Asylum Process Guidance for HO Caseworker as on 12:02:2012 Part 2 of 3

ABANDONED APPEALSTable of Contents

Introduction Appeal to be treated as Abandoned As a consequence of the appellant leaving the UK By virtue of the appellant being granted leave If the officer is aware that an appeal has been lodged and the Home Office has granted Leave If the officer becomes aware of an appeal being lodged after granting leave. If the officer is not aware of an appeal being lodged. If Notice of Intention to Pursue Appeal not received or received outside of the 28 days deadline If Notice of Intention to Pursue Appeal received Glossary

Uncontrolled if printed

IntroductionThis guidance sets out instructions for officers and team support in asylum and legacy on the processes and procedures to be followed where an appeal against an immigration decision is deemed abandoned by virtue of the Home Office granting a period of leave to enter or remain or the appellant leaving the United Kingdom. For information and guidance on dealing with the various aspects of asylum appeals see the section of The Appeals Process. 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.Back to contents


Appeal to be treated as AbandonedThe following scenarios would deem the appeal to be abandoned As a consequence of the appellant leaving the UK Where an appeal has been lodged and the appellant leaves the United Kingdom prior to the appeal being heard, the appeal is deemed abandoned as stated in s104(4) of the 2002 Act as amended on 30th March 2006 by s9 of the IAN Act 2006. An appeal is also abandoned if the appellant signs a disclaimer and leaves the United Kingdom or fails to attend the hearing and there is evidence that he has left the United Kingdom. Unless the officer has been notified that any of the above has occurred, it is extremely unlikely that the officer will be aware that the appellant has left the UK. The officer generally may become aware if the appellant attempts to re-enter the UK at port. If the officer becomes aware that an appeal is abandoned by the fact that the appellant has left the UK, the officer may notify the Tribunal of this fact at once.

By virtue of the appellant being granted leave If the appeal was submitted and subsequently, the appellant is granted leave to remain (for more than 12 months) by the Home Office, the appeal could potentially be treated as abandoned. Here there may be three possible scenarios: If the officer is aware that an appeal has been lodged and the Home Office has granted Leave If the officer is aware that an appeal had been lodged then the Officer must advise the AIT by letter of the decision to grant limited leave (using letter ref: ASL.3267). The content of the letter must include: the date of decision to grant and the notification date of the grant

Once the AIT receives the UK Border Agency notification letter, The AIT will suspend the appeal and wait to see if the appellant submits a Notice of intention to pursue appeal form. The officer must at the point of granting leave via the Your Asylum Decision information sheet (ACD.2171; ASL.3225 or ASL.3226) advise the appellant that they may request a continuation of their appeal provided: It is done within 28 days of receipt of their decision letter (advising them of their grant of leave) and:

Either: o They are currently in the UK and have not been recognised as a refugee but have been granted leave to enter or remain for a period exceeding 12 months and o They consider that their removal would be in breach of the United Kingdoms obligation under the Refugee Convention. Or: o They are currently in the UK and have been granted leave to remain for a limited period and they want to pursue their appeal on race discrimination grounds. Uncontrolled if printed

The appellant would be able to obtain a Notice of intention to pursue appeal form from the AIT website. The appellant must complete and submit the form directly to the AIT. The officer will be sent a copy of the Notice of Intention to pursue appeal form from the AIT after receipt. On receipt of a copy of the Notice of Intention to pursue appeal form, the officer must: Update CID notes with the date of receipt Update the Case Management Plan

If the officer has not received a copy of the Notice of intention to pursue appeal form before the expiry of the 28 days deadline, then the officer may contact the AIT 48 hours after the 28 day deadline to check whether the notice has been received and whether the appeal will remain live. If the officer becomes aware of an appeal being lodged after granting leave. If the officer has granted leave for more than 12 months, and then receives notification from the AIT that the appellant has lodged an appeal, the officer must notify the AIT of the leave granted. See By virtue of the appellant being granted leave. If the officer is not aware of an appeal being lodged. If the officer serves the decision letter granting leave to enter or remain without being aware of the fact that the appellant has submitted an appeal, then the officer will be unable to advise the AIT of any steps they may need to take. If the officer becomes aware of an appeal lodged after granting leave, then the officer must notify the AIT of the leave granted. See By virtue of the appellant being granted leave.


If Notice of Intention to Pursue Appeal not received or received outside of the 28 days deadlineIf the appellant accepts the grant and does not send the Notice of intention to pursue appeal form within the 28 days deadline or If the Notice of intention to pursue appeal form is not received within 28 days of receipt of the Home Office decision to grant, then in accordance with Rule 18 (1B) of the AIT Rules, the appeal is abandoned. The officer must be sent a copy of the Acknowledgement of intention to pursue appeal outside of 28 days notice from the AIT, advising that the appeal is now classed as being abandoned. The officer must: Put the file in the hold area with a flag for when the leave to remain expires Update CID with the date the appellant was notified of being granted leave to remain Update CID with the date of expiry of leave to remain Update the Case Management Plan


If Notice of Intention to Pursue Appeal receivedIf the Notice of intention to pursue appeal form is received within the 28 days, then the AIT (or High Court/Court of Appeal) will advise the appellant and the officer that the appeal will progress as previously notified. The officer must then continue with the appeals process and the AIT will list the appeal hearing in the usual manner. The officer must update CID notes and the Case Management Plan stating that the Appeal will continue.

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GlossaryTerm ASL. 3267 ASL.3225 ASL.3226 Meaning Letter to AIT advising of leave granted Asylum Decision information sheet giving advise and information in relation to a decision made on an asylum claim Asylum Decision information sheet giving advise and information in relation to a decision made on a humanitarian protection claim Asylum Decision information sheet giving advise and information in relation to an asylum decision made where limited leave has been granted

ACD.2171


Document ControlChange RecordVersion 1.0 2.0 3.0 Authors MO EG RA Date 18/04/07 04/11/08 29/10/09 Change Reference published Update branding only Reference to s55 of BCIA 2009 included (Childrens Duty)

ReviewReviewed By Name Date Position

Issue ControlApproved for Publication by Name Iain Walsh Keith Lambert Hugh Ind Keith Lambert Date Role

02/04/07 02/04/07 12/04/07 22/10/09

Acting Director of AAPD Director of Appeals Director for Asylum (London and SE) Director of GLA


ASYLUM APPEAL HEARING CASE MANAGEMENT REVIEWTable of Contents

Introduction The purpose of the CMR Date and Location of the CMR Preparation for the CMR CMR List Non-Appearance of the Appellant or Representative at the CMR Appeal Determined at CMR Request to Concede Aspects of the Case Directions at Conclusion of the CMR Appeal to Proceed to Substantive Appeal Hearing Actions to be taken after the CMR has Taken Place Request for Appeal to be Adjourned Home Office seeks adjournment Where adjournment is agreed Glossary


IntroductionThis Section sets out guidance for New Asylum Model Case Owners and team support on the processes to be followed when dealing with the first stages of an appeal against the refusal of an asylum claim. Where an asylum claim is refused and the consequent immigration decision attracts a right of appeal, the appellant is required to lodge an appeal with the Immigration and Asylum Tribunal (AIT) within the following guidelines: Suspensive (in-country) right appeal not detained Suspensive (in-country) right appeal detained Non-suspensive right of appeal of 10 working days of service of decision of 5 working days of service of decision 28 working days from the date of departure from the UK

The AIT must notify the respondent as soon as an appeal has been lodged under rule 12 of the Procedure Rules. Under Rule 45 of the Asylum and Immigration Tribunal (Procedure) Rules 2005, the Tribunal can request for a Case Management Review (CMR) hearing to be held. A CMR hearing is held in respect of every asylum appeal (other than an appeal in respect of a detained fast track claim or where a Tribunal determination has been ordered to be reconsidered) where the appellant: Is present in the UK Has a right of appeal while in the UK

When an appeal has been lodged, AIT decides on the date and location of the appeal hearing, and also arranges a case management review (CMR). AIT notifies the appellant and the Appeals Processing Centre (APC), who update CID accordingly.


The purpose of the CMRThe main purpose of the CMR is to confirm the points in issue prior to the substantive hearing. The judge conducting the hearing should be seeking to confirm the issues that will be raised by either side. Both parties are required to serve any documents and witness statements they intend to rely on, or confirm that these will be served. The CMR is regarded as a hearing of the appeal and is held before an Immigration Judge. Both the appellant and respondent (or their representatives) are directed to attend. Wherever practicable, the Case Owner who is responsible for the management of an asylum claim should present the Home Office case at both the CMR and the substantive appeal hearing. 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.


Date and Location of the CMRThe Asylum and Immigration Tribunal (AIT) will arrange for a CMR to be held 10 days after the appeal is lodged, in the same court as the substantive appeal which will take place on day 20 of the appeal process. The workflow team within each asylum team receives a daily report listing all appeals lodged in respect of cases allocated to the New Asylum Model. The Case Owner will therefore be notified within a day of an appeal being lodged at the AIT. APC are responsible for updating CID when an appeal is lodged and Case Owners can also confirm, by checking on CID, that an appeal has been lodged.

Preparation for the CMR Prior to going to the CMR Hearing, the Case Owner should prepare the following in order to take them to the CMR: Prepare a CMR Record Sheet ASL.2945 (available in DocGen) Ensure that the appeal bundles are prepared and despatched to both the AIT and the appellant in good time See Asylum Instruction on Appeal Bundling. Ensure that the appellant/representative have been notified of the CMR taking care that the information has been sent to the correct address. Prepare two copies of any documents that are to be taken to court, which were not included in the appeal bundle e.g. updated country information (one for the judge & the other for the appellant/re.) Prepare a typed copy of the interview record, if the written record is not legible. See Asylum Instruction on Sending illegible interview record to the FSD Typing Bureau. At the CMR, the Case Owner should complete the relevant sections of the CMR Record Sheet ASL.2945. CMR List It is usual for about 10 CMRs to be allocated to a specific court in one day. Asylum cases managed within the New Asylum Model are not listed separately from appeals to be presented by Presenting Officers. Therefore Case Owners must liaise with the appropriate Presenting Officers Unit (POU) to ensure that the Presenting Officer dealing with the other cases on that days CMR list is aware that an Asylum Team Case Owner will be presenting any New Asylum Model cases.

Non-Appearance of the Appellant or Representative at the CMR The hearing notice for the CMR draws the attention of the appellant and the respondent (or their representative) to the requirement to attend the CMR. Should neither the appellant nor their representative attend the CMR, the judge will consider whether the notice of the hearing was properly served. According to Rule 19 of the Procedure Rules 2005, the appellate authorities must proceed with the hearing in the absence of a party or their representative provided notice was given of the date, time and place of the hearing, and the appellant or representative are still absent without satisfactory explanation for the absence. At the CMR, the Case Owner should: Uncontrolled if printed

Draw to the judges attention the fact that the notice of hearing was correctly issued Draw to the judges attention any information which explains the appellants (or representatives) non-attendance

The judge may ask the Clerk to the Court to make enquiries to confirm that this is the case before proceeding. While the Clerk does so, the next case on the CMR list will be dealt with, and the Case Owner will be required to remain in Court until the issue is resolved. The judge may then decide to deal with the CMR in the absence of the appellant or representative, to adjourn the CMR until a later date, or, exceptionally, to determine the appeal.

Appeal Determined at CMR Rule 15(2) (c) and (d) of the Procedure Rules allows the judge to determine the appeal if there is no appearance or reply to directions. Exceptionally, the Immigration Judge may determine the appeal on the evidence already presented where neither the appellant, nor their representative, attends the CMR and where no reply has been made to directions. In these cases, it is important that the Case Owner brings to the attention of the Immigration Judge the fact that determining the appeal at the CMR can lead to considerable difficulties. The Immigration Judge would have to consider the appellants case extremely carefully in order to ensure that a reconsideration order is not requested. For the action to be taken when an appeal has been allowed or dismissed see Asylum Instruction in Appeal Hearings Service of Determinations.

Request to Concede Aspects of the Case Representatives or judges may ask the Case Owner to concede aspects of the case at the CMR. Prior to the CMR, the Case Owner should have identified any areas likely to become an issue and will have obtained approval from a Senior Caseworker to make any concessions. However, new evidence may be submitted or new issues may be raised at the CMR. Case Owners should refuse to concede points, even where the Home Office case appears weak, because the Case Owner will need the opportunity to research the issue before the substantive hearing. The judge does not have the power to require the Case Owner presenting the case to concede an issue. Following the CMR, the Case Owner should consider the request made and consult a Senior Caseworker if it is considered that it would be right to make a concession at the substantive appeal hearing.

Directions at Conclusion of the CMR At the end of the CMR the Tribunal will give the Case Owner any further written directions relating to the conduct of the appeal.


In addition, the Case Owner should makes notes of any issues that have been agreed at the CMR hearing as being relevant to the determination of the appeal and of any concessions made by either appellant or respondent. The court directions should be attached to the file.

Appeal to Proceed to Substantive Appeal Hearing In the majority of cases both parties will be ready to proceed and the Immigration Judge will direct the substantive hearing to take place on the pre-arranged date. Following the CMR, the Case Owner should follow the guidance in Action to be taken after the CMR has Taken Place, see below.


Actions to be taken after the CMR has Taken PlaceOn return to the office following the CMR, the Case Owner should complete the remaining sections of the CMR Record Sheet ASL.2945 and attach it to the file, update the Appeal Maintenance screen on CID, and update the CMP with: Whether the appellant and representative attended Any objective notes of the appellants behaviour Any new submissions presented by the appellants representative Any directions of the Immigration Judge Any other information that the Case Owner considers relevant to the case

Case Owners must ensure that they comply with any directions given to the Home Office at the CMR hearing. The Case Owner must then prepare for the substantive hearing. See Asylum Instruction on Substantive Hearings for further information


Request for Appeal to be AdjournedThe rules relating to the circumstances in which a judge can grant an adjournment are contained in Rule 21 of the Procedure Rules 2005. The hearing of an appeal may not be adjourned unless the judge is satisfied that the appeal cannot otherwise be justly determined. A request for adjournment may be made to the AIT by the appellant or their representative at any time after the hearing date is set. Where the request is made by direct contact with the AIT, the Home Office will not be aware of the request unless and until it has been granted by the AIT. The AIT notifies APC, who in turn inform the relevant POU. It is the responsibility of Case Owners to check CID regularly to ensure that they are aware of any change to the date and location of the appeal hearing. A request may be made by the appellant or their representative at the CMR for the substantive appeal hearing to be adjourned to a later date. Such a request may also be made, as a preliminary issue, at the substantive hearing itself. The appellant or their representative may argue that more time is needed to obtain evidence to support the appeal, such as a medical report or document from abroad. In the majority of cases, the Case Owner must object to this request, arguing that it would simply delay proceedings and add to the overall cost. However, if the Case Owner believes that the appellant has not had sufficient time to gather information or that the evidence that the appellant is seeking to obtain, is particularly relevant to the appeal, then they should not object to adjournment request. The Case Owner should consider the time that has already been available to the appellant to gather evidence and also how central this evidence would be to the grounds of appeal. Where the asylum claim was refused under paragraph 339M as well as paragraph 336, i.e. where non-compliance was part of the reason for refusing the claim, the Case Owner should make strong representations to the judge that the appellant has previously failed to take advantage of opportunities to explain the basis of their claim and had not provided reasonable explanation for their actions. Therefore the Case Owner should argue that there should be no further justification for allowing additional time now. Should an adjournment be requested because of the appellants ill health, the Case Owner should, from their knowledge of the case and the appellant, be in a position to say whether the Home Office would object. And if necessary object to the request.

Home Office seeks adjournment There may be circumstances where the Home Office wishes to seek an adjournment. This may apply for example where a policy decision has been made to seek the adjournment of a particular category of asylum appeal pending resolution of a legal or policy issue. Case Owners should only apply for an adjournment in very exceptional cases, and should seek the approval of a Senior Caseworker.

Where adjournment is agreed Where the judges decides to adjourn the substantive hearing, Rule 21(4) requires that the revised date should be no later than is required by the circumstances and should not be more than 28 days after the original hearing date unless there are exceptional circumstances. Uncontrolled if printed

The Case Owner should: Update the case management plan to show the date and location of the rescheduled hearing and the reasons for the adjournment Attach a copy of the Directions to the file Update CID


GlossaryTerm ASL.2945 Meaning CMR Record sheet

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


Document ControlChange RecordVersion 1.0 2.0 Authors SS RA Date 17/02/07 29/10/09 Change Reference New web style implemented Included reference to s55 BCIA 2009 (Childrens duty)


Issue ControlApproved for Publication by Name Keith Lambert Date Role

22/10/09

Director of GLA


SUBSTANTIVE APPEAL HEARINGSTable of Contents

Introduction Preparation for the Appeal Hearing Appeal to be heard before a Senior Immigration Judge or an Immigration Panel Request for Appeal to be Adjourned Home Office seeks adjournment Where adjournment is agreed Non-Appearance of the Appellant or Representative at the Appeal Hearing Record of Proceedings Preparing the SAT (Specialist Appeals Team) Minute Sheet Awaiting the Determination of the AIT Glossary


IntroductionThis section sets out guidance for Regional Asylum Team Case Owners and team support on the processes and procedures to be followed when dealing with the substantive appeal against the refusal of an asylum claim.


Preparation for the Appeal HearingIn preparation for the substantive hearing, the Case Owner should: Review the case file before the appeal hearing Review the Case management Plan Review CMR Record Sheet ASL.2945 and ensure that any actions arising from the CMR hearing have been completed Ensure that all relevant documents have been despatched to the AIT, the appellant and representatives Case Owners will develop their own method of written preparation to help them to present the case effectively at the hearing. This will include: Identifying the areas of strength and weakness in the Home Office case Any preliminary issues that will need to be addressed before the hearing can proceed Identifying areas that need to be confirmed/explored by means of cross-examining the appellant and any other witnesses, and decide appropriate lines of questioning A summary of the submissions they intend to make to the court Case Owners will need to bear in mind that their preparation may need to be revised in the light of developments at the CMR hearing. The Case Owner should liaise with the Presenting Officer who has been allocated the court list on which the Asylum Team appeal is listed to ensure that they are aware that the appeal will be presented by an Asylum Team Case Owner. The Appeal Maintenance screen in CID should be checked regularly by a Case Owner, to ensure that any changes of location or hearing date are picked up quickly so that arrangements can be made to reallocate the appeal to another Case Owner if necessary. For further details on how to prepare for an appeal hearing, please see the Asylum Instruction Appeal Process After Initial Decision Checklist 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.



Appeal to be heard before a Senior Immigration Judge or an Immigration PanelAIT may decide (at any time before the substantive hearing) that the issues arising in a particular case are complex and therefore direct that the case should be heard before an Immigration Panel or before a Senior Immigration Judge rather than a single Judge. In these circumstances, the Case Owner should consult the team leader immediately to decide how to deal with the appeal if they are appearing before a panel for the first time. It may be appropriate for arrangements to be made for the file to be transferred to a senior presenting officer at the relevant POU to present the case before the appeal. If the case is transferred to a senior presenting officer to present before a panel, the Case Owner should liaise with the POU and ensure that the file is returned to the Asylum Team to continue consideration of the case once the appeal has been heard, and the Case Owner should ensure that contact with the POU is maintained in order to monitor the progress of the case.


Request for Appeal to be AdjournedThe rules relating to the circumstances in which a Judge can grant an adjournment are contained in Rule 21 of the Procedure Rules 2005. The hearing of an appeal may not be adjourned unless the Judge is satisfied that the appeal cannot otherwise be justly determined. A request for adjournment may be made to the AIT by the appellant or their representative at any time after the hearing date is set. Where the request is made by direct contact with the AIT, the Home Office will not be aware of the request unless and until it has been granted by the AIT. The AIT will notify APC, who in turn informs the relevant POU. It is the responsibility of Case Owners to check CID regularly to ensure that they are aware of any change to the date and location of the appeal hearing. A request may be made by the appellant or their representative at the CMR hearing; however such a request may also be raised as a preliminary issue, at the substantive hearing itself. The appellant or their representative may argue that more time is needed to obtain evidence to support the appeal, such as a medical report or document from abroad. The Case Owner should consider the time that has already been available to the appellant to gather evidence and also how central this evidence would be to the grounds of appeal. Where the asylum claim was refused under paragraph 339M as well as paragraph 336, i.e. where non-compliance was part of the reason for refusing the claim, strong representations should be made to the Judge that the appellant has previously failed to take advantage of opportunities to explain the basis of their claim and had not provided reasonable explanation for their actions. There should therefore be no further justification for allowing additional time now. Should an adjournment be requested because of the appellants ill health, the Case Owner presenting the appeal should, from their knowledge of the case and the appellant, be in a position to say whether the Home Office would object.

Home Office seeks adjournment There may be circumstances where the Home Office may wish to seek an adjournment. This may apply for example where a policy decision has been made to seek the adjournment of a particular category of asylum appeal pending resolution of a legal or policy issue. Case Owners should only apply for an adjournment in very exceptional cases, and with the approval of a Senior Caseworker.

Where adjournment is agreed Where the Judge decides to adjourn the substantive hearing, Rule 21(4) requires that the revised date should be no later than is required by the circumstances and should not be more than 28 days after the original hearing date unless there are exceptional circumstances to extend beyond 28 days. The Case Owner should: Update the case management plan to show the date and location of the rescheduled appeal and the reasons for the adjournment Attach a copy of the Directions to the file Update CID



Non-Appearance of the Appellant or Representative at the Appeal HearingThe hearing notice for the substantive hearing draws the attention of the appellant and the respondent (or their representative) to the requirement to attend the hearing. Should neither the appellant nor their representative attend the hearing, the Judge will consider whether the notice of the hearing was properly served. According to Rule 19 of the Procedure Rules 2005, the appellate authorities must proceed with the hearing in the absence of a party provided notice was given of the date, time and place of the hearing, and the appellant or representative are still absent without satisfactory explanation for the absence. The Case Owner should Strongly resist any suggestion that the appeal should be adjourned due to the non appearance of the appellant or their representative Draw to the judges attention the fact that the notice of hearing was correctly issued Draw to the judges attention any information which explains the appellants (or representatives) non-attendance e.g. any instances of non-compliance with requirements such as reporting events and specifically non-compliance which led to the claim being refused partly on the basis of paragraph 339M of the Immigration Rules.

The Judge may ask the Clerk to the Court to make enquiries with respect to the non-appearance of the appellant or the representative before proceeding. While the Clerk does so, the next case on the case list may be dealt with, and the Case Owner will be required to remain in Court until the issue is resolved. The Judge may then decide to deal with the hearing in the absence of the appellant or representative, to adjourn the hearing until a later date, or, exceptionally, to determine the appeal. Where the appeal hearing proceeds in the absence of the appellant, the Case Owner will clearly be unable to cross examine them. The Case Owner should proceed and make their submissions. The appellants representative if present and chooses may also make submissions. The appeal will then be decided on the papers already before the AIT and the submissions made.


Record of ProceedingsIt is important that the Case Owner presenting the case makes a written record of the proceedings. The following details should be recorded: Name of Judge Name of appellants representative Any change to the appellants address Names of witnesses and their relationship to the appellant Any documents submitted by either party Any preliminary issues raised and how they were dealt with

While it is not necessary to make a verbatim record of the proceedings, all questions asked by the Judge, by the representative and by the Home Office, and of the responses given should be noted. A summary of submissions made should also be included. The record of proceedings should be attached to the Home Office file.


Preparing the SAT (Specialist Appeals Team) Minute SheetOn return to the office after a substantive appeal hearing, the Case Owner should complete a minute to of the Specialist Appeals Team (SAT), using the template ICD.2742. The minute should record: name of the judge name of the representative names of all witnesses which witnesses gave oral evidence and whether or not they were cross examined the main points made in submissions record of all material submitted by both parties on the day (such as case law) anything else the Case Owner considers relevant to considering whether to challenge an allowed determination an indication of what the Case Owner considers would be a fair and appropriate outcome of the appeal

The minute should be printed and attached to the file. By doing this, SAT staff will be able to access the minute through the Printed Documents facility in DocGen immediately they are notified that an appeal has been allowed, and they can consider the determination together with the ICD.2742 minute.


Awaiting the Determination of the AITImmigration Judges have 10 working days to decide an appeal and forward their determination to the AIT, who in turn notify the Appeals Determination Management Unit (ADMU) by email or fax. From 27th April 2009, the Appeals Determination Management Unit (ADMU) became responsible for the service of the following asylum notices and determinations on behalf of the regional asylum teams: AIT 75 Immigration Judge hearing determination (first hearing) AIT 76 reconsideration hearing determination AIT 78 notice that the AIT has ordered reconsideration AIT 80 notice that the AIT has not ordered reconsideration High Court orders

ADMU will aim to serve all the above notices on representatives and appellants within 48 hours of receipt. ADMU are also responsible for updating CID for all asylum cases where an application for reconsideration has been made by the appellant (or representative) to the Asylum and Immigration Tribunal (AIT) or the High Court Case owners will still be able to choose to serve in person but must update the Special Conditions screen in CID and inform ADMU by email if they intend to do so (ADMU Determinations (Indigo) inbox)


GlossaryTerm CMR sheet ASL.2945 ICD.2742 Meaning Case Management Review sheet this is completed by the Case Owner at the CMR hearing Case Management Review sheet Specialist Appeals Team minute sheet to be completed by the Case Owner after a substantive appeal hearing


Document ControlChange RecordVersion 1.0 2.0 3.0 Authors SS JW RA Date 01/02/07 10/10/07 29/10/09 Change Reference Reviewed & style changed to suit web look Updated to reflect the new onwards rights process. ORAT replaced by SAT Included reference to s55 BCIA 2009 (Childrens duty)


APPEALS BUNDLINGTable of Contents

Introduction Checking whether an Appeal has been Lodged Preparing the Appeal Bundle NAM Appeal Bundle Process Minute Sheet Glossary


IntroductionThe papers that are submitted to the Asylum and Immigration Tribunal (AIT) on behalf of the Home Office, and which form the basis of the Home Office case for defending an appeal against the refusal of an asylum and/or human rights claim are known as the Respondents Bundle. This section outlines the process that must be followed in order that the bundle is properly prepared, submitted and received by the AIT by day six (where day one is the day the appeal was lodged). This is based on the jointly agreed Service Level Agreement between the Agency and the AIT. Note that this is NOT the day 8 referred to in the relevant Procedure Rules. When a decision is made to refuse asylum and the consequent immigration decision attracts a right of appeal, the Case Owner making the decision should prepare a PF1 appeals proforma and indicate which documents should be annexed to the PF1 (see Asylum Instruction Preparing the PF1 Appeals Proforma and Annexing Documents ). Case Owners (or admin support staff on their behalf and this is understood within the remainder of this process) who are handling asylum claims within an Asylum Team should follow the process outlined below. Where the right of appeal is non-suspensive (i.e. an appeal can be lodged only from outside the UK), officers should follow the process for Removals (see Asylum Instruction Removals) In all other cases, the Case Owner should note, on the Decision notice the final date by which an appeal must be lodged. Where reporting is on a weekly basis, a reporting event should be set to coincide with the appeal by date. 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.


Checking whether an Appeal has been LodgedThe Asylum and Immigration Tribunal (AIT) electronically notify the Appeals Processing Centre (APC) when an appeal has been lodged and APC record this in the Appeals Maintenance screen on CID. Case Owners must therefore monitor CID after service of decision to check whether an appeal has been lodged (or use the Nam Admin report as a final check). APC will identify the appeals that need to be sent to Asylum teams by reference to the notice of appeal document which will have been previously endorsed in the top right hand corner of the front sheet to identify which Asylum team is dealing (it is important that this AIT-1 form is endorsed with the Asylum team dealing so that this can be easily determined). APC will send the hard copy of the appeal to the relevant Asylum team. If the hard copy has not been received within 48 hours of its being received in APC, the Case Owner should contact APC to request that it is forwarded immediately. To check on CID, the Case Owner should check the 'Appeal Rec'd in APC' field on the 'Appeal Maintenance' screen on CID to see whether the hard copy of the appeal has been received in APC.


Preparing the Appeal BundleWhen it has been confirmed that an appeal has been lodged, the Case Owner should prepare the full bundle. A PF1 appeals proforma will have been prepared at the time the decision to refuse the asylum claim was made. Once the appeal is lodged, the remaining sections of the PF1 appeals proforma should be completed to record the date the appeal was received and any documents submitted in support of the appeal. The officer should add, at the end of the PF1, the date on which the PF1 is dispatched. The Case Owner should ensure that all details are correct on the following: PF1 proforma Reasons for Refusal Letter Decision Notices

Any errors should be rectified prior to preparing the full appeal bundle. Following the data quality check, the Case Owner should ensure that the full appeal bundle is prepared and dispatched. This process should begin as soon as the receipt of an appeal has been noted even if the hard copy of the appeal has not yet been received by the Asylum team. The Case Owner should produce the documents listed on the checklist The full bundle consists of the completed appeal notice and any documents submitted in support of the appeal. A copy of the most recent Country of Origin Information Service (COIS) report or US State Department Report (if COIS have not published a report for the country concerned) is attached to the full bundle behind the appeal documents from AIT. Do not omit this information (possibly based on historic practices where there was much delay between an appeal and the court hearing). Once the hard copy of the appeal has been received by the Asylum team, it should be copied as stated on the minute sheet. Three bundles of the documents should be collated: One for AIT One for the appellant or their representative One to remain on file

Once collated, a final quality check should take place prior to dispatch. A check should be made to ensure that all letters are signed and the original annexes are left on file. It has been agreed with the AIT that the UK Border Agency appeals bundles must reach AIT by 2.00 pm on Day 6 of the appeal timescale. Day 6 is the 6th working day after the appeal was lodged. Bundles should therefore be dispatched by Recorded Delivery, or where possible by IDS, as soon as possible and before Day 6, using the following Template covering letters available on Doc Gen: ICD.2731 (for dispatch to AIT) and ICD.2732 (to representative or appellant if they are not represented)


The Case Owner should telephone AIT (0845 600 0877), quoting the AIT file reference, in order to ascertain the current whereabouts of the AIT file. It may be necessary to amend the AIT address on the template letter ICD.2731 to ensure that the bundle is addressed to that location. This should ensure that bundles have reached the Immigration Judge in time for the hearing. CID must be updated to record the dispatch of the appeal bundle and the Recorded Delivery reference numbers.


NAM Appeal Bundle Process Minute Sheet1. Prepare two copies of ICD.2731 (covering letter for AIT bundle) file, AIT 2. Prepare two copies of ICD.2732 (covering letter for Reps bundle) file, Rep Ensure you have 3 copies of the following (file, AIT, Rep) in following order. 1. Produce PF1 for Main App. ACD.1989 (list annexes) 2. Photocopy all marked Annexes on file 3. RFRL 4. Decision Notice for Main App (e.g. ACD1050, 151B etc) 5. Statement of Additional Grounds (if any) 6. Grant Letter (ACD2155/2158) regarding HP/DL (if any) 7. AIT Appeal Form 8. Dependants PF1 ACD.1991 (if applicable) 9. Dependants Decision Notice ACD.1082 (if applicable) 10. Country InformationAlso ensure that bundles are secured with Treasury Tags (top left corner), and do not staple documents together Send bundles to AIT, and applicants Rep by recorded delivery, and note reference numbers on ACID. AIT Asylum Immigration Tribunal - Address: REC DEL STICKER ( AIT) REC DEL STICKER ( APPS REP) Asylum Immigration Tribunal Arnhem House 31 Waterloo Way Leicester LE1 6LR REPS NAME AND ADDRESS: Rec Delivery Sticker (Apps Rep)

Print Name: Appeal Bundles sent on: Date .. Signature: ... (attach minute sheet to left hand side of file) Bundles checked by Case Owner: Case Owner Signature:...............

Uncontrolled if printed ntrolled

GlossaryTerm ICD.2731 ICD.2732 ASL.2928 Meaning ST AIT Asylum Letter ST Representatives Letter Appeal Bundle Preparation & Dispatch checklist


Document ControlChange RecordVersion 0..5 0.6 1.0 2.0 3.0 3.1 Authors SS DP DP JW BN ZKZ Date /02/07 22/3/07 15/03/07 07/12/07 21/11/2008 30/09/09 Change Reference

No mini bundle work required. Addition of Checklist. Update branding only Updated to include new Instruction on Children.


Assisted Voluntary ReturnsTable of Contents

1 Introduction 1.1 Application of this instruction in respect of children and those with children 2 What is the Assisted Voluntary Returns Programme? 3 Handling a Request for Assisted Voluntary Return 3.0.1 Checking for an outstanding application for AVR 4 Applicants who apply for AVR during the Asylum Process 4.0.1 Addressing the AVR application at decision/appeal stage 5 Action to be Taken Following the Resolution of an AVR Application 5.0.1 If AVR is refused 5.0.2 If AVR is withdrawn 5.0.3 If AVR is granted but the applicant changes his mind 5.0.4 If AVR is granted but lapses 5.0.5 If AVR results in the applicant leaving the UK 6 Contacts


1 IntroductionThis section sets out guidance for asylum officers on the actions and considerations to take when an asylum applicant, failed asylum seeker or person applying for further leave applies for Assisted Voluntary Return (AVR). It explains what AVR is and how to identify whether an application has been made. It also provides guidance on how to handle requests made during the asylum or active review process and how to proceed with an asylum/active review decision once the AVR application has been resolved.Back to contents

1.1 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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2 What is the Assisted Voluntary Returns Programme?The AVR programme offers applicants the opportunity either to return to their country of origin or to a third country to which they are admissible (the Country of Return). The main programme is the Voluntary Assisted Return and Reintegration Programme (VARRP) which is open to all non-EEA nationals. There are other programmes which deal with specific situations. All programmes are co-ordinated on behalf of the Home Office by the International Organization for Migration (IOM). The IOM is an independent international organisation working with refugees, migrants, displaced persons, governments, non-governmental organisations (NGOs) and other international organisations. Applications are received and screened by the IOM, with the final decision about suitability of the applicant for VARRP resting with the UK Border Agency. The eligibility criteria for VARRP are detailed on the AVR microsite, which also gives further detail on the programme. For further details on the AVR policy, programmes and provisions, see http://www.ukba.homeoffice.gov.uk/aboutus/workingwithus/workingwithasylum/assistedvolu ntaryreturn/varrp/ AVR policy questions may be referred to the AVR Policy Team via a senior caseworker.

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3 Handling a Request for Assisted Voluntary ReturnDuring the course of an asylum or active review application, the applicant may show interest in or request help to return to their country of nationality. Applications must in the first instance be made by the applicant directly to the IOM. Asylum case owners, case workers and operational support staff will not play a role in processing the AVR application, however UK Border Agency officers must provide assistance to the applicant. See also: 1.1 Application of this instruction in respect of children and those with children

Actions required: Officers must provide the applicant with the IOM leaflet Voluntary Return. Leaflets can also be ordered from the AVR operations team or downloaded from the IOM website in several different languages. Asylum officers must also explain to applicants the impact an AVR application may have on their asylum claim. See Applicants who apply for AVR during the asylum process. Asylum officers must assist applicants by giving information about how to find the nearest IOM office - A list of locations can be found on the IOM website. Alternatively asylum officers can direct the applicant to the IOM website. This will provide applicants with advice on returns, application forms and FAQs in a number of different languages. Asylum officers are advised to not contact the IOM directly themselves, and instead direct any queries they might have to the AVR Team.

3.0.1 Checking for an outstanding application for AVR If required, an asylum officer may check on the status of an AVR application on IS-CID, where all applications for AVR are entered by the AVR Team.Back to contents


4 Applicants who apply for AVR during the Asylum ProcessApplications for AVR may be made at any stage in the asylum process, though most applications will be made by failed asylum seekers whose appeal rights are exhausted. 4.0.1 Addressing the AVR application at decision/appeal stage As previously mentioned, asylum case owners, case workers and operational support staff will not play an active role in processing the AVR application - that remains for the IOM to progress, in concert with the AVR Unit. Case owners and case workers must however be aware of their responsibilities for case management and the asylum claim for cases where an AVR application is received during the asylum application/appeal process. Actions required: Officers MUST NOT suspend consideration of the asylum claim while an AVR application is being processed. The asylum claim must be processed alongside the AVR application. Officers MUST NOT ask an applicant/appellant to withdraw an application for AVR, even if the application is made while the application is still live; Officers must explore at interview/cross examination/the next reasonable opportunity, why the applicant has applied for AVR, pointing at the apparent contradiction between seeking assistance to return to their country of nationality or a third country, and the claim that they will fear persecution if returned to that country; There may be factors where applying for AVR during the course of an asylum application does not suggest an absence of fear of return, or where mitigating circumstances exist. Officers must explore and ascertain whether the AVR application is a result of: a. Coercion by a relative or other person - The applicant may be being coerced or persuaded by a member of their family or other influential person. Reasons for this might include forced marriage, looking after family or repaying a debt. The risk of re-trafficking should also be considered, where it exists. Children and, in certain cultures, women may be particularly susceptible to such coercion. b. Mental confusion - It is legitimate for the person to be unsure of what they want to do and/or be confused. Interviewing officers must be patient, alert and sensitive to issues such as old age and mental health problems; Any information provided can be taken into account when making a decision on the asylum claim/active review application/giving submissions in an appeal hearing, however any such decision/submissions must follow a full consideration of all the relevant facts of the case, including the reasons for the AVR application; Officers should clearly evidence the AVR application. A CID record may be insufficient evidence. Officers should instead obtain a signed copy of the applicants AVR application by contacting the AVR Team, who will fax a copy of the application the same day, if available; Case owners/presenting officers must not ask for an appeal to be adjourned on the basis that an AVR application has been made or approved. Similarly, case owners/presenting officers must oppose requests to adjourn an appeal by an appellant if the reason for the request is that an AVR application is outstanding, or that the application was approved but the appellant has not yet departed. Case owners/presenting officers must press for the appeal to be heard where applicable.

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5 Action to be Taken Following the Resolution of an AVR Application The AVR Team will update the IS-CID record once a decision has been made on the AVR application, which will usually be less than five working days but can take up to ten working days from the date of application. 5.0.1 If AVR is refused If the application for AVR is refused, consideration of the asylum claim/application for active review must proceed as normal. 5.0.2 If AVR is withdrawn If an AVR application is withdrawn before it has been considered or approved, the asylum officer must explore, when making a decision, why the application for AVR was initially made and the reasons why it was withdrawn. 5.0.3 If AVR is granted but the applicant changes his mind Even if an application for AVR is granted, the applicant can change their mind at anytime until the point of departure. 5.0.4 If AVR is granted but lapses AVR may be regarded as lapsed in certain circumstances. If the application is accepted but lapses, the AVR Team will note IS-CID to show the application as withdrawn. If the applicant still wishes to have help in returning to their country of origin, or to a third country, they will be required to make a fresh application for AVR. 5.0.5 If AVR results in the applicant leaving the UK Asylum claims, applications for further leave and appeals will be treated as withdrawn upon the embarkation of the applicant to a destination outside the United Kingdom. See the AI on Travel Abroad.Back to contents


6 ContactsUnit/partner IOM Contact details Tel: 0800 783 2332 (Freephone) www: www.iomlondon.org

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Document ControlChange RecordVersion 1.0 2.0 3.0 4.0 5.0 6.0 Authors DH MO MK JC GL GL Date 30/01/07 22/08/07 17/03/08 06/11/08 01/10/09 23/10/09 Change Reference New web style implemented Final Amendments Minor revisions to layout and presentation Update branding only Update Childrens Duty Further Update To Childrens Duty

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ASYLUM APPEAL HEARING ISSUES RAISED AT THE HEARING IN RELATION TO TAPE RECORDED INTERVIEWSTable of Contents Introduction The interviews that took place without being tape recorded Request to re-interview the appellant using a tape recorder Alleged discrepancies between the tape recorded interview and the written record of the interview Glossary


IntroductionThis Section sets out guidance for New Asylum Model Case Owners on how to deal with any issues that may arise at appeal in relation to tape recordings of the substantive interview. The guidance follows the Court of Appeals judgement in the case of Dirshe, R v Secretary of State for the Home Department (2005) which states that because of the withdrawal of Legal Aid funding for representatives attending interview, our then policy of refusing to allow asylum applicants to tape record their interview was unfair, unreasonable and therefore unlawful. See Asylum Instruction on Conducting the Asylum Interview for detailed guidance on tape recording interviews of asylum applicants


The interviews that took place without being tape recordedRepresentatives may argue that as a consequence of the Dirshe judgement, any notes from an interview that was not tape recorded are unreliable, because the interview was unfair. The Case Owner must counteract this claim by pointing out that although The Court of Appeals finding states that it was unfair to refuse an appellant the opportunity to tape record their interview if they so wish, The Court of Appeals finding does not state that all interviews must be tape recorded

The Case Owner must pose the question to the Court Did the appellant ask to have their interview tape recorded? If they did not then the Case Owner must argue that the Dirshe principle does not apply, since the Home Office will not have refused to allow tape recording of the interview and therefore will not have treated the appellant unfairly. The Case Owner should note that the Dirshe judgement is based on the withdrawal of Legal Aid funding for representatives to be present at interviews. If a representative is present at the interview, the Court of Appeal found that a representative provides a real, practical safeguard against faulty interpreting or inadequate record keeping, and sufficiently protected the appellants interests to ensure the required standard of fairness. Therefore in these cases, where a representative is arguing that the interview was unfair, due to it not being tape recorded, the Case Owner must argue that: In any case where a representative was present at the interview, the lack of tape recording does not mean unfair treatment. Only in cases where no representative was present and the Home Office was unable to provide a request for tape recording interviews, then the Case Owner may accept that the Home Office treated the appellant unfairly. However, the Case Owner must point out that this does not mean that the interview record is unreliable. If the representative disputes this, then the Case Owner must ask the AIT to weigh up this point along with other evidence.


Interviewing a childCase owners should be aware that 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. For further guidance on interviewing children, presenting officers should refer to the Asylum Instruction: Processing Asylum Claims From Children.


Request to re-interview the appellant using a tape recorderIf the representative requests a re-interview, with a tape recorder, the Case Owner must resist such a claim strongly, stating that such a request would not relate to the conduct of the appeal and therefore would fall outside of the AITs powers.


Alleged discrepancies between the tape recorded interview and the written record of the interviewThe representative may state that there are differences between the tape recorded interview and the written records and consequently ask for the taped interview to be transcribed or be played in court. The Case Owner must be aware that this action would discredit the interview record and therefore must point out to the Court that the Dirshe judgement made it clear that the tape should only be used (or transcribed) strictly for the purposes of determining the appeal. The Case Owner must resist this claim: Stating that there needs to be a specific, identified dispute over the accuracy of the interview record or interpretation, before it is appropriate to refer to the tape or a transcription Stating that the dispute must relate to an issue that is crucial to the determination of the appeal i.e. it must be strictly necessary to refer to the tape Asking the representative to state exactly where in the interview they believe there is an error and how this alleged error is crucial to the determination of the appeal And strongly resist any application to refer to the tape in cases where no specific dispute has been identified. The Case Owner must bear in mind that the Dirshe judgement does not mean a fishing trip by the appellant If a specific dispute has been identified, the Court should be urged (in line with paragraph 30 of the Dirshe judgement) to restrict any order for transcription to the issue in dispute

The Case Owner should be aware that at present, UK Border Agency does not have the resources for transcribing significant numbers of tapes quickly, as they only have a few copy typists available. POUs do have some audio typing facilities, but transcription is a specialist job, and transcribing anything other than a very small part of a tape would be very time consuming. In order to maintain independence it is not advisable to use UK Border Agency interpreters. Therefore, when such requests are made we should send the work to an independent translation/transcription company, with whom the UK Border Agency has a contract.



Alleged discrepancies between the tape recorded interview and the written record of the interview where a child was interviewedWhere a child has been interviewed, case owners must ensure: The interview was conducted by a specifically trained Case Owner The child was accompanied by a responsible adult, and/or representative, and/or social services were present when the interview was conducted Child sensitive and child appropriate techniques where employed Further guidance on interviewing children can be found in the Asylum Policy Instruction on Processing Asylum Applications from Children. If the above has been applied but the representative raises a dispute between the tape recorded interview and the written record, Case Owners should apply sensitivity when considering the reasons for disputing the record of interview.


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22/10/09

Director of GLA


Asylum Appeal Hearings OverviewTable of Contents

Introduction Appeal Hearing Types, Structure and Timescales Timescales for an in-country (suspensive) right of appeal Timescales for an out of country (non-suspensive) right of appeal The Role and Responsibility of the AIT The Role of Judges and Panels within the AIT Panel Hearings Grade of PO to present before a panel Glossary


IntroductionThis section sets out an overview for Case Owners on the various asylum appeals processes that may take place as a consequence of the asylum claim being refused. 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.


Appeal Hearing Types, Structure and TimescalesThe three main types of appeal hearings are: Case management Review (CMR) Hearing Substantive Appeal Hearing Reconsideration Hearing

A case can also be the subject of an application for a Judicial Review which is not a statutory appeal right. Where the asylum claim has been refused and the consequent immigration decision attracts a right of appeal, the appellant may lodge an appeal with the Asylum Immigration Tribunal (AIT). Where the AIT accepts the appeal, a CMR hearing will take place. For more details on CMR hearing see Asylum Instruction on Case Management Reviews. Once the CMR hearing has taken place, the majority of cases will proceed to the substantive hearing. For more details on CMR hearing see Asylum Instruction on Substantive Appeal Hearings The outcome of the substantive hearing will determine whether a reconsideration hearing takes place. A reconsideration hearing may be requested by the appellant where appeal has been dismissed. Equally, the Home Office may request a reconsideration hearing, where the appeal has been allowed. For more details on reconsideration hearings see Asylum Instruction on Onward Rights of Appeal An application for a Judicial Review (JR) is normally made by the appellant once all avenues of appeal have been exhausted. However, Case Owners should be aware that an appellant may apply for a judicial review at any time where they wish to challenge any decision made by a public authority.

Timescales for an in-country (suspensive) right of appeal Day 0 Decision served to appellant by Case Owner Day 1 9 Day 10 Day 10 -11 Day 12 -14 Day 11 -18 Day 20 Day 30 Day 40 Appellant gains legal advice and appeal is prepared Last day on which the appeal may be lodged to the AIT Case Owner notified of receipt of appeal by the AIT Case Owner to review case before CMR hearing Team support prepares appeal bundle and send to AIT and applicant/rep. CMR hearing Oral substantive hearing Determination promulgated


Timescales for an out of country (non-suspensive) right of appeal Up to Day 10 Decision served to appellant by Case Owner Day 0 Day 0 -27 Day 28 Day 28 29 Appellant is removed from the UK Appellant gains legal advice and appeal is prepared Last day on which the appeal may be lodged to the AIT Appeal registered and listed for CMR and substantive hearing and initial directions issued by AIT to all parties Case Owner notified of appeal lodged Case Owner to review and prepare case before CMR Team support to prepare appeal bundle and send at AIT and applicant/rep.

Day 28 -29 Day 40 47 Day 41 46


The Role and Responsibility of the AITThe Asylum and Immigration Tribunal was created by the Asylum and Immigration (Treatment of Claimants) Act 2004 and started operation on the 4th April 2005. The AIT is an independent Appeals Tribunal (part of the Department of Constitutional Affairs) that hears and determines appeals against decisions made by the Home Office in matters of asylum, immigration and nationality. The AIT replaces the Immigration Appellate Authority which consisted of two tiers; adjudicators and the Immigration Appeal Tribunal. The AIT therefore considers all immigration appeals and consists of a single tier. For this reason, it is sometimes known as the Unified Appeal System (UAS) or just single tier. Appeals against an immigration decision must be served directly to the AIT (except in out of country immigration appeals where it is possible for appellants to serve the appeal in the Entry Clearance Office Post as well as the AIT or if an appellant is detained in which he may serve his notice of appeal on the person who has custody of him (under procedural Rule 6(3)b). It is the responsibility of the AIT to notify all parties of an appeal as to when and where the appeal will take place as well as determining the appeal and where it thinks appropriate to issue directions to give effect to the determination. Appeals must be lodged directly to the AIT at the following address: Asylum and Immigration Tribunal PO Box 7866 Loghborough LE1 3XZ

The Role of Judges and Panels within the AIT The President of the AIT is always a High Court Judge, who is responsible for the overall running and administration of the AIT. There are also two Deputy Presidents. The President and the Deputy Presidents generally sit on the more complicated cases and they hold the authority to report any decisions they make on any case (even if they did not sit on that case). A reported case may go into the public domain and becomes a precedent for future cases. It is therefore important to ensure that a SCW should present any cases in which the President or either of the Deputy Presidents is sitting. Apart from the President and Deputy Presidents, there are three different types of judges: Senior Immigration Judge The Senior Immigration Judges (SIJs) may sit on a Tribunal Panel or sit alone on a hearing. When a SIJ sits on a hearing as part of a Tribunal Panel, then they have the authority to report that specific case. A SIJ does not have the authority to report a case if sitting alone and a Tribunal Panel may only report a case if a SIJ is a member of the panel. A SIJ also considers applications for reconsideration of Tribunal decisions and will order reconsideration if they think it arguable that the IJ or panel that made the initial decision made a material error of law. Designated Immigration Judges (DIJs) are not SIJs but act as mentors for the Immigration Judges at their hearing centre. The local DIJ will also sit on a hearing as an IJ, either alone or as Uncontrolled if printed

part of a panel with other IJs. However, these panels will not be able to report cases unless a SIJ is sitting on them. Immigration Judge (IJs) normally sit alone and come to a decision after hearing all the evidence at an oral hearing. While IJs can and often do sit on panels, only a panel, at least one of whose members is a SIJ can report a case.

Panel Hearings Although most appeals are heard by a single judge, the AIT also has powers to sit as a panel. A panel must consist of at least one legally qualified member (an immigration judge or higher) and mixture of legal and lay members or of legal members of various levels of seniority. Where a SIJ (or the president or a Deputy President) is a member of a panel (legal panel) then that panel has the power to report a case. These are often called legal panels, the term is misleading, as all panels must only contain at least one legally qualified member.. Where a case is being reconsidered (to consider whether or not the IJ that made the initial decision in the case made a material error of law), the tribunal would usually sit as a panel. Finally, if the AIT, when considering a case for the first time, sits as a panel consisting of at least three legally qualified members (not necessarily SIJs), then its decision will not be subject to reconsideration, but can only be appealed to the Court of Appeal under s103E of the NIA Act 2002.

Grade of PO to present before a panel If a Senior Immigration Judge is sitting on the panel, a Senior Presenting Officer should generally present the case (unless we are using Counsel). If the Panel is chaired by a Designated Immigration Judge, then a Case Owner is able to present the appeal.


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22/10/09

Director of GLA


DETAINED FAST TRACK PROCESSES TIMETABLE FLEXIBILITYTable of Contents 1 Introduction 1.1 Audience 1.2 Purpose 1.3 Background 2 General Points 2.1 Key Principles 2.2 Requests for Flexibility and Responses 2.3 Flexibility Other Issues 2.2 Authorisation 2.3 Flexibility Impacts / Rescheduled Interviews 2.4 File Minutes 2.5 Detention Reviews 3 Illness 3.1 Illness Claimed 3.1.1 Applicant States They Are Fit for Interview 3.1.2 Applicant States They Are Unfit for Interview 3.2 Fitness for Interview 4 Interpretation Problems 4.1 Interpreter Competence 4.2 Applicant Changes Preferred Language 5 Representatives at Interview: Late or Non-Attendance 5.1 Representative Fails to Attend Interview 5.2 Representative Attends Interview Late 6 Preparation for Interview: More Time Requested 7 Non-Compliance and Implicit Withdrawals 8 Post-Interview Representations 9 Removing Cases from DFT/DNSA Processes 9.1 Removing Cases from Detained Processes 9.1.1 Continuing or Releasing from Detention 10 Glossary


1 Introduction1.1 Audience This instruction is aimed at all Detained Fast Track Processes officers. All officers must be familiar with the entirety of UK Border Agency (UKBA) policy on DFT/DNSA suitability, laid out in the Detained Fast Track Processes instruction.Back to contents

1.2 Purpose This instruction explains the circumstances in which it might be appropriate for the Detained Fast Track Processes timetables to be extended, or for an applicant to be removed from the processes altogether. Because the circumstances calling for flexibility or removal from process will always be specific to the facts of a case, this instruction is not intended to be an exhaustive and rigid instruction as to mandatory actions where flexibility or removal from process must in all circumstances be practised. Instead it is intended to outline the most likely issues to arise and suggest approaches which must be followed in those circumstances.

1.3 Background The considerations regarding flexibility apply mainly to the stages up to and including the asylum decision. Where in-country appeals apply, the timescales applied to the processing of the case are determined by the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005 (incorporating subsequent amendments). Regardless of the stage of the application and the currency of any appeal rights, overall suitability for the DFT or DNSA process (see Detained Fast Track Processes) must be reviewed on an ongoing basis, as information relevant to suitability may emerge and develop throughout the life of the case. This consideration applies whether at the request of applicants and/or representatives, or as part of the proactive reviews required of case owners (see also 2.5 Detention Reviews).Back to contents


2 General Points2.1 Key Principles The DFT and DNSA timetable is intended to deliver decisions in up to 7-14 days after entry to the process, depending on the type of decision and normal developments in the case. It is important that this timetable is maintained as far as is reasonably possible, and that the time an individual is detained is kept to a minimum. However, the DFT and DNSA processes are built on an overriding principle of fairness, and as a consequence, timetable flexibility or removal from the DFT and DNSA processes must be considered in all situations where fairness demands it.Back to contents

2.2 Requests for Flexibility and Responses As part of their induction to DFT, applicants will be informed about the DFT processes, including information about timescales and the possibility for the applicant or their legal representative to ask for the timescales to be varied, or for the case to be removed from the process altogether. Even where the applicant or legal representative does not request flexibility, case owners must proactively consider whether flexibility is required in a particular case. For flexibility requests to be properly understood, thoroughly considered and formally responded to, it is preferable that they be made in writing. However, requests for flexibility may also be made orally. Regardless of the manner of the request, case owners must properly consider the issues raised, taking reasonable steps to obtain clarification if necessary. If agreeing to exercise flexibility, the case owner must make very clear the terms under which it is offered. If declining to exercise flexibility, the case owner must make very clear the reasons for that decision. The means by which the response will be best given will depend on the particular circumstances of the case, the nature and the timing of the request. A written response will usually be appropriate for all written requests and detailed oral requests, although where a request for flexibility is received during or near to the end of an asylum interview, it may be appropriate to lay out the conditions of flexibility or reasons for declining the request in the interview record. If a request for flexibility is made orally in other circumstances, but discloses no reasons why flexibility ought to be exercised, it will usually be sufficient to reject the request orally, noting CID and the case file accordingly. Any doubts as to whether flexibility is appropriate, or indeed how to respond to a request, must be referred to a senior caseworker.Back to contents

2.3 Flexibility Other Issues 2.2 Authorisation Before flexibility is exercised and timescales extended, for instance by the cancellation and rescheduling of an interview, authorisation must be sought from an officer of SEO level or Uncontrolled if printed

above. It is acknowledged that in many circumstances there may be little choice other than to extend timescales, but seeking authorisation will ensure consistency and help to ensure that all reasonable options to proceed have been given thorough consideration. 2.3 Flexibility Impacts / Rescheduled Interviews If flexibility is likely to impact another event, appropriate action must be taken in respect of that event. Where appropriate, the applicant and legal representative or other parties to the impact must be promptly informed of the rescheduled event. 2.4 File Minutes Requests for flexibility, and the terms of any flexibility that is exercised must be fully minuted on file and CID notes. Where the decision to exercise flexibility will have an impact that will affect the overall process timetable (e.g., if one or more days will be added to the timescales), the circumstances and reasons for the decision to exercise flexibility must be minuted on file and CID, and where appropriate, the name of the senior officer authorising the action taken must be recorded. 2.5 Detention Reviews Under existing detention policy (see ch. 55 of the Enforcement Instructions and Guidance), a detainees ongoing appropriateness for detention must be regularly reviewed. These reviews must take place at fixed intervals, as well as in response to significant information material to the applicant and his/her case, and the basis of detention. It is likely that in some cases, the issues that require consideration of whether to exercise timetable flexibility will also be issues that require detention to be reviewed.Back to contents


3 IllnessAn individual will enter DFT/DNSA processes only if, at the time of referral, the information available indicates that they are suitable for DFT/DNSA according to the DFT/DNSA entry policy, which includes criteria relevant to health. Individuals are also medically screened within 24 hours of arrival at the IRC (Rule 34 of the Detention Centre Rules). Rule 35(1) requires medical practitioners to report on cases where they are concerned that ongoing detention would be injurious to health. Rule 35 reports require a written response by case owners. (See Rule 35 of the Detention Centre Rules). 3.1 Illness Claimed If an applicant claims ill-health, case owners must briefly investigate the nature of the illness and ask the applicant if he/she feels well enough to proceed with the interview at the time booked (without delaying access to medical care where the need is urgent). Case owners must not make clinical judgements as to the applicants fitness for interview. In all cases, applicants must be offered the opportunity to access the healthcare facilities, and in the first instance be assured that their attendance at the healthcare facilities will not affect the decision on their case. 3.1.1 Applicant States They Are Fit for Interview Notwithstanding the complaint of ill-health and the offer to access the healthcare facilities, an applicant may decide to proceed with the interview. This should ordinarily be respected, and the interview allowed to proceed, unless there is some obvious reason why the stated wishes of the applicant should be regarded as unreliable (for example, if the wishes are expressed against a background of obviously confused or irrational thought or behaviour). 3.1.2 Applicant States They Are Unfit for Interview With the offer of the opportunity to access healthcare facilities, the applicant must be clearly informed that there will be no further delays to the interview for health complaints unless they have been certified by a medical practitioner as being unfit for the interview. If the applicant has been pronounced fit for interview but again claims ill-health, they must be warned that repeated but unfounded claims of ill-health leading to interviews being delayed, may be regarded as vexatious, which may have consequences of the claim being treated as implicitly withdrawn or refused for non-compliance grounds.Back to contents

3.2 Fitness for Interview An applicants fitness for interview is a judgement to be made by IRC healthcare staff only. If healthcare staff do not certify the applicant as being unfit for interview, the interview should recommence immediately on the same day or as soon as is reasonably practicable and without undue delay. If healthcare staff certify the applicant as being unfit for interview, care should be taken to ascertain whether the applicant is likely to be fit for interview within DFT timescales. Suitability for DFT Processes must be reviewed.Back to contents


4 Interpretation ProblemsApplicants are asked their preferred language for interview at screening, and also at induction to the DFT/DNSA process (following arrival at the IRC). This should ensure that a competent Home Office interpreter is booked in the correct language. 4.1 Interpreter Competence If it emerges that the Home Office interpreter booked to attend the interview is not competent for the purpose (for example, if there are difficulties with the language or dialect spoken, or the interpreter has insufficient vocabulary), then the interview must be delayed to allow for another suitable interpreter to attend. Subject to the availability of suitable interpretation, any delay for this reason should not normally be for more than 48 hours. If the legal representative expresses concern but there is no reason to doubt the applicants capacity and the applicant claims no difficulty with the interpreter (and vice versa), if the case owner has no other reason to doubt the interpreters competence, the interview should normally proceed.Back to contents

4.2 Applicant Changes Preferred Language If the applicant asks to be interviewed in a language other than the one he/she previously requested and subsequently booked by UKBA, case owners must explore why the applicant has requested a particular language at screening and induction, only to request a different language at the time of the interview. In such circumstances, only if there are good reasons to indicate that the applicant could not sufficiently make him/herself understood in the asylum interview should the interview be delayed to obtain a different interpreter.Back to contents


5 Representatives at Interview: Late or Non-AttendanceRepresentatives are notified of interview dates and times in advance and are given full contact details for the relevant DFT/DNSA office. They can be provided with maps and details of public transport on request. 5.1 Representative Fails to Attend Interview If a legal representative is properly notified of an asylum interview but fails to attend, the case owner must attempt to make contact with the appropriate legal firm to ascertain the reason for non-attendance. If the legal representatives non-attendance is due to problems unrelated to the applicant, the situation must be fully explained to the applicant, who must then be offered the options of either conducting the interview without the legal representative, or of delaying the interview (taking into account the reasons and the need for reasonableness and fairness), but normally for no more than two working days. If the representatives non-attendance is due to a late change of legal representation by the applicant which has not been notified to the DFT/DNSA Duty Office, the applicant must be offered the options of conducting the interview without the legal representative, or of delaying the interview (again, normally for no more than two working days).Back to contents

5.2 Representative Attends Interview Late If the legal representative is so late as to make the asylum interview impractical on the day on which it is scheduled, the interview should be rescheduled for the next working day, or as soon as is reasonably practicable.Back to contents


6 Preparation for Interview: More Time RequestedThe DFT and DNSA timetables allow applicants and their legal representatives time to prepare for the substantive interview, as they consider appropriate. As the timetable is intended to afford opportunity to prepare for the substantive interview, in most circumstances it will not be appropriate to delay the interview further by allowing the applicant and legal representative additional preparation time. However, fairness requires that each request for more preparation time be considered on its own merits, and according to the prevailing circumstances in the case. In considering a request for more preparation time, all relevant factors must be taken into account. Such factors may include: When the legal representative took responsibility for t