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Further submissions

Trafficking victims will often find themselves in a position where they need to make further submissions. This will be in circumstances where their previous asylum and human rights claims have been refused, and any appeal rights they had are now exhausted. This process is often called ‘making a fresh claim’.

This can happen for many reasons, but most commonly because of poor legal representation, so that their case was put poorly to the decison makers, or due to late disclosure that they are victims of trafficking, or a combination of both.

As with the other articles on the immigration section of ATHUB, we do not seek to provide you with all the knowledge and skills you need to make a successful fresh claim, but just to provide with some helpful tips from our own experiences of preparing further submissions for our trafficked clients. Right to Remain has prepared a helpful introduction to preparing fresh claims here.

The fact that your client already has leave, e.g. DL on trafficking grounds, or leave granted on the basis of Article 8 or humanitarian protection, does not prevent them making further submissions on Refugee Convention grounds. However, making further submissions will not extend their leave under section 3C, Immigration Act 1971, so they may also need to apply to extend their existing leave, before it expires, even if they are awaiting a decision on their further submissions.

Legal aid advisors can be reluctant to take on further submissions’ cases due to the delay by the Home Office in dealing with them, and the consequent delay in being able to close and bill them. There will often be large expert fees to pay out and it is not good for the firm’s cash flow if these cannot be recouped quickly. However, remember that you can make a stage claim for your disbursements whilst the case is ongoing, and these cases will often get to the escape fees threshold, and so all your work should be paid for at hourly rates. It will take you a long time to completely understand your client and their case, and the damage done to their case by prevous representatives (and sometimes by the client themselves), and to undo that damage. So be preared to put in a lot of time and effort. But turning what seems at first sight to be a poor case into a good one is always an engaging piece of casework, and you will be providing a lineline for your client.

It is important to note that in contrast to initial asylum claims the Legal Aid Agency is fairly willing to grant funding for experts for fresh claims under Legal Help.

ATLEU continues to see further submissions that are prepared very poorly, with the advisor showing little understanding of the requirements of the fresh claim Immigration Rules (at paragraph 353). Many fail to engage with the previous evidence and decisions at all, and fail to offer anything substantially new.

Paragraph 353 requires you to do two things:

  • provide to the UKVI something that is materially different from the previous claim, and
  • show that the case, when everything (old and new) is considered together, if refused by the UKVI, has a reasonable prospect of succeeding on appeal

Initial preparation

Your fresh claim client may well have had a long and complex immigration history before coming to you. The Home Office will have a lot of information, documents and decisions on file which will be relevant to their fresh claim.  It is essential to obtain all relevant disclosure before doing any detailed preparation work, in order for the advisor to know exactly what the issues are in the case, and take adequate instructions on them.

Remember that when the UKVI makes a decision on the fresh claim, they will consider everything that your client has told them and given them previously, including the inconsistencies, misinformation, false documents, etc. These will need to be addressed in the new claim.

In one ATLEU case, there had been 17 applications made by and for our client before she disclosed to the authorities, actually to a doctor she had seen in detention, that she had been trafficked here.

Disclosure that should be obtained includes:

  1. 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
  2. Previous solicitor(s) full file – which may include evidence that the HO has not disclosed, evidence not submitted, and evidence of the quality of representation
  3. Medical records – up-to-date medical records from hospitals and GP surgery relating to client.

Disclosure from the Home Office must include information held abroad, such as visa applications, and the evidence used to support them, as well as information held by the NRM (which may not be on the UKVI file), in addtion to the records held by the UKVI in paper form and on their GCID database.

And the full files of papers then need to be read and analysed, carefully, to see what information has been provided by the client in the past, and the decisions of the Home Office and Tribunal which have already been made on the basis of that information. It can help to tab pages where you see information that you might want to find again, and to prepare a detailed chronology of your client’s life and immigration history to help you understand their case, identify possible inconsistencies, and help you understand what has gone wrong with their case.

The first decision to look at is, usually, the most recent Tribunal determination. Understand why the appeal failed,  consider any evidential gaps, and where the mistakes were made in preparing the appeal, and how the case can now be put on a stronger footing. You will need to develop a case plan or strategy for preparing further submisions that are compelling in fact and law.

Where you are having to show that your client was poorly represented in the past, to explain previous inconsistences, failure to disclose information, failure to provide appropriate evidence, you may need to make a formal complaint to that firm, under their complaints procedure, and consider escalating that complaint, where necessary, to the OISC, SRA, Legal Ombudsman, or LAA as appropriate.

As explained in the excellent Best Practice Guide to Asylum and Human Rights Appeals:

‘8.52A Note the dicta in several Tribunal decisions such as BO and Others (Extension of time for appealing) Nigeria [2006] UKAIT 00035 and MM and others (Out of time appeals) Burundi [2004] UKIAT 00182 to the effect that allegations should be put to the previous representatives. In SV (Alleging misconduct and suppressing evidence) Iran [2005] UKAIT 00160, the Tribunal explained that

“The decision in MM does not mean that the Tribunal will not accept that an appellant has been the victim of professional incompetence unless the advisor concerned accepts the criticism but it does mean that the Tribunal will be very reluctant to accept that a criticism is well founded unless it has been put to the advisor concerned and the comments noted.”‘

Statements for further submissions

See here for more general information on statements.

It is often useful when preparing further submissions to prepare a comprehensive statement from your client, covering everything: their early life, events that led to them being trafficked, their exploitation, the aftermath, and everything else that might be relevant including their immigration history, previous applications, and their current circumstances.

In many cases, there will be no comprehensive and sifficiently detailed statement as to what has happened to them in the past, even though they have been through the asylum process and an appeal before they come to you. Too often, representatives rely on the asylum interview record, which is rarely comprehensive and seldom allows your client to put their case in a compelling way.

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 statement covers these discrepancies head-on. Discrepancies which exist on the face of the Home Office and Tribunal paperwork, do not go away just because you would prefer to ignore them. Advisors should take their clients through each inconsistency and ambiguity in their earlier case(s) and explain them.

It is crucial to explain to your client, and to persuade them, that if they have said something previously that is not true, or have relied on false documents, they can begin to repair the damage that has been done to their case by now telling the truth, even if that is difficult and/or embarassing for them. They can begin to repair their credibility by providing a reasonable and believable explanation for not having told the truth. A poor or unconvincing explanation is unlikely to help and may do more damage to their case.

Other new evidence

Always consider whether a weighty medical and/or country expert opinion should be commissioned to support your further submissions, as your client’s testimony on its own may be insufficient to meet the fresh claim legal test.

Reconsideration request

Where your client has had a negative RG or CG decision from the NRM, and you have obtained new supporting evidence or testimony for their further submissions, consider whether this evidence can also be used to request that the NRM reconsider that decision.

If the NRM does then make a positive decision on the trafficking claim, this in itself may help meet the fresh claim test. If a positive CG decision is made, advisors should also consider making an application for discretionary leave.

Procedure for vulnerable applicants

Coronavirus newsflash (20/03/20):

Applications must usually be made in person, by appointment, at the Home Office’s Further Submissions Unit in Liverpool. (See HO staff 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.
www.gov.uk/submit-new-evidence-asylum-claim

A victim of trafficking may be able to attend the FSU in Liverpool on their own or, if not, may be able to find a friend or support worker who will travel with them. But if they cannot, and you have evidence of trauma related or other physical or mental illness, you should request that the further submisisons be accepted by post.

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