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8 Claiming Asylum

Download Claiming Asylum (PDF File, 193kb)

1. Introduction

2. Who qualifies for asylum?

Qualifying for asylum depends on whether you are a refugee, as described in the United Nations 1951 Refugee Convention. It says a refugee is someone who is outside their country of origin because of a well-founded fear of persecution for one of five reasons:

  • race;
  • religion;
  • nationality;
  • membership of a particular social group; or
  • political opinion.

A refugee must show they are in real danger and need protection for one of these reasons. This is often difficult, and many legal questions arise in most asylum applications. It is vital to get specialist help.

The Refugee Convention says you can't be sent back to a country where you could be at risk of persecution. This means the UK government can't send you back to your country of origin until it can show that there is little or no risk to your safety. You can stay in this country until your case has been decided by the immigration authorities (the Border and Immigration Agency, which is part of the Home Office).

However, this rule applies only to the question of returning you to a country where you would be at risk. So you could be sent back to another safe country without your claim being considered (see 'Where you came from').

In most cases you will be able to stay while you appeal against a decision to refuse you asylum. But this may depend on the reasons for your claim and where you have come from.

If it looks as though you would be at risk only in a certain part of your country, the Home Office may refuse you asylum because you could return and live in another part of your country.

Asylum is meant to protect you from possible future risks, not just from what has happened in the past. So you may be refused if the Home Office believes that circumstances have changed in your country, and you would no longer be at risk.

It's often difficult to prove that you would definitely be at risk. You need to show that being persecuted would be a 'serious possibility'.

Who isn't covered
The Convention says that certain types of people shouldn't qualify for asylum. These include people who have been involved in serious criminal activity, or who are responsible for human rights abuse.

There are also 'cessation clauses', which say that you could lose your refugee status later if, for example:

  • circumstances in your home country improve significantly by the time the Home Office makes a decision; or
  • you return to your own country after becoming a refugee.

If this happens you may stop being a refugee, but you won't necessarily have to leave the UK.

Special cases
Certain kinds of claim are more complicated than others. The law can be very difficult to apply when:

  • you claim a fear of being persecuted by someone other than government forces;
  • you are fleeing from a civil war; or
  • in most cases, you claim a fear of being persecuted because of 'membership of a particular social group'.

If your claim is in any of these categories, you need expert advice.

Human rights claims
It's also possible to make a claim for asylum based directly on Article 3 of the European Convention on Human Rights. This prohibits torture or inhuman or degrading treatment. The UK Government would be breaching the Human Rights Act if it sent someone back to a country where they would face such a risk.

Unlike applications under the Refugee Convention, you don't have to show any particular reason for the inhuman treatment, or show who is to blame. If you can show you risk treatment prohibited under Article 3, the UK government must allow you to stay, and will normally grant you 'humanitarian protection' (see 'What will be the outcome of my claim?').

You may also be able to claim that removing you from the UK would breach other human rights, such as the right to respect for your family or private life. It is often difficult to win a case with these arguments. If you think you may want to make this type of claim, you should discuss it with your legal representative as soon as possible.

3. How do I apply for asylum?

4. What happens when I apply?

5. What can I live on while I am waiting?

6. What happens while I´m waiting?

7. Where can I get help with my claim?

8. What will be the outcome of my claim?

9. What if my claim is refused?

10. What happens if my appeals fail?

11. Further help

12. About this leaflet

The leaflets in this series give you an outline of your legal rights. They are not a complete guide to the law and are not intended to be a guide to how the law will apply to you or any specific situation. The leaflets are regularly updated but the law and the way the government deals with asylum seekers often change, so information may be incorrect or out of date. If you have a problem, you will need to get more information or personal advice to work out the best way to solve it. See 'Further help' for sources of information and advice.

This leaflet was written in association with the Immigration Law Practitioners Association and Mick Chatwin, a barrister and solicitor specialising in immigration law.

Leaflet version: February 2008

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