By Shriya Maini*
(This is a complete guide to the procedure of filing a refugee claim in UK, USA, South Africa and Canada. Read on to learn how to seek asylum or file a refugee claim in these countries.)
- This memorandum describes the procedure of filing a refugee claim in the United Kingdom (“UK”) and then compares it to the modus operandi of three other countries namely United States of America (“USA”), The Republic of South Africa (“South Africa”) and Canada. It discusses at length, the entire procedure of making a claim for asylum, right from when the first application is made by the asylum seeker until the grant or refusal of refugee status by the concerned authorities, in order to facilitate effective comparison between the abovementioned jurisdictions.
- For the purposes of this memorandum, it is essential to differentiate between an “asylum seeker” and a “refugee”. While an asylum seeker refers to a person who has sought asylum in the Country of refuge and for whom a decision on that claim is pending, an individual who has received a positive decision on his or her asylum claim is termed as a refugee.
I. United Kingdom:
a. Procedure of filing a Request for Asylum:
- At the outset, it must be borne in mind that in the UK, the Secretary of State for the Home Office (“Home Secretary”) is responsible for all aspects of immigration and asylum. Within the Home Office, the UK Visas and Immigration Department (“UKVI”) , specifically civil servants appointed at the Asylum Casework Directorate deal with asylum requests made by asylum seekers.
- This section of the memorandum discusses four core steps that must be followed in the UK for the purposes of making a refugee claim, them being: (i) Filing of the First Application for Asylum by the asylum seeker before the UKVI; (ii) Appearance of the asylum seeker before caseworkers for the purposes of Asylum Screening and Asylum Interview; (iii) Duties and rights of asylum seekers awaiting decision of the UKVI; (iv) Right to Counsel and (iv) Decision of the UKVI.
(i) First Application for Asylum before the UKVI:
- In the UK, the very first step to be followed by an asylum seeker is filing of the first application for asylum. The application must be submitted in one of the following ways: (i) to the Immigration Officer of the UKVI at the airport or seaport on first entry/arrival at the border; (ii) if already in the UK, to the Asylum Screening Unit (“ASU”) situated in London (in Croydon) or Liverpool; or (iii) where a person seeking refuge is already detained i.e. picked up by the police or immigration officers of the UKVI, the application may be made from the detention centre.
- All claims must be made as soon as the person seeking asylum arrives at the U.K. border, failing which the latter may be denied welfare support and accommodation. Any delay may harm their asylum claim at a later stage, should their first application be rejected. However, in practice applications for asylum are neither rejected nor excluded from examination on the sole ground that they have not been made as soon as possible. In accordance with Article 31 of the Geneva Convention Relating to the Status of Refugees, 1951 (“Refugee Convention”), States which are party to the Refugee Convention provide in their domestic law that an applicant’s entry without an entry visa or other documentation will not have a negative effect on the asylum seeker’s application. Some States, however, do place time restraints on how many days after entry into their country an asylum seeker may file an application.
- To elucidate further, an asylum seeker may base their first application for asylum in the UK on any of the following legal instruments, listed below:
a. Refugee Convention: The International Law regime governing refugee claims is earmarked by the Refugee Convention. Almost all countries’ national legislations (including the UK, USA, Canada and South Africa that are analyzed in this memorandum) incorporate the basic principles of refugee protection enshrined in the Refugee Convention and accordingly allow for “Convention claims” (i.e. claims based on violation of the Refugee Convention) to be raised for refugee protection. Therefore, the Refugee Convention organically assumes a vital position for deliberation in this memorandum.
To base an asylum claim under Article 1(A)(2) of the Refugee Convention, asylum seekers must show that they have a well-founded fear of persecution due to their race, religion, nationality, political opinion or membership of a particular social group, and are “unable or unwilling to” seek protection from the authorities in their country of origin. Crucially, the definition is a progressive one, so even if an asylum seeker has suffered terrible harm in the past, they will not get asylum if there is no risk of anything happening to them in the future. It is not always necessary to have been persecuted in the past for a future risk to exist – sometimes events that occur after a person’s arrival in the UK can give rise to a future risk of persecution in their own country (for example, due to change of circumstances in the person’s country of origin since they left) and these are called ‘surplace’ claims.
The Refugee Convention also establishes a framework of basic refugee rights and protections; for example, the right to identity papers and travel documents (Articles 27 and 28), access to courts (Article 16) and education and social security (Articles 22 and 24). A cornerstone of the Refugee Convention is the principle of non-refoulement set out in Article 33 which states that no refugee should be returned to a country in which “his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”. However, it is essential to highlight that the Refugee Convention is inapplicable to persons who have committed crimes against peace, war crimes, or crimes against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes.
b. European Convention on Human Rights, 1950 (“ECHR”): It is also possible for an asylum seeker in the UK to claim refugee status on the basis that removing them from the UK would be in breach of their human rights as laid down in the ECHR. This is often referred to as a “human rights claim”. The ECHR contains a number of articles on protected rights upon which an asylum seeker may base their human rights claim. These rights include, inter-alia others, Article 3 (prohibition on torture and inhuman or degrading treatment) and Article 8 (right to respect for family life and private life).
c. Hence, an asylum seeker may choose to (i) base their application for asylum solely upon violation of human rights under the ECHR; or (ii) concomitantly raise a human rights claim under the ECHR alongside an asylum claim under the Refugee Convention or (iii) raise a human rights claim (violation of ECHR) within the application claiming asylum under the Refugee Convention.
d. European Union Asylum Qualification Directive 2004/83/EC issued on 29 April 2004 (“Qualification Directive”): UK is also a party to the Qualification Directive which has been adopted by various European Union (“EU”) Member States as part of the process of establishing a Common European Asylum System. This system offers a “subsidiary protection” to asylum seekers who do not meet the legal definition of a refugee under Article 1(A)(2) of the Refugee Convention but are still in need of international protection across the EU. The Qualification Directive provides subsidiary protection for those facing the following threats if returned to their country: (1) death penalty or execution; (2) torture, inhuman or degrading treatment, or punishment; or (3) threats from an international or internal armed conflict. UK often uses the legal term “humanitarian protection” to comply with the Qualification Directive when asylum seekers claim refuge based on this Directive. Notably, asylum seekers can also be given discretionary leave to remain under this Directive but a temporary permission to remain is unlikely to be more than three years.
e. In fact, it is very interesting to note that in practice and procedure, asylum claims as well as human rights claims are almost always considered in light of the provisions of the Qualification Directive so as to ensure that the common criteria for identifying asylum seekers in need of international protection are applied at all times and that a certain minimum level of benefits are available for those who are granted refugee status in the UK or any other EU Member State. For instance, when an asylum seeker files an asylum claim under the Refugee Convention and not the ECHR, the UKVI officials are bound to accord subsidiary protection to the asylum seeker, as enshrined in the Qualification Directive in order to ensure that upon return, the asylum seeker would not face any threats such as death penalty or execution, torture, inhuman or degrading treatment which are requirements mirrored in the ECHR.
(ii) Asylum Screening and Asylum Interview:
- Upon making the first application for asylum, the asylum seeker goes through two preliminary stages, namely: (i) meeting with an immigration officer (known as “Asylum Screening”) and (ii) an “Asylum Interview”, often conducted by a “caseworker” or “case-owner”. At the “first reporting event” (i.e. first visit of the asylum seeker before the UKVI authorities), asylum seekers are often acquainted with their case-owners who are immigration officers expected to deal with their respective claims from start to finish.
- To elaborate, asylum screening includes an interview conducted by the immigration officer, taking the asylum seeker’s biometric data, health and family information, details of the route of travel, and the broad outline of the reasons for claiming refuge.
- Asylum screening is then followed by an Asylum Interview. The latter is a detailed
substantive interview (much longer than the screening interview) wherein the caseworker/case-owner interviews the asylum seeker in order to assess and evaluate the credibility of the asylum seeker and his claim. Notably, the burden of proof lies on the asylum seeker to prove that he or she meets the definition of a refugee, being encouraged to supply as much supporting evidence as possible. Supporting evidence may include a variety of documents such as passports, travel documents; police registration certificates; identification documents, country reports, non government organization (“NGO”) reports, news articles, affidavits or the in-person testimony of witnesses, birth and marriage certificates or school records for dependant children etc. Asylum seekers may request for an Interpreter to be provided, if need arises to fill the one-stop notice form (form to specify any humanitarian or compassionate compelling grounds to remain in the UK) and statement of evidence form (opportunity for the asylum seeker to put his case in writing), for these forms must be filled in English.
- Upon conclusion of the asylum screening and interview, the National Asylum Allocation Unit (“NAAU”) of the Home Secretary’s office decides which of the following routes the first application would take. Usually (i) unaccompanied asylum seeking children’s claims for asylum are referred to an agency or local authority dealing with safeguarding and promoting the welfare of children; (ii) suited or well-founded asylum claims which are likely to be granted refugee status are diverted via an accelerated procedure called detained fast track (“DFT”) and (iii) clearly unfounded applications wherein an appeal to be successful is highly unlikely or a safe third country procedure/dispersal are sent off to a regional office of the UKVI for further formalities, in course of regular procedure.
- It is crucial to note herein that as per the “Dublin III Regulation” (Regulation No. 604/2013), refugees and migrants are bound to claim asylum in the first country of the EU they arrive in. Such claims for asylum are called “potential safe third country” cases since the Member State responsible to offer asylum would be the state through which the asylum seeker first entered the EU and not the UK. Hence, such claims for asylum made in the UK are forthwith referred to the third country unit of the Home Secretary’s office, which decides whether to issue a certificate initiating a return to a safe third country viz. another EU Member State. In such cases, the claim is not even substantively considered in the UK. Notably, this decision can only be challenged by judicial review by approaching the Upper Tribunal (second level appellate mechanism in the UK for challenging the UKVI’s refusal of grant of asylum, as highlighted in the Appeals section of this memorandum).
(iii) Rights and duties of asylum seekers awaiting the Decision of the UKVI:
- In practice, ‘Reporting Meetings’ often follow the screening procedure wherein an asylum seeker is expected to report to a caseworker regularly. The asylum seeker must inform the authorities if his/her situation changes and usually, asylum seekers are not allowed to work while their asylum claim is being considered. Accordingly, they all rely on state support which ensures that housing is provided, but asylum seekers cannot choose where their houses would be located, and it is often ‘hard to let’ properties which Council tenants do not want to live in. Cash support is available, and is currently set at £36.95 per person, per week, which makes it £5.28 a day for food, sanitation and clothing.
- Asylum seekers may be detained for the duration of their application and appeal under the DFT in Immigration Detention Centers, as described above in this memorandum. However, they are allowed to negotiate their release via an organization called Bail for Immigration Detainees (BID) or hire any other visitors’ groups, who visit people in detention so as to advise them on the course of action for release. As elucidated above, DFT has long been suspended in theory but in procedure and practice, figures most definitely speak otherwise.
- Asylum seekers also have a right to access the notes taken by the authorities during their asylum interview and ask for copies of the interview notes. Besides, they can refuse to sign the recordings and minutes of notes and minutes, should they disagree with what has been written.
(iv) Right to Counsel:
- At the outset, it must be borne in mind that International refugee law remains largely silent on the right of asylum seekers to be granted legal assistance, counsel and representation during a refugee status determination procedure. Article 16 of the Refugee Convention guarantees refugees, in addition to general free access to the courts of law of all Contracting States, “equal treatment” with nationals in matters pertaining to access to the courts, including legal assistance and exemption from cautio judicatum solvi.
- However, with the adoption of European Council Directive 2005/85/EC on Minimum Standards on Procedures in Member States for granting and withdrawing Refugee Status (“Asylum Procedures Directive”), a right to counsel, legal assistance and representation for asylum seekers during the status determination procedure (Article 15 of the Asylum Procedures Directive) has been explicitly established in a supranational legal norm, which also categorically binds the UK. It requires that “certain minimum standards govern asylum claim hearings: asylum-seekers should be given a reasonable time to prepare their case, to communicate with and seek advice from their lawyer or appropriate NGOs, and to obtain whatever background information is necessary in support of their claim; asylum-seekers should be provided with legal assistance throughout the procedure”.
- In addition, guidance on the right to counsel can also be found in the standards set down in (i) European Council Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals which guarantees those subject to a decision relating to return an effective remedy, including the “possibility to obtain legal advice [and] representation”; (ii) UNHCR EXCOM Conclusion No. 8, (iii) Council of Europe recommendations, and (iv) jurisprudence of the European Court of Human Rights.
- Specifically in the UK, as per the Directive, asylum seekers have the right to (i) consult in an effective manner, a legal advisor or other counsel “at their own cost” on matters relating to their asylum applications; and (ii) request for free legal assistance and/or representation “in the event of a negative decision by a determining authority.” The Office of the Immigration Services Commissioner regulated legal advisors are allowed to undertake all aspects of legal advice and representation in the asylum procedure including appeals to the Tribunals (Immigration and Asylum Chamber). This is in stark contrast to other countries of the EU such as Germany, wherein legal advisors (who are primarily staff of welfare organizations) provide advice to asylum seekers but cannot represent them before the Courts. Infact, even in Belgium, Germany, Denmark, Hungary, France, Lithuania, Italy, the Netherlands, Romania, Slovenia, and Norway, legal advisors are not able to act on behalf of asylum seekers or represent them before the administrative authorities or appellate bodies, but are only entitled to provide legal assistance or support.
- To elucidate further, the Legal Services Commission, a non-departmental public body sponsored by the Ministry of Justice currently runs the legal aid scheme in the UK. Eligibility for free legal aid in the UK is based on a “sufficient means” test, as enshrined in Article 15(3) of the Asylum Procedures Directive which provides Member States the discretion to provide in their national legislation that free legal assistance and/or representation is granted “only to those who lack sufficient resources.”
- However, there is no inherent right to legal aid in the UK when appeals are made before the First Tier and Upper Tier Tribunals (discussed in due course of this memorandum). However, the asylum seeker can get legal aid if he argues his case under Article 3 of the ECHR i.e. he will face harm if deported to his home country/country of origin or if it has been recognised by the Home Secretary that he may have been brought to the UK and forced to do things that he didn’t want to do, for instance cases of woman and child trafficking.
(v) Decision of UKVI:
- Though there is no time limit in the UK for the UKVI to decide upon the first asylum application, it is policy to make the decision within 6 months in straightforward cases, and 12 months in other cases. If the official finds that the asylum seeker has a well-founded fear of persecution due to their race, religion, nationality, political opinion or membership of a particular social group as per Article 1 of the Refugee Convention, he or she can grant the asylum seeker the status of a refugee. Individuals granted refugee statuses receive residence permits for themselves as well as one for their dependent relatives.
- Frequently, States provide that where the government denies an asylum application, the asylum seeker is to receive an explanation of the reasons for the denial. Even in the UK, refusals are generally accompanied by reasoned decisions which are normally sent by post, although they may be delivered to the asylum seeker in person when they attend the Home Office reporting centre. Notably, an asylum seeker can get up to 2 years in prison or he/she would have to leave the U.K. if he/she furnishes false information on their application.
- Where applications are certified as clearly unfounded, this may be on an individual basis, but is more often on the basis that the asylum seeker is from a country designated in law as “safe”, such as USA or Canada. In these cases there is no appeal against refusal from inside the UK, and the asylum seeker may be detained forthwith or immediately deported.
b. Administrative Review:
- A reasoned refusal by the Home Secretary’s office may direct asylum seekers to apply for an administrative review within 28 days of getting the decision. This essentially requires the asylum seeker to fill in the administrative review application form sent by the UKVI with the application refusal letter and enter the reasons for refusal that are on the refusal letter, explaining why the asylum seeker thinks an error was made. To clarify, such review proceedings do not consider the merits of a decision, but only whether the decision maker had approached the matter in the correct way, i.e. check for any legal and factual errors. Crucially, there lies no provision for a second review.
- The avenue for review remains open even for deported individuals, who may challenge a deportation order by seeking judicial review before the U.K. High Court. The deported individual however, must seek leave of the court by showing that he/she has an arguable case against their deportation with some prospect of success. In short to succeed, there has to be some irregularity in the UKVI’s authority to granting the said person deportation.
c. Appellate Provisions- First Tier Tribunal and Upper Tribunal:
- Asylum seekers have a right to appeal (from inside and outside the UK) the negative decision of the UKVI. Most often, an asylum seeker cannot be removed unless they have exhausted all of their available remedies. In the UK, there are two appellate level tribunals, namely a First-Tier Tribunal and an Upper Tribunal, wherein first and second appeals may be made respectively. There is a specialist Immigration and Asylum Chamber in each of the tribunals which adjudicates upon such appeals.
- A first appeal is to be made before the First Tier Tribunal (Immigration and Asylum Chamber), an independent judicial body which is part of the unified tribunal structure in the Ministry of Justice. The appeal is suspensive and must be lodged within 14 days of the asylum refusal being sent (if outside the UK, asylum seekers usually have 28 days to file the appeal but the delay can be condoned by the Tribunal). These can be made either by the asylum seeker or by the Home Office of the U.K. The Tribunal’s decisions are called ‘determinations’ and they must be made in writing, besides of course, being reasoned orders.
- Grounds of Appeal: The Tribunal proceedings are broadly adversarial, with the Home Secretary being represented by a Presenting Officer. An appeal may be made if the U.K. Home Office (UKVI) has:
- refused the asylum seeker’s protection claim (either ‘asylum claim’ or ‘humanitarian protection’);
- refused a human rights claim;
- made a decision under the European Economic Area (EEA) Regulations, eg the Home Office has decided to deport you or refused to issue you a residence document; and
- decided to revoke the seeker’s protection status.
- Interestingly, grounds of appeal when challenging deportations are similar to those described in the preceding paragraph, which may range from facing harm if returned to their home country (Article 3), having lived a long time in the UK or having strong family ties in the UK (Article 8) or trafficking. When appealing against deportation on the grounds that the individual to be deported has lived a long time in the UK and/or because he has family in the UK.
- The appellate hearings, being completely judicial in nature are in stark contrast with the administrative or quasi-judicial decisions taken by the UKVI.
- Hearings at the appellate stage are conducted in public but upon request, may be held in private or by video link (for instance, if a public hearing would put the asylum seeker in danger). The applicant may request for a male or female judge if they think there are issues in their appeal that make it appropriate and the tribunal would decide if it can do the same or not. However, hearings at the First Appeal are optional i.e. can be waived upon request of the asylum seeking applicant urging the tribunal to adjudicate the matter based on written submissions only. Interestingly, non-EU nationals are not allowed to return to the UK as a matter of right to attend their appeal or review hearings, post deportation.
- Occasionally, expedite requests may also be made as urgent appeal filings annexing evidence of compelling or compassionate grounds, for instance, letters from a doctor or hospital so as to ensure that the appeal is heard and listed forthwith.
- Additionally, the fees for making an appeal before the First Tier Tribunal costs £80 without a hearing and £140 with a hearing. However, the same could be waived if the applicant receives legal aid, asylum support or is under 18.
- In the U.K., a second appeal may be made to the Immigration and Asylum Chamber of the Upper Tribunal with permission of the First Tier Tribunal, or, if refused, of the Upper Tribunal. However, the appeal can only be made on a point of law. Application for permission to appeal must be made within 14 days of deemed receipt of the First Tier Tribunal decision.
- Appeals from the Upper Tribunal to the U.K. Court of Appeal on a point of law may only be made with permission of the Upper Tribunal or the Court of Appeal. The last and final appeal to the U.K. Supreme Court may only be made on a point of law of public importance, certified by the Court of Appeal or Supreme Court.
- Deportations are often challenged before the First Tier tribunal and Upper Tier Tribunal as being contrary to the UK’s obligations under the Refugee Convention or ECHR or depict that the lower fora’s order was blemished with gross errors in law. From 20th October 2014, there is no automatic right to appeal against deportation. As for a second appeal, there may be a right of appeal against refusal to revoke a deportation order. Where an appeal does lie, the right of appeal will be notified at the same time as the decision to refuse to revoke the order. If a notice of appeal is given within the period allowed, a summary of the facts of the case on the basis of which the decision was taken will be sent to the appropriate appellate authorities, who will notify the appellant of the arrangements for the appeal to be heard.
- Crucially, on 13 October 2015, the Home Secretary won a key legal challenge on the “deport first, appeal later” policy, which removes the right of foreign prisoners to appeal against deportation from within the UK. In R (On the Application Of Kiarie) v The Secretary of State for the Home Department, Lord Justice Richards at the Court of Appeal ruled that it would not be a breach of ECHR for two men convicted of drug offences to be deported before their appeal rights were exhausted. The deported individuals argued that they would not have a fair hearing if they had to appeal from their respective countries of origin, namely Jamaica and Kenya. The policy, which was a manifesto commitment, removed the right of an individual to an appeal in the UK unless they can show there is a “real risk of serious irreversible harm” if they are deported to their country of origin. It is a central part of the government’s commitment to reduce the number of foreign-born offenders who fight against their deportation on human rights grounds, in particular Article 8 of the ECHR – the right to family life.
d. Making further submissions:
- If an asylum seeker has exhausted both the appellate fora, he may be allowed to furnish new or additional reasons as to why he should be allowed to stay in the UK. This is called “making further submissions” and most often, asylum seekers are best advised to seek legal advice prior to making such additional submissions. Interestingly, further submissions can only be usually made in person, unless exceptional circumstances exist, such as medical or age-related issues.
e. If the Claim is granted :
- If the claim of an asylum seeker is allowed on the grounds of the Refugee Convention, either by the UKVI or at appeal, the asylum seeker is accorded the status of a “refugee”, which lasts for 5 years. Thereafter, the UKVI can review this grant if there is good reason, such as change of circumstances in the country of origin. After five years, if it is still unsafe for the person to return to their country of origin, they are usually allowed to apply for a legal status known as Indefinite Leave to Remain (“ILR”) in the UK. If protection is granted on human rights grounds, the applicant usually gets Humanitarian Protection, which is also initially granted for 5 years and then is subject to further reviews.
- In some cases, a more limited form of status called Discretionary Leave (“DL”) is granted. It is initially granted for up to 3 years, after which time the person can apply for an extension if they still cannot be removed. After 6 years they can apply for ILR. Discretionary Leave is usually used in cases involving children under 18 years of age who cannot be returned to their country of origin. It is policy to grant such children DL until they are 17½ years old, even if their asylum claim has been refused.
- Once granted protection in the UK, refugees have the right to work, claim benefits and be re-united with their spouse and children (under 18). Interestingly, a child under the age of 18 who is recognized as a refugee does not have the same right to be joined by their parents or brothers/sisters.
f. Removal or Voluntary Return upon Refusal of Asylum:
- Having exhausted all the appellate provisions, the asylum seeker is refused “refugee status”, only to be removed (“deported”) from the UK under Section 32 of the UK Borders Act 2007. The first step in the deportation process is the issuance of a notice of intention to deport by the Home Secretary’s Office. When deciding whether to issue a notice of intention to deport, the Home Secretary’s Office takes into consideration various factors, namely:
- The age of the person;
- The length of that person’s residence in the UK;
- The strength of that person’s connections in the UK;
- The personal history of the person – this will include their character, conduct and employment record;
- The domestic circumstances of that person;
- The nature of any offences which may have been committed by that person;
- The previous criminal record of that person;
- Any compassionate circumstances;
- Any representations received on the person’s behalf. 
- Before a decision is made on whether to issue a deportation order to that person, the Home Office usually writes to the applicant stating that they are considering issuing a deportation order against them, asking the intended deportee to make certain Representations by a specific deadline. This provides the applicant with an opportunity to argue the decision and provide reasons why they should not be deported such as Human Rights (right to establish a private and family life under Article 8 of the ECHR) or that their removal would be in contravention to the Refugee Convention.
- The Secretary of State then issues a decision on whether the deportation order would be pursued. If the deportation order is pursued, then the individual who is the subject of the order will have a right to appeal the decision or seek a judicial review, as elucidated above in the Appeals and Administrative Review section of this memorandum.
II. United States of America:
- Unlike the UK which has a single procedure of filing refugee claims, irrespective of whether the claim is made from inside the UK or outside, the USA has two starkly distinct procedures of obtaining asylum in the USA, namely “affirmative process” and the “defensive process”. In the affirmative asylum process, individuals who are physically present in USA, regardless of how they got there and regardless of their current immigration status, voluntarily apply for asylum. They do so “affirmatively” by submitting an application to United States Centre for Immigration Services (“USCIS”). In contrast, the defensive asylum process comes into action when asylum seekers, upon referral by an asylum officer are placed in removal proceedings before Immigration Judges in Courts of law for immigration violations (such as forced or undocumented entry into USA).
- The following section of this memorandum discusses both the affirmative and defensive procedure of filing a refugee claim in USA, under the following sub-headings, namely: (a) Procedure of filing a Request before the Asylum Office; (b) Upon denial by the Asylum Office – Referral to the Immigration Court: (c) Right to Counsel; (d) Appeal to the Board of Immigration Appeals; (e) Appeal to U.S. Court of Appeals and U.S. Supreme Court. (f) Grant of Refugee Status or Refusal of claim for asylum.
a. Procedure of filing a Request before the Asylum Office:
- At the outset, this section outlines the details of the procedural steps to be followed while making the first application for asylum, namely: (i) Filing Form I-589; (ii) Appearance of the asylum seeker for the purposes of Asylum Screening and Asylum Interview; (iii) Decision of the Asylum Officer.
(i) Filing Form I-589:
- As the very first step, under the affirmative process, asylum seekers must file Form I-589 Application for Asylum and Withholding of Removal (“asylum application form”) at the USCIS and demonstrate that (i) they are a “refugee” under section 101(a)(42)(A) of the Immigration and Nationality Act, 1996 (“INA”); (ii) they are not barred from seeking asylum for any of the reasons listed under section 208 of the INA, and (iii) the asylum officer has decided to grant them asylum as a matter of discretion. The “bars to filing
a request for asylum” include the 1-year filing deadline, which states that a person who needs asylum should file the application within one year of the last arrival in USA. In the alternative, asylum-seekers must show that they qualify for an exception to the filing deadline and that they filed the application form within a reasonable time given that exception.
- The application for asylum can also include a request for two related alternative forms of relief, which offer fewer benefits, such as withholding of removal from the territory of USA under Section 241(b) (3) of the INA and protection from being returned back to the country of origin due to fear of being tortured, in accordance with the United Nations Convention Against Torture.
- However, this step does not find a mention in the defensive process for the latter only begins with the Asylum officer’s referral of the asylum claim to the Immigration judges.
(ii) Appearance of the asylum seeker for the purposes of Asylum Screening and Asylum Interview:
- Upon filing, asylum screening (including taking biometric details, past history and personal details) and interviews (non adversarial) are conducted by asylum officers at 1 of the 8 asylum offices throughout USA or, if the asylum seeker lives far from one of those offices, at a designated local District Office.
(iii) Decision of the Asylum Officer:
- Often, the asylum seeking applicant receives a decision on his or her application 14 days after the asylum interview and 60 days after filing a complete Form I-589 application with the appropriate Service Center. Additionally, a Supervisory asylum officer often reviews the asylum officer’s decision to determine if it is consistent with the law. Depending on the case, the Supervisory asylum officer may refer the decision to Asylum Division Headquarters staff for review.
- In contrast to the DFT proposed in UK, it is important to note that under the affirmative process in USA, asylum applicants are almost never detained. They are free to live in USA pending the completion of their asylum processing with USCIS and, if found ineligible by USCIS, then with an Immigration Judge.
b. Upon denial by the Asylum Office – Referral to the Immigration Court:
- Under the affirmative asylum process, rejected asylum applications are automatically “referred” to Immigration Judges with the Executive Office for Immigration Review (“EOIR”) by the Asylum Office of USA. The Immigration Court hears testimonies from both sides, reviews evidence anew and makes an independent decision, whether to grant asylum or not. Notably, a referral is not a denial of the applicant’s asylum application.
- Concomitantly, Immigration Judges also hear asylum applications in the context of “defensive” asylum proceedings. That is, applicants request asylum as a defense against removal from USA. Immigration Judges hear such cases in adversarial (court-room-like) proceedings: as a judge that hears the applicant’s claim and also hears any concerns about the validity of the claim raised by the Government, which is represented by an attorney, the Immigration Judge makes a determination of eligibility. If the asylum seeker is not found eligible for asylum, the judge determines whether he/she is eligible for any other forms of relief from removal and, if not, it forthwith orders the asylum seeker to be removed from the USA.
c. Right to Counsel:
- Various provisions of the INA and other immigration-related statutes, as well as their implementing regulations, provide asylum seekers with the statutory right to counsel at their own expense while making a claim for refugee status in USA, to not only solicit but also argue and represent asylum seekers in court hearings and appeals, if any. Section 292 of the INA governs asylum seekers’ right to counsel, and provides that, “in any removal proceedings before an immigration judge and in any appeal proceedings before the Attorney General for any such removal proceedings, the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel … as he shall choose.
- Courts have generally viewed asylum seeker’s statutory right to counsel at their own expense as satisfied if the immigration judge inquires whether the asylum seeker wishes to avail counsel, gives any asylum seeker wishing counsel a reasonable period of time in which to obtain it, and determines that any waivers of this right are knowing and voluntary.
- It is pertinent to note that asylum seekers in the USA, as a category, have generally not been seen as having either constitutional or statutory rights to counsel at the government’s expense in administrative removal proceedings (right to free legal aid). Unlike the UK, in USA indeed to date, there does not appear to be any published decision in which a court has found that the “due process clause” requires the appointment of counsel for an individual asylum seeker i.e. accord him free legal aid. Notably, the Sixth Amendment of the Constitution of USA’s right to appointed counsel for indigent persons applies only in criminal proceedings, not in civil proceedings such as refugee claims and removals. The INA and its implementing regulations also do not purport to provide a right to counsel at the government’s expense for any asylum seeker except those subject to removal proceedings before the Alien Terrorist Removal Court, which has not been used to date. However, in practice, individual asylum seekers could potentially be found to have a right to counsel at the government’s expense based on the international minimum standards of due process and right to fair hearing.
d. Appeal to the Board of Immigration Appeals:
- Decisions of the Immigration Judge can be appealed under both the affirmative and defensive asylum processes before a Board of Immigration Appeals (“BIA”) within 30 calendar days of the Immigration Judge’s oral decision. However, it must be borne in mind that an asylum seeker cannot submit any new evidence at the appellate stage unless it was unavailable to him before. Usually, these proceedings last a year and the BIA may either grant asylum or order that the Immigration Judge hears the case all over again, including re-appreciation of evidence. 
e. Appeal to U.S. Court of Appeals and U.S. Supreme Court:
- In USA, if the BIA denies an asylum appeal, the next possible step under both affirmative and defensive process is to file an appeal with the U.S. Circuit Court of Appeals (a federal court) serving the part of USA where the asylum seeker lives or intends to reside. However, no new evidence can be submitted at this stage as well by the asylum seeker to buttress his case further. This decision may take upto 3 years, after which the last possible avenue of relief is the S. Supreme Court, wherein a writ of certiorari can be filed by the asylum seeker against the decision of the BIA.
f. Grant of Refugee Status or Refusal of claim for asylum:
- At the port of entry, the asylum seeker if granted refugee status, is admitted into the USA and granted employment authorization. After 1 year, a refugee is eligible for adjustment of status to lawful permanent resident. 5 years after admission, a refugee is eligible for naturalization to American citizenship. If rejected, the asylum seeker having exhausted all his avenues to seek refugee status is forthwith deported back to his country of origin by the government of USA.
- The procedure of making a refugee claim in Canada is fairly simple in comparison to the UK and USA. Governed by the Immigration and Refugee Protection Act, 1996 (“IRPA”), it essentially involves a three step process, comprising of the below listed steps, to be followed one after the other: (i) Making a claim for asylum; (ii) Referral to the Immigration and Refugee Board and (iii) Judicial Review by the Federal Court of Canada. The section ends with a discussion on right to counsel in the Canadian scenario.
(i) Making a claim for asylum in Canada:
- Upon first entry by land, sea or air, an asylum seeker can claim refugee status by making an application for asylum (“Basis of Claim” form questioning asylum seekers about their identity, family, documents and travel history and reasons for seeking refuge in Canada) from within Canada to the Canada Border Services Agency (“CBSA”) or Citizenship and Immigration Services, Canada. If an application from outside Canada is being made, it must sponsored by a nominating government institution (often applications are made by Quebec) or a private group such as the United Nations Human Rights Watch.
- However, prior to filing a refugee claim, the asylum seeker must evaluate his or her “eligibility” to make a refugee claim before CBSA. Essentially, an asylum seeker who (i) has ever before made a refugee claim in Canada; or (ii) has been recognized as a refugee in another country and can be returned to that country; or (iii) came to Canada through a designated “safe third country” ; (iv) has been determined to be inadmissible on the basis of security, serious criminality, organized criminality, or violating human or international rights is not eligible to make a refugee claim in Canada. 
(ii) Referral to the Immigration and Refugee Board:
- Upon making an application, if an immigration official of the CBSA prima facie considers the asylum seeker’s application to be eligible for claiming refugee status, then the claim is transferred to an independent administrative tribunal called the Immigration and Refugee Board (“IRB”). The Refugee Protection Division (“RPB”) section of the IRB determines whether the asylum seeker is a genuine refugee and deserving of protection in Canada.
- Before the RPB, the asylum seeker is required to first complete a Personal Information Form (“PIF”) and submit it to the IRB. About 12 months later, the asylum seeker is required to attend a hearing before a member of the IRB. The hearing comprises of the asylum seeker’s testimony and the witness’ testimony, followed by Representations made by the asylum seeker wherein the RPB would question the asylum seeker, requiring him to show evidence that he is a Convention refugee or a person in need of protection. If CBSA is also participating, the member of RPD would give the CBSA’s counsel also an opportunity to comment on the case.
- In rare cases, where the evidence is exceptionally clear, an asylum seeker may be accepted and given the status of a refugee without an oral hearing.
(iii) Refugee status decision:
- If the IRB determines that the asylum seeker is a genuine refugee, the asylum seeker becomes a protected person and can apply for Canadian permanent residence inside Canada. The IRB may classify some asylum seekers as “Convention Refugees” (those who face well-founded fear of persecution on account of race, religion, political opinion, nationality or membership in a particular social group such as sex, colour) and others “in need of protection” (those who faces danger of torture, cruel or inhuman and degrading treatment upon return to their country of origin).
- Upon refusal of grant of asylum status, RPB sends a written Notice of Decisionand an explanation of the reasons as to why was the claim rejected. The Notice of Decision explicitly states whether the asylum seeker can appeal the decision to the Refugee Appeal Division (“RAD”) or file an application for leave and for judicial review with the Federal Court. Most claimants can appeal to the RAD except in the following cases:
- When the asylum seeker is a designated foreign national;
- When the asylum seeker’s claim was withdrawn or abandoned;
- When the RPD’s decision said that the asylum seeker’s claim had no credible basis or was manifestly unfounded.
- If the IRB refuses the asylum seeker, an application for judicial review can be requested from the Federal Court of Canada only on the basis of legal errors and procedural defects. If the asylum seeker does not succeed in the Federal Court, then removal from Canada becomes probable.
- Before removal, the asylum seeker can ask for a Pre-Removal Risk Assessment (“PRRA”). The same grounds for protection are assessed as in a refugee claim, but the decision is made by a Canada immigration official instead of the IRB. In cases that have already been considered by the IRB, only changes in circumstances that have occurred since the IRB decision will be taken into account. In some instances, even asylum seekers who are ineligible to make a refugee claim are entitled to a PRRA.
(iv) Right to Counsel:
- Though Canada offers a qualified right to counsel for the asylum seekers filing a claim for refugee status, it has no explicit statute providing free legal aid. This is primarily because refugee claimants need some form of representation during the RPD hearing which is court-like and legalistic (despite attempts to make it informal). Besides, the definition of a refugee is in itself complicated and is the subject of extensive judicial interpretation, which might also cause confusion in asylum seekers’ minds as to the determination of their eligibility to qualify as refugees. Additionally, claimants can be questioned intensively by RPOs and can also be cross-examined by CBSA wherein legal assistance could be of much use.
- However, the Federal Court of Canada has clearly recognised that a right to counsel is not absolute at RPD hearings.
- When self-representation is not by choice and counsel would have made a difference in the refugee claimant’s hearing at the RPD, the Federal Court has shown that it is ready to intervene. However, in another recent case the Federal Court has also shown that it will not automatically believe assertions by refugee claimants that they have been denied the right to legal representation. Indeed, Justice Zinn in Lukacs established that a claimant’s allegations about being denied the right to have a representative were simply false. While the jurisprudence allows for asylum seekers to voluntarily choose to be unrepresented, it is necessary to clarify how situations in which self-representation is not by choice are to be treated. Indeed, determining whether counsel would have made a difference is a difficult task that may require more guidance for decision-makers.
IV. The Republic of South Africa:
- The Refugees Act, No 130 of 1998 (“Refugees Act, 1998”) which is the governing domestic law in South Africa says that South Africa cannot refuse to allow a foreigner into the country or force them to return to their country of origin if in their own country: they would be persecuted because of their race, religion, nationality, political opinion because they belong to a certain social group for example because of sexual orientation. their lives would be in danger because of a war or serious disruption of public order.
- It is interesting to note that of the four jurisdictions discussed in this memorandum, South Africa is the only country to legally recognize the system of refugee permits, in effect granting legal status to the asylum seekers prior to grant of their “refugee status” in Africa. Besides, a refugee permit also ensures that the asylum seekers are fully accorded all socio-economic, cultural and political rights in South Africa, akin nationals, which is described at length in the next two sections of this memorandum. This is one of the main reasons why South Africa is one of the most preferred countries for refugees when it comes to seeking asylum and claiming a legal status.
- I now discuss the procedure of filing a refugee claim in South Africa in the following section, which comprises of the following steps: (i) Obtaining an Section 23 Permit; (ii) Application for Asylum and first interview – Obtaining a Section 22 permit; (iii) Second interview; (iv) Refugee Enabling Documents; (v) Appeal and Review Process, and (vi) upon successful claim, certification.
(i) Obtaining a Section 23 permit:
- The first step that an asylum seeker stepping into South Africa must take is obtaining an asylum transit permit (“section 23 permit”), under section 23 of the Immigration Act 13 of 2002, an asylum seeker who enters South Africa through a port of entry (a land border post, airport or harbor) and claims to be an asylum seeker, is required to apply for a section 23 Permit which is a non – renewable refugee permit granted by the immigration officer at the border. The latter is valid for a period of 14 days and is solely for the purposes of authorizing the asylum seeker to report to the nearest RRO in order to apply for asylum. Notably, The Immigration Amendment Act 19 of 2004, which came into force on July 1, 2005, provides that a person automatically becomes an “illegal foreigner” (and therefore subject to detention and deportation) if the temporary document – namely the section 23 permit expires before the bearer is able to appear before a RRO.
(ii) Application for Asylum and first interview – Obtaining a Section 22 permit:
- Within the next 14 days, in order to make a formal application for asylum, an asylum seeker is required to lodge a claim application at a designated RRO in person, furnishing the following documents: (i) Section 23 permit; (ii) any proof of identification from the country of origin (iii) A travel document if in possession of one.
- Based on these, an initial admissibility hearing (“first interview”) is conducted by the Reception officials (“RROF”), which includes: (i) taking applicant’s fingerprints taken in the prescribed manner; (ii) securing an interpreter (if necessary ); (iii) Refugee Reception Officer holding a First interview; (iv) capturing applicant’s data and image in the refugee system and (v) printing, signing and stamping an Asylum Seeker’s permit (“section 22 permit”) prior to issuing it to the Asylum Seeker.
- Under section 22 of the Immigration Act 13 of 2002, a permit which is valid for a period of six months legalizes the asylum seeker stay in the Republic of South Africa temporarily pending a final decision on his application. The permit can be extended by an RROF for a further six months while the process of status determination is in progress. The holder of a section 22 permit has the right to work and study in South Africa and is protected against deportation to his country of origin.
(iii) Second interview:
- Before the Section 22 permit expires, an asylum seeker must report to an RROF for a second interview (quasi-judicial in nature) which is conducted by a Refugee Status Determination Officer (“RSDO”). The RSDO is bound to proceed with a fair adjudication of the application, making a decision on claims for asylum applications and providing reasoned decisions. The RSDO must on conclusion of the status determination hearing either grant asylum; or reject the application as manifestly unfounded, abusive or fraudulent; or refer any questions of law to the Standing Committee for Refugee Affairs (“SCRA”).
- When granted asylum (written recognition of refugee status), a refugee is generally issued with a “section 24 permit”, which allows such person to remain for an initial period of 2 years in South Africa, and it is renewable upon expiration of its validity after the review process by an RSDO, provided the refugee requests in writing for the requesting the extension of his/her refugee status.
- Notably, a refugee under the Refugees Act, 1998 is also allowed to work and study in South Africa whilst the permit is valid.
(iv) Refugee Enabling Documents:
- To be a registered refugee in South Africa, a refugee must then apply for a refugee ID at any RRO within 15 days in the prescribed manner. Thereafter, a refugee can apply for United Nations Convention Travel Document at any RRO in the prescribed manner.
(v) Appeal and Review Process:
- In case of rejection, an asylum seeker or refugee who believes that he has a well-founded fear of persecution but whose claim has been rejected, may decide to appeal against the rejection decision of the RSDO to the Refugee Appeal Board (“RAB”) within 30 days after the decision has been handed over to them. The RAB, an independent judicial body responsible for considering and deciding appeals on decisions made by RSDOs conducts hearings during which the appellant who is entitled to a fair hearing has the right to be heard and to present his case fully.
- It must be kept in mind that concomitantly, the SCRA also reviews or confirms or sets aside (and even monitors in general) the decisions taken by the RSDO and refers cases back to RSDO for determination within 14 days.
(vi) Right to Counsel:
- A legal representative may assist in both the administrative appeals filed before the RAB and judicial review processes conducted by the SCRA but the Refugees Act, 1998 does not provide for any right to counsel, free legal assistance or aid to asylum seeking applicants. However, like other jurisdictions, in practice, asylum seekers are allowed to bring their legal counsels or representatives, at their own costs to assist them at asylum interviews or court and appeal hearings.
- However, it is noteworthy that service providers have often expressed concerns before United Nations Human Rights Watch that although many rejected asylum seekers do exercise their right to appeal, majority of them do not have access to legal representation or assistance during the process, largely because they are unaware of their right to counsel, cannot afford it, or do not know how or where to find pro bono or low-cost legal assistance.
(vii) Upon successful claim for asylum, Certification:
- Upon successful grant of asylum, as the last step, in accordance with section 27 of the of the Immigration Act 13 of 2002, the refugee is issued with “Certification” which enables him to apply at any Home Affairs office in South Africa for an “Immigration Permit” or “Permanent Residence”. To be eligible for the same however, the asylum seeker must have (i) 5 full years continuous residence in the Republic of South Africa as a formally recognized refugee not as an asylum seeker; (ii) cogent and valid reasons for applying for the certification. The application will be referred to the SCRA which is the body established to certify or not if the applicant will remain a refugee indefinitely. However, in case of refusal of grant of refugee status, the individual is forthwith deported to him country of origin.
* (Shriya is a practicing advocate at the Supreme Court of India, the Delhi High Court and district courts at New Delhi. She is a graduate of Gujarat National Law University, India and University of Oxford. At Oxford, she completed her Bachelor of Civil Law programme on a full scholarship and obtained a Master’s in Law majoring in International Crime. A recipient of the Oxford Global Justice Award 2015 for Public International Law, she is currently assisting the President of the International Residual Mechanism for the Criminal Tribunals (MICT).)