Having spoken to a lot of Hongkongers, either actual people wishing to seek asylum, or “parents” assisting pro-democracy protesters flee Hong Kong, there seems to a variety of misunderstanding about claiming asylum in the United Kingdom, and so I thought I’d write this rough (and brief) guide of some key points.
This may not be a live document, and so the information should be taken as correct only at the time of publishing. In addition, this being a very general and rough guide, should NOT be considered as legal advice, and you should always seek independent legal advice for your own particular circumstances.
What is asylum?
The criteria for being recognised as a refugee is set out in the United Nations’ Convention and Protocol Relating to the Status of Refugees. In a very short summary, a refugee is someone who:
- has a well-founded fear of persecution due to reasons of race, religion, nationality, membership of a particular social group, or political opinion (at the moment, it is likely that protest related claims will fall into this last category);
- is outside the country of their nationality; and
- owing to such a fear of persecution is unable or unwilling to avail themselves of the protection of that country.
The fear of persecution has to be well-founded. This means that if someone has masked up and protested, never been arrested before, never written anything online, and has stopped protesting, it MAY be that the Home Office will consider any fear of future arrest to be speculative, since how will the authorities be able to identify this person. There MAY, however, be other factors which could impact on whether a fear of persecution held by someone is well-founded or not, and therefore you should speak to an independent legal adviser about the details of your situation, who can give you advice tailored to your specific situation.
Country of nationality
In considering “country of nationality” what will also been examined is whether a claimant for asylum will be able to reside in another country if they fear persecution in their country of nationality. For example, if a Hongkonger holding Chinese nationality also has settlement status in a safe third country, the Home Office in the United Kingdom is likely to refuse that claimant’s asylum claim on the basis that the claimant does not need international protection in the United Kingdom due to the fact that there is another safe country in which the claimant already has residency rights.
Unable or unwilling to avail themselves of the protection of the country of origin
Most claims for asylum which raises a fear of the state will usually pass this limb.
How to claim asylum
You can claim asylum at the port of entry, or after entry within the United Kingdom. If you are coming to the United Kingdom having already decided that you wish to claim asylum, then ideally a claim should be made at the port of entry. This is because section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 allows the Home Office to make adverse inferences as to credibility for actions such as delay in claiming asylum, giving the immigration officer an incorrect reason for your entry to the United Kingdom, or failure to claim asylum in a third safe country.
Section 8 negative credibility inferences is not usually likely to impact on strong asylum cases, but may be used by the Home Office to refuse asylum claims as part of a wider credibility attack for weaker or borderline cases.
Claiming asylum at the port of entry
To claim asylum at the port of entry, you simply need to inform an immigration officer at the border, usually at the counter where you present your passport, that you wish to claim asylum. At the airports, you will usually be taken to a backroom to wait for a short interview (screening interview). You may have to wait for some time before the screening interview will take place, but it will usually take place at the airport.
You should ask for an interpreter if you require one. I would always recommend this option if English is not your first language, although I have unfortunately seen cases where the client’s English, for some odd reason, happens to be better than the interpreter’s. If you yourself notice a mistake with the interpretation, do not hesitate to raise this. An interpreter may not be available in person, and if this is the case, the Home Office will arrange for an interpreter over the telephone.
The Home Office’s own guidance on registering an asylum claim offers this advice for claiming asylum at the border.
Screening at the UK border
You must tell a Border Force officer that you want to claim asylum.
Your application will be registered and you’ll be screened – ask for an interpreter if you need one.Home Office guidance
Claiming asylum in the United Kingdom
If you are already in the United Kingdom and wish to claim asylum after entry into the United Kingdom, you will need to call the Home Office to book an appointment. If you require an interpreter, you should make sure you tell the Home Office during your calls to book a screening interview appointment. The Home Office’s guidance gives this information on how to claim asylum within the United Kingdom.
Screening in the UK
You must call the asylum intake unit if you’re already in the UK.
They’ll call you back and ask simple questions about you and your family. You will not be asked why you’re claiming asylum during this telephone call.
You’ll be asked if you need help with housing. You might also be asked questions relating to coronavirus (COVID-19).
The call may take up to 30 minutes.
Asylum intake unit appointments line
Telephone: 0300 123 4193
Monday to Thursday, 9am to 4:45pm
Friday, 9am to 4:30pm
You do not need to make an appointment if you have nowhere to live – call the asylum intake unit to find out what asylum registration location you should go to and its opening hours.
Tell the asylum intake unit if you need any other dependants on your claim to be present at any stage of your asylum registration, for example the welfare interview, or if you’re a child and need to be accompanied. You can ask to have an interpreter at your screening.
Your appointment might be in a temporary location.Home Office guidance
Lack of money for accommodation and legal advice
There seems to be a common concerns about lack of finances. If you have made an asylum claim, you may be eligible for support from the Home Office. The Home Office offers support for asylum seekers who are destitute, and the support can also include accommodation. The Home Office has published guidance on Asylum Support which may be helpful for you to read.
The other concern arising from a lack of finances relates to trying to find a Solicitor to assist with the asylum claim. There is a Legal Aid system in place in the United Kingdom, which may allow those who do not have money to seek free legal assistance. You can find the contact details of Solicitors near you on the websites of the respective Law Societies of England and Wales, Scotland, and Northern Ireland.
If you require an interpreter, the Solicitor will usually be able to arrange an interpreter for you at no cost to you if you are eligible for Legal Aid assistance. You should also look for any news articles from Hong Kong which may be relevant to why you feel you have a well-founded fear of persecution should you return to Hong Kong, as many of the news items from Hong Kong remain unreported by English-language media. If you are in receipt of Legal Aid assistance, then your Solicitor should be able to arrange for the evidence to be translated into English for submission to the Home Office.
PLEASE NOTE: The legal systems within the different constituent parts of the United Kingdom as broken down as England and Wales, Scotland, and Northern Ireland. Generally a lawyer qualified in England and Wales will not be able to practise in Scotland or Northern Ireland unless also qualified in those jurisdictions. You should therefore use the websites of the Law Society in your location. Think of it as like a lawyer qualified in Hong Kong cannot practise law in Mainland China unless also qualified there.
How long can an asylum claim take?
Processing times of asylum claims can vary greatly, although from experience, I have seen people whose claims have been pending for as long as two or three years. Paragraph 333A of the Immigration Rules provide for the following:
333A. The Secretary of State shall ensure that a decision is taken on each application for asylum as soon as possible, without prejudice to an adequate and complete examination.
Where a decision on an application for asylum cannot be taken within six months of the date it was recorded, the Secretary of State shall either:
(a) inform the applicant of the delay; orThe Immigration Rules
(b) if the applicant has made a specific written request for it, provide information on the timeframe within which the decision on their application is to be expected. The provision of such information shall not oblige the Secretary of State to take a decision within the stipulated time-frame.
If you have a Solicitor, you could ask your Solicitor to send chasers to the Home Office, or ask them to consider whether it is appropriate in your situation to send to the Home Office a letter before claim threatening Judicial Review. A Judicial Review is a special kind of claim made against a public body for unlawful or unreasonable actions (or inactions). A letter before claim usually requires a response from the Home Office within two weeks, so even if you do not eventually file a Judicial Review against the Home Office, it is likely you will receive a response from the Home Office to the letter before claim.
Usually, you will have two interviews as part of your asylum claim. Sometimes, if the Home Office decision maker decides more information is required after the two interviews, you may be asked to provide further information either by sending it to the Home Office, or have another interview arranged.
The first interview is what we have already touched upon briefly: the screening interview. The screening interview is relatively short and asks you details about yourself – including name, date of birth, religion, occupation in Hong Kong, details of family members – as well as a brief explanation of why you feel you cannot return to Hong Kong.
After your screening interview, you may be provided some paperwork to return to the Home Office, such as a section 120 one-stop notice, and a preliminary information questionnaire.
Section 120 of the Nationality, Immigration and Asylum Act 2002 allows the Home Office to send to claimants a notice requiring a statement setting out all additional grounds which the applicant wishes to raise for remaining in the United Kingdom. Usually, the Home Office requests that the section 120 statement is returned within 10 working days, however, some lawyers will write to the Home Office acknowledging this and inform the Home Office that they will submit all grounds with the post-main interview representations (after all, how can you have “additional grounds” without even having set out the initial grounds since you would not have had your full asylum interview by this point).
An asylum claim is unlikely to be refused because you have not sent in a statement of additional grounds under section 120 before the deadline which they have set, but what is important to make sure is that you have informed the Home Office of ALL the reasons for which you feel you cannot return to Hong Kong and remain in the United Kingdom. This is important because if you decide to raise something new at a later point, for example after an initial refusal, but could have been expected to mention this before, it may be used as a criticism of your credibility.
If you are needing to make a new application / further submissions to the Home Office following refusal of your asylum claim and you raise something new to the Home Office which you could have been expected to raise before in your initial claim, the Home Office may certify the new application under section 96 of the Nationality, Immigration and Asylum Act 2002 and prevent you from appealing against the new decision.
A preliminary information questionnaire asks for more detailed information about you and your claim for asylum as compared with the screening interview. The Home Office has a blank copy of the preliminary information question available online which you can have a look at to give you an idea of what is asked within that document. If you feel that you cannot complete this by the time set by the Home Office, for example you are still trying to work through it, or you are in the process of finding a lawyer, then you can let the Home Office know the situation and ask for more time.
The second interview is a more detailed full asylum interview which asks you for more information about your claim. The Home Office will usually ask about dates of when things happened, if you did things with other people and who they might be, your own opinions and why you may hold those opinions. For example, I have seen people get asked why they hold certain political opinions, or why they may have been motivated to join a certain protest activities. Questions may also arise as to how events you describe may have unfolded, for example, details of how you were arrested if you mention that you had been arrested, like how many police officers were involved, or how long it took to transport you from the scene of arrest to the police station.
PLEASE NOTE: As your answers will be written down (it may also be recorded in audio format too), you need to be careful as to what you say. If you do not know the answer to the question asked, please ensure that you say that, rather than make something up because you think the interviewing officer is expecting an answer. They may try and ask you a few times, but if you do not know, then simply explain that you do not know the answer. It may complicate matters if you make up an answer because you are feeling pressured to do so, and then say something else later in your interview which contradicts this. The Home Office also like dates and times, so do not give any dates if you are unsure. Again, say you do not know, or if you only know approximately, then make sure you highlight that your answer is only an approximate date and time. You should also not answer a question if you do not fully understand the question or the way the interpreter has interpreted the question to you. Ask for it to be clarified, ensuring you understand it 100% before you answer.
A record of both screening and main asylum interviews will be provided to you afterwards. As the screening interview which is usually done in person, you will usually be provided with the record of screening interview right after. The main asylum interview is usually carried out by video due to Covid-19 arrangements, and the record of interview will usually be sent to you by post. You should check through the interview records as soon as possible after receiving them either yourself or with your lawyer if you have engaged one, and make any notes of corrections to the Home Office as soon as possible.
Although there is no legal requirement for someone claiming asylum to provide evidence in support of their claim, evidence obviously can assist in highlighting the genuine nature of your claim. You will usually be asked to make final submissions of all evidence and arguments as to why you should be granted asylum within five working days of having your final interview. If you feel you need more time, you can ask the Home Office for more time explaining your situation, but as this is not guaranteed, you should be keeping an eye on what evidence might be available in support of your case throughout the whole process, and gather these together. If your evidence is based on online news items, then do not simply save the URL as websites can be taken down, but make sure you have a PDF copy showing the title of the publication, date of publication, as well as the URL.
Bearing in mind a lot of news items are going to be in Chinese, since the English-language media still does not report a lot of what is reported in our own media, you should factor in translation time too.
It is important to note that lawyers are not there to necessarily hunt for the evidence for you, but to put together a legal case based on what you have, and so it should be viewed as a team effort. The lawyer can suggest the issues which the evidence needs to highlight, but you will need to make sure you also do your part in the team effort in gathering this for your lawyer, especially if the source language is in Chinese / Cantonese.
What happens if you are refused asylum
If you receive a decision from the Home Office refusing your asylum, you will need to go through this carefully to find out why the Home Office has refused your asylum claim. If you have a Solicitor, they will usually go through this with you and explain the decision. You will likely be allowed to appeal against the refusal of asylum to the First-Tier Tribunal.
You will have 14 days from the date the decision was SENT to file an appeal with the First-Tier Tribunal. It may be helpful for you to speak to a Solicitor about your case, and discuss how best to approach the appeal in terms of formulating a legal strategy. You can read more about the appeals process on the United Kingdom Government’s website.
Unless you are in receipt of Legal Aid assistance, or are in receipt of a appeal fee waiver, you will have to pay a fee to the First-Tier Tribunal to file an appeal against the refusal of your asylum claim. If you wish to have an oral appeal (one where you can speak to the Judge), this will cost £140. If you wish for a Judge to consider your appeal only on the basis of documents, then the appeal fee will be £80.
An oral hearing is probably better as it gives you the opportunity to explain you case, and it gives the Judge a chance to ask you any clarifying questions. However, an oral hearing will also give the Home Office a chance to cross-examine you over your evidence. As Legal Aid assistance is available for the appeals process as well, you should try and seek the advice of a Solicitor about your appeal process.
Another option instead of filing an appeal to the Tribunal is to make a Fresh Claim, where you have new evidence which was not considered by the Home Office. With how quickly the situation in Hong Kong is deteriorating, this may be a suitable option. You should seek independent legal advice about your specific circumstances.
I thought I would add a short section about mental health issues, since I have noticed many Hongkongers with whom I have spoken say that they do not have mental health issues, but when asked a few more questions, they told of exhibiting mental health indicators. Some of the mental health indicators which some pro-democracy activists have told of include having nightmares, being scared of sudden loud noises, wanting to avoid the police even in the United Kingdom, or even just losing interest in doing anything.
It is very important to seek help for any mental health issues, and you should speak to your GP. Your GP should be able to arrange an interpreter for you if you do not feel comfortable explaining your symptoms in English. Alternative, if you have a trusted friend, you may be able to take your friend with you, or call your friend during the appointment. You should check with your medical practice when you come to book an appointment.
It may be that your GP will need to refer you to further specialist mental health care. It is always worth speaking to your Solicitor about mental health issues too, as there are cases where mental health issues are capable of resulting in a grant of leave to remain. You should seek independent legal advice about your specific situation.
Header image: Unsplash.