NAME AND ADDRESS: Rec Delivery Sticker (Apps Rep)

Print Name: Appeal Bundles sent on: Date .. Signature: ... (attach minute sheet to left hand side of file) Bundles checked by Case Owner: Case Owner Signature:...............

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Glossary
Term ICD.2731 ICD.2732 ASL.2928 Meaning ST AIT Asylum Letter ST Representatives Letter Appeal Bundle Preparation & Dispatch checklist

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Change Record
Version 0..5 0.6 1.0 2.0 3.0 3.1 Authors SS DP DP JW BN ZKZ Date /02/07 22/3/07 15/03/07 07/12/07 21/11/2008 30/09/09 Change Reference

No mini bundle work required. Addition of Checklist. Update branding only Updated to include new Instruction on Children.

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Assisted Voluntary Returns


Table of Contents

1 Introduction 1.1 Application of this instruction in respect of children and those with children 2 What is the Assisted Voluntary Returns Programme? 3 Handling a Request for Assisted Voluntary Return 3.0.1 Checking for an outstanding application for AVR 4 Applicants who apply for AVR during the Asylum Process 4.0.1 Addressing the AVR application at decision/appeal stage 5 Action to be Taken Following the Resolution of an AVR Application 5.0.1 If AVR is refused 5.0.2 If AVR is withdrawn 5.0.3 If AVR is granted but the applicant changes his mind 5.0.4 If AVR is granted but lapses 5.0.5 If AVR results in the applicant leaving the UK 6 Contacts

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1 Introduction
This section sets out guidance for asylum officers on the actions and considerations to take when an asylum applicant, failed asylum seeker or person applying for further leave applies for Assisted Voluntary Return (AVR). It explains what AVR is and how to identify whether an application has been made. It also provides guidance on how to handle requests made during the asylum or active review process and how to proceed with an asylum/active review decision once the AVR application has been resolved.
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1.1 Application of this instruction in respect of children and those with children Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the UK Border Agency to carry out its existing functions in a way that takes into account the need to safeguard and promote the welfare of children in the UK. It does not impose any new functions, or override existing functions. Officers must not apply the actions set out in this instruction either to children or to those with children without having due regard to Section 55. The UK Border Agency instruction Arrangements to Safeguard and Promote Childrens Welfare in the United Kingdom Border Agency sets out the key principles to take into account in all Agency activities. Our statutory duty to children includes the need to demonstrate:

Fair treatment which meets the same standard a British child would receive; The childs interests being made a primary, although not the only consideration; No discrimination of any kind; Asylum applications are dealt with in a timely fashion; Identification of those that might be at risk from harm.

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2 What is the Assisted Voluntary Returns Programme?


The AVR programme offers applicants the opportunity either to return to their country of origin or to a third country to which they are admissible (the Country of Return). The main programme is the Voluntary Assisted Return and Reintegration Programme (VARRP) which is open to all non-EEA nationals. There are other programmes which deal with specific situations. All programmes are co-ordinated on behalf of the Home Office by the International Organization for Migration (IOM). The IOM is an independent international organisation working with refugees, migrants, displaced persons, governments, non-governmental organisations (NGOs) and other international organisations. Applications are received and screened by the IOM, with the final decision about suitability of the applicant for VARRP resting with the UK Border Agency. The eligibility criteria for VARRP are detailed on the AVR microsite, which also gives further detail on the programme. For further details on the AVR policy, programmes and provisions, see http://www.ukba.homeoffice.gov.uk/aboutus/workingwithus/workingwithasylum/assistedvolu ntaryreturn/varrp/ AVR policy questions may be referred to the AVR Policy Team via a senior caseworker.

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3 Handling a Request for Assisted Voluntary Return


During the course of an asylum or active review application, the applicant may show interest in or request help to return to their country of nationality. Applications must in the first instance be made by the applicant directly to the IOM. Asylum case owners, case workers and operational support staff will not play a role in processing the AVR application, however UK Border Agency officers must provide assistance to the applicant. See also: 1.1 Application of this instruction in respect of children and those with children

Actions required: Officers must provide the applicant with the IOM leaflet Voluntary Return. Leaflets can also be ordered from the AVR operations team or downloaded from the IOM website in several different languages. Asylum officers must also explain to applicants the impact an AVR application may have on their asylum claim. See Applicants who apply for AVR during the asylum process. Asylum officers must assist applicants by giving information about how to find the nearest IOM office - A list of locations can be found on the IOM website. Alternatively asylum officers can direct the applicant to the IOM website. This will provide applicants with advice on returns, application forms and FAQs in a number of different languages. Asylum officers are advised to not contact the IOM directly themselves, and instead direct any queries they might have to the AVR Team.

3.0.1 Checking for an outstanding application for AVR If required, an asylum officer may check on the status of an AVR application on IS-CID, where all applications for AVR are entered by the AVR Team.
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4 Applicants who apply for AVR during the Asylum Process


Applications for AVR may be made at any stage in the asylum process, though most applications will be made by failed asylum seekers whose appeal rights are exhausted. 4.0.1 Addressing the AVR application at decision/appeal stage As previously mentioned, asylum case owners, case workers and operational support staff will not play an active role in processing the AVR application - that remains for the IOM to progress, in concert with the AVR Unit. Case owners and case workers must however be aware of their responsibilities for case management and the asylum claim for cases where an AVR application is received during the asylum application/appeal process. Actions required: Officers MUST NOT suspend consideration of the asylum claim while an AVR application is being processed. The asylum claim must be processed alongside the AVR application. Officers MUST NOT ask an applicant/appellant to withdraw an application for AVR, even if the application is made while the application is still live; Officers must explore at interview/cross examination/the next reasonable opportunity, why the applicant has applied for AVR, pointing at the apparent contradiction between seeking assistance to return to their country of nationality or a third country, and the claim that they will fear persecution if returned to that country; There may be factors where applying for AVR during the course of an asylum application does not suggest an absence of fear of return, or where mitigating circumstances exist. Officers must explore and ascertain whether the AVR application is a result of: a. Coercion by a relative or other person - The applicant may be being coerced or persuaded by a member of their family or other influential person. Reasons for this might include forced marriage, looking after family or repaying a debt. The risk of re-trafficking should also be considered, where it exists. Children and, in certain cultures, women may be particularly susceptible to such coercion. b. Mental confusion - It is legitimate for the person to be unsure of what they want to do and/or be confused. Interviewing officers must be patient, alert and sensitive to issues such as old age and mental health problems; Any information provided can be taken into account when making a decision on the asylum claim/active review application/giving submissions in an appeal hearing, however any such decision/submissions must follow a full consideration of all the relevant facts of the case, including the reasons for the AVR application; Officers should clearly evidence the AVR application. A CID record may be insufficient evidence. Officers should instead obtain a signed copy of the applicants AVR application by contacting the AVR Team, who will fax a copy of the application the same day, if available; Case owners/presenting officers must not ask for an appeal to be adjourned on the basis that an AVR application has been made or approved. Similarly, case owners/presenting officers must oppose requests to adjourn an appeal by an appellant if the reason for the request is that an AVR application is outstanding, or that the application was approved but the appellant has not yet departed. Case owners/presenting officers must press for the appeal to be heard where applicable.

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5 Action to be Taken Following the Resolution of an AVR Application The AVR Team will update the IS-CID record once a decision has been made on the AVR application, which will usually be less than five working days but can take up to ten working days from the date of application. 5.0.1 If AVR is refused If the application for AVR is refused, consideration of the asylum claim/application for active review must proceed as normal. 5.0.2 If AVR is withdrawn If an AVR application is withdrawn before it has been considered or approved, the asylum officer must explore, when making a decision, why the application for AVR was initially made and the reasons why it was withdrawn. 5.0.3 If AVR is granted but the applicant changes his mind Even if an application for AVR is granted, the applicant can change their mind at anytime until the point of departure. 5.0.4 If AVR is granted but lapses AVR may be regarded as lapsed in certain circumstances. If the application is accepted but lapses, the AVR Team will note IS-CID to show the application as withdrawn. If the applicant still wishes to have help in returning to their country of origin, or to a third country, they will be required to make a fresh application for AVR. 5.0.5 If AVR results in the applicant leaving the UK Asylum claims, applications for further leave and appeals will be treated as withdrawn upon the embarkation of the applicant to a destination outside the United Kingdom. See the AI on Travel Abroad.
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6 Contacts
Unit/partner IOM Contact details Tel: 0800 783 2332 (Freephone) www: www.iomlondon.org

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Change Record
Version 1.0 2.0 3.0 4.0 5.0 6.0 Authors DH MO MK JC GL GL Date 30/01/07 22/08/07 17/03/08 06/11/08 01/10/09 23/10/09 Change Reference New web style implemented Final Amendments Minor revisions to layout and presentation Update branding only Update Childrens Duty Further Update To Childrens Duty

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ASYLUM APPEAL HEARING ISSUES RAISED AT THE HEARING IN RELATION TO TAPE RECORDED INTERVIEWS
Table of Contents Introduction The interviews that took place without being tape recorded Request to re-interview the appellant using a tape recorder Alleged discrepancies between the tape recorded interview and the written record of the interview Glossary

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Introduction
This Section sets out guidance for New Asylum Model Case Owners on how to deal with any issues that may arise at appeal in relation to tape recordings of the substantive interview. The guidance follows the Court of Appeals judgement in the case of Dirshe, R v Secretary of State for the Home Department (2005) which states that because of the withdrawal of Legal Aid funding for representatives attending interview, our then policy of refusing to allow asylum applicants to tape record their interview was unfair, unreasonable and therefore unlawful. See Asylum Instruction on Conducting the Asylum Interview for detailed guidance on tape recording interviews of asylum applicants

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The interviews that took place without being tape recorded


Representatives may argue that as a consequence of the Dirshe judgement, any notes from an interview that was not tape recorded are unreliable, because the interview was unfair. The Case Owner must counteract this claim by pointing out that although The Court of Appeals finding states that it was unfair to refuse an appellant the opportunity to tape record their interview if they so wish, The Court of Appeals finding does not state that all interviews must be tape recorded

The Case Owner must pose the question to the Court Did the appellant ask to have their interview tape recorded? If they did not then the Case Owner must argue that the Dirshe principle does not apply, since the Home Office will not have refused to allow tape recording of the interview and therefore will not have treated the appellant unfairly. The Case Owner should note that the Dirshe judgement is based on the withdrawal of Legal Aid funding for representatives to be present at interviews. If a representative is present at the interview, the Court of Appeal found that a representative provides a real, practical safeguard against faulty interpreting or inadequate record keeping, and sufficiently protected the appellants interests to ensure the required standard of fairness. Therefore in these cases, where a representative is arguing that the interview was unfair, due to it not being tape recorded, the Case Owner must argue that: In any case where a representative was present at the interview, the lack of tape recording does not mean unfair treatment. Only in cases where no representative was present and the Home Office was unable to provide a request for tape recording interviews, then the Case Owner may accept that the Home Office treated the appellant unfairly. However, the Case Owner must point out that this does not mean that the interview record is unreliable. If the representative disputes this, then the Case Owner must ask the AIT to weigh up this point along with other evidence.

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Interviewing a child
Case owners should be aware that Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the UK Border Agency to carry out its existing functions in a way that takes into account the need to safeguard and promote the welfare of children in the UK. It does not impose any new functions, or override existing functions. Officers must not apply the actions set out in this instruction either to children or to those with children without having due regard to Section 55. The UK Border Agency instruction Arrangements to Safeguard and Promote Childrens Welfare in the United Kingdom Border Agency sets out the key principles to take into account in all Agency activities. Our statutory duty to children includes the need to demonstrate: Fair treatment which meets the same standard a British child would receive; The childs interests being made a primary, although not the only consideration; No discrimination of any kind; Asylum applications are dealt with in a timely fashion; Identification of those that might be at risk from harm. For further guidance on interviewing children, presenting officers should refer to the Asylum Instruction: Processing Asylum Claims From Children.

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Request to re-interview the appellant using a tape recorder


If the representative requests a re-interview, with a tape recorder, the Case Owner must resist such a claim strongly, stating that such a request would not relate to the conduct of the appeal and therefore would fall outside of the AITs powers.

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Alleged discrepancies between the tape recorded interview and the written record of the interview
The representative may state that there are differences between the tape recorded interview and the written records and consequently ask for the taped interview to be transcribed or be played in court. The Case Owner must be aware that this action would discredit the interview record and therefore must point out to the Court that the Dirshe judgement made it clear that the tape should only be used (or transcribed) strictly for the purposes of determining the appeal. The Case Owner must resist this claim: Stating that there needs to be a specific, identified dispute over the accuracy of the interview record or interpretation, before it is appropriate to refer to the tape or a transcription Stating that the dispute must relate to an issue that is crucial to the determination of the appeal i.e. it must be strictly necessary to refer to the tape Asking the representative to state exactly where in the interview they believe there is an error and how this alleged error is crucial to the determination of the appeal And strongly resist any application to refer to the tape in cases where no specific dispute has been identified. The Case Owner must bear in mind that the Dirshe judgement does not mean a fishing trip by the appellant If a specific dispute has been identified, the Court should be urged (in line with paragraph 30 of the Dirshe judgement) to restrict any order for transcription to the issue in dispute

The Case Owner should be aware that at present, UK Border Agency does not have the resources for transcribing significant numbers of tapes quickly, as they only have a few copy typists available. POUs do have some audio typing facilities, but transcription is a specialist job, and transcribing anything other than a very small part of a tape would be very time consuming. In order to maintain independence it is not advisable to use UK Border Agency interpreters. Therefore, when such requests are made we should send the work to an independent translation/transcription company, with whom the UK Border Agency has a contract.

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Alleged discrepancies between the tape recorded interview and the written record of the interview where a child was interviewed
Where a child has been interviewed, case owners must ensure: The interview was conducted by a specifically trained Case Owner The child was accompanied by a responsible adult, and/or representative, and/or social services were present when the interview was conducted Child sensitive and child appropriate techniques where employed Further guidance on interviewing children can be found in the Asylum Policy Instruction on Processing Asylum Applications from Children. If the above has been applied but the representative raises a dispute between the tape recorded interview and the written record, Case Owners should apply sensitivity when considering the reasons for disputing the record of interview.

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Version 1.0 2.0 3.0 Authors SS EG RA Date 1/02/07 04/11/08 29/10/09 Change Reference Reviewed & style changed to suit web look Update branding only Included reference to S55 BCIA 2009 (Childrens Duty)

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Issue Control
Approved for Publication by Name Keith Lambert Date Role

22/10/09

Director of GLA

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Asylum Appeal Hearings Overview


Table of Contents

Introduction Appeal Hearing Types, Structure and Timescales Timescales for an in-country (suspensive) right of appeal Timescales for an out of country (non-suspensive) right of appeal The Role and Responsibility of the AIT The Role of Judges and Panels within the AIT Panel Hearings Grade of PO to present before a panel Glossary

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Introduction
This section sets out an overview for Case Owners on the various asylum appeals processes that may take place as a consequence of the asylum claim being refused. Application of this instruction in respect of children and those with children Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the UK Border Agency to carry out its existing functions in a way that takes into account the need to safeguard and promote the welfare of children in the UK. It does not impose any new functions, or override existing functions. Officers must not apply the actions set out in this instruction either to children or to those with children without having due regard to Section 55. The UK Border Agency instruction Arrangements to Safeguard and Promote Childrens Welfare in the United Kingdom Border Agency sets out the key principles to take into account in all Agency activities. Our statutory duty to children includes the need to demonstrate: Fair treatment which meets the same standard a British child would receive; The childs interests being made a primary, although not the only consideration; No discrimination of any kind; Asylum applications are dealt with in a timely fashion; Identification of those that might be at risk from harm.

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Appeal Hearing Types, Structure and Timescales


The three main types of appeal hearings are: Case management Review (CMR) Hearing Substantive Appeal Hearing Reconsideration Hearing

A case can also be the subject of an application for a Judicial Review which is not a statutory appeal right. Where the asylum claim has been refused and the consequent immigration decision attracts a right of appeal, the appellant may lodge an appeal with the Asylum Immigration Tribunal (AIT). Where the AIT accepts the appeal, a CMR hearing will take place. For more details on CMR hearing see Asylum Instruction on Case Management Reviews. Once the CMR hearing has taken place, the majority of cases will proceed to the substantive hearing. For more details on CMR hearing see Asylum Instruction on Substantive Appeal Hearings The outcome of the substantive hearing will determine whether a reconsideration hearing takes place. A reconsideration hearing may be requested by the appellant where appeal has been dismissed. Equally, the Home Office may request a reconsideration hearing, where the appeal has been allowed. For more details on reconsideration hearings see Asylum Instruction on Onward Rights of Appeal An application for a Judicial Review (JR) is normally made by the appellant once all avenues of appeal have been exhausted. However, Case Owners should be aware that an appellant may apply for a judicial review at any time where they wish to challenge any decision made by a public authority.

Timescales for an in-country (suspensive) right of appeal Day 0 Decision served to appellant by Case Owner Day 1 9 Day 10 Day 10 -11 Day 12 -14 Day 11 -18 Day 20 Day 30 Day 40 Appellant gains legal advice and appeal is prepared Last day on which the appeal may be lodged to the AIT Case Owner notified of receipt of appeal by the AIT Case Owner to review case before CMR hearing Team support prepares appeal bundle and send to AIT and applicant/rep. CMR hearing Oral substantive hearing Determination promulgated

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Timescales for an out of country (non-suspensive) right of appeal Up to Day 10 Decision served to appellant by Case Owner Day 0 Day 0 -27 Day 28 Day 28 29 Appellant is removed from the UK Appellant gains legal advice and appeal is prepared Last day on which the appeal may be lodged to the AIT Appeal registered and listed for CMR and substantive hearing and initial directions issued by AIT to all parties Case Owner notified of appeal lodged Case Owner to review and prepare case before CMR Team support to prepare appeal bundle and send at AIT and applicant/rep.

Day 28 -29 Day 40 47 Day 41 46

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The Role and Responsibility of the AIT


The Asylum and Immigration Tribunal was created by the Asylum and Immigration (Treatment of Claimants) Act 2004 and started operation on the 4th April 2005. The AIT is an independent Appeals Tribunal (part of the Department of Constitutional Affairs) that hears and determines appeals against decisions made by the Home Office in matters of asylum, immigration and nationality. The AIT replaces the Immigration Appellate Authority which consisted of two tiers; adjudicators and the Immigration Appeal Tribunal. The AIT therefore considers all immigration appeals and consists of a single tier. For this reason, it is sometimes known as the Unified Appeal System (UAS) or just single tier. Appeals against an immigration decision must be served directly to the AIT (except in out of country immigration appeals where it is possible for appellants to serve the appeal in the Entry Clearance Office Post as well as the AIT or if an appellant is detained in which he may serve his notice of appeal on the person who has custody of him (under procedural Rule 6(3)b). It is the responsibility of the AIT to notify all parties of an appeal as to when and where the appeal will take place as well as determining the appeal and where it thinks appropriate to issue directions to give effect to the determination. Appeals must be lodged directly to the AIT at the following address: Asylum and Immigration Tribunal PO Box 7866 Loghborough LE1 3XZ

The Role of Judges and Panels within the AIT The President of the AIT is always a High Court Judge, who is responsible for the overall running and administration of the AIT. There are also two Deputy Presidents. The President and the Deputy Presidents generally sit on the more complicated cases and they hold the authority to report any decisions they make on any case (even if they did not sit on that case). A reported case may go into the public domain and becomes a precedent for future cases. It is therefore important to ensure that a SCW should present any cases in which the President or either of the Deputy Presidents is sitting. Apart from the President and Deputy Presidents, there are three different types of judges: Senior Immigration Judge The Senior Immigration Judges (SIJs) may sit on a Tribunal Panel or sit alone on a hearing. When a SIJ sits on a hearing as part of a Tribunal Panel, then they have the authority to report that specific case. A SIJ does not have the authority to report a case if sitting alone and a Tribunal Panel may only report a case if a SIJ is a member of the panel. A SIJ also considers applications for reconsideration of Tribunal decisions and will order reconsideration if they think it arguable that the IJ or panel that made the initial decision made a material error of law. Designated Immigration Judges (DIJs) are not SIJs but act as mentors for the Immigration Judges at their hearing centre. The local DIJ will also sit on a hearing as an IJ, either alone or as Uncontrolled if printed

part of a panel with other IJs. However, these panels will not be able to report cases unless a SIJ is sitting on them. Immigration Judge (IJs) normally sit alone and come to a decision after hearing all the evidence at an oral hearing. While IJs can and often do sit on panels, only a panel, at least one of whose members is a SIJ can report a case.

Panel Hearings Although most appeals are heard by a single judge, the AIT also has powers to sit as a panel. A panel must consist of at least one legally qualified member (an immigration judge or higher) and mixture of legal and lay members or of legal members of various levels of seniority. Where a SIJ (or the president or a Deputy President) is a member of a panel (legal panel) then that panel has the power to report a case. These are often called legal panels, the term is misleading, as all panels must only contain at least one legally qualified member.. Where a case is being reconsidered (to consider whether or not the IJ that made the initial decision in the case made a material error of law), the tribunal would usually sit as a panel. Finally, if the AIT, when considering a case for the first time, sits as a panel consisting of at least three legally qualified members (not necessarily SIJs), then its decision will not be subject to reconsideration, but can only be appealed to the Court of Appeal under s103E of the NIA Act 2002.

Grade of PO to present before a panel If a Senior Immigration Judge is sitting on the panel, a Senior Presenting Officer should generally present the case (unless we are using Counsel). If the Panel is chaired by a Designated Immigration Judge, then a Case Owner is able to present the appeal.

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Version 1.0 2.0 Authors SS RA Date 5/2/07 29/10/09 Change Reference Style changed to suit web look Included reference to S55 BCIA 2009 (Childrens Duty)

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Approved for Publication by Name Keith Lambert Date Role

22/10/09

Director of GLA

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DETAINED FAST TRACK PROCESSES TIMETABLE FLEXIBILITY


Table of Contents 1 Introduction 1.1 Audience 1.2 Purpose 1.3 Background 2 General Points 2.1 Key Principles 2.2 Requests for Flexibility and Responses 2.3 Flexibility Other Issues 2.2 Authorisation 2.3 Flexibility Impacts / Rescheduled Interviews 2.4 File Minutes 2.5 Detention Reviews 3 Illness 3.1 Illness Claimed 3.1.1 Applicant States They Are Fit for Interview 3.1.2 Applicant States They Are Unfit for Interview 3.2 Fitness for Interview 4 Interpretation Problems 4.1 Interpreter Competence 4.2 Applicant Changes Preferred Language 5 Representatives at Interview: Late or Non-Attendance 5.1 Representative Fails to Attend Interview 5.2 Representative Attends Interview Late 6 Preparation for Interview: More Time Requested 7 Non-Compliance and Implicit Withdrawals 8 Post-Interview Representations 9 Removing Cases from DFT/DNSA Processes 9.1 Removing Cases from Detained Processes 9.1.1 Continuing or Releasing from Detention 10 Glossary

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1 Introduction
1.1 Audience This instruction is aimed at all Detained Fast Track Processes officers. All officers must be familiar with the entirety of UK Border Agency (UKBA) policy on DFT/DNSA suitability, laid out in the Detained Fast Track Processes instruction.
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1.2 Purpose This instruction explains the circumstances in which it might be appropriate for the Detained Fast Track Processes timetables to be extended, or for an applicant to be removed from the processes altogether. Because the circumstances calling for flexibility or removal from process will always be specific to the facts of a case, this instruction is not intended to be an exhaustive and rigid instruction as to mandatory actions where flexibility or removal from process must in all circumstances be practised. Instead it is intended to outline the most likely issues to arise and suggest approaches which must be followed in those circumstances.

1.3 Background The considerations regarding flexibility apply mainly to the stages up to and including the asylum decision. Where in-country appeals apply, the timescales applied to the processing of the case are determined by the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005 (incorporating subsequent amendments). Regardless of the stage of the application and the currency of any appeal rights, overall suitability for the DFT or DNSA process (see Detained Fast Track Processes) must be reviewed on an ongoing basis, as information relevant to suitability may emerge and develop throughout the life of the case. This consideration applies whether at the request of applicants and/or representatives, or as part of the proactive reviews required of case owners (see also 2.5 Detention Reviews).
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2 General Points
2.1 Key Principles The DFT and DNSA timetable is intended to deliver decisions in up to 7-14 days after entry to the process, depending on the type of decision and normal developments in the case. It is important that this timetable is maintained as far as is reasonably possible, and that the time an individual is detained is kept to a minimum. However, the DFT and DNSA processes are built on an overriding principle of fairness, and as a consequence, timetable flexibility or removal from the DFT and DNSA processes must be considered in all situations where fairness demands it.
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2.2 Requests for Flexibility and Responses As part of their induction to DFT, applicants will be informed about the DFT processes, including information about timescales and the possibility for the applicant or their legal representative to ask for the timescales to be varied, or for the case to be removed from the process altogether. Even where the applicant or legal representative does not request flexibility, case owners must proactively consider whether flexibility is required in a particular case. For flexibility requests to be properly understood, thoroughly considered and formally responded to, it is preferable that they be made in writing. However, requests for flexibility may also be made orally. Regardless of the manner of the request, case owners must properly consider the issues raised, taking reasonable steps to obtain clarification if necessary. If agreeing to exercise flexibility, the case owner must make very clear the terms under which it is offered. If declining to exercise flexibility, the case owner must make very clear the reasons for that decision. The means by which the response will be best given will depend on the particular circumstances of the case, the nature and the timing of the request. A written response will usually be appropriate for all written requests and detailed oral requests, although where a request for flexibility is received during or near to the end of an asylum interview, it may be appropriate to lay out the conditions of flexibility or reasons for declining the request in the interview record. If a request for flexibility is made orally in other circumstances, but discloses no reasons why flexibility ought to be exercised, it will usually be sufficient to reject the request orally, noting CID and the case file accordingly. Any doubts as to whether flexibility is appropriate, or indeed how to respond to a request, must be referred to a senior caseworker.
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2.3 Flexibility Other Issues 2.2 Authorisation Before flexibility is exercised and timescales extended, for instance by the cancellation and rescheduling of an interview, authorisation must be sought from an officer of SEO level or Uncontrolled if printed

above. It is acknowledged that in many circumstances there may be little choice other than to extend timescales, but seeking authorisation will ensure consistency and help to ensure that all reasonable options to proceed have been given thorough consideration. 2.3 Flexibility Impacts / Rescheduled Interviews If flexibility is likely to impact another event, appropriate action must be taken in respect of that event. Where appropriate, the applicant and legal representative or other parties to the impact must be promptly informed of the rescheduled event. 2.4 File Minutes Requests for flexibility, and the terms of any flexibility that is exercised must be fully minuted on file and CID notes. Where the decision to exercise flexibility will have an impact that will affect the overall process timetable (e.g., if one or more days will be added to the timescales), the circumstances and reasons for the decision to exercise flexibility must be minuted on file and CID, and where appropriate, the name of the senior officer authorising the action taken must be recorded. 2.5 Detention Reviews Under existing detention policy (see ch. 55 of the Enforcement Instructions and Guidance), a detainees ongoing appropriateness for detention must be regularly reviewed. These reviews must take place at fixed intervals, as well as in response to significant information material to the applicant and his/her case, and the basis of detention. It is likely that in some cases, the issues that require consideration of whether to exercise timetable flexibility will also be issues that require detention to be reviewed.
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3 Illness
An individual will enter DFT/DNSA processes only if, at the time of referral, the information available indicates that they are suitable for DFT/DNSA according to the DFT/DNSA entry policy, which includes criteria relevant to health. Individuals are also medically screened within 24 hours of arrival at the IRC (Rule 34 of the Detention Centre Rules). Rule 35(1) requires medical practitioners to report on cases where they are concerned that ongoing detention would be injurious to health. Rule 35 reports require a written response by case owners. (See Rule 35 of the Detention Centre Rules). 3.1 Illness Claimed If an applicant claims ill-health, case owners must briefly investigate the nature of the illness and ask the applicant if he/she feels well enough to proceed with the interview at the time booked (without delaying access to medical care where the need is urgent). Case owners must not make clinical judgements as to the applicants fitness for interview. In all cases, applicants must be offered the opportunity to access the healthcare facilities, and in the first instance be assured that their attendance at the healthcare facilities will not affect the decision on their case. 3.1.1 Applicant States They Are Fit for Interview Notwithstanding the complaint of ill-health and the offer to access the healthcare facilities, an applicant may decide to proceed with the interview. This should ordinarily be respected, and the interview allowed to proceed, unless there is some obvious reason why the stated wishes of the applicant should be regarded as unreliable (for example, if the wishes are expressed against a background of obviously confused or irrational thought or behaviour). 3.1.2 Applicant States They Are Unfit for Interview With the offer of the opportunity to access healthcare facilities, the applicant must be clearly informed that there will be no further delays to the interview for health complaints unless they have been certified by a medical practitioner as being unfit for the interview. If the applicant has been pronounced fit for interview but again claims ill-health, they must be warned that repeated but unfounded claims of ill-health leading to interviews being delayed, may be regarded as vexatious, which may have consequences of the claim being treated as implicitly withdrawn or refused for non-compliance grounds.
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3.2 Fitness for Interview An applicants fitness for interview is a judgement to be made by IRC healthcare staff only. If healthcare staff do not certify the applicant as being unfit for interview, the interview should recommence immediately on the same day or as soon as is reasonably practicable and without undue delay. If healthcare staff certify the applicant as being unfit for interview, care should be taken to ascertain whether the applicant is likely to be fit for interview within DFT timescales. Suitability for DFT Processes must be reviewed.
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4 Interpretation Problems
Applicants are asked their preferred language for interview at screening, and also at induction to the DFT/DNSA process (following arrival at the IRC). This should ensure that a competent Home Office interpreter is booked in the correct language. 4.1 Interpreter Competence If it emerges that the Home Office interpreter booked to attend the interview is not competent for the purpose (for example, if there are difficulties with the language or dialect spoken, or the interpreter has insufficient vocabulary), then the interview must be delayed to allow for another suitable interpreter to attend. Subject to the availability of suitable interpretation, any delay for this reason should not normally be for more than 48 hours. If the legal representative expresses concern but there is no reason to doubt the applicants capacity and the applicant claims no difficulty with the interpreter (and vice versa), if the case owner has no other reason to doubt the interpreters competence, the interview should normally proceed.
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4.2 Applicant Changes Preferred Language If the applicant asks to be interviewed in a language other than the one he/she previously requested and subsequently booked by UKBA, case owners must explore why the applicant has requested a particular language at screening and induction, only to request a different language at the time of the interview. In such circumstances, only if there are good reasons to indicate that the applicant could not sufficiently make him/herself understood in the asylum interview should the interview be delayed to obtain a different interpreter.
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5 Representatives at Interview: Late or Non-Attendance


Representatives are notified of interview dates and times in advance and are given full contact details for the relevant DFT/DNSA office. They can be provided with maps and details of public transport on request. 5.1 Representative Fails to Attend Interview If a legal representative is properly notified of an asylum interview but fails to attend, the case owner must attempt to make contact with the appropriate legal firm to ascertain the reason for non-attendance. If the legal representatives non-attendance is due to problems unrelated to the applicant, the situation must be fully explained to the applicant, who must then be offered the options of either conducting the interview without the legal representative, or of delaying the interview (taking into account the reasons and the need for reasonableness and fairness), but normally for no more than two working days. If the representatives non-attendance is due to a late change of legal representation by the applicant which has not been notified to the DFT/DNSA Duty Office, the applicant must be offered the options of conducting the interview without the legal representative, or of delaying the interview (again, normally for no more than two working days).
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5.2 Representative Attends Interview Late If the legal representative is so late as to make the asylum interview impractical on the day on which it is scheduled, the interview should be rescheduled for the next working day, or as soon as is reasonably practicable.
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6 Preparation for Interview: More Time Requested


The DFT and DNSA timetables allow applicants and their legal representatives time to prepare for the substantive interview, as they consider appropriate. As the timetable is intended to afford opportunity to prepare for the substantive interview, in most circumstances it will not be appropriate to delay the interview further by allowing the applicant and legal representative additional preparation time. However, fairness requires that each request for more preparation time be considered on its own merits, and according to the prevailing circumstances in the case. In considering a request for more preparation time, all relevant factors must be taken into account. Such factors may include: When the legal representative took responsibility for the case; What information the legal representative already has about the nature of the case; The actual opportunity the legal representative and applicant have had to confer; Whether there have been significant difficulties in communication between the representative and the applicant that could not reasonably be overcome; Whether for any other reason, the legal representative and the applicant have, through no fault of their own, not had sufficient time to discuss the particular facts of the case and prepare for the asylum interview.

If it is determined that fairness requires the applicant and representative be given further preparation time, the interview should be rescheduled accordingly, ideally for later the same day, but normally no more than one working day later.
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7 Non-Compliance and Implicit Withdrawals


Proceeding with an interview may on occasion not be possible, owing to an applicants failure to attend an asylum interview or to otherwise comply with the process. Case owners must in such cases take reasonable steps to ascertain the reason why the applicant has not or will not comply with the interview procedure, in order to establish whether a flexibility consideration applies. Where no flexibility consideration applies, withdrawal or non-compliance action may be appropriate. In circumstances where the applicant fails to attend an interview, and cannot provide an adequate explanation to show that the failure was due to circumstances beyond his or her control, it may be appropriate to regard the application as implicitly withdrawn under paragraph 333C of the Immigration Rules, according to the instruction Withdrawal of Applications. In circumstances where the applicant attends his interview, but then fails to complete it (or fails to comply with another material part of the application process) and cannot provide an adequate explanation, it may be appropriate to consider the application on the evidence held at that point, and if refusing the application, to do so on non-compliance grounds under paragraph 339M as well as paragraph 336 and 339F of the Immigration Rules, according to the instruction Non-Compliance. The Withdrawal of Applications and Non-Compliance instructions both publish timescales for allowing applicants to provide explanations for non-attendance/non-compliance. For the purpose of the Detained Fast Track processes, the timescales referred to in those instructions do not apply. This is because in DFT Processes, the applicant can be contacted promptly, can contact his/her case owner promptly, and in the IRC setting, can more easily obtain medical and legal support than might be expected in a non-detained setting. The time provided for an explanation for a case in DFT Processes must be reasonable in all circumstances, sufficient to allow for the case owner to make enquiries and for the applicant to provide genuine explanations where they exist.
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8 Post-Interview Representations
Following an asylum interview, applicants or legal representatives may state that more time is needed before a decision is made, for them to file material relevant to the claim. By this time, the nature of the applicants claim will be known to case owners, who will be in an informed position to consider such requests. Case owners must consider whether the prospective evidence is probative of the claim and decide whether to extend timescales. The fact that an individual is in DFT should not bear on the decision on whether to wait for further evidence. The central consideration is whether it would be unfair to the applicant to proceed to a decision without considering the further material mentioned, or at least giving him/her a reasonable opportunity to obtain it. Case owners will need to ascertain further information and consider the following issues: What further material it is proposed to obtain; Whether the applicant or legal representatives statements regarding the further material suggest it is reasonably likely to be obtained and submitted; Whether, in light of the particular circumstances of the case, the further material is central or critical to the issues on which the decision is likely to turn, or whether it relates to an issue which is only peripheral; Whether the material can be obtained within DFT/DNSA timescales, and if any explanation for not being able to obtain the material is reasonable; Whether the material is already available such that delaying the decision is not necessary; What steps have been taken / are proposed to be taken to obtain the material; What opportunity the applicant and the legal representative may have to obtain the material (taking into account the fact of detention, the facilities available to the applicant, the facilities available to the representative, etc.); Whether it is reasonable to expect advanced sight of original documents through facsimiled copies.

In most circumstances it will not be appropriate to delay the decision, but if case owners, in discussion with a senior officer, feel that it would be unfair to proceed with a decision, then the DFT/DNSA timetable must be extended and time given for further material to be presented and delivered before the decision is made. It is possible to delay a decision for over five days, but this should only happen in exceptional circumstances. The same principles will apply to any proposed legal research, or evidential research into readily-available objective materials, which the legal representative wishes to have considered before a decision is made. However, the nature of this material means that it is much more likely to be available quickly so that, if any delay is needed, it can be relatively short.
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9 Removing Cases from DFT/DNSA Processes


9.1 Removing Cases from Detained Processes In some circumstances, it may emerge that it is not possible to fairly consider and manage a case within the DFT or DNSA timescales, even if allowing for reasonable extension of those timescales according to flexibility considerations. DFT and DNSA policy requires that claims be amenable to a quick and fair decision. If a quick decision is not possible, such as where a case cannot be decided even under timetable flexibility considerations, the case will not be suitable for DFT or DNSA processes. DFT and DNSA policy outlines various other considerations which, in general, would make a case unsuitable for entry or ongoing management within DFT or DNSA processes. See the Detained Fast Track Processes instruction for further information about DFT and DNSA policy on suitability for the process. Any decision to remove a case from the Detained Fast Track Processes must be reasoned and documented (according to locally set feedback procedures) and authorised at a minimum of SEO level. In cases where case suitability is reviewed but where a decision is taken that the case should remain within DFT, careful and proactive consideration must be given to whether, in light of the facts known about the case, flexibility should be exercised. This applies whether the suitability review was initiated by a request from the applicant/representative, or as a result of other information arising. 9.1.1 Continuing or Releasing from Detention Removal from a detained process is not the same as releasing someone from detention (although in most circumstances the former will indeed lead to the latter). It is important to note that there may be reasons under UKBA detention policy to continue an individuals detention, notwithstanding his/her claim not being suitable for DFT or DNSA processes. If however continued detention is no longer appropriate, the individual must be released from detention, to an applicable contact management regime. See ch. 55 of the Enforcement Instructions and Guidance (which fully addresses general detention policy), and the Case Contact and Compliance Management strategy (which addresses contact management).
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10 Glossary
Term DFT Processes Meaning Detained Fast Track Processes An umbrella term, used to describe the two processes running mainly at IRC Harmondsworth and IRC Yarls Wood the Detained Fast Track Process (DFT), and the Detained NonSuspensive Appeals Process (DNSA). Also referred to as DFT Processes, and DFT/DNSA. DFT Detained Fast Track One of the processes running at IRC Harmondsworth and IRC Yarls Wood. Involves detaining applicants for a short period, to make a quick decision, which if refused, will ordinarily be subject to quick appeal timescales. DNSA Detained Non-Suspensive Appeals One of the processes running at IRC Harmondsworth and IRC Yarls Wood. Involves detaining applicants for a short period, to make a quick decision. If refused asylum and if issued a certificate under Section 94 of the 2002 Act, applicants will not have an in country right of appeal. Harmondsworth IRC in West Drayton, near Heathrow Main IRC for male DNSA and DFT. Office opening times 8am 8pm Monday to Friday 10am 5pm on weekends Immigration Removal Centre Detention facilities used by the UK Border Agency, either directly managed or operated under contract with the UK Border Agency. (Previously and colloquially still called detention centres, but renamed IRCs by Section 66 of the 2002 Act.) Non-Suspensive Appeals The processes whereby asylum applicants if refused asylum with a certificate under Section 94 of the 2002 Act will not have an in country right of appeal. IRC in Bedfordshire IRC for female DNSA and DFT.

IRC

NSA

Yarls Wood

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Document Control
Change Record
Version 1.0 1.1 Authors Date 26/04/05 30/03/09 Change Reference First version Amending format in line with OPPI template and some minor style amendments Further reformatting and redrafting Further revisions Further revisions Further revisions following UNHCR comments Further revisions following additional DFT feedback Further revisions Final revisions Final revisions Full review and restructure to updated template

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20/10/09 25/03/10 08/04/11 14/06/11 13/07/11 05/12/11 21/12/11 29/12/11

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DOCUMENT RETENTION
Table of Contents

Introduction Background Identifying And Processing Cases Where Documents Have Been Submitted Recording, Receipt and Storing of Valuable Documents Local Practices Asylum Casework Group (South) and New Asylum Model Local Practices Asylum Casework Group (North) Valuable document bank (VDB) Return or Retention of Documents After Asylum Decision Asylum Decision Service Unit (ADSU) action in Asylum Casework Group (North) Asylum Decision Service Unit (ADSU) action in Asylum Casework Group (South) Updating CID Records Dealing With Claims of Non Receipt of Documents Requests For The Return Of Documents EEA/EU Nationals Requests for documents for a specific purpose Requests for documents to facilitate a return to claimants country of origin List of 'Valuable Documents' Glossary

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Introduction
This instruction details the processes and procedures to be followed in identifying cases where staff can retain documents, and the circumstances in which they can be returned to the applicant. It also details the different procedures regarding the process of storing such documents by the New Asylum Model, Asylum Casework Group (South) and Asylum Casework Group (North), and includes instructions on using the Valuable Document Bank (VDB) to store documents in ACG (N). This notice complements the Management of Valuable Documents instruction issued by the UKIS ERD process team and identifies what documents are covered by this instruction.

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Background
Section 17 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 confers on the Secretary of State the power to retain passports and other documents. The Act reads: Section 17 Retention of Documents Where a document comes into the possession of the Secretary of State or an immigration officer in the course of the exercise of an immigration function, the Secretary of State or an immigration officer may retain the document while he suspects thata person to whom the document relates may be liable to removal from the United Kingdom in accordance with a provision of the Immigration Acts, and retention of the document may facilitate the removal. Section 17 came into effect on 1 December 2004. The Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 can be viewed at: http://www.opsi.gov.uk/acts/acts2004/20040019.htm.

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Identifying And Processing Cases Where Documents Have Been Submitted


It is extremely important that at all times UK Border Agency know where retained passports and identifying documents are located, as not only are these items valuable and will need to be returned following a grant of leave but when a negative asylum decision is made they may be required to facilitate removal action. Case Owners, caseworkers and team support should therefore ensure that they always update CID when receiving or sending on retained passports or other valuable documents, and that CID is updated when returning documents. If a case file is received with documents attached, staff should check whether the documents are classed as valuable documents. Valuable documents are defined as passports and other documents that can be used for travel plus any documents that can be used to support an application for a Travel Document, such as identity cards, driving licences and birth certificates. The full list can be found in List of Valuable Documents. For the Asylum Casework Groups, ACG (S) and ACG (N), the identification of appropriate documents to be retained will be by the Asylum Co-ordination Units 1 and 11, respectively. However, once the case has been passed to a Case Management Unit (CMU) it is the responsibility of the caseworker to ensure that any further documents submitted are retained in accordance with these instructions, or if any have not been identified to deal with them appropriately. For the New Asylum Model, the case is routed from an Asylum Screening Unit (ASU) to an asylum team. It is the responsibility of the Case Owner to identify and retain valuable documents in accordance with local procedures.

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Recording, Receipt and Storing of Valuable Documents


Documents can be submitted at any stage of the asylum process. In all cases once a document has come into the possession of Asylum Casework Directorate (ACD) or the New Asylum Model a photocopy should be taken and placed on file, regardless of whether the document is to be retained. Staff should follow local practices for how to store them. List of Valuable Documents contains a list of all valuable documents to be retained. CMU staff are to check the file to ensure that ACU1 Team A or ACU11 have followed local instructions, if a valuable document has been overlooked then they are responsible for ensuring that the document is retained and recorded in line with the local instructions.

Local Practices Asylum Casework Group (South) and New Asylum Model In Asylum Casework Group (South) and New Asylum Model, staff should: 1. 2. 3. 4. 5.

Photocopy all marked or identifying pages of the documents to be retained and place the photocopies on file. Attach a white Documents Enclosed label near the spine of the file. Minute the file to state which documents have been retained on file. Record the retention of the documents on CID. Hole-punch a clear plastic wallet and enclose the documents inside then attach it to the right side of the file. Stick a white label on the wallet and record the HO reference number on it.

Local Practices Asylum Casework Group (North) In Asylum Casework Group (North), staff should: 1. Photocopy all marked or identifying pages of the documents to be retained and place the photocopies on file. 2. Minute the file to state which documents have been retained. 3. Record the retention of the documents on CID 4. Arrange for documents to be hand delivered to the Valuable Document Bank located in ACU 11. All valuable documents in ACG (N) are to be stored in the Valuable Document Bank (VDB)

Valuable document bank (VDB) Asylum Co-ordination Unit (ACU) 11 will store valuable documents as listed in List Of Valuable Documents in a secure unit, and the document details will be added to a secure database. ACU 11 staff have access to all functions of the Valuable Document Bank. All other Asylum Casework Group (North) staff located in the Liverpool Estate have read only access to search and view the contents of the Bank, and should use the Passport Withdrawal Form facility to request a withdrawal of an item in the Valuable Document Bank. Requests will be processed within 24 hours, or sooner if urgently required. Team support will be expected to collect the item from ACU11. Staff outside ACG (N) are able to see what is held in the VDB through a Business Objects report, or through CID for individual cases, and may make a request through the dedicated email Uncontrolled if printed

account, if they need to withdraw an item. Items to be sent outside the Liverpool Estate will be sent by recorded delivery. For further details of the VDB please see the ACG North Communication "Valuable Document Handling in ACG (N).

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Return or Retention of Documents After Asylum Decision


Where the decision is to grant leave (asylum, Humanitarian Protection or Discretionary Leave), documents should be returned in accordance with current implementation processes. The assigned officer should see the relevant instructional minute for details. Where the decision is to refuse leave, valuable documents should not be returned. Staff should ensure that local practices are maintained, either all documents have been put in the clear plastic wallet and placed on file or secured in the Valuable Document Bank (if they have been taken from it) before the file is passed to team support for dispatch (ACD) or prepared for service in person (New Asylum Model).

Asylum Decision Service Unit (ADSU) action in Asylum Casework Group (North) On receipt and allocation of the case file in ADSU (N), staff should check that if there are copies of documents on the file, that these documents correspond to those recorded as submitted on CID. Where there are copies of documents on file, which are not recorded on CID, staff should contact ACU 11, to confirm what is held, and ACU11 should update CID if appropriate. If the decision is an outright refusal then any documents will remain in the Valuable Document Bank when the file is dispatched to the Appeals Processing Centre (APC) after all implementation action has been completed. The exception to this is EEA/EU nationals unless removal is appropriate. On receipt and allocation of the case file in ADSU, staff should remove any valuable document that has been inadvertently left on file, and walk it to ACU 11, and record that this action has been taken in the notes field of CID.

Asylum Decision Service Unit (ADSU) action in Asylum Casework Group (South) On receipt and allocation of the case file in ADSU (S), staff should check that copies of the documents are on the file, the retained documents are in the wallet attached to the file and that these documents correspond to those recorded as submitted on CID. Where there are documents on file, which are not recorded on CID, staff should update CID. For staff in ADSU where there are documents recorded on CID that are not on the file, staff should contact the CMU to check whether the documents are still there. Once these checks have been completed, and CID has been updated, staff should continue implementing the decision. If the decision is an outright refusal then documents should remain on file when it is dispatched to the Appeals Processing Centre (APC) after all implementation action has been completed. The exception to this are EEA/EU nationals unless removal is appropriate. If documents are returned because of a grant of leave or claimant is EEA/EU national then the Documents Enclosed label on front of the file needs to be overwritten Returned.

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Updating CID Records


When documents are received in an asylum team (New Asylum Model), ACU1 Team A, ACU11 or the CMU in ACD, staff should immediately update CID to record the document and its location. When receiving a file staff should check that CID accurately reflects what documents have been recorded and photocopied to file.

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Dealing With Claims of Non Receipt of Documents


The return of retained documents to a claimant or their representative by post must always be by Recorded Delivery. The Recorded Delivery number must be recorded on CID. Claims by an applicant or representative that they have not received their documents (i.e. in cases of granted leave) must always be investigated thoroughly, by the caseworker in the first instance, if necessary in consultation with their Senior Caseworker. ADSU and The Post Room must be contacted to determine if the letter was dispatched, and if so the Post Office must be contacted to discover if the letter was delivered, and if so, who signed for it. The Royal Mail through their website: www.royalmail.com, operate a Track & Trace service that allows for the status of Recorded Delivery to be tracked. A copy of the signature should be requested if delivery is disputed and records indicate otherwise.

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Requests For The Return Of Documents


The purpose of Section 17 of the 2004 Asylum and Immigration (Treatment of Applicants, etc.) Act 2004 is to retain documents that may facilitate removal whilst a person is still liable to be removed from the United Kingdom. It does not allow for the retention of documents without limit of time. So when leave is granted in any capacity (asylum, Humanitarian Protection or Discretionary Leave) such documents should be returned. If valuable documents are requested for any other reason then follow the most appropriate action listed below:

EEA/EU Nationals Requests from applicants or their representatives for the return of retained documents before a decision has been made on their claim should be refused, on the grounds that they are needed for consideration of the claim, and that they will be returned once the claim is concluded. Where the applicant or a representative acting with the authority of the applicant has written in withdrawing the asylum claim and human rights claim, the documentation should be returned by Recorded Delivery with the standard letter ASL.2685. A copy of ASL.2685 should be placed on file. CID should be updated to record the withdrawal of the claim. Record the return of the documents on CID. For further guidance on handling asylum claims of EEA/EU nationals see Asylum Guidance on Applications from Nationals of the EEA and EU Accession Countries.

Requests for documents for a specific purpose Any requests for documents from applicants or their representatives for a specific purpose (e.g. for opening a bank account or applying for a driving licence) should be declined. Photocopies of the documents with the officer's name printed and signed at the end of each page should be sent to the claimant together with the ASL.2685 and a covering letter ACD.1100. The covering letter should list the documents, their issue numbers and the number of pages photocopied. It should also contain the following text, These documents are /This document is presently being held by the UK Border Agency, each of the photocopied document pages have been signed to confirm that they are held. If you wish to confirm that these documents are held by the UK Border Agency please phone the number listed at the top of this page and giving this reference number HO ref number. A copy of ASL.2685 and the covering letter should be placed on file.

Requests for documents to facilitate a return to claimants country of origin Valuable documents are not to be returned to applicants if they request them for travel. It is important that UK Border Agency manages and monitors the departure of asylum applicants and failed asylum seekers from the United Kingdom. The United Kingdom Immigration Service hold responsibility for recording departures and to ensure compliance with a request to voluntary depart the United Kingdom will only hand valuable documents to the claimant at the port of departure. If such a request is made staff should see Asylum Guidance on Assisted Voluntary Return and Voluntary Departures (non UKIS Enforcement & Removals) issued by the UKIS ERD process team. These instructions explain the processes and procedures that are to be followed for claimants who wish to voluntarily depart the United Kingdom.

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List of 'Valuable Documents'


Documents to be retained by the Secretary of State under section 17 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 1. 1951 Convention Travel Document 2. 1951 Stateless Document 3. 1954 Convention Travel Document 4. Birth Certificate 5. Carriers Copy Of Travel Document 6. Certificate of citizenship 7. Chicago Convention Letter 8. Curriculum Vitae (CV) 9. Driving licence 10. Educational Certificate 11. Emergency Travel Document 12. Employment ID 13. Entry Clearance Certificate 14. GV3 15. ID card 16. Laissez Passer 17. London Convention Letter 18. Marriage Certificate 19. Medical certificate 20. National ID card 21. National Insurance Card 22. Non 1951 Convention Travel Document 23. Non-UK Asylum Decision Document 24. Non-UK Asylum ID Document 25. Passport 26. Police Registration Certificate 27. Seamans Book 28. Seamans Discharge Certificate 29. Stateless Travel Document 30. Student ID 31. Vignette 32. Visa 33. Wage Slip 34. Work Permit

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Glossary
Term ASL.2685 ACD.1100 Meaning Acknowledgement of Request to Return Documents Blank Letterhead

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Document Control
Change Record
Version 1.0 2.0 Authors DD RB Date 21/02/2007 30/10/2008 Change Reference New web style implemented Update branding only

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GUIDANCE FOR ISSUING STATUS DOCUMENTATION FOR GRANTS OF LEAVE INCLUDING FURTHER GUIDANCE FOR CASES WHERE NO PHOTOGRAPHS HAVE BEEN PROVIDED

Table of Contents

1 Introduction 1.1 Application of this instruction in respect of children and those with children 2 United Kingdom Residence Permits 3 Immigration Status Documents 4 Obtaining Passport Photographs 4.1 First Reporting Event 4.2 Issuing Invitation to Interview Letters: 4.3 Substantive Interviews: 5 Return of Photographs 5.1 Action for staff in the Document Management Centre: 5.2 Action for staff in Team Support: 6 Preparing Immigration Status Documents 7 Preparing Vignette Implementation Pro Formas (VIPs) 8 Preparing Accompanying Letters and Information Sheet Covering Letters 9 Obtaining United Kingdom Residence Permits 10 On - Entry Port Dependants Cases 11 Blocking EURODAC Records 12 Issuing United Kingdom Residence Permits 12.1 For Case Owners: 13 Actions if Corrections Are Required Before a UKRP can be Produced 14 Decisions Which do Attract a Right of Appeal No Photographs Supplied 14.1 Actions for Asylum Teams 14.2 Actions for Legacy 14.3 Actions for POU 14.4 Actions for AIU 15 Obtaining UKRPS for Applicants Who Were Formally Detained at Oakington Reception Centre Glossary

1 Introduction
This instruction gives guidance on issuing status documentation with photographs that must be used when implementing grants of Refugee Status, Humanitarian Protection (HP) and Discretionary Leave (DL). It also provides guidance for cases where photographs have not been supplied. Where a specific section applies to the New Asylum Model (Asylum Teams), LCD or another unit, this has been referred to in the guidance.

1.1 Application of this instruction in respect of children and those with children Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the UK Border Agency to carry out its existing functions in a way that takes into account the need to safeguard and promote the welfare of children in the UK. It does not impose any new functions, or override existing functions. Officers must not apply the actions set out in this instruction either to children or to those with children without having due regard to Section 55. The UK Border Agency instruction Arrangements to Safeguard and Promote Childrens Welfare in the United Kingdom Border Agency sets out the key principles to take into account in all Agency activities. Our statutory duty to children includes the need to demonstrate: Fair treatment which meets the same standard a British child would receive; The childs interests being made a primary, although not the only consideration; No discrimination of any kind; Asylum applications are dealt with in a timely fashion; Identification of those that might be at risk from harm. This instruction makes reference to separate guidance for interviewing applicants, which include the conditions that apply to the management of children in interviews.

2 United Kingdom Residence Permits


The UK Residence Permit (UKRP) in the form of a secure vignette replaced the Code 1A ink stamps in passports and personal date stamps on status letters, which previously indicated that an individual had been given permission to stay in the UK. The UKRP vignette was introduced for a person granted leave to enter or remain in the UK as a result of an asylum decision made on and after the 15 March 2004. The UKRP is held either in the applicants passport if appropriate and available or held in an Immigration Status Document (ISD). It is based on a common European Union (EU) format allowing easy identification across the whole of the EU. The vignette contains security features that make it much harder to forge or change than ink stamps. Paragraph 3 of Article 9 of Regulation (EC) 1030/2002 will require all vignettes to be produced with a photograph. In accordance with this regulation, we are implementing a new policy. If there is no photograph available at the decision service event, or when the decision is served by post all papers minus the Vignette can be served from 9th October 2006. The vignette will be served once photographs have been supplied. All decisions to grant leave made before 15 March 2004, but not served, should also be served with UKRP. If a Personalised Date Stamp (PDS) authenticated status letter has already been prepared, this should be cancelled on file and new paperwork prepared. For guidance on unserved grants of leave see the instruction on Service of Notice of a Decision on File.

3 Immigration Status Documents


An Immigration Status Document (ISD) is given to an applicant following the grant of leave where no passport is held, or where it would not be appropriate to endorse a national passport. The ISD provides details of the applicant, and also indicates the status (Refugee, Humanitarian Protection (HP) or Discretionary Leave (DL)) that the applicant has been given. Refugee Status: UKRP to be held in ISD only Humanitarian Protection: UKRP to be held in ISD if grant is due to applicant being unable or, owing to such fear, is unwilling to avail himself of the protection of their country of nationality, otherwise in passport if available. Discretionary Leave: UKRP to be held in passport if available, otherwise ISD Non asylum grants: Where the person is unable to make use of a national passport the UKRP is to be held in an ISD.

4 Obtaining Passport Photographs


This section provides information on how to obtain photographs for UKRPs throughout the decision making process.

4.1 First Reporting Event: At the first reporting event, Case Owners must ensure that if the asylum applicant has not provided 4 passport size photographs of themselves and any dependants, that they are reminded to bring them along to the next reporting event or to the asylum interview. If the photographs are not provided at the first reporting event, interview officers must follow the procedures under issuing invitation to interview letters and conducting the Asylum Interview.

4.2 Issuing Invitation to Interview Letters: When inviting an asylum applicant to attend an interview, staff must be aware that the ACD.0062 Invite to Asylum Interview stock letter has been amended to include the following Requirement to submit photographs section: Requirement to submit photographs If you have not already done so, please bring with you four unseperated photographs of yourself and each dependant included on your asylum claim. Each photograph should meet the following requirements: Passport size (approximately 4cm x5cm) Recently taken Full face Light background Have the subjects name, nationality and date of birth clearly written on the reverse. Failure to submit passport sized photographs of yourself and your dependants may prevent the production of an immigration status document in the possible event of being granted leave in the United Kingdom. Staff must ensure that they delete any previous versions of this stock letter that does not contain this paragraph, which they may have saved onto their own personal drives. All stock letters must be produced using the document generator in order to ensure that the latest version is being used.

4.3 Substantive Interviews: When preparing to conduct a substantive asylum interview, interviewing officers must follow the instructions outlined below: Check the Home Office file to determine whether the applicant has previously submitted four unseparated passport photographs of themselves and each of their dependants. Where photographs are already on the Home Office file, no further action is required to obtain passport photographs. The substantive asylum interview can proceed in the normal manner.

Where photographs have not previously been submitted, print two copies of the ASL.2365 Returned photographs pro forma with the details of the applicant and their dependants (if details of dependants are not recorded, request that the applicant complete the dependants section on the pro forma). Ensure that your unit address is selected on the pro forma. If your unit address is not listed, you must then select the UK Border Agency address, which is the last option. Take one copy to the substantive asylum interview and attach the other copy to the right hand side of the Home Office file. During the substantive asylum interview the pro forma should be handed to the applicant when reading out the photo request statement on the Statement of Evidence Form (SEF Interview record). The general return address is given at the bottom of the pro forma. NAM Case Owners must request that the pro forma is returned along with the photographs at the next reporting event.

5 Return of Photographs
5.1 Action for staff in the Document Management Centre: After the substantive asylum interview, the applicant should return the passport photographs together with the completed pro forma as instructed. If the UK Border Agency general address has been used, the photographs will be sent to the Document Management Centre (DMC). Staff in DMC must follow the instructions outlined below: From the pro forma, or the reverse of the photograph, obtain the Home Office reference number of the applicant and their dependants and check File Tracking to determine the location of the Home Office file. If the Home Office file is in Layby, DMC must recall the file and attach the photographs before forwarding the file to the correct decision serving unit. Forward the photographs and pro forma to the relevant Home Office file location. Where photographs are submitted without a completed pro forma, insufficient details on the reverse of the photographs (i.e. no names or Home Office references), and cannot be traced to a Home Office file, the photographs should be placed in the local 'Unknown Photograph Hold' in DMC. 5.2 Action for staff in Team Support: On receipt of the pro forma and photographs from DMC or the asylum applicant, team support must follow the instruction outlined below: Place the pro forma and the photographs in a sealed envelope with the HO reference number on the envelope. The envelope must be hole punched (ensuring that none of the contents are damaged) and must be attached to the right side of the Home Office file. The Photographs must be left on file for the production of a vignette if required.

6 Preparing Immigration Status Documents


Case Owners or Legacy Case workers must produce one of the following stock letters, as appropriate, in order to facilitate the production of a UKRP on an Immigration Status Document: ASL.2151, issued to asylum seekers and their dependants granted Refugee Status; ASL.2152, issued to asylum seekers and their dependants granted HP but only where a valid national passport is not available; ASL.2373, issued to asylum seekers and their dependants granted DL but only where a valid national passport is not available; and ASL.2150, issued to those persons unable to make use of a national passport who are granted leave for reasons other than asylum. When preparing ISDs, officers must ensure that all CID details are updated before the ISD is prepared. Officers must: Only type over the red entry text, not the black header text. Ensure all text is entered in upper case (this should happen automatically). Ensure all details are completed as they appear on CID. This includes spelling and dates of birth. Ensure the applicants surname is entered first, and divided from the forename(s) with a comma. Ensure the nationality is completed as on CID; e.g. Turkey, not Turkish. In doubtful nationality cases, the phrase claims to be must be entered after the claimed nationality on the ISD. However, no amendment must be made to CID in such cases. Ensure the place of birth is entered as the town, not the country; e.g. Aksaray, not Turkey. If there is no place of birth on CID, this section must be left blank. Ensure the CID case ID is entered in the CID Case ID field, not the Home office reference. The CID case ID can be found on the top right hand corner of the screen on CID. If the CID case ID begins with two zeros, these must be removed when entering the number on the ISD.

7 Preparing Vignette Implementation Pro Formas (VIPs)


The ICD.2100 Vignette Implementation Pro Forma contains all the relevant information needed to produce the UKRP (i.e. the applicants personal details, the leave they have been granted and the expiry date) and it also holds a photographic image of the applicant. A VIP is required for the main applicant and each dependant included on an asylum claim. The pro forma is scanned into the vignette machine by the staff in the Vignette Unit and the UKRP is then produced. It is essential that A-CID is accurately updated otherwise the VIP will be rejected by the Vignette system process. Any errors will be returned for amendment. The applicant and each dependant must have their own VIP (ICD.2100), all relevant details on VIPs must be correct and complete. It must be verified from the HO file that the photograph/s is a true likeness to those held on file or on CID. A photograph of the applicant must be attached to the ICD.2100 with sticky pads. Where necessary, cut photograph to size of box on the pro-forma using photo-cutters. Repeat the process for each dependant using the individuals pro-forma.

8 Preparing Accompanying Letters and Information Sheet Covering Letters


The following accompanying letters and information sheet covering Letters must be produced in support of a UKRP being issued. ASL.3224, Information sheet covering letter issued to asylum seekers and their dependants granted Refugee Status; ASL.3224, Information sheet covering letter issued to asylum seekers and their dependants granted HP; ACD.2155, Accompanying letter issued to asylum seekers and their dependants granted DL; ACD.2374, Accompanying letter issued to those persons unable to make use of a national passport who are granted indefinite leave for reasons other than asylum; and ASL.2812, Accompanying letter issued to dependants of refugees granted (limited) leave in line but who do not want Refugee Status. Officers should ensure that they select the appropriate option according to whether the UKRP is being issued with the decision paperwork. If an applicant is granted asylum or HP, the information sheet covering letter should be attached to the appropriate information sheet. When preparing accompanying letters for applicants granted DL in doubtful nationality cases, officers must ensure that the phrase claims to be is entered after the claimed nationality on the accompanying letter.

9 Obtaining United Kingdom Residence Permits


The New Asylum Case Owners are responsible for securing the UKRP from the Vignette Unit, and where requested, a National Insurance number (NINo) for the applicant from the Department for Work and Pensions. Case Owners will have to consider the decision service date/reporting regime to ensure that the vignette is ready for service in person. The service team in the Legacy Casework Directorate (LCD) is responsible for securing the UKRP for LCD, and where appropriate a NINo, which will be dispatched by post. The production of the vignette may prevent a delay in serving elements together. Officers will therefore need to be mindful when cases are subject to the 2+4 target. Where the decision is to be served by post and the NINo is not available for service before day 60 the decision should be dispatched without the NINo. The NINo should be forwarded separately to the applicant. For further guidance on the production of the NINo see Asylum Guidance on Procedures for handling NINo applications. Caseworkers in LCD should always endeavour to get the case to the team serving the decision before day 54, or mark the file for Urgent Service. If the decision is subject to Urgent Service, the file should be taken to the LCD service team. In the event of port cases where there are dependants and their papers include photographs, officers must follow the below guidance for On-Entry Port Dependant cases and/or Blocking EURO DAC Records if required. Once the EURO DAC is blocked and the warranted officer has signed the consideration minute if required, take the yellow wallet to the Vignette Unit within the SHA for the UKRP vignette to be produced. The Home Office file will remain in the unit. Officers must ensure that their wallet is clearly labelled with the: Unit name Unit address Case Owner contact details.

10 On - Entry Port Dependants Cases


The below warranted officer action is only required in port cases where there are dependants. If there are Port Dependants the officer should: Check CID to determine whether they are dependants who were recorded as an on-entry (port) case. If the dependants are recorded as an on-entry (Port) case, Asylum Claim-Port will be shown on the Persons/Case Details screen. If there are dependants recorded as on-entry (port) cases, officers should carry out the following actions: Hold the yellow wallet until a warranted officer signs the consideration minute sheet to indicate their agreement to leave being granted. The warranted officer should list the names of all on-entry dependants in the space provided at the foot of the consideration minute, and sign and date the consideration minute to authorise the granting of their Leave to Enter the UK

11 Blocking EURODAC Records


EURODAC is a database used to record the fingerprints of all individuals who seek asylum in the EU. For grants of asylum for 5 years or more or for grant of ILR for claims made after January 2003 only, their records no longer need to be checked if travelling across EU borders. Officers must: Send an email to IFB to advising them to block the EURO DAC for the applicant. When email confirmation is received, print off the confirmation. Place copy of the confirmation in the Home Office file. Update CID notes to indicate that the confirmation has been received and insert the date of receipt.

12 Issuing United Kingdom Residence Permits


Once the UKRP is produced and attached to either a passport (where appropriate) or an ISD, officers should collect the yellow wallet from the Vignette Unit. Officers must then carry out the following actions: Remove all documents and minute sheets from the yellow wallet. Take a photocopy of all endorsed documents (i.e. a passport or ISD with a UKRP attached). Where necessary, date and sign all copies of the ACD.1047 Decision Notice. Where necessary, insert correct due date for appealing on all ACD.1041 (Notice of Appeal, Change of Address, Legal Advice and Assistance). Update the following on Key Document Tracking screen on CID: Document type Decision Letter. Dispatch Method Recorded Delivery or Service in person. Dispatch Address if required. 12.1 For Case Owners: if the NINo is not available for service, another event should be arranged for the NINo to be served. For further guidance on NINos see Procedures for handling NINo applications. In the Case References screen on CID: Click on the next empty Ref Type box. Click on the List of values in the top centre of the screen. Use the drop-down menu to find a reference titled UKRP Vignette Number. Click on OK, and enter the vignette number in the right-hand box. Print two copies of the CID Key Document Tracking screen and Case References screen. Sign and date the instructional minute sheet, ticking the relevant boxes to confirm the action taken. Place photocopies of the endorsed documents on to the Home Office file along with CID printouts, consideration minute, and completed instructional minute sheet. File track and note ladder on file of destination in accordance with minute sheet and place in out tray. If the applicant has a right of appeal, the file must then be forwarded to APC.

13 Actions if Corrections Are Required Before a UKRP can be Produced


The UKRP may not be produced because corrections to the paperwork are required. The Secure Handling Area must return the paperwork to the Case Owner or AIU for any corrections to be made. Officers in AIU must contact the relevant team to arrange for the documents to be collected in order for the corrections to be made.

14 Decisions Which do Attract a Right of Appeal No Photographs Supplied


This section provides information on how to issue decision papers minus the UKRP for applicants who have a right of appeal. The section also provides further guidance on issuing the UKRP, once the photographs have been received during and at the end of the appeal process, if no vignette has been issued previously. Asylum Team officers must then follow the process for Obtaining United Kingdom Residence Permits and Issuing United Kingdom Residence Permits above. LCD officers must forward the file to the team serving the decision they receive. When they receive the file they must then follow the process for Obtaining United Kingdom Residence Permits and Issuing United Kingdom Residence Permits above.

14.1 Actions for Asylum Teams If no photographs have been supplied, Asylum Teams must: Serve all the decision papers to the applicant minus the UKRP. Update CID notes to indicate that decision papers have been served without the UKRP. Continue with the appeal process. When the photographs have been received, Case Owner must: Prepare ASL2579. Vignette covering letter. Request for the UKRP to be produced, following the process for Obtaining United Kingdom Residence Permits and Issuing United Kingdom Residence Permits above. Update CID following the issue of the UKRP.

14.2 Actions for Legacy If no photographs have been supplied, officers must: Send all decision papers to the applicant minus the UKRP. Forward the file to APC. When the photographs have been received, team support must: Update CID notes to indicate that the photographs have been received and forwarded to file location. Check file tracking for location of the file and retrieve it. Once file received prepare ASL2579. Vignette covering letter. Place photographs and any accompanying documents into a transparent plastic envelope. Request for the UKRP to be produced, following the process for Obtaining United Kingdom Residence Permits and Issuing United Kingdom Residence Permits above Update CID following the issue of the UKRP. 14.3 Actions for POU If an appeal has been completed, dismissed and the applicant has leave remaining, POU must: Check the file to see if a UKRP has been issued. If not and no photographs are on file, POU must: Forward the file to lay by. If not and photographs are on file, POU must: Forward file to AIU (Appeals Implementation Unit in Leeds). When the file is received by AIU, AIU must: Prepare ASL2579. Vignette covering letter.

Follow the process for Obtaining United Kingdom Residence Permits and Issuing United Kingdom Residence Permits above. Update CID following the issue of the UKRP. Forward the file to lay by. 14.4 Actions for AIU If an appeal has been completed and granted, AIU must: Issue the vignette after obtaining photographs from the successful appellant, if not already supplied and available on file.

15 Obtaining UKRPS for Applicants Who Were Formally Detained at Oakington Reception Centre
See the Knowledge Base for APN 05/2006 (Service of Grants of leave in Oakington Reception Centre Cases), which provides details of serving grants of leave in Oakington Reception centre cases. Oakington Officers must ensure that photographs of the applicants are included in the file before the file is passed to team support.

Glossary
Term ISD UKRP ACD.0062 ASL.2365 ASL.2151 ASL.2152 ASL.2373, Meaning Immigration Status Document United Kingdom Residence Permit Invite to Asylum Interview Returned Photograph Pro-forma ISD Issued to asylum seekers and their dependants granted Refugee Status ISD issued to asylum seekers and their dependants granted HP but only where a valid national passport is not available ISD issued to asylum seekers and their dependants granted DL but only where a valid national passport is not available; and ISD issued to those persons unable to make use of a national passport who are granted leave for reasons other than asylum. Vignette Implementation Pro Forma Information sheet covering letter issued to asylum seekers and their dependants granted Refugee Status Information sheet covering letter issued to asylum seekers and their dependants granted HP Accompanying letter issued to asylum seekers and their dependants granted DL Accompanying letter issued to those persons unable to make use of a national passport who are granted indefinite leave for reasons other than asylum Accompanying letter issued to dependants of refugees granted (limited) leave in line but who do not want Refugee Status Vignette covering letter

ASL.2150

ICD.2100 ASL.3224 ASL.3224 ACD.2155 ACD.2374

ASL.2812

ASL2579.

Document Control Change Record Version Author Date s DD DH RB CC 21/02/200 7 19/12/200 7 30/10/200 8 26/10/09 Change Reference

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IMMIGRATION STATUS UNCERTAIN OR UNKNOWN


Table of Contents

Introduction Why Is Determining the Immigration Status Important? Initial Checks To Determine Whether The Claimant Has Entered The United Kingdom Legally When to Issue A Method Of Entry Questionnaire Officer Unable to Determine Immigration Status Asylum Cases Asylum cases dealt with under the Case Resolution Directorate (CRD) Visa Application Form (VAF) checks

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Introduction
This instruction is for all cases where the immigration status is unknown or uncertain prior to interview and all cases where the decision has been taken to refuse outright. Prior to conducting an asylum interview the interviewing officer should in the majority of cases be aware of the immigration status of the applicant, be it port, notified illegal entry, De Facto illegal entry or section 10 overstayer. In a minority of cases the immigration standing of the claimant will not be known or ambiguous. This will be more usual in old backlog cases. Interviewing officers must always ensure that they thoroughly investigate the claimants method of entry during the substantive interview if how they entered the United Kingdom is not incontrovertible. For further guidance on conducting interviews see Conducting Asylum Interviews.

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Why Is Determining the Immigration Status Important?


In all cases where asylum is refused and leave is refused outright the Nationality, Immigration and Asylum Act 2002 confers a right of appeal against the immigration decision as defined in section 82(2). Therefore, asylum officers need to clearly establish the immigration status of the claimant they are dealing with. In cases where leave is granted, officers will be required to grant either leave to enter or remain so it is always important to ascertain the correct immigration status.

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Initial Checks To Determine Whether The Claimant Has Entered The United Kingdom Legally
Officers must check the following documents on every case where the claimants method of entry is uncertain or unknown for information on how the claimant entered the UK: Screening notes, including any port records Asylum Interview Record Other documentation on file i.e. passports, visas In addition, where the claimant says he/she has been given a visa to enter the UK, the asylum officer should complete a Visa Application Form (VAF) check. In every case, the asylum officer should write a minute on the case file, for the attention of Border Force, stating exactly what checks have been completed, and the outcome of those checks. This will aid operational colleagues in the future in the event that an interview under caution is deemed necessary.

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When to Issue A Method Of Entry Questionnaire


If the claimant has not been thoroughly probed during his asylum interview regarding their method of entry, and the initial checks are inconclusive so the asylum officer is unable to determine the claimants immigration status then an Immigration Status Questionnaire should be issued. This will include backlog cases. The claimant should be sent an Immigration Status Questionnaire (ASL.1944) plus Guidance Notes (ASL.1945) to complete, detailing his/her entry into the UK. On return of the questionnaire: If the claimant provides sufficient information for the officer to determine their immigration status, the claim should be decided in accordance with their immigration status. If the claimant does not provide sufficient information regarding their immigration history, or does not return the questionnaire in the required time, they will be assumed to have entered the United Kingdom illegally and should be treated as an illegal entrant. The decision to refuse asylum and to remove them as an illegal entrant will trigger a right of appeal under section 82.

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Officer Unable to Determine Immigration Status


If the method of entry has been thoroughly probed at interview, but the Case Owner is still unable to determine the claimants status, it may not be necessary to issue an Immigration Status Questionnaire. However, the officer must be able to demonstrate that they fully questioned the claimant regarding their method of entry into the United Kingdom and that all other checks have been carried out as detailed in initial checks. Asylum Officers should deal with the cases in accordance with the instructions below:

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Asylum Cases
Case Owner actions The Case Owner should minute the file stating what checks have been undertaken and clearly state their name and grade. The minute should also say: Method of entry was thoroughly investigated at interview, but it is still not possible to determine the claimants immigration status. The claimant is, therefore, assumed to have entered the United Kingdom illegally. The Case Owner should continue with the refusal by treating the claimant as an illegal entrant.

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Asylum cases dealt with under the Case Resolution Directorate (CRD)
Caseworker actions: The caseworker should pass the case file, including the interview record and details of other investigations made, to a senior caseworker for them to confirm that every effort has been made to establish the claimants immigration status. If the senior caseworker is satisfied that the interview record shows sufficient evidence that the method of entry was thoroughly probed, the senior caseworker should minute the file to confirm this, clearly stating their name and grade. The minute should say: Method of entry was thoroughly investigated at interview, but it is still not possible to determine the claimants immigration status. The claimant is, therefore, assumed to have entered the United Kingdom illegally. Following agreement by the senior caseworker, the caseworker should continue with the refusal by treating the claimant as an illegal entrant. If the senior caseworker determines that the method of entry was not thoroughly probed by the interviewing officer, they should minute the file to state this and instruct the caseworker to issue an Immigration Status Questionnaire.

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Visa Application Form (VAF) checks


If a claimant states that they were issued with a visa to enter the UK, the officer must satisfy himself/herself that this claim is false before assuming that the claimant entered illegally. During the interview, the claimant should be questioned thoroughly about the circumstances of the application, when it was completed, where they went, were they interviewed etc. When the officer has returned to their unit, they can request sight of the Visa Application Form (VAF) from the issuing embassy/consulate. A written request for a copy of the VAF should be faxed to the embassy or consulate from which the claimant says he/she has obtained the visa, enclosing a return fax number. Requesting a copy of the VAF may result in a delay in making the decision and asylum officers should be mindful of any impending deadlines and discuss with senior officers whether it is appropriate to miss those deadline. However the onus remains on the officer to ensure that they have completed all possible checks to rule out lawful entry before assuming illegal entry.

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Version 1.0 2.0 Authors DD CB Date 20/02/07 06/11/08 Change Reference New web style implemented Rebranded

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IMPLEMENTING SUBSTANTIVE DECISIONS


Table of Contents

1. Introduction 1.1 Application of this instruction in respect of children and those with children 2. The Decision Maker 2.1 Determining Immigration Status On entry cases (port cases) In time after entry Illegal entrants De facto illegal entrants Notified illegal entrants Overstayers Immigration status uncertain or unknown UK born children 3. Possible Outcomes and Determining What the Immigration Decision Should Be 3.1 Grant of Asylum 3.2 Grant of Humanitarian Protection (HP) 3.3 Grant of Discretionary Leave (DL) 3.4 Managing Files on Which Action is Complete 3.5 Outright Refusal 4. Reference Table for Immigration Status and Immigration Decisions Under S82 4.1 Section 83 5. Curtailment of Leave 5.1 Cases Actioned Under the old Six Months or Less Policy 5.2 Right of Appeal When Asylum Refused but Leave not Curtailed 6. Refusing Asylum on Grounds of Non Compliance 7. File Checks 7.1 Basic File Checks 7.2 Photograph Requirements 7.3 NINo requirements 8. Drafting and Proofreading of decision documents 8.1 What is proofreading 8.2 Who Can Proofread 8.3 What Documents Need Proofreading 9. Preparing Documents 9.1 Reasons for Refusal Letters 9.10 Which RFRL to use 9.11 How Many Copies of RFRLs to Print 9.12 Drafting RFRLs 9.13 Drafting Dependant's Decision letters (ASL.1006) Uncontrolled if printed

9.14 Consideration Minute 10. Decision Notices 11. Pro Formas (PF1) Main applicants Dependants 12. Vignette Implementation Proformas (VIPs) 12.1 What is a VIP? 12.2 Obtaining Passport Photographs 13. Immigration Status Documents Refugee Status Humanitarian Protection Discretionary Leave Non asylum grants 14. United Kingdom Residence Permit (UKRP) 14.1 Background to UKRPs 14.2 Obtaining UKRPs 14.3 Obtaining UKRPs for Oakington cases 14.4 Obtaining UKRPs for Harmondsworth and Yarl's Wood cases 14.5 Implementing Decisions without UKRPs (Where No Photographs are Available) 15. Biometric Residence Permits (BRP) 15.1 Background to BRPs 15.2 Pre Decision 15.3 Grant of Asylum/Humanitarian Protection/Discretionary Leave 15.4 Unaccompanied asylum seeking children 15.5 Appeals 15.6 Detained Fast Track (DFT) 16. Accompanying Letters and Information Sheet Covering Letters 16.1 Information Sheets 16.2 Covering Letters 16.3 Notification Letters Social Service Notifications (UASC cases only) Refugee Council Notification Letters (UASC non compliance refusals only) 16.4 Immigration Fingerprint Bureau Notification Letter 17. Notifying LEOs of Grants of Leave and Disposing of Illegal Entry Papers 17.1 If Illegal Entry Papers have been Served 17.2 If illegal Entry Papers have been Drafted on File but Not Served 17.3 Carriers Liaison Notification Letter 18. Handling Valuable Documents at the Decision Stage Section 17 retention of documents 18.1 Handling NINo Applications at the Decision Making Stage Officer Actions at the Decision Stage 18.2 Preparing Supplementary Information Documents and Leaflets for the Service of Decision Uncontrolled if printed

AVR leaflet Job Centre Plus Leaflet Integration Loan Scheme application form Grant Asylum Refuse asylum, grant HP Refuse asylum and HP, grant DL Refuse outright 19. Updating IND Records 19.1 Sign Off Actions Prior to the Service of Decision 19.2 Sending the Case File for Service of Decision 20. Minute Sheets and Checklists 20.1 What are minute sheets? 20.2 Instructions for Preparation and Completion of the Decision Making Minute Sheets 21. Instructions for Preparation and Completion of the Service of Decision Minute Sheets Additional notes 22. Guide to Checklists 22.1 Non compliance 22.2 Service on file 22.3 NINo Checklist 23. Audit Actions 24. Serving Decisions 24.1 Delay Decision Service to Applicants in Initial Accommodation (IA) 24.2 Serving Decisions in Person (Case Owners) 24.3 Serving Decisions by Post (Case Resolution Directorate) 25. Serving Notice of Decisions on File 25.1 Background to Serving Decisions on File Regulation 7 25.2 Where There is only a Record of Fax Number 25.3 Preparation of Papers for Service on File 25.4 Applicants Re-establishing Contact after a Decision is Served On File 25.5 Decisions 'Served on File' Between 26 July 1993 and 31 March 2003 25.6 Determining Whether Valid Service on File Took Place 25.7 Handling Cases Previously Served on File or Where Service was Invalid 26. Unserved Decisions 26.1 What is a Served Decision ? 26.2 What is an Unserved Decision? 26.3 Circumstances Which May Lead to the Decision not Being Served 26.4 Unserved Outright Refusals 26.5 Table for Unserved Refusals 26.6 Unserved Non-Compliance Refusals 26.7 Table for Unserved Non-Compliance Refusals 26.8 Unserved Grants of Leave Uncontrolled if printed

26.9 The Anufrijeva Judgement 26.10 What is a Legitimate Expectation 26.11 Identifying 'Legitimate Expectation' Claims 26.12 Considering Whether a Legitimate Expectation has been Raised Origin of information supplied to applicant Documents and wording Timeliness of our response Timing of contradictory information Nature of the claim 26.13 Where it is Not Accepted That a Legitimate Expectation Exists 26.14 Where it is Accepted That a Legitimate Expectation has Arisen Where the Intended Period of Leave has Since Expired Where the intended leave still has a period remaining 27. Appeals 27.1 Determining Whether an Immigration Decision Attracts a Right of Appeal (Dependants) 27.2 Determining Whether a Case Should have Assured Representation at Appeal 27.3 Completing Notice of Appeal Deadlines for Appealing 27.4 Determining 'Deemed Service' Dates and Deadlines for Appeal 27.5 Where the Decision is Being Served by Post (Worksheet: Post UK Appeal): 27.6 Where the Decision is Being Served by Hand (in person) or Fax (Worksheet: Hand or Fax, UK appeal): 27.7 Submitting Re-documentation Applications 27.8 Wrong Immigration Decisions 27.9 Claims of Lost or Stolen Documents 27.10 Requests for Amendments to Status Documents 27.11 Managing Files on Which Action is Complete Glossary

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1 Introduction
This instruction sets out the processes to be followed when implementing substantive decisions (also known as initial decisions). The process for implementing initial decisions is divided into two phases - the 'decision making' stage and the 'service of decision' stage. It also provides guidance on unserved decisions. For the Case Audit and Assurance Unit (CAAU) and the Regional Asylum Teams, the implementation of the decision is completed by caseworkers in Case Resolution teams and Case Owners in Asylum Teams. The general methods and principles of implementing substantive decisions are covered in the various categories below and apply to all Case Owners and caseworkers. 1.1 Application of this instruction in respect of children and those with children Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the UK Border Agency to carry out its existing functions in a way that takes into account the need to safeguard and promote the welfare of children in the UK. It does not impose any new functions, or override existing functions. Officers must not apply the actions set out in this instruction either to children or to those with children without having due regard to Section 55. The UK Border Agency instruction Arrangements to Safeguard and Promote Childrens Welfare in the United Kingdom Border Agency sets out the key principles to take into account in all Agency activities. Our statutory duty to children includes the need to demonstrate: Fair treatment which meets the same standard a British child would receive; The childs interests being made a primary, although not the only consideration; No discrimination of any kind; Asylum applications are dealt with in a timely fashion; Identification of those that might be at risk from harm.

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2 The Decision Maker


All decision-makers are expected to read and refer to asylum instructions relating to the handling and considering of asylum claims. Including, Refugee Leave; Considering the Asylum Claim and assessing credibility; Considering Human Rights Claims, Humanitarian Protection and Discretionary Leave.

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2.1 Determining Immigration Status Applicants can apply for asylum when they arrive in the UK or at any time after entry. It is essential to identify a person's immigration status as this will effect what decision is made following the consideration of the asylum and human rights claim. Also, in the event of a grant of leave, it will also determine whether leave to enter or leave to remain is granted. The following definitions are intended as a brief guide only. Further information can be found in the Operational Enforcement Manual. Decision makers should look out for cases where there are dependants - it is possible for a dependant to have a differing immigration status to the main applicant. For further guidance on what immigration papers are served to people of the various immigration statuses see 'Secretary of State Powers' (when available).
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On entry cases (port cases) People who enter the United Kingdom and claim asylum 'on entry' i.e. as they arrive at the desk at the port (airport or sea port) are applying for 'leave to enter' the UK, and are usually granted Temporary admission (TA) by immigration officers whilst their application are considered. Applicants who have been granted temporary admission have not been "landed" or given any leave to enter. A grant of leave following a successful claim will be leave to enter. In time after entry People who already have leave to enter or remain in the United Kingdom may apply for asylum. Provided that the claim is made before the leave expires, these applicants will be treated as 'in time/in country'. Any subsequent grant of leave will be leave to remain. (Even if they have been granted leave to enter previously). Illegal entrants People who enter the United Kingdom illegally, and who claim asylum may be treated as illegal entrants. Any subsequent grant of leave will be leave to remain. Illegal entrants are further divided into 'De Facto Illegal Entrants' and 'Notified Illegal Entrants'.
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De facto illegal entrants De facto illegal entrants are those people who admit to having entered the UK illegally but who were not apprehended following their entry to the UK. Uncontrolled if printed

Notified illegal entrants Notified illegal entrants are those people who have entered the UK illegally but who were either apprehended following their entry to the UK, or who have come to the attention of the Immigration Service by other methods. These people will have been served with IS forms 'notifying' them that they are illegal entrants and are subject to removal. These papers will normally remain on the case file, and this is how decision makers can identify these types of applications. Overstayers People who already have leave to enter or remain in the United Kingdom may apply for asylum. However if the claim is made after the leave expires, these applicants will be treated as 'out of time/in country'. Any subsequent grant of leave will be leave to remain. (Even if they have been granted leave to enter previously). Decision makers should be careful as the applicant may have already been served with illegal entry papers/IS forms (in which case they should be treated as 'De facto' illegal entrants. Immigration status uncertain or unknown See separate guidance Immigration Status Uncertain or Unknown UK born children Decision Makers will usually see UK born children as dependants on the main applicant.

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3 Possible Outcomes and Determining What the Immigration Decision Should Be


3. 1 Grant of Asylum The UK Government recognises an asylum seeker as a refugee when he or she meets the terms set out under the 1951 UN Convention on the Status of Refugees. The Convention says that a refugee must have a well founded fear of persecution because of his or her race, religion, nationality, membership of a social group or political opinion. Refugees must be outside the country of their nationality and unable or unwilling to return to it.

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3.2 Grant of Humanitarian Protection (HP) If the applicant fails to satisfy the asylum critique their claim is examined against the criteria relating to Humanitarian Protection. If the treatment feared amounts to persecution but is not for one of the five Convention reasons or the treatment or punishment generally speaking would breach Article 2, 3 or Protocol 13 (formerly Protocol 6) Article 1 of the ECHR then Humanitarian Protection is usually appropriate. Where the applicant has applied for asylum, which has been refused, but HP has been granted, this will attract a right of appeal under section 83.

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3.3 Grant of Discretionary Leave (DL) If the claim fails to satisfy the criteria for asylum and Humanitarian Protection or due to the nature of their activities are excluded from these categories (i.e. war criminal) but their removal would breach their rights under the ECHR then Discretionary Leave may be appropriate. Typically, Discretionary Leave will be applied where the removal of an individual would involve a breach of Article 8 of the ECHR (right to respect for private and family life) on the basis of family life established in the UK. Also if certain criteria under Article 3 or 8 of the ECHR in relation to Medical conditions. For further guidance please refer to the AI on Considering Human Rights. Where the applicant has applied for asylum, which has been refused but a grant of discretionary leave is made this may attract a right of appeal under section 83. For further guidance please refer to the instructions on Discretionary Leave.

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3.4 Managing Files on Which Action is Complete Once it is certain that a case requires no further action, the case owner should action the file as directed in the Asylum Instruction on File Management.

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3.5 Outright Refusal For asylum and human rights applicants whose claim has been refused, when an immigration decision is made within the meaning of section 82 of the Nationality and Immigration and Asylum Act 2002, there will always be a right of appeal. The immigration decisions are: (a) refusal of leave to enter the United Kingdom, (b) refusal of entry clearance, (c) refusal of a certificate of entitlement under section 10 of this Act, (d) refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain, (e) variation of a person's leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain, (f) revocation under section 76 of this Act of indefinite leave to enter or remain in the United Kingdom, (g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b) or (c) of the Immigration and Asylum Act 1999 (c. 33) (removal of person unlawfully in United Kingdom), (h) a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry: removal), (i) a decision that a person is to be removed from the United Kingdom by way of directions given by virtue of paragraph 10A of that Schedule (family), (j) a decision to make a deportation order under section 5(1) of that Act, and (k) refusal to revoke a deportation order under section 5(2) of that Act. Decision makers refusing asylum and leave outright will need to determine the immigration status of an applicant as this will affect which immigration decision they will need to make.

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Reference Table for Immigration Status and Immigration Decisions Under S82
Immigration status Port Immigration decision [82(2).
(a) refusal of leave to enter the United Kingdom

(d) refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain

In time in country**

Or: Curtailment (e) variation of a person's leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain

Out of time - in country (s10 Overstayer)

(g) a decision that a person is to be removed from the UK by way of direction under section 10(1)(a), (b) or (c) of the Imm&Asy Act 1999(c.33) (removal of person unlawfully in the UK)

Illegal entrant - notified

(h) a decision that an illegal entrant is to be removed from the UK by way of direction sunder para 8to 10 of Schedule 2 to the Imm Act 1971 (c.77) (control of entry:removal)

Illegal entrant - de facto

(h) a decision that an illegal entrant is to be removed from the UK by way of directions under para 8 to 10 of Schedule 2 to the Imm Act 1971 (c.77) (control of entry:removal)

**It is possible for in time after entry cases where there is leave outstanding which should not be curtailed. In these cases where there is outstanding leave at the time of the decision it will not attract an appealable immigration decision. Decision makers should be cautious when dealing with in time after entry cases, where leave has been granted for 12 months or more - where asylum is refused it would attract a right of appeal under section 83 of the NIA Act 2002 and not s82. Decision makers may see cases where the immigration status is uncertain or unknown (or 'No Evidence of Lawful Entry) see Immigration Status Uncertain or Unknown. Decision makers may also see cases which do not fit into these categories, if so they should discuss the case with a senior officer to determine how to handle the case.

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4.1 Section 83 a) his claim has been rejected by the Secretary of State, but b) he has been granted leave to enter or remain in the United Kingdom for a period exceeding one year (or for periods exceeding one year in aggregate).

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5 Curtailment of Leave
For the purposes of this instruction, Curtailment means a variation of limited leave to enter or remain as a result of which the person has no leave. The principle reason for curtailing a persons leave after their asylum/HR application has been refused is that an asylum/HR application may suggest that a person has no intention of leaving the UK and, where the person currently has leave in a category for which intention to leave is a requirement (e.g. a visitor), the making of an asylum/HR claim will mean they no longer meet the requirements of the Immigration Rules under which their original leave was given. Previously, it was the policy only to curtail leave under the 1971 Act where the applicant had more than six months leave remaining. However, Ministers agreed to a change in policy that would allow extant leave of six months or less to be curtailed in cases where an asylum/human rights claim is refused. However, staff should be aware that there are certain cases that should not be curtailed. Details of these cases can be found in the Asylum Instruction on Curtailment. A senior caseworker should be consulted before a decision is taken not to curtail leave.

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5.1 Cases Actioned Under the old Six Months or Less Policy Staff should seek guidance from a senior officer when dealing with cases where an asylum decision was made but extant leave was not curtailed as a result of the old six months or less policy.

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5.2 Right of Appeal When Asylum Refused but Leave not Curtailed Where leave totalling a year or more has been granted and this is not curtailed at the time of decision, there will be a right of appeal under section 83 of the Nationality, Immigration and Asylum Act 2002, but not under section 82. Where leave totalling less than a year has been granted and is not curtailed, there will be no right of appeal under section 82 or section 83. It is essential in these cases that the correct No right of appeal option is used in the ASL.1069 Determination of Asylum Claim covering letter and that no decision notices or appeals papers are dispatched.

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6 Refusing Asylum on Grounds of Non Compliance


When refusing leave on the grounds of non compliance, the Non Compliance checklist (ASL.2900) should be completed, to ensure that the non compliance decision is appropriate. For guidance on what constitutes non compliance see Non Compliance Instructions. Decisions to refuse asylum on the grounds of non compliance should be implemented in the normal way, however there may be a change in the standard RFRL drafted. Reasons for Refusal letters prepared in non compliance cases will have a different reference number to the standard RFRL template used*.

ACD.1000 Where there is a failure to attend screening interview (& insufficient evidence on file to make substantive consideration). ACD.1005 Where there is a failure to return SEF (& insufficient evidence on file to make substantive consideration). ACD.0015 Where there is sufficient evidence on file to make a substantive consideration (i.e. SEF received, but non-attendance at substantive interview).

*It should be noted, however that where there is evidence on the case file, this must be considered and a substantive RFRL drafted.

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7 File Checks
7.1 Basic File Checks Whilst implementing the decision at the decision making stage, the decision making officer should ensure that basic file checks are carried out:

Name, nationality and date of birth are correct and correspond to file contents and ACID records, e.g. there are no erroneous documents (i.e. belongs to another file) on file, the HO file reference when entered onto A-CID calls up the same personal details. All relevant documentation has been attached to file in the correct order, and any time provided for the submission of further evidence has elapsed, e.g. all documents to be placed on file in a chronological order, five working days has elapsed since a no show at interview. All original personal and travel documents should be copied to file and flagged so that officers can recall documents before they are returned to the applicant. Officers should follow their own regional guidance for the safe storage of valuable documents either on file or in Valuable Document Banks.

e.g. all personal documents are photocopied with the photocopies held on file in the order they arrived to file.

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7.2 Photograph Requirements When granting leave, the file should be checked for four passport-sized photographs of the main applicant and for each dependent. The photographs should then be verified against the Immigration Fingerprint Bureau (IFB) scanned images. If photographs are not available, officers should obtain passport photographs from the applicant.

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7.3 NINo requirements Decision makers should check whether a NINo application has been prepared on the case file. If there is no NINo application, the decision maker should be satisfied that the reason why is valid (see NINo guidance)

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8 Drafting and Proofreading of decision documents


8.1 What is proofreading Proof-reading is intended to catch any obvious careless drafting errors such as incorrect details for the applicant and references to the wrong country or nationality. Such errors can give the impression that full care and individual consideration has not been given to the case and significantly damages the credibility of the Home Office and may adversely influence our case before an Immigration Judge at appeal. Such errors will also lead to paperwork having to be redrafted, wasting time and material resources. It can be more difficult to spot errors in ones own work so decision documents should be proof-read by another person.

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8.2 Who Can Proofread Decision documents should be proof-read by another person (AO or above). It is preferable that a document is proof read by a colleague of the same grade.

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8.3 What Documents Need Proofreading Generally, the following letters/documentation should be proofread Reasons for refusal letters Decision notices Covering letters Notification letters to other business units (either within IND or outside)

However, all letters listed in the proofreading section of the minute sheets should be proofread and amended where required to ensure that they are to the required departmental standard and that all personal details are correct. The letters should read well, make sense and be grammatically correct.

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9 Preparing Documents
This is not an exhaustive list of documents to be produced. For a full list, all decision makers should refer to the minute sheets. 9.1 Reasons for Refusal Letters An asylum seeker seeks leave/or variation of leave to enter the United Kingdom on the grounds that any refusal would be contrary to the United Kingdoms obligations under the United Nations Convention and Protocol relating to the Status of Refugees. Therefore an immigration decision has to be made on an asylum claim, known as the Decision Notice (ACD.1047). All immigration decisions which attract a right of appeal (suspensive or not) will not be valid unless the notice is accompanied by a reasons for refusal letter. A grant of Discretionary Leave (where the total of leave granted is less than 12 months) does not generate a Decision Notice, however as a matter of policy a RFRL of why the asylum element and Humanitarian Protection element have been refused is issued. Hence the necessary explanation as to why leave is being refused, the reasons for refusal letter (RFRL) is issued in all cases where asylum is refused.

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9.2 Which RFRL to use See Considering the claim and assessing credibility

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9.3 How Many Copies of RFRLs to Print Grant of Humanitarian Protection (1 for file)

6 6 5

Grant of Discretionary Leave (more than 12 months -1 copy for file) Grant of Discretionary Leave (where total of leave granted <12 months) (1 copy for file)

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9.4 Drafting RFRLs For a comprehensive explanation of the principals and requirements of a RFRL see the Instructions Considering the claim and assessing credibility; Humanitarian Protection and Discretionary Leave. All copies of the RFRL must be dated and signed by the same person.

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9.5 Drafting Dependant's Decision letters (ASL.1006) Decision makers should use the Dependants Decision letter (ASL.1006) where the dependant has been granted Discretionary Leave or Humanitarian Protection, where the dependant is UK born and has never had leave to enter or remain in the UK and where the asylum claim was made in time after entry, is being refused outright, and the dependant has leave in the UK which is not being curtailed.

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9.6 Consideration Minute Consideration minutes must be prepared in cases where leave is being granted. Decision makers should prepare 2 copies of the Consideration Minute [ACD.2376] explaining reasons for granting leave and the period of leave that is to be granted. Human Rights issues, if raised, must also be discussed in this minute. The minute must be signed and dated. Attach 1 copy to left hand side of file, remaining copy to file aside.

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10. Decision Notices


The Decision notice is only prepared for grants of Humanitarian Protection and Discretionary Leave when the total of leave granted is more than 12 months. The decision notice must set out the applications made and the paragraph of the Rules under which the application is being refused. It is not necessary to list all of the reasons for refusing the application under the Rules as the decision letter will set out all the reasons. Asylum officers should insert the wording to the decision notice as directed. Officers at the decision making stage are expected to prepare the Decision Notices, however officers at the 'Service of Decision' stage should complete the fields on the notices for deadlines for appeals see completing service of decision and determining deadlines for appeal.

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11. Pro Formas (PF1)


A PF1 should be completed in all cases where an asylum claim, and/or human rights claim or an application for further leave (Active Review), is refused, and the consequent immigration decision triggers a right of appeal under either section 82 or 83 of the Nationality, Immigration and Asylum Act 2002 Main applicants ACD.1989 for outright refusals for main applicants who are 'on entry' applicants, 'illegal entrants' and 'overstayers' and in time after entry cases (either continuing 3C leave or curtailment cases) ACD.1990 for in time after entry where more than one year remaining and is not being curtailed, or where leave is being granted for more than one year. Dependants ACD.1991 for dependants who are 'on entry' applicants, 'illegal entrants' and 'overstayers'

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12 Vignette Implementation Proformas (VIPs)


12.1 What is a VIP? The ICD.2100 Vignette Implementation Pro forma contains all the relevant information needed to produce the UKRP (i.e. the applicants personal details, the leave they have been granted and the expiry date) and it also holds a photographic image of the applicant. A VIP is required for the main applicant and each dependant included on an asylum claim. The pro forma is scanned into the vignette machine by the staff in the Vignette Unit and the UKRP is then produced. It is essential that A-CID is accurately updated otherwise the VIP will be rejected by the Vignette system process and any errors will be returned for amendment. The applicant and each dependant should have their own VIP (ICD.2100), all relevant details on VIPs must be correct and complete. Where possible verify from HO file that the photograph/s are true likeness to those held on file. Attach photograph of claimant to the ICD.2100 with sticky pads. Where necessary, cut photograph to size of box on the pro-forma using photo-cutters. For each dependant repeat process using the individuals pro-forma.

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12.2 Obtaining Passport Photographs From the 9th October 2006 it is no longer possible to issue UKRPs which do not contain an image of the applicant. For guidance on what to do where no photographs are available see Guidance for issuing status Documentation for Grants of Leave Including Further Guidance for cases where no photographs have been provided.

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13. Immigration Status Documents


For guidance on dealing with applications on or after 29th February 2012 and granted leave as a result see the section on Biometric Residence Permit (BRP) below. An Immigration Status Document is a stock letter which is given to an applicant following the grant of leave where no passport is held, or where it would not be appropriate to endorse a national passport. The ISD provides details of the applicant, and also indicates what status (Refugee, HP or DL) the applicant has. There is also a 'blank' ISD available which does not determine any category under which the leave has been granted, this is usually issued to dependants of refugees who do not wish to be recognised as a refugee. In principal the UK Residency Permit (UKRP) is to be held in a Immigration Status Documents (ISD) where refugee status is granted, for grants of Humanitarian Protection or Discretionary Leave the UKRP should be held where applicable in the applicants passport otherwise in a ISD. Additionally, Accompanying Letters and Information sheet covering letters support the UKRP. Refugee Status: UKRP to be held in ISD only Humanitarian Protection: UKRP to be held in ISD if grant is due to applicant being unable or, owing to such fear, is unwilling to avail himself of the protection of their country of nationality, otherwise in passport if available. Discretionary Leave: UKRP to be held in passport if available otherwise ISD Non asylum grants: Where the person is unable to make use of a national passport the UKRP is to held on an ISD (e.g. dependants granted leave in line with refugee main applicant but who do not want Refugee Status) The stock letters that are needed in order to facilitate the production of a UKRP are as follows: ISDs ASL.2151, issued to asylum seekers and their dependants granted Refugee Status; ASL.2152, issued to asylum seekers and their dependants granted Humanitarian Protection but only where a valid national passport is not available; ASL.2373, issued to asylum seekers and their dependants granted Discretionary Leave but only where a valid national passport is not available; and ASL.2150, issued to those persons unable to make use of a national passport who are granted leave for reasons other than asylum (e.g. dependants granted indefinite leave in line but who do not want Refugee Status). When preparing ISDs, staff should ensure that: All CID details are updated before the ISD is prepared. Only the red entry text is typed over, not the black header text. All text is entered in upper case (this should happen automatically). All details are completed as they appear on CID. This includes spelling and dates of birth. The applicants surname is entered first, and divided from the forename(s) with a comma. Uncontrolled if printed

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The nationality is completed as on CID; e.g. Turkey, not Turkish. In doubtful nationality cases, the phrase claims to be should be entered after the claimed nationality on the ISD. However, no amendment should be made to CID in such cases. The place of birth is entered as the town, not the country; e.g. Aksaray, not Turkey. If there is no place of birth on CID, this section should be left blank. The CID case ID is entered in the CID Case ID field, not the Home office reference. The CID case ID can be found on the top right hand corner of the screen on CID. If the CID case ID begins with two zeros, these should be removed when entering the number on the ISD.

Officers will need to prepare again any ISDs that have been sent with incorrectly entered details.

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14. United Kingdom Residence Permit (UKRP)


14.1 Background to UKRPs For guidance on dealing with applications on or after 29th February 2012 and granted leave as a result see the section on Biometric Residence Permit (BRP) below. The UK Residence Permit (UKRP) in the form of a secure vignette replaced the Code 1A ink stamps in passports and personal date stamps on status letters, which previously indicated that an individual had been given permission to stay in the UK. The UKRP vignette was introduced for a person granted leave to enter or remain in the UK as a result of an asylum claim on and after the 15 March 2004. A UKRP is held either in the applicants passport if appropriate and available or held in an Immigration Status Document (ISD). It is based on a common EU format allowing easy identification across the whole of the EU. The vignette contains security features that make it much harder to forge or change than ink stamps. All decisions to grant leave made before 15 March 2004, but not served, should also be served with UK Residence Permit (UKRP). If a Personalised Date Stamp (PDS) authenticated status letter has already been prepared, this should be cancelled on file and new paperwork prepared. For guidance on unserved grants of leave see Unserved Decisions.

14.2 Obtaining UKRPs Case Owners are responsible for securing the UKRP from the Vignette Unit, and a National Insurance number (NINo) for the applicant from the Department for work and Pensions. Case Owners will have to consider the decision service date/reporting regime to ensure that the vignette is ready for service in person. The Resolution Casework Service Unit is responsible for securing the UKRP for CRD, and where appropriate a NINo, which they will dispatch by post. The production of the Vignette may delay serving elements together. Officers will therefore need to be mindful that cases are subject to their business target. Please see Guidance for issuing status documentation for grants of leave including further guidance for cases where no photographs have been provided.

14.3 Obtaining UKRPs for Oakington cases For guidance on obtaining vignettes where the applicant is detained at Oakington see guidance (Service of Grants of leave in Oakington Reception Centre Cases). 14.4 Obtaining UKRPs for Harmondsworth and Yarl's Wood cases For guidance on obtaining vignettes where the applicant is detained at Harmondsworth or Yarls Wood see separate guidance. 14.5 Implementing Decisions without UKRPs (Where No Photographs are Available) For guidance on Implementing Decisions without UKRPs (Where no photographs are available) see Guidance for issuing status documentation for grants of leave including further guidance for cases where no photographs have been provided

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15 Biometric Residence Permits (BRP)


15.1 Background to BRPs Anyone applying for asylum on or after 29th February 2012 and granted leave as a result should be issued with a Biometric Residence Permit (BRP). A BRP is a credit card sized document that provides details of the applicant (name, date of birth, nationality) and also indicates what status (Refugee, HP or DL) they have been given. This replaces the Immigration Status Document (ISD) as evidence of leave and should be issued to anyone applying for asylum on or after 29th February 2012 and granted leave as a result. Anyone applying for asylum before 29th February 2012 and granted leave as a result should continue to receive an ISD/vignette until 30 November 2012. Following this date everyone granted leave must be issued with a Biometric Residence Permit.

The BRP will be the sole evidence of leave - there will be no endorsement in passports where the applicant or dependants hold these. In order to receive a BRP, all main applicants and all dependants will need to enrol their biometrics at a Front Office Service (FOS) location there are 104 Post Offices across the UK that will act as the FOS locations. Unlike the ISD, production of the BRP will not be undertaken by UKBA but will be produced by the Driver and Vehicle Licensing Agency (DVLA). A request to produce the BRP is triggered through the Identity Cards for Foreign Nationals (ICFN) system.

15.2 Pre Decision In cases where the asylum application was made on or after 29th February 2012, Case Owners should explain the requirement to enrol their biometric details and that of their dependants at the asylum interview see the BRP section in see The Asylum Interview instruction for further guidance. Where no photographs are held on ACID, these should be requested and put onto ACID as soon as possible. Individuals cannot enrol their biometrics at a FOS unless their photograph is on ACID. Case Owners should make every effort to ensure that applicants and their dependants enrol prior to a decision being made on the application.

15.3 Grant of Asylum/Humanitarian Protection/Discretionary Leave When a decision is made to grant leave, all checks, should be undertaken as now. All accompanying paperwork should be prepared in line with current instructions with the exception of those relating to preparation of the Immigration Status Document and UK Residence Permit. In cases where biometrics have been enrolled and verified, the production of the BRP (for the main applicant and dependants) can be triggered through ICFN by case owners. The option to return the BRP to a UKBA address should be selected and the correct address chosen. The BRP and an accompanying leaflet will then be produced and returned to UKBA (usually within 2 days) by courier. The BRP (and accompanying leaflet) should then be sent to the applicant along with the accompanying grant documentation. Where biometrics have not been enrolled at the point at which the decision to grant is made, the grant documentation should be prepared and served as normal. ASL 4504 and Uncontrolled if printed

ASL 4505 (for dependants) should also be issued with the grant documentation asking the applicants to enrol as soon as possible. In these circumstances, the case should continue to be monitored until enrolment takes place. When the applicant does enrol, production of the BRP should be triggered as above and the relevant document served.

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15.4 Unaccompanied asylum seeking children It is not necessary to instruct UASCs to enrol prior to a decision being made on their claim. UASC that are granted leave to remain will remain subject to local authority support and therefore can be asked to enrol once their claim has been concluded. 15.5 Appeals In cases where appeals are allowed and UKBA does not challenge that decision the same process will apply. 15.6 Detained Fast Track (DFT) Applicants released from DFT as a result of being granted leave to remain will be issued with a notification letter advising them to enrol their biometrics at a FOS nearest to the address to which they will be released. This letter will be issued by DFT staff. Other DFT cases that are released pre decision should only be requested to enrol if a decision is taken to grant leave to remain.

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16. Accompanying Letters and Information Sheet Covering Letters


From 9th October 2006 only the accompanying letters listed below should be produced. Accompanying letters should no longer be produced for those granted refugee status or HP: ACD.2155, issued to asylum seekers and their dependants granted Discretionary Leave; ASL.2812, issued to dependants of refugees granted (limited) leave in line but who do not want Refugee Status. ACD.2374, issued to those persons unable to make use of a national passport who are granted indefinite leave for reasons other than asylum.

If an applicant is granted asylum or HP, they should be issued an Information Sheet (see Information sheets), with an information sheet covering letter (ASL.3224) attached. When preparing accompanying letters and information sheet covering letters in Nationality: Doubtful, Disputed and other cases, officers should ensure that the appropriate phrase is entered after the claimed nationality on the document in accordance with instructions.

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16.1 Information Sheets 'Your Asylum Decision Information Sheets' are owned by IND and provide information to asylum applicants following a decision on the application. The information sheets contain information about what to do when they have been granted leave or have been refused outright. Council Directive 2004/83/EC of 29th April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (Qualification Directive), came into effect on 9th October 2006. Article 22 of the Qualification Directive provides that member states shall provide persons recognised as being in need of international protection with information in a language likely to be understood by them, on the rights and obligations relating to that status. From 9th October 2006, applicants granted asylum or HP, must no longer be issued with a separate Information Sheet and Accompanying Letter but should instead be issued with one Information sheet, in a language they are likely to understand and in English. This may or may not be the individuals first language, e.g. an individual may be able to understand a second language and it would therefore be reasonable to expect then to be issued an Information sheet in that language. The revised asylum and HP Information Sheets are an amalgamation of previous Information Sheets and Accompanying Letters. They contain important information relating to the immigration status of the individual and also include information about employment, welfare and support, active review and travel abroad. The codes of the new Information sheets are as follows and the English versions are available on the Document Generator: ASL.3225, issued to asylum seekers granted Refugee Status; ASL.3226 issued to asylum seekers granted Humanitarian Protection; Uncontrolled if printed

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The following Information sheets should be issued to applicants granted DL or refused outright. These information sheets should only be issued in English and the appropriate accompanying letter should also be issued. ASL.2171 issued to asylum seekers granted Discretionary Leave; ASL.2172, issued to UASCs granted Discretionary Leave; ASL.2174 issued to asylum seekers who have been refused outright ASL.2175 issued to UASCs who have been refused outright

When producing an ASL.3225 or ASL.3226, officers will also need to produce an ASL.3224 (Information Sheet Covering Letter) from the document generator, which should be attached to the Information sheet. It is essential that this covering letter is attached to the Information Sheet as this letter includes the individuals personal details. If issuing a translated version of the Information Sheet, officers should also ensure that they update CID case notes with details of the language of the document issued. Below is a summary of the Information Sheets and the availability of languages. Translated Information Sheet Languages Information Sheet Grant of Asylum (ASL.3225) Information Sheet Grant of HP (ASL.3226) Information Sheet Grant of Asylum & ILR (ASL.3227) For AIU use only X X X X X X X X X X X

Tigrinya Somali Amharic Arabic Urdu Swahili Tigre Dari Farsi Kurdish Sorani French

X X X X X X X X X X X

X X X X X X X X X X X

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16.2 Covering Letters The following is a guide to which covering letter should be produced ASL.2167, issued for asylum seekers granted Refugee Status; ASL.2169, issued to asylum seekers granted Humanitarian Protection; ASL.2168, issued to asylum seekers granted Discretionary Leave; and ASL.1069, issued to asylum seekers granted Discretionary Leave.

16.3 Notification Letters Social Service Notifications (UASC cases only) When an Unaccompanied Asylum Seeking Childs claim has been determined, the decision maker should notify the applicant and the representative as well as the social services department who is responsible for the care of the child using ASL.1950 "Social Services Notification letter". Two copies should be produced, signed and dated, one should be attached to the file, and one placed on the file aside ready to be issued by the unit serving the decision. Refugee Council Notification Letters (UASC non compliance refusals only) When an Unaccompanied Asylum Seeking Childs claim has been refused on the grounds of non compliance, the Refugee Council should be notified using ASL.2206 "Refugee Council Notification letter". Two copies should be produced, signed and dated, one should be attached to the file. The other copy should be placed in the envelope, with recorded delivery details on the file aside ready to be issued by the unit serving the decision. Delivery details including the address and the other part of the Recorded Delivery label should be place on the minute sheet where indicated. This action can usually be completed by a team support officer.

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16.4 Immigration Fingerprint Bureau Notification Letter Where asylum is granted and has been classified as a port case (or dependant/s are port cases) the Immigration Fingerprint Bureau will need to be notified so that they can block the record on their Eurodac database. Eurodac is a database of European asylum seekers. This is used in Third Country cases to determine whether an applicant has made a claim for asylum in other member states. Officers should email the 'IFB Mailbox' on Poise with the details of the applicant, and any dependants using the standard outlook template attached.

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17. Notifying LEOs of Grants of Leave and Disposing of Illegal Entry Papers
If case is either a De-Facto or Notified illegal entrants the following instructions should be followed: 17.1 If Illegal Entry Papers have been Served If the applicant has been served illegal entry papers then the LEO that the case was dispersed to have to be notified of the outcome so they can note their records and cancel any reporting restrictions where necessary. Prepare 2 copies of ACD.1225 (Memo to LEO). The LEO to whom the case was dispersed can be found on file, for example on an ISE 334. Include dependants as necessary. Sign and date. Attach 1 copy to file and send 1 via internal mail. Note: the EDD are not a LEO and cannot process the memo. Their function is to draft illegal entry papers and disperse cases to the LEOs.

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17.2 If illegal Entry Papers have been Drafted on File but Not Served Prepare 2 copies of ACD.1225 and action as above. Additionally, cross through file copies with the appropriate wording, DL, HP, ILR granted: Not Served, with the exception of IS126 (P) and IS355. Dispose of duplicate copies through the classified waste disposal system.

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17.3 Carriers Liaison Notification Letter The Immigration (Carriers Liability) Act 1987 provides for a charge to be levied on the owners or agents of a ship or aircraft where a person requiring leave to enter (i.e. not a British Citizen or other national of the European Economic Area) arrives in the UK: without a valid passport or other acceptable travel document; or without a valid visa if he belongs to one of the visa nationalities listed in the Immigration Rules; or without a DAT (Direct Airside Transit) visa if he is a national of one of the countries listed in the Immigration (Transit Visa) Orders 1993 & 1995 and is transiting the UK; The Channel Tunnel (Carrier's Liability) Order 1998 extends the ICLA to passengers arriving through the Channel Tunnel on certain international trains.

However, where a charge has been incurred by a carrier in respect of a passenger (and any dependants) who is recognised as a refugee under the 1951 United Nations Convention and the 1967 Protocol relating to the status of refugees, it is the Government's policy to refund the charge, if it has been paid, or to waive it, if it has not yet been paid.

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This does not extend to grants of Humanitarian Protection or Discretionary Leave. Therefore, if asylum is granted and has been classified as a port case (or dependant/s are port cases) the Carriers Liaison Section will need to be notified. For on entry ('port') applications that are granted asylum, officers should produce one copy of the CLA Checklist [ASL.0704] Part A only. This is so that staff based in the CLS can complete the document and their actions Information Sheets

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18. Handling Valuable Documents at the Decision Stage


Section 17 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 confers on the Secretary of State the power to retain passports and other documents. The Act reads: Section 17 retention of documents Where a document comes into the possession of the Secretary of State or an immigration officer in the course of the exercise of an immigration function, the Secretary of State or an immigration officer may retain the document while he suspects that: a person to whom the document relates may be liable to removal from the United Kingdom in accordance with a provision of the Immigration Acts, and retention of the document may facilitate the removal.

Section 17 came into effect on 1 December 2004. For guidance on how to handle and store valuable documents see Document Retention.

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18.1 Handling NINo Applications at the Decision Making Stage Officer Actions at the Decision Stage Where the applicant has applied for a NINo during the substantive interview, provided the correct NINo actions were completed following the interview there is no further action to take with the NINo application. The NINo application should remain on the case file in the sealed A4 envelope. Officers should have completed the NINo checklist which forms part of the interview record. Decision making officers should complete the NINo prompts where indicated on the 'Decision Making' minute sheets. For further guidance on handling NINo applications see Procedures for issuing National Insurance Numbers (NINo) to asylum claimants granted leave in the United Kingdom

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18.2 Preparing Supplementary Information Documents and Leaflets for the Service of Decision Following discussions with various other departments, all asylum units are required to issue additional information leaflets when they prepare an asylum decision for dispatch. The leaflets are: AVR leaflet - this leaflet informs applicants with outstanding asylum claims how they can return home.

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Job Centre Plus Leaflet - this is a new leaflet prepared by Job Centre Plus which explains to applicants granted leave how they can access benefits and find work. (It would not be appropriate to issue these to UASCs under the age of 16.) Integration Loan Scheme application form - Integration loans are available to those over the age of 18 granted refugee or humanitarian protection status and their respective dependants. The Scheme is designed to aid integration into UK society by providing interest-free loans to enable the purchase of items and services that facilitate integration. Grant Asylum JCP leaflet (excluding under 16 year old UASCs) Integration Loan Scheme application form (excluding those under 18) Refuse asylum, grant HP JCP leaflet (excluding under 16 year old UASCs) AVR leaflet Integration Loan Scheme application form (excluding those under 18) Refuse asylum and HP, grant DL JCP leaflet (excluding under 16 year old UASCs) AVR leaflet Refuse outright AVR leaflet
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The leaflets are all available in a variety of different languages but not all the leaflets are available in the same languages. If the leaflet is not available in the preferred language, an English version should be produced instead. It should be noted that the AVR leaflet in the revised format is only available in English. Translated versions in the revised format are currently being produced, but in the meantime, the old translated versions can still be issued. These can be obtained through the AVR team. Below is a summary of the leaflets and the availability of languages. Language Leaflet AVR (old)
(Outright refusals of asylum, and grants of HP & DL)

AVR (new)
(Outright refusals of asylum, and grants of HP & DL)

JCP
(Grants of asylum, HP and DL)

Integration Loan application form


(Grants of asylum and HP)

Albanian Amharic Arabic Chinese

X X X Uncontrolled if printed

X X X

Dari English Farsi French Kinyarwanda Kurdish (Kurmanji) Lingala Ndebele Pashto Portuguese Punjabi Romanian Russian Shona Somali Kurdish (Sorani) Spanish Swahili Tamil Turkish Urdu Vietnamese

N/A - use new version X X

X X X X X X X X X X X X X X X X X X X

X X X X

X X X X X X

Where the leaflets are stored electronically, local operational managers can decide whether to prepare stocks of leaflets or for officers to print them off when required. Asylum teams will be responsible for maintaining stocks of leaflets.

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19. Updating IND Records


19.1 Sign Off Actions Prior to the Service of Decision The decision maker should record the decision in their personal records, and Team support should note any daily outcome records where applicable.

19.2 Sending the Case File for Service of Decision All the required documents, including passports where appropriate (consult caseworker), should be placed in a clear plastic sleeve attached uppermost on file. The uppermost document in the sleeve should be ACD.2561 which should be completed as far as possible ensuring that the date the decision is to be served by is clearly visible. If the date has passed, the form should be marked accordingly

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20. Minute Sheets and Checklists


20.1 What are minute sheets? Minute sheets are instructional guides for asylum officers advising which decision documents and paperwork to produce. It is important for officers to follow minute sheets accurately in order to ensure that the correct decision paperwork is issued to applicants.

20.2 Instructions for Preparation and Completion of the Decision Making Minute Sheets For standard cases (ie excludes NSA, Active Review, KosEx, detained cases) When ready to implement a decision, select the HO reference on CID, select the correct case, and then select the Document Generator by clicking on the Doc Gen icon on the top left hand side of the screen. Select the appropriate minute ACD.2898 Asylum Claim - Grant Leave to Enter or Remain OR ACD.2899 Asylum Claim - Refuse Outright) Once selected, the auto merge function will be initiated and it the relevant CID data will be merged into the minute sheet. Check the details which have been auto merged. If correct, continue to prepare the minute sheet on screen by selecting the relevant Drop-Down Lists values and entering text in the Entry Fields (which appears in red text). This includes the immigration status of the application, the immigration decision type and document reference numbers of stock letters being issued. There are prompts to aid decision makers determine which stock letter to prepare. (See below). For outright refusals it is essential that the correct immigration status is identified as this aids the unit serving the decision. If the merge items are incorrect the CID data should be amended and new papers produced. There is an additional table to aid caseworkers who are unsure about whether there is a right of appeal against a decision or which section of a right of appeal is triggered.

If there are dependants add the relationship (number should be merged) and immigration status details where prompted Complete the preparation of the minute sheet, ensure that there are no further entry fields to complete or drop down lists to insert. Once all fields have been completed, print minute sheet (Decision maker will have to enter details by hand see 13 below). Follow printed minute sheet to complete all actions necessary for making decision where actions or documents are optional (indicated by text [Y][n/a]) cross through option to show which option was not required - or circle option that is required. Uncontrolled if printed

Write initials in box to right-hand side of action/document to show that it has been completed and who completed it - this includes indicating whether an action is deemed 'not applicable'. (Whoever decides an action is n/a must initial the box) If Non-compliance refusal: prepare and print ASL.2900 Non-Compliance Refusal Checklist. This identifies why the case is non compliant and directs the decision maker to the appropriate RFRL. This should be prepared on screen and completed in addition to the standard minute sheet. When prompted, arrange for draft documents to be proofread and ensure proofreading officer signs minute sheet. When decision making officer has completed all required actions they should complete the SIGNATURE, NAME/INITIALS, DATE, Asylum Team/LCTand Telephone No. details at the end of the form The decision making officer should pass the case file and minute sheet to a support officer to complete outstanding actions necessary for making a decision. Support officers should complete the remainder of the documents which do not have any initials in them. Where actions or documents are optional (indicated by [Y][n/a]) cross through option which is not required - or circle option that is required. This will help samplers and auditors to determine if actions have been overlooked or if they were not applicable. Actions which do not have the [Y][n/a] options are mandatory requirements and must be completed and initialled in all cases. When support officer has completed all outstanding actions they should complete the NAME/INITIALS details at the end of the form. Team support (or decision maker) should make one final check on the minute sheets to ensure that all initial boxes have been completed. This will indicate that all of the relevant actions have been carried out. Any blank boxes should be double-checked to ensure that an action has not been overlooked. Officers should then proceed to decision service.

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21. Instructions for Preparation and Completion of the Service of Decision Minute Sheets
For standard cases (ie excludes NSA, Active Review, Kosex, detained cases) When ready to serve a decision, select the HO reference on CID, select the correct case, and then select the Document Generator by clicking on the Doc Gen icon on the top left hand side of the screen. Select the appropriate minute sheet ACD.2917 Refuse Asylum Grant Discretionary Leave for One Year Or Less ACD.2918 Refuse Asylum Grant Discretionary Leave for More Than One Year ACD.2919 Refuse Asylum Grant Humanitarian Protection ACD.2920 Grant Asylum ACD.2921 On Entry (Port) Refuse Asylum ACD.2922 De Facto Illegal Entrant or Overstayer Refuse Asylum ACD.2923 Notified Illegal Entrant Refuse Asylum ACD.2924 In Time After Entry Refuse Asylum Once selected, the auto merge function will be initiated and it the relevant CID data will be merged into the minute sheet. The separate tick boxes for each document has been replaced with an instruction to confirm that all documents are contained on file. (if any documents are missing, they are instructed to contact the unit to tell them what is missing). However the use of tick boxes is still required to identify the particulars of the case. This will then direct the officer to what documents should have been included on file. Check the details which have been auto merged. Once all fields have been completed, print minute sheet Follow printed minute sheet to complete all actions necessary for serving the decision. Decision service minute sheets also contain [Y][n/a] optional actions. Write initials in box to right-hand side of action/document to show that it has been completed and who completed it. The actioning officer should make one final check on the minute sheets to ensure that all initial boxes have been completed. This will indicate that all of the relevant actions have been carried out. Any blank boxes should be double-checked to ensure that an action has not been overlooked. When serving officer has completed all required actions they should complete their details (NAME/INITIALS, DATE, UNIT) where indicated at the end of form. Where supporting officers have aided completion of all outstanding actions they should complete the NAME/INITIALS details at the end of the form. (This will mainly be used by New Asylum Model asylum teams, rather than ACD ADSUs)

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Additional notes minute sheets have never been grade orientated. However in cases where an action must be carried out by a certain grade (eg warranted officers authorising a grant of leave to enter to port dependants, this must be done). The decision making officer should pass the case file and minute sheet to a support officer to complete outstanding actions necessary for making a decision. It is recommended that the NINo Update letter should be prepared by the NINO coordinator/ or officer within the CRD. This could either be the AA or the AO

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22. Guide to Checklists


Checklists are basic aide memoirs to ensure officers have followed procedures accurately. 22.1 Non compliance Please refer to ASL.2900 (Non compliance checklist) 22.2 Service on file Please refer to ACD.2686 (for Outright refusals) and ACD.2834 (for Grant of Leave) 22.3 NINo Checklist Please refer to the last page of the SEF Interview record ASL.1123 (NINo Checklist)

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23. Audit Actions


Team support should check all the documents before proceeding to serve decisions. The officer should select the relevant 'Service of Decision' minute sheet and check that all of the listed documents listed in the 'audit' section are present, including the NINo application. Where errors are identified, the file should be sent back for the appropriate amendments to be made.

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24. Serving Decisions


24.1 Delay Decision Service to Applicants in Initial Accommodation (IA) Where an applicant, currently placed in Initial Accommodation (IA) is granted leave (refugee status, HP or DL), case owners must delay service of the vignette (whether in an Immigration Status Document (ISD) or passport) until the subject has been moved from IA to S95 accommodation. Case owners must regularly check CID/ASYS, and once the move to S95 has taken place the vignette can be served.

24.2 Serving Decisions in Person (Case Owners) When the decision package is ready to be served in person Case Owners should arrange for a 'Decision Service Event' to be booked. Officers are required to Prepare 2 copies of ASL.2941 (Decision Service Event Record) and should prepare the documents so that they can be presented and explained to the applicant. Both copies of the record should be taken to the event. After the decision has been served in person, officers should ask the applicant to sign 2 copies of ASL.2941 (Decision Service Event Record), giving 1 copy to the applicant, and placing the remaining copy on file. Officers should record their initials where indicated on the minute sheet. The Decision Service Event checklist assists and provides guidance to Case Owners during the decision service event. For further information (See Decision Service Event - Granted Leave/ Outright Refusal) 24.3 Serving Decisions by Post (Case Resolution Directorate) When the decision package is ready to be served, officers should place the decision documents bundle in an A4 envelope and write the last known address of representative, or applicant if not represented, on front of the envelope. A 1 st class delivery label should be attached to the envelope which should then be sealed and dispatched by 1 st class recorded delivery. The delivery address and officers initials should be recorded where indicated on the service of decision minute sheet. There is also a space to attach the recorded delivery label on to the minute sheet.

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25. Serving Notice of Decisions on File


25.1 Background to Serving Decisions on File Prior to 1 April 2003 decision paperwork should have been produced, but not issued, in cases where the applicant was not represented, had provided no correspondence address, and we did not know where they were living. This was because the time for appealing against a decision under the Immigration and Asylum Appeals (Procedure) Rules 2000 did not start until the applicant actually received the notice of decision: and if the notice was not received, then appeal rights were never exhausted. The service of the immigration decision was therefore recorded as pending, although the decision on the asylum claim itself was effective from the date it was recorded. However, under the 2003 (Procedure) Rules, effective from 1 April 2003, the appeal period starts when the notice of decision is served. Consequently the Immigration (Notices) Regulations 2003 (Statutory Instrument 2003 Number 658) were drafted to provide that, where an applicants whereabouts or place of abode is unknown in circumstances where the decision could not, prior to 1 April 2003, be served at all, it could now be served on file. The service on file provision does NOT apply to applicants if a representative appears to be acting for them unless it is impossible to serve the documents on the representative (for example if the representative is prohibited from acting as such by section 84 of the 1999 Act). In such an instance, if an address has not been supplied for the applicant, if possible the representative should be contacted and asked for the applicants address. Regulation 4 of the Immigration (Notices) Regulations 2003 provides that the decision maker must give written notice to a person in respect of any appealable immigration or EEA decision. A notice given to a representative is taken to have been given to the person. Note that if a representative replies that (s)he is no longer acting for the applicant, service is still valid so long as the representative did not so advise IND beforehand. The papers may then be sent direct to the applicant if that is possible, advising the date they were served on the representative. Effort put into advising the applicant of the decision at this point can help to reduce the chance of an out-of-time appeal being made and allowed to proceed at a late stage in the removal process. A number of different methods of serving notice are provided; which method is appropriate will depend on the circumstances. In the vast majority of cases, service by post will be valid, even if the documents are returned. Service on file is a last resort when the claimant cannot be traced. Regulation 7 reads as follows: 7. - (1) A notice required to be given under regulation 4 may be (a) given by hand; (b) sent by fax; (c) sent by postal service in which delivery or receipt is recorded to:(i) an address provided for correspondence by the person or his representative; or (ii) where no address for correspondence has been provided by the person, the lastknown or usual place of abode or place of business of the person or his representative.

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(2) Where (a) a person's whereabouts are not known; and (b) (i) no address has been provided for correspondence and the decision-maker does not know the last-known or usual place of abode or place of business of the person; or (ii) the address provided to the decision-maker is defective, false or no longer in use by the person; and (c) no representative appears to be acting for the person, The notice shall be deemed to have been given when the decision-maker enters a record of the above circumstances and places the signed notice on the relevant file.

25.2 Where There is only a Record of Fax Number Where a fax number alone has been provided by the applicant all validated dispatch paperwork should be transmitted to the fax number provided. The fax transmission report should be kept and attached to file. Refusals of asylum served by fax are always valid as long as the fax report on the file records that the fax transmission to the number provided was successful. In addition to the usual paperwork, a letter requesting that the applicant provide the UK Border Agency with a current address (either for correspondence or of the place of abode) should also be transmitted.

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25.3 Preparation of Papers for Service on File Decision makers should use stock checklist sheet ACD.2686 (for outright refusals) showing that all the conditions necessary for service on file set out in Regulation 7, paragraphs (1) and (2) have been met, before proceeding further, and attach it to the left hand side of the file. Decision makers should use stock checklist sheet ACD.2834 (for grants of leave), showing that all the conditions necessary for service on file have been met, before proceeding further, and attach it to the left hand side of the file. Although the decision paperwork may not be dispatched, all appropriate copies of documents should nevertheless be prepared. Once produced, the applicants copies should be placed in a clearly labeled clear plastic document wallet attached to the right-hand side of the file as the uppermost item rather than being left loose on top of the attached papers. A minute stating Decision served on file: do not issue papers to applicants without referring to instructions, should also be placed in the wallet as the uppermost item, and on the lefthand side of the file. The papers placed on file will remain there until such time as the applicant re-establishes contact. The file copies of documents should be attached to the file in the usual way. Where files need to be referred to CRD to prepare paperwork, on completion of the relevant documentation by CRD the applicants copies should be placed in the document wallet on the right-hand side of the file, leaving the minute as the uppermost items. Uncontrolled if printed

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25.4 Applicants Re-establishing Contact after a Decision is Served On File If an applicant re-establishes contact either directly or through his representative after the decision has been served on file, how the case will be handled depends on where and how contact is re-established. However, in all cases the applicant should be given a copy of the notice and the details of when and how it was given (i.e., by a notice placed on file) as soon as practicable. In the case of an outright refusal, this is in accordance with Regulation 7 (3) of the Immigration (Notices) Regulations 2003, which states: (3) Where a notice has been given in accordance with paragraph (2) and then subsequently the person is located, he shall be given a copy of the notice and details of when and how it was given as soon as is practicable. This must be done regardless of whether further submissions are made at the time the applicant makes contact. It will be the responsibility of the unit which comes into contact with the applicant or their representative to ensure that the decision documentation is issued to them as soon as practicable. Where leave has been granted to the applicant, they or their representative should be informed that a consequence of the service on file is that their leave commenced from the date the decision was served on file and that their right to NASS support expired twentyeight days after service. Caseworkers should note that more than one dispatch event can be recorded on CID. Accordingly, when the decision paperwork is dispatched to an applicant or their legal representative, this should be recorded separately on CID. 25.5 Decisions 'Served on File' Between 26 July 1993 and 31 March 2003 Immigration Notices Regulations prior to the introduction of asylum appeals and procedure rules on 26 July 1993 allowed for service on file when an applicants whereabouts were unknown, and this service triggered the period for appealing. These regulations continued to apply to non-asylum appeals. However, the Lord Chancellors Asylum Appeals (Procedure) Rules 1993 provided that the start of the period for appealing on asylum grounds was when the notice of decision was received so service on file was not provided for. Therefore, service of decision technically remains outstanding on any asylum decision served on file between 26 July 1993 and 31 March 2003 unless the claimant has since been traced and given formal service. 25.6 Determining Whether Valid Service on File Took Place Officers should note that if it is discovered at a later point that at the time of the decision the Home Office had the address of the applicant, or of the representative of the applicant, and that representative was not prevented from acting by section 84 of the 1999 Act, then the decision to serve on file is invalid.

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25.7 Handling Cases Previously Served on File or Where Service was Invalid If an applicant re-establishes contact and the file shows that the decision made on his or her claim was served on file on or after 26 July 1993, but before 1 April 2003, or it is discovered that invalid service took place, the decision should not be served. The decision will need to be reviewed as decisions which remain unserved. Caseworkers should note that the decision will date from the current date. Where the original decision was to grant asylum, this decision should be reviewed in light of the current situation and the appropriate decision for the current circumstances should be made, taking into account policy considerations and country information. If the case no longer merits the granting of asylum, but another form of leave or the refusal of the claim, that decision should be implemented. If the case still merits the granting of asylum, it should also be implemented. Whatever the decision to be served is, all decision documentation on file should be replaced with current decision documentation, and the previous documentation disposed of. A record and explanation of these actions, including what the original decision was and when it was made, should be placed in a minute on the file and in the case notes on CID. Caseworkers should also update CID. However, attention will also need to be made to potential human rights claims resulting from the length of time the applicant has spent in the country and any ties they may have established.

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26. Unserved Decisions


26.1 What is a Served Decision ? Officers can establish if a decision on file has been served by, for example:

Checking the implementation minute sheet on the left-hand side of the case file. If a decision has been dispatched the address and/or Recorded Delivery number should have been recorded (officers should note that the format of minute sheets has changed since their introduction, and that up to the late 1990s, file minutes were often handwritten). Checking subsequent correspondence on file. If it makes reference to the asylum decision having been received, officers can be satisfied that the decision has been served. Checking Case Information Database (CID). Details of dispatched decisions are contained in the Key Document Tracking screens (refer to the relevant Business User Reference Guide (BURG) for further guidance).

It is essential to look at the case file as well as CID when establishing whether a decision has been served. If the officer is satisfied that the asylum decision has not been served, officers should first determine whether the decision is still appropriate, review and renew the decision as appropriate and arrange for the service of decision, checking whether a reliable address exists. This also applies to dependants refused asylum in line with the main applicant. If a reliable current address is not available, officers should determine whether it would be appropriate to serve the decision on file. Back to Background to UKRPs 26.2 What is an Unserved Decision? Usually, once an asylum decision is made, the decision paperwork is dispatched by the officers within the Case Resolution Directorate or Case Owners in Regional Asylum Teams. The decision is deemed as having been served when the applicant has been notified. There may, however, be circumstances where a decision has been made but has not been served.

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26.3 Circumstances Which May Lead to the Decision not Being Served The following is a non-exhaustive list:

The decision was dispatched but has been returned undelivered without valid service having taken place (caseworkers should note that the return of undelivered documents does not mean valid service has not taken place). For full guidance on what constitutes valid service please refer to the Immigration (Notices) Regulations 2003, more specifically regulation 7 Service of Notice The Home Office case file has gone astray en route from the decision-maker to the member of staff responsible for implementing the decision. The case file was sent to port to serve the decision in on-entry applications (pre-ADSU), service did not take place, and the Home Office file remained in ACD to await service of Uncontrolled if printed

the decision by the IS, or certain Fast Track cases where the IS did not serve the decision and returned the file to ACD to serve.

The case file has been forwarded to an erroneous location (e.g. layby) before service of the decision. The case file was temporarily lost after the decision was made but before service. Service Pending cases. Recorded Delivery packages, which have not been delivered.

For previous grants of Exceptional Leave - the ACD case file had been returned by the Asylum Decision Service Unit (ADSU) to the Case Management Unit (CMU) for amendments to be made to paperwork, and as a result of which it was not served before 1 April 2003.

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26.4 Unserved Outright Refusals Officers should first check the tables below to determine whether an outright refusal is still appropriate according to the age of the decision and merits of the case. For unserved non compliance decisions see separate table.

26.5 Table for Unserved Refusals Age of decision Under 4 weeks Action Arrange service of the decision in accordance with current implementation procedures Review Reasons For Refusal Letter (RFRL) and all decision documentation to ensure it is still in line with current country policy/templates. If the decision is still in line with current country policy/templates, and does not require amendment, arrange service of the decision in accordance with current implementation procedures. Ensure covering letter ACD.1069 includes the following apology/explanation of delay wording which should be inserted where appropriate: Your/Your clients claim has been recorded as determined on date. However, because of an administrative error/because we did not have a reliable address/free text we were unable to serve the decision at that time. Your/Your clients claim has been reviewed prior to service of the decision but no changes have been deemed necessary. I apologise for this delay and any inconvenience it may have caused. Minute file and CID Person Notes to confirm that: The decision of date has been reviewed no amendment necessary. If the decision is not in line with current country policy/templates, or requires amendment for some other reason, but is still an outright refusal where possible obtain electronic copy of RFRL for amendment, if necessary forwarding RFRL to typing bureau using blue form (available from your team support). Redraft RFRL, using Document Generator where available, incorporating current Uncontrolled if printed

4 weeks 1 year

paragraphs, amend both date at head of letter, and date of decision at foot to current date, and change date of outcome on CID. Where original documents were produced on Document Generator, ensure that their dispatch status is listed as stopped, and reference is made to these instructions in the reasons box. Arrange service of the decision in accordance with current implementation procedures, replacing documents using current document templates and date. Dispose of original decision documents. If the decision is not in line with current country policy/templates, or requires amendment for some other reason, but is still an outright refusal where possible obtain electronic copy of RFRL for amendment, if necessary forwarding RFRL to typing bureau using blue form (available from your team support). Redraft RFRL, using Document Generator where available, incorporating current paragraphs, amend both date at head of letter, and date of decision at foot to current date, and change date of outcome on CID. Where original documents were produced on Document Generator, ensure that their dispatch status is listed as stopped, and reference is made to these instructions in the reasons box. Arrange service of the decision in accordance with current implementation procedures, replacing documents using current document templates and date. Dispose of original decision documents.

If the decision is not in line with current country policy/templates, or requires amendment for some other reason, and now merits a grant of Refugee Status/Humanitarian Protection (HP)/Discretionary Leave (DL), then grant in accordance current implementation procedures, using current document templates, on Document Generator where available, and current date. For NSA cases the recommendation to grant leave needs to be authorised by an accredited SCW. Dispose of original decision documents. Arrange for outcome to be deleted from CID. Where original documents were produced on Document Generator, ensure that their dispatch status is listed as stopped, and reference is made to these instructions in the reasons box. Once this is implemented, update CID with new outcome and arrange for dispatch. Arrange for outcome to be deleted from CID. Where original decision documents were produced on Document Generator, ensure that their dispatch status is listed as stopped, and reference is made to these instructions in the reasons box. Once this is implemented, review RFRL and all decision documentation to ensure it is still in line with current country policy/templates (none of the templates in use before 1 April 2003 should now be served). 1 year +

If the decision is still an outright refusal where possible obtain electronic copy of RFRL for amendment, if necessary forwarding RFRL to typing bureau. Redraft RFRL, on Document Generator where available, incorporating current paragraphs, amend both date at head of the letter, and date of decision at foot to current date, and record date of outcome on CID. Arrange service of the decision in accordance with current implementation procedures, replacing documents using current document templates and date. Dispose of Uncontrolled if printed

original decision documents.

If the decision now merits a grant of Refugee Status/HP/DL, then grant in accordance with current implementation procedures, using current document templates, on Document Generator where available, and current date. For NSA cases the recommendation to grant leave needs to be authorised by an accredited SCW. Dispose of original decision documents. Update CID with new outcome and arrange for dispatch.

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26.6 Unserved Non-Compliance Refusals Non-compliance refusals fall into two categories. Substantive non-compliance refusals have sufficient evidence on the file, in the form of a completed SEF or statement, to merit consideration during refusal in an ACD.0015 RFRL. Non-substantive non-compliance refusals have no evidence on file submitted by the applicant to be considered, so an ACD.1000/ACD.1005 RFRL is used. However, on reviewing the file, a SEF or statement may come to light, in which case the case should be reconsidered using the evidence, which had previously not been taken into account. When re-serving a non-compliance decision caseworkers should always check that the decision is still appropriate to the country situation and other factors important to the claim, even if the decision was made within the last three months. Any consequent amendments necessary prior to the specified 3 and 6 month guidelines are at the decision makers discretion.

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26.7 Table for Unserved Non-Compliance Refusals Age of decision Under 4 weeks Action Arrange service of the decision in accordance with current implementation procedures. Review RFRL and all decision documentation to ensure it is still in line with current country policy/templates. How we deal with unserved noncompliance decisions of this age depends on the circumstances of delayed service. If the delay in service of the decision principally lies with the claimant themselves (e.g. they have absconded, or refused to submit to interview) and the decision is less than 6 months old, it is generally appropriate to serve the decision to the claimant or their legal representatives, if it is still in line with current country policy/templates, in accordance with current implementation procedures. Ensure covering letter ACD.1069 includes the following apology/explanation of delay wording which should be inserted where appropriate: Your/Your clients claim has been recorded as determined on date. However, because of an administrative error/because we did not have a reliable address/free text we were unable to serve the Uncontrolled if printed

4 weeks 1 year

decision at that time. Your/Your clients claim has been reviewed prior to service of the decision but no changes have been deemed necessary. I apologise for this delay and any inconvenience it may have caused. Minute file and CID Person Notes to confirm that: The decision of date has been reviewed no amendment necessary.

If the decision is over 6 months old, consideration should be given as to whether the claimant should be invited to attend interview. This will depend on the individual merits of the case and the scale and circumstances of previous non-compliance (in instances where this is unclear Senior Caseworkers should be consulted to discern whether invitation to interview is appropriate). If it has been decided that the claimant should be invited to interview, arrange for outcome to be deleted from CID and arrange for an interview to take place (in ACD this means forwarding the file to Asylum Co-ordination Unit 1 Team A (ACU1 Team A) (Croydon) or Asylum Co-ordination Unit 11 (ACU11) (Liverpool)). Where original documents were produced on Document Generator, ensure that their dispatch status is listed as stopped, and reference is made to these instructions in the reasons box. Dispose of original decision documents. If it is considered that the original decision should be served, officers should where possible obtain electronic copy of RFRL for amendment, if necessary forwarding RFRL to typing bureau. The RFRL should be redrafted, on Document Generator where available, to incorporate current paragraphs. Amend both date at head of the letter, and date of decision at foot, to current date. Arrange for outcome to be deleted from CID, and when implemented update CID with new outcome. Where original documents were produced on Document Generator, ensure that their dispatch status is listed as stopped, and reference is made to these instructions in the reasons box. Arrange service of the decision in accordance with current implementation procedures, replacing documents using current document templates and date. Dispose of original decision documents. If the delay in service of the decision principally lies with ACD (e.g. the case file has been lost or misplaced), the same principles as above should be followed. Under 3 months, the non-compliance decision should generally be served, following the procedure outlined above. Beyond that, the claimant should be invited to interview. In such cases arrange for outcome to be deleted from CID and for an interview to be booked. (In ACD this means forwarding file to ACU1 Team A (Croydon) or ACU11 (Liverpool)). Where original documents were produced on Document Generator, ensure that their dispatch status is listed as stopped, and reference is made to these instructions in the reasons box. Dispose of original decision documents. Non-compliance refusals that are over a year old should never be served. Arrange for the outcome to be deleted from CID and for an interview to be booked. (In ACD this means forwarding file to ACU1 Team A (Croydon) or ACU11 (Liverpool)). Where original documents Uncontrolled if printed

1 year +

were produced on Document Generator, ensure that their dispatch status is listed as stopped, and reference is made to these instructions in the reasons box. Dispose of original decision documents.

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26.8 Unserved Grants of Leave On 31 March 2003 the policy to grant exceptional leave to enter or remain in the United Kingdom ceased. However, there may be some circumstances where although a decision to grant exceptional leave before 1 April 2003 has been recorded as determined, the decision has not been served and the applicant has therefore not been formally notified of this decision. In the past, it has been practice in such situations to retrospectively grant exceptional leave to enter or remain. However, officers should no longer, under any circumstances, grant ANY leave retrospectively. 26.9 The Anufrijeva Judgement In the House of Lords judgement on Anufrijeva, it was found that a decision does not have legal consequences for the applicant until the applicant has been notified, which under the Immigration (Notices) Regulations 2003 is two working days after the service of the decision, or until reasonable steps to notify the applicant have been taken. Until this happens no decision has been notified and as a result there are no legal consequences. The judgement of Anufrijeva has prompted a review of the procedure to follow, where a decision has been made on a claim and it has been recorded as determined, but the Home Office has failed to serve the decision and therefore the applicant has not been notified of it. Note: Where a decision to grant leave was never served, this leave in essence does not exist, as no leave has in fact been granted. If the decision was not communicated in any way to the applicant, we are free to review the decision/case before notification as we feel is appropriate. It should further be noted that the case is still recorded as determined upon the completion of the Notices of Decision. The recording of the outcome on CID is for the maintenance of internal government records only, and does not imply that the applicant has been notified or that the determination has taken effect. The main question that must be considered before taking action is whether the applicant has a legitimate expectation that they will be granted limited leave.

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26.10 What is a Legitimate Expectation A legitimate expectation arises when an individual has been given either an explicit or implicit assurance either orally or in writing or by way of an endorsement in their passport Uncontrolled if printed

about their immigration status when the material facts were known to the officer giving the assurance. Thus, in cases where the determination was recorded, but the decision was not served, there will be no legitimate expectation unless the Home Office (or another government department or body) has notified the claimant of that decision. If the claimant was notified of the decision this may have raised a legitimate expectation that they would be granted exceptional leave and therefore should be fully investigated.

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26.11 Identifying 'Legitimate Expectation' Claims Identification of a legitimate expectation, whereby an applicant has been given reason to believe that they would be granted leave, is usually ascertained through their own or their representatives communication with the Home Office. This should be evident from correspondence on the file, generally either stating that the applicant has been informed that they have been granted exceptional leave, and querying the situation, or stating that the applicant has been informed that they have been granted exceptional leave and requesting the forwarding of their status documents. Where records show that a decision to grant exceptional leave was made but never served, but there is no indication on file that the applicant or their representatives is aware of this, officers investigating whether or not a legitimate expectation has been raised should be cautious when corresponding with the applicant or their representatives so as not to inadvertently raise a legitimate expectation. Where there is no indication that the applicant or representatives are aware of the intention to grant leave, the case should be reviewed on its own merits. These circumstances will need to be addressed on a case-by-case basis. Where an applicant or their representative alleges that they have been informed that the applicant has been granted exceptional leave, officers should investigate these claims. In particular, they should establish the terms of the leave that the claimant alleges they have been granted. Questions that should be asked of the claimant or representative include: When does the applicant allege that the decision was made? When does the applicant allege that the decision was communicated? What are the terms of the alleged leave? In what way does the applicant allege that the decision was communicated (e.g. by letter, telephone call), and in what circumstances? (e.g. letter relating to support, answer to specific query, passing remark) Who does the applicant allege communicated the decision? What documentary evidence has the applicant received?

The applicant should be asked to forward any relevant evidence. However, officers must make it clear that they will need to consider the assertion, check the file, and are neither accepting nor denying that such leave has or will be given but will respond when the position has been checked and fully clarified. Officers must ensure they do not create any legitimate expectation in the mind of the applicant or their representative that leave will be Uncontrolled if printed

given. In all instances caseworkers must consult with their Senior Caseworker (SCW) when handling a potential legitimate expectation case.

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26.12 Considering Whether a Legitimate Expectation has been Raised The following is a non-exhaustive list of factors that need to be taken into account in considering whether to accept that a legitimate expectation has been created. Origin of information supplied to applicant Information relating to immigration status can only come from officials with actual or apparent authority for notifying that immigration decision. Therefore, we may not be bound to information supplied by a Department without this responsibility. It is not possible to say whether a Department has apparent authority because it depends on the context and consequently cases need to be assessed individually. For instance, the National Asylum Support Service (NASS) is part of the Home Office and so will reasonably be regarded by the applicant as representing IND and therefore we are likely to be bound by the information they supply. Other Departments or bodies will not generally have apparent authority but if the Department purports to have received the information from IND and that is plausible e.g. Benefits Agency, NASS provider or Local Authority then it may be regarded as having authority. In deciding whether or not to accept whether another Department has apparent authority, the officer should always balance and take consideration of any other evidence of how a legitimate expectation may have arisen. Documents and wording Consideration should be given as to how the information was supplied to the applicant. Before 1 April 2003, status letters were the only documents which conferred a grant of limited leave. Other letters such as cover letters cannot, in themselves, grant leave. In addition to this, the wording of the letter should be noted. Does it actually state that leave has been granted, or does it just suggest that leave will be granted at some future date?
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Timeliness of our response Undue delay in responding to applicants to clarify any queries they have about information they have received or their immigration status could make a claim for legitimate expectation harder to refute than if we had responded within a reasonable period of time. In the absence of any clarification from IND, the applicant may have come to rely on the incorrect information. Timing of contradictory information If the applicant received contradictory information from the Home Office indicating a grant of leave and an outright refusal, the time that passed between these two events may be significant. For example, if the applicant was informed that they had leave and they were able to rely successfully on this information for a period of several years before being informed that their claim had in fact been refused then a legitimate expectation may have been created. Uncontrolled if printed

Nature of the claim It should be considered whether it is possible or reasonable that in the particular context the applicant received information which may give rise to a legitimate expectation. For example, it is not possible that somebody could legitimately expect that they would be granted asylum when they had not actually made a claim for asylum, and where there is such a clear error no legitimate expectation will arise. It is important to note that the circumstances set out above are not exhaustive and are intended purely as an indication of the types of factors which need to be taken into consideration when determining whether a legitimate expectation has arisen. In cases which do not meet these criteria, the Asylum Policy Unit (APU) may be contacted if it is believed that a legitimate expectation may arise. Alternatively if an operational query about a legitimate expectation, the Asylum Processes and Procedures Unit (APPU) can be contacted.

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26.13 Where it is Not Accepted That a Legitimate Expectation Exists Where the evidence does not establish that a legitimate expectation has arised officers should reconsider the case in line with current information and country policy, and implemented accordingly. The file should also be minuted clearly explaining the history of the case and the subsequent review.

A suggested paragraph to insert into the covering letter is as follows: We note that you/your representatives/your client informed the Home Office on date that you/your representatives/your client believe/believes that you/your client have/has a legitimate expectation of a grant of limited leave. After considering all the information available to us, it has been concluded that no legitimate expectation has been created and that you/your client have/has no entitlement to leave on this basis. A decision has been made on your/your clients claim in accordance with current country information and policy guidance. However, it must be noted that CID will still record the outcome of the case as if the initial decision had been served. This must immediately be addressed to prevent the Home Office or other government departments or agencies with access to CID from communicating the outcome recorded on CID to the applicant, and thereby potentially creating a legitimate expectation. The CID record must be deleted.

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26.14 Where it is Accepted That a Legitimate Expectation has Arisen The cases where a legitimate expectation has been created will fall within the following two categories: Where the Intended Period of Leave has Since Expired The case now falls to be reviewed and reconsidered upon its current merits in line with current country policy. Uncontrolled if printed

Officers should follow the appropriate implementation instructions. Officers should first update CID for the main applicant and any dependants treated in line Officers should prepare a covering letter using the following wording, selecting the options appropriate to the facts: We note that you/your representatives/your client were/was informed/notified/it was indicated on date that you/your client would be granted/were/was entitled to number of months/years of Exceptional Leave to Enter/Remain. However, no such leave was granted and any such entitlement has now expired. We have therefore considered whether you/your client have/has any current entitlement to leave and a decision, which accompanies this letter, has been made on your/your clients claim in accordance with current country information and policy guidance.

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Where the intended leave still has a period remaining The applicant and their dependants should be granted Humanitarian Protection (HP) or Discretionary Leave (DL), as appropriate to the merits of the claim (see Instructions on Humanitarian Protection and Discretionary Leave).

If the case does not fall naturally under one of the HP or DL provisions, it should be treated as DL (other reason) in accordance with the published Home Office Instructions on Discretionary Leave. The caseworker must reissue the RFRL and all decision documentation, ensuring that it is in line with current country policy and templates, and in accordance with current instructions. Noting that:

None of the templates in use before 1 April 2003 should now be used or served. The officer must therefore type up the RFRL afresh, using current paragraphs and standard wording, and any consideration paragraphs from the original RFRL which are still appropriate. Both the date at the top of the RFRL and the recorded as determined date must be the current date. All decision documentation must bear the current date. This limited leave should be dated to expire on the same date as in the original determination. For example, if the provisional period of ELTR was to expire on the 01/01/06, HP/DL which has been granted to honour the legitimate expectation should also be granted until this date. Officers should update appropriate databases Officers should prepare a covering letter using the suggested following wording: We note that you/your representatives have been told by an official that you would be granted leave to enter/remain until date because of the particular circumstances of your case. The decision that accompanies this letter honours that undertaking. Uncontrolled if printed

Note: There is no obligation to grant the applicant leave sufficient to ensure that they have an immediate right of appeal where the applicant has a period of a year or less of leave remaining to be honoured. In some cases it may not be clear exactly what leave should be granted, and for how long. In such instances officers should discuss with senior officers.

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27. Appeals
Under Section 83 of the Nationality, Immigration and Asylum Act 2002, a person who has been refused asylum but granted leave to enter or remain can appeal against the asylum refusal, but only if the leave granted exceeds 12 months. This includes leave which has previously been granted. A person refused asylum but granted leave for a period in excess of a year could appeal immediately; it would not matter that the applicant had not completed 12 months' leave. An appeal under section 83 arises in two main cases: When a decision to grant leave to someone who has been (or is being) refused asylum will take the total period of leave granted to over a year, and When a decision is made to refuse asylum to a person who has already been granted leave for over a year.

"Leave" for the purposes of section 83 means any kind of leave that has been granted. It is not limited to leave granted outside the rules. For instance, a UASC who had previously been granted 9 months leave to enter as a student, and then granted 5 months Discretionary Leave after being refused asylum would be entitled to a right of appeal under section 83 of the Act. This is because the leave granted totals over one year. 27.1 Determining Whether an Immigration Decision Attracts a Right of Appeal (Dependants) Refer to separate instructions for guidance on Dependants. 27.2 Determining Whether a Case Should have Assured Representation at Appeal As a general rule, any CRD case that may be considered complex or where it is considered necessary for the case to be represented should be referred for Assured Representation. There are twelve criteria, which require Assured Representation at appeal. As cases determined within the Regional Asylum Teams are presented by a Case Owner dealing with the case, there is no need for Regional Asylum Team decision makers to decide if the case should have assured representation.

27.3 Completing Notice of Appeal Deadlines for Appealing As part of the changes for the Unified Appeals System (Single Tier) that commenced on the 4 April 2005, two boxes have been included on most decision notices and Notice of Appeal forms. If the applicant has been granted any leave that exceeds 12 months (Rights of Appeal in Asylum Claims) a Decision Notice and Notice of Appeal form should be completed. On the Decision Notice, the first box indicates the date of service, and must be endorsed with the date by which the notice is deemed to have been served. The second box, where present, indicates the "deadline for appeal the date by which an appeal must be returned to the Asylum & Immigration Tribunal - and must be endorsed with this date.

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This tells the Asylum & Immigration Tribunal whether the appeal is in time or not when it comes to them, as the appellant is required to send them the notice of decision. It also informs the appellant when they should submit the appeal by, to ensure that they submit it in a timely manner, and this prevents any confusion about when the deadline is. In all cases, the date of service must be entered into the date of service box. In some case types, for example Non-Suspensive Appeals (NSA), it will not be appropriate to include a deadline for appeal box in the decision notice, nor to enter a deadline for appeal date on the decision notice or Notice of Appeal form. Where there is no right of appeal, there is no requirement to produce or complete a Decision Notice from the ACD or IS series, or a Notice of Appeal form. An accompanying letter will still be produced for each decision, and where leave of a year or less, or Refugee Status is being granted this function is performed by the United Kingdom Residence Permit vignette.

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27.4 Determining 'Deemed Service' Dates and Deadlines for Appeal Officers must use the Appeal Period chart to determine the date of service, and the deadline for appeal (where appropriate). The Appeals chart is divided into pages for service in person, service by post (in UK and overseas for NSA cases).

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27.5 Where the Decision is Being Served by Post (Worksheet: Post UK Appeal): The first column on the chart corresponds to the actual day on which the packet goes into the post. The calculations take account of the fact that the day the packet goes into the post may be a Saturday, Sunday or bank holiday. The first day of the two day service period is the next working day. The computer program that does this has a list of excluded days. Having found the service day it calculates the latest appeal date the same way. Likewise if the address is flagged as in Scotland or Northern Ireland the appropriate sets of excluded days are the Scots or Irish ones. The first column of the chart corresponds to the next business day (i.e. not a Saturday, Sunday or bank holiday) on which the decision will enter the post. This will be the day on which the decision is placed in the out tray provided it is placed in the out tray before 3pm, when the last postal pick up is. If the decision is placed in the out tray after 3pm, then it will not enter the post until the next business day and it is that date that must be selected from the first column in order to calculate the date of service and deadline for appealing. Ensure that the appropriate column on the chart is chosen to reflect the correct case type and method of service. Endorse the decision notice by entering into the Date of service box provided at the end of the decision notice the date on the chart in the Date served (2 wd) column that corresponds with the day that the decision will enter the post. Endorse the decision notice by entering into the Deadline for appeal box provided Uncontrolled if printed

(where appropriate) at the end of the decision notice the date on the chart in the to appeal by (10 wd) column that corresponds with the day that the decision will enter the post. Repeat for the Notice of Appeal form. For example, based on the Appeal Chart: A case decided on Monday 4 April 2005 might be placed in the out tray by the team dispatcher before 3pm on Tuesday 5 April 2005. It will enter the postal system on Tuesday 5 April 2005. Therefore the service date and the deadline for appeal should be calculated from Tuesday 5 April 2005. The service date for a suspensive, non-detained case served by 1st class Recorded Delivery post would be 7 April 2005, and the deadline for appealing would be 21 April 2005. Where a decision is placed in the out tray on a Friday, for example 8 April 2005, it will not enter the postal system until Monday 11 April 2005. The service date and the deadline for appeal should therefore be calculated from Monday 11 April 2005, giving the dates of 13 April 2005 and 27 April 2005, respectively.

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27.6 Where the Decision is Being Served by Hand (in person) or Fax (Worksheet: Hand or Fax, UK appeal): The first column of the chart corresponds to the day on which the decision is being served on the applicant or their representative. Ensure that the appropriate column on the chart is chosen to reflect the correct case type (i.e. Detained or Non-Detained) and method of service (i.e. hand/fax). Endorse the decision notice by entering into the Date of Service box provided at the end of the decision notice the date on which the decision is being served. Endorse the decision notice by entering in the Deadline for Appeal box provided (where appropriate) at the end of the decision notice the date on the chart in the Detained by hand/fax (5 wd) or Not detained by hand/fax (10 wd) columns that correspond with the day that the decision will be served. Repeat for the Notice of Appeal form.

For example, based on the Appeal Chart: A case served on the claimant or their representative by hand or fax on Monday 4 April 2005 will have the deadline for appeal date of 11 April 2005 if the applicant is detained. 27.7 Submitting Re-documentation Applications Once a decision to refuse leave has been made and served on an applicant, an application for documentation may be submitted to RGDU. 27.7 Wrong Immigration Decisions Guidance yet to be published. 27.8 Claims of Lost or Stolen Documents For claims of lost or stolen documents please see Dealing with lost, stolen, unserved or incorrect Status Documents. Uncontrolled if printed

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27.9 Requests for Amendments to Status Documents For requests to amendments to status documents please refer to Dealing with lost, stolen, Unserved or incorrect Status Document.

27.10 Managing Files on Which Action is Complete Once it is certain that a case requires no further action, the case owner should action the file as directed in the Asylum Instruction on File Management.

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Glossary
Term ACD: 1000 ACD: 1005 ACD.0015 ACD.1047 ASL.1006 ACD.2376 ACD.1989 ACD.1990 ACD.1991 ICD.2100 ASL.2151 ASL.2152 ASL.2373 ASL.2150 ASL.3224 ACD.2155 ASL.2812 ACD.2374 ASL.3225 ASL.3226 ASL.2171 ASL.2172 ASL.2174 ASL.2175 ASL.2176 ASL.2169 ASL.2168 ASL.1069 ASL.1950 ASL.2206 ACD.1225 IS126 (P) ASL.2671 ACD.2561 ACD.2917 ACD.2918 ACD.2919 ACD.2920 ACD.2921 Meaning Refuse Non-Compliance Failure to Attend Screening Refuse Non- Compliance Failure to Complete SEF Reasons for Refusal Letter Rejection of Asylum Claim Dependants Decision Letter Consideration Minute PF1-Section 82 Right of Appeal PF1- Section 83 Right of Appeal Dependant with Suspensive Section 82 R of A Vignette Implementation ProForma Immigration Status Document Immigration Status Document Humanitarian Protection Immigration Status Document Discretionary Leave Immigration Status Document Information Sheet Covering Letter Accompanying Letter Discretionary Grant of Limited Leave to Enter or Remain Accompanying Letter Grant of Leave to Enter or Remain Accompanying Letter Grant of Indefinite Leave to Enter or Remain Decision Information Sheet - Asylum Decision Information Sheet Humanitarian Protection Decision Information Sheet Grant of Limited Leave Decision Information Sheet Grant of Limited Leave UASC Decision Information Sheet Refusal of Asylum Decision Information Sheet Refusal of Asylum Decision to Remove an Illegal Entrant or other Immigration Offender Determination of Asylum Claim Humanitarian Protection Determination of Asylum Claim Discretionary Leave Determination of Asylum Claim Refusal of Asylum Notification of Outcome to Social Services Refugee Council Notification Proforma Memo to LEO of Asylum Case Outcome IOs Report (for IE Notices Served by post) Notification of Eligibility for Integration Support UKRP Vignette Record Sheet Decision Service Minute Sheet Refuse Asylum Grant Discretionary Leave for 1 Year or Less Decision Service Minute Sheet Refuse Asylum Grant Discretionary Leave for More than 1 Year Decision Service Minute Sheet Refuse Asylum Grant Humanitarian Protection Decision Service Minute Sheet Grant Asylum and Leave to Enter or Remain Decision Service Minute Sheet On Entry (port) Refuse Asylum Uncontrolled if printed

ACD.2922 ACD.2923 ACD.2924 ASL.2900 ACD.2686 ACD.2834 ASL.1123 ASL.2941 ACD.2834

Decision Service Minute Sheet De Facto Illegal Entrant or Overstayer Refuse Asylum Decision Service Minute Sheet Notified Illegal Entrant Refuse Asylum Decision Service Minute Sheet In Time After Entry (In Country Refuse Asylum Non Compliance Refusal Checklist Service on File Checklist Outright Refusal Service on File Checklist Grant of Asylum, HP or DL SEF (Interview) SEF submitted Decision Service Record Service on File Checklist Grant of Asylum, HP or DL

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APPEALS NOT LODGED BY THE APPEAL BY DEADLINE


Table of Contents

Introduction Deadline for Lodging an Appeal Checking Whether an Appeal has been submitted by the Appeal by Deadline Where no Appeal Has Been Lodged by the Appeal by Deadline Considering Whether a Late Appeal should be accepted AIT notify Home Office of their decision Where AIT Agree to Hear the Appeal Where Removal Directions Have Been Set Within 5 Calendar Days Where Removal Directions have been set for more than 5 Calendar Days Where AIT Refuse to Accept the Late Appeal

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Introduction
This section sets out guidance for Case Owners and team support on the processes and procedures to be followed where a claim for asylum has been refused and there is a right of appeal under sec 82 or 83 of the Nationality, Immigration and Asylum Act 2002, but no appeal has been lodged by the appeal by deadline date.

Application of this instruction in respect of children and those with children


Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the UK Border Agency to carry out its existing functions in a way that takes into account the need to safeguard and promote the welfare of children in the UK. It does not impose any new functions, or override existing functions. Officers must not apply the actions set out in this instruction either to children or to those with children without having due regard to Section 55. The UK Border Agency instruction Arrangements to Safeguard and Promote Childrens Welfare in the United Kingdom Border Agency sets out the key principles to take into account in all Agency activities. Our statutory duty to children includes the need to demonstrate: Fair treatment which meets the same standard a British child would receive; The childs interests being made a primary, although not the only consideration; No discrimination of any kind; Asylum applications are dealt with in a timely fashion; Identification of those that might be at risk from harm.

For guidance on appeals that have been submitted within the deadline see Asylum Instruction on Asylum Appeal Hearings - Overview For further information and guidance on Immigration Appeals see Immigration Directorates' Instructions Chapter 12

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Deadline for Lodging an Appeal


Where a person has been refused asylum, and the consequent immigration decision attracts a suspensive (in-country) right of appeal under section 82 or 83 of the Nationality, Immigration and Asylum Act 2002, any appeal must be lodged within 10 working days of the service of decision. If the immigration decision attracts a non suspensive (out of country) right of appeal under section 82 of the Nationality, Immigration and Asylum Act 2002, any appeal must be lodged within 28 working days of the service of decision. However, where the appellant is in detention under Immigration Acts at the time the immigration decision was served, any appeal must be lodged within 5 working days of the service of decision The deadline for submitting the appeal is clearly recorded on the appeal documents and will have been brought to the attention of the claimant if the asylum decision was served in person by the Case Owner. Any appeal must be lodged directly to the Asylum and Immigration Tribunal (AIT).

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Checking Whether an Appeal has been submitted by the Appeal by Deadline


Case Owners should ask the appellant at reporting events whether or not they intend to appeal. The workflow team within each asylum team receives a daily report listing all appeals lodged in respect of cases allocated to the Regional Asylum Teams. The Case Owner will therefore be notified within a day of an appeal being lodged at AIT. Case Owners must check the status of the case with their workflow managers if they have not been notified of an appeal being lodged. APC are responsible for updating CID when an appeal is lodged and Case Owners can confirm, by checking on CID, that an appeal has been lodged.

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Where no Appeal Has Been Lodged by the Appeal by Deadline


Where the appeal by date has passed, and no appeal has been lodged, the file should be held in the hold until 24 days after the RFRL is served to await a possible late appeal. This is to enable us to capture any late appeals. Where no appeal has been lodged after that date, the applicants right to appeal would have been exhausted. The Case Owner should pursue enforcement action and review any asylum support. For further guidance on Enforcement see Asylum Instruction Removal See Asylum Instruction Status Cessation Guidance for further information on discontinuing asylum support. However, should a late appeal be lodged, any enforcement action must be suspended pending a decision on whether the late appeal has been accepted by AIT.

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Considering Whether a Late Appeal should be accepted


Where an appeal is submitted after the deadline, Rule 10 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 specifies that the appeal form must include an explanation for its late submission, together with any written evidence. The application will be considered as a Preliminary Issue by the AIT and the case will be referred to an Immigration Judge within two working days of the appeal being lodged. The Immigration Judge will consider on the papers whether the special circumstances of the case would make it unjust not to hear the appeal. Case Owners should ensure that CID has been updated with the appropriate appeal details. Where a Case Owner has been informed by the appellant or by the representative that a late appeal has been lodged, but it is not recorded in CID, they should contact AIT (Tel: 0845 6000 877) to confirm that a late appeal has in fact been lodged and contact APC, who will update CID accordingly. If an appellant fails to provide an explanation for submitting a late appeal, the AIT may decide to extend time of its own motion, but will otherwise notify the appellant that it treat the notice as being out of time. Where such a notice is given, the appellant may file a written explanation to demonstrate that either the notice was submitted on time or provide an explanation of why it was late. Any evidence must be submitted: Within 3 days, if the appellant is in the UK. Within 10 days, if the appellant is outside the UK.

AIT notify Home Office of their decision


When AIT have made a decision on whether to hear a late appeal, written notification of the decision will be provided in accordance with Rule 10(7) of the Asylum and Immigration Tribunal (Procedure) Rules 2005. The AIT/06 which indicates that the out of time application can progress is sent direct to ADMU who update CID and forward the determination to the Case Owner, who would arrange service. The AIT/07 which indicates that an out of time application has been refused is sent to ADMU, who would forward to the Case Owner, the Case Owner on receipt should consider enforcement action. Both these determinations are served by the AIT on the appellant and fax a copy to the representative. Where the appellant is in detention, AIT notifies appellant via the detention centre as well as any representative and ADMU. Case Owner should regularly check CID to see whether the application has been decided.

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Where AIT Agree to Hear the Appeal


Where the decision is to proceed with the appeal, the Case Owner should, wherever possible, serve the determination on the appellant in person. Where the appellant is in detention, the AIT will arrange for the determination to be served via the detention centre and on any representatives as well as ADMU. Removal Actions must be suspended if the Removal Directions have not been set within the next 5 calendar days and it may not be possible to continue detention. The Case Owner must work closely with UKIS, if the appellant is to be released from detention, contact management arrangements will need to be decided. The Case Owner should be aware that the appellant could apply for bail, see AI on Bail Applications. The Case Owner should: Update the Case Management Plan, Review contact management arrangements Consideration should also be given to whether the appeal process will give rise to any change in eligibility for NASS support. Cancel enforcement proceedings if necessary Remove Appeal Rights Exhausted from CID

A CMR and substantive appeal hearing will be arranged by AIT in accordance with the usual appeal process. The Case Owner should refer to the Asylum Instruction: Asylum Appeal Hearings - Overview

Where Removal Directions Have Been Set Within 5 Calendar Days


Rule 11 of The Asylum and Immigration Tribunal (Procedure) Rules 2005 sets out special provisions for cases where late notice of appeal has been given and removal is imminent. Where Removal Directions have already been set for a date within five calendar days of the date AIT was notified of a late appeal, Operational Support and Certification Unit (OSCU) after receiving notification via the CID data report of a submitted late appeal would consider whether to apply for the case to be heard as urgent tribunal business. OSCU will then inform AIT that Removal Directions have been set for implementation within 5 calendar days. The urgent tribunal business section in AIT takes responsibility for such cases and will arrange for the papers to be put before a Senior Immigration Judge within 24 hours. The Senior Immigration Judge considers on the papers whether the special circumstances of the case would make it unjust not to hear the appeal. Case Owners should liaise with OSCU (Duty officer) to ensure that relevant information is put before the Judge.

Where Removal Directions have been set for more than 5 Calendar Days
In cases where Removal Directions have already been set for a date more than 5 calendar days after the late appeal is lodged, the Case Owners should: Contact OSCU for advice on whether a request can be made to the AIT to consider the matter as Urgent Tribunal Business. Uncontrolled if printed

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Where AIT Refuse to Accept the Late Appeal


Where the Senior Immigration Judge decides that an appeal that has been lodged after the deadline should not be allowed to proceed, AIT will notify OSCU who will update CID and inform the Enforcement Unit dealing with the case or the Case Owner. Case Owners should maintain contact with Immigration Service officers and continue the enforcement process referring to the guidance contained in Asylum Instruction Removal. The applicant is regarded as Appeal Rights Exhausted (ARE). The Case Owner should update CID with the ARE date. The Case Owner should arrange for the service of the AIT decision and proceed with removal arrangements. If the applicant is detained pending removal IS would serve the determination. OSCU should be consulted to ensure that all remaining barriers to Removal have been concluded. For guidance on Removal see Asylum Instruction Removal. Consideration must also be given to whether any asylum support should be terminated. See Asylum Instruction Status Cessation Guidance for further information on discontinuing asylum support.

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Document Control
Change Record
Version 1.0 2.0 3.0 Authors MO JW RA Date 29/01/07 07/01/08 29/10/09 Change Reference Re-formatted to new web friendly format Change to Where no Appeal Has Been Lodged by the Appeal by Deadline Included reference to S55 BCIA 2009 (childrens duty)

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LOST, STOLEN, UNSERVED OR INCORRECT STATUS DOCUMENTATION


Table of Contents 1 Introduction 1.1 Audience and Purpose 2 Decisions 2.1 Post-14/03/04 Decisions 2.1.1 Decision Where the Person has Limited Leave (and was not recognised as a refugee), Discretionary Leave or Discretionary Settlement 2.2 Pre-15/03/04 Decisions 3 Lost, Stolen, or Undelivered Documents 3.1 Dealing with a Claim that a UKRP was Undelivered 3.2 Lost or Stolen Documents 3.3 Action to be Taken in All Cases 4 Requests for New Status Documentation 4.1 Where the Recipient Alleges That Their Personal Details are Incorrect on Their Status Document 4.2 Considering Requests for Changes of Detail on Immigration Status Documents 4.3 Where UKBA Have Made an Error, or Where the Applicant has Changed Their Name Lawfully or Where the UKRP was Originally Issued Without a Photograph 5 Issuing, Re-Issuing or Re-Serving, Status Documentation 5.1 Action required when reissuing a UKRP in a passport or ISD or issuing an ISD in exchange for a status letter 5.2 Re-issued or Re-served ISD or UKRP Where an Error is Accepted in the Original Paperwork 5.3 Replacing Lost or Stolen Status Letter for ISD 5.4 Replacing lost or Stolen ISDs 5.5 Action for Issuing Documents 6 Issuing Or Re-Issuing Status Documentation To Those Over 18 Years Of Age With Discretionary Leave 6.1 Actions Where a Person Seeks Clarification Of Status By Letter 7. Glossary Contacts

1 Introduction
1.1 Audience and Purpose This instruction is intended for the sight of all officers who may be responsible for considering issues relating to immigration status documentation (ISD). The ISD provides details of the applicant, and also indicates the status (Refugee, Humanitarian Protection (HP) or Discretionary Leave (DL)) that the applicant has been given. It is intended to explain procedures regarding lost and stolen status documents, re-served status documentation, requests for new status documentation and requests for new United Kingdom Residence Permits (UKRPs). It does not include the process for re-issuing UKRPs in the event of a lost or stolen national passport and asylum officers should contact the NAM+ Protection Inbox for advice on how to process these types of cases. Issues relating to Home Office issued travel document should be referred to the Travel Document Section.
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2 Decisions
2.1 Post-14/03/04 Decisions All decisions to grant leave made on or after 15 March 2004 should be served with United Kingdom Residence Permits (UKRPs) in passports or on Immigration Status Documents (ISDs), with ISD Accompanying Letters, as instructed in the instruction Issuing Status Documentation. 2.1.1 Decision Where the Person has Limited Leave (and was not recognised as a refugee), Discretionary Leave or Discretionary Settlement Where residence in the UK is for a limited period and/or is discretionary, and is not held alongside refugee status or humanitarian protection or the person is a former unaccompanied asylum seekers (UASC) aged under 18, and a replacement document is being sought, a Biometric Residence Permit (BRP) must also be applied for at the same time as part of a Transfer of Conditions application. A fee will be charged for a Transfer of Conditions application and there will be a requirement for the migrant to enrol their fingerprints and a facial image. See also: 3.3 Action to be Taken in All Cases and Issuing, Re-Issuing or Re-Serving, Status Documentation. For further information, the public should be directed to the web pages at: http://www.ukba.homeoffice.gov.uk/while-in-uk/transfer-visa-to-passport/, or to the UKBA Immigration Enquiries Bureau on 0870 606 7766.
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2.2 Pre-15/03/04 Decisions All decisions to grant leave made before 15 March 2004, but not served, should also be served with UKRPs. If a Personalised Date Stamp (PDS) authenticated status letter has already been prepared, this should be cancelled on file and new paperwork prepared in line with the instruction Issuing Status Documentation.
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3 Lost, Stolen, or Undelivered Documents


3.1 Dealing with a Claim that a UKRP was Undelivered If it is claimed that the UKRP has not been delivered, local records must be checked (if applicable, the relevant office post room) to determine if the letter was despatched. If it was despatched, the Post Office must be contacted to determine if the letter was delivered, and who signed for it. The Royal Mail through their website: http://www.royalmail.com, operate a Track & Trace service that allows for the delivery status of Recorded Delivery items to be ascertained. A copy of the signature should be requested if delivery is disputed and records indicate otherwise. The recipient should be informed that the document has been signed for and invited to respond. (It should be noted that the Post Office does not keep details of recorded deliveries over a year old)
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3.2 Lost or Stolen Documents Where the recipient, or their representative has reported status documentation as having been lost or stolen or they claim that it was not delivered, officers should investigate the claim. See: 3.3 Action to be Taken in All Cases Upon loss or theft of a UKRP, the holder must report the same to the UKBA in a statement giving full details (see below). Only if these points are answered and a satisfactory explanation is received should a replacement UKRP be issued. Applicants claiming that they have lost their UKRP and requesting a replacement must be required to complete and submit a statement to UKBA detailing the following: In what name was the document issued; On what date was the document issued; From what office was the document issued; On what date was the document last seen; On or between which dates do you think the loss/theft (delete as applicable) took place; Brief details of where the loss/theft (delete as applicable) took place; Details of all items lost or stolen on the same occasion; Crime reference number or a website report reference number if applicable; Affirmation: I (name of applicant) confirm that to the best of my knowledge all of the information given above is true and accurate. Should the original document be found or recovered by me or anyone known to me I will return it to the issuing office without delay; Date; Signature of applicant.

3.2.1 Updating Internal Databases with details of lost or stolen Status Documents. The following actions should be taken whenever an applicant reports the loss of a status document: Update the relevant CID notes to indicate the date and circumstances of the loss together with the actions taken; Forward the name, date of birth. and nationality of the applicant, together with the number of the missing UKRP to the UKRP Central Co-ordination Team to ensure that the details are checkable Ensure that the letter informing the UKBA of the loss and any supporting evidence is placed on file and the file fully minuted.

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3.3 Action to be Taken in All Cases Review the evidence given by the recipient, and draft a full minute outlining the investigation undertaken and the reasons for agreeing or refusing to reissue the documents. If there is not sufficient detail to make an informed decision, inform the recipient that further details are required. If in doubt officers should contact a senior officer for advice and minute the file accordingly. Where the officer is satisfied that the status documentation has been lost, stolen, or not delivered, where the person or their dependants have refugee or humanitarian protection status a replacement document should be issued, using the covering letter ASL.2579 Replacement Documents Covering Letter. Those with other forms of immigration status, except former UASCs aged under18 should be advised to make a charged Transfer of Conditions or a No-Time limit application. See: chapter 6 Re-Issuing Status Documentation To Those Over 18 Years Of Age With Discretionary Leave Where the caseworker is not satisfied that the status documentation has been lost, stolen, or undelivered, the case file should be minuted setting out why the caseworker disputes the claim that the documents have been lost/stolen/undelivered. The case file should then be forwarded to their senior caseworker. The senior caseworker should review the minute and documents submitted by the recipient and make their recommendation. If the claim warrants further investigation or it is proposed not to reissue status documents (for instance because the claimed loss is after a successful delivery), advice from NAM+ Protection Inbox can be sought on a case-by-case basis, and where appropriate the case will be referred to LAB. Where the senior caseworker is satisfied that the status documentation has been lost, stolen, or not delivered, before it reached the migrant the caseworker should arrange for a replacement document to be issued and prepare an ASL.2579 Replacement Documents Covering Letter; Details of the original document should be notified to the UKRP UKRP Central Coordination Team; If the document has been lost internally a detailed report should be sent to the Security and Anti Corruption Unit (SACU), who may wish to investigate the loss, depending upon the individual circumstances.

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4 Requests for New Status Documentation


Requests for a UKRP instead of a previously held status letter should only be considered for processing after the status letter has been returned to UKBA. The request for a replacement may be chargeable. See: section 2.1.1 Decision Where the Person has Limited Leave, Discretionary Leave or Discretionary Settlement. And, chapter 6 Issuing Or Re-Issuing Status Documentation To Those Over 18 Years Of Age With Discretionary Leave
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4.1 Where the Recipient Alleges That Their Personal Details are Incorrect on Their Status Document In reviewing requests for ISD amendments officers must take into consideration Council Regulation (EC) No. 1030/2002, which lays down a uniform format for residence permits for third-country nationals. It provides that without prejudice to data protection rules, persons to whom the residence permit is issued shall have the right to verify the personal particulars contained in the residence permit and, where appropriate, to have them corrected or deleted (Article 4). A residence permit is defined as any authorisation issued by the authorities of a Member State allowing a third-country national to stay legally on its territory and so will include all status documentation. This Regulation is binding on the UK. Each claim will have to be taken into consideration on its own merit with any decision based upon the facts of the individual case. The key consideration, in light of the regulation, is whether the recipient had the opportunity to verify their details prior to/and including when the ISD was issued: i.e., whether there has been sufficient opportunity in the asylum process for their details to be verified by UKBA and vice versa (See Considering requests for changes of detail on Immigration Status Documents below).
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4.2 Considering Requests for Changes of Detail on Immigration Status Documents To check if the proposed change is potentially chargeable see: section 2.1.1 Decision Where the Person has Limited Leave, Discretionary Leave or Discretionary Settlement. And, chapter 6 Issuing Or Re-Issuing Status Documentation To Those Over 18 Years Of Age With Discretionary Leave In cases where it is claimed that the ISD has been issued with incorrect details the following points in particular should be considered before deciding on the appropriate action: Are the details given consistent throughout the process? For example, details given by the recipient when they claimed asylum and during the ARC issuing process, in the SEF SelfCompletion, or at the substantive asylum interview, and if appropriate the declaration for National Insurance number, etc.; Are the details consistent with any proof of identity or further documentation provided by the recipient e.g. passport, birth certificate, membership card etc. Where there is real doubt the person should be invited to agree to a biometric check, if enrolled previously; The number of times the recipient has been in contact with the Home Office and could have reasonably been expected to inform us that their details are incorrect. This could include the screening stage, from the SEF self-completion or at the substantive interview, or on a One-Stop Notice and photographs submitted by the recipient;

Previous attempts by recipient or their representatives to amend the recipients details and any response made by the Home Office; Consider the time scale between when status documents were issued and when the request for change of details was submitted;

In cases where requests to change details are to be declined, the letter ASL.2680 Request to Amend Documents must be used and adapted where necessary to outline why the request to change personal details is being declined. If necessary a senior caseworker should be consulted before issuing ASL.2680. In a few cases it may become apparent that the request to change the details of an ISD indicates that leave has been gained by deception, these cases should be directed to a senior officer to consider if cancellation action should be undertaken. Examples include where the identity of the person was the material reason for granting leave and changes to these details wholly undermine the reason why the person has been granted leave, See Cessation, Cancellation and Revocation Guidance. If the applicant or their representative responds insisting upon the change, but provides no new evidence, refer to NAM+ Protection Inbox for further advice.
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4.3 Where UKBA Have Made an Error, or Where the Applicant has Changed Their Name Lawfully or Where the UKRP was Originally Issued Without a Photograph Where status documentation has been issued which contains an error, officers should request all original paperwork (and evidence of a name change where appropriate) and re-issue paperwork in line with Issuing, Re-issuing or Re-serving Status Documents below. No action should be taken until all original documents have been submitted. From the 9th October 2006 we implemented the requirements of European law for all UKRPs to be issued with photographs (point 14 of the Annex to the Council Regulation (EC) 1030/2002 and Article 9 of the same Regulation). Therefore, any UKRPs issued after the Regulation became effective must be issued with a photograph. This means that UKBA will no longer be acting lawfully by issuing UKRPs which do not have a photograph. In cases where the applicant has requested replacement status documentation, this MUST NOT be implemented unless the applicant has submitted four photographs. Where no photographs are on the file, officers should write to the recipient requesting photographs using the returned photograph pro-forma (ASL.2365) as instructed in Issuing Status Documentation.
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5 Issuing, Re-Issuing or Re-Serving, Status Documentation


This section applies to UASCs and those with Refugee or HP status (see chapter 6 for those over 18 years old with Discretionary Leave) 5.1 Action required when reissuing a UKRP in a passport or ISD or issuing an ISD in exchange for a status letter The UKRP should be held where applicable in the applicants passport or in an ISD, depending on the leave issued, as instructed in Issuing Status Documentation. In all cases the officer should check that the person has not been naturalised as a British citizen by checking CID. If it is requested that a UKRP be placed in a valid passport, check the case file and CID to determine whether the person has a Home Office Travel Document (HOTD). If the recipient is in possession of a HOTD, they should be informed that they need to return it before the UKRP can be issued on their passport. Officers should retain the passport until the HOTD is returned. Also, check if refugee status has been granted as it might be appropriate to investigate possible re-availment. See Cessation, Cancellation and Revocation Guidance. See also: section 2.1.1 Decision Where the Person has Limited Leave, Discretionary Leave or Discretionary Settlement
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5.2 Re-issued or Re-served ISD or UKRP Where an Error is Accepted in the Original Paperwork All original status documentation must be requested from the person or their representative. Four recent passport-sized colour photographs MUST be requested for the UKRP if none are available from the file. Further action MUST NOT be taken until all the previous paperwork and the required number of photographs have been received. Once it has all been received, Officers should action the following: Write a consideration minute giving reasons for change; If appropriate update CID with revised details of applicant; Prepare two copies of ASL. 2680 Request to Amend Documents; Generate one ISD - Select the appropriate ISD from: o ASL.2150 Immigration Status Document If replacing a grant of exceptional leave to remain or enter; o ASL.2151 Immigration Status Document Refugee Status; o ASL.2152 Immigration Status Document Humanitarian Protection; o ASL.2373 Immigration Status Document Discretionary Leave; Generate one copy of ASL. 2957 Issue of Immigration Status Document Minute Sheet; Place documents including original ISD, if appropriate, in a clear plastic sleeve attached to file and send file to the decision serving unit, following instructions on the ASL.2957; The decision serving unit will arrange for a new UKRP to be produced by sending it to the Secure Handling Unit who will then spoil the old permit and issue a new one using the original CID case reference number and return the UKRP to the decision serving unit. Asylum Case Owners are expected to complete the decision serving unit issuing action.

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5.3 Replacing Lost or Stolen Status Letter for ISD

If replacing a lost or stolen status letter for an ISD, cross through the file copy and write on it Lost/Stolen - minute dated date. Having given consideration to whether the application is chargeable (see section 2.1.1) the officer should refer to the detailed consideration minute that agrees that the loss/theft has occurred; Record on the Notes field of CID that the status letter (pre ISD document) has been lost or stolen and is therefore cancelled and a summary of consideration minute; Details of the original document should be notified to the UKRP Central Co-ordination Team.

5.3.1 Paperwork to be prepared One ISD - Select the appropriate ISD from: o ASL.2150 Immigration Status Document If replacing a grant of exceptional leave to remain or enter; o ASL.2151 Immigration Status Document Refugee Status; o ASL.2152 Immigration Status Document Humanitarian Protection; o ASL.2373 Immigration Status Document Discretionary Leave. Two ASL.2579 Replacement Documents Covering Letter; Photocopy of Police Report or Crime Reference Number (where there is one) and any other documents submitted in support of loss/theft; One ASL.2957 'Issue of Immigration Status Documents Minute Sheet'; Officers should follow the Actions for Issuing Documents.

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5.4 Replacing lost or Stolen ISDs If replacing ISD, cross through the file copy and write on it Lost/Stolen - see minute dated date. The officer should refer to the detailed consideration minute that agrees that the loss has occurred; Record on the Notes field of CID that the ISD has been lost/stolen and is therefore cancelled and a summary of consideration minute; Details of the original document should be notified to the UKRP Central Co-ordination Team. 5.4.1 Paperwork to be prepared One ISD - Select the appropriate ISD from: o ASL.2150 Immigration Status Document If replacing a grant of exceptional leave to remain or enter; o ASL.2151 Immigration Status Document Refugee Status; o ASL.2152 Immigration Status Document Humanitarian Protection; o ASL.2373 Immigration Status Document Discretionary Leave. Two ASL.2579 Replacement Documents Covering Letter; Photocopy of Police Report or Crime Reference Number (where there is one) and any other documents submitted in support of loss/theft; One ASL.2957 'Issue of Immigration Status Documents Minute Sheet'; Officers should follow the Actions for Issuing Documents, below.

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5.5 Action for Issuing Documents Arrange for a new UKRP to be produced by sending the relevant documents to Secure Handling Unit and if appropriate, arrange for the old version to be spoiled, include a copy of a Police Report or Crime Reference Number (where there is one); When UKRP is returned, photocopy the ISD/Vignette and place on file; Ensure that the following documents are prepared for issue: o ASL.2579 Replacement Documents Covering Letter covering letter; o Endorsed ASL.2150 or ASL.2151 or ASL.2152 or ASL.2373 Immigration Status Document. If issuing by post, dispatch to the representative or applicant at the last known address by recorded delivery. Attach recorded delivery label on the ASL.2957 Issue of Immigration Status Documents Minute Sheet; If issuing in person, ensure that all documents for issue are retained securely on file in preparation for the service event; Follow remainder of instructions on ASL.2957.

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6 Issuing Or Re-Issuing Status Documentation To Those Over 18 Years Of Age With Discretionary Leave
6.1 Actions Where a Person Seeks Clarification Of Status By Letter In line with the policy of improving the security of issued documents, the UKBA no longer provides letters as evidence of immigration status. Where such a request is received the person should be directed to seek independent legal advice where they do not know their status. If the applicant knows their status, but require status documentation to be issued/re-issued they should be directed to apply for; a transfer of conditions, no time limit, certificate of entitlement or a British passport as appropriate. 6.1.1 Transfer of Conditions or No Time Limit. Applicants requiring advice and guidance on making a Transfer of Conditions or No-Time Limit application should be directed to the UKBA web pages, where they may also download an application form, or the advice line on 0870 606 7766. 6.1.2 Nationality or Right of Abode Where the applicant is a British Citizen or is entitled to reside in the UK without restriction they should be directed to the appropriate website for clarification of their further actions. The sites are as follows: General information and links to application forms: UKBA; Applying for a British passport: Directgov; Insufficient documentary evidence to support a passport application: UKBA See also: 2.1.1 Decision Where the Person has Limited Leave (and was not recognised as a refugee), Discretionary Leave or Discretionary Settlement

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7. Glossary
Term ASL.2579 ASL.2680 ASL.2365 ASL.2150 ASL.2151 ASL.2152 ASL.2373 ASL.2957
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Meaning Replacement Documents Covering Letter Request to Amend Documents Photograph proforma Immigration Status Document Immigration Status Document Refugee Status Immigration Status Document Humanitarian Protection Immigration Status Document Discretionary Leave Issue of Immigration Status Documents Minute Sheet

Document Control
Change Record
Version 1.0 2.0 3.0 4.0 5.0 Authors DH DH GL/MK GL GL/JA Date 8/2/07 5/8/08 04/06/09 04/10/10 Change Reference New web style implemented Document Review amendment on who to notify when documents reported lost. Formatting and Update to reflect police practices on lost identifiable documents. Update links Update to charge for transfer conditions for all but asylum and Human rights cases

PROCEDURES FOR ISSUING A NATIONAL INSURANCE NUMBER (NINO) TO ASYLUM CLAIMANTS GRANTED LEAVE TO ENTER OR REMAIN IN THE UNITED KINGDOM.
Table of Contents

Introduction Case Owner Action before the Substantive Asylum Interview Officer Action at the Substantive Asylum Interview Officer action after the substantive asylum interview Immediately Following the Interview While in the Interview Suite On Return to the Unit Action at the decision making stage Decision Maker Team Support Actions Sampling Officer Actions Applying for and issuing a NINo Actions for Units Serving Decisions in Outright Refusal Cases NCU Team Support (within Decision Serving Units) Actions in Grant Cases Department for Work and Pensions (DWP) Action NCU Action Following Reply from DWP

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Introduction
This instruction applies to all asylum staff handling and processing NINo applications. Following a success trial in ACG(N), since 5 April 2004 we have been able to arrange for a claimant to complete an application for a NINo, and if they are granted leave, issue notification of the NINo. This is done after their asylum interview, provided they are granted asylum, Humanitarian Protection (HP) or Discretionary Leave (DL). Previously, if the claimant applied for a NINo, but they were not granted leave, the NINo application form was marked VOID. However, if the asylum claimant successfully appeals against our decision, the claimant will be entitled to a NINo if they have applied at the asylum interview stage. Phase II of the NINo project dealt with the expansion of the process to include these cases. In preparation for Phase II, caseworkers were asked not to VOID the NINo application in any circumstances unless there is no right of appeal against the decision to refuse asylum, HP or DL (e.g. if we are certifying under s96).

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Case Owner Action before the Substantive Asylum Interview


From the information held on the case file and A-CID, the officer should complete as much of the NINo application section of the interview record as possible (see pages 2-4), prior to the interview. Pages 1-4 should be completed electronically, as they will need to be legible in order for a NINo to be issued. IN ORDER TO COMPLY WITH THE REQUIREMENTS OF THE DATA PROTECTION ACT, COPIES OF THE NINo APPLICATION FORM MUST NOT BE STORED ON INDIVIDUAL (U) DRIVES.

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Officer Action at the Substantive Asylum Interview


During the asylum interview, the officer should: 1. Read out the explanation of procedures on page 1 of the combined SEF form. 2. Check the details on pages 2-4 of the SEF form (the NINo application) with the claimant. When confirming the claimants personal details on the NINo application, the officer should obtain any details that have not yet been recorded. Any additions or alterations should be recorded IN BLOCK CAPITALS, and initialled by the claimant, but changes should not normally be made to the claimants personal details unless it is clear that an error has been made by UK Border Agency. Once the application form has been checked, the interpreter should read out the declaration on the form. The claimant should then be asked to sign and date pages 2-4 of the SEF (Interview) form. If the claimant does not sign both pages of the application form the NINo application will be rejected by the DWP. 3. If the claimant refuses to sign the NINo application form, or does not want to apply for a NINo, then no further action should be taken during the interview. The officer should not try to persuade the claimant to sign the NINo application if they are reluctant to do so, or are advised not to by their representative. However the officer should minute the case file to this effect in case of future queries. 4. If the claimant does not attend an interview the front sheet of the interview record should be crossed through, and 'no show' written across the page and also on the NINo checklist at the end of the SEF Interview Record. The remainder of the interview record together with the NINo application should be destroyed and disposed of in a confidential/secure waste bin/sack. The officer should update the CID Notes field to indicate the claimant did not attend the interview and therefore did not apply for a NINo (see Action at the decision stage).

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Officer action after the substantive asylum interview


Immediately Following the Interview While in the Interview Suite The officer should photocopy pages 1-7 of the combined SEF (Interview) form and any continuation sheets used, and give the copy to the claimant or representative as appropriate at the end of the interview. Page 8 of the combined SEF (Interview) form should not be copied, as it is for Home Office/DWP/Inland Revenue use only. Page 9 should also not be copied as this is the NINo checklist and is for internal use only.

On Return to the Unit On return to their decision making unit, the officer MUST prepare the NINo application by completing the actions listed in Part One of the NINo Checklist (which appears as the final page on the SEF - Interview record). It is extremely important that the NINo application is correctly prepared on the case file. If this is not completed correctly it causes delays for the claimant to obtain a NINo and may lead to a complaint. If officers are unsure about how to correctly prepare a NINo application they must contact their Team Leader or APPU. Team Leaders are required to check the presence and quality of a NINo application as part of their routine sampling of case files (see Sampling Officer Actions). Where a NINo was not applied for at the interview, the officer must update the CID notes field to reflect this.

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Action at the decision making stage


Decision Maker In cases which are being refused outright and do not have a right of appeal (i.e. certified under s96), officers should void the NINo application by putting a line through the form. In case where leave is being granted or where an outright refusal does attract a right of appeal, provided that the NINo application has been prepared properly in accordance with the NINo checklist, there is no further action which needs to be taken at the decision stage. The NINo application can be stored on file. It will then be used by the NINo co-ordinator and submitted to DWP either at the service of decision stage where leave is granted or by the Appeals Implementation Unit following a successful appeal (where cases are dealt with by Presenting Officer Units). The officer should ensure that the application is sealed within the brown envelope and that the 'N' is marked on the front of the case file. It is essential that the CID notes are updated to reflect that a NINo has been prepared. Where a NINo was not applied for at the interview, or there are other reasons why the NINo application has not been prepared on file, the officer must update the CID notes field to reflect this. When implementing decisions, officers using standard 'Decision making minute sheets' are required to complete the NINo section. This ensures that it is clear whether or not a NINo is prepared and if not, the reasons for it. Below is a guide for decision makers using standard minute sheets where no NINo application has been prepared. It is important that the 'N' is endorsed on the front of the case file and the CID notes are updated as this will enable the Appeals caseworker to establish that there is a NINo application contained on the file. Keeping the NINo application in the sealed brown envelope will ensure that it is as secure as possible and the integrity of the form is not compromised when the form reaches the appeals stage. No other means of storing the NINo application is acceptable. Units handling asylum and NINo applications are responsible for ensuring adequate stocks of brown envelopes are supplied. Reason for 'no NINo' Drop down item in minute Explanation sheet Claimant has a NINo No - Claimant has NINo In some cases a claimant may already have been issued with a NINo. Claimant is a UASC No - UASC Children are not routinely interviewed in connection with their application, so will not normally be offered the opportunity to apply for a NINo. However the NINo application is contained on the Children's interview record for cases where they are interviewed. Claimant did not apply No - Not applied for at IV Some applicants do not want to for a NINo at the apply for a NINo so won't sign the interview form. Sometimes if a representative is not present they advise their clients not to sign anything - so this could include the NINo application. Uncontrolled if printed

Claimant did not attend an Interview

The interview predates the combined NINO application process Application is Void

There was administrative error

an

Other reasons why the NINo application was not processed

If someone is invited to attend an interview, and they do not turn up, they lose their chance to apply for a NINo. (If they subsequently have a successful appeal, there will be no NINo application to process). Alternatively someone may not have been invited to attend an interview because they failed to return a SEF or their address is unreliable (and they do not have a representative). No - IV predates NINo Some claimants may have been process (04/04) interviewed before the combined asylum and NINo interview was introduced. The process began on 5 April 2004. No - Void (S96 no roa) Claimants who are refused outright may have their cases certified under s96 - e.g. where dependants later claim in their own right. The NINo application is marked 'void' as there is no avenue to appeal and so no other opportunity to submit the application. No - Admin Error The interviewing officer may have made a mistake on the form, which cannot be rectified and so would invalidate it. If this option is being used, add further details to in the text box. No - Other There could be other reasons why no NINo was prepared. If this option is being used, add further details to in the text box.

No - Not Interviewed

Team Support Actions Support staff should check that the NINo section of the minute sheets have been completed. Where a NINo has been prepared, staff should check that the checklist has been completed and that responding actions in the checklist (5-7) have also been completed. Where no NINo is prepared, staff should be satisfied that there is a valid reason for this before arranging for the service of decision. This will act as a secondary quality check and will prevent delay of cases being returned to rectify errors at the service of decision stage. Staff based at Oakington should ensure that the case file is sent to the decision serving unit, in good time so that the NINo application can be processed.

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Where cases are being sampled (e.g. for LDQM purposes), the NINo actions MUST also be checked. Where a NINo has been prepared, officers should check that the checklist has been completed and that responding actions (5-7) have also been completed. Where no NINo is prepared, sampling officers should be satisfied that there is a valid reason for this before returning the file for other actions to be completed.

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Applying for and issuing a NINo


Actions for Units Serving Decisions in Outright Refusal Cases When files are received in the decision serving unit (which may or may not be the same unit as the decision making unit), officers dealing with outright refusal cases should check whether a NINo application has been prepared on file as instructed in the 'audit' section of the standard 'Service of Decision' minute sheets. Officers should check the 'Decision Making' minute sheets, where there is no NINo application prepared on the case file as the reasons for this should have been clearly recorded using one of the drop down field options on the minute sheet. If this has not been completed, officers should check with the decision making unit to ensure that an error has not been made. Staff should be particularly alert to cases where the NINo application may be contained on another sub, e.g. in Oakington cases where the main sub is attached later in the process.

NCU Team Support (within Decision Serving Units) Actions in Grant Cases NCUs (which may be based in decision serving units) have the additional responsibility to check the quality of NINo applications and to liaise with the decision making unit in cases where there are errors on the application (e.g. failure to sign interviewing officer declaration) and returned to the unit where practical to do so. Mistakes which cannot be rectified should not be returned, but the NCU will be responsible for preparing and issuing an NINo Update Letter (ASL.2560), explaining why the NINo application is not being processed. Staff should also update the CID Notes field to indicate that the application cannot be processed and the reason why. When the quality checking actions have been completed and the application can proceed, staff should prepare the NINo application for dispatch by completing the actions listed in Part Two of the NINo checklist. After this has been completed, the application is ready to be submitted to DWP and should be submitted in accordance with local procedures. Staff should be alert to cases where the NINo application may be contained on another sub, e.g. in Oakington cases where the main sub is attached later in the process. If the NINo is not available by Day 60, or at the Decision Service Event, the decision should be served, and the NINo should be dispatched separately at a later date. When serving decisions, officers are required to complete the NINo section of the standard implementation 'Service of Decision' minute sheets (where these minutes sheets are being used). Alternatively, officers serving decisions in person may consider arranging another event in order to serve the NINo directly to the claimant. The NINo Update letter (ASL.2560) can be adapted as necessary to inform the claimant of the progress of their NINo application. NCUs should contact the DWP where appropriate, in order to check the progress of an individual NINo application.

Department for Work and Pensions (DWP) Action The DWP will check their records to establish whether the claimant has already applied for a NINo. If they have no record of the claimant, they will return a letter to the NCU. If they have already issued a NINo, they will return a letter. If the NINo cannot be processed, the DWP will also advise us of this by letter. The process is the same whichever letter is sent by the DWP. Uncontrolled if printed

The DWP letter should be sent to the claimant. In order to comply with the Data Protection Act, a copy of the letter should not be retained on the case file.

NCU Action Following Reply from DWP When confirmation of the NINo is received from DWP (or other information received by them), NCU staff should: 1. Update the NINo DWP SPREADSHEET v.ADSU and note the date the reply was received (there is no need to record the NINo on the spreadsheet). 2. Prepare the NINo Update Letter (ASL.2560) enclosing NINo confirmation. 3. Pass the NINo Update Letter and NINo confirmation to team support to be served to claimant/representative with the decision if possible*. *In cases where the decision has already been served, (i.e. the NINo was not available at the time of service of decision), the NINo and 'NINo Update Letter' (ASL.2560) should be dispatched to the claimant or representative by Recorded Delivery. The Recorded Delivery details should be added to CID. The NINO DWP spreadsheet is available on the units individual drives. In all cases (except UASCs) where leave is being granted a NINo Update Letter MUST be prepared. Where a NINo is enclosed the letter will act as a covering letter to it and if there is no NINo it will inform claimants the reason why it is not enclosed. This will clarify the situation for the claimant and will prevent any future confusion. Officers preparing the NINo Update Letter should check their records to determine whether DWP has responded to UK Border Agency, and where no NINo has been prepared, officers should check the Decision Making minute sheets to ascertain the reason why and select the relevant option within the letter. When serving decisions, officers are required to complete the NINo section of the standard implementation 'Service of Decision' minute sheets.

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Document Control
Change Record
Version 1.0 2.0 Authors SL SK Date 7/02/07 03/11/08 Change Reference New web style implemented Update branding only

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This AI is currently being revised.

FURTHER SUBMISSIONS
Table of Contents 1 introduction 1.1 Purpose of Instruction 1.2 Use of Terms 1.3 Application of this instruction in respect of children and those with children 2 Definition 3 Submitting further submissions 3.1 Application process and proforma 3.2 Cases previously managed by the Case Resolution Directorate 3.3 Cases being managed by Asylum Teams in the Regions 3.4 Further Submissions made at port 3.5 Exceptional Cases Inability to travel Ongoing Judicial Review or other litigation Removal Directions have been set or the individual has been accepted on a charter flight Individual comes to light through enforcement action 3.6 Further submissions made before 13 October (CAAU & regional) 3.7 Action to take when further submissions are submitted by post 4 Paragraph 353 of the Immigration Rules 4.1 Introduction 4.2 Three - Stage Process 5 Making a decision under Paragraph 353 5.1 Consider whether leave should be granted (stage 1) Inviting applicant to interview Conducting the interview 5.2 Decide whether further submissions constitute a fresh claim for asylum(stage 2) The first limb of the test - Has the material already been considered? The second limb of the test does the material create a realistic prospect of success? Exceptional Circumstances 5.3 Consider whether exceptional circumstances should prevent removal(stage 3) Character, conduct and associations including any previous criminal record and the nature of any offence of which the applicant has been convicted Compliance with any conditions attached to any previous grant of leave to enter or remain and compliance with any conditions of temporary admission or immigration bail where applicable Length of time in the United Kingdom accrued for reasons beyond the migrants control after their human rights or asylum claim has been submitted or refused; Further submissions are refused as a fresh claim for asylum and no exceptional circumstances are found Further submissions are rejected as further representations 6 Criteria for applying Paragraph 353 Uncontrolled if printed

6.1 Earlier Asylum and/or Human Rights claim 6.2 No Appeal Pending against refusal of previous Asylum/Human Rights Claim New material raised before appeal hearing Applicant decides not to appeal against initial claim Applicants initial appeal dismissed 6.3 Further submissions raise issues under ECHR and/or Refugee Convention relating to removal Implied Human Rights Claim Section 4 Support 6.4 Withdrawn asylum applications 6.5 No connection between initial claim and further submissions 6.6 Initial asylum and/or human rights claim has been certified under section 94 of the Nationality, Immigration and Asylum Act 2002 7 When Paragraph 353 should not be applied 7.1 Pre- 2 October 2000 cases 7.2 Applicants refused asylum but granted leave for more than one year on another basis 7.3 Applicant refused asylum but granted leave for one year or less on another basis. Further submissions have been considered before and raise a realistic prospect of success 7.4 Applicant is asking UK Border Agency for discretion to afford a further right of appeal aside from paragraph 353, on the grounds of fairness 7.5 A further immigration decision will give rise to a right of appeal regardless of whether or not there is a fresh asylum or human rights claim Applicants who have left and subsequently returned to the United Kingdom 7.6 Claims lodged overseas 8 When is Section 96 Certification an Option? 8.1 Applying section 96 8.2 Section 96(1) Earlier Appeals 8.3 Section 96(2) One-Stop Notices 8.4 Certifying under both sections 96(1) and 96(2) Annex Annex A - Further Submissions Application proforma

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1 Introduction
1.1 Purpose of Instruction To set out the policy, processes and procedures to be followed when considering further submissions, including which team/unit should deal with the application. This guidance applies to both adults and children. This guidance applies to all staff dealing with further submissions applications in both the asylum teams in the regions and the Case Assurance and Audit Unit. This instruction provides guidance to both on: o Applying Paragraph 353 of the Immigration Rules; and o Certifying claims under section 96 of the Nationality, Immigration and Asylum Act 2002.

1.2 Use of Terms Case Owner - The term case owner is used throughout. This refers to the case owner role in the Agency in its broadest sense, not only asylum case owners. It is fully understood that certain actions will be carried out by other officers, but with a single accountable officer retaining overall responsibility. Senior Caseworker - applies to SEO and/or HEO Senior Caseworkers within the regional asylum teams and CAAU. Applicant, individual, person and subject are all interchangeable terms referring to the individual making the further submissions application.

1.3 Application of this instruction in respect of children and those with children When considering cases involving children, regard must be given to the duty imposed by Section 55 of the Borders, Citizenship and Immigration Act 2009 with respect to safeguarding and promoting the welfare of children. It does not impose any new functions, or override existing functions. Officers must not apply the actions set out in this instruction either to children or to those with children without having due regard to Section 55. The UK Border Agency instruction Arrangements to Safeguard and Promote Childrens Welfare in the United Kingdom Border Agency sets out the key principles to take into account in all Agency activities. Our statutory duty to children includes the need to demonstrate: Fair treatment which meets the same standard a British child would receive; The childs interests being made a primary, although not the only consideration; No discrimination of any kind; Asylum applications are dealt with in a timely fashion; Identification of those that might be at risk from harm.

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2 Definition
A further submission refers to a situation where an applicant has: o had an initial asylum and/or human rights claim refused, or has withdrawn such a claim, or o had such a claim treated as withdrawn under paragraph 333C of the Immigration Rules, and o has exhausted all appeal rights in relation to that claim. The applicant then provides additional information which may or may not be different from the information provided previously. It does not refer to individuals included on initial claims as dependants who subsequently claim asylum and/or human rights in their own right.

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3 Submitting further submissions


3.1 Application process and proforma If a failed asylum seeker wishes to submit further submissions, they must do so in person. This requirement was introduced on 14 October 2009. Failed asylum seekers and their legal representatives are encouraged to submit further submissions using the application proforma (see Annex B and the UK Border Agency website for further information). Further submissions received in the form of a letter rather than on the application proforma must still be considered, provided they are submitted following the relevant processes outlined below. The process for making further submissions depends on where the applicant lives, when they initially applied for asylum and whether they have left the UK and returned since making an application for asylum: Initial asylum application made before 5 March 2007(applicant has not left the UK since claiming asylum) If the initial application for asylum was made before 5 March 2007 and the applicant has not left the UK since applying for asylum, then the case will be managed by CAAU (see section 3.2 below).

Initial asylum application made before 5 March 2007, case concluded by CRD, applicant left the UK and returned If the initial application for asylum was made before 5 March 2007 and the applicant left the UK either through their own choice or as a result of conclusion by CRD, then the case will be managed by a regional case owner. The process for submitting the application will depend on regional arrangements.

Initial asylum application made on or after 5 March 2007 If the initial application for asylum was made on or after 5 March 2007, the case will be managed by a regional case owner. The applicant will need to make their further submission in person at a specified reporting centre in the region. The process may be slightly different in different regions, but all cases will be treated equally across the country. If the applicant has a reporting event at a reporting centre in the near future, they should make any further submission at that event.

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3.2 Cases previously managed by the Case Resolution Directorate (CRD) The Case Resolution Directorate has now completed a review of all cases. Those cases which have been reviewed but not fully concluded have now passed to the Case Assurance and Audit Unit (CAAU). CAAU will manage these cases through to conclusion. Any failed asylum seeker whose case is being managed by CAAU is required to make an appointment to submit their further submissions in person at the Liverpool Further Submissions Unit (FSU) unless they fall into one of the Exceptional cases categories (see section 3.5 below). The Liverpool Further Submissions Unit (FSU) will continue to receive the further submissions of those cases in the CAAU cohort; CAAU will continue considering these cases. The FSU cannot accommodate individuals without a pre-arranged appointment. To make an appointment to submit further submissions, individuals should call the FSU on the following number:

0151 213 2411


FSU should send written confirmation of the appointment to the individual, including the address of the FSU and a blank further submissions application proforma. When attending an appointment at the FSU, individuals are requested to bring with them: o A completed Further Submissions application proforma or letter detailing the additional information they would like the UK Border Agency to consider o Supporting Documents (including, where available, Reasons for Refusal Letter, appeal determination, documents in support of the further submissions. NB All documentary evidence to be considered in support of the further submissions must be submitted at the further submissions appointment. If all the documents are not available, an extension will not be given and the individual will need to make a further appointment. If the individual is unwilling to do so the consideration will be made on the documents submitted) o Application Registration Card [ARC] (if still in possession of this) o Passport (of main applicant and any dependants in the UK, where owned and not held by the UK Border Agency) o Police Registration Certificates (if held) o Other Identity documents (if held) o 4 unseparated passport-sized photographs (of main applicant and any dependants) o Evidence of accommodation (if not provided by the UK Border Agency) o Any other relevant documents

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3.3 Cases being managed by Asylum Teams in the Regions Any failed asylum seeker whose case is being managed by a regional asylum team is required to submit their further submissions in person at a reporting centre specified by the UK Border Agency in the region responsible for their case, either via an appointment at their reporting centre or at their regular reporting event. If the individual regularly reports somewhere other than a reporting centre, for example a police station, then they must attend an event arranged with UKBA at a designated reporting centre in order to submit any further submissions. Each region operates a distinct process. If a failed asylum seeker wishes to submit further submissions in person, they should contact their Case Owner in order to find out what steps to take. Further information on regional processes can be found on the UKBA website. Depending on frequency of reporting, individuals are encouraged, where possible, to submit their further submissions as part of their regular reporting regime. Where that is not possible, individuals can request an appointment. It will be rare that reporting centres operate without an appointment system. When attending a Reporting Centre to submit further submissions, individuals are requested to bring with them: o A completed Further Submissions application proforma or letter detailing the additional information the failed asylum seeker would like the UK Border Agency to consider o Supporting Documents (including, where available, Reasons for Refusal Letter, appeal determination, documents in support of the further submissions. NB All documentary evidence to be considered in support of the further submissions must be submitted at the reporting event or the further submissions appointment. If all the documents are not available, UK Border Agency staff should not give an extension, but should request that the individual makes a further appointment. If the individual is unwilling to do so the consideration will be made on the documents submitted) o Application Registration Card (if still in possession of this) o Passport (of main applicant and any dependants in the UK, where owned and not held by the UK Border Agency) o Police Registration Certificates (if held) o Other Identity documents (if held) o 4 unseparated passport-sized photographs (of main applicant and any dependants) o Evidence of accommodation (if not provided by the UK Border Agency) o Any other relevant documents UK Border Agency will not require principal applicants to bring dependants, including those who will be children, with them to the appointment to lodge an application in person. Further submissions should be recorded on CID, see Making a decision under Paragraph 353 for the process.

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Individuals returning from abroad who wish to raise issues relating to a previous asylum or human rights claim can do so in person at their port of entry to the UK. 3.5 Exceptional Cases Inability to travel Failed asylum seekers who fulfil the following criteria can submit written further submissions by post: those who have a disability or severe illness and are physically unable to travel those who are imprisoned or in detention and unable to make their application in person Satisfactory medical evidence must be provided to substantiate postal further submissions where the applicant claims to have a disability or severe illness and is physically unable to travel to FSU Liverpool or their designated reporting centre.

Ongoing Judicial Review or other litigation Where there is an ongoing Judicial Review or ongoing litigation of another kind, further submissions should be accepted by post. The member of UK Border Agency staff managing the JR/litigation will also consider the further submissions as part of the overall case management. If in doubt, Case Owners should contact their Judicial Review Team. Removal Directions have been set or the individual has been accepted on a charter flight Where Removal Directions (RDs) have been set, or a failed asylum seeker has been accepted on a charter flight, and the failed asylum seeker wishes to make further submissions, they should immediately contact their Case Owner who will advise them on what action to take. It will usually be appropriate for the Case Owner to obtain the further submissions by fax and contact the Operational Support and Certification Unit (OSCU) who will consider the further submissions on the Case Owners behalf, where appropriate. For further information see Chapter 29 - Repeat Asylum Claims of the Enforcement Instructions and Guidance.

Individual comes to light through enforcement action Where a failed asylum seeker is encountered as a result of enforcement action and indicates a wish to submit further submissions, they should not normally be released. Further submissions can be submitted in person to the UK Border Agency enforcement staff, who should follow Chapter 29 - Repeat Asylum Claims of the Enforcement Instructions and Guidance.
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3.6 Further submissions made before 13 October 2009 (CAAU & regional) Postal further submissions are only valid if they were received before 13 October 2009. Further submissions submitted by post with a post mark date from Royal Mail of 12 October 2009 or before, should be accepted. Where the date of the postal further submissions precedes these dates but was not postmarked by Royal Mail until on or after these dates, further submissions should be rejected.
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3.7 Action to take when further submissions are submitted by post If an individual submits further submissions to the UK Border Agency by post after 13 October 2009 and they do not fit one of the exceptional criteria outlined above, they should be refused. The standard letter to use when refusing to accept further submissions made by post, ASL.4093, can be found on Doc. Gen in the Miscellaneous and Acknowledgements folder. The further submissions should be returned to sender (either the legal representative or the failed asylum seeker) with the original letter. No copy should be retained on the UKBA file however CID notes should be updated.

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4 Paragraph 353 of the Immigration Rules


4.1 Introduction Paragraph 353 of the Immigration Rules sets out how to deal with further submissions and cases where exceptional circumstances should be considered. The relevant sections of the rule states: 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 paragraph above does not apply to claims made overseas. 353B. Where further submissions have been made and the decision maker has established whether or not they amount to a fresh claim under paragraph 353 of these Rules, or in cases with no outstanding further submissions whose appeal rights have been exhausted and which are subject to a review, the decision maker will also have regard to the migrants: (i) character, conduct and associations including any criminal record and the nature of any offence of which the migrant concerned has been convicted; (ii) compliance with any conditions attached to any previous grant of leave to enter or remain and compliance with any conditions of temporary admission or immigration bail where applicable; (iii) length of time spent in the United Kingdom spent for reasons beyond the migrants control after the human rights or asylum claim has been submitted or refused; in deciding whether there are exceptional circumstances which mean that removal from the United Kingdom is no longer appropriate.

4.2 Three-Stage Process Paragraph 353 requires that a three stage process be applied when further submissions are received: o Stage One consider whether to grant leave. o Stage Two decide whether the further submissions amount to a fresh claim. o Stage Three - Decide whether any exceptional circumstances should prevent removal If stage one results in a grant of leave, the case owner does not need to proceed to stage two. Uncontrolled if printed

Paragraph 353 requires this three stage test to be applied sequentially on all occasions. In other words, the case owner must always decide whether the newly submitted material taken together with the old material warrants a grant of leave before carrying out any further actions. Only if the case owner decides not to grant further leave does it become necessary to decide whether there is a fresh claim. Where there is no need to make a further immigration decision (as defined in section 82 of the Nationality, Immigration and Asylum Act 2002), the purpose of paragraph 353 is to provide a mechanism whereby case owners decide whether or not the rejection of further submissions warrants another right of appeal. As a matter of policy case owners will make a further immigration decision thereby generating a further right of appeal (which will be exercisable in-county) if there is a fresh claim, but will not do so if there is no fresh claim.

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5 Making a decision under Paragraph 353A


5.1 Consider whether leave should be granted (Stage 1) In all cases where further submissions are received, the first stage is to decide whether or not to grant leave to the applicant for asylum or human rights reasons. All evidence must be considered when deciding whether the applicant qualifies for leave. This will include all information put forward by the applicant, as well as information such as new country information or a new policy. Case owners must also act upon the findings in any final appeal determination which override conclusions expressed in the original reasons for refusal letter. For information on granting leave, see Asylum Instructions Refugee Leave, Humanitarian Protection and Discretionary Leave. If the decision is to grant leave to an applicant, the following applies: o Follow minute sheet ASL.2898 Asylum Claim Grant of Leave to Enter or Remain. o Ensure that CID is updated The decision should be served in line with local practices. If the individual is in receipt of support, consider whether discontinuation is appropriate.

Inviting applicant to interview If there is any uncertainty about whether to grant leave, it may appropriate to invite the applicant to attend an interview. If a case owner decides that it would be appropriate to invite an applicant who has lodged further submissions to an interview, the following process applies: Forward one copy of ASL.0062 (Invitation to Asylum Interview) to the applicant and one copy to the legal representative where appropriate. One copy should be retained on the applicants file. If the applicant fails to attend the interview, the submissions should be decided on the basis of the information on the papers. If the applicant does attend, the case owner should ensure that CID is updated

Conducting the interview Where an applicant was interviewed in relation to their initial asylum claim, inform the applicant that the purpose of the interview is to establish whether the new information justifies a grant of leave, and therefore there is no need to repeat details of their initial claim. Where information relating to the initial application is material to the new information that has been provided, the applicant should be asked to expand upon this. Where an applicant has not previously been interviewed in relation to their asylum and/or human rights claim, this should be treated as an initial interview, ensuring that Uncontrolled if printed

the applicant is questioned about both the initial claim and further submissions where the information provided in both is different. In all cases, the guidelines set out in The Asylum Interview AI must be followed and Interview Record ASL.1123 should be used.

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5.2 Decide whether further submissions constitute a fresh claim for asylum (Stage 2) If it is decided that it would not be appropriate to grant leave, the second stage is to determine whether the further submissions constitute a fresh claim for asylum. This is important because the applicant will only be entitled to an in-country Right of Appeal if it is accepted that there is a fresh claim. Paragraph 353 states that submissions will amount to a fresh claim if they are significantly different from the material that has already been considered. Submissions will only be significantly different if the content: has not already been considered; and taken together with the previously considered material, creates a realistic prospect of success.

The first limb of the test - Has the material already been considered? If material has been considered by UK Border Agency or at appeal, it will have been considered already for the purposes of paragraph 353 and there will be no fresh claim. In these cases, it is important for the case owner to apply paragraph 353 and establish that there is no fresh claim because the material has been considered before and therefore the first limb of the test is not satisfied. It is not sufficient to say simply that the material has already been considered and that leave is therefore not being granted. The fact that something has been considered previously does not mean that paragraph 353 should not be applied, it means that the test in paragraph 353 will not be satisfied when applied. If the material has previously been considered, it is not necessary for case owners to proceed to The second limb of the test does the material create a realistic prospect of success?

The second limb of the test does the material create a realistic prospect of success? If the material put forward in the further submissions has not previously been considered, decide whether the new information, taken together with the material previously considered, raises a realistic prospect of success. It is important to note that the threshold with regard to a realistic prospect of success is a low one. The Court of Appeal has described the test as somewhat modest. The test is described as somewhat modest for three reasons. First, the question is whether there is a realistic prospect of success in an application before an immigration judge, but not more than that. Second, the immigration judge himself does not have to reach a position of certainty, but only to think that there is a real risk of the applicant being persecuted on return. Finally, since asylum is in issue, the consideration of all the decision-makers, the Secretary of State, the immigration judge and the court, must be informed by the anxious scrutiny of the material. Uncontrolled if printed

This should be broadly interpreted to mean being allowed to stay. For example, an applicant who raises asylum issues in further submissions will have a fresh claim if there is a realistic prospect of an immigration judge deciding that he should be granted leave on humanitarian protection grounds. It should not be concluded that there is no realistic prospect of success solely on the basis that an applicant has demonstrated poor credibility in the past. An applicant may have been untruthful in the past but be telling the truth now. Credibility should be taken into account where appropriate in assessing whether there is a realistic prospect of success, in the same way as it would be undertaken in assessing an initial claim. For further information, see Considering the claim and assessing Credibility. For example, both a case owner and an immigration judge might consider that an applicants account of torture has been fabricated. However, the applicant might later submit expert reports which conclude that, based on physical evidence, the applicant has been tortured in the past. As the reports would be based on physical evidence and not merely the applicants account, earlier findings on the applicants credibility would not be relevant. Were the reports to be based simply on what the applicant told the doctors, past credibility findings would become relevant. Material should never be discounted entirely on the basis that the applicant could or should have raised it earlier. However, in assessing whether there is a realistic prospect of success, case owners may treat material with circumspection if it is raised late and could have been raised sooner. This is of particular relevance to submissions that are raised at the point of removal. For further information, see the Asylum Instruction Considering the asylum claim and assessing Credibility. Where the further submissions consist wholly or partly of documentary evidence, case owners must consider all available material when deciding whether or not there is a realistic prospect of success. The question of whether any particular document can be relied on to support the applicants case must be considered in light of all the evidence. The issue is not, in most cases, whether any particular document is a forgery; it is whether, in light of all the evidence considered as a whole, there is a realistic prospect of success. If an applicant challenges the decision that his further submissions do not amount to a fresh claim by lodging a Judicial Review, the Court will ask whether this decision was reasonable. The decision will only be reasonable if the case owner has very carefully considered whether there is a realistic prospect that the submissions will, when taken together with all the previously considered material, lead an immigration judge to decide that the applicant should be allowed to stay in the United Kingdom. In addition, the case owner must have considered the low threshold which applies, given proper weight to issues such as credibility and the timing of the submissions and considered all the evidence in the round. The case owner must very carefully consider whether there is a realistic prospect that the submissions will lead an immigration judge to decide that the applicant should be allowed to stay in the UK when taken together with all the previously considered material. If the case owner considers that this test is met, the submissions must be refused as a fresh claim for asylum. If this test is not met, the Uncontrolled if printed

case owner should reject the submissions as further representations, meaning that no new immigration decision has been made.

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5.3 Consider whether exceptional circumstances should prevent removal (Stage 3) It is the policy of the Agency to remove illegal migrants from the United Kingdom unless it would be a breach of the Refugee Convention or ECHR, or there are exceptional circumstances for not doing so in an individual case. Illegal migrants may put forward submissions that exceptional circumstances apply in their case such that they should not be removed. These submissions may be made: o o o o o o By application for leave to remain using the form FLR(O); At interview following arrest as a result of an enforcement operation; While in detention; At a reporting centre; In the course of litigation; As a further submission following an unsuccessful human rights or asylum claim

Where exceptional circumstances are claimed, they must be considered in accordance with this guidance. Exceptional circumstances should be considered in cases where an asylum or human rights claim has been refused, appeal rights have been exhausted and no further submissions exist, as part of the process of asylum case owners keeping their cases under review. In these cases paragraph 353B of the rules is to be applied. In all other cases where exceptional circumstances are claimed, officers must consider any representations submitted and have regard to the factors outlined in paragraph 353B of the Immigration Rules Relevant factors are set out below, but this list is not exhaustive. The consideration of relevant factors needs to be taken as a whole rather than individually. When determining whether or not exceptional circumstances exist, consideration of the relevant factors in 353B needs to be taken as a whole. Discretion not to remove on the basis of exceptional circumstances will not be exercised on the basis of one factor alone.

Character, conduct and associations including any previous criminal record and the nature of any offence of which the applicant has been convicted When considering an individuals character and conduct, regard must be given to whether; o There is evidence of criminality that meets the Criminal Casework Directorate (CCD) threshold; or o The individual has been convicted of a particularly serious crime (below the CCD threshold) involving violence, a sexual offence, offences against children or a serious drug offence; or Uncontrolled if printed

o There are serious reasons for considering that the individual falls within the asylum exclusion clauses; or o It is considered undesirable to permit the individual to remain in the UK in light of exceptional circumstances, or in light of their character, conduct or associations, or the fact that they represent a threat to national security Evidence of criminality or conduct meeting the criteria above will normally mean that an individual cannot benefit from exceptional circumstances.

Compliance with any conditions attached to any previous grant of leave to enter or remain and compliance with any conditions of temporary admission or immigration bail where applicable Where there is evidence of an attempt by the individual to delay or frustrate the decision making process, frustrate removal, or otherwise not comply with any requirements imposed upon them, then this will weigh against the individual. Caseworkers must also take account of: Evidence of deception practised at any stage in the process; Failure to attend interviews as requested; Failure to supply information as requested (e.g. for re-documentation); Failure to comply with reporting conditions; Whether they have worked illegally; Any other type of fraud or deception, such as benefit fraud or NHS debt; An individuals lawful employment history and how they have supported themselves and/or their family; o A sustained history of compliance with every requirement UKBA has made of them, including providing full information in their application, attending interviews, compliance with reporting requirements o o o o o o o Caseworkers must assess all evidence of compliance and non-compliance in the round, but repeated non-compliance and/or lengthy periods of absconding will generally mean that an individual cannot benefit from exceptional circumstances, unless there are strong countervailing reasons in their favour.

Length of time in the United Kingdom accrued for reasons beyond the migrants control after their human rights or asylum claim has been submitted or refused; The length of residence in the UK is a factor to be considered where residence has been accrued by an unreasonable delay which is not attributable to the migrant. Periods of residence which are caused by actions of non-compliance attributable to the migrant will not count in the migrants favour. More weight should be attached to the length of time a child has spent in the UK compared to an adult. Provided that the factors outlined in Character or Compliance do not weigh against the individual, then caseworkers should also consider where there has been significant delay by UKBA, not attributable to the migrant, in deciding a valid application for leave to remain on asylum or human rights grounds or where there Uncontrolled if printed

are reasons beyond the individuals control why they could not leave the UK after their application was refused. For example: o Family cases where delay by UKBA, or factors preventing departure, have contributed to a significant period of residence (for the purposes of this guidance, family cases means parent as defined in the Immigration Rules and children who are emotionally and financially dependent on the parent, and under the age of 18 at the date of the decision). Following an individual assessment of the prospect of enforcing removal, and where the factors outlined in Character and Compliance do not weight against the individual, family cases may be also be considered exceptionally on grounds of delay where the dependent child has lived in the UK for more than 3 years or more whilst under the age of 18. o Any other case where the length of delay by UKBA in deciding the application, or where there were factors preventing departure, the case worker following an individual assessment of the prospect of enforcing removal and where the factors outlined in Character and Compliance do not weight against the individual, concludes that the person will have been in the UK for more than 6 years. Any representations received on the persons behalf; These must always be considered and given due weight. Individuals may raise other relevant factors not listed above. These should be fully considered on a case-bycase basis.

Grants of leave to remain in exceptional circumstances If removal is no longer considered appropriate then Discretionary Leave to Remain should be granted. For further guidance on the appropriate period of leave to grant, see Chapter 53 and Discretionary Leave Asylum Instruction. Further submissions are refused as a fresh claim for asylum and no exceptional circumstances are found Where a case owner decides to refuse further submissions as a fresh claim for asylum, the following process applies: o Follow instructions on minute sheet ASL.2899 Asylum Claim (Refuse Outright). o Decide whether the fresh claim should be certified under section 96 of the Nationality, Immigration and Asylum Act 2002. If so, see When is Section 96 Certification an Option? If not, see the bullet point below. Ensure that CID is updated The decision should be served in line with local practices. If the individual is in receipt of support, consideration should be given to discontinuation if appropriate.

Further submissions are rejected as further representations and no exceptional circumstances are found Where the decision is to reject further submissions as further representations, the following process applies: o Follow instructions on minute sheet ACD.2843 Further Representations. Uncontrolled if printed

o Draft the response using the further submissions response proforma, found on Doc. Gen o Ensure that the decision to reject as further representations is considered by a second pair of eyes where appropriate. Ensure that CID is updated The decision should be served in line with local practices. If the individual is in receipt of support, consideration should be given to discontinuation if appropriate.

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6 Criteria for applying Paragraph 353


6.1 Earlier Asylum and/or Human Rights claim Paragraph 353 can only be applied where there has been an earlier human rights or asylum claim which has been refused or withdrawn or treated as withdrawn under paragraph 333C of the Immigration Rules. Where an applicant has not previously lodged an asylum and/or human rights claim, or has submitted additional information relating to an initial claim before the initial decision has been made (unless the initial claim was withdrawn or treated as withdrawn under paragraph 333C), Paragraph 353 does not apply. It is necessary to ensure that the applicant has raised asylum and/or human rights issues by means of a claim to UK Border Agency. For example, Paragraph 353 cannot be applied in cases where asylum and/or human rights grounds have been raised for the first time in grounds of appeal.

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6.2 No Appeal pending against refusal of previous asylum/human rights claim Paragraph 353 can only be applied where there is no appeal pending against the refusal of the earlier claim. If there is an appeal pending, the applicant should, where possible, raise all relevant matters in the context of that appeal. If there is no appeal pending, either because the applicant never brought an appeal or because the appeal has been dismissed, withdrawn, abandoned or has lapsed, the case owner should apply paragraph 353. New material raised before appeal hearing Where an applicant raises new material after a decision has been made on the asylum and/or human rights claim but before the appeal is heard, Paragraph 353 should not be applied. The applicant should raise this material in the context of the appeal. If it has not been possible to raise this material during the course of the appeal for any reason, it should be considered after the conclusion of the appeal and paragraph 353 should be applied. Applicant decides not to appeal against initial claim If an applicant chooses not to appeal against the refusal of an initial asylum and/or human rights claim, it would be appropriate to apply Paragraph 353 to any further material raised. Applicants initial appeal dismissed Further submissions are usually lodged following the refusal of an initial asylum claim and the dismissal of the appeal, when the applicant is Appeal Rights Exhausted (ARE). Case owners should apply paragraph 353 to any further submissions raised.

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6.3 Further submissions raise issues under ECHR and/or Refugee Convention relating to removal Paragraph 353 can only be applied where the further submissions raise issues under the ECHR and/or the Refugee Convention relating to removal. Although further submissions are not defined in paragraph 353, given that the purpose of the paragraph is to provide a mechanism for deciding whether a fresh claim has been made (i.e. a fresh human rights claim or fresh asylum claim, as those terms are defined in section 113 of the Nationality, Immigration and Asylum Act 2002), it must only be applied where the further submissions raise asylum and/or human rights issues relating to removal. If the person is not alleging that removal will breach either Convention, but is instead making some other kind of human rights argument, it is not appropriate to apply paragraph 353.

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Implied Human Rights Claim Some applicants may delay removal on the grounds of implied human rights claims, in particular under Article 3 and Article 8 of the ECHR. It is not necessary for the applicant to have made explicit reference to the ECHR for further submissions to have been raised on these grounds. If such an applicant has previously been refused asylum and leave under the ECHR and appeal rights relating to that claim are exhausted, it would be appropriate to apply paragraph 353 in respect of the human rights issue. Section 4 Support It may be difficult to remove some applicants who are Appeal Rights Exhausted (ARE) in relation to their initial asylum and/or human rights claims. Some may then apply for support under section 4 of the Immigration and Asylum Act 1999 on the grounds that a refusal to provide support would amount to a breach of their human rights under the ECHR. Case owners should not apply paragraph 353 to the application for section 4 support as the human rights issues do not relate to the applicants removal. The issue relating to section 4 should instead be handled without reference to paragraph 353. For further information on whether such an applicant is entitled to support under section 4, see Asylum Support Process Instructions.

6.4 Withdrawn asylum applications From 7 April 2008, paragraph 353 of the Immigration Rules may be applied to further submissions made after an original asylum claim has been withdrawn or treated as withdrawn under paragraph 333C of the Immigration Rules. In such cases, it is likely that any further submissions will meet the threshold to succeed at the first limb of the test, as the content is unlikely to have been considered previously. It is not certain, however, that the submissions will meet the threshold to succeed at the second limb of the test, in other words, that when taken together with the previously considered material, the content of the submissions create a realistic prospect of success in front of an Immigration Judge, notwithstanding the rejection of those submissions. For further information on withdrawn applications and paragraph 333C, see the AI Withdrawal of Applications. Uncontrolled if printed

6.5 No connection between initial claim and further submissions Whether or not there is any connection between an applicants initial claim for asylum and/or human rights and the further submissions does not impact on whether paragraph 353 should be applied to the latter. Even where they are entirely unrelated, paragraph 353 should still be applied where the conditions laid out in Earlier Asylum and/or Human Rights claim, No Appeal Pending against refusal of previous Asylum/Human Rights Claim and Further Submissions raise issues under ECHR and/or Refugee Convention relating to removal are met. For example, an applicant may claim asylum due to a fear of persecution on the ground of religion which is refused and subsequently dismissed at appeal. They may subsequently make an Article 8 human rights claim. Despite the clear differences between the initial claim and further submissions, the case owner should still apply paragraph 353.

6.6 Initial asylum and/or human rights claim has been certified under section 94 of the Nationality, Immigration and Asylum Act 2002 Following the House of Lords judgment in ZT (Kosovo), paragraph 353 must be applied to unsuccessful further submissions where the initial claim(s) has/have been certified as clearly unfounded under section 94 of the NIA Act 2002. This is a change from the former process for dealing with further submissions in section 94 cases, where a specific section 94 procedure applied. For further information on handling NSA cases, see Certification under Section 94 of the NIA Act 2002.

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7 When Paragraph 353 should not be applied


This section sets out scenarios where it would be inappropriate to apply paragraph 353 of the Immigration Rules. There are some special cases where, notwithstanding that the points made in Criteria for Applying Paragraph 353 are satisfied, paragraph 353 should exceptionally not be applied when handling further submissions.

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7.1 Pre- 2 October 2000 cases Where an applicant lodged an asylum claim and this was refused by way of an appealable decision made before 2 October 2000 and where no further decision has been made since that date which gave the opportunity to appeal on human rights grounds, paragraph 353 should not be applied to any human rights submissions subsequently made. This only applies to human rights submissions and applies even where the appeal itself took place after 2 October 2000. Even if these conditions are satisfied paragraph 353 should always be applied if either or both of the following conditions apply: o The human rights issue was considered and rejected in the context of the ECHR at the asylum appeal against the pre 2 October 2000 decision, or o there was a basic finding of fact made at that appeal which means that any claim based on those facts is likely to fail. For example, the applicant may have maintained a history or nationality which has been found to be false and would therefore not be entitled to another appeal relying on the same false information. However, if no such finding was made at appeal, the case owner should not apply paragraph 353 to the submissions. These cases are sometimes referred to as Pardeepan cases after a decision of the Immigration Appeal Tribunal.

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7.2 Applicants refused asylum but granted leave for more than one year on another basis before making human rights submissions Where an applicant is refused asylum but is granted leave in excess of one year for some other reason, they will have a right of appeal (under section 83 of the Nationality, Immigration and Asylum Act 2002) against the asylum refusal. However, due to the fact that they have been granted leave on another basis, they will not have been able to appeal on human rights grounds. Therefore, case owners should not apply paragraph 353 to any human rights submissions lodged after the refusal of the asylum claim.

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7.3 Applicant refused asylum but granted leave for one year or less on another basis. Further submissions have been considered before and raise a realistic prospect of success Where an applicant is refused asylum but is granted leave for one year or less for some other reason, he will not have a right of appeal against the asylum refusal. Therefore, the case owner should not apply paragraph 353 to any submissions lodged by the applicant after the expiry of his leave which would fail the paragraph 353 test solely on the ground that the content has been considered previously. It would not be appropriate to apply paragraph 353 if it is also considered that the submissions raise a realistic prospect of success. If the further submissions do not create a realistic prospect of success, however, paragraph 353 should be applied as normal (whether or not the content has been considered before).

7.4 Applicant is asking UK Border Agency for discretion to afford a further right of appeal aside from paragraph 353, on the grounds of fairness Decision Makers have discretion, aside from paragraph 353, to generate a further right of appeal in cases where to deny a right of appeal would be unfair. These cases are sometimes referred to as Kazmi cases after a decision of the Immigration and Asylum Tribunal (AIT). Where it is clear that an applicant is solely asking for a further right of appeal on fairness grounds, the case owner should address that issue without reference to paragraph 353. For example, an applicant may lodge an appeal against a refused asylum claim but fail to attend the hearing. They may then claim that neither they nor their representatives were informed of the correct date of the hearing and were unable to attend for this reason. The applicant may then request a further right of appeal on the grounds that it was unfair that the earlier appeal was dismissed without the opportunity to attend and give evidence. In this situation, it would not be appropriate for the case owner to apply paragraph 353. The case owner should instead consider whether or not discretion to generate a further right of appeal on fairness grounds should be exercised.

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7.5 A further immigration decision will give rise to a right of appeal regardless of whether or not there is a fresh asylum or human rights claim The Court of Appeal found in the case of BA (Nigeria) that in cases where a further immigration decision is required after further submissions on human rights or asylum grounds have been made, regardless of whether those further submissions amount to a fresh claim for asylum under paragraph 353, section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002 will be engaged and the individual will be entitled to a further in-country right of appeal. Consequently, paragraph 353 should not be applied in these cases. This is a change to the former process, where paragraph 353 would be applied to all further submissions except those where the immigration decision would give rise to an in-country right of appeal regardless of whether or not the applicant has made an asylum or human rights claim. For further information, see below and section 92 of the Nationality, Immigration and Asylum Act 2002.

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Applicants who have left and subsequently returned to the United Kingdom Some applicants will have been refused leave in relation to their initial asylum and/or human rights claims before leaving the United Kingdom. If such an applicant subsequently returns and attempts to raise asylum and/or human rights issues again, if those submissions are unsuccessful the applicant will be refused leave to enter. This is an immigration decision under section 82 of the Nationality, Immigration and Asylum Act and therefore attracts a right of appeal. Following the Court of Appeal judgment in BA (Nigeria), paragraph 353 should not be applied in such cases, as section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002 will be engaged regardless of whether the submissions meet the test in paragraph 353, and as a result the appeal will be in-country. This is a change to the former process in which case owners were advised to apply paragraph 353 if these submissions were unsuccessful. Under previous procedures, the importance of applying paragraph 353 in these cases was that if there was either no fresh asylum or fresh human rights claim, then the right of appeal would have been out-of-country rather than in-country provided that the conditions set out in No Appeal Pending against refusal of previous Asylum/Human Rights claim apply.

7.6 Claims lodged overseas Case owners should note that paragraph 353 does not apply to claims made overseas. For example, if an applicant has been removed from the United Kingdom and then attempts to submit a new asylum and/or human rights claim from another country, paragraph 353 should not be applied. The applicant would not be entitled to an in-country Right of Appeal against this decision as section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002 only applies if the person has made an asylum or human rights claim in the UK.

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8 When is Section 96 Certification an Option?


8.1 Applying Section 96 Section 96 of the Nationality, Immigration and Asylum Act 2002 (as amended) allows UK Border Agency to certify a right of appeal in certain circumstances. The result of certification is that an appeal may not be brought either in-country or out-of-country. However, as with a decision not to treat further submissions as a fresh claim under paragraph 353, a decision to certify under section 96 can be challenged by judicial review. Case owners should note that if the further submissions are not being refused as a fresh claim for asylum, certification action is not possible. This is because there is no point in certifying under section 96 if there is no right of appeal to certify, and it is not appropriate to certify if the right of appeal is only exercisable out-of-country. In cases where there is no need to make another immigration decision there will only be a right of appeal if there is a fresh claim. This is because a further right of appeal will be generated in these cases as a matter of policy. In cases where a further immigration decision will have to be made (and the decision is not one which normally attracts an in-country right of appeal), it is only if there is a fresh claim that the right of appeal will be exercisable in-country. Section 96 is intended to prevent people raising matters at the last minute to frustrate removal. That being the case, if there is no in-country right of appeal then there will be no bar to removal, and it will not be appropriate to certify under section 96. In effect, section 96 certification can be seen as stage four in the process of handling further submissions. The four stages can be summarised as follows: Stage One consider whether to grant leave.

If (and only if) the decision is not to grant leave move onto: Stage Two decide whether the further submissions amount to a fresh claim.

If (and only if) the decision is that there is a fresh claim move onto: Stage Three decide whether any exceptional circumstances prevent removal

If (and only if) the decision is that there are no exceptional circumstances: Stage Four - consider whether to certify under section 96.

In all cases of further submissions paragraph 353 should be applied before section 96 is considered. A decision letter dealing with further submissions should never purport to certify under section 96 without first applying paragraph 353 and concluding that there is a fresh claim. Case owners cannot pursue certification action under section 96 if they have decided that there is no fresh claim on applying paragraph 353.

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In cases where paragraph 353 should exceptionally not be applied when handling further submissions, section 96 certification is not appropriate except where a further immigration decision will have to be made and that decision will give rise to an incountry right of appeal regardless of whether or not there is a fresh asylum or human rights claim. In those cases, certification under section 96 is possible. For further information on where case owners should not apply paragraph 353, see When Paragraph 353 should not be applied. Case owners can pursue certification action under either section 96(1) or section 96(2) of the Nationality, Immigration and Asylum Act 2002. Section 96(1) deals with earlier rights of appeal, whilst section 96(2) deals with One-Stop Notices.

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8.2 Section 96(1) Earlier Appeals Section 96(1) states the following: An appeal under section 82(1) against an immigration decision (the new decision) in respect of a person may not be brought if the Secretary of State or an immigration officer certifies (a) that the person was notified of a right of appeal under that section against another immigration decision (the old decision) (whether or not an appeal was brought and whether or not any appeal brought has been determined), that the claim or application to which the new decision relates relies on a matter that could have been raised in an appeal against the old decision, and that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for the matter not having been raised in an appeal against the old decision.

(b)

(c)

For certification under section 96(1) to be possible, the case owner must be satisfied that the following criteria are met: o The applicant must have been notified of a right of appeal under section 82 against a previous immigration decision (e.g. a refusal of leave to enter following an asylum claim). Whether the applicant chose to exercise his Right of Appeal is irrelevant. The fresh claim must rely on a matter which could have been raised on appeal against the earlier refusal. Case owners will need to carefully consider whether the new claim relies on a matter which could have been raised at an earlier appeal. In Article 8 ECHR cases, for instance, although the basic facts of the Article 8 case may have been available earlier, the case is likely to have evolved over time. For example, a child may have been born since the initial Article 8 claim was decided. If there has been a material change in the case certification is not likely to be appropriate, whereas a simple evolution of the facts over time which does not significantly impact upon the claim is not likely to make certification inappropriate. Uncontrolled if printed

There must be no satisfactory reason for the matter not having been raised at the earlier appeal. For example, an applicant may submit a newspaper article some time after becoming Appeal Rights Exhausted in relation to his/her initial asylum claim. If the article was written a period of time before the appeal was heard, the case owner would be entitled to judge that this information could have been raised earlier. Therefore, in the event that the case owner decides both to refuse leave but accept a fresh claim, certification action may be suitable. If an applicant appeals against the initial decision, raises the relevant matter in that appeal, but then abandons the appeal, the case owner should still consider certifying under section 96 if he later makes further submissions relying on that matter. Where a case owner decides to certify under section 96(1), he should act as follows: o Follow instructions on minute sheet ASL.2899 Asylum Claim (Refuse Outright). o Draft the response using the further submissions response proforma, found on Doc. Gen o Ensure that CID is updated The decision should be served in person or by recorded delivery post, in line with local practices. If the individual is in receipt of support, Case Owners should consider whether discontinuation is appropriate.

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8.3 Section 96(2) One-Stop Notices Section 96(2) states the following: An appeal under section 82(1) against an immigration decision (the new decision) in respect of a person may not be brought if the Secretary of State or an immigration officer certifies (a) that the person received a notice under section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision, that the new decision relates to an application or claim which relies on a matter that should have been, but has not been, raised in a statement made in response to that notice, and that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for the matter not having been raised in a statement in response to that notice.

(b)

(c)

For certification under section 96(2) to be possible, the case owner must be satisfied that the following criteria are met: o The applicant must have received a one-stop notice in relation to an earlier application (e.g. an earlier asylum claim or an application for leave to enter as a dependant of a family member claiming asylum). Uncontrolled if printed

o The fresh claim must rely on a matter which should have been, but has not been, raised in a valid response to that notice. A one-stop notice gives rise to a continuing obligation to disclose reasons and grounds for staying in the United Kingdom. As a consequence, an applicant is obliged to provide information about any matters which arise subsequent to the service of the notice at the earliest possible opportunity. Where an applicant replies to a one-stop notice, but fails to do so promptly following receipt of the notice or at the point at which the new matter arises, the case owner should not consider this as a valid response to the notice. o There must be no satisfactory reason for the matter not having been raised in a valid response to that notice. For example, where an applicant receives a one-stop notice in relation to an application and was clearly aware of the matter at that time but failed to disclose it, the case owner would be entitled to argue that section 96 certification is possible if he later raises submissions relying on the same matter. Section 96 certification is possible in certain cases where paragraph 353 is not relevant. For example, although paragraph 353 should not be applied where a person who is named as a dependant on another persons asylum or human rights claim then goes onto make a claim in his own right section 96 certification may still be appropriate. This is because a one-stop notice should have been served on the applicant when he applied for leave as a dependant. Therefore, he will have had an opportunity to submit a response to the one-stop notice meaning that section 96(2) can be applied when he subsequently makes a claim in his own right. However, section 96(1) will not be appropriate in this case, as a person refused leave as a dependant will only have been notified of an out-of-country right of appeal. This makes later certification on the basis of the earlier right of appeal inappropriate. Case owners may not certify under section 96(1) or section 96(2) where the applicant did, in fact, raise the issue in an earlier appeal or in a valid response to the one-stop notice. Certification is only possible where the applicant either could or should have raised the matter on appeal or by way of a valid response to the onestop notice but failed to do so. Where a case owner decides to certify under section 96(2), he should act as follows: o Follow instructions on minute sheet ASL.2899 Asylum Claim (Refuse Outright). o Draft the response using the further submissions response proforma, found on Doc. Gen o Ensure that CID is updated The decision should be served in person or by recorded delivery post, in line with local practices. If the individual is in receipt of support, Case Owners should consider whether discontinuation is appropriate.

8.4 Certifying under both sections 96(1) and 96(2) Case owners should be aware that a fresh claim may be suitable for certification under both section 96(1) and section 96 (2) of the NIA Act 2002. If this is appropriate, case owners should make use of both certificates.
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Annex
Annex A - Further Submissions Application proforma http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/asylum/fs-form.pdf

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SWAP OVER CLAIMS


Table of Contents

1 Introduction 1.1 Application of this instruction in respect of children and those with children 2 Previous Dependants Claiming Asylum by Post 3 Asylum Claims Made By Previous Dependants at an Asylum Screening Unit 4 Asylum Claims Made by Previous Dependants, Where Removal Directions Have Been Set 6 Deciding Who Should Consider the Case, Where Removal Directions Have not Been Set 7 The New Asylum Model 8 Conducting an Asylum Interview 9 Implementing the Decision 10 Serving the Decision in Person 11 Guidance on How to Process Cases in Asylum Legacy Directorate 12 Interview Booking Procedure 12.1 Updating CID Barrier To Removal 13 Requesting Sub Files 14 Case Management Unit (CMU) Action 15 Conducting an Asylum Interview 16 Claims from Children 17 Considering the Claim 17.1 Consideration of certification under section 96 of the 2002 Act 17.2 Case by case certification under section 94 of the 2002 Act 18 Implementing / Serving the Decision 19 Claims from Children 20 Considering the Claim 20.1 Consideration of certification under s96 of the 2002 Act 20.2 Case by case certification under s94 of the 2002 Act 21 Glossary

1 Introduction
Swap over claims are cases where an applicant who has previously been a dependant on an asylum claim, which has usually reached the appeal rights exhausted (ARE) stage, makes a claim in their own right, often with the rest of the family as their dependants. Although the claims are often made at the end of the asylum process and may be seen as an attempt to frustrate the removal process, full and substantive consideration must be given when assessing the merits of the claim. In accordance with section 120 of the Nationality, Immigration and Asylum (NIA) Act 2002, all applicants and their dependants who may be liable to an immigration decision should be served with a one-stop warning notice, which requires the recipient to state any grounds that they may have for wishing to enter or remain in the UK. If a one stop notice has been served on an applicant who was previously dependant on another claim and the present claim falls to be refused, the officer dealing should consider certification under section 96 of the NIA Act 2002.

1.1 Application of this instruction in respect of children and those with children Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the UK Border Agency to carry out its existing functions in a way that takes into account the need to safeguard and promote the welfare of children in the UK. It does not impose any new functions, or override existing functions. Officers must not apply the actions set out in this instruction either to children or to those with children without having due regard to Section 55. The UK Border Agency instruction Arrangements to Safeguard and Promote Childrens Welfare in the United Kingdom Border Agency sets out the key principles to take into account in all Agency activities. Our statutory duty to children includes the need to demonstrate: Fair treatment which meets the same standard a British child would receive; The childs interests being made a primary, although not the only consideration; No discrimination of any kind; Asylum applications are dealt with in a timely fashion; Identification of those that might be at risk from harm. It should be noted that children who are dependants or were formerly dependants may choose to claim asylum in their own right, and Case Owners must have regard to section 55 in such cases.

2 Previous Dependants Claiming Asylum by Post


Where an asylum or protection related human rights claim is either imputed or explicitly stated in a written request the would be applicant should be informed that a claim can only be processed at either one of the two designated Asylum Screening Units, in Liverpool or Croydon. The original correspondence should be returned to the potential applicant along with an ACD.1036 Refusal to Accept Postal Application, informing the applicant that they should attend an ASU in order for the claim to be accepted. A copy of the correspondence received should also be attached to the file on which the would-be applicant was originally dependent.

3 Asylum Claims Made By Previous Dependants at an Asylum Screening Unit


Where a claim for asylum is made by a person previously dependant on another claim at one of the designated Asylum Screening Units they are not required to undergo the normal screening procedures. This is because they have already undergone screening as a dependant on the previous claim. However, if it is found that the applicant has not been screened, ASU should arrange for screening to take place. Before processing the claim ASU staff will conduct a number of checks to ensure that the claim can be dealt with at ASU. If the file is held at an Enforcement and Removals Directorate (E&RD) location and removal directions have been set and have not been cancelled, or are going to be set within seven days, the claim should still be accepted, but then referred to the LEO who will assume responsibility for the case (see Asylum Claims Made by Previous Dependents, Where Removal Directions Have Been Set). Where a claim can be processed at one of the designated screening units ASU staff will arrange for a new file to be created, which will be marked to ensure that the case is clearly identifiable as a swap claim. A new case type will also be created on the Case Information Database (CID) and a pro forma completed ICD.2556, containing the minimum screening data required. ASU staff will also retain old Application Registration Cards (ARC) and issue new cards to the applicant and any dependants on their claim. If a previous dependant wishes to make their own claim and add dependants to that claim the dependants must be present at the screening location. If they are not present they cannot be added to the claim.

4 Asylum Claims Made by Previous Dependants, Where Removal Directions Have Been Set
When an applicant who is identified as having been a dependant makes a claim at ASU, file tracking and CID should be checked to see where the file is located and/or being handled. If the file is at an E&RD location and removal directions have been set and have not been cancelled, or are due to be set within seven days (see Checking Whether Removal Directions Have Been Set), the case should be referred to E&RD. The officer dealing with the claim should immediately contact the LEO where the file is located and inform them that the dependant has claimed asylum in their own right. A pro forma should also be completed and faxed to the LEO and the case notes on CID of the main applicant on which they were a dependant updated, to record that the dependant has made their own asylum claim.

6 Deciding Who Should Consider the Case, Where Removal Directions Have not Been Set
ASU staff will segment the case into Segment 4 or 5 and pass the file to the New Asylum Model (NAM) Routing Team, who will check the segmentation decision. The case will then be referred to the National Intake Unit (NIU), who will consider whether the applicant is suitable for detention. If the applicant is not accepted for detention, the file is returned to the Routing Team and then allocated to either a Croydon or Liverpool Complete Case Management Team (CCMT), depending on whether accommodation is required by the applicant. The Routing Team will issue the applicant with the Routing letter and IS96 and will also arrange the first reporting event and advise the CCMT of the day and time. Cases that are not transferred to the NAM, should be referred back to ASU who will arrange for the case to be considered by the Asylum Casework Directorate (ACD). When cases are to be considered by ACD, ASU will attach the pro forma to the case file and forward the file to the appropriate ACU.

7 The New Asylum Model


Paragraphs 7 to12 provide instructions for handling swap over claims in the NAM. It should be noted that NAM case owners should follow these instructions regardless of whether the claim on which the applicant was originally dependent, was handled by the NAM. For guidance on how to process cases in ACD, see Guidance on how to Process Cases in Asylum Legacy Directorate. Once the case has been allocated to a CCMT, the CCMT Team Leader will assign a case owner, who will open the risk assessment and case plan and allocate administrative aspects of routing. In conjunction with CCMT Team Support, the case owner should then: Arrange a substantive interview for day 5 (unless the case owner concludes that due to certain circumstances an alternative time scale is more appropriate) and also set Reporting Rhythm. Contact the Interview Booking Unit (IBU) to arrange an interview room and where an interpreter is required for the substantive interview, complete and send an Interpreters Booking Form by e-mail. Prepare all documentation to be given to the applicant at the first reporting event on day 1, including a substantive interview invitation letter and Refugee Council leaflet. Ensure all details are updated on CID. Raise barriers to removal on CID for the dependants of the applicant. The appropriate barrier from the drop down menu in the Removal Group Screen should be selected. This should make it apparent to any IO/LEO or others looking to remove, that there is an outstanding issue which until resolved prevents removal. Team support should also request all sub files by phone. If the case file is at a LEO and removal directions have not been set, it will be released. Any files received by team support should be tracked to the CCMT and linked to the main file.

8 Conducting an Asylum Interview


Case owners are reminded that the Asylum Instruction on Conducting the Asylum Interview, remains current. The NAM case owners should note that if advised by the applicant at a contact management event that their dependant wishes to claim asylum in their own right, they should inform the applicant that their dependant will need to attend ASU in order for their claim to be registered. If the previous dependant claims asylum following the setting of removal directions it will be at the case owners discretion to determine whether they have sufficient evidence to consider the claim and therefore whether it is deemed necessary for the applicant to attend ASU and be interviewed. The NAM case owners should also check whether it is necessary to complete the redocumentation interview, as this may have already been completed

9 Implementing the Decision


Once a decision has been made the case owner should: Prepare the necessary decision paperwork. Update CID to record the determination of the asylum claim. If the claim falls to be refused the case owner should also: Decide whether the applicant should be detained, based on the personal behaviour of the applicant and the likelihood of their removal. It should be noted that this is not an exhaustive list of factors to consider when deciding whether to detain. For a full list see the Operation Enforcement Manual, Chapter 38 Detention/Temporary Release. (The case owner should be considering throughout the asylum process whether detention may be appropriate once the decision has been served). Prepare the necessary removal documentation. If the claim has been refused and certified under section 94 or 96 of the 2002 Act the case owner should: If the claim falls to be granted the case owner should also: Determine whether a SUNRISE service provider is available and if so, prepare the necessary SUNRISE documentation.

10 Serving the Decision in Person


The case owner should serve the decision in person on day 11 (unless the case owner concludes that due to certain circumstances an alternative time scale is more appropriate) and if the claim falls to be refused, advise the applicant whether they are entitled to appeal. If the claim has been certified the case owner should detain the applicant at the service of the decision, unless there are exceptional reasons not to. If the immigration decision attracts a right of appeal the file should be passed to CCMT Team Support, who will prepare the appeal bundle.

11 Guidance on How to Process Cases in Asylum Legacy Directorate


If it has been established that the case is to be considered by ALD, ASU should fax or phone through the pro forma to the appropriate ACU, who will book the substantive asylum interview, fill in the interview booking form and forward it to the appropriate interviewing and consideration unit. The Case Management Unit (CMU) responsible for interviewing the applicant should be informed of the interview date and time. If the applicant is an adult the consideration of the claim should be handled by the CMU dedicated to handling swap over claims. If the applicant is a child the substantive interview and consideration of the claim should be conducted by the CMU responsible for handling claims from minors.

12 Interview Booking Procedure


The interview booking slots for the appropriate CMU should be checked and the steps below followed. The asylum interview booked for two weeks in advance. The invitation to interview letter (ACD.0062) or if the applicant is receiving Asylum Support (ICD.1973) and (ACD.0062) saved. Calendar events on CID updated with the asylum interview details. ASU informed that the letter is ready to print, in order that the letter can be handed to the applicant. If the interview is not booked on the day the claim is made, and therefore the letter cannot be handed to the applicant personally, the letter should be printed and sent to the applicant.

12.1 Updating CID Barrier To Removal Barriers to removal should be raised on CID for the applicants dependants.

13 Requesting Sub Files


All sub files should be requested by phone. If the file is held at a LEO but removal directions have not been set, the file should be released. The sub files should be linked to the new file and then forwarded to the appropriate CMU.

14 Case Management Unit (CMU) Action


When the sub files arrive at the CMU they should be tracked in and attached to the new file. The Team Leader should then complete the interview allocation spreadsheet and allocate the file to a caseworker for interview.

15 Conducting an Asylum Interview


All staff are reminded that the policy instruction given in the AI Conducting the Asylum Interview remain current.

16 Claims from Children


Asylum claims from children who were previously dependent on another application should be interviewed and considered by caseworkers trained to handle claims from children. Further guidance on interviewing asylum seeking children can be found in Processing Asylum Applications from Children.

17 Considering the Claim


Swap over claims should be considered, and judged on their own merits, in the same manner as other asylum claims. If the claim falls to be refused consideration should be given to whether certification is appropriate (see Consideration of certification under section 96 of the 2002 Act and Case by case certification under section 94 of the 2002 Act).

For further guidance see the Asylum Instruction Considering Asylum Claims.

17.1 Consideration of certification under section 96 of the 2002 Act If after examining the claim the application a decision is made to refuse asylum and no leave is to be granted, consideration should be given as to whether certification under section 96 of the NIA Act 2002 is appropriate. When a certificate is issued under section 96 of the 2002 Act, no appeal may be brought. Where caseworkers consider certification under section 96 to be appropriate they should draft an RFRL and pass to a SCW for approval, before implementing the decision. For further guidance on certifying under section 96 see the IDI on Appeals The One-Stop Procedure Warnings and Certificates. See also: 1.1 Application of this instruction in respect of children and those with children

17.2 Case by case certification under section 94 of the 2002 Act If no section 96 certificate is issued, caseworkers should consider whether certification under section 94 may be appropriate. A decision to certify under section 94 should be made by a NSA accredited decision maker. Caseworkers who consider that a case is suitable for case by case certification should clearly minute the file and forward it to the Senior Caseworker (SCW) with country responsibility relevant to the asylum claim. The SCW will then decide whether the claim should be considered by a NSA accredited asylum caseworker or returned to the asylum caseworker for normal action under the non-certified process. For further guidance on certifying under s94 see the AI Certification under section 94 of the NIA Act 2002.

18 Implementing / Serving the Decision


Caseworkers should implement the decision in the usual way and pass the file to team support who will complete the necessary paperwork and dispatch the case file to ADSU, who will serve the decision.

19 Claims from Children


An applicant under 18 years of age will fall within Segment 2 of the NAM. However, minors are currently being dealt with by dedicated CMUs within ACD. Further guidance on interviewing asylum seeking children can be found in Conducting the Asylum Interview.

20 Considering the Claim


Swap over claims should be considered and judged on their own merits in the same manner as other claims. If the claim falls to be refused consideration should be given to whether certification is appropriate (see below) For further information refer to the Asylum Guidance Considering Asylum Claims and related Asylum Guidance.

20.1 Consideration of certification under s96 of the 2002 Act If after examining the claim the application falls to be refused and no leave is to be granted, consideration should be given as to whether certification under section 96 of the NIA Act 2002 is appropriate. When a certificate is issued under section 96 of the NIA Act 2002, no appeal may be brought. Where case owners consider certification under section 96 to be appropriate they should draft an RFRL (ACD.0015) and pass to a colleague of the same grade or above to act as a second pair of eyes, before implementing the decision. For further guidance on certifying under section 96 see Chapter 12 Section 3 of the Immigration Directorates' Instructions Appeals The One-Stop Procedure Warnings and Certificates.

20.2 Case by case certification under s94 of the 2002 Act If no s96 certificate can be issued, case owners should consider whether certification under s94 may be appropriate. A decision to issue a certificate under section 94 should be made by a NSA accredited decision maker. Case owners who are NSA accredited and consider that a case is suitable for case by case certification should make the decision themselves. The case owner should prepare the Recommendation Minute (ACD.2672) and the RFRL (ACD.1956) and then refer the case to a NSA accredited colleague to act as a second pair of eyes. Once the file has been returned to the case owner, the decision should then be implemented. For further guidance on certifying under s94 see the Asylum Instruction Certification under section 94 of the NIA Act 2002.

21 Glossary
Term ACD.1063 ICD.2556 ACD.00156 ACD.2672 ACD.1956 ACD.0062 ACD.1973 Meaning Refusal to accept postal application ASU swap over claim proforma Reasons for Refusal Letter Recommendation minute - NSA cases Reasons for Refusal Letter - NSA cases Invitation to interview letter Travel to interview letter - if receiving Asylum Support

Document Control
Change Record
Version 1.0 2.0 Authors BF CC Date 19/02/07 26/10/09 Change Reference New web style implemented Childrens Duty reference added

THE REASONS FOR REFUSAL LETTER


Table of Contents

Introduction Requirement to Give Reasons For Refusal Stock Letters Template Responsibility for Preparing The Reasons For Refusal Letter General Principles of Reasons For Refusal Letter The Karanakaran judgement Standard Wordings The Content of The Reasons For Refusal Letter Recording Applicant's Details on Reasons For Refusal Letters Recording the applicants name Where the applicant has asked for a change in the personal details recorded on the case file Applicant known by more than one name Recording the applicants nationality Applicant has dual nationality Where the applicants nationality is doubtful Where there is strong evidence that the applicant holds a nationality other than the one claimed Where the applicants age is disputed Dependants Numbering of paragraphs Standard Opening Paragraphs Basis of Claim Basis of claim - Synopsis Introductory Consideration Paragraph Outright refusal Refusing asylum but granting Humanitarian Protection Refusing asylum and Humanitarian Protection but granting Discretionary Leave Age Disputed Cases Unaccompanied Asylum Seeking Children Nationality Doubtful Cases Consideration of the Claim (Asylum) Where the applicant has dual nationality Uncontrolled if printed

Asylum Convention/ Non Convention aspects Non Convention reason Credibility Disclosure in the credibility section External sources Section 8 and Credibility Immigration Issues Journey details Events on and after arrival in the United Kingdom Incidents of Non-Compliance What Not to Include in The Reasons For Refusal Letter Consideration of Humanitarian Protection Consideration of Discretionary Leave The Formal Refusal Paragraphs Asylum and Humanitarian Protection Where refusal includes non-compliance Formal rejection of Human Rights claim Proofreading RFRLs Requirement to proofread Who should proofread the RFRL? What should the proofread involve? Recording that the letter has been proofread Signing the Reasons For Refusal Letter and Placing On File How many copies of the letter should be prepared Where the decision-maker has written the letter but not signed it Where the decision-maker has written the letter but signed only one copy Further Information Reasons for Refusal Letter Where the Applicant is Entitled to Reside in a Country Listed in Section 94(4) of the Nationality, Immigration and Asylum Act (NIA) 2002 (NSA Cases) Letter Heading Basis of claim Credibility Certification SCWU Best Practice - the Basis of Claim The purpose of the basis of claim The structure and contents of the basis of claim section The length of the basis of claim Uncontrolled if printed

Helpful Tips

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Introduction
This section explains how to prepare reasons for refusal letters for asylum and human rights applicants who have been unsuccessful.

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Requirement to Give Reasons For Refusal


Reasons for the refusal must* be given when it is decided to refuse a claim for asylum. This is the case even if leave is granted following the refusal. * A notice given under regulation 4(1) is to include or be accompanied by a statement of the reasons for the decision to which it relates Immigration (Notices) Regulations 2003 Regulation 5(1)(a). Regulation can be found at the Office of Public Sector Information Website: www.opsi.gov.uk/si/si2003/20030658.htm. * If a decision has been taken to refuse asylum after substantive consideration, the decisionmaker will need to draft a reasons for refusal letter. This should clearly set out the reasons why the application is being refused.

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Stock Letters Template


Templates for standard reasons for refusal letters, based on the guidance given in this section, have been created for use by operational staff. There are six different versions available: ACD.0015 is the standard RFRL template to be used in most cases and the instructions in this section explain how to use this template. ACD.1956 should be used when a reasons for refusal letter is being prepared for applicants entitled to reside in the countries listed in section 94(4) of the Nationality, Immigration and Asylum Act (NIA) 2002 (Non Suspensive Appeal cases) (see Reasons for Refusal Letter where the applicant is entitled to reside in a country listed in section 94(4) of the Nationality, Immigration and Asylum Act (NIA) 2002 (NSA cases) for further guidance on how to use this template). ACD.2220 or ACD.2221, as appropriate, should be used when a reasons for refusal letter is being prepared for active review cases ACD.1000 or ACD.1005, as appropriate, should be used in cases where the refusal of asylum involves administrative non-compliance.

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Responsibility for Preparing The Reasons For Refusal Letter


An officer trained for the purpose of considering asylum claims must prepare the entire reasons for refusal letter from beginning to end. (Note: This does not apply to Non Suspensive Appeal cases).

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General Principles of Reasons For Refusal Letter


The reasons for refusal letter should be written clearly and concisely. Subject to the need to express legal requirements accurately, decision makers should bear in mind that English may not be the first language of the applicant and therefore should avoid using over-complicated words or sentence structure. The reasons for refusal letter should address every aspect of the asylum claim and set out the decision-makers consideration of the application. Care needs to be taken in terms of accuracy and clarity of content because the reasons for refusal letter is the document which informs the applicant of the reasons for the decision taken on behalf of the Secretary of State regarding his claim for asylum. Where there is a right of appeal, and this has been exercised, the reasons for refusal letter provides the Case Owner or Presenting Officer with information on which they can base their submission to the Immigration Judge.

The Karanakaran judgement When writing a reasons for refusal letter decision makers must apply the principles set out in the Karanakaran judgement*. The judgement requires decision makers to state which aspects of the claim they accept as being true, which they do not, and which are still in doubt, and to give their reasons for their conclusions. For further guidance see: Credibility *Secretary of State vs. Karanakaran (2000)

Standard Wordings Standard wordings are pre-prepared blocks of generic text which have been designed to assist operational staff. They can be inserted within the reasons for refusal letter templates using the standard wordings toolbar button. The standard wordings include both country specific and non country specific paragraphs. Care should be taken when using standard wordings to ensure that they are up to date and appropriate to the claim. They will not necessarily be complete paragraphs and may contain areas of optional or free text that will need to be completed according to the details of each specific case. Where officers have any doubts about using standard wordings, they should consult a senior caseworker. Standard paragraphs are produced and maintained by senior caseworkers, and are agreed by Legal Advisers Branch (LAB). Where officers identify a need for a new standard paragraph they should raise this with their senior caseworker.

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The Content of The Reasons For Refusal Letter


The reasons for refusal letter must include the following elements: Applicants details Basis of claim asylum, Humanitarian Protection and human rights Introductory Consideration Paragraph Consideration Refugee Convention Consideration - Humanitarian Protection (in accordance with paragraph 339c of the Immigration Rules) Consideration other human rights (in accordance with the Asylum Instructions on Discretionary Leave) Formal Refusal Paragraph(s)

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Recording Applicant's Details on Reasons For Refusal Letters


The following details should be correctly recorded at the beginning of the reasons for refusal letter: Applicant's name in full (with surname in capitals) Nationality Date of birth Home Office reference number (Our ref) Date of the letter

Recording the applicants name The forenames and surnames of the applicant should be spelt out in the reasons for refusal letter exactly as they appear on the front of the case file where this is not in dispute. The surname of the applicant should be recorded in capitals: David SMITH

Where the applicant has asked for a change in the personal details recorded on the case file Instructions on when changes in an applicants personal details can be accepted are to be added in due course. Until then, officers with queries should contact their senior caseworker on a case by case basis.

Applicant known by more than one name Aliases or other names by which the applicant is currently known (e.g. where a married woman uses both her maiden name and her married name) should be indicated on the reasons for refusal letter thus: Sandra SMITH Sandra DUNCAN (Also known as) False names used by the applicant, for example, on documents used to gain entry to the United Kingdom should not be recorded on the reasons for refusal letter. However, where an applicant has made a previous claim in another identity (multiple applications), the name accepted as genuine should be recorded thus: John SMITH (genuine identity) Below the nationality and date of the letter, details of all false identities should be listed as follows: AKA John MARK (False identity) 2nd February 1985 BRITISH Uncontrolled if printed

Recording the applicants nationality Officers should use the correct term for the applicants nationality. If they are unsure of the correct term, they should seek the advice of a senior caseworker.

Applicant has dual nationality Where it is accepted that the applicant has dual nationality, this should be recorded as shown below:

NATIONAL OF THE UNITED KINGDOM AND THE REPUBLIC OF IRELAND

Where the applicants nationality is doubtful Where the nationality of the applicant is doubtful, (Claims to be) should be added after the nationality is recorded in the applicants details, as shown below: BRITISH (Claims to be) (See also Nationality Doubtful Cases)

Where there is strong evidence that the applicant holds a nationality other than the one claimed Where the decision-maker has concluded that the applicant is not of the claimed nationality and there is strong evidence that they hold another nationality (e.g. they claim to be Zimbabwean but are in possession of a valid South African passport) the applicants nationality should be recorded as shown below: ENGLISH (Claims to be) SCOTTISH (Believed to be)

Where the applicants age is disputed Where the applicants age has been disputed, (Disputed) should be added after the claimed date of birth in the applicants details as follows: 22 November 1988 (Disputed) (See Age Disputed Cases)

Dependants Details about a applicants dependants (i.e. name, address, date of birth), should not be recorded in reasons for refusal letters (Note: this instruction does not apply to NSA cases see Reasons for Refusal Letter where the applicant is entitled to reside in a country listed in section 94(4) of the Nationality, Immigration and Asylum Act (NIA) 2002 (NSA cases). Uncontrolled if printed

For information on how to deal with dependants see APM Dependants and AI Dependants.

Numbering of paragraphs Each paragraph throughout the reasons for refusal letter should be numbered.

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Standard Opening Paragraphs


The reasons for refusal letter should always begin with specific standard opening paragraphs which record the claim that has been made and set out how this will be considered. The wordings should be the same in every refusal of asylum. For ease of use by operational staff, standard wordings automatically appear each time the template is opened. The last paragraph of this section of the letter is optional, and officers should ensure that it is deleted in all cases where Humanitarian Protection is being granted. Opening Paragraphs of the Reasons for Refusal Letter You have applied for asylum in the United Kingdom and asked to be recognised as a refugee under the 1951 Convention relating to the Status of Refugees (Geneva Convention) on the basis that it would be contrary to the United Kingdoms obligations under the Geneva Convention for you to be removed from or required to leave the United Kingdom. You claim to have on the grounds that you have a well-founded fear of persecution in country. A person is a refugee where owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, that person is outside the country of his nationality and is unable or, owing to such a fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable, or owing to such a fear, is unwilling to return to it and is not excluded from the protection of the Geneva Convention. Your application has not been considered by the Secretary of State personally, but by an official acting on his behalf. Consideration has also been given to whether or not you qualify for a grant of Humanitarian Protection in accordance with paragraph 339C of the Immigration Rules. A person will be granted Humanitarian Protection in the United Kingdom if the Secretary of State is satisfied that: substantial grounds have been shown for believing that the person concerned, if the person returned to the country of return, would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail him or herself of the protection of that country; and the person is not excluded from a grant of Humanitarian Protection

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Basis of Claim
The basis of claim comprises three elements: Basis of claim - Asylum Basis of claim Humanitarian Protection issues raised Basis of claim - human rights other than Humanitarian Protection (and any truly compelling circumstances raised; see the API on Discretionary Leave).

These elements should be set out as the opening to the main body of the reasons for refusal letter. The basis of claim should begin with the standard opening wordings shown below. These standard wordings must be used in the order in which they are set out below: Your claim for asylum is based upon your fear that if returned to country, you would face mistreatment due to your race and due to your religion and due to your nationality and due to your membership of a particular social group and due to your political opinion and due to a reason not covered by the Geneva Convention. Your claim for Humanitarian Protection is based upon your fear that if returned you would face a real risk of the death penalty or execution and unlawful killing and torture or inhuman or degrading treatment or punishment in the country of return and serious and individual threat to your life or person by reason of indiscriminate violence in a situation of international or internal armed conflict. Delete option 2 if not applicable Option 2 Other ECHR article raised You also claim that your removal to country would be a breach of free text (any other Article(s) raised by applicant not already mentioned above) of the ECHR. Free text for BASIS OF CLAIM Decision makers should ensure that they delete the options in the standard text above that do not apply. Where the applicant fears persecution for a non convention reason the phrase a reason not covered by the Geneva Convention should be deleted and the specific reason advanced added (e.g. because your business partners have threatened to kill you because they say you owe them money). Decision makers should ensure that they select the relevant options for each case to complete the paragraphs above. For further guidance on drafting the basis of claim, see SCWU BEST PRACTICE - THE BASIS OF CLAIM

Basis of claim - Synopsis Decision makers should then set out the basis of the applicants case. This section should be a concise, but complete summary of past events. It does not need to be overly detailed since the relevant events will be covered in more detail in later sections in the letter. In some circumstances it may be useful to include a brief summary of the applicants immigration history, where it has been considered to be relevant to the consideration of the claim. The synopsis should end with a reference to who the applicant fears in their country of nationality, and what they fear will happen if they return there. Decision makers should ensure that anything they comment on later in the letter is included in the basis of claim synopsis. For further guidance on drafting the basis of claim, see SCWU BEST PRACTICE - THE BASIS OF CLAIM.

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Introductory Consideration Paragraph


The Introductory Consideration paragraph explains that the claim has been considered and sets out the decision that has been reached. The paragraph should be included in the letter at this stage. For ease of use by operational staff, standard wordings for the paragraph have been prepared, depending on the case outcome, and are shown below. Decision makers should ensure that they use the wording applicable to the case. Outright refusal Where the decision is outright refusal, the following paragraph should be used: Your claim has been considered, but for the reasons given below it has been concluded that you do not qualify for asylum or Humanitarian Protection. It has also been concluded for the reasons given below that you do not qualify for limited leave to enter or remain in the United Kingdom in accordance with the published Home Office Asylum Policy Instruction on Discretionary Leave.

Refusing asylum but granting Humanitarian Protection When refusing asylum but granting Humanitarian Protection, the following paragraph should be used: Your claim has been considered but for the reasons given below it has been concluded that you do not qualify for asylum. However, it has been decided to grant you Humanitarian Protection and limited leave to enter/remain in the United Kingdom in accordance with paragraph 339E of the Immigration Rules. This is because free text (to explain reason).

Refusing asylum and Humanitarian Protection but granting Discretionary Leave When refusing asylum and Humanitarian Protection but granting Discretionary Leave, the following paragraph should be used: Your claim has been considered but for the reasons given below it has been concluded that you do not qualify for asylum or Humanitarian Protection. However, it has been decided to exercise discretion in your favour and grant you limited leave to enter/remain in the United Kingdom in accordance with the published Home Office Asylum Policy Instruction on Discretionary Leave because (Article 8) of your family life/(Article 3 medical) of your medical condition/(Article 3 other) of severe humanitarian issues in your country/(UASCs) you are an unaccompanied child for whom we are not satisfied that adequate reception arrangements in your own country are available/ xxxx (other reason). Officers should amend the text as appropriate to the applicants case.

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Age Disputed Cases


In cases where an applicants age has been disputed officers should insert the following paragraph into the letter: When you made your application for asylum/human rights, you claimed that your date of birth is date. However, you have failed to produce any satisfactory evidence to substantiate this claim. Although you claimed to be a child your physical appearance/xxxx (other reasons) before the screening officer suggested that you were over eighteen. In the absence of any satisfactory evidence to the contrary, it is not accepted you are a child for the purposes of paragraph 349 of the of HC 395 (as amended). This paragraph should be inserted after the Introductory Consideration paragraph (for further guidance on identifying and processing applications from applicants whose age has been disputed see Disputed Age Cases).

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Unaccompanied Asylum Seeking Children


Where an application from a child applicant, who was not required to attend a substantive asylum interview, has been refused, the following wording should be used in the reasons for refusal letter: As it was possible to obtain by written enquiries, or from other sources, sufficient information properly to determine your claim, it has been decided that, in the light of paragraph 352 of HC 395 (as amended), it would not be appropriate to interview you about the substance of your claim. If applicable, this paragraph should be inserted into the reasons for refusal letter after the Introductory Consideration paragraph.

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Nationality Doubtful Cases


For guidance on processing applications where the applicants nationality is doubted see Nationality Doubtful Cases Guidance (When available).

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Consideration of the Claim (Asylum)


The next part of the reasons for refusal letter should be the consideration of the claim. The elements below must be incorporated at this stage in the letter: Convention aspects Credibility (asylum and human rights) Immigration issues (if applicable) Incidents of Non Compliance (if applicable)

Where the applicant has dual nationality For processing cases where the applicant has dual nationality see Nationality Doubtful cases when published.

Asylum Convention/ Non Convention aspects The asylum convention section should begin by setting out whether or not the applicants fear of persecution brings them within the scope of one or more of the five Convention reasons and if so, which Convention reason(s). It should then go on to set out the reasons why the United Kingdoms obligations under the Refugee Convention have not been engaged (for information on the five Refugee Convention reasons see Asylum Instruction on Considering The Asylum claim).

Non Convention reason In cases where the applicants fear of persecution does not bring him within the scope of the Convention, the reasons why should be set out in full, beginning with the following wording: The reason you have given for claiming a well founded fear of persecution under the terms of the 1951 United Nations Convention relating to the Status of Refugees, is not one that engages the United Kingdoms obligations under the Convention. Your claim is not based upon a fear of persecution in country because of race, religion, nationality, membership of a particular social group or political opinion.

Credibility (Note: The following does not apply to reasons for refusal letters being prepared for use in Non Suspensive Appeal (NSA) cases. See Reasons for Refusal Letter where the applicant is entitled to reside in a country listed in section 94(4) of the Nationality, Immigration and Asylum Act (NIA) 2002 (NSA cases) for further information on NSA cases) Next in the letter, decision makers should set out their consideration of the credibility of the claim, ensuring that all significant credibility issues that led to the decision to refuse asylum are included. This section of the letter should begin with the strongest credibility points and focus in most depth on those that are specific to the applicant or claim in question. More general credibility points, such as a delay in leaving the country or failure to claim asylum when travelling Uncontrolled if printed

through a third country, should be added towards the end of the credibility section. In most cases, it will be appropriate to address all credibility issues identified in the reasons for refusal letter. However, decision makers should consider whether, where refusal is based on strong credibility issues, there is any value in including minor credibility points, particularly if they are general, rather than specific to the applicant. If applicable any free text options within standard wordings which are used here should be completed. Where decision makers are using answers to specific questions posed at the screening or substantive interview as part of the credibility section, the number of any question being referred to and the page of the interview on which it appears should be quoted in the reasons for refusal letter. When addressing credibility, officers should bear in mind the Karanakaran judgement referred to in The Karanakaran judgement and state clearly whether each aspect is accepted, not believed or is doubted. Officers must ensure therefore that after they have outlined each credibility point, their conclusions are explicitly stated. Some example wordings are below: ...It is concluded therefore that you were not detained as you claim. ...It is not accepted that it would have been possible for you to escape from your alleged attackers in the way you have described ...Your claim to have been tortured is therefore rejected

Disclosure in the credibility section Decision makers should state the source of any objective evidence used in the Reasons for Refusal letter. This includes information or documents that are obtained from sources such as Home Office Country Reports, Operational Guidance Notes (OGNs), or US State Department Reports, and which were subsequently used to test an applicants credibility in the reasons for refusal letter. This is helpful to the Presenting Officer and Immigration Judge at the appeal stage. However, any information marked as Restricted or Not for disclosure outside UK Border Agency cannot be used in any reasons for refusal letter.

External sources Where information from outside sources has been used to create questions designed to test a applicants credibility, the source of such information should be recorded in the reasons for refusal letter. A minute for the attention of the Presenting Officer should be attached to the right hand side of the case file, and a copy of the relevant document annexed to the PF1. Similarly, where officers have consulted a Senior Caseworker, any information which they provide, and which is used as the basis of questions to test a applicants credibility, must be sourced, and a copy of the advice sought and received placed on the case file and minuted for the attention of the Presenting Officer.

Section 8 and Credibility Under section 8 of The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 decision makers are required to take into account as damaging to the applicant's credibility any behaviour by the applicant they think is designed or likely to conceal information, mislead, or obstruct or delay a decision. The API on Credibility provides further information. Decision makers should ensure that the reasons for refusal letters contain the relevant section 8 paragraphs. There is no requirement to place the paragraphs in a particular place in the letter Uncontrolled if printed

and the officer should include the paragraphs in a place which they think fits the best.

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Immigration Issues
Immigration issues should only be included in any reasons for refusal letter if they were material to the officers consideration of the case and their decision. Immigration issues may include the following elements: Journey details Events on and after arrival in the United Kingdom

Journey details Officers should set out their consideration of any aspects of the applicants journey to the United Kingdom that they deemed relevant to their consideration and subsequent decision to refuse asylum.

Events on and after arrival in the United Kingdom If applicable, officers should set out their consideration of any relevant events which happened either at immigration control upon arrival in the United Kingdom or after they entered, and which were relevant to their consideration and subsequent decision to refuse asylum.

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Incidents of Non-Compliance
Where the decision is to refuse asylum and; the applicant has been issued with a Statement of Evidence Form (SEF) and has returned it; but has subsequently failed, without agreement or acceptable reason, to attend for a substantive interview;

the reasons for refusal letter should be prepared in accordance with the instructions in this section, setting out the consideration of any information on the case file. After the consideration of the claim has been recorded, the following wording should also be included in the letter: You were asked to attend for an interview on date and time in connection with your claim for asylum in the United Kingdom. However, you did not attend at the date and time requested and no satisfactory explanation has been given. You have therefore taken an unreasonable time to provide evidence required to establish your claim under the asylum rules.

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What Not to Include in The Reasons For Refusal Letter


Although decision-makers can refer indirectly to information contained in documents which cannot be annexed, the source of such information must not be revealed. A definitive list of documents which cannot be annexed, and therefore whose source cannot be directly referred to in the reasons for refusal letter, can be found in the Asylum Instruction on The PF1 If the decision maker uses information from one of the documents which cannot be annexed they should minute the case file, for the attention of the Presenting Officer, informing him/her where the document containing the relevant information appears on the case file. Information marked Not for Disclosure outside UK Border Agency Officers must not include information from sources marked as Not for Disclosure Outside UK Border Agency in the reasons for refusal letter. Information marked as Restricted Decision-makers must not use information from sources marked Restricted in the reasons for refusal letter.

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Consideration of Humanitarian Protection


Following the consideration of the asylum aspects of the claim decision makers should set out in the reasons for refusal letter, their consideration of any Humanitarian Protection aspects of the claim against paragraph 339C of the Immigration Rules (as explained in the API on Humanitarian Protection). Where Humanitarian Protection is being refused the reasons why should be set out.

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Consideration of Discretionary Leave


Where Humanitarian Protection is being refused, following the consideration of the Humanitarian Protection related aspects of the claim decision makers should set out in the reasons for refusal letter, their consideration of any Discretionary Leave aspects of the claim against the published policy in the Asylum Instruction on Discretionary Leave. Where Discretionary Leave is being refused, the reasons why should be briefly set out. As above each aspect considered should be addressed in a separate paragraph. The consideration of Discretionary Leave should include consideration of any ECHR aspects of the claim that have not been covered in the reasons for refusing Humanitarian Protection. The most common categories are Article 8 (private and family life) and Article 3 (medical claims where there is no need for protection as such). If it is considered that there is a clear Convention right to be addressed, but that it falls to be refused, reasons should be recorded in the reasons for refusal letter. Any such articles should be addressed using the paragraphs contained in the Asylum Instruction on Considering Human Rights. If no further specific ECHR Articles are mentioned or clearly raised on the facts of the case, it is not necessary to address all the issues that might conceivably apply.

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The Formal Refusal Paragraphs


Asylum and Humanitarian Protection The main body of the reasons for refusal letter should always conclude with the formal refusal of the asylum claim thus: In the light of all the evidence available, it has been concluded that you have not established a well-founded fear of persecution and that you do not qualify for asylum. Your asylum claim is therefore refused under paragraph 336 of HC395 (as amended). It has also been concluded that you have not shown that there are substantial grounds for believing that you face a real risk of suffering serious harm on return from the UK and that you do not qualify for Humanitarian Protection. Therefore your application has also been refused under paragraph 339F of the Immigration Rules. Your application has been recorded as determined on date.

Where refusal includes non-compliance In cases where refusal involves non-compliance officers must add that the applicant has also been refused under paragraph 339M of the Immigration Rules (HC 395) to the Formal Refusal paragraph in the letter. In the light of all the evidence available it has been concluded that you have not established a well-founded fear of persecution and that you do not qualify for asylum. Your asylum claim is therefore refused under paragraphs 336 and 339M of HC 395 (as amended). It has also been concluded that you have not shown that there are substantial grounds for believing that you face a real risk of suffering serious harm on return from the UK and that you do not qualify for Humanitarian Protection. Therefore your application has also been refused under paragraph 339F and 339M of the Immigration Rules. Your application has been recorded as determined on date.

Formal rejection of Human Rights claim Where any human rights claims have not been accepted the following paragraph should be inserted after the formal refusal of the asylum claim: On the basis of the information you have provided, it has been concluded that your removal would not be contrary to the United Kingdoms obligations under the ECHR.

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Proofreading RFRLs
Requirement to proofread Careless drafting errors in reasons for refusal letters (RFRLs) and other decision documents, such as incorrect details for the applicant and references to the wrong country or nationality, can significantly damage the credibility of the Home Office in the eyes of applicants, Ministers, MPs, representatives, stakeholders and the public, and can adversely influence our case before an Adjudicator at appeal. Such errors can give the impression that full care and individual consideration has not been given to the case. In order to prevent this, and bearing in mind that it can be more difficult to spot errors in ones own work, RFRLs and other decision documents should be proofread by another person to identify any simple errors for correction before they are dispatched.

Who should proofread the RFRL? After the RFRL has been drafted to the satisfaction of the officer, it should be passed to a colleague of Executive Officer (EO) level or above for proofreading.

What should the proofread involve? The proofread is intended to be a quick check involving one read through. The purpose is not to review the decision but only to identify any immediately apparent and simple errors in the reasons for refusal letter. The member of staff proofreading the letter should look out for the following types of basic error: Errors in the applicants personal details (i.e. name, gender, nationality, date of birth) Missing or incorrect Home Office reference number Incorrect references to the applicants country or nationality Standard paragraphs that obviously do not relate to the applicants country or nationality, or free text fields in standard paragraphs that have not been completed. Obvious typing or grammatical errors.

The officer responsible for drafting the RFRL should be notified of any errors of this kind and they should then make the necessary corrections before arranging for it to be dispatched.

Recording that the letter has been proofread The member of staff who proofreads the letter should record their name and sign, and date the relevant part of the Proofreading section of the standard implementation minute sheet on file after they have done so. If a standard implementation minute sheet has not been used, the member of staff who has proofread the letter should add the following sentence to, and sign their name on, the minute sheet on the left hand side of the file: The reasons for refusal letter and other decision documents were proofread by name on date. Uncontrolled if printed

Signing the Reasons For Refusal Letter and Placing On File


The reasons for refusal letter must always be signed by the officer who drafted it. Letters must be signed by the decision-maker acting on behalf of the Secretary of State*. The form of text given below must be used: no variation is permissible. [manuscript signature] name of decision maker in (typescript) Asylum Casework Directorate/New Asylum Model acting on behalf of the Secretary of State

How many copies of the letter should be prepared Six original copies of the reasons for refusal letter should be prepared. All six copies must be signed and dated by the officer who wrote it. One copy should be hole punched and attached to the right hand side of the case file, while the other five copies should be attached to the left side of the case file with paper clips.

Where the decision-maker has written the letter but not signed it If the decision-maker who wrote the reasons for refusal letter has not signed the letter or any of the copies, and it is not possible for them to do so, another officer may sign all copies of the letter.

Where the decision-maker has written the letter but signed only one copy If the officer who wrote the reasons for refusal letter has signed only one copy, and is unable to sign the other copies, e.g. they are no longer working in the Unit, the signed copy of the letter should be destroyed and another blank copy produced. All six blank copies can then be signed by another officer. The original signed copy should not be kept on file and the other five copies merely signed by another officer as all six copies of the letter should all be exact copies of one another.

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Further Information
The RFRL Crib Sheet and Appendices A crib sheet and appendices, which refer specifically to the various sections and the order of preparation of the reasons for refusal letter will be released in due course. This is specifically designed to be used, when completing the reasons for refusal letter, in conjunction with the template. Decision-makers will be informed when this is available.

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Reasons for Refusal Letter Where the Applicant is Entitled to Reside in a Country Listed in Section 94(4) of the Nationality, Immigration and Asylum Act (NIA) 2002 (NSA Cases)
The reasons for refusal letter in NSA cases differs in certain respects from the guidance above. The appropriate template to use is ACD.1956. The following should be noted in particular:

Letter Heading Details of the dependants should be recorded at the beginning of the reasons for refusal letter, below the applicants details.

Basis of claim The section of the letter giving the basis of claim should set out full details of the events and issues outlined by the applicant in a logical order. Full reference to the interview as well as statement of evidence form submitted should be made, using the applicants own words where possible. References to question and page numbers should be included where appropriate.

Credibility Consideration of the claim will be on the basis of the availability of national protection and the possibility of internal flight. Credibility issues will rarely be relevant. The body of the letter should therefore set out the officers consideration of these aspects, using objective country information and standard wordings where appropriate.

Certification Where the officer has concluded that the claim for asylum should be certified as clearly unfounded, the following paragraph should be included after the paragraph formally refusing the asylum claim, and before the paragraph formally rejecting any human rights claim: In addition, your asylum claim is one to which section 94(3) of the Nationality, Immigration and Asylum Act 2002 applies. This requires the Secretary of State to certify that your claim is clearly unfounded unless he is satisfied that it is not clearly unfounded. After consideration of all the evidence available, it has been decided that your claim is clearly unfounded. Therefore, it is hereby certified under section 94(2) of the Nationality, Immigration and Asylum Act 2002 that your claim is clearly unfounded. Where a human rights claim has been rejected the claim should also be certified.

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SCWU Best Practice - the Basis of Claim


(1st published as APN 08/2005 on 23 May 2005) This section is intended to act as an aide memoire to decision makers drafting a applicants basis of claim in the reasons for refusal letter. It should be read in conjunction with the main text. The purpose of the basis of claim The purpose of the basis of claim is two-fold: It serves as an introduction to the RFRL or grant minute. It demonstrates to the applicant, his representatives and to the AIT Judge(s), that when making a decision, on behalf of the Secretary of State, the decision-maker was aware of all significant aspects of the applicants claim and considered the particular circumstances of the applicant in full.

The structure and contents of the basis of claim section The basis of claim is set out in four parts, identifying: 1. The 1951 Convention and non-Convention reasons for claiming asylum; 2. Any Humanitarian Protection issues raised. 3. Any other ECHR articles raised by the applicant (i.e. articles not falling within the scope of Humanitarian Protection; and, 4. The events or incidents and reasons that led to the applicant leaving his / her country and seeking international protection in this country, and explains what the applicant fears will happen if he/she returns. Below are the standard opening words for the basis of claim as they appear in the RFRL template: Part B. Basis of Claim The basis of claim must always begin with the following standard wording: (delete phrases as applicable). Your claim for asylum/Humanitarian Protection is based upon your fear that if returned to country, you would face mistreatment due to your race and due to your religion and due to your nationality and due to your membership of a particular social group and due to your political opinion and due to a reason not covered by the Geneva Convention. Your claim for Humanitarian Protection is based upon your fear that if returned you would face a real risk of the death penalty or execution and unlawful killing and torture or inhuman or degrading treatment or punishment in the country of return and serious and individual threat to your life or person by reason of indiscriminate violence in a situation of international or internal armed conflict. Delete option 2 if not applicable Option 2 Other ECHR article raised You also claim that your removal to country would be a breach of free text (any other Article(s) raised by applicant not already mentioned above) of the ECHR. Free text for BASIS OF CLAIM Decision makers should ensure that the basis of claim clearly sets out the reasons why the applicant is seeking international protection using the following structure: 1. Set out any 1951 Convention/ non-Convention reasons; 2. Set out any reasons for claiming Humanitarian Protection; 3. Set out any claims under ECHR Articles that are not covered by a Humanitarian Protection claim, using the Option 2 standard paragraph (above), if no other Articles are Uncontrolled if printed

raised, either directly or by clear implication, then delete the Option 2 standard paragraph; In the free text section decision-makers should cite page, question and paragraph numbers from interviews and SEFs or statements, ensuring that: 1. All perceived agents of persecution (i.e. both State and non-State) raised by the applicant are identified; 2. All past events or incidents relevant to the fears of persecution mentioned by the applicant are summarised (who? what? when? where? and why?) preferably in chronological order and citing the dates the claimed incidents occurred; 3. All fears mentioned by the applicant regarding possible return to country of nationality or habitual residence are identified; If there are significant differences between the claim as set out in the SEF (if applicable) and at the interview, then decision makers should set out the basis of claim in the same way as mentioned above, but by using two different paragraphs in the free text section, opening as: In your SEF your claim for international protection is based on and In your interview your claim for international protection is based on Alternatively, decision makers may set out the information given in the SEF and separately record additional (and relevant) information or clarifications provided at the interview, or where relevant, the applicants inability to provide such clarifications.

The length of the basis of claim Decision makers will not be marked down on account of the length of a basis of claim. The basis of claim should be as long as it needs to be. What is important is that the basis of claim is comprehensive, logical, concise, and clearly set out.

Helpful Tips Decision makers are encouraged to use bullet points or sub-paragraphs in the basis of claim, as this is a good way to list or summarise events concisely and prevents irritating repetition of You claimed that You stated that. For example; You claimed in your Screening Interview dated and your Statement of Evidence Form dated and your Asylum Interview Record dated that: a.) You were born in x on date y in and are of z ethnicity (Screening page, SEF page). b.) In 199x when you were y years old your family fled to country because your father was a member of z Party and was wanted by the country Security forces (SEF page, AIR Q) c.) SEF page, AIR Q Decision makers should always cite document, page, paragraph or Question numbers when referring to the applicants evidence; Where the basis of claim is lengthy, splitting it into two or more paragraphs is likely to improve clarity; The basis of claim should not contain any analysis of the facts claimed, as this will be addressed in the consideration of the claim section of the letter; Any event or incident that is addressed in the bulk of the RFRL or grant minute should be mentioned in the basis of claim; Uncontrolled if printed

If the name of a political party (or any other term that can be abbreviated) forms part the basis of claim, the full title of the party should be given in the first instance, with any abbreviation included in brackets. E.g. "you stated you were a member of the Movement of Democratic Change (MDC)" Subsequent references to the political party may then be abbreviated, e.g. "You claimed that as a result of your membership of the MDC."; Decision makers should not copy directly from the applicants statement or SEF when drafting the basis of claim. (E.g. decision makers should not replicate in the RFRL the poor grammar or misuse of language employed by the applicant or their representative in the original SEF/ statement); Emotive words should not be used; While the claimed incidents must be identified in the basis of claim section, it is not necessary to go into a great deal of detail; and, Adverse credibility inferences under Section 8 should not be mentioned in the basis of claim.

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Document Control
Change Record
Version 1.0 2.0 Authors DD SK Date 05/03/07 07/11/08 Change Reference New format Implemented Update branding only

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Detention Rule 35 Process


Table of Contents 1 Introduction 1.1 Audience 1.2 Purpose 1.3 Background 2 Administrative and Management Process 2.1 IRC Healthcare Team 2.2 IRC UK Border Agency Contact Management Team 2.3 Case Owner 2.4 Directorate Responsibilities and Central Point of Contact 3 Rule 35 Reports Responses and Detention Reviews 3.1 Detention Reviews 3.2 Rule 35 Report Report Content 3.3 Rule 35 Report Responses 3.1.1 Rule 35 Report Responses - Core Requirements 3.1.2 Rule 35 Report Report Discloses No Information 3.1.3 Rule 35 Report Released Detainees 4 Asylum and Human Rights Claims Further Information 4.1 Asylum and HR Applicants 4.2 No History of Asylum or HR Claim Glossary

1 Introduction
1.1 Audience This instruction is intended for the sight of all officers with direct or indirect responsibility for handling and managing detained cases. This instruction is aimed at Immigration Group, but the underlying Rule 35 policy and the principles of priority consideration and accountability apply across the UK Border Agency. Other UK Border Agency areas may therefore link to this instruction. The term case owner is used throughout. This refers to the case owner role in the Agency in its broadest sense, not only asylum case owners. It is fully understood that certain actions will be carried out by other officers, but with the case owner retaining overall responsibility.
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1.2 Purpose This instruction is intended to provide instruction on mandatory actions and considerations to be taken where a report is issued under Rule 35 of the Detention Centre Rules 2001. There are no exceptions to the mandatory character of the actions and considerations
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1.3 Background Under Rule 35 of the Detention Centre Rules 2001, healthcare teams at Immigration Removal Centres (IRCs) who have concerns that a detained person has a special illness or condition or may have been a victim of torture, are required to report such cases to the centre manager. These reports are then passed via the UK Border Agency teams at the IRCs, to the office responsible for managing and/or reviewing the individuals detention and to the casework unit/case owner dealing with the individuals substantive case. Detention Service Order 03/2008 lays out the policy and actions requires of contractors and Detention Services staff and officers in IRCs, but these points will be repeated for clarity. The principal purpose of Rule 35 is to ensure that particularly vulnerable detainees are brought to the attention of those with direct responsibility for authorising, maintaining and reviewing their detention. The information contained in such reports will in every case need to be considered in deciding whether continued detention is appropriate, and may also need to be considered in relation to its possible impact on the prospects for removal. It is also important that due consideration is given to these reports in connection with considering the substantive asylum and Human Rights Act application. It is important to note that many Rule 35 reports relate to the health or suicidal intentions of detainees. However, Rule 35 reports more often relate to torture allegations or concerns, and so accordingly, there is a certain focus on such cases in this instruction (particular at section 3). For the purpose of this instruction, an allegation or claim of torture is defined as any act of torture which occurred outside of the United Kingdom. All Rule 35 reports, regardless of subtype, must be handled professionally and promptly, according to the processes laid out in this instruction.
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2 Administrative and Management Process


2.1 IRC Healthcare Team Actions and considerations: Compile a Rule 35 report where any of the terms of Rule 35(1) to (3) are met, ensuring that the detainee signs the consent form; Pass any Rule 35 report immediately to the IRC contact management team, according to the locally arranged transaction process (e.g., by hand, faxed, scanned/emailed, etc.).
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2.2 IRC UK Border Agency Contact Management Team Actions and considerations: Ensure that all Rule 35 reports are allocated within 24 hours of receipt; Ensure that the Rule 35 report from the healthcare team sets out the nature of the issue such that a response is possible. If it does not, ask the healthcare team for clarification. This must happen without undue delay, within the 24 hour receipt period, pre-allocation; Identify the relevant case owner, from the CID Case Ownership tab in the first instance. Also look at CID Notes and CID Admin Events (especially CCD cases). Where case ownership is unclear or is in transition, it will be appropriate for responsibility to fall to the officer most recently responsible for authorising/reviewing ongoing detention, identifiable from CID Restrictions, or Doc Gen documents (e.g., detention reviews or IS.91R); Telephone the case owner to confirm ownership, confirm fax number/email address, and to inform them to be ready to receive a Rule 35 report by fax or email; If necessary make further telephone calls until the case owner is confirmed, documenting attempts clearly on CID Notes; If the case owner cannot be established after reasonable attempts, contact the Rule 35 central point of contact in the directorate most recently identified from the CID Case Ownership tab, CID Notes and Doc Gen documents). The central point of contact must identify a case owner within an hour, or complete the due Rule 35 actions themselves; Once case ownership is properly confirmed, fax/email the case owner the forms annexed to DSO 03/2008 (Rule 35 report fax header; Rule 35 report and consent form, response form), and collect transmission/sent receipt, examine and place in local files; Telephone the case owner to confirm fax/email receipt, and to request they open a CID Case Type for Rule 35, in the appropriate Rule 35 type; Update CID Notes to explicitly state that the case owner has been confirmed, has received the fax/email, and has opened the Rule 35 case on CID; Update local tracking diary and other records; If no response has been received by midday of the deadline day, telephone the case owner to remind them of the deadline, and update CID Notes accordingly; If a response is late, telephone the case owner no later than the due date +1, asking that they return a response as a priority, and informing them that the matter must, as a matter of published process, now be reported. Update CID Notes accordingly; Perform relevant quality checks (that the returned response relates to any substantive information identified in the Rule 35 report and clearly shows reasons for continued detention, if applicable). Ask the case owner for the report to be re-written if necessary; If the detainee has been transferred to another IRC, receive the response from the case owner, and forward the report to the relevant IRC, telephoning to confirm receipt; Compile management information returns for the period, and send for collation to the central Detention Services contact, according to the established reporting process.
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2.3 Case Owner Actions and considerations: Respond to Rule 35 reports no later than two working days after the day of receipt; Ensure that CID Case Ownership details are always accurate; Receive telephone calls to confirm ownership, and provide fax/email details to IRC; Collect faxes/emails from IRC, taking steps with any team administration officers to ensure that faxes are brought to immediate attention; Receive telephone calls from IRC to confirm fax/email receipt; Open a CID Case Type, reflecting the appropriate rule: o Rule 35(1) Health Concerns; o Rule 35(2) Suicide Risk Concerns; o Rule 35(3) Torture Allegation. Update CID Calendar Events or local diary, to record the deadline, and to help ensure the Rule 35 response is returned on time; Examine the Rule 35 report. If maintaining detention, complete a detention review according to standard procedures, ensuring that any and all material information disclosed in the report is addressed. See 3.1.2 Detention Reviews; If the Rule 35 report discloses information relevant to the consideration of any asylum and/or human rights case, ensure the information is appropriately considered and addressed. See 4. Further Information in Asylum and Human Rights Claims; Draft a substantive response to the Rule 35 report according to the format of the response form annexed to DSO 03/2008; Obtain SEO/HMI clearance for the response, naming the officer in CID notes; Send the response by fax/email to the IRC (this must be the IRC that issued the report, regardless of where the detainee is now located), and collect transmission/sent receipt and attach to file and minute the file accordingly; Telephone IRC to confirm they have received the response and that the response has been sent to legal representatives (where applicable); Close the case on the CID Case Outcome screen, according to the applicable outcome: o Rule 35 Review Detention Maintained; o Rule 35 Review Detainee Released. Update CID Notes and file minutes to explicitly record the fact that the response has been faxed/emailed on time, to a named IRC officer who has confirmed receipt, and that the CID Case has been closed.
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2.4 Directorate Responsibilities and Central Point of Contact Directorates must: Take responsibility for directorate performance regarding Rule 35; Provide a central point of contact for Rule 35 issues in the directorate (this will not mean involvement in each case, but it may require intervention to allocate/nominate responsibility where case ownership falls to the region but a case owner cannot be identified by the IRC contact management officer); Ensure that the director is advised of good or poor performance in the directorate and maintain the directors awareness of Rule 35 issues arising; Ensure that all officers involved in managing detention in the directorate are appropriately trained and aware of detention policy and Rule 35; Proactively and regularly run CID reports to identify directorate performance on Rule 35 response, taking action as appropriate in cases of poor performance; Coordinate and assure case audit functions for the directorate for reviews of Rule 35.
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3 Rule 35 Reports Responses and Detention Reviews


3.1 Detention Reviews Case owners must carry out regular detention reviews according to established procedures. The receipt of a Rule 35 report will require an ad hoc detention review for all persons in detention at the time of receipt. As with all detention reviews, the suitability of ongoing detention must be assessed against the issues raised in the context of the wider facts of the case, and against the basis of detention under detention policy.
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3.2 Rule 35 Report Report Content Rule 35 reports are not solely produced to communicate concerns that the detainee may have been tortured. They can also identify and communicate health issues and suicide risks, and all officers must be alert to this. However, it is acknowledged that reports identifying concerns about torture are the most common type. The weight to be placed on a Rule 35 report will depend upon what the report qualitatively states, and what is already known about the applicant and his/her case. Any particularised concerns outlined in a Rule 35 report by a medical practitioner will constitute independent evidence, which is relevant to all considerations, but especially to the published detention policy that independent evidence of torture weighs heavily against detention. However, particularised Rule 35 evidence, though independent, will not necessarily constitute evidence that a person has in fact been the victim of torture. Rule 35 reports are not medico-legal reports, but the evidence they contain must not be simply dismissed or undue inferences drawn because of the failure of the report to address an issue in the way that a detailed medico-legal report might. Regardless of the source or nature of the information in a Rule 35 report (for instance, whether as a medical fact, as a concern, or simply as record of a claim made by the detainee), all information must be carefully and critically considered. 3.3 Rule 35 Report Responses 3.1.1 Rule 35 Report Responses - Core Requirements Irrespective of other actions required, the strict Rule 35 timescales must be met for the formal Rule 35 response and detention reviews. Written responses to the Rule 35 report must address the substantive issues raised. It is not enough to simply state that the issue/s raised were considered in full in previous correspondence (such as a refusal letter). Sufficient detail is required such that the response can stand alone as addressing the report. (See 3.3 Reports and Released Detainees.)
In some cases, where appropriate, CID Doc Gen will allow previous consideration of a point to simply be extracted to the Rule 35 letter. In other cases, provided the response gives sufficient detail, an outline of the previous consideration will usually be sufficient.

In cases where the Rule 35 report provides medical detail that was not available when a claim or part of a claim was previously rejected (or dismissed in court), particularly careful

consideration must be given to the issues raised. 3.1.2 Rule 35 Report Report Discloses No Information In rare cases, a report may be received by a case owner, without any content to identify any possible concern, or even to highlight the sub-category of Rule 35 that applies (e.g., where the report indicates Rule 35(3), it is at least known that torture is a consideration that the response must address). In such cases, there can be no meaningful consideration of the detainee's welfare or the appropriateness of detention in any other circumstances. Actions and considerations: Inform the IRC officer that without any indication of the nature of the concern triggering the report, the blank report cannot constitute a Rule 35 report; Request further information from the IRC officer, and record on CID Notes the fact of the blank report, the outcome of the telephone call, and the IRC officers name; Only if and when further information is received (even if brief) must the case owner raise a CID Rule 35 case type (see 2.3 Case Owner). 3.1.3 Rule 35 Report Released Detainees Case owners must respond to every Rule 35 report they receive, even in cases where the individual has already been released, or will be released as a result of a consideration of the information raised in the report. This is important because it clearly demonstrates that the case owner is aware of the issues raised, and is able to consider the consequences of those issues to onward case handling and possibly to future detention (for instance, being alert to particular vulnerability indicated by concerns of suicide risk, or taking substantive information into account in decisions see 4 Asylum and Human Rights Claims Further Information). Responding in the case of released detainees is also important because it enables records relating to the Rule 35 report to be fully closed down on all systems, thereby enabling accurate representation of Agency performance. Although a response is required, the response need not necessarily be as detailed as if detention were continuing, because it does not need to justify ongoing detention in light of the report content. Actions and considerations: If the applicant was released prior to the case owners notification and receipt of the Rule 35 report, a basic, summary response will usually be sufficient, noting the issues raised, and as a minimum undertaking to consider the issues as appropriate and in the round in onward case handling. In addition to completing the formal response, it will be necessary for case owners to copy the response to legal representatives and the former detainee, in such circumstances; If the applicant was released following receipt of the Rule 35 report, because of the need to further consider the issues raised but which are not necessarily accepted, this must be outlined in the response; If the applicant was released following receipt of the Rule 35 report, because of an acceptance of the issues raised, this must be outlined in the response.
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4 Asylum and Human Rights Claims Further Information


A Rule 35 report, most likely where torture concerns are expressed, will often raise information material to asylum and human rights applications requiring substantive consideration. 4.1 Asylum and HR Applicants Case owners must treat Rule 35 reports in exactly the same way as any other piece of material evidence coming to light in respect of an asylum and human rights claim. If raised before the first decision, the case owner must question the applicant about the report in their asylum interview and address it in the substantive decision consideration. If a Rule 35 report is notified before an appeal in the case of a refusal, case owners must reconsider whether the totality of evidence warrants a grant of status. If it does, the case owner must grant appropriate status, and notify the courts. If refusal remains the correct decision and the report is of material substance and it is practicable to do so, the case owner must draft a supplementary RFRL to address the substance of the report (and any other material evidence arising since the decision), ensuring that the supplementary letter is notified to the applicant, representatives and court. If a Rule 35 report is notified after the detainee has been refused asylum and exhausted their appeal rights, the report evidence must be treated as Further Submissions.
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4.2 No History of Asylum or HR Claim In rare circumstances, a Rule 35 report may be notified in respect of a detainee who has not previously or at that time lodged an application for asylum. In such cases, case owners must seek clarification of the detainees intentions (usually with the assistance of the IRC contact management team). If the detainee wishes to claim asylum, the case owner must make arrangements for them to be screened, and then consider the appropriateness of their ongoing detention and onward routing. If the detainee does not wish to claim asylum, the case owner must seek a brief explanation, and the detainee must be invited to complete form IS.101 (available via CID Doc Gen). The case owner must ensure that the detainees response to this invitation is recorded on CID Notes and minuted to the case file.
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Glossary
Term IRC Meaning Immigration Removal Centres are detention facilities used by UK Border Agency that are either directly managed or operated under contract with the Border Agency. The UK Border Agency Contact Management Teams (CMTs) are based in IRCs. Their role is to take forward issues with case workers, case owners, contractors and others as necessary to ensure that detainees receive an effective and timely response to any issues or questions that arise whilst they are in detention. CMTs do not conduct detention reviews and play no part in giving substantive consideration to a detainees case. Reports made by healthcare teams, on receipt of allegations of special illnesses or conditions (including torture claims) received from detainees in IRCs. To accompany a Rule 35 report and to be completed by the officer conducting the detainees detention review. To be carried out by the officer responsible for maintaining and reviewing the detainees detention. The officer responsible for conducting the review may not necessarily be the officer overseeing the detainees case. The officer responsible and accountable for the handling of a case, whether directly or indirectly. All cases in Immigration Group have case owners see: http://horizon.gws.gsi.gov.uk/file_source/horizonintranet/UKBA-files/Communications/24_10_2008.pdf

UK Border Agency Contact Management Teams

Rule 35 Reports

Rule 35 Pro Forma Detention Review

Case Owner

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Change Record
Version 1.0 2.0 3.0 4.0 5.0 6.0 7.0 Authors CS, MK CS GL GL MK MK MK Date 06/02/08 29/10/08 10/10/09 04/10/10 28/02/11 13/04/11 03/06/11 Change Reference First Edition Update branding only Add Childrens Duty and numbering Update to links and childrens duty Substantially revised process following audit Slight revision to address blank reports Slight revision to address released applicants, and to clarify ownership issues Timescale clarification

8.0

MK

15/06/11

Validity of Appeals
Table of Contents

Introduction AIT Procedure Where a person does not have a right of appeal Dealing with cases with no right of appeal Where the appellant has been advised wrongly of their right of appeal by the Home Office Non-Suspensive Appeals (NSA) Out of Country Rights of Appeal Summary- Q&A

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Introduction
This instruction provides guidance for Case Owners on how to identify and deal with invalid appeals, appeals that have been inappropriately lodged or where the appellant has been wrongly advised of a right of appeal. Further guidance on appeals rights are available in: Chapter 12, section 1 of the immigration Directorate Instructions (IDIs)

Application of this instruction in respect of children and those with children Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the UK Border Agency to carry out its existing functions in a way that takes into account the need to safeguard and promote the welfare of children in the UK. It does not impose any new functions, or override existing functions. Officers must not apply the actions set out in this instruction either to children or to those with children without having due regard to Section 55. The UK Border Agency instruction Arrangements to Safeguard and Promote Childrens Welfare in the United Kingdom Border Agency sets out the key principles to take into account in all Agency activities. Our statutory duty to children includes the need to demonstrate: Fair treatment which meets the same standard a British child would receive; The childs interests being made a primary, although not the only consideration; No discrimination of any kind; Asylum applications are dealt with in a timely fashion; Identification of those that might be at risk from harm.

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AIT Procedure
All notices of appeal are sent direct to the AIT unless the appellant is detained in which he may serve his notice of appeal on the person who has custody of him (under Procedural Rule 6(3) b). The person on which the notice is served would send the notice to the AIT. Therefore the AIT is legally responsible for identifying and (under Procedural Rule 9) rejecting invalid appeals. Unfortunately, it is possible that a number of invalid appeals may be missed and be listed for hearing. The Case Owner will usually discover an invalid case once AIT has listed the case for the CMR hearing. If this occurs, it will be the responsibility of the Case Owner presenting the appeal to raise this matter before the AIT, preferably at the CMR hearing rather than the substantive hearing.

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Where a person does not have a right of appeal


A person will have no right of appeal: If no immigration decision, (as defined in s82 of the 2002 act) has been made in their case. Under s83, If leave granted for 12 months or less (However, if the any cumulative leave after the initial decision, results in leave exceeding 12 months, the applicant would have a right of appeal under s83). Under s83a unless refugee status has been revoked and some other leave has been granted. Please note: if an illegal entrant or overstayer has been refused status, the decision would not constitute as an immigration decision. However the removal decision that may accompany the refusal would be the immigration decision. If the case has been certified under S96 (one stop certificates) or S97/97A (national security) of the 2002 act.

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Dealing with cases with no right of appeal


If the AIT fails to correctly reject an appeal under rule 9 of the 2005 Procedure Rules, the case owner must raise at the CMR hearing that the appellant has no right of appeal. If for some reason it is not raised, then it should be raised at the substantive hearing.

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Where the appellant has been advised wrongly of their right of appeal by the Home Office
There may be circumstances where asylum was refused outright but the applicant had extant leave that was not curtailed and no immigration decision (as defined in section 82 of the 2002 Act) was made. Please see the Asylum Instruction (AI) on Curtailment for further information on cases where leave should not be curtailed. For cases that fall outside of the exceptions, Case Owners should ensure that they endeavour to always curtail leave which would result in an immigration decision which in turn would give a right of appeal. If a Case Owner comes across an appeal case where: a notice of appeal was lodged by the appellant, an immigration decision was not served by mistake, and their extant leave was not curtailed; there is still no right of appeal to the AIT. The Case Owner should contact APPU in order to obtain details of how to serve an immigration decision in these cases. The Case Owner should point out the error to the immigration judge or panel at the CMR or substantive hearing and invite them to find that there is under rule 9 of the 2005 Procedure Rules no appeal ground because no immigration decision has been served on the appellant. The Case Owner can also point out that the asylum decision is being reviewed in order to issue an immigration decision that provides a valid ROA.

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Non-Suspensive Appeals (NSA)


The Case Owner may identify a case where the claim has been certified under S94 of the 2002 Act, however an applicant may either return to the UK (either legally or illegally) for their appeal hearing or attempt to bring an appeal before s/he has left or been removed from the UK. This identification can be made from CID records updated by the Immigration Service (IS), direct contact from IS, direct contact from the applicants representative or by the applicants appearance at the hearing. If this happens see AI NSA Appeals Instructions for further information to argue that the appellant has no right to pursue the appeal while in the UK.

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Out of Country Rights of Appeal


The Case Owner should be aware that, even when a person has been notified of a right of appeal under section 82 this appeal right cannot always be exercised in country. Section 92 provides that there will only be an in country right of appeal under sections 82 (2) ( c), (d), (e) (f) and (j), that is, Refusal of a certificate of entitlement Refusal to vary leave so that there is no leave Curtailment Revocation under section 76 Decision to make a deportation order, or where there has been an asylum or human rights, claim or where matters relating to claims under European Treaties are involved.

If a claim is certified under section 94 so that there is a non-suspensive right of appeal the Case Owner should argue that appellant has no right to pursue the appeal while in the UK. See NSA Appeals above.

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Summary- Q&A
1. Has an immigration decision (as defined in section 82 of the 2002 Act) been made in this case? If no, then there is no appeal before the Tribunal (unless it is a S83 appeal and HP or DL has been granted for more than 12 months). 2. Has the case been certified (under S96 (one stop certificates) or S97/97A (national security) of the 2002 act) to remove the right of appeal? If so, again, there is no appeal before the Tribunal. 3. If the case is a NSA appeal, is the appellant in the UK? If yes, then there is no appeal before the Tribunal while they remain (but seek advice from a SCW before presenting the case).

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Change Record
Version 1.0 2.0 3.0 Authors DH MO RA Date 30/01/07 18/04/07 29/10/09 Change Reference New web style implemented General Update Included reference to S55 BCIA 2009 (Childrens duty)

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VOLUNTARY DEPARTURES
Table of Contents

1 Introduction 1.1 Application of this instruction in respect of children and those with children 2 General Principles 3 Requests for The Return Valuable Documents for Reasons Other Than Voluntary Departure 4 Requests from Asylum Applicants who Wish to Return to Their Country of Origin (or Where They Have A Right of Abode) 5 Assisted Voluntary Returns 5.1 What to do When an Assisted Voluntary Return (AVR) Application is made 6 Processes for Referring Cases to Enforcement & Removals for Other Voluntary Departures 6.1 Non-Urgent Cases 6.2 Urgent Cases 6.3 All Cases 6.4 Post Departure 7 Determining the Appropriate Reporting Centre/Local Enforcement Office 8 ACU1 Instructions, for Cases where LCD has not been Notified by the Applicant of their Intent to Voluntary Depart

1 Introduction
This is the local instruction for staff in Legacy Casework Directorate (LCD) and the New Asylum Model to follow in conjunction with Voluntary Departure (non UK Border Agency Enforcement & Removals) instruction issued by the UK Border Agency ERD process team. This instruction details the procedures and processes to be followed when an applicant makes a request to voluntary depart the United Kingdom. It also outlines what action to take if the United Kingdom Immigration Service (UK Border Agency) request valuable documents to facilitate a voluntary departure or if UK Border Agency inform that an asylum seeker has voluntarily departed.
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1.1 Application of this Instruction in Respect of Children and those with Children Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the UK Border Agency to carry out its existing functions in a way that takes into account the need to safeguard and promote the welfare of children in the UK. It does not impose any new functions, or override existing functions. Officers must not apply the actions set out in this instruction either to children or to those with children without having due regard to Section 55. The UK Border Agency instruction Arrangements to Safeguard and Promote Childrens Welfare in the United Kingdom Border Agency sets out the key principles to take into account in all Agency activities. Our statutory duty to children includes the need to demonstrate:

Fair treatment which meets the same standard a British child would receive; The childs interests being made a primary, although not the only consideration; No discrimination of any kind; Asylum applications are dealt with in a timely fashion; Identification of those that might be at risk from harm.

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2 General Principles
Asylum applicants at any stage of the process may decide to voluntarily leave the United Kingdom and the option of an assisted voluntary return will be explained to applicants at reporting events. They may or may not have submitted to UK Border Agency valuable documents (see Asylum Guidance on Document Retention for definition of a valuable document). If UK Border Agency are holding such documents they will be required by UK Border Agency to facilitate departure and/or to monitor departure. An asylum applicant (or failed asylum seeker) has three options by which they can depart the UK voluntarily: by being accepted on an Assisted Voluntary Returns programme, the principal one being the Voluntary Asylum Return and Reintegration Programme (VARRP) (see Assisted Voluntary Returns). Assisted Voluntary Returns is the preferred managed route. by making their own travel arrangements. by asking UK Border Agency (Enforcement and Removals) directly or indirectly, e.g. a request to LCD, to arrange their departure.

It is important that UK Border Agency carefully manages and monitors these routes, to ensure: the departure is properly recorded and counts towards UK Border Agencys removal targets. that UK Border Agency do not waste resources on support costs and progressing a case when the person has already departed.

It is important that valuable documents are not handed back to the applicant or their representative, as the control of these documents is the method that UK Border Agency use to ascertain whether or not the subject actually leaves the UK. In all cases valuable documents should only be passed to the appropriate UK Border Agency business unit who will in turn pass the valuable documents to the applicant at the port of departure.
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3 Requests for The Return Valuable Documents for Reasons Other Than Voluntary Departure
If an applicant makes a request for the return of their valuable documents for reasons other than for voluntary departure (e.g. for opening a bank account) staff should follow the relevant instruction in Asylum Guidance relating to Document Retention.
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4 Requests from Asylum Applicants who Wish to Return to Their Country of Origin (or Where They Have A Right of Abode)
If an asylum team, Asylum Co-ordination Unit (ACU) or Case Management Unit (CMU) are contacted by an applicant (or their representative) as they wish to voluntary depart the United Kingdom they should be advised that leaving the Common Travel Area will result in a withdrawal of their asylum claim and/or human rights claim. (For further guidance see the Asylum Instruction on Travel Abroad) They should then be directed to contact the International Organization for Migration (IOM) on 0800 783 2332, or by using their website IOM London. The Voluntary Return leaflet should also be given, this gives the address and opening times for the London office and how to contact the Liverpool and Glasgow offices. This is the preferred managed route, but will not always be a viable option. In some circumstances Assisted Voluntary Returns are not appropriate e.g. when the applicant states: they do not wish to avail themselves of IOM assistance; they have purchased their own ticket and/or; they need to travel urgently i.e. in less than 7 working days.

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5 Assisted Voluntary Returns


The Assisted Voluntary Return (AVR) programme offers applicants the opportunity to return to their home country or to depart to a third country where they meet the entry requirements for that country. Returns are managed and recorded by the AVR team, who are part of United Kingdom Immigration Service (UK Border Agency). The Voluntary Assisted Return and Reintegration Programme (VARRP) which is open to all asylum seeking nationalities is run by the International Organisation for Migration (IOM) on behalf of the Home Office, there are also other programmes that assist a specific nationality. Successful applicants are provided with tickets and practical assistance with travel arrangements where necessary, including travel documentation. Reintegration assistance is also available in the destination country and may include assistance in setting up a small business, education and vocational training.
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5.1 What to do When an Assisted Voluntary Return (AVR) Application is made The Assisted Voluntary Return (AVR) team will notify CID when an application has been made for an AVR. It is therefore imperative that staff check CID to ascertain if an application has been made before progressing a case. Staff are to follow the Asylum Guidance on Assisted Voluntary Returns. If a person is accepted onto one of the programmes they will have three months to depart the United Kingdom. If the applicant has had valuable documents retained (See Document Retention) they should not be returned to the applicant. The AVR team will request the documents from the holding unit and the documents must be made available to them. Staff should record the movement of these documents (See Document Retention).
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6 Processes for Referring Cases to Enforcement & Removals for Other Voluntary Departures
When the services of the International Organization for Migration are not used the applicant should be referred to the appropriate Reporting Centre/Local Enforcement Office. Applicants may wish to return to the country where they fear persecution because of sudden extreme circumstances, such as the death of a close member of their family and will arrange for their own travel tickets or need UK Border Agency to do so. The process for referring cases to a RC or LEO is the same for cases where the applicant has arranged their own travel and for those who have not. The process to follow will depend on the urgency of travel arrangements required.
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6.1 Non-Urgent Cases In cases where the applicant states that there is more than 72 hours they need to travel and the request has been made by means other than in person at a UK Border Agency RC, LEO or port of entry, the person should be told to contact the RC or LEO that covers their home address by telephone or in writing. The RC/LEO should be advised in writing using the attached proforma, Notification to UK Border Agency Enforcement & Removals Of A Person Wishing to Make A Voluntary Departure From the UK, that the person requesting to make the voluntary departure will be contacting them to make arrangements. This form, any proof of confirmed bookings and any documents (excluding forgeries) should be sent to the RC or LEO by IDS where the service exists and by first class recorded delivery where it does not. 6.2 Urgent Cases In cases where the applicant states that there are less than 72 hours before they need to travel, the most conveniently located RC or LEO should be contacted by phone and arrangements made for the person to be seen as soon as possible. In these cases, the proforma, (Notification to UK Border Agency Enforcement & Removals Of A Person Wishing to Make A Voluntary Departure From the UK), should be faxed to the RC or LEO and arrangements should be made for any valuable documents to be sent to the RC or LEO by a same day delivery service. Where offices are in close proximity this may involve a member of staff from the UK Border Agency business unit contacted or from the RC or LEO delivering (or collecting) the documents themselves. However, when this is not practical it may be necessary to use a private courier company. The receiving RC or LEO will make the arrangements on request.
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6.3 All Cases The Home Office file should remain in the unit, if valuable documents are sent to the RC/LEO, see Document Retention for procedure to record movement of valuable documents. Ensure that there are copies on file of all the documents that will be returned. Cross/remove the Documents/Passport Enclosed sticker/flag if located on front of the file. Write to the applicant advising them that the RC or LEO has been made aware of their planned departure, amend ASL.2907 to suit the case. In principal staff should ask the applicant to withdraw their claim for asylum and or human rights in writing, if the applicant has not already done so. Where there is written confirmation that the applicant has withdrawn their claim, then respond with an ASL.1930.

Where there is no written confirmation that the applicant is withdrawing their asylum claim only that they wish to voluntary depart the United Kingdom, staff should consult with their team leader on a case-by-case basis on what action they should take. No decision targets should be missed and therefore pending confirmation that they have left the United Kingdom an asylum decision should be made on the case. In some circumstances it may be more practical to withhold making a decision and checking with the Removal Centre if the applicant has either arranged departure or had departed from the United Kingdom prior to making a decision. After being advised of a person who wishes to voluntarily depart the UK, the RC/LEO will hold any files and documents sent to them for 10 working days. In the event that the person who made the request fails to contact them in this time or decides not to travel, the file(s) and/or document(s) will be returned to the original location. Legacy Casework Directorate officers should keep track of the case by checking CID or contact the RC/LEO on the voluntary departure. Case Owners should consider resetting reporting restrictions to maintain contact management until the applicant leaves the UK. For cases where there is no written confirmation of an asylum withdrawal and the asylum claim is still outstanding, Asylum Officers should consider getting written confirmation on the asylum withdrawal or make an asylum decision. Asylum Officers should consult their team leader on a case-by-case basis on what action they should take in view of meeting decision targets.
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6.4 Post Departure Once the person has left the UK, the RC or LEO that arranged the voluntary departure will update CID and advise other UK Border Agency business areas with an interest in the person that they have left the UK. A Copy of the IS101PA (Notice Of Withdrawal Of Application For Asylum) will be sent to the relevant business unit so that they can be linked to the HO file. Upon receipt of IS101PA attach it to the right side of the file and any other relevant documents. CID should be checked to confirm that there is no outstanding decision to be made, if not update CID. Attach CID printout to right hand side of file. File can then be sent to Lay-by.
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7 Determining the Appropriate Reporting Centre/Local Enforcement Office


The appropriate LEO/RC can be obtained by referring to the Contact Management and Criminal Investigations (CMCI) website. A desktop icon is available from Voluntary Departures (non UK Border Agency Enforcement & Removals) process instruction.

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8 ACU1 Instructions, for Cases where LCD has not been Notified by the Applicant of their Intent to Voluntary Depart
Some applicants will go directly to UK Border Agency/port to arrange voluntary departure without informing LCD of their course of action and UK Border Agency will facilitate their removal. UK Border Agency will update CID to show that the applicant has departed the United Kingdom, the HO file will need to be updated to reflect this change of status and be removed from its active location. ACU1 should obtain the HO file and attach the IS101PA and minute the file to state that the applicant has withdrawn their claim of asylum and have left the country. Staff should check CID to confirm that it has been updated "Withdrawn by Applicant" on the asylum claim, if not update CID. Attach CID printout to right hand side of file. Send file to Lay-by.

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Document Control
Change Record
Version 1.0 2.0 3.0 4.0 Authors DP JC GL GL Date 19/01/07 06/11/08 01/10/09 23/10/09 Change Reference New web style implemented Update branding only Updating Childrens Duty Further Update To Childrens Duty

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