Outcomes From A Fresh Claim
The Home Office will look at the evidence you have given them and will decide if it passes a legal test called the ‘fresh claim test’. This is about whether the evidence is good, new, and relevant to your situation and may mean that you have the right to stay in the UK.
A person who has made an unsuccessful claim for asylum can submit new evidence (further submissions) to the Home Office and ask that the evidence be treated as a fresh claim for asylum.
For the new evidence to be treated as a fresh asylum claim it must:
- Have not already been considered by the Home Office
- With the previous evidence, create a realistic chance of success
The Home Office will consider your new evidence and make one of the following three decisions:
- Grant Refugee Status or another form of leave to remain (see ‘Positive decision’ stage of this guide).
- Reject the further submissions but record them as a fresh asylum claim. If the application is recorded as a fresh claim, you will have a right to appeal.
Reject the further submissions and refuse to record them as a fresh asylum claim. If the Home Office says that your new evidence or information does not pass the fresh claim test, it will refuse your application and you will not have the right to appeal that decision. You may want to look for new, better evidence to give. In some cases you might be able to do a legal challenge called a ‘judicial review’. You will need to speak to your lawyer about whether this is possible.
If the Home Office says it passes the fresh claim test, they will then look carefully at your new evidence and what you have said before. If they decide that you do need to stay in the UK, they will grant you leave (allow you to stay in the UK – see ‘Positive decision’ stage). If they say you don’t need to stay in the UK, you should have the right to appeal that decision.
If they say it does not pass the fresh claim test, they will refuse you and you do not have the right to appeal that decision. You may want to look for new, better evidence to give them, or in some cases you could speak to a lawyer about a legal challenge called a ‘judicial review’.
If you want to talk to somebody further about your legal options at this stage, ask your key worker, social worker or foster carer to contact the Migrant Children’s Project Advice Line.
Problems & Actions
Problem 1
Your fresh claim has been rejected and you have no outstanding (this means active) applications with the Home Office. Social services have told you they have to do a human rights assessment and may stop supporting you
Action 1
If this happens, the Home Office expects steps to be taken for your return and social services may have to discharge you from their care (they will no longer have a duty to support you). However...
Action 1
If this happens, the Home Office expects steps to be taken for your return and social services may have to discharge you from their care (they will no longer have a duty to support you). However, if you are over 18, without permission to stay in the UK, the Home Office will expect steps to be taken for your return to your country of origin and Social Services may have to stop supporting you.
If this happens to you, talk to an advocate as soon as you can. Your social worker or PA would have also explained what happens in this case and this should be written in your pathway plan (please see Your Plans in the People Who Can Help section).
Before they stop their support, social services will have to carry out a Human Rights Assessment. This means social services will have to check if stopping support would be against your human rights. For instance, if you cannot return to your country for specific reasons beyond your control and they stop supporting you, you may have nowhere to go and could be at risk of sleeping in the streets or may have no money for food. This would be against your human rights.
Social services cannot go against your human rights, so they will have to check that there are no legal, practical, or medical barriers to a return to your country of origin before they can stop any support.
- They will check that there are no legal barriers to your return. This means they will have to make sure your claim is closed and that you have appealed to the highest level possible and nothing more can be done to help you remain legally in the UK (you have no new evidence or information to give the Home Office). Your lawyer would have to confirm this.
- They will check that there are no practical barriers to your return. For example, this means they will have to make sure that you have travel documents and that travel to your country is authorised. If this is not the case, they will have to continue supporting you until this is resolved.
- They will also have to check that there are no medical barriers to your return. For example, you may not be able to travel back to your country because you are very sick and would risk terrible suffering or be at higher risk of death due to lack of treatment in your country of origin. In this case, they will have to continue supporting you until this is resolved. Note that medical barriers are very limited. Talk to your advocate or lawyer for more information on this.
If there is a legal, practical or medical barrier to return, they cannot stop their support until the barrier is removed (gone).
However, if the Human Rights Assessment confirms that there is no legal, practical or medical barrier (obstacle) to your return, social services can stop their support. This should be put in writing.
If this happens to you, talk to your advocate or lawyer for more information on this, try to find out what agencies can provide support in your area as soon as possible. These include local churches and refugee community organisations (please see Community Organisations in People Who Can Help section). They may be able to help you apply for asylum support for refused asylum seekers (called ‘Section 4 support’) until you are returned to your country of origin.
This does not apply if you are under 18 and social services should keep looking after you.
Note that social services cannot withdraw leaving care support, even when you are ‘Appeal Rights Exhausted’, if you have claimed asylum at port of entry and were not granted UASC leave.
Problem 2
You are about to lodge an appeal or submit a fresh claim but social services say they no longer have a duty to support you and you should return to your country of origin
Action 2
Social services have to consider any practical or legal barriers that would prevent return to your country of origin. For example...
Action 2
Social services have to consider any practical or legal barriers that would prevent return to your country of origin. For example, they cannot discharge you if you manage to lodge another appeal or if a lawyer says there is merit to a fresh claim, if you do not have any travel document, if travel to your country of origin is temporarily suspended or if you have a very serious medical condition that would prevent travel or return. Note that social services cannot withdraw leaving care support, even when you are ‘Appeal Rights Exhausted’, if you have claimed asylum at port of entry and were not granted UASC leave.
Problem 3
You cannot return to your country of origin but social services say they no longer have a duty to support you. You are worried you will be left without food or shelter
Action 3
Social Services cannot withdraw leaving care support if this constitutes a breach of your human rights...
Action 3
Social Services cannot withdraw leaving care support if this would be a breach of your human rights and would make you destitute (without food, shelter or means to support yourself) or at risk of losing your life. If you think one of these reasons exist but social services have still decided to end your support you can speak to a lawyer about getting help to challenge this decision. If the lawyer thinks you are right they can help you get your support back.
Problem 4
You want to stay in the UK even if you have no outstanding claim with the Home Office
Action 4
If you have no outstanding claim with the Home Office and your Human Rights Assessment finds out there is no obstacle to your return, the Home Office will expect steps to be taken for your return...
Action 4
If you have no outstanding claim with the Home Office and your Human Rights Assessment finds out there is no obstacle to your return, the Home Office will expect steps to be taken for your return.
Sometimes, young people who are in this situation decide they do not want to return to their country of origin and try to self-support. Unfortunately, this is against the law and might leave you in a difficult situation. The law in this country also says that any employer or landlord caught giving you work or a place to live will be fined (pay money to the government as a punishment). If you accept to return to your country of origin on a voluntary basis (this means by choice) check if you are entitled to a re-integration financial package – some money to help you start over in your country. Social services may also offer you some money to help with this.
Note that social services cannot withdraw leaving care support, even when you are ‘Appeal Rights Exhausted’, if you have claimed asylum at port of entry and were not granted UASC leave.