Powers to Remove ‘Cleary Unfounded’ Asylum Claimants Quickly not being Fully Utilised

Removals of applicants whose asylum claims were certified as ‘clearly unfounded’ were happening quicker than others. However, the Home Office was not using these powers to their full extent. These were the key findings in the Chief Inspector of Borders and Immigration’s report on the Non-Suspensive Appeals process for ‘clearly unfounded’ asylum and Human Rights claims.

Since 2003, the Home Office has had the power to certify asylum and human rights claims that are without substance as ‘clearly unfounded’. The objective was to deter people making unfounded asylum and / or Human Rights claims by withdrawing the right to appeal whilst they remained in the UK. This is referred to as a Non-Suspensive Appeal (NSA) because an appeal against refusal can only be brought after the person has left the UK.

The Chief Inspector was pleased to find that:

• where claims had been certified and the applicants removed, this occurred more quickly than in cases where claims were not certified;

• the number of people who had been removed in certified cases had increased in each of the financial years from 2010 to;.

• both staff and managers were aware of the potential significant consequences for applicants if their claims were incorrectly certified and removed as a consequence;

• the NSA Oversight Team was widely praised for the quality of the training and technical support it provided to decision makers on cases;

• Individual appeal outcomes were being reviewed by staff. There had been only one allowed appeal since 2007;

• all new decision makers were being trained in NSA powers and there were plans to train existing decision makers.

However, the Chief Inspector also found that:

• in 40% of the cases sampled in which the Home Office refused the application from a person who was entitled to reside in a designated state without certifying it, he could find no evidence that the Home Office had considered certification before serving its decision;

• the Home Office may also certify claims from applicants who do not come from a designated state, when satisfied that the claim is clearly unfounded. However, we consider that this power was not being used as often as it could have been;

• decisions relating to applicants who are entitled to reside in a designated state, as well as decisions to certify claims on a case by case basis, must be approved by an accredited ‘Second Pair of Eyes’ (SPOE). However, in 7% of these cases this had not happened;

• there was a lack of objective standards against which prospective SPOEs could be assessed;

• there was also no formal process through which the Home Office reaccredited staff to ensure that their continued to possess the necessary skills and knowledge to perform their role after their initial accreditation;

• there was a lack of a consistent understanding of the role and remit of the NSA Oversight Team;

• eight out of 22 people who had had their claims refused and certified by the Home Office and had been placed on reporting restrictions, were not reporting as required, but had not been flagged as absconders. This information could be used to identify that a person had failed to comply with their reporting restrictions if they were to come to the attention of either the Home Office or police in the future;

• the Home Office was unable to supply us with reliable data to show the number and outcome of Judicial Reviews.

The Chief Inspector of Borders and Immigration, John Vine CBE QPM, said:

“Removing an in-country right of appeal is a significant step. Incorrect use of the certification power can potentially result in people being sent back to countries where they face ill treatment. Conversely, a failure to certify an unfounded asylum claim may delay removal and result in unnecessary costs to the taxpayer.

I found that staff and managers were alive to the potential risks of certifying claims incorrectly. Where applicants were removed, unsurprisingly, this occurred more quickly in cases that had been certified. This underlines the importance of using the power fully.

However, I found that opportunities to make greater use of certification were being missed. This is a concern given the statutory obligation on the Secretary of State to certify such claims unless they are not clearly unfounded.”

The Chief Inspector made seven recommendations for improvement to the Home Office. These included making full use of the certification power, urgently capturing and analysing data on Judicial Reviews and taking appropriate action against individuals who have failed to report to authorities.

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