Asylum & Trafficking
► In July 2022 the Nationality and Borders Act (NABA) came into force and changed various aspects of the UK Asylum system.
The new law will apply to asylum seekers who lodged their asylum claims on or after 28 June 2022. However, the legality of certain sections of the NABA 2022 have been questioned. The most important changes are as follows:
- Group 1 and Group 2 Refugees– Group 1 refugees are those who have entered the UK ‘directly’ from a country where their life or freedom was threatened and have claimed asylum ‘without delay’. If one or both don’t apply then the asylum seeker will fall in ‘Group 2’ and will be treated differently unless they can show a ‘good cause for their unlawful entry or presence’.
- Group 1 refugees are usually granted permission to stay for 5 years after which they can apply for indefinite leave.
- Group 2 refugees are granted temporary permission to stay for 30 months. They may have restrictions such as ‘no recourse to public funds’. In order to apply for settlement they will need to complete a 10-year lawful residency.
- Inadmissible Claims – this will make applicants inadmissible and ineligible to claim asylum in the UK because of their ‘connection’ to a country the UK deems safe. This will be safe third countries where the applicant has been or could have claimed asylum but did not do so. It also includes countries where they have claimed asylum and been refused or a decision is pending.
- Anyone entering the UK without a visa will be deemed to commit a ‘criminal’ offence. The maximum sentence for arriving without clearance, entering unlawfully, or overstaying will be increased to 4 years imprisonment.
- Humanitarian Protection – applicants will be granted temporary humanitarian permission to stay for a period of 30months. This can be renewed depending on whether the person still has and remains eligible for humanitarian protection. They will need to complete 10years in order to be eligible for settlement.
What is Asylum
Article 1A(2) of the 1951 Refugee Convention states that a refugee is an individual who is outside of their country of nationality or habitual residence, and has a:
…a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group of political opinion…and is unable, or [due] to such fear, is unwilling to avail himself of the protection of that country; or…is unwilling to return to it.”
The above has been reflected into the UK Rules through The Refugee or Person in Need of International Protection (Qualification) Regulations 2006. To summarise asylum is a claim made because a person’s life or freedom would be threatened on account of their race, religion, nationality, political opinion or membership of a particular social group. The standard of proof is ‘reasonable degree of likelihood’.
Claim Asylum at port or call Home Office
Also called screening, welfare or in-take interview.
Basic questions are asked and Forms such as SEF and
PIQ, Bail 201 are handed to applicant
Complete the Statement and SEF [minors] or the
Preliminary Questionnaire [adults]
Submission of above forms to Home Office with legal
Questions on fear of persecution to the country you
may be returned; nationality and ethnicity questions,
relocating to a place other than which you lived etc.
Check interview record to make any amendments,
usually in 5working days of receipt.
If granted Asylum/Refugee, then wait for status
documents. If refused then ‘Appeal’ the matter.
Article 1F of the Refugee Convention applies where the Secretary of State is satisfied that the person has instigated or otherwise participated in the crimes or acts mentioned therein. In these circumstances the applicant will not be classified as a refugee.
If refused Refugee status you may receive the following:
- Humanitarian Protection- this used to be a grant for 5 years but now is for 30 months.
‘substantial grounds have been shown for believing that the person concerned, if returned to the country of return, would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail themselves of the protection of that country’.
- Leave on family and private life
- Discretionary Leave/temporary leave on other grounds of compassion based on Article 2, 3 or Article 8 ECHR rights.
Article 2– ‘’Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law’’.
Article 3– “No one shall be subjected to torture or to inhuman or degrading treatment or punishment’’.
► Family reunion- If you have Refugee Status or Humanitarian Protection, you may be able to apply to bring your partner/spouse and any children you have to the UK, as long as they were part of your family unit at the time you fled your country of origin.
Fresh Claim (Further submissions)
This stage is reached after an asylum seeker’s claim has been refused and appeal rights have been exhausted. Previous evidence will not be considered.
The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered.
The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.
► You only receive a right of appeal on a refusal of a fresh claim if the Home Office considers the evidence to meet the evidence criteria but you do not have a well founded fear of persecution to the country you would be returned to. In these circumstances you may only make an application for Judicial Review if the fresh claim decision is negative i.e. ‘rejected’.
TRAFFICKING AND MODERN SLAVERY
The law governing this is derived from ARTICLE 4 of Council of Europe Convention on Action against Trafficking in Human Beings. This has been implemented and modified in Modern Slavery Act 2015. Modern slavery encompasses human trafficking and slavery, servitude and forced or compulsory labour.
“Trafficking in human beings” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.
Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
Human trafficking consists of three basic components:
- Means (not required for children),
- Purpose of exploitation.
In layman terms it is when a person makes you do things against your will, where your freedom has been taken away, because that person wants to gain something for him/her. Human trafficking is the modern day form of slavery. It is the illegal trade in human beings for reasons such as sexual exploitation, forced labour, domestic servitude, forced criminal activity or removal of human organs.
Potential Victim Of Trafficking Identification
Reasonable Grounds Decision
Conclusive Grounds Decision
If you have mentioned anything in your statement or interview that highlights the above components you will be identified as a ‘potential victim of trafficking’. You are then referred to the NRM- National Referral Mechanism. NRM is a single framework that identifies victims and refers them to appropriate support. Certain specified public authorities are under a statutory duty, pursuant to the 2015 Act, to refer or notify the Home Office about any potential victims of modern slavery. ‘First Responder’ organisations are those authorised to refer individuals into the NRM such as police forces, the National Crime Agency, UK Visas and Immigration, local authorities, Migrant help, Refugee Council, health and social care trusts.
Referrals are made to the relevant Competent Authority, which is either The SCA (‘Single Competent Authority’) or the Immigration Enforcement Competent Authority (IECA). These Competent Authorities are the United Kingdom’s decision-making bodies. If the potential victim is under 18, or may be under 18, an NRM referral must be made. Child victims do not have to consent to be referred into the NRM and must first be safeguarded and then referred into the NRM process.
A positive reasonable grounds decision entitles the potential victim to a recovery and reflection period for a minimum of 45 days, and until the conclusive grounds decision is made.
The Competent Authority then makes a decision to be made on whether the individual is a victim of modern slavery, human trafficking and / or slavery, servitude and forced or compulsory labour.
Grant of leave
An asylum claim and that of trafficking can run simultaneously. You may receive a positive conclusive grounds decision but yet not receive your leave to remain as you need to wait for the substantive asylum decision. However, this can be challenged by way of judicial review.
However, every applicant will want to be granted asylum as opposed to modern slavery/trafficking only as it provides you between 12 to 30months leave which is renewable whereas asylum is for five years and takes you to settlement subsequently.
You can receive support from the following organisations:
- Migrant Help
- Salvation Army
- Medical Justice (if in detention)