We all agree that taking a witness statement when preparing an appeal is necessary, but when it comes to statements in the context of asylum applications, views tend to differ.
Some legal representatives believe that a statement is a crucial part of evidence, and indeed the foundation of the whole claim, whilst others maintain that statements are dangerous because they tend to cause discrepancies with the answers given at the asylum interview and therefore make the applicant’s credibility collapse.
There is force in both arguments, so what is the best way to proceed?
My humble opinion is that if you are the legal representative, you must take a statement from your client even if you eventually decide not to submit it, and you should complete a draft before the full interview.
Probably the only exception to this rule would be when your client is unable to provide an account, for example due to serious mental health issues.
There are various reasons why I believe taking a statement is essential.
- Firstly, asking your client a lot of questions about their story will help them focus on the relevant facts, and this exercise is an invaluable training tool that will come handy when they are interviewed at the Home Office. If your client is surprised by the intensity of your scrutiny and accuse you of being hard on them, you should take it as a compliment, and explain that this is for their own benefit: once able to withstand the “grilling” from their thorough lawyer, your client will be able to cope well with the stress of the asylum interview.
- Secondly, requesting detailed information to the level required to draft a statement is the best way to expose any weaknesses in your client’s claim, which would not have been obvious in the course of taking instructions.
- Thirdly, once the job is done, your client would have a written document detailing their experience, and going through it will enhance their ability to answer interview questions. Knowing your story is different from telling your story, and having practiced the latter is a step forward towards refugee status.
- Finally, if your client’s case is refused (and we know that most asylum applications are), you would have an easier job in preparing the appeal statement, as you would only have to update the asylum statement and deal with the issues raised in the refusal letter.
Assuming I have managed to persuade you of the importance of drafting statements, and you are now reaching for the phone to book your next client meeting, eager to start drafting, what do you do with your masterpiece once it is done?
The best time to submit a statement
Again there are different theories, and the world is divided in those submit statements as soon as they are ready and those who keep them on file waiting for the opportune moment.
I used to belong to group one. As soon as I had completed the mammoth task of taking instructions, drafting and reading back, I would put the warm printout in the post and send it to Lunar House.
But then two things would happen: either the interview would not take place for several months, making the statement obsolete, or the Home Office would not put the paperwork on the client’s file in time, and the interviewing officer would not read the statement before the interview.
Now, it is true that there might be a risk of discrepancies between the account in the statement and the answers provided at an interview, but I believe it is more difficult for your client to engage with an interviewing officer who has no clue about their story, resulting in longer interviews, more questions and possible misunderstandings.
It is therefore helpful if the statement reaches the Home Office before the interview date, but not too soon.
What works best for me is to draft the statement and leave it on file until the invitation to the interview is received. At this point, you can check the statement with your client, so that it’s fresh in their mind. You can add any new facts, to ensure it’s up to date, and you can send a copy in the post, or by email if you have an address, hoping the statement will be linked to the file in time.
Additionally, it is worth giving your client a copy to hand-deliver to the immigration officer, for a quick read before starting the interview.
What do you need to say?
Writing a statement is an art, which is often not taught to legal representatives who end up learning “on the job”.
The task is difficult for various reasons: you need to extract all the relevant information and steer your client away from lengthy accounts of episodes that are not part of their claim.
You need to be sensitive but at the same time probe and ask for details of traumatic event that your client would rather forget.
You are pressed for time due to the limited funds available for the case but need to ensure the statement is comprehensive.
You have to be satisfied that no answer is lost in translation if your client does not speak English and you are using an interpreter (in which case you are even more pressed for time, as attendances with interpreters notoriously take much longer).
Finally, you are exposed to the risk of vicarious trauma by engaging with your clients’ accounts of ill-treatment or torture, but this is perhaps a discussion for another day.
The importance of a good structure
To ensure you do the best possible job, you need structure. You have to know where to start and where you want to end. You also need to remember that this is your client’s story and their voice and style should come out, as much as possible, from the paper. So, there is no need to say that “my right under article 3 ECHR would be breached” when you can simply say “I am scared that I will be detained and beaten”.
To ease your client into the task, you may want to start with neutral questions: their background, family, education, employment.
You would then move onto the first incident (if any). Full details of any episode of detention, ill-treatment or issue which led the client to leave their country should be provided.
You would continue in chronological order and finish with the last episode, which prompted the client to flee.
Some details of the journey to the UK should be provided, including checking if your client was fingerprinted in any “safe country” where he could be returned under the Dublin III Convention.
While narrating your client’s story, always bear in mind the issues that pop up in the Home Office refusal letters: have you explained why your client cannot safely relocate anywhere else in their country? Have you provided sufficient details to ensure the claim does not appear vague? Have you clarified any issue which could end up in adverse credibility findings?
Finally, have you explained why your client would be at risk on return? No matter what happened in the past, if you don’t explain the reasons why your client cannot go back to their country, they would not qualify for refugee status.
In some cases this would be obvious but in other circumstances you need to elaborate, especially if a long time has lapsed since the last incident in the country of origin.
When you have finished your draft, it’s time to read the statement with your client and ensure all is correct. And once all is done, remember the most important task: your spellcheck!
If you are interested in receiving immigration training (including on the above topic) contact firstname.lastname@example.org. In-house training available. Courses listed on the dedicated blog page.
The new LAA immigration contract is due to start on 1st September 2018.
Old hands and new entrants are busy completing the verification process, which consists in providing the LAA with evidence that they meet the contractual requirements specified in the tendering process.
Many firms are ready, whilst other are still trying to recruit an accredited Level 2 Supervisor, an essential condition to be able to seal the deal with the Legal Aid Agency.
Despite the difficulties that having a legal aid immigration contact entails, including the constant audits, the amount of paperwork required and the small profit margins, there are many brave new bidders who have decided to enter the game.
Having an immigration contract allows firms to provide services in asylum and human rights claims. Since 2013, legal aid has been limited mainly to cases which engage the Refugee Convention or article 2 and 3 ECHR, some trafficking and domestic violence matters, cases to the Special Immigration Appeals Commission (SIAC), judicial reviews and bail.
Claims based on private and family life are excluded, even in the context of deportation, when the person is detained and therefore probably less able to pay for legal services. To get legal aid in excluded matters, one has to apply for exceptional funding, and explain why in their specific circumstances recourse to publicly funded representation is essential.
At some point it was virtually impossible to obtain exceptional funding but, following litigation, the interpretation of the rules has been slightly relaxed.
Firms who secured a contract will have access to untold riches: a whopping fixed fee of £413 to prepare an asylum application and £567 for an appeal to the First Tier Tribunal. Barristers will also make a fortune with the £302 paid to represent an asylum seeker at the FTT.
Only if a case is so complex that it would cost more than three times the fixed fee to prepare, remuneration will be paid at an hourly rate of around £50, but only if the file passes a Legal Aid Agency audit and it is assessed that it was “reasonable” for the provider to spend the claimed amount of time.
The fixed fee regime is not applicable to detained cases or cases involving unaccompanied children. These matters can be billed at an hourly rate, subject to a cap. Only caseworkers accredited at Level 2 under the Law Society scheme can deal with these cases, and an enhanced criminal record certificate is required to attend on minors.
A mainstream contract enables firms to apply for funding in judicial reviews and appeals to the higher courts.
In these circumstances, it is necessary to submit an application for each case, so that the Legal Aid Agency can assess whether the applicant satisfies the means and merits tests before granting a funding certificate.
Having a general immigration contract does not allow firms to deal with clients detained at Immigration Removal Centres, where an exclusive contract is required.
If an asylum seeker is detained at Harmondsworth, Colnbrook or Yarlswood, their case will be dealt with under the Detained Asylum Casework scheme (DAC), the new version of the abolished ‘fast track’. A new contract requirement is that firms can have an exclusive DAC contract only if they employ a Level 3 advanced caseworker, available to supervise. As there are not many Level 3s looking for a job, this is proving difficult for some firms to secure one in time.
Said advanced caseworker is not necessary to represent clients detained at other immigration removal centres, such as Brook House or Morton Hall, where no new asylum applications are processed.
But with such limited funds, how can a legal aid firm be profitable and at the same time provide a good quality service?
If you have been to one of my training courses, you probably already know my favourite metaphor, that running a legally-aided asylum application is like jumping on a (cheap) car with limited fuel.
You need to drive your client from point A of having no leave to point B, securing refugee status or some other positive outcome.
The legal aid funds are the limited fuel. To make it last you need to be very efficient, take the quickest route and waste no time detouring onto secondary roads for a scenic view. You must manage your time well, and manage your client in attendance to build a good rapport and obtain all the relevant information in support of their claim, but preventing them from delving into irrelevant issues.
Without being heartless, you need to know that hand-holding is out of legal aid scope and any time you wish to spend assisting your client in getting a GP, discussing accommodation or giving directions on how to reach their reporting centre is your own, unbillable time.
You need to manage your interpreter, who will probably be more inclined to make any appointment last longer, and you need to manage well-meaning third parties who phone you for an update or complain because you have not returned their call in the last couple of hours.
You also need to be a good administrator. Your files must contain detailed, accurate notes of time spent in attendance, preparation and on any other billable task.
Files must be tidy. Anyone leafing through your paperwork -especially if this person is an LAA auditor- should be able to understand quickly what the matter is, and easily follow each step you have taken to accompany your client on their journey.
Finally, you need to master volumes of LAA rules and cost regulations to avoid charging for what is considered an overhead or admin task, and risk failing an audit.
You will probably work long hours to accomplish all this. And at the end of the month you may still be called into a meeting with your supervisor because you are low on target.
But one day, when your car is running on fumes, you will receive a letter printed on a depressing beige piece of A4 paper, with the Home Office logo on it, which will finally confirm that your client has reached his destination.
And that will make it all worth it, because you will have managed to change someone’s life. And that’s priceless.
If you are interested in receiving training, including in-house training, on Legal Aid standards and procedures, contact email@example.com.
On 30 May 2018, the Home Office updated once again their “Windrush page”, by adding a new application form which can be used by in-country applicants.
A new form to apply from abroad should be published soon and in the meantime, applicants overseas who think they are eligible, can contact the dedicated taskforce who should be able to assist them re-entering the UK.
The number provided is a freephone which presumably only works within the UK (0800 678 1925), but applicants can email the taskforce at: firstname.lastname@example.org
The Windrush scheme officially started yesterday, 30 May 2018, however the first information was already published by the Home Office on 13 April 2018.
The webpage has been constantly updated, first with the introduction of a freephone, then with details of the measures to be implemented to assist the Windrush generation, and finally with information for landlords and employers, and news of the compensation .
Who can apply?
Applications can be made from the UK by:
- A Commonwealth citizen who was settled in the UK before 1 January 1973 and has been continuously resident in the UK since their arrival.
The taskforce will consider if the person applying is already a British citizen, or is eligible for naturalisation. In this case, the residence requirement (5 years or 3 years if they are married to a British national) will have to be met. It is also necessary to show that the applicant has a “good character”, but luckily there is no need to take the English language or Life in the UK tests.
Alternatively, applicants can be given a Certificate of Entitlement to the Right of Abode, if they qualify, or settled status.
- A Commonwealth citizen who was settled in the UK before 1 January 1973 whose settled status has lapsed because they left the UK for a period of more than 2 years, and is now lawfully in the UK and has close and continuing ties with the UK.
In this case successful applicants will be given a document confirming settled status, unless they are deemed liable to deportation. For many it will be easy to show their “close and continuing ties with the UK” but others will probably have difficulties if they have no family ties and are not working. It is also worthy of note that applicants must demonstrate that they are “lawfully” in the UK, meaning that they must have at least limited leave to enter or remain.
An exlanation of what “continuing ties” means and examples of how to prove the various requirements can be found in the UKVI Windrush Scheme Guidance, which runs 46 pages and is heavily redacted.
- A child of a Commonwealth citizen who was settled in the UK before 1 January 1973, where the child was born in the UK or arrived in the UK before the age of 18 and has been continuously resident in the UK since their arrival.
This third category will probably affect many. The taskforce will look at these applications in the same way as those under the first category, the only additional detail being that applicants may be able to register as British. Registration is another way to acquire British citizenship, slightly less complex than the naturalisation route, and it is available because these applications are made by people either born in the UK or arriving as minors.
- A person of any nationality, who arrived in the UK before 31 December 1988 and is lawfully settled in the UK.
In this case the taskforce will consider if the applicant is already British or has a right of abode, alternatively, “the Taskforce will consider whether they are settled in the UK and, if so, they will be given a biometric document confirming their settled status”.
Applicants who are currently abroad
Applications can be made from overseas by
- a Commonwealth citizen who was settled in the UK before 1 January 1973 but who does not have a document confirming their Right of Abode or settled status, or whose settled status has lapsed because they left the UK for a period of more than 2 years.
The taskforce will consider if the applicant has a right of abode, or meets the requirement for a “returning resident”. Once in the UK, the applicant will be able to naturalise as British once he has resided here for a sufficient period to satisfy the usual residence requirements.
The UKVI guidance states that if applicants only want to visit the UK, they will also need to meet the immigration rules regarding visitors. I wonder how many would go through the hassle of applying under the Windrush scheme in these circumstances, considering that they simply can apply as visitors under the normal route.
The application form
The form is 17 pages long, which makes it a very short form for Home Office standards. There is no fee to submit it, and not fee is payable when biometrics are given at a Post Office. In addition to this, the application can be sent by Freepost, although it may be advisable to send it by recorded delivery.
It is suggested that documents in support “can be provided” but it is not necessary, as the Home Office will contact the applicant if required.
It is also stated that the Home Office “will not refuse your application without giving you the opportunity to provide more information”. This is a welcome clarification, which departs from the usual Home Office policy that applicants must submit complete applications and that caseworkers “may” contact them to provide additional evidence.
It is expected that the applicant discusses the case with a representative of the taskforce over the phone, and it is unclear whether the taskforce caseworkers will contact a legal representative if the applicant has one. This should be expected as the form asks for details of a legal representative, but only time will tell.
The form itself is very straightforward, perhaps too simple and it is advisable to provide a cover letter explaining one’s personal circumstances in more detail as well as supporting documents.
What is missing?
The scheme is new and it is not clear whether taskforce caseworkers will be prepared to deal with a variety of possible scenarios and a large amount of applications.
The chances of a refusal of the application are therefore significant. But what would happen then?
Although the UKVI guidance states that “No information provided to the Taskforce will be passed on to Immigration Enforcement”, there is no right of appeal or to have the decision administratively reviewed.
This is a serious omission which will probably lead to a series of Judicial Reviews, making the Upper Tribunal quite unhappy.
Information on the Windrush scheme can be found here:
For the latest news, you can sign up for email alerts on the gov.uk website.
I am sure you all know that on 25 May 2018 the new General Data Protection Regulation, or GDPR, has come into force.
Every organisation that handles sensitive data need to comply with the new law, which has specific provisions for “special categories of personal data” including race, ethnic origin, politics, religion, sexual orientation, health and biometric data.
Does it sound familiar? Yes, this is exactly the type of information that the Home Office would have on the vast majority of migrants who have made an application for leave to enter or remain. Financial information would also be in the Home Office possession.
Unless you decide not to make an application, giving out this information is a necessary evil, but with the GDPR you should feel more protected in terms of how does the Home Office process and share your data. Even better news is the fact that you have a better access to the information that the Home Office holds on you.
Why is this important?
If you have a long immigration history, chances are that the Home Office has a large paper and electronic file containing information about any applications you made and any decision taken.
Interestingly, internal files notes would also be recorded, and you can access them with a simple request. Such notes are often important to uncover information you otherwise would not be aware of. For example, you can receive the minutes of the reasons for granting you a visa, which would be an excellent starting point when you make a subsequent application.
Notes of telephone conversations and discussions between Home Office departments or with your previous representative, may give you a comprehensive picture of what happened behind the scenes when your case was being processed.
Furthermore, you may find out that you are considered as an absconder or that at some point the Home Office intended to detain or remove you.
Before the GDPR came into force, you had to pay £10 and write to the “subject access bureau” within the Home Office requesting disclosure. The Home Office would reply within 40 working days, but often it would take much longer to elicit a response.
On 23 May 2018, a new Home Office policy on subject access requests has been published, and it can be found here: https://www.gov.uk/government/publications/requests-for-personal-data-uk-visas-and-immigration/request-personal-information-held-by-uk-visas-and-immigration
There are two main changes: firstly, you no longer have to pay a fee when you make your request (so you save £10!) and secondly, there are now three types of requests: basic, specific and detailed.
A basic and a specific request will receive a response within 20 days from the date the Home Office has confirmed your identity. A detailed request will take a month, which is a shorter period than the 40 working days under the previous regime.
A basic request will only disclose:
- an electronic summary of your immigration history
- landing cards
- an electronic summary of entry clearance records
- Workers Registration Scheme (WRS) information if applicable
- entry and exit records for the past 5 years
The specific request is new, and if you make this request you can only ask for copies of 5 specific documents. So, if you know exactly what you need, it could be a good option.
You may think at this point that, for the sake of 10 extra waiting days, it would be better to make a detailed request, which would disclose a copy of your full Home Office file.
Well, it is not exactly like that. The Home Office website specifies that “initially, you will be sent an electronic summary of your immigration history (as with a basic application) as this gives most people what they need. However, this option allows you to request further information from your Home Office file if you still need it”.
This means that in fact it could take you 20 days to get the electronic file and 30 extra days to get your full file. You also need to add the time between the two requests, so realistically you are looking at over 2 months to receive your full file.
It is unclear why the Home Office would only send electronic information in response to a detailed request in the first place, and it may be that such policy will be challenged.
How do you make a subject access request?
You can apply online (but you still need to print your completed application) or in writing at:
Subject Access Request Unit
UK Visas and Immigration
40 Wellesley Road
Croydon CR9 2BY
and you must send evidence of your identity.
Acceptable evidence is a photo ID such as passport or travel document, biometric residence permit or driving licence.
If you do not have any form of ID, you can ask a solicitor, barrister, OISC accredited or a registered charity to certify your photo as a true likeness. Alternatively you can use the Post Office document checking service for this.
You must also send a letter giving the Home Office permission to disclose your records to you or your solicitor and if you apply on behalf of a child under 12, you need to send proof of relationship.
Requesting your file is very important if you have a long immigration history, if you are not clear on what is happening in your case or if you believe a mistake has been made. It is important to be aware that you have the right to see which information is stored about you, and you have the right to complain if your request is delayed or if your file contains errors.
On 15 November 2017 the government has announced that the number of visas available to people who are considered leaders or show promise in the fields of technology, art, science and creative industries will be doubled.
This is a clear sign that, despite the general anti-immigration climate, the UK is open to host exceptional people who can contribute to the national economy.
Many potential applicants are put off by the apparently difficult requirements that need to be met to qualify under this category, but the Tier 1 Exceptional Talent or Exceptional Promise, once understood, could offer entry into the UK for many professionals who excel in their sector.
Many young professionals, who are at the start of their careers but have shown potential in their chosen field, could benefit from a non-expensive visa which could be granted for a maximum of 5 years in one block and lead to settlement.
Whoever wishes to apply under this route, will have to obtain an endorsement from a recognised body and then apply for either entry clearance of leave to remain from the UKVI.
The first part of the application consists in obtaining an endorsement from on of the five endorsing organisations approved by the Home Office. These are Tech City UK, Arts Council England, The British Academy, The Royal Society and The Royal Academy of Engineering. In order to do so, a variety of documents need to be submitted, to show that the relevant criteria are met.
At present there is a high demand for experts or potential leaders in the field of digital technology, and applications can be fast-tracked if the applicant intends to work in the North of the UK such as in Hull, Leeds, Liverpool, Manchester, Newcastle, Sheffield and Sunderland or the surrounding regions.
The gov.uk website states that “there is no need for EU citizens living in the UK to do anything now, including applying for a permanent residence document. There will be no change to the status of EU citizens living in the UK while the UK remains in the EU”. But put another way, this means that after Brexit there will be changes, and therefore there is confusion on what EEA nationals can do to protect their position.
The confusion increased when the same website published a statement that “if you already have a permanent residence document it won’t be valid after the UK leaves the EU”. What does this mean? And is there anything that can be done now?
It is true that EEA nationals at present do not need a Permanent Residence card, but in some circumstances it may be a good idea to obtain it. Let’s see why.
Firstly, the EEA Permanent Residence card is necessary to apply for naturalisation as British citizens.
Secondly, the proposed “settled status” mentioned by the Government is not yet operational, and although it is said that it will be straightforward to apply for it, the requirements to be met are yet unknown.
Thirdly, if someone has a complex history and is not sure that their application would be accepted, it may be worth applying for permanent residence. In fact, in case of a refusal there should be no adverse consequences such as removal from the UK, and there would be sufficient time to understand the problem and strengthen one’s position.
Therefore if someone has long absences from the UK, a criminal record, gaps in their employment or other issues, it may be worth submitting these to the attention of the UKVI when a refusal would not necessarily spell the end of their life in the UK.
Finally, it is important to note that for those who have already obtained an EEA permanent residence card, will benefit from a simplified and cheaper procedure compared to those who have never applied.
With Brexit looming, EEA nationals who have lived in the UK for 5 years or more are considering requesting British citizenship in order to avoid the hassle of having to apply for the new – and yet unknown- settled status that the Home Office intends to introduce as a replacement of the EEA permanent residence.
In order to apply for naturalisation as British, it is necessary to obtain a certificate of Permanent Residence first. This application is sometimes daunting due to the number of documents that must be submitted, and it is possible to get it wrong. Here are the most common errors that may lead to a refusal.
- Original ID document.
The UKVI will not accept copies of passports or national identity card. An original document must be sent, unless the application is submitted online and you take your passports to a participating local authority where it will be copied, certified and submitted to the Home Office with your supporting documents. Local authorities can certify copies of passports but not national ID cards.
- Insert correct payment details
You must ensure that you fully complete the payment page and pay the correct fee of £65 per applicant. If you pay by card and the Home Office is unable to collect the payment, for example because you have insufficient funds or your card has expired, the application will be returned to you.
- Evidence that you have exercised Treaty rights
You must submit sufficient evidence that you have exercised Treaty rights as a worker or self-employed person, jobseeker, student or self-sufficient person for a continuous period of 5 years. You do not necessary have to refer to the 5 years immediately preceding the submission of the form, you can use any period of 5 years, as long as you can also demonstrate that you have not left the UK for 2 years after such period.
- Medical insurance
If you have lived in the UK as a student or self-sufficient person, you have to demonstrate that you had medical insurance for the duration of your studies or for the entire period you were self-sufficient and that you had enough funds.
- Original documents
The UKVI requires original documents when possible. Do not send copies as the Home Office may attach little weight to non-original documents
- Continuity of residence
Remember that if you have absences for 6 months or more in any 12 months period during the relevant 5 years, you might have broken your continuity of residence and you may therefore be ineligible for permanent residence. If you have long absences, you must explain the reason why you left the UK and, in case of serious reasons, the Home Office may decide to disregard them.
- Check the form, sign and date it
Ensure you have completed the correct parts of the form, including the payment page, and that you have signed and dated it. Failure to do so may lead to a refusal, and you would have wasted a lot of time and the £65 fee.