Common European Asylum System coming to the UK
As part of the continuing harmonization of the determination of asylum applications by member states of the European Union (the “EU”) the Asylum (Procedures) Regulations 2007 and HC 82, a statement of changes in the immigration rules, both came into force this month.
These provisions implement Council Directive 2005/85/EC, which lays down minimum standards on procedures in member states for granting and withdrawing refugee status. The Directive was adopted in 2005 as part of the first stage of the Common European Asylum System (“CEAS”). This first stage comprised the adoption by member states of the Eurodac and Dublin II Regulations, which together established a regime for the determination of the question of which member state is responsible for an individual’s asylum application, the Temporary Protection Directive (which set EU-wide standards for one off influxes of asylum seekers such as that caused by the events in Kosovo in the 1990s), the Asylum Reception Conditions Directive (which establishes minimum standards for the provision of benefits health care and accommodation to asylum seekers) and the Qualification Directive (establishing minimum standards for refugees and other people in need of international protection) .
CEAS is to be fully implemented in 2010, and the European Commissioner responsible for Justice, Freedom and Security has indicated that a policy plan will be announced in the first quarter of 2008.
The immigration rules have been substantially amended to reflect the requirements of the Directive, and by the Regulations there have been amendments to the provisions of the Nationality Immigration and Asylum Act 2002, and to the procedure rules governing the work of the Asylum and Immigration Tribunal (“AIT”) and the Special Immigration Appeals Commission (“SIAC”). The changes are summarised below (unless otherwise indicated “rule” refers to an immigration rule - HC 395)
Rule 327, reflecting the Directive’s Article 2, now makes it clear that an “asylum applicant” is any applicant for international protection and is not limited to those whose removal from the UK would constitute a breach of the UK’s obligations under the 1951 Convention relating to the status of refugees.
The new rules 339MA, 339J and 339JA implement Article 8 of the Directive, requiring the Secretary of State not to refuse to examine applications for asylum which were made late, and to ensure that the determination of asylum applications is carried out by people who have appropriate knowledge of asylum and refugee law. They also require that up to date and reliable information on country conditions in the countries from which asylum seekers have come to the UK is obtained and made available to decision makers.
Rule 333 – implementing Article 9 of the Directive - now requires the Secretary of State to produce written notice of his or her determination of an asylum application, either to the applicant or to his or her legal representative (if he or she has one) in reasonable time. Rule 336 has been amended to require the Secretary of State to provide written reasons for his / her refusal of an application and information on how to appeal against the decision.
Rule 357A (which implements Article 10 (1) (a) of the Directive) requires the Secretary of State to inform asylum applicants of their obligations and of the consequences of failing to observe them in a language they understand. Rule 339ND makes it obligatory for the Secretary of State to provide an interpreter at public expense “for the purpose of allowing the applicant to submit his case, wherever necessary”. The procedure rules of the SIAC and of the AIT have also been amended to reflect the right to the services of an interpreter during a person’s appeal.
Rule 339NA (implementing Article 12 of the Directive) requires the Secretary of State to interview asylum applicants before making a decision on their applications. The rule also sets out circumstances where this interview may be omitted. These include where the Secretary of State is able to make a positive decision simply on the evidence already available, where the application does not constitute an asylum application, where the application is “clearly unconvincing” due to its improbability or if the representations made in connection with the application are inconsistent or contradictory, where the application has been made simply to delay his or her removal from the UK or where due to the applicant’s state of health it is impractical to interview him or her. The confidentiality of the interview – required by Article 13 (3) – is assured by rule 339NB.
Rule 339NC – reflecting Article 14 - requires the Secretary of State to provide a written “report” of the interview and to request that the applicant shall approve the contents of the report. During the consultation exercise prior to the drafting of the amended immigration rules the Immigration Law Practitioners’ Association (“ILPA”) pointed out to the Secretary of State that current practice in the UK was for the officer conducting the asylum interview to provide not a report of the interview but instead a verbatim “record” of it. It does appear that the Directive entitles the Secretary of State to apply a less stringent standard of care than asylum seekers in the UK are afforded by this current practice. Regrettably the rule reflects the terms of the Directive rather than the BIA’s actual practice.
Interestingly however the rule does reflect the Article’s requirement that the asylum applicant should be asked to approve the content of the interview report. It used to be the practice of what was the Immigration and Nationality Directorate and the Immigration Service to “read back” the notes taken by the officer during the asylum interview to enable the applicant to check them. But this was abandoned several years ago. It is difficult to see how the applicant could confirm the contents of the interview “report” without its being read back to him or her.
Rule 333B, which implements Article 15, provides the right to free legal representation for those who apply for asylum, or for those whose refugee status the Secretary of State has decided to revoke.
Rule 352ZA implements Article 17 and requires that any child over the age of 12 who has claimed asylum should be interviewed and that the interview should be conducted in the presence of an adult who has responsibility for the child and is independent of the Secretary of State. Moreover the interviewer must have specialist training in interviewing children.
Rule 339M is amended to reflect the “non-compliance” provisions of Article 20. Rule 353A reflects the requirements of Article 20 (2) concerning the right of a person who has made representations to the Secretary of State which are said to amount to a fresh human rights / asylum claim not to be removed from the UK before the Secretary of State has considered those representations.
Rule 339IA implements Article 22 and requires the Secretary of State not to inform the alleged actors of persecution of an applicant that he or she has made an asylum application and to desist from seeking information from the alleged actors of persecution “which would result in their being directly informed that an application for asylum has been made by the applicant in question”.
There is little amendment to the rules relating to the safe third country concept (Article 27) save for the addition of rule 345 (2A) whereby people who are to be removed from the UK without substantive consideration of their asylum applications to countries which are not signatories to the Dublin II Regulation must be fully informed in a language they understand of what is being done to them and must be provided with a document which states in the language of the receiving state that their asylum application has not been substantively considered.
Article 30 (2) to (5) allows member states to retain legislation designating states as safe, in the sense that in those countries the member state considers that there is in general no risk of persecution for people who are allowed to live here. The UK has lists these states at section 94 of the Nationality Immigration and Asylum Act 2002 (“the 2002 Act”). The Asylum (Procedures) Regulations 2007 add a new subsection 94 (5D) which expressly requires the Secretary of State to take account of a wide range of information in reaching her decision as to which states to designate as “safe”
The Regulations implement Article 31 by adding a new section 94A to the 2002 Act. This is to enable the establishment of a “European Common List of Safe Countries of Origin” - a key concept in the CEAS. The new section 94A enables the Secretary of State to make orders prescribing a list of this kind. If she does so - a claim made by someone who is either a national of a state on the list or being stateless, was “habitually resident” in a state on the list will be considered to be unfounded.
Rule 339A implements Article 38 (1) and establishes procedures to be followed when the Secretary of State is considering revoking a person’s refugee status. The person must be notified in writing of the Secretary of State’s intention and given an opportunity to set out his or her case as to why refugee status should not be revoked.
It is difficult to predict whether these amendments to the rules will produce a new swathe of case law but there are features of them which seem to sound alarm bells. For example rule 339NA, which takes the term "clearly unconvincing" (in relation to an asylum claim) from the Directive's Article 23 (g) - would appear to require an asylum applicant to prove his or her case to a standard higher than that which English law regards as appropriate.
