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8 Claiming Asylum

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1. Introduction

2. Who qualifies for asylum?

Qualifying for asylum depends on whether you are a refugee, as described in the United Nations 1951 Refugee Convention. It says a refugee is someone who is outside his or her country of origin because of a well-founded fear of persecution for one of five reasons:

  • race;
  • religion;
  • nationality;
  • membership of a particular social group; or
  • political opinion.

A refugee must show that they are in real danger and need international protection for one of these reasons. This is often difficult, and legal issues can arise in most asylum applications. It is vital to get specialist help.

The Refugee Convention says you can't be sent back to a country where you could be at risk of persecution. This means the UK government can't send you back to your country of origin until it can show that there is little or no risk to your safety. You can stay in this country until your case has been decided by the immigration authorities (the Home Office, which is part of the UK government).

However, this rule applies only to the question of returning you to a country where you would be at risk, so you could be sent back to another safe country without your claim being considered (see 'Where you came from').

In most cases you will be able to stay while you appeal against a decision to refuse you asylum, but this may depend on the reasons for your claim and where you have come from.

The Home Office may turn down your application for many reasons.  For example, if it looks as though you would be at risk only in a certain part of your country, you may be refused asylum because you could return and live in another part of your country.

Asylum is meant to protect you from possible risks in the future, not just from what has happened in the past. So you might also be refused if the Home Office believes that circumstances have changed in your country, and you would no longer be at risk.

It's often difficult to prove that you would definitely be at risk. You need to show that being persecuted would be a 'serious possibility'.

Who isn't covered
The Convention says that certain types of people shouldn't qualify for asylum. These include people who have been involved in serious criminal activity, or who are responsible for human rights abuse.

There are also 'cessation clauses', which say that you could lose your status later if, for example:

  • circumstances in your home country improve significantly by the time the Home Office makes a decision; or
  • you return to your own country after becoming a refugee.

If this happens you may stop being a refugee, but you won't necessarily have to leave the UK.

Special cases
Certain kinds of claim are more complicated than others. The law can be very difficult to apply when:

  • you claim a fear of being persecuted by someone other than government forces;
  • you are fleeing from a civil war; or
  • in most cases, you claim a fear of being persecuted because of 'membership of a particular social group'.

If your claim is in any of these categories, you need expert advice.

Human Rights Claims
It is also possible to make a claim based directly on Article 3 of the European Convention on Human Rights. This prohibits torture or inhuman or degrading treatment. The UK Government would breach the Human Rights Act if it sent you back to a country where you would face such a risk.

Unlike applications under the Refugee Convention, you don't have to show any particular reason for the inhuman treatment, or show who is to blame. If you can show the risk to you of treatment prohibited under Article 3, the UK government must allow you to stay, and will normally grant you 'humanitarian protection' (see 'What will be the outcome of my claim?').

You may also claim that removing you from the UK would breach other human rights, such as the right to respect for your family or private life. It is often difficult to win a case with these arguments. If you think you may want to make this type of claim, you should discuss it with your legal representative as soon as possible.

3. How do I apply for asylum?

4. What happens when I apply?

5. What can I live on while I am waiting?

6. What rights do I have while I'm waiting?

7. Where can I get help with my claim?

8. What will be the outcome of my claim?

9. What if my claim is refused?

10. What happens if my appeal fails?

11. Further help

12. About this leaflet







This leaflet was written in association with the Immigration Law Practitioners Association and Mick Chatwin, a barrister and solicitor specialising in immigration law.

Leaflet version: April 2016

 




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