Further submissions/evidence can be given to the Home Office at any point after an asylum claim or human rights application is refused, but a fresh claim can only be made when you are "appeal rights exhausted".
You or your lawyer give the Home Office the further submissions (new evidence/documentation) and the Home Office decides if it’s a fresh claim, using the legal test below.
Although the evidence you submit is not technically a "fresh claim" unless the Home Office says it is, people tend to use the term more widely than this. For example, gathering evidence to be submitted to be considered as a fresh claim is more easily phrased "preparing a fresh claim".
The basis of a fresh claim might be new evidence about the original reason you claimed asylum; or it might be that your situation has changed since you claimed asylum and had an appeal heard and dismissed; the situation in your country may have changed; or subsequent case law (other people's cases) might have changed the way cases are dealt with or decided.
The evidence you submit to be considered as a fresh claim might be emphasising a point already made, or providing a new source of evidence for a fact that has previously been disputed. The evidence may be on an entirely new matter that hasn't been raised with the Home Office/courts before. To be considered as a fresh claim your new evidence must include new and relevant information.
Poor quality submissions to be considered as fresh claim are very likely to be rejected, and this can put you in a worse position than before. Read this page to make sure you put in the best evidence possible, but also read the rest of the Toolkit to decide if a fresh claim is the best option for you. There may be other routes to securing the right to remain that are more likely to succeed, and therefore you should focus on them, not preparing a fresh claim.
When you submit evidence to be considered as a fresh asylum or human rights claim, the Home Office will use the following legal test from the immigration rules, to decide whether they will consider it a "fresh claim":
353. When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and,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 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 key points are:
1) “significantly different from the material that has previously been considered”.
If it’s material that hasn’t been considered before, why hasn’t it been considered? If you’ve had access to the evidence all along and haven’t submitted it without a good reason, the Home Office could use that a reason to say it's not a fresh claim. If you've only just managed to get the evidence, you need to explain why you couldn't get it before. Remember you also need to explain how you got the evidence, especially if it's documentary evidence from your country, such as a birth certificate, arrest warrant or proof of political activity.
A fresh claim is not just arguing your case in a better way – there has to be evidence that is new to back up your arguments. "New" in this context doesn't necessarily mean it's just been created or it contains information that the Home Office or courts have never heard before, just that it hasn't been seen by the Home Office or courts in relation to your case.
2) “taken together with previously considered material”.
The Home Office will consider your further submissions alongside the evidence and statements you have submitted earlier in your case (and will use negative credibility findings - a decision that you weren't telling the truth - against you).
Your starting point for preparing a fresh claim should be, "what did the court say when my appeal was dismissed?" If you did not have an appeal, your starting point will be your Reasons for Refusal Letter from the Home Office, and there is likely to be a lot of negative findings to counter in that!
If further submissions are all based on your evidence (with no objective evidence), and the Home Office/courts have found your testimony or evidence you have submitted to be incredible, this could be a reason for the Home Office to say your submissions do not meet the fresh claim test.
You may see reference, particularly in Home Office letters rejecting a fresh claim, to a case called "Devaseelan", which established the principle that a judge's starting point should be the previous judge's determination. This is relevant to fresh claims: the Home Office, when considering your new evidence, will be looking at whether an immigration judge would agree with their decision that it is not a fresh claim (see below).
Previous findings of incredibility (not being believed) are not set in stone, however. For example, if the Home Office have decided that a document you submitted in your original asylum claim is not genuine, this is not necessarily fatal to your whole case. Your case and the evidence has to be considered "in the round" for assessing potential risk if you are removed.
Additionally, a fresh claim is an opportunity to reverse negative credibility findings. Often in asylum cases, not being believed on one issue can lead to the Home Office and the courts not believing you on other issues. If, through the evidence submitted for a fresh claim, you can prove you are credible on one issue, your entire case may be treated more positively.
3) “a realistic prospect of success”
You may have new evidence, but is it relevant to your situation? Is it material (central) to your case and the grounds on which you are seeking asylum or the right to remain based on a human rights argument?
For example, there may have been a big political change in your home country, but if your claim is based on your sexuality, and the political change can’t be seen to impact on that, it won’t be considered a fresh claim.
The credibility issues mentioned above are a factor here. For example, you may have new evidence about the persecution of a subclan in Somalia. If the Home Office and courts do not believe you are a member of that subclan, however, that evidence is unlikely to give you a realistic prospect of success. You would need to provide evidence showing that the Home Office and the courts were wrong to doubt your clan identity.
Your submissions for a fresh claim may include good evidence from reputable sources about human rights abuses and persecution, and the Home Office/the courts may not dispute that this evidence is true. The problem can be that the Home Office does not believe these problems or events mean that you are at risk of persecution.
Once you have submitted your new evidence to be considered as a fresh claim, the Home Office will consider your evidence, based on the legal test above. One of the following things will then happen (they are listed from most positive first, to least positive. The most positive outcome is also the least common outcome, and the least positive is the most common):
1) The Home Office decides that your evidence meets the fresh claim criteria and that the new evidence shows you are in need of protection/meet human rights claim rules you are granted refugee status; humanitarian protection; or other leave based on your human rights claim.
2) The Home Office decides that your evidence meets the fresh claim criteria, they have considered your new claim, and have refused it: they have decided you are not in need of protection or leave to remain based on a human rights claim. If this happens, you will be given the right to appeal the refusal of your claim. This is a relatively positive outcome, as the court/Tribunal is more likely to look favourably on your evidence than the Home Office.
This outcome is what the phrase "notwithstanding its rejection" refers to in point (ii) of the fresh claim test above. The Home Office decision-makers should be looking at whether the evidence submitted creates a "realistic prospect of success" first and therefore meets the fresh claim test even if they have decided the claim itself will not lead to a grant of protection/status. It is this realistic prospect of success that generates the appeal right of the refusal.
Before making decisions 1 or 2, the Home Office may decide they need to interview you again.
Alternatively, the Home Office will just make a decision based on the evidence you have submitted and write to you to tell you they have granted you leave to remain, or that you did meet the fresh claim test but they have refused your new claim.
3) The Home Office decides that your new evidence does not meet the fresh claim legal test. In these circumstances, you are not given the right of appeal.
Your options may include exploring other legal options to regularising your immigration status; preparing a further, better fresh claim, or possibly a judicial review of the Home Office decision that your evidence doesn't meet the legal test. Judicial reviews are very hard to do without legal representation.
This is a guide to the kinds of situations that commonly mean people are in a position to make a fresh claim, not an exhaustive list.
If you have a lawyer, they will be putting the fresh claim together and writing the legal arguments that accompany the evidence. However, they are likely to ask you to go away and gather evidence to submit. If you don't have a lawyer, you will need to prepare the fresh claim yourself. This is an area where support groups can be very helpful - see the ACTION SECTION below.
These should include:
The judgment from your asylum appeal, when your appeal was dismissed, is particularly important as this should be the starting point of preparing your fresh claim.
If you do not have one or more of these documents, you can either ask the lawyer that was handling your case at that stage (if you had one), or you can request that the Home Office send you a copy of your file. This is called a subject access request and you should receive a response within 40 days. You have to pay a fee of £10. You can read more about subject access requests on the Home Office website.
Read the documents carefully.
Look at the parts of your story/claim that have been doubted or disbelieved. Can you find new evidence to back your story up, or to challenge a statement of the Home Office or the courts?
Think about what the key points of the refusal/appeal dismissal are. For example, there is no point spending a lot of time finding evidence for one part of your story that is disbelieved, if the Home Office/courts say something like "Even if that were true, you would not be at risk because ...”. Or, if the court accepts that your home region is not safe for you but say that you could internally relocate somewhere else in the country. Do you really need to provide more evidence that your home area isn't safe? No, unless that finding could now be challenged because of a change in the situation at home or if Home Office guidance or subsequent case law says it's safe. Instead, the focus of your fresh claim would likely to be proving that you couldn't internally relocate.
What is the crucial area of dispute? Figure out what is the most important part of your story (what is "material" to your case) that demonstrates you need protection/human rights status, but that is not accepted by the Home Office/court.
Remember your starting point is the judge's decision in your appeal refusal. You are arguing that, with this new evidence, they would make a different decision.
The evidence you need will depend on the basis of your fresh claim.
If your fresh claim is based on your new circumstances giving rise to a human rights claim, read Article 8 and Rights of the Child sections of the Toolkit for ideas of who to ask for supporting statements and other evidence.
Remember that in an asylum fresh claim, you need to prove that you, individually and specifically, are at risk. It is not enough to prove that there is a risk of persecution/human rights abuses in your country in general.
You may need to look for "objective evidence" - general information about the situation in your country, from reliable sources such as human rights organisations or trusted media sources; or an expert statement on your country or situation. This is especially important if your credibility has been questioned in your original asylum case by the Home Office and the courts.
If you are using recent case law as a basis of a fresh claim, you may find it helpful to read our tutorial on 'Understanding Case Law', which has a specific section on country guidance cases.
Look back at the information about the fresh claims legal test, and the possible basis for a fresh claim, and think about how to explain that your further evidence constitutes a fresh claim, and why it shows that you need protection/the right to stay in the UK.
There is a Further Submissions form on the Home Office website but you do not have to use it.
You may find the form helpful for structuring your arguments, and making sure you address the fresh claim criteria. Be aware that this is a Home Office form which begins with information to persuade you to return to your country of origin. Note - the form refers to "changes in your country of claim". This, confusingly, means your country of origin/residence that you are saying you cannot return to, not the country in which you have claimed asylum (the UK).
Make a copy of the letter or form, and the evidence you are submitting, for your own records.
In most cases, you have to submit further submissions for a fresh claim in person. If you cannot attend in person, for example because you are in detention or if you are seriously ill or have a serious disability, speak to the Home Office to try and arrange an alternative.
See below for the procedure for submitting your further submissions.
Make sure you get a receipt showing the date you handed in your further submissions.
Preparing fresh claims are an area where you might be doing a lot or all of the work yourself, if you don't have a lawyer. It's an area where friends/supporters can help out a lot, for example:
In January 2015, the Home Office announced that anyone wishing to submit further submissions will be required to make an appointment to do so, in person, at the Further Submissions Unit (FSU) in Liverpool.
To make an appointment, you need to telephone the Further Submissions Unit on 0151 213 2411. The Home Office states that it will aim to make appointments within 10 working days of the initial telephone contact.
Your further submissions/fresh claim appointment will be held at the Further Submissions Unit, The Capital Building, 6 Union Street, Liverpool L3 9AF. Do not turn up without making an appointment by telephone first.
The Home Office's internal guidance on further submissions states that you should take the following with you to your appointment:
There have been incidents of people being detained when they go to submit their further submissions. It is not yet known how common this is, or if this is part of a deliberate Home Office strategy. In some of these cases, the person has been held at the Further Submissions Unit while their further submissions were looked at and rejected, and then they have been taken to a detention centre.
There are exceptions to having to submit your fresh claim in person:
The immigration rules say that "An applicant who has made further submissions [to be considered as a fresh claim] shall not be removed before the Secretary of State has considered the submissions under paragraph 353 [the fresh claim legal test] or otherwise."
But submitting further evidence does not mean you are safe. The Home Office may issue the letter saying your further submissions are not considered to be a fresh claim at the same time as detaining you and/or informing you they intend to remove you. They may also attempt removal if you cannot prove you have submitted a fresh claim – so make sure you have evidence of receipt by the Home Office.
If you have already been told you are going to be removed, and then you submit further evidence, the Home Office will typically consider and refuse the further evidence very quickly (as not being a fresh claim) and say that they still intend to remove you.