What Is a ‘Fresh Claim’ Under the Immigration Rules?
Take the following scenario. A person makes an application for refugee status or humanitarian protection (a ‘protection claim’), or an immigration application based on their human rights (a ‘human rights claim’). This is refused (or the application is withdrawn), and all rights of appeal are exhausted. Then, the person claims to have important new information or evidence that they want to bring to the Home Office’s attention.
The Home Office has to strike a balance here. On the one hand, the new evidence may very well be genuine and significant. As Bingham MR once commented, “it is not hard to imagine cases in which an initial “claim for asylum” might be made on insubstantial, or even bogus, grounds, and be rightly rejected, but in which circumstances would arise or come to light showing a clear and serious threat of a kind recognised by the Convention to the life or freedom of the formerly unsuccessful applicant. A scheme of legal protection which could not accommodate that possibility would in my view be seriously defective.” On the other hand, the government has to guard against abuse and protect public funds by dealing efficiently with unfounded or repeated claims.
The ‘fresh claims’ provisions under paragraph 353 of the Immigration Rules govern the procedure in this situation.
What are ‘further submissions’ and how should they be made?
Paragraph 353 begins by stating as follows:
- When a human rights or protection claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and,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.
‘Further submissions’ are not defined in the Rules, but the Home Office’s policy guidance sets out how they can be made. The process will depend on whether the submissions are based on protection grounds, human rights grounds or both. It may also depend on the individual’s specific circumstances, including whether they are currently in detention or subject to removal action.
Generally speaking, further submissions made on protection grounds must be made in person at one of the Home Office’s specified Service and Support Centres (SSCs). Exceptions can be made in limited circumstances, such as where an applicant is unable to travel, is an unaccompanied child, has an ongoing judicial review or is in detention. Permission must be specifically requested. Otherwise, the applicant must book an appointment by telephone, and should then bring all the relevant further evidence (and any documentation requested) when they attend.
In contrast, further submissions on human rights grounds should be submitted using the Home Office’s online immigration application forms. The correct form to use will depend upon the basis of the application – such as whether it relates to family and private life, or medical grounds.
The decision maker will consider further submissions in conjunction with any previous material to determine whether the application should be granted.
If the further submissions are rejected, the decision maker will then move on to consider whether they amount to a ‘fresh claim’.
What is the significance of a fresh claim?
Protection claims and human rights claims are amongst the few kinds of immigration decisions that are subject to a right of appeal. If your claim is rejected by the Home Office, you have the opportunity to appeal their decision before the First Tier Tribunal.
However, further submissions will only attract the same right of appeal if they amount to a ‘fresh claim’ (arguments to the contrary have been rejected by the Supreme Court). This is to stop applicants making effectively the same claim over and over again, and each time appealing to the Tribunal.
It is therefore in the interests of applicants making further submissions to make clear why the new submission should be considered a fresh claim – otherwise they will be deprived of their right of appeal.
What is considered a fresh claim?
Paragraph 353 continues:
The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.
The Home Office therefore uses a two-part test.
If the material raised in the submissions is no different to what has previously been considered either by the Home Office or by an immigration judge during an appeal, then the submissions will fall at the first limb. The applicant cannot just be making the same argument they have made before in a different or better way.
If the material is new, the second limb concerns its relevance – does it raise issues which would be at least arguable before a judge?
In assessing prospects of success, the applicant’s credibility will be taken into account. The decision maker should not conclude there is no chance of success just because their account was not previously believed, but will assess the credibility of the evidence (new and old) in its totality.
Similarly, the decision maker will also consider why the new evidence was not disclosed earlier. They should not decide that the applicant has no prospect of success just because of late disclosure, but it is certainly advisable to make clear why the submissions could not have been made sooner.
Where might you be able to bring a fresh claim?
As emphasised above, further submissions are not an opportunity to repeat arguments or just to make them in a different way. So in what situations might it be worth making submissions that could amount to a fresh claim? Some instances might include where –
- New evidence supporting your original claim has become available – for example if you have finally received documents you were waiting for, or new objective evidence has published, perhaps by a journalistic source or a human rights organisation;
- There has been a change in circumstances in your home country, such as a change of government or a breakout of violence;
- Your own circumstances has changed – for example changes to your health or relationships with your relatives may have impacted your rights to a family life or private life;
- There are important facts which you did not fully explain to the Home Office previously, perhaps because you were uncomfortable telling the truth (for example, about your sexuality), or because you were forced to tell a particular story (this might be the case for victims of trafficking).
These are just a few examples and there are a wide variety of situations where further submissions might amount to a fresh claim.
Contact our Immigration Barristers
For expert advice and assistance in relation to immigration cases involving protection or human rights claims, contact our Immigration Barristers on 0203 617 9173 or complete our enquiry form below.
