The Asylum Process:
Part 1 – Entry.
G Clayton, Immigration and asylum law (8 th edition) chapter 8 – essential reading.
Entry to the UK and claiming Asylum:
Where the claim for asylum is made –
At airport, screening interview there.
At a later point, but this can impact claim.
Those who come on one kind of visa (student, holiday etc) and change in circumstances
means need to claim asylum.
Claims made at a later point sent to screening interview in Croydon.
Right to seek asylum – UDHR art. 14 and EU charter art.18.
But, difficulties in accessing the state- ‘non-entrée-, eg visa restrictions, carrier sanctions, screening
at airports.
Necessitating, eg lying to authorities to obtain a visa, forging documents = ‘clandestine entry’.
Creates difficulties with for states between – Immigration rules v need to access protection.
Refugee Convention article 31:
1. The contracting states shall not impose penalties, on account of their illegal entry or
presence, on refugees who, coming directly from a territory where their life or freedom was
threatened in the sense of Article 1, enter or are present in their territory without
authorisation, provided they present themselves without delay to the authorities and show
good cause for their illegal entry or presence.
2. The contracting states shall not apply to the movements of such refugees restrictions other
than those which are necessary and such restrictions shall only be applied until their status
in the country is regulated or they obtain admission into another country. The contracting
states shall allow such refugees a reasonable period and all the necessary facilities to obtain
admission into another country.
Prevents penalisation of refugees for using false documentation, other prohibited methods for
entering the states.
R v Naillie (1993) AC 674 HL --- if arriving to the UK and requesting asylum without attempting to
deceive immigration officers, it is not illegal entry if not using false documents and just making an
asylum claim.
R v SSHD (ex parte Saadi) --- applying article5(1)(f) ECHR- detention on arrival permitted to ‘prevent
unauthorised entry’. -detain people to confirm their identity and so on.
Issue – criminalisation of irregular entry to seek asylum.
R v Uxbridge magistrates court ex parte Adimi --- 3 people prosecution for travelling on false
documentation, but all recognised as refugees still. Courts looking at who responsible for making
decision on criminalisation, said up to secretary of state. See development after this case of defences
for using false documentation under article 31.
Under Immigration and Asylum Act article 31 – defence to travel where life or freedom threatened,
reported without delay, show good cause for legal entry.
R v SSHD ex parte Kaziu (2000).
R v Asfaw (2008) UKHL 31 --- strict interpretation of article 31. Traced roots of article 31, shows
purpose of it should be reflected on. Attempting to obtain air services by deception is not an offence
listed in section 31 of the 1999 act. The House of Lords also noted that the list in section 31 was not
, closed and therefore raised the possibility that article 31 could be relied on in relation to other
offences which had not been included in section 31 of the 1999 act.
Screening Interview and safe third country:
Screening interview:
- First interview – either in part of entry or Croydon.
- Basic details – name, DOB, family members etc.
- Importantly – questions about how a person travelled to the UK. (important bearing on
application of Dublin 3 regulation).
Dublin III regulation:
Establishes criteria for which EU MS takes responsibility for an asylum claim (means all EU
states should protect HR’s).
Family unit takes primary, but irregular entry and stay main reason for transfers.
Many cases involve return to 1st country of entry through EURODAC system. (arrangement
finger prints taken by those entering, this is entered into system and they are then
associated with this country).
Longstanding issues over its operation.
Issues with Dublin III:
Assumes all EU MS’s are safe, this is often not the case.
‘responsibility sharing’- yet creates concentration of protected applicants in peripheral
states. (Eg states closer to Mediterranean get more asylum seekers).
After UK’s exit from EU?
If there is a deal = possible continuation of Dublin rules?
If there is no deal/ in the future = possibility of bilateral treaties? (uncertainty).
Dublin III – ‘safe third country’:
Cannot send there if –
1. Face persecution under convention there
2. ‘chain refoulement’ = idea would send someone to 3 rd country, and this country doesn’t
have good asylum system and immediately returns that person to the country they fled
from.
3. Where removal to 3rd country would risk HR’s violations (Asylum and Immigration
(Treatment of Claimants) Act 2004, schedule 3.).
Questions over safety of some Dublin III returns –
MSS v Belgium and Greece (App no 30696/09) --- EU court of HR’s. court said MSS was being
returned to country where risk of chain refoulement or returning to Greece where there had been a
breakdown in asylum system – the system wasn’t working, individuals risks where not being properly
assessed. The detention of asylum seekers was that poor it was in violation of art3 ECHR.
NS v SSHD and ME and Others v Refugee Applicants Commissioner --- CJEU looked at way in which
Dublin regulations where being operated. Obligation to operated Dublin reg’s in a way which is
compatible with HR’s.
EM (Eritrea) (2014) UKSC12 --- UKSC- return of some AS to Italy. A return would possibly result in
people living in unsafe, terrible conditions, and even homeless. Court said this could be a breach of
article 3. Returned to place claim has been rejected/ possible to be rejected is a violation of art.3.
Outcomes of screening interviews:
Part 1 – Entry.
G Clayton, Immigration and asylum law (8 th edition) chapter 8 – essential reading.
Entry to the UK and claiming Asylum:
Where the claim for asylum is made –
At airport, screening interview there.
At a later point, but this can impact claim.
Those who come on one kind of visa (student, holiday etc) and change in circumstances
means need to claim asylum.
Claims made at a later point sent to screening interview in Croydon.
Right to seek asylum – UDHR art. 14 and EU charter art.18.
But, difficulties in accessing the state- ‘non-entrée-, eg visa restrictions, carrier sanctions, screening
at airports.
Necessitating, eg lying to authorities to obtain a visa, forging documents = ‘clandestine entry’.
Creates difficulties with for states between – Immigration rules v need to access protection.
Refugee Convention article 31:
1. The contracting states shall not impose penalties, on account of their illegal entry or
presence, on refugees who, coming directly from a territory where their life or freedom was
threatened in the sense of Article 1, enter or are present in their territory without
authorisation, provided they present themselves without delay to the authorities and show
good cause for their illegal entry or presence.
2. The contracting states shall not apply to the movements of such refugees restrictions other
than those which are necessary and such restrictions shall only be applied until their status
in the country is regulated or they obtain admission into another country. The contracting
states shall allow such refugees a reasonable period and all the necessary facilities to obtain
admission into another country.
Prevents penalisation of refugees for using false documentation, other prohibited methods for
entering the states.
R v Naillie (1993) AC 674 HL --- if arriving to the UK and requesting asylum without attempting to
deceive immigration officers, it is not illegal entry if not using false documents and just making an
asylum claim.
R v SSHD (ex parte Saadi) --- applying article5(1)(f) ECHR- detention on arrival permitted to ‘prevent
unauthorised entry’. -detain people to confirm their identity and so on.
Issue – criminalisation of irregular entry to seek asylum.
R v Uxbridge magistrates court ex parte Adimi --- 3 people prosecution for travelling on false
documentation, but all recognised as refugees still. Courts looking at who responsible for making
decision on criminalisation, said up to secretary of state. See development after this case of defences
for using false documentation under article 31.
Under Immigration and Asylum Act article 31 – defence to travel where life or freedom threatened,
reported without delay, show good cause for legal entry.
R v SSHD ex parte Kaziu (2000).
R v Asfaw (2008) UKHL 31 --- strict interpretation of article 31. Traced roots of article 31, shows
purpose of it should be reflected on. Attempting to obtain air services by deception is not an offence
listed in section 31 of the 1999 act. The House of Lords also noted that the list in section 31 was not
, closed and therefore raised the possibility that article 31 could be relied on in relation to other
offences which had not been included in section 31 of the 1999 act.
Screening Interview and safe third country:
Screening interview:
- First interview – either in part of entry or Croydon.
- Basic details – name, DOB, family members etc.
- Importantly – questions about how a person travelled to the UK. (important bearing on
application of Dublin 3 regulation).
Dublin III regulation:
Establishes criteria for which EU MS takes responsibility for an asylum claim (means all EU
states should protect HR’s).
Family unit takes primary, but irregular entry and stay main reason for transfers.
Many cases involve return to 1st country of entry through EURODAC system. (arrangement
finger prints taken by those entering, this is entered into system and they are then
associated with this country).
Longstanding issues over its operation.
Issues with Dublin III:
Assumes all EU MS’s are safe, this is often not the case.
‘responsibility sharing’- yet creates concentration of protected applicants in peripheral
states. (Eg states closer to Mediterranean get more asylum seekers).
After UK’s exit from EU?
If there is a deal = possible continuation of Dublin rules?
If there is no deal/ in the future = possibility of bilateral treaties? (uncertainty).
Dublin III – ‘safe third country’:
Cannot send there if –
1. Face persecution under convention there
2. ‘chain refoulement’ = idea would send someone to 3 rd country, and this country doesn’t
have good asylum system and immediately returns that person to the country they fled
from.
3. Where removal to 3rd country would risk HR’s violations (Asylum and Immigration
(Treatment of Claimants) Act 2004, schedule 3.).
Questions over safety of some Dublin III returns –
MSS v Belgium and Greece (App no 30696/09) --- EU court of HR’s. court said MSS was being
returned to country where risk of chain refoulement or returning to Greece where there had been a
breakdown in asylum system – the system wasn’t working, individuals risks where not being properly
assessed. The detention of asylum seekers was that poor it was in violation of art3 ECHR.
NS v SSHD and ME and Others v Refugee Applicants Commissioner --- CJEU looked at way in which
Dublin regulations where being operated. Obligation to operated Dublin reg’s in a way which is
compatible with HR’s.
EM (Eritrea) (2014) UKSC12 --- UKSC- return of some AS to Italy. A return would possibly result in
people living in unsafe, terrible conditions, and even homeless. Court said this could be a breach of
article 3. Returned to place claim has been rejected/ possible to be rejected is a violation of art.3.
Outcomes of screening interviews:
