Trafficking victims will often find themselves in a position where they need further submissions made for them. This can happen for many reasons, but some of the most common ones are due to poor representation in their initial asylum claim, due to late disclosure that they are victims of trafficking, due to their initial asylum claim being made while they were still in an exploitative situation, etc.
Increasingly in recent times, advisors have been reluctant to take on further submissions’ cases due to the delays in being able to bill them combined with the need for expert evidence (and the expense related to this) to be incurred. Advisors are encouraged to take on further submissions’ applications for victims of trafficking and are reminded about the ability to stage claim for disbursements and also, the likelihood that further submissions file will go escape.
Much of the evidence that will be useful for further submissions is mentioned in the section on Evidence Needed for an Asylum Appeal. It is important to note that in contrast to initial asylum claims the Legal Aid Agency is fairly willing to grant funding for experts at the legal help stage.
In further submissions cases, it is imperative to obtain all relevant disclosure before, in order for the advisor to know exactly what evidence to submit and representations to make to meet the fresh claim test.
Disclosure that should be obtained includes:
- The full Home Office file – a SAR request should be submitted to the Home Office as soon as the file is opened for the client
- Previous solicitor(s) full file – as the evidence submitted needs to be new, it is extremely important to see all of the evidence that all previous representatives have submitted to the Home Office and Tribunal
- Medical records – up-to-date medical records from hospitals and GP surgery relating to client.
With further submissions, the first decision to look at is always the most recent First- Tier Tribunal determination. Look at the decision and consider where the evidential gaps are, how the client’s circumstances have changed since this decision and whether the legal position has changed since the decision (e.g. country information or relevant case law).
See section on Initial Asylum Claims regarding more general information on statements.
It is extremely useful with further submissions if a global witness statement covering everything can be taken from the client.
If new information has come to light or the client has recently disclosed trafficking for the first time, this account has never been put to the Home Office or Tribunal before so it is essential that a full witness statement is taken on this.
Importantly, with further submissions cases, the client will have already been through the asylum process at least once and there are likely to be things that need to be explained. While they may have provided a comprehensive witness statement before, it may be more likely that they have either never done so and just relied on information provided during their asylum interview or that a number of witness statements have been submitted over the course of their journey through the asylum process.
In all situations, where there are issues with differing accounts (as will often be the case with further submissions for trafficking victims), it will be important that the witness statement covers these discrepancies. Advisors should take their clients through each disclosure and why they said what they said at each time.
For example, a statement could talk about what the client was thinking regarding his risk from his traffickers when he was initially interviewed by the Home Office as this may provide evidence as to why there are discrepancies.
It is crucial to explain that it does not matter if what the client said previously is not fully true as long as a reasonable explanation for that information can be provided.
Where the person you are working with has a negative RG or CG, and you have obtained new supporting evidence for their further submissions, consideration should be given to whether this evidence can also be used to request that this negative decision is reconsidered in light of this new evidence.
Remember that if there is a positive change about whether the Home Office accepts the client as a victim of trafficking, this decision is likely to provide fresh evidence that can be used as part of the further submissions. If a positive CG decision is made, advisors should also consider making an application for discretionary leave (see section on DL).
Procedure for vulnerable applicants
Applications must usually be made in person to the Home Office’s Further Submissions Unit in Liverpool. (See guidance)The Home office will only accept post or fax submissions if someone is:
- Disabled or ill and unable to travel
- In prison or in detention
- An unaccompanied asylum-seeking child.
Clients must provide proof of how they meet these criteria.
It is no longer possible to make concurrent applications for leave to the Home Office.
34BB (1) An applicant may only have one outstanding application for leave to remain at a time.
(2) If an application for leave to remain is submitted in circumstances where a previous application for leave to remain has not been decided, it will be treated as a variation of the previous application.
(3) Where more than one application for leave to remain is submitted on the same day then subject to sub-paragraph (4), each application will be invalid and will not be considered.
(4) The Secretary of State may give the applicant a single opportunity to withdraw all but one of the applications within 10 working days of the date on which the notification was sent. If all but one of the applications are not withdrawn by the specified date each application will be invalid and will not be considered.
(5) Notice of invalidity will be given in writing and served in accordance with Appendix SN of these Rules.’
This provision has been misunderstood and misapplied. It should not, for instance, affect those seeking to extend their DL and at the same time making further submissions on asylum or human rights grounds. Remember too that the s120 process provides that a person can raise in their applications other reasons for staying in the UK (e.g. relying on Article 8 in an application to extend DL).
If your client is not in a trafficking safe house and is in receipt of accommodation through asylum support (either s.95 or S.4), it is important for advisors to note that merely making an appointment with the Further Submissions Unit in Liverpool is not enough to win an appeal against a Home Office decision to curtail this leave. Nor is it enough to make a new application for Section 4 support.
The Asylum Support Appeal Tribunal will expect to see evidence of the basis on which the further submissions are going to be made and will assess whether they think it is likely that the further submissions will be accepted as a fresh claim.
This does not mean that the full further submissions need to be prepared for this appeal, a letter from the advisor setting out the basis of the further submissions will be enough – as long as it is acceptable to the judge. For more information, contact the Asylum Support Appeals Project.