This is the second in a series of posts on asylum and human rights fresh claims.  The first post in the series looked at ‘what is a fresh claim?’, the fresh claim legal test, possible fresh claim outcomes, and the basis on which you might make a fresh claim.

You might submit evidence to be considered as a fresh claim after you are “appeal rights exhausted”.  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 appeal rights are 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 explained in the first post in this series.

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’.

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.

Preparing your fresh claim

1. Read carefully all the documents you have from your asylum/human rights claim.

These should include:

• a copy of the form filled out by the Home Office in your screening interview;
• the transcript and audio recordings of your asylum interview;
• any witness statements and copies of any other evidence submitted to the Home Office and/or courts so far in your case;
• the Reasons for Refusal Letter from the Home Office;
• the first court determination (refusal) of your asylum appeal;
• and any other appeal determinations (court decisions) in your case

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 then go on to 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.

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.

2. Gather your new evidence.

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 Right to Remain 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.

For more suggestions of where to look for evidence, see the country information page on the Right to Remain website, where sources are also listed thematically.

All the sources listed above are all considered to be reliable sources of information, which have a good reputation for being accurate, and the media sources listed are ones that have good world news sections and are interested in human rights. If you are getting evidence from other sources, think about who has written the report or article. If it’s a group that is in opposition to a government, the Home Office and the courts might not consider it to be objective/good evidence.

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.

3. Write a letter to explain the further evidence you are submitting

• Explain that these are your further submissions
• Explain what the new evidence is
• Explain how you obtained the new evidence
• Explain why it it should be believed, and how your claim now amounts to a fresh claim.

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 are addressing 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.

Read our next post for information on how to submit your further submissions/fresh claim.