What You Need to Know About Fresh Claims
Has the Home Office refused your claim for asylum, humanitarian protection, and/or human rights? Have you exhausted all your appeal process?
If that is the case, you can make further representations to the Home Office where new additional evidence is available to support your claim.
The Home Office can be asked to treat the submission as a fresh claim, and if the fresh claim is refused to allow you to have another right to access the appeal process.
Paragraph 353 of the immigration rules deal with how the Home Office should consider a fresh claim.
Paragraph 353 of Part 12 of the Immigration Rules states:
‘’353. When a human rights or protection claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim…’’
The Legal Test
When you submit evidence and want it to be considered as part of your claim, the Home Office will use a legal test to find if it’s a fresh claim according to the immigration rules.
For a submission to be considered a fresh claim, the evidence must be significantly different from any previous submissions you made to the Home Office.
The submissions will only be considered significantly different if:
(a) they have not already been considered; and
(b) taken together with the evidence that was previously considered, it has created a reasonable prospect of success, notwithstanding its rejection.
What Are The Important Points To Consider?
(1) “significantly different from the material that has previously been considered”.
If you are now submitting evidence that was not used before, there will be questions as to why you are providing it now. You will require a satisfactory reason as to why it was not previously submitted. If you do not have one, the Home Office could use this as a reason to refuse to accept the claim. For instance, if you’ve just received new evidence, you would need to make the Home Office know where it was from and why it wasn’t available previously.
Your new submission has to have new information that supports your case. Further information just means new to the Home Office who are seeing it for the first time. It does not need to have been created recently. It could be documentary evidence such as a warrant for your arrest in your country of origin, or a birth certificate to prove your age.
(2) “taken together with previously considered material.”
The first thing that must be considered is why your appeal was unsuccessful, or if you didn’t appeal, you would look at the previous refusal letter received from the Home Office for the reasons why it was unsuccessful.
If all of the new information is your own testimony and without objective evidence, then you could be in difficulties. Further, if the Home Office does not believe the evidence is credible, they are likely to find that you do not satisfy the legal test for your submission to be dealt with as a fresh claim.
When determining a fresh claim, the Home Office will use the previous judgement, if you previously lost an appeal, as a starting point when weighing up the value of the new evidence.
If your creditability was previously questioned, a fresh claim is a chance to negate the previous findings. If you can provide better quality evidence for your case, including the previous evidence, could be dealt with in a more positive manner.
(3) “a realistic chance of success.”
If your new information is relevant, the Home Office will consider whether the new information focuses on the grounds for asylum or the right to remain using human rights argument.
For example, if your original claim is based on your political belief, but now there has been a change of government or political policy in your country of origin, the Home Office could argue this won’t make any difference to your new submission. Subsequently, it’s unlikely to be accepted as a fresh claim.
Also, the Home Office will look at the issue of credibility. If for instance, you now argue that you may be persecuted because you are part of a religious group, and have no evidence to support your claim, you’re unlikely to be believed. It’s not going to be evidence that’s helpful. You’re going to need good evidence to make a successful application.
Although you may be able to prove you’re part of a religious group in your country of origin and at risk, the Home Office may not believe you are personally at risk.
The Outcome of Fresh Claims
First, the Home Office will look at all of the new evidence, then make a decision using a legal test set out under paragraph 353. The outcomes will be as follows:
(1) The Home Office will look at the evidence and decide if it satisfies the criteria. The evidence would need to show you require protection and/or satisfy the human rights law. If it does, you would then be given refugee/humanitarian status, or other leave to remain based on your claim.
(2) The Home Office looked at the evidence and concluded that although it satisfies the legal test, they have refused the claim. It was decided you do not require any protection or leave to remain based on a human right’s claim.
In these circumstances, you have an opportunity to appeal your claim. Generally, this is not an adverse outcome.
Compared to the Home Office, an Immigration Tribunal will have a more positive attitude when dealing with your grounds for wanting to stay in the UK.
Be aware that before making a decision, the Home Office may want to interview you again or may seek further evidence.
(3) If the Home office says your new evidence doesn’t satisfy the legal test for fresh claims, in that situation, you cannot appeal the decision. You can then explore the options below.
What Are Your Options?
- Another, improved fresh claim
- A judicial review
For a judicial review, you would require legal representation as it is a complex area. It’s a court led process which looks at the lawfulness of decisions/actions made by a public body such as the Home Office.
What Forms Of Evidence Can Be Used When Making A Fresh Claim?
- Documentary evidence showing you have been politically active has just arrived. Having the envelope showing receipt or date of delivery will assist your claim.
- You have evidence that the individuals who were responsible for your persecution are still actively trying to trace you.
- Previously your evidence was not believed, and now you have objective evidence to support your submission for a fresh claim.
- Due to your involvement in UK groups, you have new evidence to support your claim. This could be something like a group that opposes the government in your country of origin.
- That you fear returning to your country based on your political activities in the UK, or that you have changed religion who are persecuted in your home country or that you have realised your sexual orientation.
Case Law And Legal Developments
It may be reported that the Home Office had made a mistake applying the rules or country situation, or that the procedure should have been carried out differently. You may determine that the same rules or actions in that case where it was proved the Home Office made mistakes were also applied in the same way when deciding your matter.
- There could be a new development in case law which talks about the situation of your home country or how a particular claim should be correctly assessed
- The Home Office were found to be using policies or actions that have since been deemed unlawful. You can make a fresh claim on this basis if you can show your case was refused on the same principles.
Your Country Of Origins Circumstances Has Changed
- For instance, there have been changes back home that alters the circumstances of your case, such as a new government. And as a result of returning home, you are at risk of harm.
- Although you may have made a claim for one argument, it’s possible a fresh claim is being made due to a new development back home that puts you at risk. Or, the new evidence of the situation back home assists your current reasons for seeking protection.
You Want To Make A New Claim As You Now Have New Evidence
- Previously you could have felt unable to discuss your sexuality with the Home Office. You now feel you can discuss it and feel it supports your claim. However, the Home Office generally don’t believe this new information and believe it should be disclosed at the start of the claim.
- Converting to a new religion while in the UK can be a reason for another claim if as a result, it puts you at risk of persecution in your country of origin.
- If you have a new life and your circumstances have changed, this could amount to a fresh claim. This would be circumstances such as being in a relationship with someone, having a child, or a severe health condition.
WH Solicitors specialise in preparing strong fresh claims or challenging any fresh claim refusal you have received from the Home Office.
You can contact us on 01483608786 or email us at [email protected] to discuss further the chances of you getting leave to remain in the UK.