asylum process guidance for ho caseworker as on 12:02:2012 part 3 of 3

HOME OFFICE FULL EQUALITY IMPACT ASSESSMENT TEMPLATE

Directorate Unit Date

Immigration Group Permanent migration programme 05 July 2010

Name of Policy/Guidance/Operational activity Reviewing refugee leave/Settlement Protection What are the aims, objectives & projected outcomes? From 30 August 2005 refugees and those awarded Humanitarian Protection were granted five years limited leave to remain. The objective of that change in approach was as follows: o That there should be a clear approach to those obtaining leave under the Immigration Rules on how long they have to be here before they become eligible for permanent settlement. For those in a category potentially leading to settlement, that period will normally be five years for those granted leave under the Rules. o That we should provide refuge while people need it, but that if conditions in their country get better it is reasonable to expect them to return when they have spent only a relatively short period in the UK. This policy was in line with the 1951 Geneva Convention which accords protection to refugees only for as long as they require it. Humanitarian Protection (HP) status was brought into line with refugee leave. As a result beneficiaries of HP received a block of five years leave instead of three as previously. In establishing processes to now review these cases, we aim to: design processes which will deliver effective caseworking of those cases deemed to fall in scope of the Settlement Protection project; and ensure that implementation of these processes will be efficient, timely and to sufficient quality.

This contributes to wider UKBA Strategic Objectives 1 and 3: Objective 1: We will protect our border and our national interests; Objective 3: We will implement fast and fair decisions.

Home Office EIA Template.

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ia reviewing refugee settlement

1 SCOPE OF THE EIA1.1 Scope of the EIA work The EIA will cover all equality strands and human rights. Assessment will be made in relation to any issues raised in each of these strands to evidence mitigating action, areas for positive equality impacts or any gaps and action planning required in order to fully address areas for concern. The Permanent Migration Programme Communications Team identified external/internal partners and interested parties by:

Using information from the programme matrix (collated by consulting with UKBA partner managers; senior managers and partnership groups) Holding workshops with key external/internal partners to agree communications approach and key recipients to be sent briefing material.

Key stakeholders in relation to settlement protection are:

Refugees and those granted Humanitarian Protection after 30 August 2005 NASF (National Asylum Stakeholder Forum), in particular the Employability Forum - See Annex C for membership SASF (Scottish Asylum Stakeholder Forum) NMG (National Migration Group) CSG (Corporate Stakeholder Group)

They have been involved through a variety of forms including engagement, deciding together, consultation and information. Issues and feedback in relation to equality strands from minutes meeting notes and action plans (as well as any other sources) will be fed in to the EIA and analysed. Consultation and feedback from NASF meetings will be included. These meetings have taken place on the following dates: 26 November 2009, 26 January 2010, 30 March 2010, 25 May 2010 and 29 July 2010. Dedicated settlement protection workshops were held on 18 August 2009, 25 February 2010 and 20 July 2010. A working group for settlement protection has been established and this includes representation from Asylum Policy colleagues, New Asylum Model, Refugee Integration Policy, Criminality Policy, Asylum Strategy, Complex Advice team and Permanent Migration Programme design team and benefits and change management team. Other internal stakeholders include: Policy, process, operational and communications teams. Internal stakeholders including settlement case work management, senior case workers, caseworkers and support teams will be consulted via a series of workshops and communications to assess the impact of the policy change and any relating to the equality strands will be captured by the EIA. Regional directors have been communicated to on settlement protection in February and July 2010. The EIA has been compiled jointly by policy, process, operational and communications teams.


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Continuing consultation will ensure that guidance and processes are aligned and equality impacts understood and addressed. Data will be collected from a number of sources to inform the EIA including feedback from corporate partner engagement, programme and project boards, internal meetings and consultation. The EIA will be published alongside new guidance and will be monitored and reviewed on a regular basis.

1.2 Will there be a procurement exercise? There is no procurement requirement for settlement protection.

2 COLLECTING DATA2.1 What relevant quantitative and qualitative data do you have? This may include national research, surveys or reports, or research done by colleagues in similar areas of work. Please list any evidence in the boxes below (complaints, satisfaction surveys, focus groups, questionnaires, meetings, email, research interviews etc) of communities or groups having different needs, experiences or attitudes in relation to this policy/guidance/operational area. The policy on settlement protection affects those granted refugee status and humanitarian protection and as such reflects representation of equality strands within current asylum case working. Therefore, the make up of the group affected by this process is pre-determined by asylum intake and decision-making processes including decisions of the First Tier Tribunal (Immigration and Asylum Chamber). All cases Everyone who was granted refugee status or Humanitarian Protection after 30 August 2005 will be required to apply in the same way and will be treated in the same way regardless of race, nationality, religion or religious belief, disability, gender, sexual orientation or gender identity. With the exception of a possible decision to trigger an active review of cases based on a significant and non-temporary change in country situation. To ensure any such review is conducted fairly and transparently, the UNHCR would be consulted and the decision to conduct a review of these cases would be announced to Parliament. Consideration should be given to whether the Agency intends to translate information and guidance.

Race


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Religion/ belief & non belief

This policy and process change is unlikely to have a particular affect on religion or belief and non-religion and no additional research has been carried out. This policy and process change is unlikely to have a particular affect on disability and no additional research has been carried out. There is a concern around messaging and that women in some minority groups may be more difficult to reach and effectively engage than others. This policy and process change is unlikely to have a particular affect on gender identity and no additional research has been carried out. This policy and process change is unlikely to have a particular affect on sexual orientation and no additional research has been carried out. Some applicants for settlement protection will have been under 18 and dependant on a main applicants claim for asylum at the time they were originally granted leave. Consideration must be given to this group, now over 18 and how they will apply. Consideration must also be given to UK-born dependants since the original grant of leave, how they will apply and ensure that they are not discriminated against or disproportionately disadvantaged by the proposals.

Disability

Gender

Gender Identity

Sexual Orientation

Age

Welfare of Children[UKBA ONLY]

Consideration must be given to UK-born dependants since the original grant of leave, how they will apply and ensure that they are not discriminated against or disproportionately disadvantaged by the proposals.

Socioeconomic

Consultation raised concerns in relation to those who may apply out of time and their access to work and benefits.


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All asylum and human rights claims are carefully considered on their individual merits in accordance with the 1951 United Nations Convention Relating to the Status of Refugees, European Union Law and the European Convention on Human Rights (ECHR). Human Rights Rights to representation - NASF asked the Agency to address concerns about the impact on legal aid resources if cases are reviewed substantively however it is not expected that there will be a need to review most cases substantively.

2.2 What are the overall trends/patterns in this data? The policy on settlement protection affects those granted refugee status and Humanitarian Protection and as such reflects representation of equality strands within current asylum case working. Therefore, the make up of the group affected by this process is pre-determined by asylum intake and decision-making processes including decisions of the First Tier Tribunal (Immigration and Asylum Chamber). Nationality groups affected by this policy and process are predetermined by the asylum decision-making policy and process in place at the time of application. All applications will be sent to a single national caseworking team so location is not a discriminatory effect.

2.3 Please list the specific equality issues and data gaps that may need to be addressed through consultation and/or further research? Equality issues in the socio-economic strand will be addressed through further research and analysis. The project team will monitor application rates and identify trends and any regional variations. Trends may be identified that can be addressed through alternative communication methods in order to encourage applications. An initial contact letter will be sent out by UKBA to affected migrants before their leave expires to remind them to apply for settlement protection. These will be sent out to individuals for whom UKBA have a last known address that is not a National Asylum Support Service (NASS) address. Communication methods such as this initial contact letter will be incorporated in to the EIA action plan to ensure that its effectiveness is monitored and that it is having the effect of encouraging applications from affected migrants. At the NASF meeting of 30 March 2010 there was discussion around having local events across the regions to provide advice to people on settlement protection. It was suggested that local information events across regions could provide advice to affected migrants on settlement protection. In the five years since limited leave was granted to potential settlement protection applicants it is likely that many will have moved address and region. It may be that certain socio economic groups will have limited access to information in relation to extending their leave and may be adversely affected as a result.


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Rights to representation- NASF asked the Agency to address concerns about the impact on legal aid resources if cases are reviewed substantively however it is not expected that there will be a need to review most cases substantively.

3 INVOLVING AND CONSULTING STAKEHOLDERSIn this section, describe the data you have gathered through stakeholder involvement and engagement. 3.1 Internal consultation and Involvement: e.g. with Other Government Departments, Staff (including support groups), Agencies & NDPBs The permanent migration programme board meets monthly and has membership representing different business areas in UKBA. This has been utilised in order to fully capture any equality impacts as well as the delivery board where settlement protection has been an agenda item. The meeting of 25 May 2010 was dedicated to settlement protection - risks and issues were discussed, the current version of the operating model was agreed and the approach to contacting potential applicants regarding eligibility to apply was reviewed. Consultation has taken place to consider the impact of this policy on other public policies and services. The illegal working team within UKBA have been engaged to ensure that those applying for settlement are not deprived rights to work (until such time as they receive a negative decision on their case). This ensures that equality of opportunity is protected for individuals affected by settlement protection policy and related guidance. Guidance relating to settlement protection and to illegal working has been developed/updated in order to reflect changes and ensure that staff and employers have clear instructions for working with these cases. Current settlement staff have been consulted including managers, data processing team, senior case workers as well as staff in nationality Managed Migration Support Team (MMST) who may be impacted. No specific equality concerns have been raised. Staff will continue to be engaged and the EIA updated if necessary. A training strategy is yet to be agreed however equality strands will be taken in to full consideration as part of this. It was noted that staff working patterns vary and that some work term time and this should be considered when planning training during the period approaching school summer holidays. Management have engaged the union regarding the new area of work and targets and this was agreed with no specific equality impacts raised. Feedback what you plan to do as a result of this internal consultation and use it as a basis for work on external consultation.


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3.2 External consultation and involvement: strand specific organisations e.g. charities, local community groups, third sector Asylum and refugee voluntary sector organisations have been involved in the development of communication materials and will play a key role in implementing communications activities over the coming months. Dedicated workshops have been held with the National Asylum Stakeholder Forum (NASF) (see Annex C for membership details) which covers a wide ranging corporate partner group representing the interests of refugees and asylum seekers. Consultation raised vulnerability of this specific group as an issue to give due consideration to in building processes and guidance. NASF meet every two months. Dedicated workshops on settlement protection were held 18 August 2009 and 25 February 2010. It was arranged for NASF to communicate to regional refugee community groups/media on receipt of their briefing pack. Settlement protection was discussed at the January, March and May 2010 NASF meetings. The meetings discussed communications activities, out of time applications and proposed local information events across regions. NASF also proposed the establishment of a working group. Questions and concerns raised in the meetings relating to equality have been fed in to the qualitative evidence in the equality strands above. An undertaking has been agreed that UKBA will actively engage those due to apply and will send initial contact letters to all last known addresses (with the exception of asylum support addresses which will no longer be occupied by the intended recipient) of those identified with leave due to expire - promoting equality of opportunity. This approach will be reviewed as part of the EIA action plan to test effectiveness of this approach. Following distribution of a briefing pack to stakeholders on settlement protection it was fed back that information contained referring to legal services was not applicable to Scotland and Northern Ireland. This raised a need to tailor the pack to correctly sign post applicants to legal advice in Scotland and Northern Ireland. As a result of engagement with the illegal working team we can ensure that messaging is aligned and that employers will be aware of guidance relating to employment of this group of people thus safeguarding against discrimination in the workplace. Feedback what you plan to do as a result of the engagement to all participants including internal and external stakeholders.

4 ASSESSING IMPACTIn this section please record your assessment and analysis of the evidence. This is a key element of the EIA process as it explains how you reached your conclusions, decided on priorities, identified actions and any necessary mitigation.


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4.1 Assessment of the impact A key opportunity for positive impact is that all refugees and people with Humanitarian Protection granted 5 years leave to remain applying on the settlement protection route will be treated in the same way i.e. have the opportunity to make an application for indefinite leave to remain (ILR) whilst this is current policy. Because of the nature of asylum casework and the spread of applications it may be that certain groups are more affected than others by this particular policy change. Certain groups within the equality strands may represent a percentage of applications disproportionate to that of the general population as has been outlined with quantitative data above in the race equality strand. This variation in nationality representation is reflected in current asylum process and it will remain the case that all applications are processed equally irrespective of nationality. The settlement protection form is not specified so under 18 dependants at the time of initial application who have now turned 18 can apply on the main applicants form or on their own - this allows greater flexibility and mitigates any negative impact on this particular group as there is no longer scope to reject applications from those now over 18 applying on a main applicants form. The consultation and available data suggest there is a potential for differential impact on certain socio economic groups within the affected migrant population for whom access to services and/or information may be limited. This impact is being reduced via consultation with migrant support services and additional measures outlined below. Asylum and refugee voluntary sector organisations have been involved in the development of communication materials and will play a key role in implementing communications activities over the coming months. This is also regarded as a positive action in terms of promoting good community relations. An undertaking has been agreed that UKBA will actively engage those due to apply and will send initial contact letters to all identified with leave due to expire- promoting equality of opportunity. This strategy will be reviewed as part of the EIA action plan to test effectiveness of this approach. We have considered the position of out of time applicants and will continue to make efforts to emphasise the importance of individuals applying in time, both to ensure the speedy resolution of their case and the continuation of their leave. However we think it is right that UKBA should always look closely at cases where an applicant has overstayed their leave to enter or remain in the UK. UKBA will conduct more in-depth reviews where we receive a late application. We recognise that in a minority of cases, applications may be submitted late and that there may be exceptional reasons for this. All out-of-time applications will be assessed on a case-by-case basis. Caseowners will examine the reason for applying late alongside all of the evidence available to them in the application and on file. It is current policy that refugees and those with humanitarian protection will not be required to take either and English language (ESOL) or knowledge of life in the UK test before being granted ILR under the settlement protection route thus neutralising any perceived negative impact. It is not the intention of UKBA to translate information and guidance material for settlement protection. It is expected that applicants will be able to make and progress their application without translation of documents and may seek voluntary sector support where required. Training dates have been identified in consultation with senior case workers giving due


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consideration to staff working patterns and availability to ensure equality of opportunity for all staff in relation for training on this new are of work.

Now complete the report and Action Plan.


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5 REPORT, ACTION PLANNING AND SIGN OFF 5.1 EIA ReportThe EIA Report is a concise summary of the results of the full EIA. A template is provided at Annex A.

5.2 Sign-off Now submit your EIA and related evidence for clearance Date of completion of EIA Compiled by SCS sign-offI have read the Equality Impact Assessment and I am satisfied that all available evidence has been accurately assessed for its impact on equality strands. Mitigations, where appropriate, have been identified and actioned accordingly.

Date of publication of EIA Report Review date 5.2 Publication and ReviewEnsure that the EIA Report including the Action Plan are published alongside your policy/guidance/operational activity. IMPORTANT - Review, revise and update annually!


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Annex A - Equality Impact Assessment Report TITLEReviewing refugee leave/settlement protection July 2010

BACKGROUNDFrom 30 August 2005 Refugees and those awarded Humanitarian Protection were granted 5 years Limited Leave to Remain. The objective of that change in approach was as follows: o Firstly, that there should be a clear approach to those obtaining leave under the Immigration Rules on how long they have to be here before they become eligible for permanent settlement. For those in a category potentially leading to settlement, that period will normally be five years for those granted leave under the Rules. o Secondly, that we should provide refuge while people need it, but that if conditions in their country get better it is reasonable to expect them to return when they have spent only a relatively short period in the UK. This policy was line with the 1951 Geneva Convention which accords protection to refugees only for as long as they require it. Humanitarian Protection (HP) status was brought into line with refugee leave. As a result beneficiaries of HP received a block of five years leave instead of three as previously. In establishing processes to now review these cases, we aim to: design processes which will deliver effective case working of those cases deemed to fall in scope of the Settlement Protection project; ensure that implementation of these processes will be efficient, timely and to sufficient quality.

This contributes to wider UKBA Strategic Objectives 1 and 3: Objective 1: We will protect our border and our national interests; Objective 3: We will implement fast and fair decisions.

SCOPING THE EIAThe Permanent Migration Programme Communications Team identified external/internal partners and interested parties by:

Using information from the programme matrix (collated by consulting with UKBA partner managers; senior managers and partnership groups) Holding workshops with key external/internal partners to agree communications approach and key recipients to be sent briefing material.

Issues and feedback in relation to equality strands from internal and external consultation, minutes, meeting notes and action plans have been fed in to the assessment and analysed.


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COLLECTING DATAData has been gathered through consultation and communications with stakeholders to inform the equality impact assessment.

INVOLVING AND CONSULTING STAKEHOLDERSStakeholders have been involved through a variety of forms including engagement, deciding together, consultation and information. Settlement protection has been discussed at the National Asylum Stakeholder Forum and dedicated workshops on the subject were held in August 2009, February 2010 and July 2010.

ASSESSING IMPACTThe policy on settlement protection affects those granted refugee status and Humanitarian Protection and as such reflects representation of equality strands within current asylum case working. Therefore, the make up of the group affected by this process is pre-determined by asylum intake and decision-making processes including decisions of the First Tier Tribunal (Immigration and Asylum Chamber). Everyone who was granted refugee status or humanitarian protection after 30 August 2005 will be required to apply in the same way and will be treated in the same way regardless of race, nationality, religion or religious belief, disability, gender, sexual orientation or gender identity with the exception of a possible decision to trigger an active review of cases based on a significant and non-temporary change in country situation. To ensure any such review is conducted fairly and transparently, the UNHCR would be consulted and the decision to conduct a review of these cases would be announced to Parliament. Data collection and engagement highlighted areas for further consideration which included communication with affected migrants, knowledge of life and language in the UK and rights to representation. Asylum and refugee voluntary sector organisations have been involved in the development of communication materials. This has the potentially positive impact of promoting good community relations. An undertaking has been agreed that UKBA will actively engage affected migrants and will send initial contact letters to all identified with leave due to expire for whom we have a last known non asylum support address. This strategy will be reviewed as part of the EIA action plan to test effectiveness of this approach. It is current policy that refugees and those with humanitarian protection will not be required to take either and English language (ESOL) or knowledge of life in the UK test before being granted ILR under the settlement protection route. It is not expected that there will be a need to review most cases substantively and this will limit the impact on legal aid resources. Continued public access to information about the settlement protection will be ensured by regular and timely updates to the UKBA website and through continuing engagement with stakeholders.


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ACTION PLANSee annex B


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ANNEX B - Action Plan TITLE Reviewing refugee leave/Settlement Protection ACTION / ACTIVITYThis should be a list of recommendations identified in the EIA report. A short description of the issue being taken forward. To review the approach to making initial contact with potential applicants and assess its effectiveness.

OWNER AND INTERESTED STAKEHOLDERS

DEPENDENCIES / RISKS / CONSTRAINTS

COMPLETION DATEThe date by which the action is to be completed.

PROGRESS UPDATEProgress to date. Any slippages. New stakeholders etc Give RAG rating if appropriate. Details of monitoring and review methods.

To monitor volumes of applications received compared to projected figures.

o Unit/Department/organisation There may be other o Internal & External projects/initiatives that will deliver the Stakeholders action so make reference to these. o How will you ensure your stakeholders continue to be involved/ engaged in shaping the development/ delivery of this policy? UKBA - permanent migration programme will own this area of work initially. Internal stakeholders include settlement case working management and teams. Corporate partners remain those listed above who will continue to be engaged in the progress of this work area. UKBA - permanent migration programme will own this area of work initially.

To be reviewed.

To be reviewed.


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Update to communications literature and briefing packs re-signposting to legal services in line with devolved administrations and engage stakeholders further on this area of work and its impacts.

UKBA permanent migration programme communications team. COSLA (Convention of Scottish Local Authorities), Scottish Legal Aid Board, The Scottish Law Society, Northern Irish Legal Services Commission, Northern Irish Law Society. Relevant partners will continue to be engaged in the progress of this work area.

To be reviewed.

Communications literature updated to reflect process in the devolved administrations.


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ANNEX C National Asylum Stakeholder Forum representationRefugee Council COSLA Convention of Scottish Local Authorities UNHCR OISC Office of the Immigration of Services Commissioner Chief of Staff, Scotland & Northern Ireland Region Tribunals Service Amnesty International The Children's Society, Refugee Children's Consortium Scottish Refugee Council Asylum Aid Legal Services Commission (LSC) The Employability Forum Medical Foundation for the Care of Victims of Torture Refugee Action Equalities, Social Inclusion and Sport, Scottish Executive

Welsh Local Government Association (WLGA) Employment & Labour Market Division, Department for Work and Pensions

Department of Health Department for Children, Schools and Families National Migration Coordinating Team Manager

Association of Chief Police Officers Still Human still Here Department for Children, Schools and Families British Red Cross ADCS/ADASS Taskforce International Organization for Migration (IOM) Bail for Immigration Detainees Immigration Advisory Service Birmingham Local Authority Department for Communities & Local Government


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Chartered Institute of Housing Embrace UK Foreign & Commonwealth Office Job Centre Plus London Councils PsyRAS Refugee Council Refugee Support Scottish Government South London Tamil Welfare Group The Law Society [of England and Wales] Yorkshire and Humberside Consortium for Asylum Seekers and Refugees

Welsh Consortium for Refugees, Asylum Seekers & Migrants Housing Association's Charitable Trust Timebank Northern Refugee Centre Refugees Into Jobs European Council on Refugees and Exiles Justice Oxfam Jesuit Refugee Service Association of Visitors to Immigration Detainees (AVID)

Asylum Support Appeals Project (ASAP) North East Strategic Migration Partnership Camden Community Law Centre Charted Institute of Environmental Health Housing Corporation UNICEF UK (The United Nations Children's Fund) Association of Chief Police Officers Chief Constable North Yorkshire

Asylum Support Tribunal Department of Work & Pensions Local Government Association Policy Consultant Scottish Executive Evelyn Oldfield Unit Director Welsh Refugee Council - Chief Executive


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Joint Council for the Welfare of Immigrants (JCWI)

Refugee Arrivals Project (RAP) Refugee Council

Croydon Council Eleven Million International Organization for Migration Head of Racial Equality Unit Minister Northern Ireland) OFMDFM (Office of the First Minister and Deputy First

UKBA (SASF) Refugee and Migrant Justice Edinburgh City Council Education Home Office Asylum, London and South East Home Office Asylum Policy Home Office Deputy Director Asylum Head of Corporate Services, Immigration Group NAM+ Deputy Director Asylum Equality and Human Rights Commission President Asylum & Immigration Tribunal Welsh Assembly Government (WAG) Migrant Helpline District Register Office Brentwood North of England Refugee Service Scottish Legal Aid Board


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APPLICANTS WITH POOR QUALITY FINGERPRINTSTable of Contents 1 Introduction 1.1 Purpose 1.2 Application of this instruction in respect of children and those with children 1.3 Background 2 Asylum Screening Unit action to take where fingerprints of the required standard cannot be taken 2.1 Applicant is detained 2.2 Applicant is not detained but the Sector 8 Compliance Team retain an interest 2.3 Sector 8 Compliance Team has no current interest 3 Local Enforcement Office and Port action to take where the applicants fingerprints are of poor quality 3.1 In hours Livescan or Cardscan referrals 3.2 In hours applications where the IFB1 is to be posted to the IFB 3.3 Out of hours - where the LEO/port are satisfied that they are unable to take prints of suitable quality 3.4 Applicant is detained 3.5 Applicant is not detained but the Sector 8 Compliance Team retain an interest 3.6 Sector 8 Compliance Team has no current interest 4 Asylum Team action to take where applicant has not been fingerprinted or refingerprinting is required 5 Onward routing actions where the applicant is not being detained 5.1 Initial actions when transferring cases to Sector 8 Compliance Team 6 Reporting 7 Sector 8 Compliance Team action following case referral 8 Detention 8.1 Fingerprinting 8.2 Detention Reviews 8.3 Bail 9 Sector 8 Compliance Team no longer has an interest in a case 10 File Creation Document Control

1 Introduction1.1 Purpose This instruction provides guidance on how to handle and refer cases where fingerprints of the requisite standard cannot be taken and should be read and followed by:

Officers responsible for taking fingerprints from asylum applicants in the Asylum Screening Units (ASU), ports or Local Enforcement Offices (LEOs) Officers in the Sector 8 Compliance Team Case owners in the regional Asylum Teams Routing and Initial Accommodation Team

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1.2 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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1.3 Background All asylum applicants are liable to have their fingerprints taken for identification purposes (Sections 141 and 142 of the Immigration and Asylum Act 1999). Fingerprints are normally taken by Immigration Officers at port, operating from an LEO or in the ASU. Additional fingerprints will be taken at the Application Registration Card (ARC) Event Centres and used for RepARC events. The purpose of fingerprinting asylum applicants is twofold: positive identification and the identification and deterrence of multiple asylum claims at national and international level. Fingerprinting also establishes if the applicants claim should be considered by another European country (Member States of the European Union, Iceland or Norway). The fingerprints of all applicants over the age of fourteen are recorded on, and checked against, the Eurodac Central Unit database of fingerprint images. The fingerprints of those over the age of five are recorded and checked against the UK database, the Immigration Asylum Fingerprint System (IAFS). For guidance on fingerprinting and further information on Eurodac see chapter 24 of the Enforcement Instructions and Guidance and the Asylum Instructions Fingerprinting and Safe Third Country Cases. Through self-inflicted damage, accidental trauma or an existing skin condition it is not always possible to take fingerprints of the requisite standard at the time the asylum application is made.

However, all applicants must be fingerprinted even when it is apparent that the applicants fingerprints will not yield prints sufficient for Eurodac purposes. This is because they may be of adequate quality for IAFS and they can also be used for comparison against subsequent prints. In the majority of cases, after a period of recovery, fingerprints will heal or improve sufficiently, allowing for the capture of high quality fingerprints that can be saved, transmitted and checked against the databases. Officers should also ensure that all other checks are completed. A specialist team in the London and South East Region, Sector 8 Compliance Team is responsible for handling all cases (nationwide) where an asylum applicant with poor quality fingerprints is encountered. The Sector 8 Compliance Team will manage the case until the applicants identity is established to their satisfaction, which will normally be when the applicants fingerprints are accepted by the Eurodac database. If the applicants fingerprints return a Eurodac hit, the case will then be transferred to the Third Country Unit (TCU).Back to contents

2 Asylum Screening Unit action to take where fingerprints of the required standard cannot be takenWhere it has not been possible to make a successful transmission to the Eurodac Central Unit, the Eurodac failure will be notified to the ASU by the Immigration Fingerprint Bureau (IFB). IFB should also inform the Sector 8 Compliance Team of any failures. The IFB may request that the applicant is fingerprinted again or discuss with the officer whether the applicants fingerprints appear damaged. As the IFB is located in Croydon, ASU Croydon can request that an IFB fingerprint expert assist in the capture of the prints. Where a set of fingerprints of the required standard cannot be captured, the file must be passed to the ASU Detention Co-ordinator (CIO). The ASU Detention Co-ordinator must refer the case by phone to the Sector 8 Compliance Team admin support, who will decide if detention is the appropriate course of action.Back to contents

2.1 Applicant is detained If detention is deemed appropriate standard detention procedures must be followed and the applicant transferred to the detention accommodation as directed by the Sector 8 Compliance Team. Instructions found in Chapter 55 of the Enforcement Instructions and Guidance should be referred to and followed. 2.2 Applicant is not detained but the Sector 8 Compliance Team retain an interest If the Sector 8 Compliance Team decides against detention the case must not be routed to a regional Asylum Team. ASU must instead contact the Routing and Initial Accommodation Team and follow instructions set out in the section onward routing actions where the applicant is not being detained. 2.3 Sector 8 Compliance Team has no current interest If the Sector 8 Compliance Team does not have an interest in the case the applicant should be referred as normal to either the Routing and Initial Accommodation Team or the Asylum Intake Unit, if the case is considered suitable for the Detained Fast Track/Detained Non Suspensive Appeals process. For further guidance, see the instruction DFT and DNSA Intake Selection (AIU instruction)Back to contents

3 Local Enforcement Office and Port action to take where the applicants fingerprints are of poor qualityThe scenarios below set out what the LEO/port should do when an applicant has or appears to have damaged fingerprints and what to do if this cannot be immediately discussed/confirmed with the Sector 8 Compliance Team due to differing operational hours and/or differing methods of sending fingerprints to IFB and Eurodac. In hours Livescan or Cardscan referrals In hours applications where the IFB1 is to be posted to the IFB Out of hours - where the LEO/port are satisfied that they are unable to take prints of suitable quality There are three possible outcomes following the referral of the case to the team: Applicant is detained Applicant is not detained Sector 8 Compliance Team has no current interest

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3.1 In hours Livescan or Cardscan referrals If the fingerprints are taken in hours and the IFB do not consider the fingerprints to be viable or the fingerprints have been rejected by Eurodac on the grounds of poor quality, they will contact the LEO/port referring officer immediately and ask either that the applicant is fingerprinted again or discuss with the officer if the applicants fingerprints appear damaged. If the applicants fingerprints appear damaged, the LEO or port should contact the Sector 8 Compliance Team who will decide if they are taking responsibility for the case and discuss if detention is appropriate. Return to: LEO and Port action to take where the applicants fingerprints are of poor quality 3.2 In hours applications where the IFB1 is to be posted to the IFB Fingerprints must be sent to the IFB as normal on an IFB1; this should be within 24 hours of the applicant being fingerprinted. However, where it is clear that the applicant has presented with poor quality fingerprints the referring officer must contact the Sector 8 Compliance Team who will decide if they are taking responsibility for the case and discuss if detention is appropriateReturn to: LEO and Port action to take where the applicants fingerprints are of poor quality

3.3 Out of hours - where the LEO/port are satisfied that they are unable to take prints of suitable quality Where the LEO/port referring officer suspects that the prints will not be of a suitable quality and the claim is made out of hours, they should consider whether the applicant is suitable to be held in local detention accommodation until the following day. If the applicant is to be transported to overnight accommodation or given temporary admission to their own accommodation, reporting should be set for the applicant to return to the LEO for the next working day. The applicant should not be referred to the Routing and Initial Accommodation Team until after the Sector 8 Compliance Team has commented on the case. Where there is no reason to suspect that the applicant will not yield good quality prints the LEO/port should route the case as normal.

The Sector 8 Compliance Team should then be contacted during their operational hours and be given a summation of the case by the LEO/port referring officer. This should include that the applicant was not referred to the Routing and Initial Accommodation Team because they claimed asylum out of hours and that their fingerprints were of poor quality. They should also be advised whether the applicants fingerprints were sent to IFB by electronic transfer or by post. If sent by electronic transfer the Sector 8 Compliance Team will then contact the IFB to find out if the prints are of suitable quality The Sector 8 Compliance Team will make a decision as to whether they are taking responsibility for the case and if so whether detention is appropriate. Return to: LEO and Port action to take where the applicants fingerprints are of poor quality

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3.4 Applicant is detained Detention procedures should be followed and arrangements made for transfer to an allocated bed. Instructions on detention can be found in Chapter 55 of the Enforcement Instructions and Guidance. If a decision is made not to detain, the guidance under the non-detained route should be followed. Return to: LEO and Port action to take where the applicants fingerprints are of poor quality 3.5 Applicant is not detained but the Sector 8 Compliance Team retain an interest If the Sector 8 Compliance Team decides against detention the case must not be routed to a regional Asylum Team. LEOs/ports must instead contact the Routing and Initial Accommodation Team and follow instructions set out in the section onward routing actions where the applicant is not being detained. Return to: LEO and Port action to take where the applicants fingerprints are of poor quality 3.6 Sector 8 Compliance Team has no current interest If the Sector 8 Compliance Team does not have an interest in the case the applicant should be referred as normal to either the Routing and Initial Accommodation Team or if the case meets the Detained Fast Track detention criteria the Asylum Intake Unit. For further guidance, see the instruction DFT and DNSA Intake Selection (AIU instruction). Return to: LEO and Port action to take where the applicants fingerprints are of poor quality

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4 Asylum Team action to take where applicant has not been fingerprinted or re-fingerprinting is requiredCase owners must follow the guidance in the Asylum Instruction (Interim) Case Owners Handling Referrals to the Third Country Unit. If there is no indication on CID or from the case file that fingerprints have been taken the case owner must arrange for the applicant to be fingerprinted on an IFB1 and the IFB1 to be sent to the IFB. Case owners may also be allocated cases where the applicant was routed before the Eurodac failure was sent to the LEO/port. Where this happens, the LEO/port should forward the Eurodac Failure Notification (printed on orange paper) to the case owner. Additionally, the Sector 8 Compliance Team will have been notified of the rejection and will have updated the notes field on CID with their recommended course of action. If IFB confirm that the applicant needs to be re-fingerprinted, the case owner should arrange for a further set of prints to be taken. If IFB confirm that that the applicant has poor quality fingerprints, the case owner must contact the Sector 8 Compliance Team, who will make a decision as to whether to take the applicant into their detained or non detained process.Back to contents

5 Onward routing actions where the applicant is not being detained5.1 Initial actions when transferring cases to Sector 8 Compliance Team If the Sector 8 Compliance Team advises that the case is to be treated as a non-detained case the point of claim (ASU/LEO/port) or, if the case has already been routed, the case owner and workflow manager must: If accommodation is required: 1. Ask the Routing and Initial Accommodation Team to arrange for the applicant to be transferred to Initial Accommodation allocated to Sector 8. (It should be noted that this accommodation is limited and advice from the Sector 8 team should be sought before this accommodation is utilised. If there is no space then the applicant will need to be allocated to a region where there is capacity). 2. Update CID with the details of the Initial Accommodation address provided by the Routing and Initial Accommodation team. 3. If the applicant is to reside in Sector 8 Compliance Team Initial Accommodation, amend the applicants address details to the allocated Initial Accommodation, which will unless advised otherwise be Brigstock House, 57 Brigstock Road, Thornton Heath, CR7 7JH and send an email to the Croydon Enforcement Unit advising them of the transfer and that it is a damaged fingerprint case. The email must contain the Home Office reference number, the name and nationality of the applicant and the date the applicant is being transferred. 4. If the applicant is not residing in the Sector 8 Compliance Team Initial Accommodation, but is nonetheless accommodated by the UK Border Agency, ensure that CID is updated with the appropriate address and that the LEO closest to where the applicant lives is aware of the transfer and that it is a damaged fingerprint case. 5. Set a diary action under Event Type on the Calendar Events Screen (IS-CID) (this will enable the Reporting Centre to pick up the case and send a revised IS96 to the applicant). 6. Insert the appropriate Reporting Centre in the Centre field. 7. Insert the day after the applicants expected transfer to Sector 8 Compliance Team Initial Accommodation as the booked for date/time. 8. Insert the Reporting Centre under Unit Responsible. 9. In the comments field insert the following text: Sector 8 Compliance Team case, please set up on reporting and fingerprint on a weekly basis. 10. Issue the applicant with an IS96 with a date to next report of the day after the applicants expected transfer to Initial Accommodation. If the applicant does not require accommodation: 1. Ensure that CID is updated with the applicants address. 2. Set a diary action under Event Type on the Calendar Events Screen (IS-CID) (this will enable the Reporting Centre to pick up the case and send a revised IS96 to the applicant). 3. Insert the appropriate Reporting Centre in the Centre field. 4. Set booked for date/time, this should allow adequate time for the applicant to get to their accommodation but should normally be a maximum of 2 days. 5. Insert the Reporting Centre under Unit Responsible. 6. In the comments field insert the following text: Sector 8 Compliance Team case, please set up on reporting and fingerprint on a weekly basis. 7. Issue the applicant with an IS96 with a date and time that has been booked at point 4. In all cases: 1. Minute the file and CID to reflect that the Sector 8 Compliance Team have taken responsibility for the case. 2. Insert Sector 8 in the allocated to field on CID. 3. Depending on at what stage of the process the case is, inform the applicant of the

cancellation of any events (such as the asylum interview, if this has already been scheduled) and any changes to accommodation. Consideration should also be given at this stage to a condition requiring the applicant to submit to Electronic Monitoring.Back to contents

6 ReportingAlthough it will be the responsibility of the referring officer to set the initial reporting event, once the case has transferred to the Sector 8 Compliance Team it will be the responsibility of the LEO to set the reporting regime. The LEO can vary the regime but should call the applicant for fingerprinting on a weekly basis. The Sector 8 Compliance Team should then liaise with the IFB to see if the fingerprint event was successful and notify the LEO of the outcome and what further action is required. Where an applicant is not initially detained this does not prevent the Sector 8 Compliance Team at a later date detaining an applicant on the basis that the individuals identity needs to be established. Any decision to detain must be in line with the instructions on detention found in Chapter 55 of the Enforcement Instructions and Guidance. See also: 1.2 Application of this instruction in respect of children and those with children

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7 Sector 8 Compliance Team action following case referralReferrals should be made to the Sector 8 Compliance Team by telephone during office hours. They will as appropriate accept the applicant into their Eurodac Failure fingerprint work stream and decide if it is currently appropriate to detain the applicant. Eurodac failure fingerprint cases are recorded on the Eurodac Failure spreadsheet within the Sector 8 Compliance Team. Once a case is accepted the admin team should prepare the Eurodac Failure/poor quality fingerprint cover sheet and attach it to a plastic wallet. This should then be passed to the assigned IO who will call for the file. A further spreadsheet for IFB, the DFP Referrals spreadsheet, should then be updated. The file should then be passed to the reviewing CIO to complete, if appropriate, the Acceptance Detention Review, create a T card of future detention reviews and log this on the detention board. The spreadsheet should be updated as necessary.

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8 DetentionAny officer considering the detention of an applicant must be familiar with the instructions on detention in Chapter 55 of the Enforcement Instructions and Guidance. Detention is only lawful if it is for one of the permitted purposes in the Immigration Act 1971. In the context of an asylum applicant having damaged fingerprints the applicant may be detained on the basis that the individuals identity needs to be established, not on the basis that the subject has damaged fingerprints. An additional factor for detention will be if it is considered based on the information known about the applicant that there is a risk of the applicant absconding if not detained. If an applicant is detained in order to establish their identity, normal detention criteria will apply. Applicants should be advised at the earliest point in the process of the possibility of seeking medical advice in relation to their damaged fingerprints.

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8.1 Fingerprinting The CIO responsible for reviewing the case should make arrangements with the removal centre to have the applicant fingerprinted. To minimise the time an applicant remains in detention the applicant should be fingerprinted on a weekly basis. The applicant should be informed that they can seek medical assistance at the removal centre medical facility to assist in their fingerprints healing. The medical facility will if appropriate refer the applicant to a consultant dermatologist. If, after two months in detention, the applicants fingers have not recovered from their trauma, nor has the applicant sought medical intervention for the trauma, they will be asked to sign a consent form to attend the removal centre medical facility and be referred to a consultant dermatologist. If the applicant seeks medical intervention to assist with the healing of their fingerprints, consideration should be given to fingerprinting the applicant on a more regular basis. This will be agreed between the Sector 8 Compliance Team and the detention facility on a case by case basis. If there is evidence that the applicant has deliberately damaged their fingerprints it may be appropriate to interview the applicant regarding the condition of their fingerprints and to warn them that they may be prosecuted or initiate prosecution action. Officers from the IFB and the reviewing CIO may periodically attend the removal centres to obtain both fingerprints and palm prints and conduct an examination of the subjects fingers. The Sector 8 Compliance Team should liaise closely with the detention facility and IFB to ensure an appropriate regime is implemented in order that the applicants prints can be filed to Eurodac and, if previous sets were not of sufficient quality, to the IAFS.

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8.2 Detention Reviews Detention Reviews must be carried out in accordance with the procedure set out in chapter 55.8 of the Enforcement Instructions and Guidance. The subject may be visited by the reviewing CIO and interviewed on a periodic basis. If the applicant is still detained after a 3 month period the DAU Section 8 HMI will carry out a critical review to consider whether to maintain detention or whether the case should be forwarded to an asylum case owner. If detention is maintained reviews will continue in line with instructions in the Enforcement Instructions and Guidance and a critical review will be carried out on a fortnightly basis by the HMI or Assistant Director of Section 8.

Should the applicant be detained for more than 6 months, the case must be referred to the Deputy Director.Back to contents

8.3 Bail There are two types of bail that a detainee may apply for: CIO bail and Immigration Judges bail. If either is applied for, the case must be referred to the Detention Allocation Unit HMI or appointed deputy.Back to contents

9 Sector 8 Compliance Team no longer has an interest in a caseAlthough the case may initially be of interest to the Sector 8 Compliance Team, some cases will drop out of the Third Country procedures e.g. if application of the criteria in the Dublin Regulation identifies the UK as the state responsible for examining the asylum claim. Cases not suitable for further action must be allocated to an asylum case owner for consideration of the asylum claim. If the applicant is non-detained, the case owner within the Sector 8 Compliance Team should follow the Asylum Instruction (Interim) Case Owners Handling Referrals to the Third Country Unit and the section Cases not suitable for Third Country Action - Non-detained cases. If the applicant is detained, the Sector 8 Compliance Team officer should follow the Asylum Instruction (Interim) Case Owners Handling Referrals to the Third Country Unit and the section Cases not suitable for Third Country Action - Detained cases

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10 File CreationWhere the applicant claimed asylum in the ASU, the HO file will be generated by the ASU. Where the applicant claims at a port or LEO the LEO/port file must either accompany the applicant to detention or, if the applicant is not being detained, be forwarded to the File Creation Unit (FCU) who will make up the HO file. If the file is being transferred to the Sector 8 Compliance Team, a minute must be placed on file by the ASU/port/ LEO to inform the FCU to send the HO file to the Sector 8 Compliance Team.

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Glossary Term IS96 IFB1 Meaning Immigration Service document that details the terms of an applicants TA/TR Form on which fingerprints are recorded

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

Document ControlChange RecordVersion 1.0 2.0 3.0 4.0 Authors GT M-A.M G,L GL Date 26 Sept 08 27 Jan 09 01/10/09 23/10/09 Change Reference New instruction Update of contact details Update Childrens Duty Further update to Childrens Duty

Non Suspensive Appeals (NSA) Certification under Section 94 of the NIA Act 2002Table of Contents 1. Overview 2. Introduction to section 94 2.1 Definition of Clearly Unfounded 2.2 Credibility 2.3 NSA Casework & accreditation 3. Designated States section 94 (4) 3.1 Current list of Designated States 3.2 Full or partial Designation 3.3 Definition of entitled to reside 3.4 Doubts about Nationality/entitlement to reside 4. Case by Case Consideration 5. When to use Certification 5.1 Categories of certification 5.1.1 No fear of mistreatment 5.1.2 No objective basis for fear 5.1.3 Feared mistreatment does not amount to persecution 5.1.4 Sufficiency of protection 5.1.5 Internal relocation 5.1.6 Internal relocation 5.1.7 No ECHR point raised 5.1.8 Human rights breach raised but issue excluded under the ECHR

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5.1.9 Feared treatment based on non Article 3 grounds 5.1.10 Article 8 claims 6. When not to certify a clearly unfounded claim 7. Miscellaneous Issues 7.1 Unaccompanied Asylum Seeking Children 7.2 Disputed Minors 7.3 Non-Compliance 7.4 Dependants/Dual Claims 7.5 Families of Mixed Nationalities 7.6 Repeat Claims 7.7 Curtailment 8. Decision process and procedures 8.1 Screening 8.2 The Interview 8.2.1 The Aide Memoire 8.2.2 Withdrawal of the Asylum Application at interview 8.2.3 Re-Documentation 8.2.4 Invitation for Further Evidence Given during the Substantive Interview 8.2.5 Claimants who fail to attend the interview 8.3 Assessing the claim 8.4 When Certification is appropriate. 8.4.1 Designated States 8.4.2 Case by case 9. Further Submissions 9.1 Where a second immigration decision is made

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9.2 Submissions do not amount to a Fresh Claim 9.3 Accepted as a Fresh Claim 10. At the appeal stage 10.1 The procedure 10.2 The role of AIT 10.3 Withdrawing a Certificate 10.4 Conceding an appeal 10.5 The hearings 10.6 Credibility 10.7 Expert Reports 10.8 Appeal lodged while appellant is still in UK 10.9 Appellant requests to give oral evidence 10.10 Post Appeal 11. Documents and Further Guidance

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1. OverviewSection 94 of the Nationality, Immigration and Asylum Act 2002, provides a certification process which removes the right for an in country appeal on certain Asylum and/or Human Rights claims (s84(1)). The power can only be used in cases where the claim is considered to be clearly unfounded and strict criteria must be met before certifying. (a) An applicant resides in a state listed in section 94 (4) (Designated states) (b) An applicant resides outside of one of the designated states but whose claim is considered clearly unfounded under section 94(2). (This is referred to as case-by-case certification)

2. Introduction Section 94Section 94 of the Nationality, Immigration and Asylum Act 2002 came into force on 1 April 2003 and applies to all appeals made under Part 5 of the 2002 Act. If an asylum and/or human rights claim is certified as clearly unfounded under section 94, the applicant cannot appeal whilst in the United Kingdom. This applies to decisions listed in section 82 (2)(c), (d), and (e) under section 92 (2). 2.1 Definition of Clearly Unfounded In order to certify a claim under section 94 the Secretary of State needs to be satisfied that the claim is clearly unfounded. To be clearly unfounded a case owner needs to be satisfied that the claim cannot, on any legitimate view, succeed. In the case of Thangarasa and Yogathas in October 2002 the House of Lords made the following two points about manifestly unfounded claims (applied equally to clearly unfounded): A manifestly unfounded claim is a claim which is so clearly without substance that it is bound to fail; It is possible for a claim to be manifestly unfounded even if it takes more than a cursory look at the evidence to come to a view that there is nothing of substance in it.

Further guidance on how to approach consideration of clearly unfounded was issued by the court of Appeal in 2003 with the case of ZL and VL v SSHD. 1) consider the factual substance and detail of the claim 2) consider how it stands with the known background data

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3) consider in the round whether it is capable of belief 4) consider whether some part is capable of belief 5) consider whether, if eventually believed in whole or part, it is capable of coming within the convention.

2.2 Credibility When considering certification under section 94, claims are assessed at their highest and are only certified when they are bound to fail, even if it is accepted that the claim is true. It is therefore rare for credibility issues to be addressed within certified decisions. The question of credibility and certification was commented on in ZL and VL v SSHD & LCD [2003] EWCA Civ 25. Lord Phillips held at paragraph 60: Where an appellants case does turn on credibility, the fact that the interviewer does not believe the appellant will not, of itself, justify a finding that a claim is clearly unfounded. In many immigration cases findings on credibility have been reversed on appeal. Only where the interviewing officer is satisfied that nobody could believe the appellants story will it be appropriate to certify the claim as clearly unfounded on the ground of lack of credibility alone.

2.3 NSA Casework and accreditation Because of the strength of the power of certification it has been agreed that only NSA trained Case Owners can consider certifying cases under section 94. Their recommended decisions must then be authorised by an accredited Case Owner known as a Second Pair of Eyes (SPoE) or Determining Officer. For more information on training and accreditation please contact the NSA Oversight Team.

3. Designated States section 94 (4)Section 94(4) contains a list of designated states for certification. Under the provisions of the 2002 Act when refusing an asylum and human rights claim from persons entitled to reside in one of the listed states, the Secretary of State is required to certify the claim, unless the Secretary of State is satisfied that the claim is not clearly unfounded. It is important to remember that Asylum and Human Rights claims made by someone from a designated state should still be considered on individual merits and it is only if the claim falls to be refused that the question of certification arises. If the decision maker considers that on the

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facts of the claim it is not clearly unfounded certification should not be used. The countries added to section 94(4) since 7 November 2002 have had to meet the two part test laid down in section 94(5) of the Act: There is in general in that State or part no serious risk of persecution of persons entitled to reside in that State or part, and Removal to that State or part of persons entitled to reside there will not in general contravene the United Kingdoms obligations under the ECHR.

Any countries designated in the future will have to meet the same tests, and the Statutory Instrument designating them will need to be approved by Parliament. Initially there were 10 states included in the list but these have since joined the EU and their citizens are no longer subject to the provisions of section 94. People who are entitled to reside in an EU state but are not citizens of the state can be considered under case by case consideration. The countries currently on the list have been added subsequently, in April 2003, July 2003, February 2005, December 2005, July 2007 and March 2010. There have also been various other amendments to the list with some states being removed. Certification of claims from designated states applies to all claims made on or after the date the country was designated. Any claims made prior to the date of designation cannot be considered for certification under section 94 (4) (but claims of this nature may be considered for certification on a case by case basis under 94(2)) See Designated States poster 3.1 Current list of designated states: Albania Bolivia Bosnia Herzegovina Brazil Ecuador India Jamaica Macedonia Mauritius Moldova Mongolia Montenegro Peru Serbia South Africa Ukraine Ghana (men only) Gambia (men only) Kenya (men only) Kosovo Liberia (men only) Malawi (men only) Mali (men only) Nigeria (men only) Sierra Leone (men only) South Korea

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3.2 Full or Partial Designation Of the 26 States presently designated 16 have been designated in full, 8 are partially designated, as outlined above, for men only. The definition of men only for this purpose is males over the age of 18. There is no obligation to certify the claim of a male under the age of 18 from one of these designated states There is the power to designate; all of a State a geographical part of a State a State in respect of a description of a person a geographical part of a State in respect of a description of a person The ability to designate a State in respect of description of a person was introduced on 1st October 2004 by section 27 of the 2004 Act. It refers to a group of people who may be defined by; gender language race religion nationality membership of a social or other group political opinion or, any other attribute or circumstance that the Secretary of State thinks appropriate. 3.3 Definition of entitled to reside. The term entitled to reside refers to citizens of those states and people who, although not citizens, are normally resident there and have a clear legal basis to reside there. This does not cover short stay residents such as visitors and students. Dual nationals will be covered by the provisions if one of their nationalities is a designated state. 3.4 Doubts about nationality/entitlement to reside There may be doubts about a persons claim to be from a non-designated state. If the person is from one of the designated states but claims to not be entitled to reside there, case owners should consider whether there is evidence that they are entitled to reside in the state, (passport or travel document issued in the state or other evidence that they had been there for many years). If there is such evidence then the claim should be considered on the basis that they are entitled to reside in a designated state. See Nationality: Doubtful, Disputed and other cases.

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4. Case by Case ConsiderationSection 94 of the 2002 Act enables the Secretary of State to certify an asylum and/or human rights claim as clearly unfounded even where the claimant is not entitled to reside in one of the designated states. The legal test as to what amounts to a clearly unfounded claim is the same and the case should be considered on its individual merits. As with certifying designated states a claim should only be certified under section 94 if the case owner is satisfied that the claim is clearly unfounded.

5. When to use Certification5.1 Categories of certification Asylum and Article 3 claims Both the asylum and human rights claims (whether direct or implied) should be considered separately, and should be certified separately if the case owner is satisfied that they are both clearly unfounded. 5.1.1 No fear of mistreatment If a claimant raises nothing that could be considered as amounting to a fear of mistreatment upon return it can be certified as clearly unfounded. For example, a person who states they are fleeing poverty or unemployment. 5.1.2 No objective basis for feared mistreatment. If after taking account of the persons circumstances and the objective evidence, it is clear that there is no arguable basis that the feared mistreatment will arise on return the claim may be certified. Even if a person has faced mistreatment in the past it would not preclude the case if there was clear objective evidence that no mistreatment would occur if returned at the date of decision. Reference should be made to the appropriate OGN and Country Information. 5.1.3 Feared mistreatment does not amount to persecution. A case may also be certified when it is clear from the objective evidence that the mistreatment feared, even if it did occur, would not amount to persecution or treatment contrary to Article 3. The existence of previous mistreatment would not preclude the possibility of certification if the treatment feared on return would not amount to persecution/treatment contrary to Article 3.

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5.1.4 Sufficiency of Protection The need for international protection only arises when it can be shown that the state is either unable or unwilling to provide protection itself. Where it is clear that a state is providing the required level of protection the claim will be clearly unfounded, even if the threat exists. If there is sufficiency of protection a case could still be certified as clearly unfounded where the mistreatment has been very serious. It is not necessary to show that the State will eliminate all risk to the claimant but it is necessary to show that it is willing and able to take effective steps to prevent persecution/treatment contrary to Article 3. An example would be that the State operates a legal system for detection, prosecution and punishment of persecutory acts. Where the claimed threat comes from rogue public officials (e.g. individual police officers), the threshold is higher but would still be clearly unfounded if there is clear evidence that the State is able and willing to provide protection against the officials. 5.1.5 Internal Relocation If a persons claim is in relation to their home area, it would be clearly unfounded if internal relocation was obviously available. This may apply if the claim is a fear of ill-treatment by non-state actors, rogue agents or where the authorities are not in control of the entire country. It would be appropriate for a case owner to certify a claim as clearly unfounded if, on the objective evidence, the claimant could relocate to an area where there was sufficiency of protection and it would not be unduly harsh to do so. Case owners must examine at interview whether there were any factors which would make internal relocation unduly harsh. 5.1.6 Asylum claim No refugee convention The fears expressed are clearly unconnected to and of the five refugee convention grounds, race, religion, nationality, membership of a particular social group or political opinion. An example would be a claimant fearing mistreatment from his neighbour as a result of a personal dispute. Note: a human rights claim would not fall to be certified on this basis, but may still be clearly unfounded for other reasons. 5.1.7 No ECHR point raised No part of their claim can be considered as falling under the provisions of the European Convention of Human Rights. For example a person who argues

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removal would breach their human rights solely on the basis of limited job prospects in their country of origin. 5.1.8 Human rights breach raised but issue excluded under the ECHR. The claim refers to a breach of the claimants human rights if they were removed but the ECHR does not provide protection against the specific breach that is alleged. For example a person states their human rights would be breached because they would be forced into military service. However Article 4 (3) of the ECHR excludes military service from their definition of forced labour. Unless there was another aspect to the claim this would fall to be certified as clearly unfounded. 5.1.9 Feared treatment on non Article 3 grounds A claimant may refer to mistreatment that will breach other articles of the ECHR, such as unlawful detention (Article 5), unfair trial (Article 6), or restrictions on freedom of expression (Article 10). These are considered indirect breaches, in that they will occur within the country to which the person is to be removed and not on removal. These types of claims would normally be clearly unfounded unless it is revealed there is a real risk of unlawful killing contrary to Article 2 or the death penalty, in which case a grant of Humanitarian Protection may be appropriate. Case owners should also consider whether the claimed breach would occur and if it did would it be a flagrant breach and/or a breach that was sufficiently serious to amount to a breach of Article 3. It would be exceptional for a case to meet the flagrant denial test and amount to a breach of Article 3 but in any case it should be considered, even if not specifically raised by the claimant. If the claimant demonstrated a real risk of a flagrant breach then certifying the claim as clearly unfounded would not be appropriate and a period of leave should be considered. For further guidance see AI on Considering Human Rights 5.1.10 Article 8 claims Direct and indirect claims of a breach of Article 8 should be addressed in the same. way. They should be considered on their individual merits and if refused consideration should be given as to whether they are clearly unfounded. Some examples of claims that may be suitable for certification are; The claimant claims close family ties in the UK, but none exist. There is no evidence of existence of claimed family members or no evidence of a longstanding bond between them. There are no insurmountable obstacles to the family member(s) living with the claimant outside the UK.

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Where it is considered that an Article 8 claim may be suitable for certification reference should be made to the AI on Article 8 of the ECHR for further guidance.

6. When not to certify a clearly unfounded claim.There are a number of situations where a claim that is clearly unfounded should not be certified under section 94. If an individual makes both an Asylum and Human Rights claim and only one of these is clearly unfounded. There is no right of appeal following the refusal of the asylum or human rights claim. For example where the claim is refused but leave of 12 months or less is granted on another basis. The right of appeal is under section 83 of the 2002 Act. This where the claim has been refused but the leave of over 12 months has been granted on another basis. The claimant is entitled to an in country right of appeal for reasons unconnected with the Asylum and Human Rights element. *

* Under section 27 of the 2004 Act the circumstances in which the claimant will retain an in country right of appeal have been limited. For claims dated from 1 October 2004, an in country right of appeal will be retained where their indefinite leave is revoked under section 76 of the 2002 Act or where there is a decision to make a deportation order under section 5(1) of the 1971 Act. Where we refuse an in time application to vary leave (section 82 (2)(d)) or where we curtail leave (section 82 (2)(e)) and the refused asylum and human rights claims are found to be clearly unfounded, the case can now be certified and the person will have no in country right of appeal. In addition when making a decision in these circumstances the case owner should also normally make a decision to remove the person under section 10 of the 1999 Act (section 82 (2) (g) 2002 Act). A person who holds a visit visa and makes an asylum or human rights claim on arrival would be refused leave to enter on the basis that leave is sought on a basis other than the purpose specified on the visa. Under section 28 of the 2004 Act if the asylum and Human Rights claim is considered to be clearly unfounded the claim can be considered for certification. See further guidance on Curtailment in the section on miscellaneous issues, below. 6.1 Extradition cases Under section 27 of the 2004 Act, if a person is entitled to reside in one of the designated states and is also subject to extradition proceedings there is no

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mandatory requirement to certify the claim if it is clearly unfounded. Although legally it does not prevent certification, the normal position would be not to certify the claim, as a person facing extradition for criminal charges should normally be able to exercise an in-country right of appeal.

7. Miscellaneous Issues7.1 Unaccompanied Asylum Seeking Children (UASC) Although not exempt from certification under section 94, if a UASC has no family to return to and we are not satisfied that adequate reception arrangements and accommodation exists the child will not be removed and will usually be granted Discretionary Leave. As leave has been granted we cannot certify the claim even if it is considered to be clearly unfounded. The best interests of the child should be the case owners primary concern in accordance with the statutory duty to safeguard and promote the welfare of Children. For more information see UKBA Code of Practice for Keeping children Safe from Harm or contact the Office of the Childrens Champion.

7.2 Disputed Minors The existing approach to disputed minors should be followed. If we conclude the person is not under 18 we should treat them as an adult. For further Information see guidance on Assessing Age 7.3 Non Compliance Where a person from a designated state does not comply the claim should be considered in the same way as other non- compliance cases, taking a decision based on the available information. This would normally mean that if the claim is refused it should be certified, as there would be no information to satisfy the case owner that the claim was not clearly unfounded. For further information see guidance on Non-compliance 7.4 Dependants/Dual Claims Dependents should be advised to make an application for asylum or human rights at the outset if they have a fear in their own right. Where more than one family member applies in their own right, it is possible to certify as clearly unfounded a claim by one member and not another. In these circumstances we would not normally remove the person whose claim was certified pending the in-country appeal of the other family member/s. If later the in-country

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appeal succeeds the persons whose claim was certified would usually have a basis to remain in the UK. If a dependant applies for asylum or human rights after the principal claim has been certified we would not normally remove the person pending the decision. There are some occasions where family life is not subsisting and removal of the applicant whose claim has been certified may be appropriate. This may be relevant where the applicants have chosen to live separately before their arrival in UK and have not resumed or maintained their family life whilst in the UK. 7.5 Families of Mixed Nationality In some cases the principal claimant is from a designated state but their partner is not. If the partner is claiming solely as a dependant then the claim should be considered in the normal way. If the partner applies in their own right the claim should be assessed against the country to which they will be returned. This is normally the country of residence of the principal applicant unless there is evidence that the partner is not entitled to reside there. If we are not satisfied that the partner can be returned to the country of residence of the principal applicant then the claim cannot be considered against that country. Unless the partner is entitled to reside in another designated state, certification of the claim would need to be considered on a case by case basis. 7.6 Repeat claims It is possible in certain circumstances to certify repeat claims under section 96 which gives no right of appeal. Where this is not possible consideration should be given to whether it falls to be certified under section 94. For further guidance on Section 96 please see The One Stop Procedure 7.7 Curtailment of Leave It will occasionally be the case that applicants who make asylum and human rights claims already have leave, for example as a student. If the decision is taken to refuse the asylum and human rights claims then it is usual practice for their existing leave to be varied so they will have no leave. This is referred to as curtailment. A decision to curtail leave is recognised as an immigration decision by virtue of section 82 (2) (d) of the 2004 Act and this decision brings with it an in-country right of appeal, under section 92 (2). However if the claim is found to be clearly unfounded the Case Owner will be required to certify the claim under Section 94. The Case Owner should make specific reference to section 94(1A).

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[(1A) A person may not bring an appeal against an immigration decision of a kind specified in [section 82(2)(c), (d), (e) or (ha)] in reliance on section 92(2) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) above is or are clearly unfounded.]1

As the applicant will also have an in-country right of appeal under section 92 (4)(a) of the 2002 Act, the claim will also still require explicit certification by reference to section 94 (2). The RFRL templates have been updated to include standard paragraphs which reflect these requirements. Case Owners should ensure that before curtailing and certifying such cases, claimants fulfil all of the criteria listed on the AI for curtailment. For further information see guidance on Curtailment of Limited Leave

8. Decision Process and Procedures8.1 Screening When a person makes an asylum and/or human rights claim(s) at the Croydon Asylum Screening Unit (ASU), Local Enforcement Office (LEO) or Port they are screened. Part of the screening process establishes where that person claims to reside. From this and other details gathered, it can be determined whether they may be suitable for detention in a Fast Track location by referral to the Asylum Intake Unit (AIU). Where the applicant is from a designated State and is undocumented the appropriate redocumentation forms should be completed by the screening location. Where the applicant is not deemed suitable for detention, or where there are no suitable detention facilities available, the case will be routed to an appropriate Asylum Team. 8.2 The Interview The guidance provided here should be read in conjunction with the instruction provided in Conducting the Asylum Interview. 8.2.1 The Aide-Mmoire The Aide-Mmoire is to be used only as a guide by interviewing officers conducting substantive asylum interviews."Aide Memoir.doc"

8.2.2 Withdrawal of Asylum and/or Human Rights Claim(s) at Interview

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Before the substantive asylum interview begins, the interviewing officer should ask the applicant if he wishes to proceed with his asylum and/or human rights claim(s) using the standard phrasing contained in the Aide-Mmoire. Where the applicant declares that he wishes to withdraw his asylum claim interviewing officers should: 1. Ensure that the Notice Of Withdrawal Of Application For Asylum (form IS.101PA) is signed by the claimant; 2. As appropriate, complete re-documentation forms (for further guidance see Travel Documentation); 3. Place the signed Notice Of Withdrawal Of Application For Asylum (form IS.101PA) on the right hand side of the case file; 4. Flag the Notice Of Withdrawal Of Application For Asylum (form IS.101PA) 5. Implement removal of applicant 8.2.3 Re-Documentation If the applicant is undocumented and re-documentation forms have not been started, interviewing officers should complete the appropriate redocumentation forms before starting the interview (for further guidance on identifying and re-documenting undocumented applicants see Travel Documentation). Where re-documentation forms have been completed and placed on file, interviewing officers should check that forms have been completed correctly. 8.2.4 Invitation for Further Evidence Given During the Substantive Interview Adult applicants from one of the designated States listed under section 94 of the NIA Act 2002 are not issued with a Statement of Evidence Form (Selfcompletion) and are therefore allowed five working days (non-detained applicants) or 48 hours (detained applicants) after the interview to submit further evidence or information. Interviewing officers should inform adult applicants of this right at the end of the asylum interview, issuing stock letter ASL.1903 as appropriate. For further guidance see Conducting the Asylum Interview. 8.2.5 Claimants who fail to attend the Asylum Interview Acceptable reasons for an applicant not to attend their substantive interview are given in Conducting the Asylum Interview. Where the applicant fails to give an acceptable reason and is entitled to reside in one of the designated States listed in section 94 of the NIA Act 2002, officers should take appropriate non-compliance action. Accredited/NSA trained officers should consider all the evidence available to them and, if they are satisfied that the asylum and/or human rights claim(s) should be refused and is clearly unfounded, they should also certify the asylum and/or human rights claim(s) under section 94. For non-compliance cases a recommendation minute still has to be completed and the decision agreed by an accredited second pair of eyes.

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Also see Asylum Instruction Non-compliance for further advice. 8.3 Assessing the claim General Principles Officers should consider in turn whether a grant of asylum, Humanitarian Protection, Discretionary Leave or outright refusal is appropriate. See Considering Human Rights claims and Considering the Asylum Claim A recommendation minute is required for all proposed decisions on designated State applications which is forwarded to an accredited second pair of eyes for consideration and authorisation. 8.3.1 Grant of Asylum, Humanitarian Protection or Discretionary Leave If the determining officer disagrees with the recommendation to grant leave, then the recommending officer should implement the decision of the determining officer. The determining officer should discuss with the recommending officer the reason why a grant of leave is not thought to be appropriate. 8.3.2 Outright Refusals Only once it has been decided that an outright refusal is appropriate should certification under s94 be considered. NSA-trained Case Owners should consider whether the asylum and human rights claims are clearly unfounded. Note that where an applicant has made a joint asylum and human rights claim and it is decided that certification is appropriate, both claims or neither claim should be certified. For example where it is considered that the human rights claim should not be certified then the asylum claim must also not be certified. This is because the applicant will retain an in country right of appeal on one part of the claim and both parts need to be heard together. 8.3.3 Certification Under s94 is Considered Not Appropriate If it is agreed that certification is not appropriate then the Case Owner should implement the case in line with standard procedures and where appropriate a suspensive appeal should be given. A recommendation minute and a determination minute by an accredited determining officer still need to be completed. 8.4 When Certification Under s94 is Considered Appropriate 8.4.1. Designated States Initial Recommendation

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