Asylum Process Guidance For HO Caseworker As On 12:02:2012 Part 3 of 3

HOME OFFICE FULL EQUALITY IMPACT ASSESSMENT TEMPLATE
Directorate Unit Date
Immigration Group Permanent migration programme 05 July 2010
Name of Policy/Guidance/Operational activity Reviewing refugee leave/Settlement Protection What are the aims, objectives & projected outcomes? From 30 August 2005 refugees and those awarded Humanitarian Protection were granted five years limited leave to remain. The objective of that change in approach was as follows: o That there should be a clear approach to those obtaining leave under the Immigration Rules on how long they have to be here before they become eligible for permanent settlement. For those in a category potentially leading to settlement, that period will normally be five years for those granted leave under the Rules. o That we should provide refuge while people need it, but that if conditions in their country get better it is reasonable to expect them to return when they have spent only a relatively short period in the UK. This policy was in line with the 1951 Geneva Convention which accords protection to refugees only for as long as they require it. Humanitarian Protection (HP) status was brought into line with refugee leave. As a result beneficiaries of HP received a block of five years leave instead of three as previously. In establishing processes to now review these cases, we aim to: design processes which will deliver effective caseworking of those cases deemed to fall in scope of the Settlement Protection project; and ensure that implementation of these processes will be efficient, timely and to sufficient quality.
This contributes to wider UKBA Strategic Objectives 1 and 3: Objective 1: We will protect our border and our national interests; Objective 3: We will implement fast and fair decisions.
Home Office EIA Template.
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ia reviewing refugee settlement
1 SCOPE OF THE EIA

1.1 Scope of the EIA work The EIA will cover all equality strands and human rights. Assessment will be made in relation to any issues raised in each of these strands to evidence mitigating action, areas for positive equality impacts or any gaps and action planning required in order to fully address areas for concern. The Permanent Migration Programme Communications Team identified external/internal partners and interested parties by:

Using information from the programme matrix (collated by consulting with UKBA partner managers; senior managers and partnership groups) Holding workshops with key external/internal partners to agree communications approach and key recipients to be sent briefing material.
Key stakeholders in relation to settlement protection are:

Refugees and those granted Humanitarian Protection after 30 August 2005 NASF (National Asylum Stakeholder Forum), in particular the Employability Forum - See Annex C for membership SASF (Scottish Asylum Stakeholder Forum) NMG (National Migration Group) CSG (Corporate Stakeholder Group)
They have been involved through a variety of forms including engagement, deciding together, consultation and information. Issues and feedback in relation to equality strands from minutes meeting notes and action plans (as well as any other sources) will be fed in to the EIA and analysed. Consultation and feedback from NASF meetings will be included. These meetings have taken place on the following dates: 26 November 2009, 26 January 2010, 30 March 2010, 25 May 2010 and 29 July 2010. Dedicated settlement protection workshops were held on 18 August 2009, 25 February 2010 and 20 July 2010. A working group for settlement protection has been established and this includes representation from Asylum Policy colleagues, New Asylum Model, Refugee Integration Policy, Criminality Policy, Asylum Strategy, Complex Advice team and Permanent Migration Programme design team and benefits and change management team. Other internal stakeholders include: Policy, process, operational and communications teams. Internal stakeholders including settlement case work management, senior case workers, caseworkers and support teams will be consulted via a series of workshops and communications to assess the impact of the policy change and any relating to the equality strands will be captured by the EIA. Regional directors have been communicated to on settlement protection in February and July 2010. The EIA has been compiled jointly by policy, process, operational and communications teams.
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Continuing consultation will ensure that guidance and processes are aligned and equality impacts understood and addressed. Data will be collected from a number of sources to inform the EIA including feedback from corporate partner engagement, programme and project boards, internal meetings and consultation. The EIA will be published alongside new guidance and will be monitored and reviewed on a regular basis.
1.2 Will there be a procurement exercise? There is no procurement requirement for settlement protection.
2 COLLECTING DATA
2.1 What relevant quantitative and qualitative data do you have? This may include national research, surveys or reports, or research done by colleagues in similar areas of work. Please list any evidence in the boxes below (complaints, satisfaction surveys, focus groups, questionnaires, meetings, email, research interviews etc) of communities or groups having different needs, experiences or attitudes in relation to this policy/guidance/operational area. The policy on settlement protection affects those granted refugee status and humanitarian protection and as such reflects representation of equality strands within current asylum case working. Therefore, the make up of the group affected by this process is pre-determined by asylum intake and decision-making processes including decisions of the First Tier Tribunal (Immigration and Asylum Chamber). All cases Everyone who was granted refugee status or Humanitarian Protection after 30 August 2005 will be required to apply in the same way and will be treated in the same way regardless of race, nationality, religion or religious belief, disability, gender, sexual orientation or gender identity. With the exception of a possible decision to trigger an active review of cases based on a significant and non-temporary change in country situation. To ensure any such review is conducted fairly and transparently, the UNHCR would be consulted and the decision to conduct a review of these cases would be announced to Parliament. Consideration should be given to whether the Agency intends to translate information and guidance.
Race
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Religion/ belief & non belief
This policy and process change is unlikely to have a particular affect on religion or belief and non-religion and no additional research has been carried out. This policy and process change is unlikely to have a particular affect on disability and no additional research has been carried out. There is a concern around messaging and that women in some minority groups may be more difficult to reach and effectively engage than others. This policy and process change is unlikely to have a particular affect on gender identity and no additional research has been carried out. This policy and process change is unlikely to have a particular affect on sexual orientation and no additional research has been carried out. Some applicants for settlement protection will have been under 18 and dependant on a main applicants claim for asylum at the time they were originally granted leave. Consideration must be given to this group, now over 18 and how they will apply. Consideration must also be given to UK-born dependants since the original grant of leave, how they will apply and ensure that they are not discriminated against or disproportionately disadvantaged by the proposals.
Disability
Gender
Gender Identity
Sexual Orientation
Age
Welfare of Children
[UKBA ONLY]
Consideration must be given to UK-born dependants since the original grant of leave, how they will apply and ensure that they are not discriminated against or disproportionately disadvantaged by the proposals.
Socioeconomic
Consultation raised concerns in relation to those who may apply out of time and their access to work and benefits.
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All asylum and human rights claims are carefully considered on their individual merits in accordance with the 1951 United Nations Convention Relating to the Status of Refugees, European Union Law and the European Convention on Human Rights (ECHR). Human Rights Rights to representation - NASF asked the Agency to address concerns about the impact on legal aid resources if cases are reviewed substantively however it is not expected that there will be a need to review most cases substantively.
2.2 What are the overall trends/patterns in this data? The policy on settlement protection affects those granted refugee status and Humanitarian Protection and as such reflects representation of equality strands within current asylum case working. Therefore, the make up of the group affected by this process is pre-determined by asylum intake and decision-making processes including decisions of the First Tier Tribunal (Immigration and Asylum Chamber). Nationality groups affected by this policy and process are predetermined by the asylum decision-making policy and process in place at the time of application. All applications will be sent to a single national caseworking team so location is not a discriminatory effect.
2.3 Please list the specific equality issues and data gaps that may need to be addressed through consultation and/or further research? Equality issues in the socio-economic strand will be addressed through further research and analysis. The project team will monitor application rates and identify trends and any regional variations. Trends may be identified that can be addressed through alternative communication methods in order to encourage applications. An initial contact letter will be sent out by UKBA to affected migrants before their leave expires to remind them to apply for settlement protection. These will be sent out to individuals for whom UKBA have a last known address that is not a National Asylum Support Service (NASS) address. Communication methods such as this initial contact letter will be incorporated in to the EIA action plan to ensure that its effectiveness is monitored and that it is having the effect of encouraging applications from affected migrants. At the NASF meeting of 30 March 2010 there was discussion around having local events across the regions to provide advice to people on settlement protection. It was suggested that local information events across regions could provide advice to affected migrants on settlement protection. In the five years since limited leave was granted to potential settlement protection applicants it is likely that many will have moved address and region. It may be that certain socio economic groups will have limited access to information in relation to extending their leave and may be adversely affected as a result.
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Rights to representation- NASF asked the Agency to address concerns about the impact on legal aid resources if cases are reviewed substantively however it is not expected that there will be a need to review most cases substantively.
3 INVOLVING AND CONSULTING STAKEHOLDERS

In this section, describe the data you have gathered through stakeholder involvement and engagement. 3.1 Internal consultation and Involvement: e.g. with Other Government Departments, Staff (including support groups), Agencies & NDPBs The permanent migration programme board meets monthly and has membership representing different business areas in UKBA. This has been utilised in order to fully capture any equality impacts as well as the delivery board where settlement protection has been an agenda item. The meeting of 25 May 2010 was dedicated to settlement protection - risks and issues were discussed, the current version of the operating model was agreed and the approach to contacting potential applicants regarding eligibility to apply was reviewed. Consultation has taken place to consider the impact of this policy on other public policies and services. The illegal working team within UKBA have been engaged to ensure that those applying for settlement are not deprived rights to work (until such time as they receive a negative decision on their case). This ensures that equality of opportunity is protected for individuals affected by settlement protection policy and related guidance. Guidance relating to settlement protection and to illegal working has been developed/updated in order to reflect changes and ensure that staff and employers have clear instructions for working with these cases. Current settlement staff have been consulted including managers, data processing team, senior case workers as well as staff in nationality Managed Migration Support Team (MMST) who may be impacted. No specific equality concerns have been raised. Staff will continue to be engaged and the EIA updated if necessary. A training strategy is yet to be agreed however equality strands will be taken in to full consideration as part of this. It was noted that staff working patterns vary and that some work term time and this should be considered when planning training during the period approaching school summer holidays. Management have engaged the union regarding the new area of work and targets and this was agreed with no specific equality impacts raised. Feedback what you plan to do as a result of this internal consultation and use it as a basis for work on external consultation.
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3.2 External consultation and involvement: strand specific organisations e.g. charities, local community groups, third sector Asylum and refugee voluntary sector organisations have been involved in the development of communication materials and will play a key role in implementing communications activities over the coming months. Dedicated workshops have been held with the National Asylum Stakeholder Forum (NASF) (see Annex C for membership details) which covers a wide ranging corporate partner group representing the interests of refugees and asylum seekers. Consultation raised vulnerability of this specific group as an issue to give due consideration to in building processes and guidance. NASF meet every two months. Dedicated workshops on settlement protection were held 18 August 2009 and 25 February 2010. It was arranged for NASF to communicate to regional refugee community groups/media on receipt of their briefing pack. Settlement protection was discussed at the January, March and May 2010 NASF meetings. The meetings discussed communications activities, out of time applications and proposed local information events across regions. NASF also proposed the establishment of a working group. Questions and concerns raised in the meetings relating to equality have been fed in to the qualitative evidence in the equality strands above. An undertaking has been agreed that UKBA will actively engage those due to apply and will send initial contact letters to all last known addresses (with the exception of asylum support addresses which will no longer be occupied by the intended recipient) of those identified with leave due to expire - promoting equality of opportunity. This approach will be reviewed as part of the EIA action plan to test effectiveness of this approach. Following distribution of a briefing pack to stakeholders on settlement protection it was fed back that information contained referring to legal services was not applicable to Scotland and Northern Ireland. This raised a need to tailor the pack to correctly sign post applicants to legal advice in Scotland and Northern Ireland. As a result of engagement with the illegal working team we can ensure that messaging is aligned and that employers will be aware of guidance relating to employment of this group of people thus safeguarding against discrimination in the workplace. Feedback what you plan to do as a result of the engagement to all participants including internal and external stakeholders.
4 ASSESSING IMPACT
In this section please record your assessment and analysis of the evidence. This is a key element of the EIA process as it explains how you reached your conclusions, decided on priorities, identified actions and any necessary mitigation.
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4.1 Assessment of the impact A key opportunity for positive impact is that all refugees and people with Humanitarian Protection granted 5 years leave to remain applying on the settlement protection route will be treated in the same way i.e. have the opportunity to make an application for indefinite leave to remain (ILR) whilst this is current policy. Because of the nature of asylum casework and the spread of applications it may be that certain groups are more affected than others by this particular policy change. Certain groups within the equality strands may represent a percentage of applications disproportionate to that of the general population as has been outlined with quantitative data above in the race equality strand. This variation in nationality representation is reflected in current asylum process and it will remain the case that all applications are processed equally irrespective of nationality. The settlement protection form is not specified so under 18 dependants at the time of initial application who have now turned 18 can apply on the main applicants form or on their own - this allows greater flexibility and mitigates any negative impact on this particular group as there is no longer scope to reject applications from those now over 18 applying on a main applicants form. The consultation and available data suggest there is a potential for differential impact on certain socio economic groups within the affected migrant population for whom access to services and/or information may be limited. This impact is being reduced via consultation with migrant support services and additional measures outlined below. Asylum and refugee voluntary sector organisations have been involved in the development of communication materials and will play a key role in implementing communications activities over the coming months. This is also regarded as a positive action in terms of promoting good community relations. An undertaking has been agreed that UKBA will actively engage those due to apply and will send initial contact letters to all identified with leave due to expire- promoting equality of opportunity. This strategy will be reviewed as part of the EIA action plan to test effectiveness of this approach. We have considered the position of out of time applicants and will continue to make efforts to emphasise the importance of individuals applying in time, both to ensure the speedy resolution of their case and the continuation of their leave. However we think it is right that UKBA should always look closely at cases where an applicant has overstayed their leave to enter or remain in the UK. UKBA will conduct more in-depth reviews where we receive a late application. We recognise that in a minority of cases, applications may be submitted late and that there may be exceptional reasons for this. All out-of-time applications will be assessed on a case-by-case basis. Caseowners will examine the reason for applying late alongside all of the evidence available to them in the application and on file. It is current policy that refugees and those with humanitarian protection will not be required to take either and English language (ESOL) or knowledge of life in the UK test before being granted ILR under the settlement protection route thus neutralising any perceived negative impact. It is not the intention of UKBA to translate information and guidance material for settlement protection. It is expected that applicants will be able to make and progress their application without translation of documents and may seek voluntary sector support where required. Training dates have been identified in consultation with senior case workers giving due
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consideration to staff working patterns and availability to ensure equality of opportunity for all staff in relation for training on this new are of work.
Now complete the report and Action Plan.
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5 REPORT, ACTION PLANNING AND SIGN OFF 5.1 EIA Report

The EIA Report is a concise summary of the results of the full EIA. A template is provided at Annex A.
5.2 Sign-off Now submit your EIA and related evidence for clearance Date of completion of EIA Compiled by SCS sign-off
I have read the Equality Impact Assessment and I am satisfied that all available evidence has been accurately assessed for its impact on equality strands. Mitigations, where appropriate, have been identified and actioned accordingly.
Date of publication of EIA Report Review date 5.2 Publication and Review
Ensure that the EIA Report including the Action Plan are published alongside your policy/guidance/operational activity. IMPORTANT - Review, revise and update annually!
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Annex A - Equality Impact Assessment Report TITLE

Reviewing refugee leave/settlement protection July 2010
BACKGROUND
From 30 August 2005 Refugees and those awarded Humanitarian Protection were granted 5 years Limited Leave to Remain. The objective of that change in approach was as follows: o Firstly, that there should be a clear approach to those obtaining leave under the Immigration Rules on how long they have to be here before they become eligible for permanent settlement. For those in a category potentially leading to settlement, that period will normally be five years for those granted leave under the Rules. o Secondly, that we should provide refuge while people need it, but that if conditions in their country get better it is reasonable to expect them to return when they have spent only a relatively short period in the UK. This policy was line with the 1951 Geneva Convention which accords protection to refugees only for as long as they require it. Humanitarian Protection (HP) status was brought into line with refugee leave. As a result beneficiaries of HP received a block of five years leave instead of three as previously. In establishing processes to now review these cases, we aim to: design processes which will deliver effective case working of those cases deemed to fall in scope of the Settlement Protection project; ensure that implementation of these processes will be efficient, timely and to sufficient quality.
This contributes to wider UKBA Strategic Objectives 1 and 3: Objective 1: We will protect our border and our national interests; Objective 3: We will implement fast and fair decisions.
SCOPING THE EIA

The Permanent Migration Programme Communications Team identified external/internal partners and interested parties by:

Using information from the programme matrix (collated by consulting with UKBA partner managers; senior managers and partnership groups) Holding workshops with key external/internal partners to agree communications approach and key recipients to be sent briefing material.
Issues and feedback in relation to equality strands from internal and external consultation, minutes, meeting notes and action plans have been fed in to the assessment and analysed.
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COLLECTING DATA
Data has been gathered through consultation and communications with stakeholders to inform the equality impact assessment.
INVOLVING AND CONSULTING STAKEHOLDERS

Stakeholders have been involved through a variety of forms including engagement, deciding together, consultation and information. Settlement protection has been discussed at the National Asylum Stakeholder Forum and dedicated workshops on the subject were held in August 2009, February 2010 and July 2010.
ASSESSING IMPACT
The policy on settlement protection affects those granted refugee status and Humanitarian Protection and as such reflects representation of equality strands within current asylum case working. Therefore, the make up of the group affected by this process is pre-determined by asylum intake and decision-making processes including decisions of the First Tier Tribunal (Immigration and Asylum Chamber). Everyone who was granted refugee status or humanitarian protection after 30 August 2005 will be required to apply in the same way and will be treated in the same way regardless of race, nationality, religion or religious belief, disability, gender, sexual orientation or gender identity with the exception of a possible decision to trigger an active review of cases based on a significant and non-temporary change in country situation. To ensure any such review is conducted fairly and transparently, the UNHCR would be consulted and the decision to conduct a review of these cases would be announced to Parliament. Data collection and engagement highlighted areas for further consideration which included communication with affected migrants, knowledge of life and language in the UK and rights to representation. Asylum and refugee voluntary sector organisations have been involved in the development of communication materials. This has the potentially positive impact of promoting good community relations. An undertaking has been agreed that UKBA will actively engage affected migrants and will send initial contact letters to all identified with leave due to expire for whom we have a last known non asylum support address. This strategy will be reviewed as part of the EIA action plan to test effectiveness of this approach. It is current policy that refugees and those with humanitarian protection will not be required to take either and English language (ESOL) or knowledge of life in the UK test before being granted ILR under the settlement protection route. It is not expected that there will be a need to review most cases substantively and this will limit the impact on legal aid resources. Continued public access to information about the settlement protection will be ensured by regular and timely updates to the UKBA website and through continuing engagement with stakeholders.
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ACTION PLAN
See annex B
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ANNEX B - Action Plan TITLE Reviewing refugee leave/Settlement Protection ACTION / ACTIVITY
This should be a list of recommendations identified in the EIA report. A short description of the issue being taken forward. To review the approach to making initial contact with potential applicants and assess its effectiveness.
OWNER AND INTERESTED STAKEHOLDERS
DEPENDENCIES / RISKS / CONSTRAINTS
COMPLETION DATE
The date by which the action is to be completed.
PROGRESS UPDATE
Progress to date. Any slippages. New stakeholders etc Give RAG rating if appropriate. Details of monitoring and review methods.
To monitor volumes of applications received compared to projected figures.
o Unit/Department/organisation There may be other o Internal & External projects/initiatives that will deliver the Stakeholders action so make reference to these. o How will you ensure your stakeholders continue to be involved/ engaged in shaping the development/ delivery of this policy? UKBA - permanent migration programme will own this area of work initially. Internal stakeholders include settlement case working management and teams. Corporate partners remain those listed above who will continue to be engaged in the progress of this work area. UKBA - permanent migration programme will own this area of work initially.
To be reviewed.
To be reviewed.
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Update to communications literature and briefing packs re-signposting to legal services in line with devolved administrations and engage stakeholders further on this area of work and its impacts.
UKBA permanent migration programme communications team. COSLA (Convention of Scottish Local Authorities), Scottish Legal Aid Board, The Scottish Law Society, Northern Irish Legal Services Commission, Northern Irish Law Society. Relevant partners will continue to be engaged in the progress of this work area.
To be reviewed.
Communications literature updated to reflect process in the devolved administrations.
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ANNEX C National Asylum Stakeholder Forum representation

Refugee Council COSLA Convention of Scottish Local Authorities UNHCR OISC Office of the Immigration of Services Commissioner Chief of Staff, Scotland & Northern Ireland Region Tribunals Service Amnesty International The Children's Society, Refugee Children's Consortium Scottish Refugee Council Asylum Aid Legal Services Commission (LSC) The Employability Forum Medical Foundation for the Care of Victims of Torture Refugee Action Equalities, Social Inclusion and Sport, Scottish Executive
Welsh Local Government Association (WLGA) Employment & Labour Market Division, Department for Work and Pensions
Department of Health Department for Children, Schools and Families National Migration Coordinating Team Manager
Association of Chief Police Officers Still Human still Here Department for Children, Schools and Families British Red Cross ADCS/ADASS Taskforce International Organization for Migration (IOM) Bail for Immigration Detainees Immigration Advisory Service Birmingham Local Authority Department for Communities & Local Government
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Chartered Institute of Housing Embrace UK Foreign & Commonwealth Office Job Centre Plus London Councils PsyRAS Refugee Council Refugee Support Scottish Government South London Tamil Welfare Group The Law Society [of England and Wales] Yorkshire and Humberside Consortium for Asylum Seekers and Refugees
Welsh Consortium for Refugees, Asylum Seekers & Migrants Housing Association's Charitable Trust Timebank Northern Refugee Centre Refugees Into Jobs European Council on Refugees and Exiles Justice Oxfam Jesuit Refugee Service Association of Visitors to Immigration Detainees (AVID)
Asylum Support Appeals Project (ASAP) North East Strategic Migration Partnership Camden Community Law Centre Charted Institute of Environmental Health Housing Corporation UNICEF UK (The United Nations Children's Fund) Association of Chief Police Officers Chief Constable North Yorkshire
Asylum Support Tribunal Department of Work & Pensions Local Government Association Policy Consultant Scottish Executive Evelyn Oldfield Unit Director Welsh Refugee Council - Chief Executive
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Joint Council for the Welfare of Immigrants (JCWI)
Refugee Arrivals Project (RAP) Refugee Council
Croydon Council Eleven Million International Organization for Migration Head of Racial Equality Unit Minister Northern Ireland) OFMDFM (Office of the First Minister and Deputy First
UKBA (SASF) Refugee and Migrant Justice Edinburgh City Council Education Home Office Asylum, London and South East Home Office Asylum Policy Home Office Deputy Director Asylum Head of Corporate Services, Immigration Group NAM+ Deputy Director Asylum Equality and Human Rights Commission President Asylum & Immigration Tribunal Welsh Assembly Government (WAG) Migrant Helpline District Register Office Brentwood North of England Refugee Service Scottish Legal Aid Board
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APPLICANTS WITH POOR QUALITY FINGERPRINTS

Table of Contents 1 Introduction 1.1 Purpose 1.2 Application of this instruction in respect of children and those with children 1.3 Background 2 Asylum Screening Unit action to take where fingerprints of the required standard cannot be taken 2.1 Applicant is detained 2.2 Applicant is not detained but the Sector 8 Compliance Team retain an interest 2.3 Sector 8 Compliance Team has no current interest 3 Local Enforcement Office and Port action to take where the applicants fingerprints are of poor quality 3.1 In hours Livescan or Cardscan referrals 3.2 In hours applications where the IFB1 is to be posted to the IFB 3.3 Out of hours - where the LEO/port are satisfied that they are unable to take prints of suitable quality 3.4 Applicant is detained 3.5 Applicant is not detained but the Sector 8 Compliance Team retain an interest 3.6 Sector 8 Compliance Team has no current interest 4 Asylum Team action to take where applicant has not been fingerprinted or refingerprinting is required 5 Onward routing actions where the applicant is not being detained 5.1 Initial actions when transferring cases to Sector 8 Compliance Team 6 Reporting 7 Sector 8 Compliance Team action following case referral 8 Detention 8.1 Fingerprinting 8.2 Detention Reviews 8.3 Bail 9 Sector 8 Compliance Team no longer has an interest in a case 10 File Creation Document Control
1 Introduction
1.1 Purpose This instruction provides guidance on how to handle and refer cases where fingerprints of the requisite standard cannot be taken and should be read and followed by:

Officers responsible for taking fingerprints from asylum applicants in the Asylum Screening Units (ASU), ports or Local Enforcement Offices (LEOs) Officers in the Sector 8 Compliance Team Case owners in the regional Asylum Teams Routing and Initial Accommodation Team
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1.2 Application of this instruction in respect of children and those with children Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the UK Border Agency to carry out its existing functions in a way that takes into account the need to safeguard and promote the welfare of children in the UK. It does not impose any new functions, or override existing functions. Officers must not apply the actions set out in this instruction either to children or to those with children without having due regard to Section 55. The UK Border Agency instruction Arrangements to Safeguard and Promote Childrens Welfare in the United Kingdom Border Agency sets out the key principles to take into account in all Agency activities. Our statutory duty to children includes the need to demonstrate:

Fair treatment which meets the same standard a British child would receive; The childs interests being made a primary, although not the only consideration; No discrimination of any kind; Asylum applications are dealt with in a timely fashion; Identification of those that might be at risk from harm.
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1.3 Background All asylum applicants are liable to have their fingerprints taken for identification purposes (Sections 141 and 142 of the Immigration and Asylum Act 1999). Fingerprints are normally taken by Immigration Officers at port, operating from an LEO or in the ASU. Additional fingerprints will be taken at the Application Registration Card (ARC) Event Centres and used for RepARC events. The purpose of fingerprinting asylum applicants is twofold: positive identification and the identification and deterrence of multiple asylum claims at national and international level. Fingerprinting also establishes if the applicants claim should be considered by another European country (Member States of the European Union, Iceland or Norway). The fingerprints of all applicants over the age of fourteen are recorded on, and checked against, the Eurodac Central Unit database of fingerprint images. The fingerprints of those over the age of five are recorded and checked against the UK database, the Immigration Asylum Fingerprint System (IAFS). For guidance on fingerprinting and further information on Eurodac see chapter 24 of the Enforcement Instructions and Guidance and the Asylum Instructions Fingerprinting and Safe Third Country Cases. Through self-inflicted damage, accidental trauma or an existing skin condition it is not always possible to take fingerprints of the requisite standard at the time the asylum application is made.
However, all applicants must be fingerprinted even when it is apparent that the applicants fingerprints will not yield prints sufficient for Eurodac purposes. This is because they may be of adequate quality for IAFS and they can also be used for comparison against subsequent prints. In the majority of cases, after a period of recovery, fingerprints will heal or improve sufficiently, allowing for the capture of high quality fingerprints that can be saved, transmitted and checked against the databases. Officers should also ensure that all other checks are completed. A specialist team in the London and South East Region, Sector 8 Compliance Team is responsible for handling all cases (nationwide) where an asylum applicant with poor quality fingerprints is encountered. The Sector 8 Compliance Team will manage the case until the applicants identity is established to their satisfaction, which will normally be when the applicants fingerprints are accepted by the Eurodac database. If the applicants fingerprints return a Eurodac hit, the case will then be transferred to the Third Country Unit (TCU).
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2 Asylum Screening Unit action to take where fingerprints of the required standard cannot be taken
Where it has not been possible to make a successful transmission to the Eurodac Central Unit, the Eurodac failure will be notified to the ASU by the Immigration Fingerprint Bureau (IFB). IFB should also inform the Sector 8 Compliance Team of any failures. The IFB may request that the applicant is fingerprinted again or discuss with the officer whether the applicants fingerprints appear damaged. As the IFB is located in Croydon, ASU Croydon can request that an IFB fingerprint expert assist in the capture of the prints. Where a set of fingerprints of the required standard cannot be captured, the file must be passed to the ASU Detention Co-ordinator (CIO). The ASU Detention Co-ordinator must refer the case by phone to the Sector 8 Compliance Team admin support, who will decide if detention is the appropriate course of action.
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2.1 Applicant is detained If detention is deemed appropriate standard detention procedures must be followed and the applicant transferred to the detention accommodation as directed by the Sector 8 Compliance Team. Instructions found in Chapter 55 of the Enforcement Instructions and Guidance should be referred to and followed. 2.2 Applicant is not detained but the Sector 8 Compliance Team retain an interest If the Sector 8 Compliance Team decides against detention the case must not be routed to a regional Asylum Team. ASU must instead contact the Routing and Initial Accommodation Team and follow instructions set out in the section onward routing actions where the applicant is not being detained. 2.3 Sector 8 Compliance Team has no current interest If the Sector 8 Compliance Team does not have an interest in the case the applicant should be referred as normal to either the Routing and Initial Accommodation Team or the Asylum Intake Unit, if the case is considered suitable for the Detained Fast Track/Detained Non Suspensive Appeals process. For further guidance, see the instruction DFT and DNSA Intake Selection (AIU instruction)
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3 Local Enforcement Office and Port action to take where the applicants fingerprints are of poor quality
The scenarios below set out what the LEO/port should do when an applicant has or appears to have damaged fingerprints and what to do if this cannot be immediately discussed/confirmed with the Sector 8 Compliance Team due to differing operational hours and/or differing methods of sending fingerprints to IFB and Eurodac. In hours Livescan or Cardscan referrals In hours applications where the IFB1 is to be posted to the IFB Out of hours - where the LEO/port are satisfied that they are unable to take prints of suitable quality There are three possible outcomes following the referral of the case to the team: Applicant is detained Applicant is not detained Sector 8 Compliance Team has no current interest
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3.1 In hours Livescan or Cardscan referrals If the fingerprints are taken in hours and the IFB do not consider the fingerprints to be viable or the fingerprints have been rejected by Eurodac on the grounds of poor quality, they will contact the LEO/port referring officer immediately and ask either that the applicant is fingerprinted again or discuss with the officer if the applicants fingerprints appear damaged. If the applicants fingerprints appear damaged, the LEO or port should contact the Sector 8 Compliance Team who will decide if they are taking responsibility for the case and discuss if detention is appropriate. Return to: LEO and Port action to take where the applicants fingerprints are of poor quality 3.2 In hours applications where the IFB1 is to be posted to the IFB Fingerprints must be sent to the IFB as normal on an IFB1; this should be within 24 hours of the applicant being fingerprinted. However, where it is clear that the applicant has presented with poor quality fingerprints the referring officer must contact the Sector 8 Compliance Team who will decide if they are taking responsibility for the case and discuss if detention is appropriateReturn to: LEO and Port action to take where the applicants fingerprints are of poor quality
3.3 Out of hours - where the LEO/port are satisfied that they are unable to take prints of suitable quality Where the LEO/port referring officer suspects that the prints will not be of a suitable quality and the claim is made out of hours, they should consider whether the applicant is suitable to be held in local detention accommodation until the following day. If the applicant is to be transported to overnight accommodation or given temporary admission to their own accommodation, reporting should be set for the applicant to return to the LEO for the next working day. The applicant should not be referred to the Routing and Initial Accommodation Team until after the Sector 8 Compliance Team has commented on the case. Where there is no reason to suspect that the applicant will not yield good quality prints the LEO/port should route the case as normal.
The Sector 8 Compliance Team should then be contacted during their operational hours and be given a summation of the case by the LEO/port referring officer. This should include that the applicant was not referred to the Routing and Initial Accommodation Team because they claimed asylum out of hours and that their fingerprints were of poor quality. They should also be advised whether the applicants fingerprints were sent to IFB by electronic transfer or by post. If sent by electronic transfer the Sector 8 Compliance Team will then contact the IFB to find out if the prints are of suitable quality The Sector 8 Compliance Team will make a decision as to whether they are taking responsibility for the case and if so whether detention is appropriate. Return to: LEO and Port action to take where the applicants fingerprints are of poor quality
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3.4 Applicant is detained Detention procedures should be followed and arrangements made for transfer to an allocated bed. Instructions on detention can be found in Chapter 55 of the Enforcement Instructions and Guidance. If a decision is made not to detain, the guidance under the non-detained route should be followed. Return to: LEO and Port action to take where the applicants fingerprints are of poor quality 3.5 Applicant is not detained but the Sector 8 Compliance Team retain an interest If the Sector 8 Compliance Team decides against detention the case must not be routed to a regional Asylum Team. LEOs/ports must instead contact the Routing and Initial Accommodation Team and follow instructions set out in the section onward routing actions where the applicant is not being detained. Return to: LEO and Port action to take where the applicants fingerprints are of poor quality 3.6 Sector 8 Compliance Team has no current interest If the Sector 8 Compliance Team does not have an interest in the case the applicant should be referred as normal to either the Routing and Initial Accommodation Team or if the case meets the Detained Fast Track detention criteria the Asylum Intake Unit. For further guidance, see the instruction DFT and DNSA Intake Selection (AIU instruction). Return to: LEO and Port action to take where the applicants fingerprints are of poor quality
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4 Asylum Team action to take where applicant has not been fingerprinted or re-fingerprinting is required
Case owners must follow the guidance in the Asylum Instruction (Interim) Case Owners Handling Referrals to the Third Country Unit. If there is no indication on CID or from the case file that fingerprints have been taken the case owner must arrange for the applicant to be fingerprinted on an IFB1 and the IFB1 to be sent to the IFB. Case owners may also be allocated cases where the applicant was routed before the Eurodac failure was sent to the LEO/port. Where this happens, the LEO/port should forward the Eurodac Failure Notification (printed on orange paper) to the case owner. Additionally, the Sector 8 Compliance Team will have been notified of the rejection and will have updated the notes field on CID with their recommended course of action. If IFB confirm that the applicant needs to be re-fingerprinted, the case owner should arrange for a further set of prints to be taken. If IFB confirm that that the applicant has poor quality fingerprints, the case owner must contact the Sector 8 Compliance Team, who will make a decision as to whether to take the applicant into their detained or non detained process.
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5 Onward routing actions where the applicant is not being detained

5.1 Initial actions when transferring cases to Sector 8 Compliance Team If the Sector 8 Compliance Team advises that the case is to be treated as a non-detained case the point of claim (ASU/LEO/port) or, if the case has already been routed, the case owner and workflow manager must: If accommodation is required: 1. Ask the Routing and Initial Accommodation Team to arrange for the applicant to be transferred to Initial Accommodation allocated to Sector 8. (It should be noted that this accommodation is limited and advice from the Sector 8 team should be sought before this accommodation is utilised. If there is no space then the applicant will need to be allocated to a region where there is capacity). 2. Update CID with the details of the Initial Accommodation address provided by the Routing and Initial Accommodation team. 3. If the applicant is to reside in Sector 8 Compliance Team Initial Accommodation, amend the applicants address details to the allocated Initial Accommodation, which will unless advised otherwise be Brigstock House, 57 Brigstock Road, Thornton Heath, CR7 7JH and send an email to the Croydon Enforcement Unit advising them of the transfer and that it is a damaged fingerprint case. The email must contain the Home Office reference number, the name and nationality of the applicant and the date the applicant is being transferred. 4. If the applicant is not residing in the Sector 8 Compliance Team Initial Accommodation, but is nonetheless accommodated by the UK Border Agency, ensure that CID is updated with the appropriate address and that the LEO closest to where the applicant lives is aware of the transfer and that it is a damaged fingerprint case. 5. Set a diary action under Event Type on the Calendar Events Screen (IS-CID) (this will enable the Reporting Centre to pick up the case and send a revised IS96 to the applicant). 6. Insert the appropriate Reporting Centre in the Centre field. 7. Insert the day after the applicants expected transfer to Sector 8 Compliance Team Initial Accommodation as the booked for date/time. 8. Insert the Reporting Centre under Unit Responsible. 9. In the comments field insert the following text: Sector 8 Compliance Team case, please set up on reporting and fingerprint on a weekly basis. 10. Issue the applicant with an IS96 with a date to next report of the day after the applicants expected transfer to Initial Accommodation. If the applicant does not require accommodation: 1. Ensure that CID is updated with the applicants address. 2. Set a diary action under Event Type on the Calendar Events Screen (IS-CID) (this will enable the Reporting Centre to pick up the case and send a revised IS96 to the applicant). 3. Insert the appropriate Reporting Centre in the Centre field. 4. Set booked for date/time, this should allow adequate time for the applicant to get to their accommodation but should normally be a maximum of 2 days. 5. Insert the Reporting Centre under Unit Responsible. 6. In the comments field insert the following text: Sector 8 Compliance Team case, please set up on reporting and fingerprint on a weekly basis. 7. Issue the applicant with an IS96 with a date and time that has been booked at point 4. In all cases: 1. Minute the file and CID to reflect that the Sector 8 Compliance Team have taken responsibility for the case. 2. Insert Sector 8 in the allocated to field on CID. 3. Depending on at what stage of the process the case is, inform the applicant of the
cancellation of any events (such as the asylum interview, if this has already been scheduled) and any changes to accommodation. Consideration should also be given at this stage to a condition requiring the applicant to submit to Electronic Monitoring.
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6 Reporting
Although it will be the responsibility of the referring officer to set the initial reporting event, once the case has transferred to the Sector 8 Compliance Team it will be the responsibility of the LEO to set the reporting regime. The LEO can vary the regime but should call the applicant for fingerprinting on a weekly basis. The Sector 8 Compliance Team should then liaise with the IFB to see if the fingerprint event was successful and notify the LEO of the outcome and what further action is required. Where an applicant is not initially detained this does not prevent the Sector 8 Compliance Team at a later date detaining an applicant on the basis that the individuals identity needs to be established. Any decision to detain must be in line with the instructions on detention found in Chapter 55 of the Enforcement Instructions and Guidance. See also: 1.2 Application of this instruction in respect of children and those with children
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7 Sector 8 Compliance Team action following case referral

Referrals should be made to the Sector 8 Compliance Team by telephone during office hours. They will as appropriate accept the applicant into their Eurodac Failure fingerprint work stream and decide if it is currently appropriate to detain the applicant. Eurodac failure fingerprint cases are recorded on the Eurodac Failure spreadsheet within the Sector 8 Compliance Team. Once a case is accepted the admin team should prepare the Eurodac Failure/poor quality fingerprint cover sheet and attach it to a plastic wallet. This should then be passed to the assigned IO who will call for the file. A further spreadsheet for IFB, the DFP Referrals spreadsheet, should then be updated. The file should then be passed to the reviewing CIO to complete, if appropriate, the Acceptance Detention Review, create a T card of future detention reviews and log this on the detention board. The spreadsheet should be updated as necessary.
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8 Detention
Any officer considering the detention of an applicant must be familiar with the instructions on detention in Chapter 55 of the Enforcement Instructions and Guidance. Detention is only lawful if it is for one of the permitted purposes in the Immigration Act 1971. In the context of an asylum applicant having damaged fingerprints the applicant may be detained on the basis that the individuals identity needs to be established, not on the basis that the subject has damaged fingerprints. An additional factor for detention will be if it is considered based on the information known about the applicant that there is a risk of the applicant absconding if not detained. If an applicant is detained in order to establish their identity, normal detention criteria will apply. Applicants should be advised at the earliest point in the process of the possibility of seeking medical advice in relation to their damaged fingerprints.
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8.1 Fingerprinting The CIO responsible for reviewing the case should make arrangements with the removal centre to have the applicant fingerprinted. To minimise the time an applicant remains in detention the applicant should be fingerprinted on a weekly basis. The applicant should be informed that they can seek medical assistance at the removal centre medical facility to assist in their fingerprints healing. The medical facility will if appropriate refer the applicant to a consultant dermatologist. If, after two months in detention, the applicants fingers have not recovered from their trauma, nor has the applicant sought medical intervention for the trauma, they will be asked to sign a consent form to attend the removal centre medical facility and be referred to a consultant dermatologist. If the applicant seeks medical intervention to assist with the healing of their fingerprints, consideration should be given to fingerprinting the applicant on a more regular basis. This will be agreed between the Sector 8 Compliance Team and the detention facility on a case by case basis. If there is evidence that the applicant has deliberately damaged their fingerprints it may be appropriate to interview the applicant regarding the condition of their fingerprints and to warn them that they may be prosecuted or initiate prosecution action. Officers from the IFB and the reviewing CIO may periodically attend the removal centres to obtain both fingerprints and palm prints and conduct an examination of the subjects fingers. The Sector 8 Compliance Team should liaise closely with the detention facility and IFB to ensure an appropriate regime is implemented in order that the applicants prints can be filed to Eurodac and, if previous sets were not of sufficient quality, to the IAFS.
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8.2 Detention Reviews Detention Reviews must be carried out in accordance with the procedure set out in chapter 55.8 of the Enforcement Instructions and Guidance. The subject may be visited by the reviewing CIO and interviewed on a periodic basis. If the applicant is still detained after a 3 month period the DAU Section 8 HMI will carry out a critical review to consider whether to maintain detention or whether the case should be forwarded to an asylum case owner. If detention is maintained reviews will continue in line with instructions in the Enforcement Instructions and Guidance and a critical review will be carried out on a fortnightly basis by the HMI or Assistant Director of Section 8.
Should the applicant be detained for more than 6 months, the case must be referred to the Deputy Director.
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8.3 Bail There are two types of bail that a detainee may apply for: CIO bail and Immigration Judges bail. If either is applied for, the case must be referred to the Detention Allocation Unit HMI or appointed deputy.
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9 Sector 8 Compliance Team no longer has an interest in a case

Although the case may initially be of interest to the Sector 8 Compliance Team, some cases will drop out of the Third Country procedures e.g. if application of the criteria in the Dublin Regulation identifies the UK as the state responsible for examining the asylum claim. Cases not suitable for further action must be allocated to an asylum case owner for consideration of the asylum claim. If the applicant is non-detained, the case owner within the Sector 8 Compliance Team should follow the Asylum Instruction (Interim) Case Owners Handling Referrals to the Third Country Unit and the section Cases not suitable for Third Country Action - Non-detained cases. If the applicant is detained, the Sector 8 Compliance Team officer should follow the Asylum Instruction (Interim) Case Owners Handling Referrals to the Third Country Unit and the section Cases not suitable for Third Country Action - Detained cases
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10 File Creation
Where the applicant claimed asylum in the ASU, the HO file will be generated by the ASU. Where the applicant claims at a port or LEO the LEO/port file must either accompany the applicant to detention or, if the applicant is not being detained, be forwarded to the File Creation Unit (FCU) who will make up the HO file. If the file is being transferred to the Sector 8 Compliance Team, a minute must be placed on file by the ASU/port/ LEO to inform the FCU to send the HO file to the Sector 8 Compliance Team.
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Glossary Term IS96 IFB1 Meaning Immigration Service document that details the terms of an applicants TA/TR Form on which fingerprints are recorded
This glossary is for the insertion of any letters or minute sheets referred to in the Instruction
Document Control
Change Record
Version 1.0 2.0 3.0 4.0 Authors GT M-A.M G,L GL Date 26 Sept 08 27 Jan 09 01/10/09 23/10/09 Change Reference New instruction Update of contact details Update Childrens Duty Further update to Childrens Duty
Non Suspensive Appeals (NSA) Certification under Section 94 of the NIA Act 2002
Table of Contents 1. Overview 2. Introduction to section 94 2.1 Definition of Clearly Unfounded 2.2 Credibility 2.3 NSA Casework & accreditation 3. Designated States section 94 (4) 3.1 Current list of Designated States 3.2 Full or partial Designation 3.3 Definition of entitled to reside 3.4 Doubts about Nationality/entitlement to reside 4. Case by Case Consideration 5. When to use Certification 5.1 Categories of certification 5.1.1 No fear of mistreatment 5.1.2 No objective basis for fear 5.1.3 Feared mistreatment does not amount to persecution 5.1.4 Sufficiency of protection 5.1.5 Internal relocation 5.1.6 Internal relocation 5.1.7 No ECHR point raised 5.1.8 Human rights breach raised but issue excluded under the ECHR
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5.1.9 Feared treatment based on non Article 3 grounds 5.1.10 Article 8 claims 6. When not to certify a clearly unfounded claim 7. Miscellaneous Issues 7.1 Unaccompanied Asylum Seeking Children 7.2 Disputed Minors 7.3 Non-Compliance 7.4 Dependants/Dual Claims 7.5 Families of Mixed Nationalities 7.6 Repeat Claims 7.7 Curtailment 8. Decision process and procedures 8.1 Screening 8.2 The Interview 8.2.1 The Aide Memoire 8.2.2 Withdrawal of the Asylum Application at interview 8.2.3 Re-Documentation 8.2.4 Invitation for Further Evidence Given during the Substantive Interview 8.2.5 Claimants who fail to attend the interview 8.3 Assessing the claim 8.4 When Certification is appropriate. 8.4.1 Designated States 8.4.2 Case by case 9. Further Submissions 9.1 Where a second immigration decision is made
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9.2 Submissions do not amount to a Fresh Claim 9.3 Accepted as a Fresh Claim 10. At the appeal stage 10.1 The procedure 10.2 The role of AIT 10.3 Withdrawing a Certificate 10.4 Conceding an appeal 10.5 The hearings 10.6 Credibility 10.7 Expert Reports 10.8 Appeal lodged while appellant is still in UK 10.9 Appellant requests to give oral evidence 10.10 Post Appeal 11. Documents and Further Guidance
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1. Overview
Section 94 of the Nationality, Immigration and Asylum Act 2002, provides a certification process which removes the right for an in country appeal on certain Asylum and/or Human Rights claims (s84(1)). The power can only be used in cases where the claim is considered to be clearly unfounded and strict criteria must be met before certifying. (a) An applicant resides in a state listed in section 94 (4) (Designated states) (b) An applicant resides outside of one of the designated states but whose claim is considered clearly unfounded under section 94(2). (This is referred to as case-by-case certification)
2. Introduction Section 94
Section 94 of the Nationality, Immigration and Asylum Act 2002 came into force on 1 April 2003 and applies to all appeals made under Part 5 of the 2002 Act. If an asylum and/or human rights claim is certified as clearly unfounded under section 94, the applicant cannot appeal whilst in the United Kingdom. This applies to decisions listed in section 82 (2)(c), (d), and (e) under section 92 (2). 2.1 Definition of Clearly Unfounded In order to certify a claim under section 94 the Secretary of State needs to be satisfied that the claim is clearly unfounded. To be clearly unfounded a case owner needs to be satisfied that the claim cannot, on any legitimate view, succeed. In the case of Thangarasa and Yogathas in October 2002 the House of Lords made the following two points about manifestly unfounded claims (applied equally to clearly unfounded): A manifestly unfounded claim is a claim which is so clearly without substance that it is bound to fail; It is possible for a claim to be manifestly unfounded even if it takes more than a cursory look at the evidence to come to a view that there is nothing of substance in it.
Further guidance on how to approach consideration of clearly unfounded was issued by the court of Appeal in 2003 with the case of ZL and VL v SSHD. 1) consider the factual substance and detail of the claim 2) consider how it stands with the known background data
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3) consider in the round whether it is capable of belief 4) consider whether some part is capable of belief 5) consider whether, if eventually believed in whole or part, it is capable of coming within the convention.
2.2 Credibility When considering certification under section 94, claims are assessed at their highest and are only certified when they are bound to fail, even if it is accepted that the claim is true. It is therefore rare for credibility issues to be addressed within certified decisions. The question of credibility and certification was commented on in ZL and VL v SSHD & LCD [2003] EWCA Civ 25. Lord Phillips held at paragraph 60: Where an appellants case does turn on credibility, the fact that the interviewer does not believe the appellant will not, of itself, justify a finding that a claim is clearly unfounded. In many immigration cases findings on credibility have been reversed on appeal. Only where the interviewing officer is satisfied that nobody could believe the appellants story will it be appropriate to certify the claim as clearly unfounded on the ground of lack of credibility alone.
2.3 NSA Casework and accreditation Because of the strength of the power of certification it has been agreed that only NSA trained Case Owners can consider certifying cases under section 94. Their recommended decisions must then be authorised by an accredited Case Owner known as a Second Pair of Eyes (SPoE) or Determining Officer. For more information on training and accreditation please contact the NSA Oversight Team.
3. Designated States section 94 (4)

Section 94(4) contains a list of designated states for certification. Under the provisions of the 2002 Act when refusing an asylum and human rights claim from persons entitled to reside in one of the listed states, the Secretary of State is required to certify the claim, unless the Secretary of State is satisfied that the claim is not clearly unfounded. It is important to remember that Asylum and Human Rights claims made by someone from a designated state should still be considered on individual merits and it is only if the claim falls to be refused that the question of certification arises. If the decision maker considers that on the
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facts of the claim it is not clearly unfounded certification should not be used. The countries added to section 94(4) since 7 November 2002 have had to meet the two part test laid down in section 94(5) of the Act: There is in general in that State or part no serious risk of persecution of persons entitled to reside in that State or part, and Removal to that State or part of persons entitled to reside there will not in general contravene the United Kingdoms obligations under the ECHR.
Any countries designated in the future will have to meet the same tests, and the Statutory Instrument designating them will need to be approved by Parliament. Initially there were 10 states included in the list but these have since joined the EU and their citizens are no longer subject to the provisions of section 94. People who are entitled to reside in an EU state but are not citizens of the state can be considered under case by case consideration. The countries currently on the list have been added subsequently, in April 2003, July 2003, February 2005, December 2005, July 2007 and March 2010. There have also been various other amendments to the list with some states being removed. Certification of claims from designated states applies to all claims made on or after the date the country was designated. Any claims made prior to the date of designation cannot be considered for certification under section 94 (4) (but claims of this nature may be considered for certification on a case by case basis under 94(2)) See Designated States poster 3.1 Current list of designated states: Albania Bolivia Bosnia Herzegovina Brazil Ecuador India Jamaica Macedonia Mauritius Moldova Mongolia Montenegro Peru Serbia South Africa Ukraine Ghana (men only) Gambia (men only) Kenya (men only) Kosovo Liberia (men only) Malawi (men only) Mali (men only) Nigeria (men only) Sierra Leone (men only) South Korea
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3.2 Full or Partial Designation Of the 26 States presently designated 16 have been designated in full, 8 are partially designated, as outlined above, for men only. The definition of men only for this purpose is males over the age of 18. There is no obligation to certify the claim of a male under the age of 18 from one of these designated states There is the power to designate; all of a State a geographical part of a State a State in respect of a description of a person a geographical part of a State in respect of a description of a person The ability to designate a State in respect of description of a person was introduced on 1st October 2004 by section 27 of the 2004 Act. It refers to a group of people who may be defined by; gender language race religion nationality membership of a social or other group political opinion or, any other attribute or circumstance that the Secretary of State thinks appropriate. 3.3 Definition of entitled to reside. The term entitled to reside refers to citizens of those states and people who, although not citizens, are normally resident there and have a clear legal basis to reside there. This does not cover short stay residents such as visitors and students. Dual nationals will be covered by the provisions if one of their nationalities is a designated state. 3.4 Doubts about nationality/entitlement to reside There may be doubts about a persons claim to be from a non-designated state. If the person is from one of the designated states but claims to not be entitled to reside there, case owners should consider whether there is evidence that they are entitled to reside in the state, (passport or travel document issued in the state or other evidence that they had been there for many years). If there is such evidence then the claim should be considered on the basis that they are entitled to reside in a designated state. See Nationality: Doubtful, Disputed and other cases.
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4. Case by Case Consideration

Section 94 of the 2002 Act enables the Secretary of State to certify an asylum and/or human rights claim as clearly unfounded even where the claimant is not entitled to reside in one of the designated states. The legal test as to what amounts to a clearly unfounded claim is the same and the case should be considered on its individual merits. As with certifying designated states a claim should only be certified under section 94 if the case owner is satisfied that the claim is clearly unfounded.
5. When to use Certification

5.1 Categories of certification Asylum and Article 3 claims Both the asylum and human rights claims (whether direct or implied) should be considered separately, and should be certified separately if the case owner is satisfied that they are both clearly unfounded. 5.1.1 No fear of mistreatment If a claimant raises nothing that could be considered as amounting to a fear of mistreatment upon return it can be certified as clearly unfounded. For example, a person who states they are fleeing poverty or unemployment. 5.1.2 No objective basis for feared mistreatment. If after taking account of the persons circumstances and the objective evidence, it is clear that there is no arguable basis that the feared mistreatment will arise on return the claim may be certified. Even if a person has faced mistreatment in the past it would not preclude the case if there was clear objective evidence that no mistreatment would occur if returned at the date of decision. Reference should be made to the appropriate OGN and Country Information. 5.1.3 Feared mistreatment does not amount to persecution. A case may also be certified when it is clear from the objective evidence that the mistreatment feared, even if it did occur, would not amount to persecution or treatment contrary to Article 3. The existence of previous mistreatment would not preclude the possibility of certification if the treatment feared on return would not amount to persecution/treatment contrary to Article 3.
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5.1.4 Sufficiency of Protection The need for international protection only arises when it can be shown that the state is either unable or unwilling to provide protection itself. Where it is clear that a state is providing the required level of protection the claim will be clearly unfounded, even if the threat exists. If there is sufficiency of protection a case could still be certified as clearly unfounded where the mistreatment has been very serious. It is not necessary to show that the State will eliminate all risk to the claimant but it is necessary to show that it is willing and able to take effective steps to prevent persecution/treatment contrary to Article 3. An example would be that the State operates a legal system for detection, prosecution and punishment of persecutory acts. Where the claimed threat comes from rogue public officials (e.g. individual police officers), the threshold is higher but would still be clearly unfounded if there is clear evidence that the State is able and willing to provide protection against the officials. 5.1.5 Internal Relocation If a persons claim is in relation to their home area, it would be clearly unfounded if internal relocation was obviously available. This may apply if the claim is a fear of ill-treatment by non-state actors, rogue agents or where the authorities are not in control of the entire country. It would be appropriate for a case owner to certify a claim as clearly unfounded if, on the objective evidence, the claimant could relocate to an area where there was sufficiency of protection and it would not be unduly harsh to do so. Case owners must examine at interview whether there were any factors which would make internal relocation unduly harsh. 5.1.6 Asylum claim No refugee convention The fears expressed are clearly unconnected to and of the five refugee convention grounds, race, religion, nationality, membership of a particular social group or political opinion. An example would be a claimant fearing mistreatment from his neighbour as a result of a personal dispute. Note: a human rights claim would not fall to be certified on this basis, but may still be clearly unfounded for other reasons. 5.1.7 No ECHR point raised No part of their claim can be considered as falling under the provisions of the European Convention of Human Rights. For example a person who argues
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removal would breach their human rights solely on the basis of limited job prospects in their country of origin. 5.1.8 Human rights breach raised but issue excluded under the ECHR. The claim refers to a breach of the claimants human rights if they were removed but the ECHR does not provide protection against the specific breach that is alleged. For example a person states their human rights would be breached because they would be forced into military service. However Article 4 (3) of the ECHR excludes military service from their definition of forced labour. Unless there was another aspect to the claim this would fall to be certified as clearly unfounded. 5.1.9 Feared treatment on non Article 3 grounds A claimant may refer to mistreatment that will breach other articles of the ECHR, such as unlawful detention (Article 5), unfair trial (Article 6), or restrictions on freedom of expression (Article 10). These are considered indirect breaches, in that they will occur within the country to which the person is to be removed and not on removal. These types of claims would normally be clearly unfounded unless it is revealed there is a real risk of unlawful killing contrary to Article 2 or the death penalty, in which case a grant of Humanitarian Protection may be appropriate. Case owners should also consider whether the claimed breach would occur and if it did would it be a flagrant breach and/or a breach that was sufficiently serious to amount to a breach of Article 3. It would be exceptional for a case to meet the flagrant denial test and amount to a breach of Article 3 but in any case it should be considered, even if not specifically raised by the claimant. If the claimant demonstrated a real risk of a flagrant breach then certifying the claim as clearly unfounded would not be appropriate and a period of leave should be considered. For further guidance see AI on Considering Human Rights 5.1.10 Article 8 claims Direct and indirect claims of a breach of Article 8 should be addressed in the same. way. They should be considered on their individual merits and if refused consideration should be given as to whether they are clearly unfounded. Some examples of claims that may be suitable for certification are; The claimant claims close family ties in the UK, but none exist. There is no evidence of existence of claimed family members or no evidence of a longstanding bond between them. There are no insurmountable obstacles to the family member(s) living with the claimant outside the UK.
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Where it is considered that an Article 8 claim may be suitable for certification reference should be made to the AI on Article 8 of the ECHR for further guidance.
6. When not to certify a clearly unfounded claim.

There are a number of situations where a claim that is clearly unfounded should not be certified under section 94. If an individual makes both an Asylum and Human Rights claim and only one of these is clearly unfounded. There is no right of appeal following the refusal of the asylum or human rights claim. For example where the claim is refused but leave of 12 months or less is granted on another basis. The right of appeal is under section 83 of the 2002 Act. This where the claim has been refused but the leave of over 12 months has been granted on another basis. The claimant is entitled to an in country right of appeal for reasons unconnected with the Asylum and Human Rights element. *
* Under section 27 of the 2004 Act the circumstances in which the claimant will retain an in country right of appeal have been limited. For claims dated from 1 October 2004, an in country right of appeal will be retained where their indefinite leave is revoked under section 76 of the 2002 Act or where there is a decision to make a deportation order under section 5(1) of the 1971 Act. Where we refuse an in time application to vary leave (section 82 (2)(d)) or where we curtail leave (section 82 (2)(e)) and the refused asylum and human rights claims are found to be clearly unfounded, the case can now be certified and the person will have no in country right of appeal. In addition when making a decision in these circumstances the case owner should also normally make a decision to remove the person under section 10 of the 1999 Act (section 82 (2) (g) 2002 Act). A person who holds a visit visa and makes an asylum or human rights claim on arrival would be refused leave to enter on the basis that leave is sought on a basis other than the purpose specified on the visa. Under section 28 of the 2004 Act if the asylum and Human Rights claim is considered to be clearly unfounded the claim can be considered for certification. See further guidance on Curtailment in the section on miscellaneous issues, below. 6.1 Extradition cases Under section 27 of the 2004 Act, if a person is entitled to reside in one of the designated states and is also subject to extradition proceedings there is no
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mandatory requirement to certify the claim if it is clearly unfounded. Although legally it does not prevent certification, the normal position would be not to certify the claim, as a person facing extradition for criminal charges should normally be able to exercise an in-country right of appeal.
7. Miscellaneous Issues
7.1 Unaccompanied Asylum Seeking Children (UASC) Although not exempt from certification under section 94, if a UASC has no family to return to and we are not satisfied that adequate reception arrangements and accommodation exists the child will not be removed and will usually be granted Discretionary Leave. As leave has been granted we cannot certify the claim even if it is considered to be clearly unfounded. The best interests of the child should be the case owners primary concern in accordance with the statutory duty to safeguard and promote the welfare of Children. For more information see UKBA Code of Practice for Keeping children Safe from Harm or contact the Office of the Childrens Champion.
7.2 Disputed Minors The existing approach to disputed minors should be followed. If we conclude the person is not under 18 we should treat them as an adult. For further Information see guidance on Assessing Age 7.3 Non Compliance Where a person from a designated state does not comply the claim should be considered in the same way as other non- compliance cases, taking a decision based on the available information. This would normally mean that if the claim is refused it should be certified, as there would be no information to satisfy the case owner that the claim was not clearly unfounded. For further information see guidance on Non-compliance 7.4 Dependants/Dual Claims Dependents should be advised to make an application for asylum or human rights at the outset if they have a fear in their own right. Where more than one family member applies in their own right, it is possible to certify as clearly unfounded a claim by one member and not another. In these circumstances we would not normally remove the person whose claim was certified pending the in-country appeal of the other family member/s. If later the in-country
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appeal succeeds the persons whose claim was certified would usually have a basis to remain in the UK. If a dependant applies for asylum or human rights after the principal claim has been certified we would not normally remove the person pending the decision. There are some occasions where family life is not subsisting and removal of the applicant whose claim has been certified may be appropriate. This may be relevant where the applicants have chosen to live separately before their arrival in UK and have not resumed or maintained their family life whilst in the UK. 7.5 Families of Mixed Nationality In some cases the principal claimant is from a designated state but their partner is not. If the partner is claiming solely as a dependant then the claim should be considered in the normal way. If the partner applies in their own right the claim should be assessed against the country to which they will be returned. This is normally the country of residence of the principal applicant unless there is evidence that the partner is not entitled to reside there. If we are not satisfied that the partner can be returned to the country of residence of the principal applicant then the claim cannot be considered against that country. Unless the partner is entitled to reside in another designated state, certification of the claim would need to be considered on a case by case basis. 7.6 Repeat claims It is possible in certain circumstances to certify repeat claims under section 96 which gives no right of appeal. Where this is not possible consideration should be given to whether it falls to be certified under section 94. For further guidance on Section 96 please see The One Stop Procedure 7.7 Curtailment of Leave It will occasionally be the case that applicants who make asylum and human rights claims already have leave, for example as a student. If the decision is taken to refuse the asylum and human rights claims then it is usual practice for their existing leave to be varied so they will have no leave. This is referred to as curtailment. A decision to curtail leave is recognised as an immigration decision by virtue of section 82 (2) (d) of the 2004 Act and this decision brings with it an in-country right of appeal, under section 92 (2). However if the claim is found to be clearly unfounded the Case Owner will be required to certify the claim under Section 94. The Case Owner should make specific reference to section 94(1A).
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[(1A) A person may not bring an appeal against an immigration decision of a kind specified in [section 82(2)(c), (d), (e) or (ha)] in reliance on section 92(2) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) above is or are clearly unfounded.]1
As the applicant will also have an in-country right of appeal under section 92 (4)(a) of the 2002 Act, the claim will also still require explicit certification by reference to section 94 (2). The RFRL templates have been updated to include standard paragraphs which reflect these requirements. Case Owners should ensure that before curtailing and certifying such cases, claimants fulfil all of the criteria listed on the AI for curtailment. For further information see guidance on Curtailment of Limited Leave
8. Decision Process and Procedures

8.1 Screening When a person makes an asylum and/or human rights claim(s) at the Croydon Asylum Screening Unit (ASU), Local Enforcement Office (LEO) or Port they are screened. Part of the screening process establishes where that person claims to reside. From this and other details gathered, it can be determined whether they may be suitable for detention in a Fast Track location by referral to the Asylum Intake Unit (AIU). Where the applicant is from a designated State and is undocumented the appropriate redocumentation forms should be completed by the screening location. Where the applicant is not deemed suitable for detention, or where there are no suitable detention facilities available, the case will be routed to an appropriate Asylum Team. 8.2 The Interview The guidance provided here should be read in conjunction with the instruction provided in Conducting the Asylum Interview. 8.2.1 The Aide-Mmoire The Aide-Mmoire is to be used only as a guide by interviewing officers conducting substantive asylum interviews.
"Aide Memoir.doc"
8.2.2 Withdrawal of Asylum and/or Human Rights Claim(s) at Interview
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Before the substantive asylum interview begins, the interviewing officer should ask the applicant if he wishes to proceed with his asylum and/or human rights claim(s) using the standard phrasing contained in the Aide-Mmoire. Where the applicant declares that he wishes to withdraw his asylum claim interviewing officers should: 1. Ensure that the Notice Of Withdrawal Of Application For Asylum (form IS.101PA) is signed by the claimant; 2. As appropriate, complete re-documentation forms (for further guidance see Travel Documentation); 3. Place the signed Notice Of Withdrawal Of Application For Asylum (form IS.101PA) on the right hand side of the case file; 4. Flag the Notice Of Withdrawal Of Application For Asylum (form IS.101PA) 5. Implement removal of applicant 8.2.3 Re-Documentation If the applicant is undocumented and re-documentation forms have not been started, interviewing officers should complete the appropriate redocumentation forms before starting the interview (for further guidance on identifying and re-documenting undocumented applicants see Travel Documentation). Where re-documentation forms have been completed and placed on file, interviewing officers should check that forms have been completed correctly. 8.2.4 Invitation for Further Evidence Given During the Substantive Interview Adult applicants from one of the designated States listed under section 94 of the NIA Act 2002 are not issued with a Statement of Evidence Form (Selfcompletion) and are therefore allowed five working days (non-detained applicants) or 48 hours (detained applicants) after the interview to submit further evidence or information. Interviewing officers should inform adult applicants of this right at the end of the asylum interview, issuing stock letter ASL.1903 as appropriate. For further guidance see Conducting the Asylum Interview. 8.2.5 Claimants who fail to attend the Asylum Interview Acceptable reasons for an applicant not to attend their substantive interview are given in Conducting the Asylum Interview. Where the applicant fails to give an acceptable reason and is entitled to reside in one of the designated States listed in section 94 of the NIA Act 2002, officers should take appropriate non-compliance action. Accredited/NSA trained officers should consider all the evidence available to them and, if they are satisfied that the asylum and/or human rights claim(s) should be refused and is clearly unfounded, they should also certify the asylum and/or human rights claim(s) under section 94. For non-compliance cases a recommendation minute still has to be completed and the decision agreed by an accredited second pair of eyes.
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Also see Asylum Instruction Non-compliance for further advice. 8.3 Assessing the claim General Principles Officers should consider in turn whether a grant of asylum, Humanitarian Protection, Discretionary Leave or outright refusal is appropriate. See Considering Human Rights claims and Considering the Asylum Claim A recommendation minute is required for all proposed decisions on designated State applications which is forwarded to an accredited second pair of eyes for consideration and authorisation. 8.3.1 Grant of Asylum, Humanitarian Protection or Discretionary Leave If the determining officer disagrees with the recommendation to grant leave, then the recommending officer should implement the decision of the determining officer. The determining officer should discuss with the recommending officer the reason why a grant of leave is not thought to be appropriate. 8.3.2 Outright Refusals Only once it has been decided that an outright refusal is appropriate should certification under s94 be considered. NSA-trained Case Owners should consider whether the asylum and human rights claims are clearly unfounded. Note that where an applicant has made a joint asylum and human rights claim and it is decided that certification is appropriate, both claims or neither claim should be certified. For example where it is considered that the human rights claim should not be certified then the asylum claim must also not be certified. This is because the applicant will retain an in country right of appeal on one part of the claim and both parts need to be heard together. 8.3.3 Certification Under s94 is Considered Not Appropriate If it is agreed that certification is not appropriate then the Case Owner should implement the case in line with standard procedures and where appropriate a suspensive appeal should be given. A recommendation minute and a determination minute by an accredited determining officer still need to be completed. 8.4 When Certification Under s94 is Considered Appropriate 8.4.1. Designated States Initial Recommendation
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The NSA trained or accredited Case Owner should: Read through all the information available on file and on CID); Gather and collate any additional evidence needed, including by substantive interview, where appropriate ; Assess the evidence and claim; and, Draft a recommendation minute (ASL.2672) plus suitable RFRL and if applicable grant consideration minute ASL.1956 if certification under section 94 recommended ASL.1000, if non compliance and certification is not recommended ASL.1956, if Humanitarian Protection or Discretionary Leave is to be granted with the appropriate selected and deleted options. ACD.2376, if leave is to granted Forward the case file to an NSA-accredited Case Owner/Senior Caseworker for second pair of eyes.
Considering the Initial Recommendation (Second Pair of Eyes) The Accredited Case Owner /Senior Caseworker should: Consider the recommendation using all available information; file, AIs, OGNs (always use the latest version available from the Casework and Operational; Guidance available on Horizon). Agree or disagree with the recommendation, this should be clearly minuted using the Determination Minute (ASL.2673) and signed. Where a decision has been made to certify under s94 ensure that the RFRL does not contain any credibility points (unless previously agreed). (The refusal of the asylum claim in the majority of cases will be based on objective country information, on sufficiency of protection and the option of internal relocation); Ensure that the appropriate standard paragraphs have been used and tailored; Ensure that all relevant human rights articles have been dealt with, and where appropriate certified; Where the NSA-accredited officer disagrees with a recommendation from a NSA-trained Case Owner, the view of the NSA-accredited officer takes precedence. Where the Case Owner/Senior Caseworker recommending the decision is NSA-accredited, the decision must still be authorised by another NSAaccredited Case Owner/Senior Caseworker. The case file should then be passed back to the originator for amendment or for the final version of the RFRL to be completed.
8.4.2 Case by Case All Case Owners should consider if the case they are considering is suitable for case-by-case certification. OGNs may provide guidance that a common category of claim is appropriate for certification on a case-by-case basis.
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However not all categories of claims will be listed and not all countries have an OGN so Case Owners should consider the facts in the individual case for its potential suitability for case-by-case certification as clearly unfounded. For further information see Section A-Case-by-case process. A Case Owner who has not been NSA-trained but is in ownership of case that they believe after considering the claim against the criteria for an unfounded claim could be certified should personally refer the case to NSA accredited Senior Caseworker/Case Owner to review the case. If the case is deemed suitable for certification then the file should be reallocated to a NSA-trained Case Owner. Actions for NSA Case Owner: Where an NSA-trained Case Owner considers that an asylum and/or human rights claim(s) is suitable for case-by-case certification, the Case Owner should complete the actions as for a designated state certification and should minute the file and complete the relevant sections of the caseby-case proforma. The pro-forma should be forward to an NSA-accredited Case Owner/ Senior Caseworker within the Asylum Team. Where a decision has been made to certify a claim on a case by case basis including those from partially designated states the decision should be made using letter template ASL.0015 Actions for NSA-accredited Case Owner / Senior Caseworker (SPoE): Upon receipt of an asylum and/or human rights claim(s) recommended for case-by-case certification by an NSA-trained Case Owner, the second pair of eyes should review the pro forma and discuss with the Case Owner, referring to the file if necessary. Where they consider that certification is possible they should complete the relevant section of the case-by-case pro-forma and, if appropriate, send it to the NSA Regional Lead for approval. If necessary the regional lead should refer the case to the NSA Oversight team by email to the NSA/Case by case referrals inbox on Indigo. Once these have been received back the updated pro-forma should be appended to the file and the appropriate case work action taken. Where there is agreement that the case should be certified the second pair of eyes should clearly minute the file stating that the case is suitable for certification and complete the actions above under Considering the initial recommendation for designated states and return file to the referring officer who should make any recommended changes and complete the RFRL. Where the Senior Caseworker disagrees with the recommendation, the case file should be clearly minuted and returned to the referring officer for further action under the non-certified process.
9. Further Submissions
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All representations received following the service of a section 94 certified decision and prior to removal, must be treated as further submissions and considered under paragraph 353 of the Immigration Rules, except in cases where a second immigration decision is required. All decisions to reject further submissions and not treat the case as a fresh claim must follow the Further Submissions instruction fully and the application of paragraph 353 and the certificate must be fully addressed. For further guidance see Further submissions This is a change from the former process where a specific section 94 procedure applied to further submissions. The House of Lords case ZT (Kosovo) found by a majority, that paragraph 353 must be applied to all further submissions in section 94 cases. 9.1 Where a second Immigration Decision is made. Where are second immigration decision is required case owners should not apply section 353. In the case of BA and PE, the Court of Appeal found that where further submissions have been raised raising asylum and/or human rights grounds, and a further immigration decision is necessary, the further submissions will amount to an asylum and/or human rights claim for the purposes of section 92(4) 2002 Act. The applicant will then benefit from an in country right of appeal and section 353 would have no practical effect. It is unlikely that such cases will occur often. Circumstances where a second immigration decision may be require include: When a section 10 removal decision is required and the standing decision is a refusal to vary leave, or a variation of leave resulting in the person having no leave (section 82(2)(d) or (e) 2002 Act). Example: o Individual enters UK on a student visa o Individual applies for asylum, is refused and a refusal to vary leave decision is certified under section 94. o Further submissions received raising asylum or human rights grounds. o Individual is unsuccessful in obtaining leave through further submissions and a section 10 removal decision is made. o The further submissions will amount to a claim for the purposes of section 92(4) 2002 Act and paragraph 353 should not be applied A refusal to revoke a deportation order decision is made, following the refusal of an asylum or human rights claim. (Section 82(2)(K) 2002 Act). Example:
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o Individual applies for asylum and refusal is certified under section 94. o Individual is also informed of a decision to make a deportation order against him. o Individual responds to the decision and raises asylum and human rights grounds. o The appeal against the decision to make a deportation order is heard and the judge considers the asylum and human rights grounds. The appeal is dismissed on all grounds and the deportation order is signed. o Individual writes to the UKBA requesting the deportation order be revoked raising asylum and human rights grounds. o Request to revoke a deportation order is refused and an immigration decision under section 82(2)(k) is made. o The letter requesting revocation of the deportation order will amount to a claim for the purposes of 92(4) of the 2002 Act and 353 should not be applied. The refusal on the second immigration decision may still be certified under section 94 or section 96 of the 2002 Act if appropriate. Where cases of this type are certified under section 94 of the 2002 Act the decision letter should state the following: These further submissions have not been considered under paragraph 353 of the Immigration Rules. The certification of this claim under section 94 is made further to the judgment of the Court of Appeal in BA (Nigeria) and PE (Cameroon) [2009] EWCA Civ 119 in respect of the meaning of an asylum claim or human rights claim in section 92(4)(a) of the 2002 Act. 9.2 Where a second immigration decision is not required. If the material received shows the asylum and/or human rights claim should be accepted the certified refusal must be withdrawn and the appropriate grant implemented. 9.3 Submissions do not amount to a Fresh claim If after assessing the further submissions under the paragraph 353 test the information does not amount to a fresh claim the section 94 certificate would normally stay in place. Although in rare cases further submissions may not be so wholly absent of merit for the claim to still be considered as clearly unfounded. Case owners should: i. Reject as further representations, according to the Further Submissions instruction (linked above), fully addressing all points raised;
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ii. iii.
Assess whether in light of all of the information held, it is right to maintain the section 94 certificate; A) Maintain section 94 certificate Add additional paragraph(s) to state that the section 94 certificate is being maintained. This must show consideration that the claim is still, even in light of the further submissions, clearly unfounded. B) Withdraw section 94 certificate Add additional paragraph to state that the section 94 certificate is being withdrawn. Consider, in line with the Further Submissions instruction, whether it is appropriate to certify under section 96 of the 2002 Act. If section 96 is appropriate, follow the instructions for implementation in the Further Submissions instruction. If no certificates are appropriate, serve the decision letter, original RFRL, new immigration decision, form AIT-1 and how to complete AIT-1 leaflet.
9.4 Accepted as a Fresh claim If the Further Submissions test shows there to be a fresh claim, the section 94 certificate must be withdrawn. (An application with a realistic prospect of success cannot, by definition, be clearly unfounded.) In these circumstances, consideration should be given as to whether certification under section 96 of the 2002 Act is appropriate. For example, this may be appropriate where the individual had a previous right of appeal against, or was previously served with a one-stop notice following a non-asylum immigration decision, and did not raise the same asylum issues they now raise at their second appeal/in response to their second one-stop notice, without reasonable explanation. For example, this could occur where the second immigration decision (but first asylum decision) could have been certified under section 96 in the first instance, but was instead certified under section 94. It could also occur where it is only the further submissions that could have been raised at the earlier non-asylum appeal leading to certification under section 96, not the substance of the asylum claim in the first instance which led to certification under section 94. Actions: i. Refuse as a fresh claim, according to the Further Submissions instruction (linked above), fully addressing all points raised; ii. An additional paragraph must be included to state that the section 94 certificate is being withdrawn. iii. Consider, in line with the Further Submissions instruction, whether it is appropriate to certify under section 96 of the 2002 Act.
10. The appeal stage

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10.1 The procedure Please see section 10 of the POs manual on the POURU website for further information. A section 94 out of country appeal takes place in the same manner as any other appeal where the appellant is outside of the UK. In practice there should be little difference to presenting an out of country appeal for appellants from designated states. Although it is unlikely that there will be any oral evidence, the submissions will be similar. The same objective evidence will be relevant, namely the COIS and USSD reports, OGNs (although only for those countries where they are published) and the case law which would usually be relied on. The OGNs may assist in identifying relevant case law. NSA cases can be easily identified by the NSA stickers found on the file (as apposed to the green Assured Representation Scheme stickers). The AIT also highlight NSA appeal on listing sheets and the OC (Out of Country) reference numbers make them identifiable on court listings. 10.2 The role of the AIT in respect of the certificate Once the appellant is removed from the UK and is appealing from abroad there is no provision for the AIT to make a determination on the application of the certificate. It can be argued that the AIT has no role in relation to the certificate and should not comment on it in its determination. The only way for an appellant to challenge the certificate is by Judicial Review. 10.3 Withdrawing the Certificate The case owner must not withdraw a section 94 certificate at an out of country appeal hearing since it is not an issue before the AIT. If asked to withdraw a certificate by an immigration judge or an appellants representative you must not do so. If the case owner has concerns about certificate then they should consult a senior caseworker who will contact the NSA Oversight Team. 10.4 Conceding the Appeal In an NSA case the trained case owner and accredited SPoE will have been satisfied that on the objective evidence the case is bound to fail. Credibility will only be an issue in exceptional cases. Therefore it will be rare for a Case Owner to take the view that the appeal should be conceded. By conceding a case the Case Owner would have to over-ride the decision, that the case was clearly unfounded, and also to accept that the objective country information did not support the refusal of the asylum and/or human rights claim.
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Case owners should remember that the appellant would already have been removed and by now disagreeing with the original decision that the case was bound to fail, the integrity of the NSA process may be damaged. However, if the Case Owner believes a case has been wrongly refused, he or she should as far in advance of the date of hearing as possible bring the issue to the attention of a SCW. The SCW, if they agree with the Case Owner that a NSA case should be conceded, should seek the immediate advice of the National NSA Oversight Team.
10.5 The Hearings 10.5.1 CMR Hearing At the CMR, the Immigration Judge should seek confirmation that there is no outstanding Judicial Review and request the date that the appellant left the country. (The removal information can be found on CID and Case Owners should record the details on the case management plan and on any notes prior to attending the hearing if it is not already on the file minute.) In order for the appeal to reach this stage the person should have been removed. If the person has been removed then there probably will not be any outstanding JR (as a JR would usually serve to suspend the removal pending the outcome) although it should be noted that in some cases applicants have instituted JR proceedings after having been removed. In the majority of cases the representatives have sent in requests at the CMR for the appeal to be dealt with on paper. If this happens Case Owners should ensure that the AIT has received all relevant objective evidence and case law and in most cases it will be appropriate to agree to the hearing proceeding on the paper. Otherwise the appeal will be set down for a full substantive hearing. Following the CMR, the Case Owner should complete the remaining sections of the CMR Record Sheet ASL.2945 and attach it to the file, update the Appeal Maintenance screen in CID, and update the CMP with: Whether it was a paper or oral hearing Any new submissions presented by the claimants representative Any directions of the Immigration Judge Any other information that the Case Owner considers relevant to the case
The Case Owner should then prepare for the substantive hearing. See Substantive Hearings and Expert Reports for further information.
10.5.2 The Substantive Hearing
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If the case is not to be heard on the papers then it will proceed to be heard at a substantive hearing. If no oral evidence is given at the hearing then the order of submissions should be respondent and then appellant. After a substantive appeal hearing, the Case Owner should complete a minute to the Specialist Appeals Team (SAT) using the template ICD.2742. The minute should record: name of the judge name of the representative names of all witnesses (where appropriate) which witnesses gave oral evidence (where appropriate) and whether or not they were cross examined the main points made in submissions record of all material submitted by both parties on the day (such as case law) anything else the Case Owner considers relevant to considering whether to challenge an allowed determination an indication of what the Case Owner considers would be a fair and appropriate outcome of the appeal and brief reasons why
The minute should be printed and attached to the file. By doing this, SAT staff will be able to access the minute through the Printed Documents facility in DocGen immediately they are notified that an appeal has been allowed, and they can consider the determination together with the ICD.2742 minute. 10.6 Credibility points at the appeal Case owners should not generally take credibility points at a NSA hearing if they were relate to the evidence that was before the original decision-maker, unless those points appear in the RFRL. The only circumstance in which you may need to raise credibility issues is where the appellant adduces new evidence at the appeal. However, if case owners and SCW have concerns relating to the credibility of new evidence, they are encouraged to seek the prompt advice of the National NSA Oversight Team. 10.7 Expert Reports Decisions that certify claims as clearly unfounded will rely heavily on the objective situation. Appellants legal representatives have commonly engaged experts to counter the objective evidence relied on by UKBA, seeking to differentiate the appellants circumstances from the norm in some way and asserting that due to those unique characteristics sufficiency of protection or internal flight will not be available to them. This has caused difficulty where the reports have been submitted shortly before the appeal hearing. UKBA, via the Country Specific Asylum Policy Team (CSAPT), must have the opportunity to respond to such reports in order for further research to be conducted if necessary and for there to be some investigation of the credentials of the expert.
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In cases involving expert reports, the CSAPT and the National NSA Oversight Team must be involved in the appeal as early as possible. In almost all NSA cases it will be appropriate to seek SCW advice where an expert report has been submitted, and consideration given as to whether an adjournment should be sought. It is also advisable to seek SCW advice where an expert report has been submitted in support of an appeal by a appellant originating from a NSA State, but whose claim was not certified. The outcomes of in-country appeals can also have a serious impact on the NSA process.
10.8 Appeal lodged while appellant is still in UK If a person whose claim has been refused and certified under section 94 attempts to bring an appeal before s/he has left or been removed from the UK, then that appeal is invalid, and the AIT is obliged to take no action in respect of it. The appeal may be signed and dated prior to removal, as this is when the appellants representatives would have had the opportunity to discuss the appeal with the appellant, but should not be lodged until after the appellant has left the UK. Where a certificate has been issued under section 94, then section 92(4)(a) right to appeal from within the United Kingdon - does not apply. In such a case, there is no exercisable right of appeal until the person leaves the UK. As such, there is no relevant decision as defined by Rule 2 of the Procedure Rules, against which an appeal can be instituted. This is because section 94 (2) specifically excludes reliance on section 92 (4) (a) if the claim has been certified as clearly unfounded. As there is no relevant decision, Rule 9 of the Procedure Rules applies and the AIT MUST notify the appellant and take no further action.
The Tribunal decision of TM Zimbabwe (2006) UKAIT 00005 confirmed that the Tribunal had no jurisdiction to determine an appeal which had been certified under section 94 if the appellant is in the United Kingdom. This applies to where the applicant has either, never left the UK or where they have left and returned. It is to be noted that representatives may also seek to use this determination to delay removal where an out of country appeal has been submitted and the appellant has not left the UK, by arguing that the AIT must consider the validity of appeal prior to removal. However, legal advice is that this determination only relates to cases where there is uncertainty over whether a claim has been certified under s94. Where we have correctly cited s94(2) and use a decision notice referring to the certification there is no uncertainty. Process to follow where the appellant is in the UK If the appellant returns to the UK illegally, the IS should be notified as far as possible in advance of the hearing so that they can send someone to detain the appellant prior to removal. It should be noted that a pending NSA appeal is not a barrier to removal if the appellant entered the UK illegally. If the
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appellant manages to be present for the hearing then it should be argued that they are unable to continue with (or bring) the appeal whilst they remain in the UK. However, if the AIT proceeds with the hearing then the giving of oral evidence by the appellant should be opposed. See Appeal lodged while the Appellant is still in the UK above. This should be a rare occurrence as the appellant should find it difficult to gain entry to the UK in the first place. If a person is granted leave to enter there is nothing to prevent attendance to the appeal hearing. Section 9 of the 2006 Act amended 104 of the 2002 Act so that an appeal that is made outside of the UK is not abandoned if the appellant is granted either leave to enter or leave to remain.
10.9 Appellant requests to give oral evidence Representatives may request that oral evidence be taken from the appellant either through attendance or the use of video links. Our general position is that it is not intended that appellants should be allowed to return to UK to give evidence at the hearing, nor is it intended that video facilities should be available in order for the appellant to give evidence or take part live in the proceedings. However, it is up to the AIT, and not the Home Office, to decide whether to accept video-link evidence. Where the AIT does decide to accept it, we would not necessarily oppose its decision to do so. But where the appellants representatives make such a proposal, the following arguments may be used to resist it: For the purposes of certification under section 94, the SSHD will, in the vast majority of cases, approach the matter on the basis that, even accepting the Appellants account as credible, the appeal must fail. In such cases it should be argued that an appellant cannot demonstrate that it is unfair to prevent him giving oral evidence at the appeal hearing. The relevance of any oral evidence can only go to the factual circumstances of the appellants case (which will already have been presented to and accepted by the SSHD). There is no justification for the appellant to be allowed to return to the UK or give evidence via video-link about undisputed matters. In many of these cases, the outcome of the appeal will turn on the question of the adequacy of protection in the home State. This is a matter, which will principally turn on the objective country information, possibly supplemented by expert evidence. The suggestion that an appellant should be allowed to enter the UK as a visitor in order to give evidence at an appeal should be strongly opposed. The decision as to whether a visa, or leave to enter, is granted is ultimately for the Entry Clearance Officer or the Immigration Officer and, the AIT should not be allowed to deal with any matter that is not before it. Not only does it undermine the whole purpose of the NSA, but also it is arguably inherently unfair simply to allow those individuals who have funds to enter and to refuse those who do not.
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In relation to the issue of video link a further argument which can be advanced is that a balance needs to be struck between ensuring that the appellant has a fair hearing and ensuring that a hearing is conducted in a just, timely and effective manner. Part of fairness and effectiveness is the cost of the litigation. If video facilities were offered in every out of country appeal case, there will not only be significant resource implications but, also, it will have a major impact on the listing and timing of appeals and the speed within which they can be properly disposed of. In cases certified under section 94, the requirements of fairness would be met by an out of country right of appeal, particularly where credibility is not an issue. Publicly funded legal representation for such appeals is available, subject to meeting the means and merits criteria, together with interpreting and translation facilities.
The AIT is under a duty to conduct the appeal fairly. It should be accepted that it would need to be very cautious about rejecting credibility in a case where an appellant was unable to give oral evidence. The role of the AIT in relation to the appeal will be to ensure that the SSHD has correctly decided the appellants case on the merits. 10.10 Post Appeal Once the AIT has made a determination, they will serve on all parties. All appeal determinations of out-of-country appeals should be sent to the appropriate member of the National NSA Oversight Team.
11. Documents and Further Guidance

Proformas Recommendation Minute Sheet: ASL.2672 (All NSA cases) Decision making determination Minute ASL.2673 (All NSA cases) Decision Service Minute sheet: ASL.2762 Port cases ASL.2763 Illegal Entry and Out of time after entry ASL.2764 In time after entry Non compliance grounds under 339M ASL.2900 non-compliance refusal checklist ASL.2590 decision making minute sheet General Asylum Instructions 02/02/2011
Considering the Asylum Claim Considering Human Rights claims Disputed Age cases Doubtful Nationality cases Travel Documentation Victims of Trafficking Internal relocation Non compliance The one stop procedure: warnings and certificates.
Version 1.0 1.1
Authors RLH RLH
Date 06/12/10 01/02/11
Change Reference New format & web style implemented Amended designation section
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ACTIVE REVIEW OF UNACCOMPANIED ASYLUM SEEKING CHILDREN (UASC) DISCRETIONARY LEAVE (DL)
Table of Contents 1. Active Review of UASC DL Process 2. Introduction 2.1 Application of this instruction in respect of children and those with children 3. Applications for Further Leave 4. Handling Applications for Further Leave 5. Interviewing Applicants who have Applied for Further Leave 5.1 Applicants not previously interviewed 5.2 Inviting an applicant to attend an interview 5.3 Conducting the interview 5.4 Applicant declines the opportunity to be interviewed 6. Considering an Application for Further Leave 7. Qualifying for Further Leave 8. Failing to Qualify for Further leave 9. Refusing Further Leave 10. Section 94 certification of the asylum and human rights elements of a further leave application 11. Failing to Apply for an Extension of Leave 12. Implementation of Refusal and Rights of Appeal 13. Recording an Application for Further Leave on CID ANNEX 1 Application for Further Leave was made before Leave had Expired - In Time ANNEX 2 - Application for Further Leave was made after Leave had Expired OUT OF TIME ANNEX 3 No Application for Further Leave Lodged
1. Active Review of UASC DL Process
2. Introduction
This instruction sets out the policy, processes and procedures to be followed when considering applications for further leave from children previously granted discretionary leave under the policy on Unaccompanied Asylum Seeking Children (UASC). The process followed to decide these types of case is known as an Active Review. This instruction also only applies to individuals granted discretionary leave under the UASC discretionary leave policy. For further information see the Processing an Asylum Application from a Child AI. This instruction does not apply to individuals (children or adults) applying for further leave to enter or remain having previously been granted discretionary leave in accordance with the Asylum Instruction (AI) on Discretionary Leave, or any other type of leave. For further information on these types of cases, see the AI on Humanitarian Protection, and Discretionary Leave. This guidance applies to asylum case owners both in the regions and in the Case Resolution Directorate. This instruction provides guidance on: When an active review is required; The purpose of an active review; How an active review should be conducted; and The possible outcomes of an active review. For the purpose of simplicity, the generic terms he, him and his will be used for all case owners and applicants regardless of their gender. Throughout this instruction, the original decision is the decision made which originally refused asylum and which gave rise to the leave currently being enjoyed by the subject. The instant decision is the decision currently being considered. Case owners should read this instruction in conjunction with the AIs on, Humanitarian Protection, Discretionary Leave, Refugee Leave, Certification under section 94 of the NIA Act 2002 and Processing an Asylum Application from a Child. 2.1 Application of this instruction in respect of children and those with children Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the UK Border Agency to carry out its existing functions in a way that takes into account the need to safeguard and promote the welfare of children in the UK. It does not impose any new functions, or override existing functions. Officers must not apply the actions set out in this instruction either to children or to those with children without having due regard to Section 55. The UK Border Agency instruction Arrangements to Safeguard and Promote Childrens Welfare in the United Kingdom Border Agency sets out the key principles to take into account in all Agency activities Our statutory duty to children includes the need to demonstrate: Fair treatment which meets the same standard a British child would receive; The childs best interests being made a primary, although not the only consideration; No discrimination of any kind;
Asylum applications are dealt with in a timely fashion; Identification of those that might be at risk from harm.
This instruction includes consideration of the use of enforcement action. Consideration must be made of the Code Of Practices statement that there must always be a presumption in favour of not detaining a family and each familys case must be considered on its individual merits.
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3. Applications for Further Leave

It is best practice for the case owner to establish a contact management strategy with the individual and their social worker and/or guardian. This should enable any application for further leave to remain to be made or for arrangements to be made to allow the individual to voluntarily leave the UK prior to the expiry of the existing leave. Case owners will be responsible for conducting an active review on these applications for further leave to remain. The individuals original decision letter in which he was granted UASC discretionary leave will state the date when that leave expires. This information should also have been recorded on CID. The implications of what will happen and next steps required when the leave expires should have been explained to the individual when the decision letter was served. If the individual was granted leave which was less than one year he should be served with a copy of Form HPDL at the same time as the service of the asylum and human rights refusal decision. If the individual was granted more than one years leave, in the six months before that leave expires (i.e. after their 17th birthday) the case owner should seek to arrange a contact management meeting with him and his social worker and/or guardian to discuss available options. Form HPDL should be served at this meeting. Prior to this meeting the case owner should liaise with the individuals social worker and/or guardian to agree the best way to explain the available options including Assisted Voluntary Return and applying for further leave.
Regions should arrange locally how they are best placed to be notified that an individual is approaching his 17th birthday. If the UASC discretionary leave is due to expire but the individual will still be under 17 and a half on the expiry date the case owner must conduct an active review to assess whether the individual still qualifies for leave under UASC discretionary leave policy or any more favourable grant of leave. For further information see the Asylum instruction on Processing an Asylum Application from a Child.
An application for further leave cannot be made by the individual more than one month before his existing leave is due to expire. If an application is made early, the case owner should not consider the application and should inform the individual that he must reapply when he has only one month or less remaining on his leave in the UK. The case owner should not serve the active review decision on the individual before the expiry of his leave, unless the decision is to grant further leave. Form HPDL needs to be completed by the individual, or the legal representative or responsible adult on his behalf. Please note that Form HPDL should only be used to apply for further leave to remain in the UK following refusal of asylum and a grant of less than 4 years exceptional leave, humanitarian protection or discretionary leave. Form HPDL can be found through the link below: UK Border Agency | Completing application form HPDL
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4. Handling Applications for Further Leave

The decision to grant further leave can be made at Case Owner level. For further information on granting and refusing leave, see the AIs on Refugee Leave, Humanitarian Protection, Discretionary Leave and Processing an Asylum Application from a Child. For further information on recording an application for further leave on CID see section 13. Recording an Application for Further Leave.
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5. Interviewing Applicants who have Applied for Further Leave

Applications for further leave will normally be considered on the basis of the information contained within the recent application. However, case owners may see applications for further leave where there is insufficient information on file to make a decision on whether or not to grant further leave. In these circumstances, case owners should first write to the applicant and ask them to submit any further information that may be relevant to their application for further leave within 10 working days (plus 2 working days for postage). If the applicant fails to provide any information, or the information provided is still insufficient to make a decision, the case owner may then invite the applicant to attend an interview to discuss their application for further leave, if the case owner considers that an interview may produce further information that will assist in making a decision. See also next section Applicants not previously interviewed. Case owners must remember that individuals who are still under 18 years of age at the time of interview must only be interviewed by a case owner who has undergone the appropriate training for interviewing children and young persons. This interview must take place in the presence of a responsible adult. If the individual is aged 18 years or over by the time of the interview, the applicant may be interviewed as an adult if limits on regional resources will result in a long delay before a case owner trained to interview children or young persons is available. 5.1 Applicants not previously interviewed Applicants should be invited to attend an interview in connection with their application for further leave if they were not previously offered this opportunity in connection with their claim for asylum.
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5.2 Inviting an applicant to attend an interview If a case owner decides to invite an applicant to attend an interview, he must do so by preparing a letter giving the applicant the opportunity to either accept or decline an interview. The following letter should be used: ACD.2195 (Request for Further Information/Offer Interview [Active Review]).
The case owner should make it clear that the applicant has ten working days to respond to this invitation. See also section 13. Recording an Application for Further Leave on CID.
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5.3 Conducting the interview For some applicants, the active review interview will be the first time they have been interviewed. Such applicants may wish to talk about their initial claim. They should not be prevented from doing so as they may reveal important information that has not previously
been considered. For example, they may wish to communicate a change in their country of origin that may warrant a grant of asylum. However, case owners should also inform the applicant that the purpose of this interview is to discuss their application for further leave in the UK. As a result, it is important not to allow the applicant to go into too much depth about their initial application for asylum, unless there are clear changes in circumstance relating to the asylum element of the claim. It is important that the case owner interviewing the applicant has a good knowledge and understanding of the case, has thoroughly read all the evidence on file before interviewing the applicant and has a good understanding of the current country situation in the individuals country of origin. If the applicant has previously been interviewed, it is not necessary to go into depth about his initial asylum claim as asylum has been refused, unless there are clear changes in circumstance relating to the asylum element of the claim. If the applicant has anything new to add, he should be given the opportunity to do so. Case owners should use Interviewing Record ACD.2217 (if the individual is still under 18) or ACD.2218 (if the individual is now over 18) when interviewing those who have applied for further leave. The interview should be subject to the safeguards set out in paragraphs 339NA-ND of the Immigration Rules regarding general conduct of an asylum interview. 5.4 Applicant declines the opportunity to be interviewed It should be noted that applicants who are invited to attend active review interviews are expected to attend. If they fail to attend, consideration may be given to applying paragraph 339M of the Immigration Rules to the claim, meaning that it will be refused on the basis of administrative non-compliance. Case owners should not apply paragraph 333C of the Immigration Rules when an applicant fails to attend an active review interview. This paragraph concerns withdrawal of asylum applications, and should not be applied as applications for further leave will always contain a claim under Article 8 of the European Convention on Human Rights, which cannot be treated as implicitly withdrawn under paragraph 333C. Where an applicant fails to provide information that has been requested, including failing to attend an interview, case owners should make a decision on the application for further leave on the basis of the evidence available to them.
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6. Considering an Application for Further Leave

Applicants who were originally granted discretionary leave under the UASC policy and have now applied for further leave may be eligible for asylum, humanitarian protection or discretionary leave. The fact that they were not eligible for asylum, humanitarian protection or discretionary leave (other than under the UASC DL policy) at the time of the original decision does not preclude them from qualifying now. When considering whether to grant further leave to remain or settlement, case owners should assess whether the applicant qualifies for asylum, humanitarian protection, discretionary leave or discretionary leave under the UASC policy at the date of the active review. For further information on the criteria to be met, see the Asylum Instructions on Considering the Asylum Claim and Assessing Credibility, Considering the Human Rights Claim, Refugee Leave, Humanitarian Protection, Discretionary Leave, Processing an Asylum Application from a Child. When considering whether to grant asylum or humanitarian protection, case owners should also see the Asylum Instruction on Exclusion - Articles 1F and 33(2) of the 1951 Refugee Convention in case the applicant is excluded from those types of protection. Case owners should have regard for the contemporary situation in the country of nationality (or of former habitual residence if appropriate) as this may have changed since the time of the original decision to grant UASC discretionary leave. Case owners should not apply paragraph 353 of the Immigration Rules to any part of the application for an extension of leave. When considering an application for further leave from a person who is still a child, case owners should refer directly to the AI on Processing an Asylum Application from a Child.
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7. Qualifying for Further Leave

If an applicant is eligible for an extension of leave, case owners should follow the relevant guidance in the Asylum Instruction on Implementing Substantive Decisions. If it is the case that there has been a change in the applicants circumstances, meaning that they are now eligible for either asylum or humanitarian protection, such a person would be eligible to apply for indefinite leave to remain (ILR) once they have completed a combined total of six years leave provided they are not subject to the exclusion clauses. They would be subject to the same active review process that will apply to refugees or applicants granted humanitarian protection after 30 August 2005 at the end of their five year period of limited leave. For any person who is supported by a Local Authority, ASL.1950 must be completed and sent to the Local Authority by way of final notification of the outcome of the application.
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8. Failing to Qualify for Further leave

An applicant who does not qualify for an extension of leave to enter or remain should be refused further leave and advised of the reasons why he no longer qualifies for discretionary leave (in other words, because he no longer meets the criteria of the UASC discretionary leave policy). Subject to the outcome of any in-country appeal, he will be expected to leave the UK. Should he fail to do so, he will be liable to enforcement action. For any person who is supported by a Local Authority, ASL.1950 must be completed and sent to the Local Authority by way of final notification of the outcome of the application. This must clearly the state the person has become appeal rights exhausted. An applicant whose appeal rights are exhausted may be eligible for Assisted Voluntary Return. For further information, see the Asylum Instruction on Assisted Voluntary Returns. For guidance on implementing the decision to return where the person is still a child, case owners should refer directly to the AI Processing an Asylum Application from a Child. Some applicants will be excluded from asylum and humanitarian protection as a result of their previous actions. However, if removal from the UK is not possible, such applicants are granted discretionary leave for a period of six months and are not eligible for indefinite leave to enter or remain until they have been granted leave for a continuous period of ten years. For further guidance on implementing a refusal to grant further leave, please see section 9.Refusing Further Leave.
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9. Refusing Further Leave

Once a case owner has decided to refuse to extend an individuals leave, he should: Prepare a comprehensive consideration minute. The minute should include the following: Applicants details (Home Office reference number, name, nationality and date of birth); Summary of the basis of the application for further leave including any asylum issues or human rights articles raised; Consideration; and Decision
Case owners should use the appropriate minute sheet to prepare both the decision-making and decision-service paperwork. The minute sheets currently available for in-time applications are: ACD.2188 (In-Time Extension of Stay or Settlement Application Refuse Outright). ACN.2188 (In-Time Extension of Stay or Settlement Application Refuse Outright Suspensive ROA).
The minute sheets currently available for out of time applications are: ACD.2380 (Out of Time Extension of Stay or Settlement Application Refuse Outright Suspensive [UK] Right of Appeal). ACN.2380 (Out of Time Extension of Stay or Settlement Application Refuse Outright Suspensive [UK] Appeal.
Case owners should update CID if refusing further leave. For further information see section 13. Recording an Application for Further Leave on CID. Case owners must also establish what appeal right the applicant has. For further information, see section 12. Implementation of Refusal and Rights of Appeal.
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10. Section 94 certification of the asylum and human rights elements of a further leave application
Section 94 of the Nationality, Immigration and Asylum Act 2002 provides a certification process under which there is no in country right of appeal in certain circumstances, because that claim is considered to be clearly unfounded. Applications for further leave will be treated as both asylum and human rights applications, so if the application for further leave is certified under section 94, this will result in an out of country right of appeal only. A case owner who has not been NSA-trained but is in ownership of a case that they believe could or should be certified under 94(2) or 94(3) after considering the further leave application against the criteria for an unfounded claim should personally refer the case to a NSA-accredited Senior Caseworker or case owner to review the case. If the case is deemed suitable for certification then the file should be reallocated to a NSA-trained case owner to consider the further leave application. Case owners should refer to the AI on Certification under section 94 of the NIA Act 2002.
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11. Failing to Apply for an Extension of Leave

If an individuals leave expires and they do not make an application for further leave to enter or remain they will become an overstayer as they have not sought to vary/extend their leave. The individual will be liable to removal under Section 10(1)(a) of the Immigration and Asylum Act 1999. Case owners should look to re-document such overstayers at the earliest opportunity. Case owners should bear in mind that the applicant cannot be removed if they are under 18 years of age unless adequate reception arrangements have been identified which make removal possible before 18. However if the applicant is approaching 18 this should not prevent case owners from completing any preliminary work necessary to ensure that removal can go ahead as soon as possible after the applicant turns 18. Case owners should give full consideration to paragraph 395C of the Immigration Rules prior to serving a removal decision.
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12. Implementation of Refusal and Rights of Appeal

If a case owner has decided to refuse an application for further leave to enter or remain in the UK, he must distinguish between the right of appeal to which an applicant is entitled according to his immigration status and the circumstances of his case. The right of appeal will vary depending on the following factors; length of previous leave granted; whether the application for further leave was made in time, out of time or not at all; whether the further leave application can be certified. Case owners should use the following tables to decide which right of appeal would be applicable to their case. Section 47 of the Immigration, Asylum and Nationality Act 2006 came into force on 1st April 2008. This enables the Secretary of State to decide to remove an individual whilst their leave continues under 3C(2)(b) or 3D(2)(a) of the Immigration Act 1971, if and when the leave ends. This means that the decision to refuse to vary leave (82(2)(d) 2002 Act) and the decision to remove (82(2)(g) 2002 Act) can be made at the same time. If both decisions are made at the same time, the appellant will have to lodge his appeal against the decision to vary leave and the decision to remove at the same time. There is therefore only one appeal which covers the refusal to vary leave and the decision to remove the applicant. UKBA pay support costs to Local Authorities who look after UASC and former UASC who are in Leaving Care. Once an individual becomes appeal rights exhausted, Local Authorities must be informed immediately using ASL.1950 Notification of final outcome to Local Authority to ensure that UKBA end the support costs at the agreed time. Case owners should also use the appropriate annexed table below for guidance on the right of appeal, and associated documents to be issued. Annex 1 - Application for Further Leave was made before leave had expired - In time Annex 2 - Application for Further Leave was made after leave had expired Out of Time Annex 3 - No application for Further Leave lodged If the subject is successful at appeal and UK Border Agency does not exercise an onward RoA, he should be granted leave according to HO policy and the finding in the appeal. If the subject is unsuccessful at appeal, he will be liable to removal under section 10 of the Immigration and Asylum Act 1999. If the subject remains in the United Kingdom after his appeal rights are exhausted in respect of the section 82(2) (2002 Act) decision/s, he will be an overstayer under the terms of section 10 of the 1999 Act, as he has no granted leave or section 3C leave remaining. As removal action follows, the section 10 removal directions will need to be authorised by a warranted immigration officer.
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13. Recording an Application for Further Leave on CID

Once a case owner receives an application for further leave to enter or remain, they should ensure that CID is updated as follows: Click on the File tab on the left-hand side of the screen. Click on Applicant/Case Search. Type in the applicants reference number in the Reference Number field. Then click on the Search tab. If there are any dependants on the application, ensure that the main applicant is highlighted. Click on applicants initial asylum application under Associated Cases. Click on the Case Creation Link/Unlink tab. Enter applicants Home Office and/or Port reference numbers. Under Case Type, enter App for further leave (HP/DL/ELR). Enter Main Applicant under Association. Enter the date the application was raised. Click on Save/Exit to save and exit.
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13.1 When an applicant has accepted an invitation to attend an interview The case owner should update CID as follows: Insert applicants Home Office reference number and wait for the reference to appear on the screen. If it is a family case, click cursor on main applicants details and ensure that these are highlighted. Select the Calendar Events icon on the vertical toolbar. Click cursor in the Event Type field. Use the drop down list to select and enter the following static data value App for further leave HP/DL/ELR I/V. The following fields must also be completed: Centre using the static data drop-down select the appropriate unit. Booked For Date/Time enter the scheduled date and time of the interview here. Booked By User this field will auto populate. Booked By Unit this field will auto populate.
Unit Responsible this should be the unit which will be conducting the interview (in most cases this will be the same as Booked By Unit).
There is no need to complete the Restriction Type, Restricted From Date or Interpreter on the Priority fields. Click on Save/Exit to save changes and exit.
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13.2 When Refusing Further Leave Case owners should update CID as follows: Click on File on the left-hand side of the screen. Click on Applicant/Case Search. Type in applicants reference number in the Reference Number box. Click on the return key. Highlight the main applicant. Ensure that App for further leave (HP/DL/ELR) (code APPFL) is highlighted under Associated Cases. Click on the Case Details icon on the left-hand side of the screen. Then click on the Icon tab. Enter the decision as Refuse LTR (HP/DL/ELR). Click on the Person Details icon on the left-hand side of the screen. Click on the Person Notes tab. Make a note on the screen that the applicants leave to enter or remain in the United Kingdom has not been extended. Click on the Save/Exit button to save changes and exit.
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ANNEX 1 Application for Further Leave was made before Leave had Expired - In Time
Original application; Was Leave granted for less than 12 months? If Yes = applicant had no previous ROA If No = applicant had ROA ( whether or not ROA was exercised) Refusal will give rise to removal; case owners should consider whether there are any compassionate circumstances. If there are none, or they are not strong enough to merit a grant of leave, then NEW IMMIGRATION DECISION will be: Active Review outcome letter ASL Decision Notice ASL Appeal Notice IS87
Can the application for further leave be certified? If No ROA = In- country If Yes ROA = Out of country
Y Y N N
Refusal to vary leave s 82(2)(d) Y Y Y Y
Removal s82(2)(g) Y Y Y Y
N = In-country Y = Out of country N = In-country Y = Out of country
ASL 3820 ASL 3820 ASL 3820 ASL 3820
ASL 2178 ASL 3819 ASL 2178 ASL 3819
UK Non-UK UK Non-UK
ANNEX 2 - Application for Further Leave was made after Leave had Expired OUT OF TIME
ORIGINAL DECISION Original application; Was Leave granted for less than 12 months? If Yes = applicant had no previous ROA If No = applicant had ROA ( whether or not ROA was exercised) FURTHER LEAVE APPLICATION Refusal will give rise to removal; case owners should consider whether there are any compassionate circumstances. If there are none, or they are not strong enough to merit a grant of leave, then NEW IMMIGRATION DECISION will be: RELEVANT DOCUMENTS (in addition ASL.2186) Active Review Decision Appeal outcome letter Notice Notice ASL ASL IS87
Can the application for further leave be certified? If No ROA = In- country If Yes ROA = Out of country
Y Y N N
Refusal to vary leave s 82(2)(d) N/A N/A N/A N/A
Removal s82(2)(g) Y Y Y Y
N = In-country Y = Out of country N = In-country Y = Out of country
ASL 3820 ASL 3820 ASL 3820 ASL 3820
ASL 2179 ASL 2179 ASL 2179 ASL 2179
UK Non-UK UK Non-UK
ANNEX 3 No Application for Further Leave Lodged

ORIGINAL DECISION Original application; Was Leave granted for less than 12 months? If Yes = applicant had no previous ROA If No = applicant had previous ROA ( whether or not ROA was exercised) NO FURTHER LEAVE APPLICATION Refusal will give rise to removal; case owners should consider whether there are any compassionate circumstances. If there are none, or they are not strong enough to merit a grant of leave, then NEW IMMIGRATION DECISION will be: Refusal to vary leave s 82(2)(d) Y N/A Removal s82(2)(g) RELEVANT DOCUMENTS (in addition ASL.2186) Active Review Decision Appeal outcome letter Notice Notice ASL ASL IS87
THE RIGHT OF APPEAL Immigration Decision under Section 82 (g) will attract a Right of Appeal
owing to the effect of section 92(4) of 2002 ACT the appeal will be In-Country
N/A
3823
UK
N/A
owing to the effect of Section 92 of the 2002 Act the appeal will be Out of Country
N/A
3823
Non-UK
Document Control
Change Record
Version 1.0 2.0 3.0 4.0 5.0 Authors R. Bonwick S. Kaudeer S. Kaudeer C. Cook A.Piers & B.Nicholson Date 13/10/2008 29/10/2008 18/05/2009 26/10/2009 Change Reference First publication Update Branding only Update Introduction only Childrens Duty reference added Added references to Childrens AI and amended reference to ASL.1950.
Family Reunion
1. Introduction 1.1 Application of this instruction in respect of children and those with children 2. Family Reunion Policy 2.1 Eligibility 2.1.1 Eligible applicants 2.1.2 Ineligible applicants 2.1.3 Eligible sponsors 2.1.4 Ineligible sponsors 2.2 Family reunion entitlements (leave not status) 2.3 Family reunion costs and charges 2.4 Refugees sur place 2.5 Other routes of entry 3. Family Reunion Process 3.1 Applications for family reunion originating abroad 3.1.1 On arrival in the UK 3.1.2 Entry clearance visas not issued in line with the sponsor 3.2 In country applications for family reunion 3.3 Ownership of applications for family reunion made in country 3.4 Consideration of in country applications 3.4.1 Knowledge of language and life in the UK 3.5 Granting family reunion 3.5.1 Case Owner action raising application 3.5.2 Case Owner action granting application 3.6 Refusing family reunion 3.6.1 Rights of appeal 3.6.2 Case Owner action refusing application 4. Other Considerations 4.1 Cases where a dependants age is disputed 4.2 Children/Young People arriving in the UK unaccompanied or accompanied 4.3 Children conceived before the refugee fled to seek asylum in the UK 4.4 UK Born children 4.5 Adopted children 4.6 Polygamous marriages 4.7 Sponsors granted humanitarian protection (HP) before 30th August 2005 and discretionary leave (DL) Document Control
1. Introduction
The purpose of this instruction is to provide guidance to Case Owners in asylum teams in the regions in determining applications for family reunion made within the UK. Applications for family reunion should ordinarily be made from abroad, and indeed most are. However, the Immigration Rules do allow for applications for family reunion to be made from within the UK. For information on the handling of applications for family reunion made from outside the United Kingdom, please see the Entry Clearance Guidance chapters. The United Kingdom Border Agency recognises that families become fragmented because of the speed and manner in which a person seeking asylum has fled to the United Kingdom (UK), and because of the nature of conflict, war and persecution. Family reunion is intended to allow family members (that is, those who formed part of the family unit prior to the time that the sponsor 1 fled to seek protection) to reunite with their sponsors who are recognised refugees or are benefiting from a grant of humanitarian protection (post 30th August 2005) and rebuild their lives in the UK. The framework against which family reunion applications are made and considered is contained in Part 11 of the Immigration Rules 352A 352FJ, and as policy in this Asylum Instruction (AI). Under Part 11 of the Immigration Rules only pre-existing families are eligible for family reunion i.e. spouse, civil partner, unmarried/same sex partner and minor children who formed part of the family unit at the time the sponsor fled to seek asylum. Under Part 8 of the Immigration Rules, other family members of refugees and those granted humanitarian protection may be able to come to the UK. See Other routes of entry.
1.1 Application of this instruction in respect of children and those with children Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the UK Border Agency to carry out its existing functions in a way that takes into account the need to safeguard and promote the welfare of children in the UK. It does not impose any new functions, or override existing functions. Case Owners must comply with the section 55 duty in carrying out the actions set out in this instruction, in respect of children and those with children. The UK Border Agency statutory guidance under section 55 Every Child Matters Change for Children sets out the key principles to take into account in all Agency activities.
1
The sponsor is the individual who has been granted refugee status or humanitarian protection in the UK, and accordingly sponsors the applicant to join them.
Our statutory duty to children includes the need to demonstrate: Fair treatment which meets the same standard a British child would receive; The childs best interests are a primary, although not the only consideration, in any decision affecting the child; No discrimination of any kind; Asylum applications are dealt with in a timely fashion; Identification of those that might be at risk from harm.
2. Family Reunion Policy

Family reunion applications are considered under Part 11 of the Immigration Rules, paragraphs 352A-FJ, alongside the written policy contained within this instruction.
2.1 Eligibility Only pre-existing families qualify for family reunion. Paragraphs 352A-FJ of the Immigration Rules lay out the detailed eligibility for the different family reunion applications which may be made. The particular rule applicable to a family reunion application will depend upon the relationship of the applicant to the sponsor, and on the sponsors status. The exact criteria set out in the Immigration Rules must be applied when considering an application for family reunion. 2.1.1 Eligible applicants For the purposes of family reunion, paragraphs 352A-FJ define a qualifying family member of a person granted refugee status or humanitarian protection as; A spouse A civil partner An unmarried/same sex partner providing that the parties have lived together in a relationship akin to either marriage or civil partnership for two years or more and the sponsor was granted asylum or humanitarian protection on or after 9 October 2006. A child under the age of 18, who is not leading an independent life, is unmarried and is not in a civil partnership and has not formed an independent family unit. 2.1.2 Ineligible applicants The Immigration Rules and the UK Border Agencys policy do not allow the following persons to be applicants for family reunion purposes: Persons who fall within the terms of one of the exclusion clauses listed under 1F of the 1951 Refugee Convention Post-flight family members, including persons who formed the relationship with the sponsor in a third country, after the sponsor fled their country of origin and arrived in the UK to seek asylum Fiances, unless satisfying another rule, e.g., as a civil partner or unmarried/same sex partner (Immigration Rules 352A or 352AA) A dependent child over the age of 18 and other dependent relatives (e.g., elderly parents, siblings, etc.). Family members party to a polygamous 2 marriage Family members in a consanguineous 3 relationship
2 3
A polygamous marriage is one that includes more than two partners. A consanguineous relationship is one that is made up of two partners from the same kinship; the legal definition of consanguinity is directly relevant in determining whether a couple can marry.
Family members of children who have been recognised as a refugee or have been given humanitarian protection De facto adoption cases UK born children born after the grant of asylum (unless conceived preflight, see 4.3 Children conceived before the refugee fled to seek asylum in the UK and 4.4 UK Born children).
Some individuals within some of these categories may, however, qualify under another Immigration Rule (see Other routes of entry). 2.1.3 Eligible sponsors For the purposes of family reunion, paragraphs 352A-FJ define a sponsor as; A person who has been recognised in the UK as a refugee, who has not yet obtained British citizenship. A person who has been granted 5 years humanitarian protection but has not yet obtained British citizenship. A person who acquired their refugee status as a result of being the dependant of a sponsor who was recognised as a refugee but has not yet obtained British citizenship. A person who was granted 5 years humanitarian protection as a result of being the dependant of a sponsor who was granted 5 years humanitarian protection but has not yet obtained British citizenship. 2.1.4 Ineligible sponsors The Immigration Rules and the UK Border Agencys policy do not allow the following persons to be sponsors for family reunion purposes: An asylum seeker whose claim in the UK has not been determined A British Citizen (even though they were previously granted refugee status or humanitarian protection) A minor with leave otherwise qualifying him/her as a sponsor (even to sponsor parents). A family member of a refugee (or person granted 5 years humanitarian protection) who has obtained entry clearance from abroad to join them in the UK and who has not qualified as a refugee (or person eligible for humanitarian protection) in their own right. A family member of a refugee (or person granted 5 years humanitarian protection) who has been granted leave in line with the sponsor following an in country application for family reunion, and who has not qualified as a refugee (or person eligible for humanitarian protection) in their own right. See Other routes of entry for further information.
2.2 Family reunion entitlements (leave not status) Successful family reunion applicants will be granted leave in line with the sponsor but they will not be granted status in line as they themselves are not necessarily recognised as refugees. This leave will be granted to expire at
the same time as the sponsors leave expires. If the sponsor has indefinite leave to remain (ILR), the successful applicant will be granted ILR in line. As the dependant of a refugee, they are eligible for certain things that the refugee is entitled to, for example access to public funds, and a Convention Travel Document (subject to application form criteria). They are not automatically a refugee in their own right, however, and are not eligible to sponsor family reunion applications of their own under Part 11 of the Immigration Rules. All Convention Travel Documents issued to successful family reunion applicants since 21 February 2011 should contain an endorsement making it clear that the holder cannot sponsor under the family reunion rules in their own right.
2.3 Family reunion costs and charges Family reunion sponsors who are refugees or those with humanitarian protection are not required to meet the normal maintenance and accommodation requirements. There are no visa/settlement application charges for applications made for family reunion within Part 11 of the Immigration Rules.
2.4 Refugees sur place A "refugee sur place" is someone who falls within the Convention definition of a refugee some time after they left their home country or place of habitual residence. For instance, a person already outside their country of origin when a change of circumstances occurs in their home country which gives rise to a well-founded fear of persecution for a Convention reason. Individuals who are granted refugee status or humanitarian protection on sur place grounds are eligible for family reunion. For such individuals, as long as the family unit was formed before the claim of asylum, it will be treated as pre-flight.
2.5 Other routes of entry Those ineligible to apply for family reunion may be able to enter the UK through alternative routes, for example: Post-flight family members 4 of refugees and those with humanitarian protection may be eligible to join their sponsor under Immigration Rules 319L-U (Part 8) Other Dependant Relatives of refugees and those with humanitarian protection may be eligible to join their sponsor under Immigration Rules
4
The definition of post-flight family member is given in Rules 319L-U, and includes the spouse, civil partner, unmarried or same-sex partner, or child under 18, of the refugee or person with humanitarian protection.
319V-YB (Part 8) (see Eligible applicants for further information on who qualifies as a dependant) These applications are not family reunion applications, rather they are alternative routes of entry to the UK for extended family members of refugees and those with humanitarian protection. Both of these routes are charged, and the sponsor is required to meet the maintenance and accommodation requirements. For further information on these routes of entry, please see the Entry Clearance Guidance.
3. Family Reunion Process

3.1 Applications for family reunion originating abroad Family members living outside the UK wishing to join a family member in this country under family reunion rules should seek the appropriate entry clearance from Posts in their country of residence. See Entry Clearance Guidance. 3.1.1 On arrival in the UK On arrival, an Immigration Officer (IO) will examine the individuals entry clearance visa, and if satisfied as to the identity of the family reunion family member, the IO will grant leave to enter to the individual as per their entry clearance visa. The entry clearance visa does not confer status in line, only leave in line. 3.1.2 Entry clearance visas not issued in line with the sponsor The visa affixed to the applicants passport/Uniform Format Form (UFF) 5 should be endorsed with leave in line with the applicants UK sponsor. If for some reason the visa has been endorsed in error with leave that is different to that held by the sponsor, the applicant should write to the Referred Casework Unit (RCU) at: UK Border Agency Referred Casework Unit (IG) EC Errors 15th Floor Apollo House 36 Wellesley Road Croydon CR9 3 RR The applicant should state what they believe the error to be and enclose the original document they used to travel to the UK on, with two passport sized photographs for each applicant, with their names and dates of birth on the back of each photo.
3.2 In country applications for family reunion The Immigration Rules paragraphs 352A-FJ allow for in country applications. Applications made under the rules are non-charged and should be made in one of two ways: by letter to the Case Owner who processed the sponsors asylum application and granted leave; or using from FLR (O), sent to the Case Owner who processed the sponsors asylum application and granted leave, NOT to the address
5
Uniform Format Form (UFF) - a one way travel document issued by Entry Clearance Officers (ECO) at Posts abroad to applicants who do not own or hold suitable travel documentation. It should be noted that an individual is not required to hold a passport in order to make an application for family reunion.
given on form FLR(O). If form FLR(O) is sent to the address given on the form, it may be rejected in error as this is a fee-processing centre, and family reunion applications should not be accompanied by a fee.
3.3 Ownership of applications for family reunion made in country In country applications should be allocated to the unit who were responsible for resolving the asylum claim of the sponsor of the family reunion application. If the family have moved to an address covered by a different region then the region that covers the current address should take responsibility for dealing with the family reunion application. Case Owners should be aware that they may need to transfer out, or accept transfer in of, a family reunion application on this basis.
3.4 Consideration of in country applications On receipt of an application Case Owners must be satisfied of the following: That the applicant satisfies the requirements of the Immigration Rules 352AFJ. The applicant is who they claim to be (if individuals have not been through the screening process Case Owners will need to make the appropriate arrangements to have the applicant fingerprinted to confirm their identity, or tie them into an identity). The applicants are related as claimed to the sponsor. That the applicants formed part of the family unit prior to the sponsor having fled their country of origin to claim asylum in the UK. That evidence has been produced to establish that the relationship between the sponsor and the applicant is genuine i.e. that they lived together as a family unit prior to the sponsor having fled the country of origin to seek asylum in the UK and that since the applicants arrival in the UK they have lived together, subsisting as a family unit and intend to continue to do so. However, failure to produce evidence of cohabitation in their country of origin, correspondence or contact during the period they were apart would not alone provide reason to refuse the application. Requests for documents should be sensible and realistic. Providing the Case Owner is satisfied that the evidence submitted shows that the dependant is who they claim to be and the relationship between the sponsor and the applicant is genuine and subsisting, the Case Owner may grant leave in line with the sponsor. If further evidence is required to substantiate the relationship, enquiries in the first instance should be made by post. If the Case Owner is still not satisfied
with the evidence they may, if they think necessary, arrange an interview with the sponsor and/or the dependant(s). 3.4.1 Knowledge of language and life in the UK Applicants for Family Reunion who make their application from within the UK are exempt from the Knowledge of Language and Life in the UK requirement.
3.5 Granting family reunion If Case Owners are satisfied that the relationship is as claimed then leave only should be granted in line with the sponsor. 3.6 Refusing family reunion If the Case Owner is not satisfied that that the dependant is eligible for family reunion under the Immigration Rules/policy, or they fail, without reasonable explanation, to respond to requests for further information, then the application should be refused, unless refusal would be contrary to Article 8 of the European Convention of Human Rights (ECHR) or paragraph 395C of the Immigration Rules (where applicable). 3.6.1 Rights of appeal Where a decision has been made to refuse an in country application, any right of appeal will depend on the circumstances of each case, for example whether the applicant had leave at the time of the application, and whether the refusal is accompanied by an immigration decision.
4. Other Considerations
4.1 Cases where a dependants age is disputed Family Reunion as a child is only open to a minor child under the age of 18 who is not leading an independent life. In cases where the UK Border Agency sees the child (in country only), and they have little or no evidence to support their claimed age and their claim to be a child is doubted, an initial assessment of their age will be made. The applicant will be considered an adult if their physical appearance and/or general demeanour very strongly suggests that they are significantly over 18 years of age. In all other cases, we will give the applicant the benefit of the doubt and treat them as a child pending further investigation. Guidance on UKBA policy and processes for dealing with age disputed asylum claims can be found in the AI on Assessing Age. 4.2 Children/Young People arriving in the UK unaccompanied or accompanied Should a child or young person arrive in the UK unaccompanied or accompanied (by a person other than their parent/guardian) claiming that they are here to join their parent/guardian, then the following guidance relating to children arriving (unaccompanied and accompanied) in the UK should be referred to before taking any further action.
4.3 Children conceived before the refugee fled to seek asylum in the UK Children of the sponsor who were conceived before the sponsor fled to seek asylum in the UK, but born post-flight are considered part of the sponsors pre-existing family. Proof of relationship will be required, for example in the form of a birth certificate or other documentation. If the Case Owner is satisfied that the sponsor is the childs parent, then leave in line may be granted.
4.4 UK Born children For further guidance on dealing with children born in the UK who do not fit the criteria above in Children conceived before the refugee fled to seek asylum in the UK, see the AI on dependants.
4.5 Adopted children Where a sponsor has requested family reunion for a child adopted pre-flight, the sponsor must be able to demonstrate that they hold an adoption order, and that it was granted either by the administrative authority, or by a court which has the legal power to decide such applications. The adoption order should have been issued in the childs country of origin, or where he was living. Case Owners should ensure that the adoption order issued overseas is recognised as valid for the purposes of UK law. Family Reunion applications involving de facto adoptions are considered outside the
Immigration Rules. Where such a situation is brought to the attention of a Case Owner a referral must be made to social services. For further information see the section headed adopted children in Chapter 8 - Family members of the Immigration Directorate Instructions (IDIs).
4.6 Polygamous marriages Paragraph 296 of the Immigration Rules states Nothing in these Rules shall be construed as permitting a child to be granted entry clearance, leave to enter or remain, or variation of leave where his parent is party to a polygamous marriage or civil partnership and any application by that parent for admission or leave to remain for settlement or with a view to settlement would be refused pursuant to paragraphs 278 or 278A. The Immigration Rules on polygamous marriages also apply to Family Reunion. For further information see the section headed polygamous marriages in Chapter 8 - Family members of the IDIs. 4.7 Sponsors granted humanitarian protection (HP) before 30th August 2005 and discretionary leave (DL) The family members of sponsors who were granted HP before 30 August 2005 or DL are eligible to apply to join their sponsor once the latter has been granted ILR in the UK, normally after completion of three years HP or six years DL. This is not an application for family reunion, rather an application for settlement under Part 8 of the Immigration Rules. For further information see the relevant section depending on the relationship of the applicant to the sponsor in Chapter 8 - Family members of the IDIs.
Document Control
Change Record
Version 2.0 Authors CC Date 05/07/11 Change Reference First published as AI
PROCESSING AN ASYLUM APPLICATION FROM A CHILD

1. Introduction 1.1 Purpose of instruction and intended audience 1.2 United Nations Convention on the Rights of the Child (UNCRC) ARTICLE 2 Non-discrimination ARTICLE 3 Best Interests of the Child ARTICLE 12 Childs Views ARTICLE 22 Refugee Children ARTICLE 37 - Deprivation of Liberty ARTICLE 39 - Rehabilitation of Victims 1.3 Best Interests 2. Immigration Rules Relating to Children 3. Policy Relating to Dependent Children 3.1 Family members of principal applicants 3.2 Where a dependent child lodges a separate claim 3.3 A child as the dependant of another child 4. Definitions 4.1 Accompanied asylum seeking child (AASC) 4.2 Unaccompanied asylum seeking child (UASC) 4.3 Responsible Adult 5. Support for Children Applying for Asylum 5.1 Childrens Services/ Social Services 5.2 Role of UKBA in asylum support for children 5.3 Refugee Councils Panel of Advisers 5.4 Legal representation 6. Screening 6.1 Welfare proforma for children encountered at ports, LITs and LEOs 6.2 General principles 6.3 Fingerprints 6.4 Screening process 6.5 Children attending screening with an adult 6.6 Fingerprints and referrals to the Third Country Unit 7. Trafficking 7.1 General principles 7.2 Signs of trafficking 7.3 Handling and considering an asylum application from a child who may have been trafficked 8. Handling Applications 8.1 Allocation and handling of case files 8.2 Outstanding actions from screening
8.3 Actions prior to the First Reporting Event (FRE) 9. Referrals to Local Authorities 10. Procedure to Follow in the Event of a Missing Child 11. First Reporting Event (FRE) 11.1 General principles 12. Contact Management 13. Collecting Evidence from an Asylum Seeking Child 13.1 General principles 13.2 Interviewing accompanied or unaccompanied children 13.3 Prior to the interview 13.4 The interview 13.5 Additional information 13.6 Requesting case files of family members or other cases related to the child 14. Visa Application Form (VAF) Checks 15. Family Tracing & Reunification 15.1 Family tracing and contact 16. Assessing an Asylum Application from a Child 16.1 General principles 16.2 Age and maturity 16.3 Family circumstances 16.4 Assessing credibility 16.5 Child specific persecution 16.5.1 Fear 16.5.2 Well-Foundedness 16.5.3 Persecution 16.6 Harmful traditional practices 16.7 Child soldiers 16.8 Religion 16.9 Political opinion 16.10 Membership of a particular social group 16.11 Agents of persecution and access to protection 16.12 Internal relocation 16.13 Child abuse 17. Possible Outcomes of Applications 17.1 Non-Compliance 17.2 Withdrawals 17.3 Article 1F Exclusion 17.4 Refugee status and the grant of asylum 17.5 Humanitarian Protection 17.6 Discretionary Leave - general policy
17.7 Discretionary Leave under UASC Policy 17.8 Best interests and duty under section 55 of the Borders, Citizenship and Immigration Act 2009. 17.8.1 Working with Local Authorities 17.8.2 Overall Assessment of Best Interests 17.9 Outright Refusal (a) UASC (b) Accompanied child 17.10 Drafting reasons for refusal letters 18. Decision Service Event 19. Appeals 20. Implementing the Decision to Return the section 55 duty 20.1 Implementing the decision to return Best Interests 21. Integration 22. Curtailing a Childs Leave to Enter or Remain 22.1 Definition of curtailment 22.2 Cessation, cancellation or revocation of refugee status 22.3 Curtailment of leave granted under HP or general DL policy 22.4 Curtailment of DL granted under UASC Policy 22.5 Deception 22.5.1 For EEA nationals only 22.6 Where it is discovered that a child was 18 or over at the time of the application 23. Handling Applications for Leave to be Granted in Line Process Map Glossary Document Control
1. Introduction
1.1 Purpose of instruction and intended audience This instruction sets out the policy and procedures to follow when dealing with an asylum application from a child. An asylum application can be made by, or on behalf of, a child whether accompanied or unaccompanied and must only be processed by a specially trained case owner who has received the requisite childrens training. This instruction is intended to provide guidance for case owners, Case Resolution Directorate (CRD) case workers, Chief Immigration Officers, Senior Case Workers and Presenting Officers as well as staff in the Asylum Screening Unit (ASU), ports, Local Immigration Teams (LIT) and Local Enforcement Offices (LEO). Within these instructions the terms child or children refer to persons under 18 years of age. Where the age of the applicant (and their status as a child) is in doubt, reference should be made to the detailed guidance provided in the Asylum Instruction on Assessing Age. Please note that where the persons age is in doubt he/she should be treated as a child unless and until a full age assessment shows him to be an adult. 1.2 United Nations Convention on the Rights of the Child (UNCRC) The UK is a signatory to the UN Convention on the Rights of the Child (UNCRC) and its text includes key commitments that UKBA has to meet when handling asylum applications from children. Case owners should familiarise themselves with the UNCRC with particular regard to the following articles: ARTICLE 2 Non-discrimination 1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's, or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. 2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members. ARTICLE 3 Best Interests of the Child 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary
consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform to the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision ARTICLE 12 Childs Views 1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall, in particular, be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law. ARTICLE 22 Refugee Children 1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties. 2. For this purpose, States Parties shall provide, as they consider appropriate, co-operation in any efforts by the United Nations and other competent intergovernmental organizations or nongovernmental organizations cooperating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason, as set forth in the present Convention. ARTICLE 37 - Deprivation of Liberty States Parties shall ensure that:
(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age; (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; (c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults, unless it is considered in the child's best interest not to do so, and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances; (d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action. ARTICLE 39 - Rehabilitation of Victims States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, selfrespect and dignity of the child. The obligation to ensure that in all actions concerning children, the best interests of the child shall be a primary consideration can be demonstrated by adherence to section 55 of the Borders, Citizen and Immigration Act 2009. 1.3 Best Interests Article 3 of the UNCRC obligates the UKBA to ensure that the best interests of the child are a primary consideration in all actions concerning the child. This guidance must be read with this principle clearly in mind and the understanding that Best Interests is a continuous assessment that starts from the moment the child is encountered and continues until such time as a durable solution has been reached. 1.4 The new statutory duty to safeguard and promote the welfare of children in the UK Case owners also need to be aware that, effective from 2 November 2009, Section 55 of the Borders, Citizen and Immigration Act 2009 (hereafter the section 55 duty) introduced a statutory duty on the Home Secretary to make arrangements to ensure that UKBA functions (and services carried out
by third parties on UKBAs behalf) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom. This statutory duty extends to all UKBA staff and those acting on behalf of UKBA when carrying out immigration functions in relation to children within the UK (as a matter of policy, UKBA staff working overseas are also expected to act in accordance with the duty, albeit that the basis is not statutory). Therefore those dealing with asylum applications from children (or from those whose claimed age is doubtful but are being treated as children) must have regard to the detailed guidance provided in this instruction and elsewhere as part of these arrangements. Case owners dealing with children should therefore check they are familiar with the general approach (summarised below) described in the separate guidance - Arrangements to Safeguard and Promote the Welfare of Children for those Exercising UK Border Agency Functions. The new general guidance replaces the Code of Practice for Keeping Children Safe from Harm and describes the relationship between carrying out UKBAs chief functions including immigration control and achieving the departure of those with no legal basis of stay - and the new statutory duty. The Statutory Guidance to the UKBA on making arrangements to safeguard and promote the welfare of children, issued under section 55, sets out the key arrangements for safeguarding and promoting the welfare of children as they apply both generally to public bodies who deal with children (Part 1) and specifically to the UKBA (Part 2). Any person exercising immigration, asylum, nationality and customs functions are required to have regard to this guidance. The guidance indicates that UKBA must act in accordance with the following principles : Every child matters, even if they are someone subject to immigration control. The best interests of the child will be a primary consideration when making decisions affecting children. Ethnic identity, language, religion, faith, gender and disability are taken into account when working with a child and their family. Children should be consulted and the wishes and feelings of children taken into account, wherever practicable, when decisions affecting them are made. Where parents and carers are present, they will have primary responsibility for the childrens concerns. Children should have their applications dealt with in a way that minimises the uncertainty that they may experience.
The detailed guidance that follows in this instruction has been revised to reflect the section 55 duty and consideration of the best interests of the child. Being familiar with and applying the detailed guidance that follows in this instruction will enable immigration officers, case owners and other UKBA staff
to demonstrate that the childs welfare has been taken account of in the processing of their case. 1.5 Other guidance Case owners may also wish to refer to the following documents which primarily reflect obligations of agencies and especially local authorities with respect to safeguarding and promoting the welfare of children: Every Child Matters ;in Scotland, Getting it right for every child ; and in Wales, Child and Young People: Rights to Action. Case owners may also find it helpful to read UNHCRs Guidelines on International Protection: Child Claims under Article 1(A)2 and 1F of the 1951 and/or 19667 Protocol relating to the Status of Refugees. Back to contents
2. Immigration Rules Relating to Children

The Immigration Rules make specific provision for asylum-seeking children and the safeguarding and promotion of their welfare during key parts of the asylum process: Paragraph 349 of HC 395 (as amended) defines a child for the purpose of an asylum application, as a person, who is under the age of 18 or, in the absence of any documentary evidence, appears to be under that age Paragraph 350 provides for unaccompanied children wishing to apply for asylum and, in view of their potential vulnerability, requires that particular priority and care be given to the handling of their cases Paragraph 351 explains that a person of any age may qualify for refugee status under the 1951 UN Convention relating to the Status of Refugees. However, account should be taken of the applicant's maturity and in assessing the application of a child more weight should be given to objective indications of risk than to the child's state of mind and understanding of their situation. An asylum application made on behalf of a child should not be refused solely because the child is too young to understand his situation or to have formed a well founded fear of persecution. Close attention should be given to the welfare of the child at all times Paragraph 352 requires that an accompanied or unaccompanied child (over the age of 12) who has applied for asylum in their own right be interviewed about the substance of their application unless the child is unfit or unable to be interviewed. This paragraph also requires that when a child is subject to a substantive asylum interview: - the interview should be conducted in the presence of a Responsible Adult (i.e. a parent, guardian, representative or another adult who has responsibility for the child but is independent of the Secretary of Sate) - the interviewer should have specialist training in the interviewing of children and have particular regard to the possibility that the child feels inhibited or alarmed - the child shall be allowed to express himself in his own way and at his own speed. If he appears tired or distressed, the interview will be suspended. The interviewer should then consider whether it would be appropriate for the interview to be resumed the same day or on another day. Para 352ZA stipulates that as soon as possible after an asylum claim is made, measures are taken by the Secretary Of State (i.e. case owners) to ensure that: - a representative represents or assists the unaccompanied child with respect to the examination of the application
the representative is given the opportunity to inform the unaccompanied child about the meaning and possible consequences of the interview and, where appropriate, how to prepare himself for the interview.
The representative also has the right to be present at the interview and ask questions and make comments in the interview, within the framework set by the interviewer. Para 352ZB requires that the decision on the asylum claim is also taken by a person trained to deal with asylum claims from children
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3. Policy Relating to Dependent Children

3.1 Family members of principal applicants i.e. their spouse and/or minor children, will normally be considered as their dependants. A dependent child who reaches the age of 18 prior to the decision on the principal applicants application must continue to be treated as a dependant for the purposes of the application. At this point they can also make an application for asylum in their own right if they wish to do so. 3.2 Where a dependent child lodges a separate claim A dependent child can also lodge a claim for asylum in their own right but where the child has previously been served with a one-stop notice as a dependant, and failed to raise asylum in a statement of additional grounds, consideration should be given to issuing a certificate under section 96 of the 2002 Act, after exploring all possible legitimate reasons for not doing so. Parents of a child applying for asylum cannot be considered as dependent on their childs claim. 3.3 A child as the dependant of another child For the purposes of claiming asylum, a child cannot normally be regarded as the dependant in a siblings claim. They would need to make their own claim and their files should be blue-taped together to ensure that the files travel together until the action or decision required has been completed and the cases concluded. Siblings may provide useful evidence relating to each others claims in some cases and it may be appropriate, in keeping with the Immigration Rules and section 55 duty to ensure case owners proactively seek to consider this issue in their decision making. The only circumstances in which a child may be treated as a dependant on another child s application is where they are married to each other, in a civil partnership or in a same sex or unmarried relationship which has subsisted for two years or more, or where the principal applicant is the parent of the younger (dependent) child. Evidence of the relationship, e.g. a valid and genuine marriage certificate or birth certificate, is required. Other documentary evidence can be submitted and should be considered on a case-by-case basis, taking into account all the circumstances of the case including conditions in the childs country of origin the childs country of origin. Back to contents
4. Definitions
4.1 Accompanied asylum seeking child (AASC) An accompanied asylum seeking child is a child who: is applying for asylum in their own right; and forms part of a family group; or is separated from both parents and is being cared for by an adult who by law has responsibility to do so or is in a private fostering arrangement. The accompanying adult will be asked to provide evidence of the above relationship, e.g. a genuine birth certificate or guardianship papers. A private fostering arrangement is defined when an adult (aside from the childs parent) is looking after a child for duration of more than 28 days. A referral to the Local Authority must be carried out to assess the appropriateness of the placement. Back to contents 4.2 Unaccompanied asylum seeking child (UASC) An unaccompanied asylum seeking child is a child who is: applying for asylum in their own right; and is separated from both parents and is not being cared for by an adult who by law has responsibility to do so A child may move between the unaccompanied and accompanied categories whilst their applications are under consideration, e.g. where a child arrives alone but is later united with other family members in the UK, or a child arrives with their parents or close relatives but is later abandoned, or a trafficked child, or one brought in on false papers with an adult claiming to be a relative. Back to contents 4.3 Responsible Adult Suitable people to perform this role: Social worker, Local Authority key worker, relative, or foster carer would be suitable people. However, other people/persons who are independent of the Secretary of State and have responsibility for the child could also assume this role, such as a doctor, priest, vicar, teacher, charity worker or Refugee Council representative. In some cases and only with the consent of the child the legal representative may act additionally in the capacity of responsible adult. The child must be asked prior to the interview to confirm whether he/she is happy with the person acting as their Responsible Adult and the Responsible Adult must be content to act within the scope of their duties as described by the case owner in the asylum interview preamble.
The main roles of a Responsible Adult include the following: to be present at the substantive asylum interview and to ensure that the child is not unduly inhibited or alarmed by the interview process to ensure that the child understands the interview process to give moral support and reassurance as necessary to the child to facilitate communication between the child and the interviewing officer where necessary to ensure that all welfare needs relating to the child are sufficiently provided for e.g. adequate breaks, refreshments, etc. to offer any additional information to the interviewing officer which may have a bearing on the childs emotional wellbeing and fitness for interview (eg. bringing to the case owners attention that the child is fasting or mentioning that they have had a long journey and an early morning start to attend the interview.) In some cases the Responsible Adult may also accompany the child during the screening interview. A Responsible Adult does need to be present when fingerprints are taken from a child of less than 16 years of age. What falls outside the Responsible Adults remit: The Responsible Adult is not present to answer questions on behalf of the child but may intervene if it is clear to him/her that the child is becoming distressed or tired and a break is required. At the conclusion of the substantive asylum interview the interviewing officer will confirm that the child has understood all the questions and will give the child an opportunity to add any information that they would like to be considered. The Responsible Adult and legal representative will also have an opportunity to add any comments relating to the conduct of the interview process. If it is clear to the interviewing officer that the responsible adult is not fulfilling his/her role they should consider suspending the interview. Back to contents
5. Support for Children Applying for Asylum

This section provides guidance on authorities that provide support for children applying for asylum. 5.1 Childrens Services/ Social Services Local Authorities in England and Wales have a duty under Sections 17 and 20 of the Children Act 1989 (s22 & s93 of the Children (Scotland) Act 1995 in Scotland) to provide support for unaccompanied asylum seeking children, Section 17 places a general duty on every Local Authority to safeguard and promote the welfare of children in need within their area by providing services appropriate to those childrens needs. Section 20 requires every Local Authority to provide accommodation for children in need within their area who require accommodation if: there is no person who has parental responsibility for them; the children have been lost or abandoned; or the person who has been caring for them has not been able to provide them with suitable accommodation.
The local authoritys assessment of the individuals needs will be the basis on which the authority will provide them with suitable accommodation and related support. In England, this assessment and support will be the responsibility of the Childrens Services departments within a Local Authority and in Wales and Scotland, within the Local Authorities Social Services departments. 5.2 Role of UKBA in asylum support for children The only circumstance in which UKBA provides support for asylum seeking children is when they form part of a UKBA-supported asylum-seeking family. 5.3 Refugee Councils Panel of Advisers The role of the Panel of Advisers is to advise and assist an unaccompanied child in their dealings with UKBA and other central and local government agencies (e.g. Local Authorities) while their application is outstanding. The adviser will not offer legal advice. All children must be referred to the Refugee Panel within 24 hours of the application being made. Referrals which include details of the child are usually carried out by case owners via fax. Contact details for the Panel of Advisors are as follows: 240 250 Ferndale Road, London SW9 8BB Tel: 02073461134 Fax: 02073461140
5.4 Legal representation All children are eligible to receive legal aid to help them with their asylum application and the Legal Services Commission (LSC) will fund a legal representatives attendance at a screening event and a substantive interview. However, funding is not available for the 'First Reporting Event' or other 'Reporting Event'. Back to contents
6. Screening
This section provides an overview of the screening process that should be followed by staff in the Asylum Screening Unit (ASU), ports and Local Immigration Teams (LITs). 6.1 Welfare pro-forma for children encountered at ASU, ports and LITs Children who attend ASU, or who are encountered at ports or by LIT enforcement officers may sometimes have travelled extensively before arriving at their final destination in the UK. Officers should take this into account and offer children refreshments, access to toilet facilities and if required, an adequate amount of rest prior to the commencement of any immigration interview. The Welfare Pro-Forma (ASL.4261 - available on DOCGEN) should be completed to ensure the child is fit to be interviewed. Its purpose should be clearly stated to the child, all the questions asked and all answers recorded. The answers should then be attached to the applicants file. Once completed, please refer to the guidance on the full screening process below. 6.2 General principles The purpose of the screening process is to register an application for asylum. An application which can be understood as a request for international protection will be presumed to be an application for asylum. Screening is not the place to explore the claim for asylum. The screening process for child applicants is designed to obtain details about: the childs identity, country of origin and family, the history of how they arrived in the UK and their documentation; any previous claims for asylum; their health and any special needs; security-related information; and, the identity of anyone accompanying the child or acting as their Responsible Adult. Additionally, the applicants photograph and fingerprints are taken. Screening officers must deal with children as a priority in view of their vulnerability. It is a requirement of the immigration rules (paragraph 352) that a Responsible Adult be present where an unaccompanied child is interviewed about the substance of their claim i.e. when they are subject to a substantive asylum interview. There is no requirement for a Responsible Adult to be present when the child is being interviewed initially (for example at first contact) or at their screening interview and it is in the interest of the child that these interviews are not delayed unnecessarily e.g. while arrangements are made for the Responsible Adult to be present. However, the child may prefer to be screened in the presence of a legal representative. When this is the case, every opportunity should be taken to accommodate the childs wishes though these need to be balanced against operational needs and the likely delay in re-booking the screening interview.
Where there is no Responsible Adult or legal representative present, particular care is required to ensure that the approach in the screening or other non-substantive interview does not goes beyond inviting a response that verifies that asylum is being claimed. So, in the process of registering their asylum application, an interviewer may ask a child Are you saying that you are afraid to return to your home country? An initial interview or screening interview without a Responsible Adult or legal representative present should not however involve a child being asked to explain or elaborate on why they are afraid to return to their home country. However, it should be explained to the child that they will have an opportunity to explain these details at a later date. It may be that details or information relating to the substance of their asylum claim are nevertheless volunteered by an unaccompanied child in the course of verifying that they are applying for asylum in the UK. Asylum decision makers should not rely on details or information obtained from an interview where no Responsible Adult or legal representative was present unless these details or information have been explored and raised with the applicant during the substantive asylum interview - in the presence of a Responsible Adult or legal representative - and the applicant has been given an opportunity to explain any related issues or inconsistencies. But case owners must always bear in mind that the purpose of the screening interview is not to go into details of the asylum claim itself regardless of whether a Responsible Adult is present or not. Screening staff should be alert to the possibility and to any signs that the child is at risk of harm or abuse or may have been trafficked. See section 7. below and further guidance (including making referrals to the local authority) contained in the Victims of Trafficking instruction. 6.3 Fingerprints The presence of a parent, guardian or a Responsible Adult (i.e. a person who for the time being takes responsibility for the child (s.141(3), IAA Act 1999) when the fingerprints of a person under 16 years of age are being taken is a legal requirement. This person must be entirely independent of UKBA. It may therefore be appropriate to conduct the screening interview with minimum delay and then make arrangements for the childs fingerprints to be taken as soon as possible after that possibly the next day when a Responsible Adult can be present. The fingerprints of all minors aged 14 and above will be entered and cross referenced against the Eurodac database. Further information on this can be found at 6.5. For children encountered by a Local Immigration Team or Local Enforcement Office staff should refer to local instructions when determining when to conduct the screening interview. However, if the child is transferred to social services before their screening interview has been conducted then the screening interview should be conducted by the end of day 2.
Back to contents 6.4 Screening process All children should usually be screened; however this can vary depending on a childs maturity and individual circumstances. The childs details must be entered onto CID. For a child a special condition flag must be activated. If the child's status changes, the special flag condition must be closed. For example, the child is later joined by his/her parents, or the child is later assessed as an adult. Where two or more unaccompanied children are seeking asylum and are related, they must each be treated as an individual applicant. The case files, once created, must be blue-taped together and considered at the same time. Should the child not be in the care of a Local Authority it is the responsibility of the ASU or other screening officer to notify the relevant Local Authority, who will arrange for the child to be collected. The referral must be made by both phone and fax and must be recorded in the Home Office file and on CID. The screening officer must follow this up to make sure the information has been acted on by the Local Authority. The Notes field on CID must be updated with the contact details of whoever from the Local Authority has taken responsibility for the child. Unaccompanied children should not be permitted to leave the ASU alone. If the child provides any information that raises concern (e.g. about trafficking or exploitation issues), a more detailed screening interview should be arranged. If the information relates to criminal activity, the officer must contact the police as a matter of urgency. For further information see Section 7 within this AI. In such cases the child should be assured that the information will be treated confidentially. Before children leave the ASU or other screening location the following should be issued to them: An IS.96 form which grants temporary admission to the UK Children aged 12 or over must be issued with a letter to report to a case owner in 10 working days, for the First Reporting Event (FRE letter ICD.3391) A Self-Evidence Form (Self-Completion) (ASL.1957) should be issued which should be completed and returned to case owners within 20 working days An Application Registration Card (ARC), however, should the screening location not be ARC-enabled a time limited Standard Acknowledgement Letter (SAL) should be issued Applicants under the age of five should be issued with an ARC which bears the reference CUF (child under five). If the child claiming asylum is part of a family whose appeal rights are exhausted (ARE) and they are currently detained and awaiting removal, any subsequent asylum application made by the child in their own right should be
dealt with expeditiously. All aspects of the claim should be taken into account and the claim considered on its own individual merits. The following factors should be considered: does it amount to a claim? A mere assertion which cannot be particularised is not a claim further details should be requested- a response for a deadline should be reasonable in light of particular facts of claim if further information is not forthcoming a letter should be issued to the child detailing the reasons why their application is not being considered as a claim however, if, the claim is particularised (which gives details on who the risk is from or why they are at risk) the claim must be considered no certification under section 94 or 96 can be carried out unless and until the claim has been considered and rejected. if the childs particulars are very vague or similar to the parents claim and there is no element of different fear being claimed it may not be appropriate to issue the child with a SEF; however this will vary on a case-by case basis cases can be certified by case workers or OSCU as long as the family has been through the one-stop process if the one stop notice was served the claim can, if appropriate be refused and certified under section 96 if no one-stop notice was given the claim can, if appropriate, be refused and certified under section 94 a one stop notice should be issued. On receipt of the case the case owner must check the file for a referral notice to ensure that a referral to the relevant Childrens Services or Social Work Department has been made. Case owners must also check that the reasons for referral have been addressed, if it appears there has been no action after referral. This information must be recorded on CID within the notes field. Back to contents 6.5 Children attending screening with an adult There may be occasions where a child attends the screening unit accompanied by an adult. It will be necessary to verify the identity of the adult. Once the identity of the adult has been established (eg. Passport, Photographic Drivers Licence) the following checks should be carried out. Prior to the screening interview. If relevant information is obtained from the checks the case should be referred to Local Authority Social Services (see section 9) and other appropriate units including the Paladin team and UKBA Office of the Childrens Champion. The screening interview should not be proceed unless the case owner is advised otherwise by their manager. In all cases where the child is under 16 and the accompanying adult is not a parent or relative but is providing accommodation and care to the child for
more than 28 days then this private fostering arrangement must be referred to the local authority for approval in line with the guidance accompanying section 55. Consent should be sought from the accompanying adult for a set of fingerprints and their photograph. Their response should be noted by the screening officer. If the accompanying adult refuses to give their consent UKBA has no legal power to enforce the taking of their biometrics. Details of all referrals made must be attached to the HO file and minuted accordingly on CID. Back to contents 6.6 Fingerprints and referrals to the Third Country Unit All children aged five or over should have their fingerprints taken. Children under the age of five should not be fingerprinted; however their photographs should always be taken. As stated above, the fingerprints of a child under 16 can only be taken if they are accompanied by parent, guardian or a Responsible Adult (i.e. a person who for the time being takes responsibility for the child (s.141(3), IAA Act 1999). All fingerprints of those aged 14 and above need to be checked as quickly as possible against the Eurodac database. If there is a Eurodac match, a referral must be made to Third Country Unit (TCU) who will inform the screening unit or routing team if they are assuming responsibility for the case and liaise over accommodation, care etc. Back to contents
7. Trafficking
7.1 General principles This section provides guidance on the process that should be followed by case owners when they encounter an asylum seeking child who may be a victim of trafficking. Please note that section 9, provides detailed guidance on situations where case owners must make a referral to Local Authorities as part of their safeguarding duty. Broadly speaking, a child is a victim of trafficking if they have been moved into a situation where they are exploited. Children may be trafficked for a variety of different reasons. For further information http://www.crimereduction.gov.uk/toolkits/. For further information please refer to the paper on Safeguarding Child who may have been trafficked available on Every Child Matters. Back to contents 7.2 Signs of trafficking In having a regard to the need to safeguard and promote the welfare of children, case owners and others encountering children in the course of their work should be sensitive to possible indicators that a child may have been trafficked, such as: at port of entry the child may have entered the country illegally; either with no travel documents or on false documents the child has a prepared story very similar to that which other children have given unable to confirm the name and address of the person meeting them on arrival the childs journey or visa has been arranged by someone other than themselves or their family he/she is accompanied by an adult who insists on remaining with them at all times the child may appear withdrawn and refuses to talk or appears afraid to talk to a person in authority. the sponsor has previously made multiple visa applications for other children and/or has acted as the guarantor for other childrens visa applications. They may have/or known to have acted as the guarantor on the visa applications for other visitors who have not returned to their countries of origin on the expiry of those visas. a child currently residing in the UK goes missing from local authority care a poor relationship exists between the child and their adult carers the child may be one among a number of unrelated children found at the same address the child is not enrolled/or attending school.
Case owners should also be aware that children may also be internally trafficked within the UK. For further guidance please see Working Together to Safeguard Children (2010), What to do if you suspect a child is being abused (2006) and Arrangements to Safeguard and Promote the Welfare of Children for those Exercising UK Border Agency Functions . In cases where a child appears to have been trafficked, case owners should immediately speak to their senior caseworker, and make a referral to the local authority social worker or local police for the area in which the child is currently residing and complete a Children Intel Referral form. For further information contact the NSPCC National Child Trafficking Advice and Information Line tel. 0800 107 7057, or the United Kingdom Human Trafficking Centre (UKHTC www.ukhtc.org) on 0114 252 3891. Back to contents 7.3 Handling and considering an asylum application from a child who may have been trafficked This section provides guidance on how to handle and consider an asylum application from a child who may have been trafficked. Each case should be considered on its individual merits and in the context of the country on which it is based. Some victims of trafficking may be able to establish a 1951 Convention reason (such as membership of a particular social group) and have valid claims to refugee status. Section 16.5-16.7 also refer to some child-specific forms of persecution. Among the factors to consider is the risk of him or her being re-trafficked and therefore the risk of future harm through exploitation and abuse. When considering the childs application it will be important to gather information about the childs family, community and general conditions in the country of origin before considering the decision. The UNHCR have produced guidance on the application of Article 1A (2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees to victims of trafficking and persons at risk of being trafficked. There may be some instances where the child may come to the attention of Local Enforcement Officers or police as victims of trafficking in the first instances rather than asylum applicants. However, case owners should ensure that in keeping with paragraph 327 of the Immigration Rules, any application for international protection is treated as an asylum claim. Back to contents
8. Handling Applications
8.1 Allocation and handling of case files The case is referred by phone to the Asylum Routing Team who will allocate the file to an Asylum Team in the region that the applicant is to reside. 8.2 Outstanding actions from screening check for any outstanding referrals telephone the Local Authority to check whether they are aware of the case. Note - For port, or local enforcement office cases, there may be a delay between the taking of the fingerprints and the results being checked against Eurodac. The asylum interview must not be arranged until the results of the fingerprint match have been received on file. In the event of a match, guidance must be taken from TCU on how to proceed with the asylum claim. If there are outstanding actions liaise with the screening officer and agree how the outstanding actions will be completed. ensure that this information has been recorded in the notes field on CID. If it is unclear whether the actions have been completed all actions must be undertaken any changes in the childs circumstances eg age, address are accurately recorded on CID.
8.3 Actions prior to the First Reporting Event (FRE) A FRE must be completed for all unaccompanied children who register an asylum application. This should always be a face-to-face meeting unless the child is in the care of Social Services, in which case it can be agreed between the case owner and social worker for the FRE to be conducted by telephone.
FRE to be set up by the Asylum Routing and Initial Accommodation Team if aged 12 and over inform the child when and where the FRE is to take place (FRE letter ICD.3391) Action to be arranged by case owner enquire whether a Responsible Adult is attending the FRE with the child if no Responsible Adult is available case owners can serve the relevant documents to the legal representative the Invitation to Interview letter must be posted and/or faxed to the legal representative, the social worker and/or legal guardian as soon as it is clear that a FRE cannot go ahead.
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9. Referrals to Local Authorities

If a child has been referred to a Local Authority because of concerns about the accompanying adult/sponsor, the case owner must check with the Local Authority as to what action is being taken, and agree a timeframe for the Local Authority to complete their checks. A letter/fax from the Local Authority stating that they are satisfied with the childs living arrangements must be submitted to the case owner in advance of or at the time of the First Reporting Event. If this is not received, the case owner must speak to the Local Authority and ensure that action is being taken. Further types of situation in which case owners must make a referral to the Local Authority or to other agencies with child protection responsibilities, are as follows: Where there are concerns about the current or future abuse of child for example: Neglect Physical abuse Emotional abuse Sexual abuse Where there are concerns about the lack or poor level of support a child may be receiving When the child is in a private fostering arrangement Where there are concerns that a family or care provider is not meeting a childs developmental needs Trafficking
If a child is identified as falling into one of the above categories, case owners must follow the procedure below: collect as much information as is necessary about the accompanying adult/sponsor. They must find out their full name, address, immigration status, relationship to the child and any other relevant information should there be a change of circumstances e.g. transfer of caring responsibilities, case owners should ensure the appropriate checks are conducted on the accompanying adult/sponsor/ any concerns must immediately be flagged up to a senior caseworker who is appropriately qualified to deal with Local Authorities. details of the problem, what information has been gathered and any recommendations should be clearly minuted in the file notes. it will not normally be appropriate for case owners to inform the child or their parents or carers that they intend to make a referral to the Local Authority in such cases. Case owners must consult a senior caseworker if they are in doubt.
where the child is believed to be at imminent risk, the referral to the Local Authority, police and UKBA Office of the Childrens Champion (OCC) should be made immediately. The child will not be allowed to leave UKBA premises until a placement in a safe situation has been arranged and agreed.
In addition: the case must be faxed to the relevant Local Authority. Case owners must call the Local Authority and verify if they have received the information sent the officer must fax a Children Services Referral Form containing all of the relevant information to the Local Authority, and update the electronic social services referral log. Case owners must telephone to confirm the fax has been received and is being acted on case owners must seek advice from a senior caseworker if they encounter any difficulties during the course of making such a referral referrals should usually be made within 1 working day. If the child is perceived to be ill at ease or shows fear of their guardian/sponsor or is perceived to be in immediate danger, an immediate referral must be made to the Duty Social Work Team or Duty Childrens Team for the relevant Local Authority. It may also be appropriate for the police to be contacted the Border Control Central Intelligence Unit must be contacted by the screening officer or case owner if there is evidence that the child has been trafficked all actions must be clearly minuted on the file as well as recorded in the person notes section on CID.
If, following a referral in these circumstances the Local Authority is or remains satisfied that the child should still be looked after by the guardian/sponsor, case owners must seek advice from a senior case worker before following the advice of the Local Authority. If the senior caseworker is not in agreement with the Local Authority, the case must be referred again to the UK Border Agency Childrens Protection Officer. Case owners must keep a record of the action agreed. Annex A Annex B Referral form to Local Authority Instruction on referring a child in need
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10. Procedure to Follow in the Event of a Missing Child

When a child goes missing, case owners must complete a missing childrens pro forma. Also please refer to section 6.1 of the Absconders AI which contains a flow chart detailing various actions for case owners to initiate in the event of a missing child. Back to contents
11. First Reporting Event (FRE)

11.1 General principles A FRE should be conducted by the childs allocated case owner or a UK Border Agency member of staff who has received the requisite childrens training. However, it may be more appropriate for unaccompanied children under the care of the social services to have their FRE conducted over the telephone with their social worker present and then have all the required documentation and information sent to them. This may be in cases where the case owner is unable to attend the FRE personally or when the time taken for the child to get to the reporting event is considered unreasonable. Depending on the age and maturity of the child, s/he may have views or how the FRE is arranged and where possible these views should be taken into account. Where a face-to-face FRE is going ahead, a suitable location for the FRE should be decided by the case owner in consultation with the social worker and/or accompanying adult/sponsor or the legal representative. Case owners must also consider whether it is necessary for an interpreter to attend the FRE and if so arrange for one to attend. The case owner should also check and consider whether the child has any particular needs and how these might be addressed. Where the child is legally represented, any information should be sent to that legal representative. The following documents must be produced in preparation for the FRE: invitation to Interview Letter covering letter to legal representative Invitation to Interview Letter an amended IS96 or IS248 If the FRE goes ahead as planned, the case owner must take the following actions prior to the event: verify that the Local Authority has been contacted. verify that the applicant has been fingerprinted and issued with an ARC. The purpose of the FRE is: to establish contact with the child, develop a rapport and, as far as possible, to put the child at ease with the person who will be undertaking the asylum interview and handling their application to explain - in child friendly language - the asylum process and that the substance of the asylum application will be discussed at the asylum interview to check on progress in completing the SEF to ensure the child has legal representation issue any relevant paperwork
to advise children of the existence of the assisted voluntary return programme (AVR) and provide them with a leaflet. It is important to stress that AVR is an option at any time for the child to consider if he/she would like to return home to his/her family and certainly not an indication that his/her claim will not be taken seriously. to stress the importance to the child, social worker and/or guardian with regards to complying with the asylum process, including any contact management requirements
The FRE should also be used to ascertain whether the child is still in contact with their family, if this is unclear from the information already provided. This is not limited to the parents, and should include other close family members such as siblings, aunts and uncles. If the child is not in contact with their family then, if appropriate, the child should be informed that in order to protect the childs best interests, UKBA is committed to doing what it can to trace the members of his or her family as soon as possible. In cases where there may be a danger or a threat to the child or their close relatives, particularly if they have remained in the country of origin, the tracing process may not be appropriate. In every case tracing must be undertaken with due care to avoid jeopardising the safety of all concerned (see section 15). Child applicants should also be informed of the family tracing services available through the British Red Cross and International Social Services. Their postal address is: Children & Families Across Borders (CFAB) Canterbury Court, Unit 1.03 1 - 3 Brixton Road London SW9 6DE Advice Line: Reception: Fax: e-mail: 020 7735 8941 020 3176 0253 020 7582 0696 info@cfab.uk.net
Both organisations can provide family tracing services and should be signposted to the child for him/her to make an informed choice. Instances where this signposting may not be appropriate include cases where the child has expressed a fear of certain close family members, or where the child becomes distressed at the idea of contact with the family. For further information see the Asylum Instruction on First Reporting Event (FRE) doc. Back to contents
12. Contact Management

Case owners must ensure that they establish an appropriate contact management strategy, which will be agreed with the childrens social worker and/or their accompanying adult/sponsor at the various milestones and in accordance with the childs age and level of understanding, which are as follows: FRE interview the decision service event if an appeal is lodged, at the determination service event continue beyond any grant of DL under the UASC policy this may involve telephone contact and/or visits or meetings at regular intervals.
When deciding on the contact management regime, the personal circumstances of the child which may influence the nature and frequency of the contact, e.g. their age, level of understanding, area of residence, the amount of leave (DL) the child has been granted and any other relevant factors should be taken into account. It is essential that any actions taken or decisions made and the reasons for them are recorded by case owners on the case notes field on CID. Back to contents
13. Collecting Evidence from an Asylum Seeking Child

13.1 General principles At all stages of the process, but with particular emphasis when obtaining, and then assessing evidence from a child, case owners must have a regard the best interests of the child which is encapsulated in the section 55 duty to safeguard and promote the welfare of the applicant. The following general principles must also be applied: be aware that children do not often provide as much detail as adults in recalling abusive experiences and may often manifest their fears differently from adults assess evidence provided by a child in the light of their age and degree of mental development and maturity currently and at all material times in the past, together with any available knowledge of their personal, family, cultural and educational background be proactive in identifying, pursuing and considering objective factors and information that may be relevant to the childs asylum claim
consider evidence from a range of other sources such as information from other family members, accompanying adults or social workers. consider evidence from other agencies involved with the child which they are able to share and that may be relevant to the application consult a senior caseworker who has received specialist training in assessing childrens claims with regards to the appropriateness of information from other agencies, and the relevant policy unit as to whether the information and/or the source can be relied upon. All issues discussed should be recorded and minuted in the case file. The note field should also be updated on A-CID consider objective country information available in the Country of Origin Information (COI) Reports which can be used in conjunction with the Operational Guidance Notes (OGN) accessible internally on Horizon and publicly at: http://rds.homeoffice.gov.uk/rds/country_reports.html http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandla w/countryspecificasylumpolicyogns/ take account of factors which may affect consideration of the childs credibility (Rules para. 351 and para.16.4 below, refer)
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13.2 Interviewing accompanied or unaccompanied children Children aged twelve and over must be interviewed about the substance of their asylum application unless they are unfit or unable to be interviewed. Discretion should be used on whether to interview in cases where the child is younger especially if the child is mature and, if given the option, is willing to be interviewed. It may be appropriate in these cases to seek the advice of the social worker/accompanying adult or legal representative before proceeding. Physical and mental health considerations also need to be taken into account when considering whether going ahead with an interview is in the childs best interests. Case owners may decide in consultation with the social worker, accompanying adult or other responsible adult, and the legal representative, a suitable non-UKBA location for the substantive interview. E.g. Local Authority facility with which the child is familiar and comfortable. Back to contents 13.3 Prior to the interview case owners should use the Statement of Evidence Form (SEF) to thoroughly prepare for the interview, consulting any subjective or objective evidence considered appropriate. Case owners should consider the level of detail and the language used in the witness statement. This will help the case owner understand the education, maturity and general background of the child, thus indicating what is reasonable to ask at interview. If the childs claim is gender specific or there are other reasons to believe the child would prefer a female or male interviewing officer, this should be accommodated when possible. where it appears the child has not been able to secure legal representation the interview should usually be suspended to allow time for this to be arranged (unless the child has expressly stated that they do not want legal representation). At the beginning of the substantive asylum interview case owners must confirm: the identity of the child, checking against the IFB photographic records attached to the file, and the ARC card check that a Responsible Adult is available. A Responsible Adult must be present for the interview to go ahead check at the beginning that the child feels comfortable, and that any specific health and emotional needs are acknowledged and addressed in cases where an interpreter is present, that the interpreter and the child understand one another and that the interpreters manner is appropriate. Back to contents 13.4 The interview
Particular care is required at the substantive interview of a child applicant. Case owners should ensure that they: interview in a sensitive manner using appropriate tone, body language and eye contact with the child during the interview and using a vocabulary that is appropriate to the childs age, level of understanding and to their personal situation and ensuring the child is addressed rather than the interpreter. take time to establish a rapport with the child (e.g. by means of a short informal conversation with the child on a topic unrelated to their claim) before starting the substantive interview. This will help the child to relax and is likely to increase the chances that the child will be open and disclose relevant information to the interviewing officer. introduce each individual in the room (including themselves) to ensure the child is clear on who is present and their role(s) at the interview explain the asylum process including that it is permissible for the child to: - speak to their legal representative and/or Responsible Adult at any time in the interview - say where they dont understand a question - say if they need a break set the framework in which childs legal representative and/or Responsible Adult may ask questions and make comments in the interview are aware of the cultural sensitivity issues and acknowledge the fact that the child is giving information in an alien environment and may fear/distrust someone in authority check that the child is not hungry, thirsty or in any other physical discomfort or distress during the interview and that regular breaks are factored within the interview check at intervals throughout the interview that the child feels comfortable and where necessary consult with the Responsible Adult. during the course of the interview, if the child is perceived to be upset, which could affect their ability to provide information in a coherent manner case owners must stop the interview and assess the situation. If the child is unable to continue the interview, arrangements must be made to reschedule the interview for another date. In these circumstances consultation with the Responsible Adult will be appropriate. sensitively, put all inconsistencies in the childs subjective evidence or between the subjective and objective evidence to the child at the interview, to allow them an opportunity to explain further Back to contents 13.5 Additional information Consideration should also be given to interviewing relatives of children and also any other persons who have had sustained contact with the child (social workers, carers) if there is an indication they could elaborate on elements of
the childs claim which the child themselves appears to have had difficulty in getting across. It may also be possible for the relatives to corroborate parts of the childs claim when they are interviewed. The child should be made aware of any additional interviews and the legal representative should be permitted to comment. Where it has not been possible to interview a child and the Statement of Evidence Form (Self-completion) (ASL.1957) does not contain sufficient information, case owners should: write to the child via their representative and ask them to provide further information within an appropriate timescale consider visiting the child in the legal representatives presence, to gather the necessary details to make a decision or contact individuals who have had sustained contact with the child and may be able to elaborate on elements of the childs claim e.g. carers, social services. Back to contents 13.6 Requesting case files of family members or other cases related to the child In all cases it is good practice to call for the files of any accompanying siblings, accompanying adults or family members who may have made an asylum application in their own right and in the circumstances below: if a child is accompanied and the accompanying parent or other accompanying adult has an outstanding asylum application in their own right, case owners must call for their files to serve the decisions together a sub-file must be set up for accompanied children using the same file reference as the parents or accompanying adults. the relationship and dependency would need to be clearly established and the case files must be white-taped together if the child's asylum application is refused on asylum and human rights grounds, and the parents or accompanying adults application is also refused, UKBA will seek to remove the child together with the parent or accompanying adult once all appeal rights have been exhausted if the child has a brother or sister whose application for asylum has not yet been considered, their file must be requested and blue-taped together so the cases can be looked at together. Caseowners should investigate whether there is corroborative information contained within the separate files in order to make positive credibility findings. Conversely it may be the case that the files reveal significant differences that should be reflected appropriately in the decision letter. All actions relating to the blue taped files should happen at the same time until the cases are concluded. If the case files of the childs family members cannot be obtained, case owners must contact the relevant department and request that the relevant details be faxed over. Back to contents
14. Visa Application Form (VAF) Checks

In all asylum seeking childrens cases, case owners must check visa application forms (VAF) on the Central Reference System (CRS). The CRS is a web-based application and read-only system used to store information about visa applications. Such information includes: Personal details of the child Type of visa applied for Sponsors details Photograph of the child Details page from the childs passport Q&A interview notes or refusal notices associated with the application.
Photograph matches help to tackle the abuse of children being brought into the UK on false pretences. It may also assist in tracing the childs family in the country of origin; help to determine whether or not the child came to the UK with a parent or accompanying adult; or assist case owners to determine whether the childs parents or relatives are in the UK. It is also important to note that in some cases, children may not know that a visa has been applied for on their behalf. It is therefore important that any visa related evidence is presented to children in a sensitive manner. Back to contents
15. Family Tracing & Reunification

15.1 Family tracing and contact Regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005 states that: (1) So as to protect an unaccompanied minor's best interests, the Secretary of State shall endeavour to trace the members of the minor's family as soon as possible after the minor makes his claim for asylum. (2) In cases where there may be a threat to the life or integrity of the minor or the minor's close family, the Secretary of State shall take care to ensure that the collection, processing and circulation of information concerning the minor or his close family is undertaken on a confidential basis so as not to jeopardise his or their safety. There is therefore a general principle that family tracing should take place as soon as possible, and not necessarily be suspended until the asylum claim is finally determined. However this must be qualified by the need to protect the childs safety and the safety of his/her family that have remained in the country of origin. It will not therefore be appropriate to commence tracing until the case owner understands the nature of the asylum claim and is able to gauge the risk to the child or his/her family. The practical arrangement through which contact can be made with the family will be relevant to the assessment of when to begin tracing efforts. Each case should be considered on its merits depending on the particular circumstances. In some cases a direct telephone call to parents may be appropriate when it is clear that this would not place either the parent or child at risk. An example of this could be when the child is in regular telephone contact with his family. In other cases when the child has expressed a fear of the authorities, tracing efforts that will draw attention to the childs family will not be appropriate. Any tracing that is undertaken must consider the UKBAs section 55 duty to have regard to the need to safeguard and promote the welfare of children in the UK and whether it is in the childrens best interests to return them to their family or extended family, if reunification is possible. The main purpose of such contact with the family is: o to obtain information as to the familys current location and circumstances, and o to obtain information relevant to an assessment of whether there is a prospect of reuniting the child safely with their family in the event of return. The child may have been separated from their family through no fault of their own, and may want to return to their family. However, this may not always be the case, and any tracing undertaken by the UK Border Agency needs to be
balanced against the duty of confidentiality towards the child, especially before the case has been concluded. Any tracing must be reasonable and proportionate, with careful consideration of whether there is reason to believe that such enquiries might compromise the safety of the child or their family. In particular, case owners must take into account any child protection issues that need to be considered, that may make contacting the family inappropriate. Though normally regarded as being in the best interests of the child, family reunification could, in certain circumstances, not be in his or her best interests. This would be the case when it exposes or is likely to expose the child to harm. In all cases case owners must act carefully and communicate their intentions to the child. In some cases, British Embassies/High Commissions may be able to help with family tracing in the relevant country. The post must be given as much information as possible to help them with their enquiries such as details of any visas that the child may have been issued in the past, or information about any school the child attended, etc. The case owner may request a copy of the VAF from the overseas post. Contact details for British Embassies abroad can be obtained from the Foreign & Commonwealth Office's website. Family tracing can be a lengthy process, and contact with the family is only one aspect of the overall consideration. Any information obtained from the child at interview about the relationship ties with their family and their contact details and as well as information gathered from the family should be considered in the round with the other evidence available. Case owners should not defer making an initial decision pending the outcome of a tracing request, particularly if the decision is to afford international protection to the child. All tracing efforts should be minuted on CID and on the HO file and updated as necessary. Results of the tracing process can be forwarded as additional information within the appeal bundle in the event of a refusal and can be used at appeal even though it was not included in the decision letter. There may be an option for family reunification in a third country, where close or extended family of the child reside. In such circumstances caseowners should explore the possibility of reuniting the child there. This could be considered if the childs claim is either successful or unsuccessful.
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16. Assessing an Asylum Application from a Child

16.1 General principles
In addition to the requirements set out in the UN Convention Rights of the Child (UNCRC) and the duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children in the UK, the following are general principles which need to be observed when assessing a childs claim: consider applications within the framework set out at paragraphs 349 to 352 of the Immigration Rules and any other public commitments made on children every applicant, regardless of age, has to show to the same standard (a reasonable degree of likelihood) that they have a well-founded fear of persecution for a Convention reason while taking into account child-specific considerations and other factors that may impact upon the interpretation of these concepts. consider the factors that would affects a childs demeanour such as age, education, maturity, gender, the standing of the childs family in the community, their general life experience, trauma experienced and the cultural expectations and attributes of children in their country of origin. assess the credibility taking into account additional child specific factors allow for a different degree of understanding compared to what one would expect from an adult claimant when assessing claims from children, case owners may need to be proactive in their pursuit and consideration of objective factors and information relating to the childs claim child-specific Country of Origin Information should be obtained and referred to, wherever available where there are clear discrepancies in an account given by a child, case owners will need to consider the ability of a child to be able to clarify these discrepancies and how far these should be pursued during the interview. This can only be decided on a case-by-case basis and it may help to discuss complex case issues with an appropriately qualified senior caseworker. full consideration of the childs asylum claim should take place before case owners consider their eligibility for any other forms of leave (e.g. Humanitarian Protection or Discretionary Leave)
a specific best interests consideration which satisfies the requirements of Article 3 of the UN Convention on the Rights of the Child and the section 55 duty must also be abided in every case.
Back to contents In assessing applications from a child, case owners must consider the following: 16.2 Age and maturity More weight may need to be given to objective indications of risk than to the childs state of mind. Other factors to consider might include: documentary evidence, objective country evidence, evidence from people with knowledge of the child including post arrival in the UK. Any child psychological and physical heath and development reports or information from welfare and health support professionals to whom the child may have disclosed relevant evidence, (such as rape) which he/she may not have felt able to disclose to other should also be considered as part of the decision making process. In young or less mature children a different degree in their knowledge and information is to be expected and the benefit of the doubt must be applied more liberally. An asylum application made by a child must not be refused solely because the child is too young to understand their situation or to have formed a wellfounded fear of persecution. Back to contents 16.3 Family circumstances The circumstances of family members may be central to a childs asylum application. Whilst the child may have personally feared persecution, they may also fear, or are affected by, the experiences of other family members even though no harm may have come to the child and their fear is based upon what treatment family members have received. Back to contents 16.4 Assessing credibility A case owner must not draw an adverse credibility inference from omissions in the childs knowledge or account if it is likely that their age or maturity is factor or if there are logical or other reasons for those omissions. The benefit of the doubt will need to be applied more generously when dealing with a child, particularly where a child is unable to provide detail on a particular element of their claim.
There needs to be an awareness of the increased burden on case owners to ascertain and evaluate the facts of a childs asylum claim, including the need to be proactive in obtaining relevant objective information and evidence relevant to the childs claim (including COI and statements from relevant parties). Case owners must take account of what is reasonable to expect a child to know in his/her given set of circumstances and in doing so taking account of his/her age, maturity, education and other relevant factors. Case owners should demonstrate explicit consideration of any mitigating circumstances (as per the Credibility AI) that should be taken into account when assessing credibility in a childs claim. This will also apply to behaviours that fall within Section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, including: - the childs age and maturity - mental or emotional trauma experienced by the child - educational level - fear or mistrust of authorities - feelings of shame - painful memories, particularly those of a sexual nature A case-by-case approach will be required and if there is doubt, case owners must discuss the case with a senior caseworker. For further information on assessing credibility, see AI on Considering the Asylum Claim and UNHCR Handbook -Part One paragraphs 41 & 219. Back to contents 16.5 Child specific persecution In determining any asylum application, case owners must consider whether the applicant meets the definition of a refugee as set out within the Refugee Convention. For further information on well founded fear of being persecuted see UNHCR Handbook -Part One Paragraph 42. Special care is required when assessing a childs claim for asylum and account taken of the possibility that a child may not be able to make explicit reference to potentially applicable 1951 Convention reasons in the same way that an adult applicant, that an adult applicant could, when explaining their case. When considering whether the childs claim qualifies them under the definition of a refugee, case owners must consider the following: 16.5.1 Fear A child may have little or no concept of fear as, it may be common for parents not to share experiences or fears with their children. They may have been sent to safety by a parent or other family member before having experienced any ill-treatment or without their understanding why they were being sent away. Children may also be too young to comprehend what constitutes a risk, and what does not. For issues related to this awareness of fear and the reasons for it, a childs individual level of maturity and understanding will be relevant.
The child may have difficulties articulating their fear in an interview therefore, case owners should look at other sources of information in order to investigate the childs claim such as teachers or social workers who may be able to provide pertinent information specific to the child and also refer to objective country information. 16.5.2 Well-Foundedness A child may be less able to produce objective evidence to corroborate their claim, and may in fact have very limited life experience. Case owners must also be aware that a child may find it difficult to describe details extraneous to their direct experience, such as names of places, persons, or organisations. When considering the objective evidence in support of a childs case, it is important for case owners to refer to up-to-date relevant country of origin information. 16.5.3 Persecution Forms of, or reasons for, persecution may be directly influenced by age factors. The range of potential claims with an age dimension is varied, such as forcible or underage recruitment into military service, family or domestic violence, infanticide, forced or underage marriages, discrimination against street children, female genital mutilation, forced labour, forced prostitution, child pornography, trafficking, and children born outside of strict family planning laws and policies. While a child may suffer similar forms of persecution to adults, they may also experience different forms or ways of persecution from adults. It is important to recognise that, due to the variations in the psychological make-up of individuals, fear of persecution includes a subjective factor. Actions that might be considered mere harassment in the case of an adult could cause serious physical or psychological harm amounting to persecution in the case of a child. Back to contents 16.6 Harmful traditional practices In some countries harmful traditional practices exist such as female genital mutilation (FGM) or forced/underage marriages, and these may be carried out at the request of, or even arranged by family members. The fact that such harm may result from widespread social customs or conventions does not mean that it cannot amount to persecution. In such cases a States efforts and its ability to protect a child against these harmful practices, as well as the actions taken towards its eradication, need to be carefully evaluated. Even though a particular State may have prohibited such a persecutory practice, the State may nevertheless continue to condone, tolerate or ignore the practice and may be unable to stop it effectively. In such cases the practice might still amount to persecution (ie because there is insufficiency of protection) and there might still be a link to one of the five Refugee Convention grounds.
Back to contents 16.7 Child soldiers The forced conscription of a child into armed forces under the age of 18 is inconsistent with international law (ILO Convention on the Worst Forms of Child or Labour 1999 (Article 3); CRC Optional Protocol on the Involvement of Children in Armed Conflict (Article 2). A child recruited by non-state armed groups may also fall within this category. The serious long-term physical and psychological effects on the childs development and welfare mean that the use of children in hostilities constitutes a serious form of persecution. For further information see Section 3.2.1 of UNICEF and Children and armed conflict. Conscription of a child under 15 years is considered a war crime and this is irrespective of whether the child was forcibly conscripted or they volunteered. Where the voluntary recruitment of children aged 15-18 years is encountered, consideration needs to be given to the extent to which other factors may also have been involved, such as where there was vulnerability to recruitment due to poverty or separation from family. Case owners should consider the likely treatment of former child soldiers on return to their country of origin as a relevant factor in their asylum claim. They may be in danger of re-recruitment or military punishment, or may be subject to stigmatization, harassment, or ill-treatment by their community because of their past activities. Reference to the relevant Country Report or OGN for further country specific information should be carried out or a referral made to the War Crimes Unit. The state of mind of former child soldiers needs careful considering. Characteristics of this vulnerable group of children may include distrust of adults, guilt and fear of reprisal. Back to contents 16.8 Religion In some States, a persons religion assigns particular roles or behavioural codes to all, including a child. If a child does not fulfil their assigned role or refuses to abide by the codes, such as a female refusing to wear the veil or refusing to obey prescriptive gender roles, there may have a well-founded fear of being persecuted for reasons of religion. There is frequently an overlap between the grounds of religion and political opinion in age-related applications, especially regarding imputed political opinion. Religious tenets may require certain kinds of behaviour and contrary behaviour which may be perceived as evidence of an unacceptable political opinion that threatens the basic structure of power. This is particularly true in societies where there is little separation between religious and State institutions and laws and doctrines. Back to contents 16.9 Political opinion
Imputed or perceived political opinion may be relevant for a child, as they may be targeted as a member of a politically-active tribe, community or family. Or the persecutor wants to extract information or co-operation from politically active family-members, or to punish them. In such cases the child might not even know what the adults political activities or opinion are. A child can be politically active and/or hold particular political opinions independently of adults for which he or she may fear being persecuted. For example, children may be involved in the distribution of pamphlets, participation in demonstrations, acting as couriers, or engagement in subversive activities. These activities may be considered politically active in other countries but not in the UK. Back to contents 16.10 Membership of a particular social group Age groupings such as children or young men, or young girls may constitute a particular social group; depending on the specific country context and the treatment of this group and how they are perceived within that society and the laws of the relevant country. Case owners should bear in mind that at any given point, a childs age may be considered an immutable characteristic (i.e. not withstanding the fact that the child will ultimately grow out of his/her present age grouping). Although it should be possible to identify the group independently of the persecution, discrimination or persecution may be a relevant factor in determining the visibility of the group within a particular context. Case owners should also be aware that other particular social groups may be identifiable, such as street children, HIV / AIDS-affected children, children in armed forces or lesbian, gay, bi-sexual and transgender children. Back to contents 16.11 Agents of persecution and access to protection The need for international protection only arises where a state is either unable or unwilling to provide protection for a child. This may result from the fact that there is no effective means of legal recourse to prevent, investigate, or punish the form of persecution feared. Some persecutory practices are condoned or tolerated by the state, as can be the case with Female Genital Mutilation and other forms of child abuse. In these cases, it is important to remember that a childs relationship with the state is normally mediated through parents or other adults, who may condone the harm, providing active encouragement, participate directly in it or threaten the child with the negative repercussions of non-cooperation. If the State authorities do not condone the mistreatment, case owners must consider whether a child is likely to be able to understand or know how to initiate contact with appropriate state agencies. Cultural beliefs about the appropriate behaviour of children may prevent them from seeking the protection of the state, or may lead to them not being taken seriously when
they do so. Simply put, a child may have the knowledge of how to contact state agencies whilst lacking the means or power to seek their assistance. Back to contents 16.12 Internal relocation Case owners are reminded that when considering asylum claims from children, the issue of internal relocation must be based on the country situation alongside the childs age and maturity at the time of the decision. Cases will be determined on a case-by-case basis. For further information regarding Internal relocation please refer to the UNHCR Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees paras 55-57 (http://www.unhcr.org/refworld/docid/4b2f4f6d2.html) as well as the AI on Internal Relocation. Back to contents 16.13 Child abuse A childs application may include allegations of abuse. Such applications must be handled sensitively at all times. Where the alleged abuse is central to the application for asylum or Humanitarian Protection, case owners need to consider the following: are the alleged abusers family members or those who could be state or non state agents is the child at future risk of abuse for a Convention reason e.g. political opinion are there adequate child protection safeguards in place i.e. sufficiency of protection if the child or is returned would there be a future risk or can they be returned to a safe environment
Any allegations of abuse disclosed by a child must be referred to the local authority and/or police in all circumstances (see section 9). Case owners should also be vigilant and aware of the possibility that where there has been abuse by family members, this may be on-going in the UK. Case owners must discuss any doubts with a senior case worker. Back to contents
17. Possible Outcomes of Applications

In making any decision about a child/young person there must be a proper consideration of their best interests in accordance with our responsibility under Article 3 of the UN Convention of the Rights of the Child and section 55 of the Borders, Citizenship and Immigration Act 2009. Best Interests must be taken into account as a primary (but not the sole) consideration in every decision affecting the child. It is important that case owners demonstrate and record how they have considered best interests and the section 55 duty as well as the outcome. 17.1 Non-Compliance If a child fails to submit information when requested without reasonable explanation or submits the information late, case owners must make every effort to investigate the reasons for the non-compliance. Case owners must contact the Local Authority and, if necessary, the police if all attempts to locate the child prove futile. Back to contents 17.2 Withdrawals If a child fails to attend their personal interview their application may be treated as implicitly withdrawn as provided in paragraph 333C of the immigration rules. Case owners should, however, exercise extreme caution in handling occurrences of non-attendance of personal interviews in the case of children, taking in account their level of maturity and best interests. Every effort should be made to establish why the child failed to attend the interview as well as providing his/her legal representative to address this question and any reasons why the claim should not be treated as withdrawn. Back to contents 17.3 Article 1F Exclusion Children are not exempt from the Exclusion Clauses. However, it is important that case owners carefully consider the specific context of each case, for example the childs age and maturity, when considering how far the individual should be deemed liable for their actions. It is always important to treat each case on its merit. Personal circumstances, such as age or psychological functioning, may be relevant when investigating the level of knowledge a person had of what they were participating in as well as the childs ability or power to take alternative action. Back to contents 17.4 Refugee status and the grant of asylum A child who fulfils the criteria set out in the 1951 Convention or 1967 Protocol is a refugee and the requirements of paragraph 334 of the Immigration Rules. In granting asylum the United Kingdom is recognising the refugee's status and extending the protection required under its international obligations. In cases
where the child is found to be a refugee it will usually be clear that their best interests are served by remaining in the United Kingdom. Case owners should ensure that Local Authorities are aware of the outcome, so that social workers can ensure that the childs pathway plan reflects the likelihood of long term residency. There may be some cases where because the child has siblings or other family who are settled in a third country and would like to be reunited with these relatives it is in the childs best interests to join them. Case owners should discuss with social worker the possibility for the child to be resettled. Back to contents 17.5 Humanitarian Protection When a childs claim does not qualify for refugee status, case owners must consider whether they qualify for a grant of Humanitarian Protection (HP). Under paragraphs 339C and D of the Immigration Rules, Humanitarian Protection may be granted to a person who is in the United Kingdom and is not a refugee. In considering cases that do not come within the 1951 Refugee Convention, but where there might nonetheless be substantial grounds for believing that the child faces a real risk of harm in the country of return, case owners should consider credibility factors in the way described at paragraph 16.4 above. As with a grant of asylum, it will generally be the case that the childs best interests are to remain in the United Kingdom. Case owners should liaise with the childs local authority social worker in the same way as described in paragraph 17.4. Back to contents 17.6 Discretionary Leave - general policy Children who do not fulfil the criteria for asylum or HP should be granted Discretionary Leave (DL) if they meet any of the criteria set out in the AI on Discretionary Leave. In addition, if they meet the criteria for a grant of HP, but fall into one of the exclusion categories, they may still qualify for a grant of DL. In cases where Article 8 of the European Convention on Human Rights is engaged (for example because the child has established a family or private life in the United Kingdom) case owners should take into account the best interests of the child as part the balancing exercise that needs to be conducted under Article 8(2) of the Convention. Further guidance on the consideration of best interests is provided below. Back to contents 17.7 Discretionary Leave under UASC Policy The UK Border Agency has a policy commitment that no unaccompanied child will be removed from the United Kingdom unless the Secretary of State is satisfied that safe and adequate reception arrangements are in place in the country to which the child is to be removed. Where:-
the child does not qualify for asylum or HP or otherwise under the general DL general policy, and; we are not satisfied that the child will be able to access adequate reception arrangements in the country to which they will be removed;
the child should normally be granted DL for three years or, with effect from 1 April 2007, until they are 17.5 years of age, whichever is the shorter period. This applies in all cases except where stated otherwise in country specific operational guidance notes (OGN). It should be noted that those who qualify for DL under both the general DL policy and the UASC policy must benefit from the more generous grant. The case owner must minute the case file and clearly state on what grounds the child has been granted leave. This will assist in the process of any future application for further leave to remain. In considering the grant of discretionary leave under the UASC policy the starting point should be whether the child can be returned to his/her family. Family reunification should generally be regarded as being in the best interests of the child. Guidance on procedures for tracing family is provided at chapter 15. There may, however, be instances where family reunification is not in the childs best interest. This may be when the material facts of the claim for protection involve persecution or ill treatment at the hands of family. Where returns to family or extended family cannot take place (for example because the family cannot be traced) the case owner should consider if the child can be returned to alternative safe reception arrangements as a last resort. Information regarding the availability of safe and adequate reception arrangements can be found within the Country of Origin Information (COI) reports for each country under the section on children. In addition to this resource, further general guidance on current policy for dealing with claims from children can be found in each countrys Operational Guidance Note (OGN). It is not possible to draw an exhaustive list as each case must be considered on its individual merits. However the following examples could be considered adequate reception arrangements: Family home where the child was cared for and lived previously Home of a relative where the child was cared for and lived previously Family or relative in a third country to whom the child would like to be reunited and whom are willing and able to receive and care for the child
In other cases where the reception arrangements do not involve return to family, case owners should consult the country specific guidance. Where UKBA has made arrangements with NGOs or other organisations overseas to provide specific assistance on return, it can of course be assumed that these
arrangements are adequate. However, case owners should nevertheless go on to consider whether return is appropriate to the individual child according to the guidance set out later in this section, taking particular account of his/her best interests. Careful consideration should be given to how the reception arrangements that need to be in place to enable return will be accessed on arrival, taking into account the childs age, vulnerability and overall best interests. In most cases (and in all cases where the child is under 16) the child will need to be met at the airport by a suitable person in order to be safely transported to the longer term reception arrangements for example the family home or alternative accommodation arrangement. In order to come to a view on the sort of reception arrangements that need to be in place the case owner may need to draw on information from other sources i.e. the local authority. See section 17.8 below. There may be occasions when older children do not need to be met on arrival, for example because they are quite capable of independent travel and can safely return to the family home by themselves by taxi or other public transport without difficulty. In such cases, a careful assessment needs to be made of the childs level of vulnerability and maturity, the safety of unaccompanied travel by public transport in that particular country and area as well as consultation with the childs local authority social worker. 17.8 Best interests and duty under section 55 of the Borders, Citizenship and Immigration Act 2009. The availability of safe and adequate reception arrangements is only one factor to consider in deciding on whether the person should be granted Discretionary Leave under the UASC policy. Full account also needs to given to the following: the best interests of the child must be taken into account as a primary consideration in the decision; and the duty to have regard to the need to safeguard and promote the welfare of the child in accordance with section 55 of the Borders, Citizenship and Immigration Act 2009 and the statutory guidance that accompanies it (Every Child Matters Change For Children).
The 1989 Convention on the Rights of the Child (UNCRC) is the main legal instrument on the protection of children. While the UNCRC neither offers a precise definition, nor explicitly outlines common factors of the best interests of the child, it stipulates that: the best interests must be the determining factor for specific actions, notably adoption (Article 21) and separation of a child from parents against their will (Article 9); the best interests must be taken into account as a primary consideration for all other actions affecting children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies (Article 3).
Section 55 of the Borders, Citizenship and Immigration Act 2009 places an important statutory safeguarding duty on the UK Border Agency: To ensure that immigration, asylum, nationality and customs functions are discharged having regard to the need to safeguard and promote the welfare of children in the UK Safeguarding and promoting the welfare of children is defined in Part 1, Paragraph 1.4 of the statutory guidance to section 55 as: protecting children from mistreatment; preventing impairment of childrens health or development (where health means physical or mental health and development means physical, intellectual, emotional, social or behavioural development); ensuring that children are growing up in circumstances consistent with the provision of safe and effective care; and undertaking that role so as to enable those children to have optimum life chances and to enter adulthood successfully.
The best interests of the child, whilst a primary consideration, is not the sole consideration when considering whether a child should be granted leave to remain or return to the country of origin. Other factors, including the need to control immigration, are also relevant. In some cases, it may be reasonably clear that the childs best interests may be served by returning to the country of origin for example where the family has been traced and it is clear that the return arrangements can be made direct to parents. In other cases, the decision on whether to return will be a matter of making a careful assessment of the childs best interests and balancing those interests against the wider public interest of controlling immigration. It is not possible to give an exhaustive list of all of the factors that might be relevant to the balancing exercise in a particular case, but the following are examples: physical and mental health & medical needs level of education emotional and behavioural development family and social relationships self-care skills the childs views the childs age and maturity; experience of mental or emotional trauma; compassionate factors the duration of absence from the home country and level of integration in the UK; whether the child is settled in education in the United Kingdom and the disruption caused to those arrangements by a decision to refuse outright.
the desirability of continuity in the childs upbringing and to the childs ethnic, religious, cultural and linguistic background; the childs right to preserve their identity, including nationality, name and family relations the availability of care arrangements, the safety and security of the living arrangements, and the socio-economic conditions; the availability of education, work or training opportunities in the country of return.
17.8.1 Working with Local Authorities Information and expertise relevant to the consideration of the factors listed above may be held by other agencies. For example, a local authority social worker will usually be in a better position to provide an assessment of the childs degree of maturity and self care skills. When considering the issue of return, case owners should always seek information from the childs social worker or the social workers assessment of the factors listed above in order to assist in the overall assessment of the childs best interests. The degree of contact and interaction will depend upon the particular circumstances and complexity of the case, but as a minimum case owners should discuss the case with social worker and ask him/her to complete the attached pro forma within an agreed timeframe. It should be noted that the in some cases, especially where the child is a recent arrival in the UK, the social worker may need further time in order to assess the relevant factors. Caseowners should also discuss with the social worker whether a meeting with all the relevant agencies/parties would be helpful to understand fully the best interests of an individual child. Such meetings will be necessary in complex cases, or cases where the best interests are likely to be finely balanced. Case owners should encourage the childs social worker to complete the Best Interests Consideration Pro forma (ASL.4262 available on DOC GEN) as soon as possible in order to make a timely decision. The child must be informed about the exchange of information and depending on age and maturity openly consulted by the social worker on his/her views. The completed pro forma should be copied to the childs legal representative. 17.8.2 Overall Assessment of Best Interests The overall assessment of the childs best interests will generally be a matter of considering the childs individual circumstances and experiences in the United Kingdom alongside information about the conditions the child would face in the country of return. When sufficient information is available to make an overall assessment of the childs best interests, the assessment should be balanced against the need to provide effective immigration control. There is a positive duty in section 55 to safeguard and promote the welfare of children, so any balancing act must account for this heightened test
Only if it is decided that the childs best interests are outweighed by the need to uphold immigration control, should the child be refused outright. In all other cases, the child should be granted discretionary leave in line with the time periods set out in paragraph 17.7 above. 17.9 Outright Refusal (a) UASC A decision to refuse outright should only be made if the child does not qualify for leave under the categories set out above. A decision to refuse outright must follow a detailed consideration of the above factors, including how best interests and the section 55 duty has been assessed. The assessment of these factors must be reflected in the decision letter and the decision approved by a senior caseworker. Children who are refused outright because they are over 17 and a half, but under 18 years of age should have their removal deferred until their eighteenth birthday, unless the safe and adequate reception arrangements test has been met. This undertaking should be made clear in the reasons for refusal letter. Back to contents (b) Accompanied child Where an accompanied child does not meet the criteria for a grant of asylum, HP or DL and the case owner is satisfied that the child can be returned together with a parent, other adult relative or accompanying adult, the child must be refused leave outright following approval from a senior caseworker. Back to contents 17.10 Drafting reasons for refusal letters Where a child is to be refused asylum, the Reasons For Refusal Letter (ASL.0015) must contain the relevant child-related paragraphs which is stored on DOC GEN in the UASC folder, as well as how best interests has been determined. Back to contents
18. Decision Service Event

When an application has been decided case owners should, serve the decision on the child in person with the childs legal representative or Responsible Adult present. However, regional variations may apply and some regions may serve the decision by post or fax. Case owners must ensure they: notify the child notify the Local Authority notify the legal representative of the decision Where the decision is a refusal, case owners must: consider reminding the child that the option of AVR is still an ongoing choice to bear in mind alongside any decision to challenge the refusal in the tribunal. discuss and agree the ongoing contact management strategy with the child and their social worker and/or accompanying adult. In cases of non-compliance, the Refugee Council Panel of Advisors must also be notified. Back to contents
19. Appeals
Once a decision to refuse asylum and HP (and in some cases DL or UASC DL) has been served on the child, case owners must: Update CID. Check whether an appeal is been lodged. Carry out data quality checks of PF1. If an appeal is lodged prepare the full bundle refer to the Minute Sheet send the bundle to the Asylum and Immigration Tribunal (AIT) (with a covering letter) and to the childs representative. The AI on Rights of Appeal in Asylum Claims gives guidance on rights of appeal arising from decisions made on asylum cases. Once the final outcome of the appeals process is reached for any child or former relevant child supported by a local authority, the appropriate letter should be prepared using ASL.1950 on DOCGEN and sent out immediately to the local authority. Back to contents
20. Implementing the Decision to Return the section 55 duty

20.1 Implementing the decision to return Best Interests If the AIT decide to dismiss any appeal and the minor exhausts any remaining appeal rights it will be important to liaise with the local authority (in cases where the child is in care) in order to make sure that the childs social worker is aware of the decision and the consequences. All agencies working with children have contributions to make towards safeguarding and promoting the welfare of children and that includes a collaborative approach to making sure the childs return to the country of origin is handled in a dignified and humane manner. The case owner should also at this stage review the case to see if any new factors have arisen since the date of the original decision, or whether important new information or findings of fact have emerged through the appeal proceedings. An example may be that the decision was based on a finding that the return arrangements would not be to the family home. New information revealed at appeal may, however, show return could be made direct to parents. Since that will generally be the preferable option the case will need to be assessed to see if return direct to family is in the childs best interests and can be achieved. Depending on the particular circumstances, the handling of the case after the appeal may take different forms. But it will usually be necessary for the case owner to arrange a meeting with the child, his/her social worker and in complex cases, a representative from the UKBA Office of the Childrens Champion (OCC). It will always be necessary to discuss the case with the social worker with the overall purpose of preparing the child for departure and managing the process as humanely as possible. Issues that will need to be addressed, in partnership with the social worker, could include but should not be limited to: An exploration of voluntary return options; An explanation of the reception arrangements that will be in place in the country of return (especially if return is not to parents); An explanation of the reintegration assistance available in the country of origin.
The child should be openly consulted and his/her wishes and feelings taken into account wherever practicable on a range of matters that will affect the timing of the departure and how the return arrangements will be managed. These could include, but should not be limited to: The need to complete medical treatment; The fact that academic/vocational courses underway may be ending soon,
The need to gather together certificates of achievement, local authority care plans or other documents that may be of assistance in the country of return and to enable continuity; The wish to say good bye to friends; The need to close bank accounts or settle other personal matters;
The social workers views and advice on these matters should be given significant weight. Equally, the social worker should be actively consulted on pre-departure planning generally up to and including liaison about the timing of the setting of removal directions and appropriate contact management strategy including the possibility of reporting with a view to minimising the risk that the child will go missing from his/her care placement and ensuring that the childs welfare is safeguarded and promoted. Back to contents
21. Integration
When a decision is made to grant the child some form of leave, case owners must liaise closely with the childs social worker where they have one, to ensure that this is reflected in their pathway plan. The pathway plan should be prepared in accordance with the Children (Leaving Care) Act 2000, which came into force on 1 October 2001. The Act places a responsibility on Local Authorities to support care leavers until they reach the age of 21 or beyond if they remain in an approved programme of education or training. The agreed pathway plan will include the assessed or identified needs, identified timescales, action plan to meet these needs and the responsible person which assist the child to make the transition from care to the responsibilities of adulthood. It should be flexible and regularly updated. Case owners should close the case if refugee or HP status is granted, until the case is brought forward in five years to see whether an application for Indefinite Leave to Remain or further leave to remain has been made. However, in cases that have been granted DL under the UASC policy, case owners must seek to agree an on-going contact management strategy (discussed in the contact management section) with the child and their social worker. Back to contents
22. Curtailing a Childs Leave to Enter or Remain

22.1 Definition of curtailment Curtailment refers to the variation of a persons limited leave to enter or remain such that they no longer have leave. Varying a persons leave in this way is an immigration decision (under section 82(2) of the 2002 Act) and thus attracts a right of appeal. The power to curtail limited leave is contained in section 3(3) (a) of the Immigration Act 1971. For further information, including the important procedural steps for the necessary liaison with UNHCR see the guidance on Curtailment. Back to contents 22.2 Cessation, cancellation or revocation of refugee status Although rare, a child granted refugee status may have their leave cancelled or revoked where there is evidence to suggest that the refugee status was obtained by deception, or where it becomes known that the child committed crime or acts which fall within the scope of Article 1F. Cancellation, Cessation or Revocation is a serious matter and must not be undertaken lightly. All cases must be considered by a senior case worker, and all decisions must be agreed at G7 level. Back to contents 22.3 Curtailment of leave granted under HP or general DL policy A child granted HP under the Immigration Rules or DL under general policy (i.e. not under UASC policy) may have their leave curtailed where there is evidence that the leave was obtained by deception. Case owners must refer any such case to a senior case worker. Back to contents 22.4 Curtailment of DL granted under UASC Policy Below is a list of some situations where curtailment of DL granted under UASC policy should be considered: 1. if the leave was obtained by deception; or 2. adequate reception arrangements are in place in the childs country of origin or 3. if there is a change in the childs circumstances, such as: the child previously granted DL under UASC policy has been joined in the UK by a parent, an adult sibling or other close family member, and can be returned to the home country with that person or a child previously granted DL on the basis that removal would breach Article 8 of the ECHR (right to respect for private and family life) on the basis of established family life in the UK,
however, the existing relationship ends or the person for whom the child had a family life subsequently leaves the UK attempts at family tracing have been successful, and the child can be returned to his/her parents or other suitable family members.
In all cases that are considered for curtailment, the case owner must have specific regard to section 55 and the associated guidance before making a decision, because such a decision is part of UKBAs exercise of immigration functions. Case owners should use their discretion when considering in what circumstances it may be appropriate to curtail leave, and refer any such cases to a senior caseworker. When curtailing leave case owners should issue an ASL.3566 available on DOC GEN. Case owners must consider any representation received to contest the intention to curtail leave and make a decision on whether it is appropriate to continue curtailment action in the light of the information submitted. If no appeal is lodged or if the appeal is dismissed, case owners must initiate removal action. Back to contents 22.5 Deception In cases where a child is found to have obtained leave to enter under the UASC policy by deception, and it is decided to take illegal entry action against that child (under Schedule 2 of the Immigration Act 1971), their leave is no longer valid. Where children have obtained leave to remain under the UASC policy by deception, they are liable to removal under section 10 of the Immigration and Asylum Act 1999. A decision to remove under this section will invalidate the leave that has been given previously. Separate action to vary leave will be required only where a decision to remove cannot be made and removal directions set. Back to contents 22.5.1 For EEA nationals only EEA regulations in 2006 state that a national from an EEA country does not require leave to enter or remain in the UK. However, should the child be economically inactive or in full time education, the case owners can decide to curtail the DL on the grounds no further basis of stay in the UK. Case owners are reminded that applications made by children who are nationals of the European Union, or of one of the European Economic Area states, must be considered by NSA accredited case owners. EU nationals children who are refused asylum and HP must not be granted DL under UASC policy.
Back to contents 22.6 Where it is discovered that a child was 18 or over at the time of the application If it can be firmly established that a child was aged 18 or over at the time of the asylum application, and had therefore used deception to obtain leave, the case owners should arrange for the child to be interviewed by an Immigration Officer under caution with a view to determining if there has been deception. Back to contents
23. Handling Applications for Leave to be Granted in Line

A child may apply to be granted leave in line with other family members when they form part of a pre- existing family unit who have leave to enter/remain, rather than applying for asylum. Case owners must ensure that family links are established by conducting an interview with relatives to check whether they know the circumstances of the child before any leave is granted. Back to contents
Process Map
The timescales in the process map below should be taken as indicative of best practice, i.e. the way in which UKBA aims to deal with asylum applications from children. Fluctuations in intake and the operational resources available make it inevitable that, in practice, the timescales applicable to a particular case differ from those proposed.
ASYLUM PROCESS FOR CHILD

APPLICATION FOR ASYLUM Day 0 RECEPTION/SCREENING INTERVIEW FINGERPRINTS AND PHOTOGRAPH (with RA present) Day 1 Child referred to Local Authority and to sources of legal representation Child issued with ARC ROUTING Day 1 Case owner assigned to minor Child issued with Statement of Evidence Form (SEF) to be returned to case owners by Day 20 Case owner initiates contact with social worker (on Day 1 or as soon as file is received) to prepare for FRE. Ensure the social worker is aware of the case owners need to receive pertinent Best Interests information.
FIRST REPORTING EVENT (FRE) Day 10 Case owner meets child in person or contacts by telephone explains their role, the asylum process and possible outcomes Case owner checks child is receiving legal representation and/or assistance prior to substantive interview Case owner issues letters of invitation for interview RETURN OF SEF Day 20 INTERVIEW Day 25 Case owner must give 5 working days after this for the submission of further representations. Describe the next stage of the process with the child and the social worker. DECISION
Day 25 Prior to a decision to refuse leave for asylum, HP and under ECHR Art 8 all or some of the following requires completion depending on the circumstances of the case: Contact the parents in country of origin Arrange to trace the family in country of origin Enquire if there are alternative safe and adequate reception arrangements in country of origin Request from the social worker a completed Best Interests (BI) proforma (their care review cycles may impact on the date of issue). Consider whether the BI consideration outweighs the immigration decision to remove. Seek approval for outright refusal from an appropriately trained SCW and refer case to OCC. DECISION SERVICE EVENT
Day 31-35 (or later if above actions delay outcome) Arrange a meeting with the child and his carer. Consider appropriate action for decision service. GRANTED REFUGEE STATUS
REFUSED REFUGEE STATUS, HP AND DL UNDER GENERAL POLICY
REFUSE OUTRIGHT ON BALANCE AGAINST OTHER PRIMARY CONSIDERATIONS, INCLUDING BEST INTERESTS
GRANT DL UNDER UASC POLICY If no safe and adequate reception arrangements available or If BI consideration outweighs the Immigration decision even if safe and adequate reception is available.
CASE COMPLETED
APPEAL By Day 41-45 Update BI consideration
APPEAL (ASYLUM etc) By Day 41-45 Update BI consideration
GRANTED HP OR DL UNDER GENERAL POLICY
FAILS
FAILS
SUCCEEDS
APPEAL By Day 41-45
MAINTAIN DECISION AND CASE COMPLETED MAINTAIN CONTACT AND REVIEW THE CASE. UPDATE THE BI CONSIDERATION WITH LA/OCC
IMPLEMENT DECISION CASE COMPLETED
MAINTAIN DECISION CASE COMPLETED MAINTAIN CONTACT AND ACTIVE REVIEW WHEN CHILD TURNS 17.5
SUCCEEDS SUCCEEDS
FAILS FAILS
IMPLEMENT DECISION AND CASE COMPLETED
MAINTAIN DECISION AND CASE COMPLETED
IMPLEMENT THE DECISION TO RETURN SEEK APPROVAL LIAISE WITH LIT/LEO
Glossary
Term AASC ACDIU AI ARC ASU CID CPO CRS CSD ECO FRE IS.96 IS.248 LA LEO NGO PNC SEF OISC OGN UASC UASC DL WICU Meaning Accompanied Asylum Seeking Child ACD Intel Unit Asylum Instruction Application Registration Card Asylum Screening Unit Case Information Database Child Protection Officer Central Reference System Childrens Services Department Entry Clearance Officer First Reporting Event Notification of temporary admission/release (TA/R) to a person who is liable to be detained. It outlines restrictions to TA/R. Notification of reporting restrictions to persons who have made an asylum application at a time when they have leave to enter or remain. Local Authority Local Enforcement Office Non-Governmental Organisation Police National Computer Self-Evidence Form Office of Immigration Services Commissioner Operational Guidance Note Unaccompanied Asylum Seeking Child Discretionary Leave under UASC policy Warnings Index Control Unit
Document Control
Change Record
Version 1.0 2.0 3.0 4.0 5.0 Authors E. GomezMartinez BN S.K P.R A.P. Date 7/03/07 11/11/08 22/05/09 02/11/09 11/08/10 Update branding only Update UASC policy Update UASC policy Update UASC policy Change Reference
Annex A: UKBA REFERRAL FORM (Expanding boxes version, boxes will expand as you type.)
REFERRAL TO CHILD WELFARE SERVICES

For advice on filling out this form, contact your Keeping Children Safe Co-ordinator.
Data Protection Act 1998. The information included in this form is being sent to the local authority Childrens Social Work services in the childs area to allow them to safeguard the children involved. It is in keeping with the UKBA statutory duty to keep children safe.
UKBA BRAND
Referral Completed by:
Date:
Time:
Telephone Contact: Agency & Office Address: Agency Transmission FAX number: E-Mail contact for non-secure items:
Details of Children: circle number to indicate which child(ren) give(s) rise to concern.
Child Names: Gender: (circle) M / F Date of Birth: H.O. Ref:
1 2 3 4
Attach digital or other photograph of Child 1. Attach digital or other photograph of Child 2.
Attach digital or other photograph of Child 3.
Attach digital or other photograph of Child 4.
Give contact details of the Social Worker and Local Authority receiving this referral:
Social Worker, please note: > > >
UKBA Must have written acknowledgement of your receipt of this form within 5 working days. (Contact details above).
Name of Parents, Carers & Significant Adults.
Relationship.
Date of Birth.
Citizenship.
H.O. Ref.:
Parents U.K. address or contact point:
Post Code: Childs address, if different: Post Code:
Telephone number:
Telephone number:
Is parent aware of referral? Has parents consent been obtained? Is the child aware of referral? Has childs consent been obtained?
Yes: Yes: Yes: Yes:
No: No: No: No:
Give details of any discussion of concerns with parent or child, (e.g. Reason why consent not obtained).
Familys 1st & 2nd Language & any special communication needs: 2nd Language: 1st Language:
Summary of Immigration Status & issues:
Date of arrival in the U.K.: Admitted as / illegal entrant: Current immigration Status: Other information:
If you suspect the child is a victim of trafficking, (see guidance), tick here >>>
IN ALL SUSPECTED TRAFFICKING CASES THIS FORM MUST BE FAXED TO YOUR UKBA REGIONS COMPETENT AUTHORITY AS WELL AS THE SOCIAL WORKER AT THE LOCAL AUTHORITY.
Are any Family members already known to UKBA for other reasons? (E.g. previous history which might give cause for concern for the childs safety or be of interest to Childrens Services?).
Contact details of any other agencies involved with family:
Summarise your key concerns about the child, (e.g. Mental or Physical Safety, Health, Education, for potential Victims of Trafficking give reasons/indicators for your suspicions, etc.). Give detail of your contacts with the child / family and any helpful information. What do you want Childrens Services to do?
Referral form PB draft 16, (Expanding boxes); 23-3-2009
Continuation Sheet.
ANNEX B INSTRUCTION ON REFERRING CHILDREN IN NEED KEEPING CHILDREN SAFE
UK BORDER AGENCY (UKBA)
INSTRUCTION TO STAFF IN ALL AREAS OF UKBA
WHEN AND HOW TO REFER A CHILD TO CHILD WELFARE AGENCIES OR THE POLICE
PURPOSE OF THE GUIDANCE

LIAISON WITH LOCAL AUTHORITIES
page 3 4 5 5
IDENTIFYING CHILDREN IN NEED:

CHILDREN AT RISK OF HARM OR SIGNIFICANT HARM IDENTIFYING CHILDREN SUFFERING OR LIKELY TO SUFFER SIGNIFICANT HARM (Child Protection). INDICATIONS OF HARM ARISING FROM CHILD ABSUE OR NEGLECT WHAT TO DO IF A CHILD DISCLOSES INFORMATION ABOUT THEMSELVES OR OTHER CHILDREN IDENTIFYING CHILDREN WHO MAY HAVE BEEN TRAFFICKED IDENTIFYING CHILDREN WHO ARE AT RISK OF, OR LIKELY TO GO MISSING (POTENTIALLY MISSING CHILDREN) CHILDREN IN CARE CASES IDENTIFYING PRIVATE FOSTERING CASES
10 10 11
31st March, 2009 UKBA INSTRUCTION ON REFERRING CHILDREN IN NEED (FINAL)
ANNEX B INSTRUCTION ON REFERRING CHILDREN IN NEED IDENTIFYING CHILDREN IN NEED OF ASSESSMENT OR SUPPORT 13
REFERRING CASES WHERE HARM ARISES FROM CHILD ABUSE MAKING REFERRALS:
DECIDING THE DEGREE OF URGENCY FILLING OUT THE FORM DECIDING TO WHICH LOCAL AUTHORITY TO MAKE A REFERRAL KEEPING AN ACCURATE RECORD
14
15
15 16
17 17 18
WHAT TO DO ONCE A REFERRAL HAS BEEN MADE

WHAT TO DO IF UNHAPPY WITH THE RESPONSE FROM A LOCAL AUTHORITY
18
IMPACT OF CHILD ABUSE CASES ON PROFESSIONAL STAFF

Annex A: UKBA REFERRAL FORM (Static Box Version) Annex B: UKBA REFERRAL FORM (Expanding Box version) Annex C: CONTACT DETAILS FOR UKBA KEEPING CHILDREN SAFE CO ORDINATORS Annex D: GLOSSARY OF TERMS Annex E: UNDERSTANDING LOCAL AUTHORITIES INCLUDING WORKING WITH LOCAL SAFEGUARDING CHILDRENS BOARDS Annex F: STANDARD ASSESSMENT FRAMEWORK Annex G: DATA PROTECTION Annex H: HOW TO MAKE A REFERRAL TO A LOCAL AUTHORITY - CHECK LIST Annex J: LIST OF TRAFFICKING INDICATORS Annex K: EXTRACT FROM TRAFFICKING CONVENTION
19
See Attached See Attached
20 21
23 25 26
27 28 29
ANNEX B INSTRUCTION ON REFERRING CHILDREN IN NEED
PURPOSE OF THE GUIDANCE

UKBA currently has a Code of Practice for Keeping Children Safe from Harm. The Code of Practice is likely to be replaced with a duty to safeguard children and promote their welfare, set out in clause 53 of the Borders Citizenship & Immigration Bill. Referring children to welfare agencies is crucial to both the Code of Practice & the proposed safeguarding duty. This guidance will help you make appropriate referrals by identifying children in need as defined in Section 17 of the Children Act 1989 and similar legislation in the devolved administrations (see para 53 of this guidance). It sets out how to develop good liaison arrangements with local authorities, how to identify children who may be in need and how to refer them for assessment and services from an appropriate agency. This guidance is aligned with statutory guidance issued by the DCSF, however the DCSF guidance is for agencies whose safeguarding duty is set out in Section 11 of the Children Act 2004 and similar legislation in the devolved administrations. UKBA is not subject to a Section 11 duty, but staff may usefully refer to: Every Child Matters, Working Together to Safeguard Children & Safeguarding Children who may have been trafficked, in order to assist in working with child welfare agencies.
WORKING WELL WITH OTHER AGENCIES IS ESSENTIAL TO SAFEGUARD CHILDREN AND KEEP THEM SAFE 2. The enquiry into the tragic death of Victoria Climbie found that children can only be kept safe if agencies work well with one another. UKBAs core task is in applying the immigration rules and we have a statutory duty to carry out these tasks, while having regard to the Code of Practice or a duty to safeguard children that might replace it. Just as we would expect other agencies to refer immigration matters to us, so it is important that we refer children at risk to welfare and protection agencies for appropriate assessment and action to be taken. This instruction provides a mechanism to help us align our core duties with those of agencies that have a statutory duty to safeguard and promote the welfare of children under section 11 of the Children Act 2004 and similar legislation in the devolved administrations. 3. Referral is the beginning of a process of working in partnership with the statutory safeguarding agency (e.g. local authority childrens services or the police) to whom a referral is made. The arrangements for working in partnership may be set out in local, regional or national agreements (protocols made between UKBA & local authorities sometimes with other organisations see glossary at Annex D) which clarify the purpose and nature of the joint work. Directorates will make their own arrangements to publish and disseminate such agreements. By following this instruction, UKBA staff will contribute information that will help other agencies to safeguard and promote the welfare of children; in return agencies will provide information that will help UKBA have regard to its Code of Practice, (unless this is replaced by a duty to safeguard children).
SHARING INFORMATION 4. Both the Code of Practice and the proposed safeguarding duty require UKBA staff to ensure that they have good local systems for making referrals to agencies. The guidance on sharing
ANNEX B INSTRUCTION ON REFERRING CHILDREN IN NEED information in this document is aligned with the Information Sharing: Practitioners Guide 2006 1 , and fulfils the requirements of the Data Protection Act. . 5. UKBA has the legal power to share information given by applicants. For disclosure to be lawful it must be in accordance with The Data Protection Act 1998 which sets out the legal safeguards for sharing information safely and fairly, and the Human Rights Act 1998 and any duty of confidence which is owed to the child. It is worth stressing that the Data Protection Act is intended to guide information sharing, not to prevent it. The kinds of information about children we want to share will inevitably be personal and sensitive. The legal basis for sharing this kind of information and the factors which must be considered before doing so are is set out in Annex G
LIAISON WITH LOCAL AUTHORITIES 6. The Code of Practice, (or the duty to safeguard children), that sets out how UKBA can best keep children safe from harm, is part of a much larger framework for safeguarding childrens welfare. Throughout the United Kingdom, (except for Northern Ireland), principal responsibility for safeguarding the welfare of children rests with local government: England: the local authority Childrens Services Departments; Scotland: the local authority Social Services; Wales: the local authority Social Services; Northern Ireland: Health and Welfare Trusts. 7. For ease of reference in this document the term local authority is used when reference is made to statutory duties under childrens legislation and the term childrens services is used to refer to statutory child welfare services. 8. Safeguarding childrens welfare also involves other public services such as education, health and the police. In many areas the statutory agencies call on the specialist knowledge and experience of national and local voluntary and community organisations. In each local authority area a local safeguarding children board (LSCB) or an area child protection committee (ACPC) will co-ordinate the activity of these agencies and monitor their effectiveness in working together. (See Annex D for explanation of LSCB & ACPC.) 9. UKBA staff responsibilities to children may involve referring children to any of these services. A referral doesnt mean putting the immigration aspect of a case on hold; we can carry out our immigration function as they carry out their child safeguarding functions. 10. Working with local authorities also involves establishing and maintaining relationships at a more strategic level through LSCBs and ACPCs throughout the UK. (For example: developing information sharing agreements with relevant local authorities.) This guidance explains UKBAs liaison with Local authorities - in both referring cases and in maintaining relationships. For a guide to understanding how local authorities work see: Annex E. 11. To understand how UKBA Staff should work with Local Children Safeguarding Boards, please read the relevant section, in Annex E, (Understanding Local Authorities), below.
1
http://www.everychildmatters.gov.uk/_files/ACB1BA35C20D4C42A1FE6F9133A7C614.pdf
IDENTIFYING CHILDREN IN NEED (as defined in section 17 of the Children Act 1989)
This section, (down as far as Paragraph 57), deals with the types of need for welfare services that children may have. 12. When describing the signs and symptoms of a child in need in any referral, UKBA staff should use language that social workers will understand, (see paras 57-62, 72 & Annex F), as this will help ensure a prompt and appropriate response from childrens services. Generally, they will fall into one or more of the following groups: A. Child Protection cases: where children may be at risk of significant harm, (significant harm is set out in para 31(9) & 31(10) of the Children Act), because they have been or are vulnerable to being abused and/or neglected (the main types of abuse are described below), and reference is made to the greatly increased risk if a child is a victim of trafficking and/or goes missing. See paragraph 19. Children in Care cases: where it appears that there is no-one to care for a child or the person caring can no longer do so for whatever reason; Private Fostering cases: these cases involve children who are being looked after by someone other than their parents or a very close relative; (see Section 66 of the Children Act 1989 for a definition), and Children in Need of Assessment or Support: where a family may require the assistance of welfare services in order that a childs development will not be impaired. (Children in need is defined in section 17 of the Children Act 1989.)
B. C.
D.
13. If you have concerns about a child, you should not let uncertainty about the type of case you are dealing with delay that referral. Equally you may feel unsure as to whether your concerns are of sufficient seriousness to merit a referral. Remember, your responsibility is to identify and refer indications that a child may be at risk of harm. You are not expected to make a professional assessment of these sorts of situations yourself but you will need to distinguish between a case where a childs safety is in immediate danger or where the childs welfare needs are not being met. If in doubt, seek advice - from your line manager (see Annex D for definition & methods of contact & Paragraphs 59 71, (below), and Annex H for How to make a referral). If, having examined the available evidence, you still have concerns, you should refer. Where things are still not clear, always err on the side of caution and refer the case to the appropriate local authority childrens services, (as usual, first by phone, then by referral form), or, if the child is in immediate danger, without delay by phone to the police.
CHILDREN AT RISK OF HARM OR SIGNIFICANT HARM: 14. There are various ways that children may be at risk of harm as defined in the UKBA Code of Practice, (or if replaced, its duty to safeguard children). Using terms set out in Working Together to Safeguard Children 2006 in our referrals, will help social workers recognise and respond promptly
ANNEX B INSTRUCTION ON REFERRING CHILDREN IN NEED and effectively to our concerns. Generally our concerns will fall into one or more of the following groups: A. Children who have suffered or are thought to be at risk of suffering significant harm. This type of concern is also known as a child protection referral and special arrangements are required to deal with these concerns urgently (See for example Children Act 1989 section 47 the local authority duty to investigate). B. Child victims of trafficking and those who go missing from contact with statutory agencies are thought to be at risk of significant harm. To see how Social Workers will assess a case using the standard assessment procedure, see the diagram, (the triangle) at Annex F, below.
IDENTIFYING CHILDREN SUFFERING OR LIKELY TO SUFFER SIGNIFICANT HARM. 15. Significant harm is the legal threshold in childrens legislation, (the Children Act 1989), that a court may decide justifies compulsory intervention into a familys life by childrens services. This level of harm is so serious that consideration also needs to be given to whether a crime has been committed against the child and investigation by a police child abuse investigation team may be required in parallel with the welfare investigation. If the child is not already subject to a Child Protection Plan there is likely to be an urgent need to set immediate protection in place. Referrals for the reasons in Para 18 need to be made urgently and you should ask childrens services to consider launching a Children Act 1989 section 47 investigation to decide what steps are necessary to safeguard the child. 16. Working Together To Safeguard Children 2006, (section one Key Definitions), sets out the following categories of abuse and neglect as ones that are likely to cause significant harm. In practice a child may be subject to more than one form of abuse. Child victims of trafficking may be vulnerable to all of them particularly if they lose contact with statutory agencies. If you can make a decision to emphasise one form of abuse then do so but do not let confusion prevent you from making an urgent referral in any case. A. Neglect, which is the persistent failure to meet a childs basic physical and/or psychological needs, likely to result in the serious impairment of the childs health and development. B. Physical abuse, which may take many forms e.g. hitting, shaking, throwing, poisoning, burning or scalding, drowning or suffocating a child or otherwise causing physical harm to a child. C. Emotional abuse, the persistent emotional ill-treatment of a child such as to cause severe and persistent adverse effects on the childs emotional development, examples include: conveying to children that they are worthless, unloved or inadequate; causing children to feel frightened; or the exploitation or corruption of children. D. Sexual abuse, i.e. forcing or enticing a child or young person to take part in sexual activities, whether or not the child is aware of the implications of what is happening. This
ANNEX B INSTRUCTION ON REFERRING CHILDREN IN NEED may also include non-contact activities, such as involving children with pornographic materials, or encouraging children to behave in sexually inappropriate ways. 17. These categories overlap and an abused child may be frequently harmed by more than one type of abuse. Child victims of trafficking are thought likely to be at risk of all these forms of abuse. The risk to trafficked children increases greatly if and when they lose contact with the statutory agencies, (i.e. go missing.) 18. Where a child has disclosed abuse to you in the course of an asylum application, you must pass on information that will help the local authority protect and promote their welfare. Make it clear in your referral that the information is disclosed for this purpose only and must not be shared with other parties who are not part of the childs safeguarding network and particularly not with any representatives or contacts of the government of the childs country or origin. For example children who were conscripted into militias in their countries of origin may have experienced any or all the forms of abuse set out below. They are unlikely to be in immediate danger from the abusers while they are in the UK but they may need help to recover from these traumas. You should exercise particular care over how you share this information to ensure the Agency fulfils its duty of confidence to the child. You may wish to seek the childs permission to share and explain the purpose.
INDICATIONS OF HARM ARISING FROM CHILD ABSUE OR NEGLECT 19. It may be hard for UKBA staff to identify the harm that is caused by child abuse and neglect because many staff do not see the child at all or may do so very briefly. It is hard to come to any precise view about harm and abuse from what may be limited information. Examples of signs and symptoms that indicate a child is at risk of or is suffering significant harm are set out in the following brief list of features that can be used as triggers or identifiers in identifying cases where a referral is appropriate: Bruising; Scarring; Burns; Very poor hygiene including untreated infections and infestations; Lack of communication/engagement with adults; Fearful attitude to carers; Inappropriate approaches to strangers; Inebriation of adult carers; Signs of domestic violence between adults and carers; Rough handling or contemptuous attitude to the child by carers; Evidence that adults in the household have convictions for sexual, violent or drug offences. 20. When dealing with applications on paper, caseworkers must look beyond the principal applicant and take full account of any child on the application. Relationships and the date of birth must be checked as well as the history of applications and, if a child is suddenly included or dropped when compared to a previous application, caseworkers must explore the circumstances.
ANNEX B INSTRUCTION ON REFERRING CHILDREN IN NEED 21. The list is not exhaustive but simply covers the most obvious signs. The attitude of the carers to your queries about any of these signs, may add to your concerns that a child may be suffering harm and tilt the balance toward making a referral. 22. To clarify your concerns it might be helpful to arrange for checks on the following: Ask the police to check on the Police National Computer (PNC) on the Warnings Index check; with the local authority (see paras 58 60) to see if they have concerns about the child, the adults or the address, (also include reference to where immigration issues such as sponsorship and private fostering may have implications for the child).
23. Include the outcome of these checks in your referral to the local authority if you decide to proceed. Record the outcomes on the UKBA record in all cases enclosed in an envelope marked confidential. This measure is intended to minimise inappropriate casual access by those with no need to know
WHAT TO DO IF A CHILD DISCLOSES INFORMATION ABOUT THEMSELVES OR OTHER CHILDREN 24. As well as the indicators of harm set out above, if a child discloses information to you or requests help, it should never be treated lightly. If you find yourself in a situation where you recognise signs of abuse or someone tells you, (including the child themselves), that a child is at risk of abuse you should: listen carefully and sympathetically to what the child or other informant has to say; clarify the concerns, without leading the child by prompting or suggesting what may have happened. It is best to use terms the child volunteers spontaneously; explain what will happen next to the child. (By this we mean you should explain the process that will now follow. At this stage we would be unable to make any guarantees to the child, e.g. we would not be able to tell the child that they will be taken away from an abusive adult this would be something the childrens services would have to decide.) Do not press the child for more information than they give freely as this can prejudice later 25. prosecutions of alleged abusers. Do not make promises about confidentiality. Formal interviews must be left to child protection professionals such as social workers or police officers who have received special training. Staff must record details of disclosure which may be needed as evidence and must be recorded in an appropriate way. In the case of asylum seeking children, the disclosures may be part of the asylum claim and 26. may be revealed at the screening interview or the substantive interview or at any point of contact with the young person. In such a case UKBA staff members must capture, record and protect information relevant to the claim. However if the information suggests that the child has suffered (or is likely to suffer) harm, then a referral should be made to a statutory child safeguarding agency, so they can help the child recover from the abuse. The agency receiving the referral should be made aware of the need to protect the confidentiality of the asylum process in the best interest of the child. This agency should also be made aware that their assessments may be of relevance to the childs claim.
ANNEX B INSTRUCTION ON REFERRING CHILDREN IN NEED IDENTIFYING CHILDREN WHO MAY HAVE BEEN TRAFFICKED 27. There are three main ways in which you are likely to encounter concerns that a child may have been trafficked: The child may match the definition and profile of a trafficked child. UKBA intelligence or joint operations with the police may give rise to evidence and concern about particular children. The childs story and other case details may give you concerns about the adults in charge of the child and their intentions. 28. The essence of trafficking is the movement of someone through coercion or deception into a situation where they are to be/or are being exploited, (for full explanation see Article 4 of the Council of Europe Convention against Human Trafficking and the specific reference to child victims in that Convention). When children are the potential victims of trafficking they may be unaware of the exploitation that they will undergo. For this reason and because of their age and understanding, they are held to be unable to give informed consent to their traffickers. 29. The UK is a transit country as well as a final destination for the exploitation of trafficked children, particularly for domestic service, forced labour and criminality but also for the sex industry and benefit fraud.. Trafficked children enter the UK and may present to the authorities in a wide variety of ways. Examples are: as unaccompanied asylum seekers ; as students ; as visitors; or They may enter the UK illegally and only come to the attention of any authorities once they are in a situation of exploitation. 30. Children may also be brought in by adults who claim to be the childs legitimate carer, or be met at the airport by an adult who claims to be a relative. 31. If your suspicions are aroused, discuss with a senior caseworker or Chief Immigration Officer, (CIO). If, having examined the available evidence, you still have concerns, you should refer the child. Where things are still not clear, always err on the side of caution and refer the case to the appropriate local authority childrens services, (first by phone & then by referral form), or, if the child is in immediate danger, by phoning the police. You should decide what risk of significant harm the child may need to be protected from, and which agency has the duty to do this. In some circumstances you should also consider how the child and any adult associates may be retained or delayed on UKBA premises until a safe handover to the childrens services is completed. In some very limited cases it may be appropriate to use short term detention to protect the child and hold the adult. However a full justification for this action must be provided showing that the use of immigration powers is appropriate and that other less coercive options have been considered and had to be ruled out. After you have taken all necessary action to protect the child you should draw your chief officers attention to the likelihood that the child has been trafficked as there will be implications for how the case is dealt with later. 32. UKBA will act as a competent authority as defined in the Council of Europe Convention against Human Trafficking. Specially trained caseworkers will make decisions to grant possible child victims a 45 day reflection period pending further assessment. Where a child victim needs it a
ANNEX B INSTRUCTION ON REFERRING CHILDREN IN NEED renewable residence permit will be granted to allow them to help prosecute their abusers or because it is in line with their best interests. Further guidance on trafficking issues will be produced to help you refer these cases to specialist caseworkers in due course. See Annex J a list of Trafficking Indicators.
IDENTIFYING CHILDREN WHO ARE AT RISK OF, OR LIKELY TO GO MISSING; (POTENTIALLY MISSING CHILDREN) 33. Children subject to immigration controls who are out of touch with the authorities are at risk of harm from many sources. Missing children may be victims of trafficking. Children may be persuaded or coerced into abusing the asylum system by applying on or after arrival in the U.K. Even if they are referred to childrens services, they may later abscond or may be abducted by their traffickers. Remember that at this stage the children may be entirely persuaded that the trafficker is acting in their best interest and may be unaware that they are being, or have been brought to the U.K. to be exploited. UKBA staff should be aware of these risks and if they have any concerns about a particular child, should contact childrens services or the police by phone, without delay. If we believe a child is being coerced to abscond or has gone missing we must raise this as a child protection concern with childrens services and the police. National best practice on what to do regarding missing children who are subject to immigration controls is in development by UKBA and will be available in April 2009. 34. The UKBA staff should treat as a matter of concern any failure of a child who is a principal applicant to keep an arranged contact with the agency. Similarly, if a family cannot give a credible account for the whereabouts of their dependant child or children as shown on their previous records, this must give rise to a missing child report. Reports from childrens services that a child has lost contact with them should also be treated as an indicator of potential harm, and the officer dealing should complete a missing child report / follow the UKBA missing child procedures. Appropriate action must be taken and UKBA records amended accordingly.
CHILDREN IN CARE CASES 35. Childrens legislation throughout the UK makes provision for children aged 17 or less who have no adult to care for them. For example, under section 20 of the Children Act 1989 a local authority must provide accommodation for any child in need within their area if he/she appears to them to require accommodation because: there is no person who has parental responsibility for him; he/she is lost or abandoned; or the person who has been caring for him is prevented, (whether or not permanently, and for whatever reason), from providing him with suitable accommodation and or care. 36. All such referrals are likely to have an element of urgency, in that a young person in these circumstances will not be able to access accommodation or assistance from local housing authorities, the Benefits Agency or UKBA Asylum support arrangements. It is therefore recommended that a referral is made to a childrens services department within 24 hours.
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ANNEX B INSTRUCTION ON REFERRING CHILDREN IN NEED 37. What to look out for: a child with no adult accompanying/no apparent adult to care for them; a child who arrived with an adult in the UK, but has since submitted an application in their own right; a child who has disappeared after entry, (i.e. the child is recorded on arrival on the claimed parents passport but is then not included as a dependant in a subsequent application); the account given by a child about their care differs from that given by the adult, (e.g. child & adult say that a different person is the main carer or that the child lives in a different place); the adult accompanying the child is considered unsuitable because of their behaviour or information suggesting they may harm the child has come to light.
38. When referring a child for childrens services accommodation, it is important to notify the child that a referral is being made unless there is a demonstrable risk, (i.e. one you could express convincingly in writing), that the child will go missing; for example the child meets the profile of other missing children, (all third country, TCU, cases will have already applied for asylum in another country and therefore have already absconded once & may do so again). 39. In the case of an unaccompanied child with a disability, the necessary referral to the local authority for accommodation must also include notification of the particular needs, whether or not the child consents to this. 40. The process for handing over a child to the local authority should be considered carefully. There can be practical difficulties particularly out of office hours. If you have established direct contact with a social worker, e.g. by telephone, make it clear that the responsibility for what happens next rests with the local authority. Explain any concern you have that the child may go missing on route to the local authority and ask the local authority for instructions on what to do next. (For example, do not leave a child alone; keep a child in immigration accommodation until someone appropriate arrives to take care of them; check the identification of the person collecting the child, etc.) You must record in writing all decisions taken and by whom, on CID or the case file. (I.Os. needing to make an official record but finding no case for CID file should file a Report.) If you need to contact childrens services out of hours and cannot make contact via the local authority, then contact the local police, who will have contact details for the relevant local authority childrens services.
IDENTIFYING PRIVATE FOSTERING CASES 41. There is no provision in the Immigration Rules for a child to come to the UK in order to be privately fostered, so the child will enter the U.K. under one of the provisions in the Immigration Rules, such as a visitor or student. Staff should be able to identify circumstances in which children are being brought into the country, or are seeking to extend leave, to be cared for by private foster carers. Private foster carers may be distant members of the extended family such as a cousin or great aunt, or may be a friend of the family or someone unknown to the family. This means that they are not a close relative as defined in Section 105(1)(b) of the Children Act 1989. (For clarity, the Acts definition of a relative is stated as: A relative, in relation to a child, means a grand31st March, 2009 UKBA INSTRUCTION ON REFERRING CHILDREN IN NEED (FINAL)
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ANNEX B INSTRUCTION ON REFERRING CHILDREN IN NEED parent, brother, sister, uncle or aunt (whether of the full blood or half blood or by affinity) or stepparent). 42. What to look out for: any child who seeks to enter the UK on their own or with an adult who is not a parent, or another person with parental responsibility or a close relative; any child entering the UK accompanying a parent whose visa duration exceeds that of the parent.
43. Private foster carers, parents and others with parental responsibility are legally required to notify the local authority of their intention to set up a private fostering arrangement a minimum of 6 weeks in advance of a placement or, where an emergency placement is made, within 48 hours of the placement beginning. In some cases, families in the UK are not aware of these rules or are persuaded to ignore them. In these cases, it is the duty of the UKBA to make the parents or carers aware of their responsibility and also to alert the local authority, (contact childrens services in the same way as a referral of a child in need, to see if the child or the family require support under Section17, see Para 57 and mention that the reason for this referral is due to Private Fostering as set out in the Private Fostering Regulations 2005. 44. You may encounter a number of cases where a child entering the UK is to be cared for by an adult other than a parent or legal guardian. They may either arrive with the adult concerned or be joining him/her and be accompanied by a different adult. UKBA and UK Visa policies require applicants to act in conformity with childrens legislation throughout the UK. Before granting the child any leave, officers should ensure that the documentation shows clearly who the childs legal parents or guardians are and how they can be contacted. The prospective carers and their contact details should also be clear. Finally, the names and detail of the adult accompanying the child should be clearly given. When any of these are not present, you should investigate the situation to see whether deception has been used to obtain leave to enter. 45. Where you believe an arrangement may be a private fostering arrangement and are satisfied that the local authority has not been, or will not be notified, you should report the situation to the local authority in whose area the child will be living. The process for doing so is set out in Paras 5771. 46. In addition, an adult arriving from abroad whom you believe is proposing to privately foster a child, should be advised of the legal requirement to notify the local authority of the arrangement and of the required timescale for doing so. It should be made clear that failing to notify the local authority of a private fostering arrangement is an offence under section 70 (1) (Ai) of the Children Act 1989 and a written record of this warning should be filed. 47. There are broadly similar requirements for private fostering arrangements to be notified to statutory child welfare agencies throughout the UK. The Children Acts 1989 and 2004 which applies in England and Wales describes a private fostering arrangement as one that lasts 28 days or longer which is made privately, (between the birth parents and foster carer without the involvement of a local authority), for a child who is under the age of 16 (under 18, if disabled) to be cared for by someone other than a parent or close relative.
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ANNEX B INSTRUCTION ON REFERRING CHILDREN IN NEED 48. In many cases, private fostering arrangements are set up legally, are monitored properly and are entirely to the benefit of the children concerned. However, it is an unfortunate possibility that such apparently beneficial arrangements can lead to significant harm or even the death of a child. This was so in the tragic case of Victoria Climbie. 49. It is the duty of local authorities to satisfy themselves that the welfare of children who are privately fostered in their area is satisfactorily safeguarded and promoted, and to ensure that such advice that the private foster carers appear to need is given to them. In order to do so, social workers should visit privately fostered children at prescribed intervals. In England the local authority duties are set out in Statutory Instrument 2005 No. 1533. 2 (Private fostering is dealt with in part 5 of the Children Act 2004 in England and local authority duties are set out in Statutory Instrument 2005 No. 1533, and by similar legislation in the devolved administrations). 50. When you decide to refer a private fostering case to a local authority, you should tell the private foster carer concerned. If the response of a private carer gives you any concern, then you should refer the child to the local authority childrens services. 51. At the time of drafting, private foster carers do not have to register 3 with their local authority but must notify them. Be clear with the local authority that you are asking them to satisfy themselves as to the welfare of the privately fostered child. 52. All staff, be they at posts overseas or caseworkers and Immigration Officers in the U.K., should be alert to noticing patterns of applications, (E.Cs or extensions), which might indicate abuse of the Rules. However both Section 21 of the UK Borders Act 2007 refers to children in the UK, not outside of the UK. Similarly the safeguarding duty will apply to children in the UK.
IDENTIFYING CHILDREN IN NEED OF ASSESSMENT OR SUPPORT 53. Childrens legislation throughout the UK makes provision to assist children whose families are unable to meet all their welfare needs. For example: Section 17 of the Children Act 1989 which applies in England and Wales identifies a child as being in need if one or more of the following apply: he is unlikely to achieve or maintain or to have the opportunity to achieve or maintain, a reasonable standard of health or development without the provision of services for him by the local authority; his health or development is likely to be significantly impaired or further impaired without the provision of services by a local authority; or he is disabled.
Statutory Instrument 2005 No. 1533 The Children (Private Arrangements for Fostering) Regulations 2005. http://www.opsi.gov.uk/si/si2005/20051533.htm
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The Government is considering using its powers to compel private foster carers to register, under section 45 of the Children Act 2004.
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ANNEX B INSTRUCTION ON REFERRING CHILDREN IN NEED 54. There is no specific duty to make a referral on a child who has a disability or who could benefit from family support arrangements made by childrens services, for example a child who has inappropriate caring responsibility for a disabled parent. It would however, be considered good practice to inform the carers of a disabled child that social services may be able to provide support. If a family explain that they have difficulty coping in some circumstance, for example through persistent bed wetting in an older child, the role of social services should be explained to them. 55. What to look out for: children or parents with any sort of disability children or parents with chronic health problems children whose behaviour appears to go beyond the coping capacity of the carers parents/carers who ask for help to cope with their children's needs children who ask for help coping with their parents disability or chronic health difficulties 56. The purpose of children in need assessments is to assess the needs and vulnerabilities of a child in order to provide services to the child while they remain in the family. It follows that this type of referral should only be made with the informed consent of the parent or carer. In practice, it is rare that this consent is withheld. If it is withheld unreasonably, it may cause you concern about abuse or neglect and give rise to a referral under one of the other categories of concern.
REFERRING CASES WHERE HARM ARISES FROM CHILD ABUSE

57. Staff in the UKBA must make a referral to social services if there are indications that a child has been or is vulnerable to being abused, neglected or trafficked. The timing of such referrals should reflect the level of perceived risk of harm. In all cases like these, a telephone referral should be made to the police or childrens services but in addition a completed form should be faxed to the local authority within one working day of the recognition of risk. This is in line with the Code of Practice, or if replaced, by its duty to safeguard children. If the recognition of the risk is cumulative rather than a single event the referral should be made as soon as concerns arise. 58. After making a referral for these reasons, you may be asked to take part in a meeting or conference call (called a strategy meeting) which sets out what each agency will do. The main aims of the strategy meeting are to ensure that the participating agencies tasks are carried out in ways that keep the child safe and do not interfere with each other. You may then be asked to contribute information about your concerns and UKBA plans in the form of a report to a child protection case conference.
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MAKING REFERRALS
DECIDING THE DEGREE OF URGENCY. 59. It may be helpful to understand that local authorities respond more urgently to some types of referrals more than others. This is because of the nature of their duties under their relevant childrens legislation. For example: Section 17 of the Children Act 1989 gives the local authority a duty to: Safeguard and promote the welfare of children within their area who are in need; Promote the upbringing of such children by their families; by providing a range and level of services appropriate to those childrens needs. (These needs may link to a referral under Section 67 if Private Fostering is involved.) Services provided under Section 17 may not be regarded as an emergency. Section 47 of the Children Act 1989, in contrast places a duty on local authority Childrens Social Care departments to: Make enquiries to decide whether to make enquiries to decide whether to take action to safeguard and promote the childs welfare. This duty applies where the LA is informed that a child is the subject of an emergency protection order, or is in police protection, or where the LA has reasonable cause to suspect that a child is suffering or is likely to suffer serious harm. NB. Only social services, the police and the NSPCC have the right and responsibility to carry out this type of investigation or to initiate care proceedings to protect an abused child. Section 47 is normally dealt with urgently. 60. With referrals for services under Section 17 referrals, you should make a referral if: a), a child has no adult to care for them in the U.K., (the local authority should assess to see if they have a duty to look after the child); b), a child has a disability or the family are not coping for any reason, (the local authority should assess to see if other Section 17 Services are needed); c), a child is being looked after by an adult(s) who are not close relatives, (the local authority should assess to see if they have a Section 67 Duty to satisfy themselves that the welfare of children who are privately fostered within their area is being satisfactorily safeguarded and promoted, and to secure that such advice is given to those caring for them as appears to the LA to be needed).
61. With Section 47 referrals, the caseworker will need to decide whether the significant harm that threatens the child gives an immediate concern for the childs safety, - in which case they should phone the Police & then fax the local authority; or, whether the child is likely to be suffering significant harm, (i.e. in the near future rather than imminently), in which case the caseworker should phone & then fax the Local Authority, (i.e. the same process with which Section 17 cases are dealt). 62. Having assessed the evidence, if you believe that a referral might be appropriate, take your concerns to your line manager and discuss what should be done. If your line manager is absent, you should go to whoever is covering their absence, or the next officer up the line management chain. You will need to decide how urgent your concerns are and which type of referral is appropriate:
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ANNEX B INSTRUCTION ON REFERRING CHILDREN IN NEED Immediate need of protection: immediate telephone call to the police plus a Section 47 Local Authority referral. Likely to suffer significant harm: telephone call to the local authority followed by a Section 47 Local Authority referral. In need or where any of the reasons at a, b or c of para. 60 (see above), apply: telephone call to the local authority plus a Section 17 Local Authority referral.
FILLING OUT THE FORM. 63. If you decide to refer the child, you should complete the referral form at Annex A. All referrals must be made using this form and you should complete as many sections as possible from the information available before making the referral. When making a referral you must make clear what your concerns are and the circumstances that give rise to these concerns. By writing out the form first, you will have all relevant details in front of you when you make the phone call, and this will ensure that you give a consistent message by phone & fax when making the referral. The process of filling out the form may even help you decide on the urgency of the referral. 64. The text immediately below refers to specific boxes in the form. a), Page 1,Referral Completed by: refers to the caseworker making the referral. The discussion with, & agreement of their line manager should be noted on file. b), Page 1, Details of Children: (Tick to indicate which child(ren) give rise to concern). The caseworker should list all children in the family and tick those where there are concerns. General concerns will affect all the children, but where a child may be living with relatives, perhaps as an adopted child, it may be receiving different standards of care or treatment from the others and therefore be the only child to arouse concerns. N.B. It should be possible to attach a digital photograph of the child. This is to ensure the same child, that gave rise to concern, is seen by the welfare agencies. c), Page 2, Parents, Carers & Significant Adults. This refers to those who regularly care for or supervise the child & can include relatives, friends or neighbours who have regular contact. d), Page 2, Relationship This refers to this particular adults relationship to the child whose name has been ticked in the box(es) above. In cases where to specify the relationship would be confusing, e.g. where a married couple are living with an adult cousin, along with children from various relatives or relationships, please complete an additional referral form, grouping siblings together. e), Page 2, Citizenship, enter the legal citizenship or nationality. f), Pages 3 & 4, Summarise your key concerns. Has the child disappeared from a family unit, or not been included on an application? Or do you believe the child is being mistreated? Sending Childrens Services an accurate description of the case along with what concerns you have, should aid their own consideration of the childs needs. Whatever action Social Services decide to take, you must ask them to acknowledge receipt of the referral, (see page 2), and then tell us what action they
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ANNEX B INSTRUCTION ON REFERRING CHILDREN IN NEED have taken and note this. If you do not hear from them, you must make further enquiries to find out. It can sometimes be difficult to convert the feelings of concern that you have into definite words or phrases which will convey your intended meaning to the social worker. You might find the Common Assessment Framework is able to help you do this. Please see the diagram & advice at Annex F below.
DECIDING TO WHICH LOCAL AUTHORITY TO MAKE A REFERRAL 65. All referrals should be made by telephone and then followed up by faxing the written referral to the number you have obtained, with a request for a written acknowledgement. You should then make the referral to the relevant local authority childrens services Department, (or equivalent in the Devolved Authorities), unless the situation is so immediate as to require referral to the police. 66. A local authority has responsibility for a child who is ordinarily resident in an area and for children who are temporarily in the area when an urgent need arises. There is a risk that children encountered by UKBA will not have established an ordinary residence and LA responsibility will not be clear. If the situation is urgent, as it can be with child protection or abandoned children, then the local authority where the child happens to be, should take immediate responsibility. If a UASC absconds from care the local authority should notify UKBA. 67. If there is a dispute about which local authority has responsibility, the local authorities should act first and can then decide between them where the longer-term responsibility lies. UKBA does not have to care for the child while this is being sorted out, for example the Children Act 1989 imposes a clear duty upon the local authority where the child happens to be until another local authority accepts responsibility. 68. If you are making an urgent telephone referral, ring the local authority switchboard and ask for the childrens services duty team for the area where the child is. If the switchboard is unable to help you find the right office, ask for the office of the director of childrens services. If you cannot get through outside of normal office hours, you should ring the local police as they will have a duty contact number for the local childrens services. 69. If having made the referral and requested an acknowledgement, no acknowledgement is sent after 5 working days then ring childrens services again and request one.
KEEPING AN ACCURATE RECORD IS VITAL IN EVERY CASE. 70. No matter where you work in UKBA, you must ensure you make a written record of all your dealings in a case where you decide to make a referral including copies of all faxes and correspondence. Start to do this as soon as you have spoken to your line manager & they have agreed to refer. Do not leave it until later. Incomplete or uncertain records may not be sufficient to demonstrate that UKBA has acted in the required manner in these sensitive cases. Therefore accurate record keeping is vital. The written account must record the times of all communications, inc. telephone calls and faxes, (whether the attempts to ring were successful or not); the reasons for
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ANNEX B INSTRUCTION ON REFERRING CHILDREN IN NEED making the referral; who was consulted and who took the decisions as well as copies of all relevant documents in the case. The following list should help remind you what you need to record: Discussions with the child Discussions with the parent(s) Discussions with managers or other experts Information provided to Local Authority including a photocopy of the referral form Acknowledgement by Local Authority that referral has been received Decisions taken, (by whom, clearly timed, dated and signed)
71. The sections above set out the statutory duties of local authority childrens services. Local authorities are better able to respond to referrals if they are linked to their statutory duties, so whenever you can, make reference to one of the duties or categories of concern. The general principles that apply in all referrals are as follows: Always use the referral form at Annex A (if using it printed) or B (if filling out & sending on-line) as this will help you decide what to say in the telephone call, and ensure that what you say on the Form and in the call is consistent; Fill in as much of the form as you can; Include the details set out in the Code of Practice unless replaced by a duty to safeguard children. If you can, be clear about your concern and link it to a statutory duty, (i.e. a Section 17 or Section 47 referral), Obtain written consent to share the information if required; When making the telephone referral agree how the referral form will be transmitted; Ask for a printable, (i.e. faxed or e-mailed), acknowledgment of the referral and if you do not receive one write to the local authority to request one, enclosing a copy of the original referral form; Where possible agree the course of action to be taken with the local authority; Ensure the HO file and CID record is fully minuted with all communication, action and contact names, (if I.Os. find that there is no H.O. or CID file, they should file a report).
WHAT TO DO ONCE A REFERRAL HAS BEEN MADE

72. Following a referral to Childrens Services you should do the following: Update the file: If a CID file: with the information that a child in need referral has been made in the notes field, If a paper file: you should place the information or referral in a separate envelope clearly marked in Confidence. Otherwise: file a report, and place a copy of the referral form on file/with the report; record any action agreed, including the agreement of your line manager; follow up the referral if it is unclear whether any action has been taken; where appropriate, continue with immigration action.
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ANNEX B INSTRUCTION ON REFERRING CHILDREN IN NEED 73. The referral does not preclude UKBA from continuing to action a case, making a decision or proceeding to appeal where appropriate. There may be some cases where it might be appropriate to delay making or serving an immigration decision until childrens services have completed any action they are taking. However, this should only be done after reference to a senior caseworker/CIO. 74. Suspected child victims of trafficking are a special case. As well as a referral to childrens services and the police you must refer them to specially trained UKBA caseworkers who will consider their need for a reflection period or a residence permit in line with their best interests. The specially trained caseworkers are known as the competent authority as defined in the Council of Europe convention against Humans Trafficking. If you are in doubt, refer to the CIO/senior caseworker and then to any specialist policy on trafficking.
WHAT TO DO IF UNHAPPY WITH THE RESPONSE FROM A LOCAL AUTHORITY 75. If you have made a referral and are unhappy about the response you have received, you should then refer to a senior caseworker/CIO, then a police child protection officer, (if one is available under the Paladin arrangements, (Paladin is a Police initiative that places a Police Child Protection Officer at some ports and screening units.). You should make a written record of your concerns and contact the Director of Childrens services for that area to advise them of your disquiet. . 76. If there is a consistent pattern of problems communicating with a particular authority, refer the issue to your Keeping Children Safe Coordinator who can take the matter up with the Director of Childrens Services and/or the LSCB/ACPC. These boards and committees have a duty to deal with gaps in cooperation in their area.
IMPACT OF CHILD ABUSE CASES ON PROFESSIONAL STAFF

77. Contact with children who have suffered or who subsequently suffer harm can have a lasting effect on the well being of professional staff. This usually arises, either from the seriousness of the childs situation, or because it has echoes of difficult situations from the staff members own life. Such responses are entirely normal and occur frequently in the childcare professions. In UKBA there are sources of advice and support to help staff find appropriate ways of dealing with potentially difficult personal outcomes. You may wish to discuss with your line manager and/or the UKBA Employee Assistance Programme and/or the Childrens Champions Office. 78. The CAF Common Assessment Framework (see Annex F, below), contains terms which caseworkers might wish to bear in mind when contacting local authorities. The key words will be: harm where a child is at risk, significant harm where a childs welfare is likely to be significantly impaired protection where a child and family need help to manage risks to the child abuse where a child is at risk of abuse, (of any sort); and, subject to child protection plans where a child is already the subject of a plan drawn up for its safety & welfare.
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ANNEX B INSTRUCTION ON REFERRING CHILDREN IN NEED Annex A UKBA REFERRAL FORM (Static Box Version) See attached
UKBA BRAND
Annex B UKBA REFERRAL FORM (Expanding Box Version) See attached
UKBA BRAND
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ANNEX B INSTRUCTION ON REFERRING CHILDREN IN NEED Annex C CONTACT DETAILS FOR UKBA KEEPING CHILDREN SAFE CO ORDINATORS This list in preparation. Please contact your Director's office for up to date advice.
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ANNEX B INSTRUCTION ON REFERRING CHILDREN IN NEED Annex D GLOSSARY OF TERMS ACPC Area Child Protection Committee. These operate in Devolved areas and have a very similar function to an LSCB in England, (see LSCB below). These area Committees comprise of public services such as education, health and the police as well as local authorities. CHILDRENS SERVICES These were previously part of social services departments of local authorities social services and are now often referred to as adult services that now deal with adult cases. DCS Directors of Childrens Services is the area of a local authority that UKBA staff are most likely to have contact with. In England, following the Children Act 2004 and similar legislation in the devolved administrations, childrens services and directors of childrens services (DCS) were created. You will need to contact the DCS if you wish to develop an agreement with more than one child welfare agency in the area or to extend an agreement to neighbouring areas. EDT EPO Emergency Duty Team - provide out of hours service Emergency Protection Order
HOME AUTHORITY The authority which holds case responsibility, or if not known to SSD, where the child is living - this could be either an originating or receiving authority. HOST AUTHORITY The authority where a child may be found, is visiting for a short break or in receipt of specified services (e.g. education) - this could be either a receiving authority without case responsibility or an entirely different authority. Keeping Children Safe Co-ordinator These are the officers appointed within UKBA to hold responsibility for the dissemination of good practice on dealing with childrens cases in their particular area of UKBA. LAC Looked After Child - a child who is looked after by a local authority also known as in the care of the local authority. LSCB Local Safeguarding Children Board. These comprise of public services such as education, health and the police as well as local authorities. In each local authority area a local safeguarding children board (LSCB) or an area child protection committee (ACPC) will co-ordinate the activity of these agencies and monitor their effectiveness. UKBA will be represented on LSCB where there is a major Port or Airport in the area concerned and there will be a designated member of UKBA who will attend meetings. If no-one else is designated, the UKBA Keeping Children Safe Coordinator would normally represent us. MISPER MIT Police acronym for missing persons Police Serious Crime Group Major Investigation Team
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ANNEX B INSTRUCTION ON REFERRING CHILDREN IN NEED NRUC National Register of Unaccompanied Children. This is run by Westminster Council on behalf of all local authorities with the aim of improving communication on unaccompanied children. PROTOCOL In this document protocol means a national or regional agreement between UKBA & local authority(ies) to allow for better working in partnership. UKBA will set up these protocols or special agreements with local authorities & other bodies. Once the initial agreement(s) have been finalised, samples of how these have been drawn up will be given to local authorities & the UKBA Keeping Children Safe Coordinator to enable local agreements to be made. Staff should check with their regional Keeping Children Safe Coordinator, (see list of co-ordinators at Annex C). There is an information-sharing Protocol & there may be others in time. RECEIVING AUTHORITY RMP Risk Management Plan SAFEGUARDING is a duty placed on agencies listed in section 11 of the Children Act 2004 and similar legislation in the devolved administrations, to safeguard and promote the welfare of children in the UK. UKBA is getting an equivalent duty in the Borders Immigration and Citizenship Bill. Unlike the Section 11 duty this will apply across the UK not just in England and Wales. The safeguarding duty does not override the core tasks of agencies such as the police duty to uphold law and order but ensures these core duties are carried out in ways that take account of the needs of children. STRATEGY MEETING Strategy meetings are where all involved agencies meet to agree a plan for the childs future. After making a referral, you may be asked to take part in a strategy meeting which sets out what each agency will do. The main aims of the strategy meeting are to ensure that the participating agencies tasks are carried out in ways that keep the child safe and do not interfere with each other. You may then be asked to contribute information about your concerns and UKBA plans in the form of a report to a child protection case conference. UASC Unaccompanied Asylum Seeking Child, This means that the child is of interest to both the local authority being in need of care and to UKBA because of the asylum application. They are supported by special grants and other arrangements. Not all children who are principal asylum applicant are UASC, having an adult who is able and willing to care for them. NGO prefer the term separated child which refers to a much larger group of children who are in the UK but are not with their legal or customary carer. The borough / authority where the child / family has moved.
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ANNEX B INSTRUCTION ON REFERRING CHILDREN IN NEED Annex E UNDERSTANDING LOCAL AUTHORITIES In order to work effectively with local authorities, it is helpful to understand their structures and functions. Communication with an authority is likely to be ineffective if it is addressed to the wrong part of these very large and complex organisations. Deciding which local authority you should be communicating with is described in paragraphs 65-69 above. There are about 200 local authorities in the UK. These authorities are variously described as City Councils, County Councils, London Boroughs, Metropolitan Boroughs or Unitary Authorities depending on where they are. Local authorities are governed by an elected body of councillors. Each will have a ruling group generally formed on traditional political party lines. The ruling group will select a group of councillors to form a Cabinet. Within the Cabinet, members will have lead responsibilities for some council functions, such as childrens services. This is sometimes known as their portfolio. Special regional and national groups of elected councillors are organised by local government associations to discuss immigration. UKBA contact with council members is most frequently in response to their queries about our policies or about cases from their area. The chief executive is the most senior officer 4 of the local authority. Contact with chief executives occurs when UKBA policies or activities have a substantial impact on the full range of local authority functions e.g. by increasing the population. The chief executive is likely to refer the matter to their Cabinet for any political comment or action and also to the directors of the appropriate departments. The local authority department which UKBA staff are most likely to have contact with, is childrens services. In England, following the Children Act 2004 and similar legislation in the devolved administrations, childrens services and directors of childrens services (DCS) were created from out of what were social services. The part of social services which dealt with adults is now often called community care or adult services. You will need to contact the Association of Directors of Childrens Services, (ADCS), if you wish to develop an agreement with more than one child welfare agency in the area or to extend an agreement to neighbouring areas. The childrens services departments have responsibility for safeguarding and promoting the welfare of all the children in their area. There will be a small team of assistant directors (AD) each leading a particular function, for example family support or children in care. (A local authority AD is a more senior figure that the ADs in UKBA.) If you wish to develop a joint working agreement with a local authority, it is the ADs task to gain the necessary political and professional approval for your proposals and to ensure that social workers are made aware of them. Operational responsibility is further devolved through service managers and team leaders to social workers who work directly with children and families and who will deal with referrals about individual cases.
WORKING WITH LOCAL SAFEGUARDING CHILDRENS BOARDS As well as establishing Directors of Childrens Services, (DCS), the Children Act 2004, (there is similar legislation in the devolved administrations), also requires each local authority in England to create Local Safeguarding Children Boards (LSCBs). The function of LSCBs is to coordinate and ensure the effectiveness of the safeguarding activities of board members. This role is carried out by Area Child Protection Committees (ACPC) in the devolved administrations. The Children Act 2004 (section 11) also imposes a duty on other specified bodies in England and Wales to make
4
The permanent staff in local authorities are generally referred to as officers.
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ANNEX B INSTRUCTION ON REFERRING CHILDREN IN NEED arrangements that ensure that their functions are discharged having regard to the need to safeguard and promote the welfare of children. Most services that have a section 11 duty also have a statutory role to play on LSCBs. UKBA is not subject to a section 11 duty, nor is it a statutory member of LSCBs, but will have its own duty under the Borders Citizenship and Immigration Bill royal assent is expected in summer 2009 and clause 53 (the new childrens duty) is expected to come into force in Autumn 2009. UKBAs core task is in applying the immigration rules and we have a statutory duty to carry out these tasks, while having regard to the Code of Practice or a duty to safeguard children that might replace it, but there can be mutual benefit to the LSCB and UKBA if we work out appropriate levels of co operation. UKBA is committed to responding positively to requests that we attend LSCBs by invitation to address immigration issues affecting children in the area. We will also agree to being co opted onto boards in areas where we are particularly active for example, areas containing major ports, asylum screening units, removal centres or to which we disperse large numbers of asylum seekers. . Examples of when we have found engagement with LSCBs useful include: Our representation on an LSCBs sub-committee on missing children; Our attendance at LSCB meetings to consider UASC issues; Our attendance at LSCB to discuss special arrangements for children detained with their families; Our consultation with an LSCB about how best to share information about cases of mutual interests; and Our involvement in a serious case review into the death of a child of an asylum seeker; and Strategy meetings (Where all involved agencies meet to agree a plan for the childs future).
Local authorities have found UKBAs involvement in LSCBs very useful. Different local authorities may structure and organise the work of their LSCBs to suit their particular local circumstances. It is important that when establishing relationships with local authorities at this level, you clarify which issues are of joint interest and how UKBA can help the work of the LSCB. It is also important that whoever represents UKBA at the formal meetings, is prepared to take away and refer to appropriate UKBA colleagues any issues outside their own area of responsibility or expertise.
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ANNEX B INSTRUCTION ON REFERRING CHILDREN IN NEED Annex F THE STANDARD ASSESSMENT FRAMEWORK, (TRIANGLE).
This diagram is produced to help identify the factors that have given rise to concerns about a child. It uses terms that will be familiar to Social Workers. It might help you to circle the area(s) of key concern and then include them in your summary of concerns on page 3 of the Referral Form. The Assessment Framework is reproduced here to help you put your concerns into words that will be familiar to Social Workers. Examples would be if you believed that a child had gone missing, the immediate concerns would be for: Health, Basic Care & Safety. If you became aware of a child who was not attending school, then Education, Stimulation and the Familys Social Integration would be areas of concern. If you suspected that a child had been passed from its parents to another carer, (e.g. for unofficial adoption or unnotified private fostering), it could prompt concerns about the childs, Identity, Emotional & Behavioural Development and Emotional Warmth , as well as Family & Social Relationships and, of course, Safety. A neglected child might be shown by use of Social Presentation & Selfcare Skills, as well as Basic Care and Emotional & Behavioural Development. Whatever action Social Services decide to take, it will be and can only ever be, a matter of them using their own judgement. This is where our sending them an accurate description of the facts of the case along with using the assessment framework to express the concerns we have, could aid their own consideration of the childs needs.
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ANNEX B INSTRUCTION ON REFERRING CHILDREN IN NEED Annex G DATA PROTECTION 1. Sharing information amongst those working with children is essential. In many cases, it is only when information from a range of sources is put together that a child can be seen to be at risk of harm or otherwise need the help of statutory welfare services. UKBA has the legal power to share information given by applicants. The Data Protection Act 1998 set out the legal safeguards for sharing information safely and fairly. It is worth stressing that the legislation is intended to guide information sharing, not to prevent it. The Data Protection Act 1998 sets out that to be lawful, the possession of personal data is justified, if it is necessary: 2. To ensure compliance with any legal obligation to which the data controller is subject; to protect the vital interests of the data subject*5 ; for the administration of justice* ; for the exercise of any statutory functions for the exercise of any functions of the Crown, and Minister of the Crown or a Government department*; for the exercise of any other functions of a public nature exercised in the public interest by any person.
Conditions marked with a * may also be relied on where sensitive personal data are involved ("sensitive personal data" is defined as including information as to racial or ethnic origin, physical or mental health or condition, sexual life, or the commission or alleged commission of any offence). Alternatively, data sharing is lawful if the person who is the subject of the data has given his consent to the processing.
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ANNEX B INSTRUCTION ON REFERRING CHILDREN IN NEED Annex H How to make a referral, Quick Check List.
(NB. This a check list to remind staff of the process and is NOT a substitute for reading the appropriate section in full, see paras 57 to 71 above.)
1. Consider all the evidence available. 2. Decide whether there is justification for making the referral. 3. Discuss with line manager & agree decision. 4. Decide whether to refer for services under Section 17 of the Children Act 1989, (there is a need to Safeguard the welfare of children who are in need, i.e. you have general concerns contact Local Authority), or whether you believe that urgent enquiries need to be made as under Section 47 of the Act, (there is an immediate concern for the childs safety, -phone Police, or they are likely to be, or are suffering significant harm phone Local Authority). (See Paras 59-62 for the difference between Section 17 & 47.) [See comments earlier in this instruction this is inaccurate. Referral is not under section 17. Referral takes place because UKBA thinks that it will assist/enable the LA to fulfil their duty in section 17 of the Children Act 1989. Same applies to section 47. The referral is not made under section 47.] 5. If you refer the child, complete the referral form at Annex A or B, (this way you will have all relevant details in front of you when you make the phone call). 6. Telephone the police or local authority, (as appropriate), to alert them to the childs situation and that a referral is being made. 7. If you are unable to get through to the local authority on the telephone, (e.g. because you are ringing out of hours), you should telephone the local police who will have a list of duty officers which cover childrens services. 8. Fax the written referral to the local authority, with a request for a written acknowledgement. If no acknowledgement is sent after 5 working days then ring childrens services again and request one. 9. Ensure you make a written record of all dealings & start this as soon as you have spoken to your line manager. Do not leave it until later.
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ANNEX B INSTRUCTION ON REFERRING CHILDREN IN NEED Annex J Indicators of Trafficking Indicators are apparent symptoms of a situation. They should assist Officers (who are considered the First Responder (FR)) in making a primary assessment of whether the individuals encountered are or may be Potential Victims of Trafficking (PVoT). It is not the case that by selecting a set number of indicators this will equate to a person being a victim; it could be just one or a combination of indicators which demonstrate that the person may be a victim. Each case should be considered on its own merits. Indicators highlight a potential situation to the Officer/FR who can then dig deeper to investigate what has happened. General indicators to be considered include: Found in or connected to a type of location likely to be used for exploitation Distrust of authorities Expression of fear or anxiety Depression (lack of interest, hopelessness, suicidal) Hostility (annoyed and irritated easily, temper outbursts) The person acts as if instructed by another Passport or documents held by someone else Perception of being bonded by debt Being placed in a dependency situation Threat of being handed over to authorities Threats against the individual or their family members Injuries apparently a result of assault or controlling measures Evidence of control over movement, either as an individual or as a group Limited social contact Lack of access to medical care No or limited access to bathroom/hygiene facilities Claims to be older than their actual age - If Officers suspect that an individual may be a child i.e. less than 18 years of age they must contact Social Services immediately.
This is not an exhaustive or definitive list but highlights the more common indicators that may be identified.
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ANNEX B INSTRUCTION ON REFERRING CHILDREN IN NEED Annex K Council of Europe Convention against Trafficking: Article 4 some Definitions with relevance to children. Definition of trafficking in human beings 76. For there to be trafficking in human beings ingredients from each of the three categories (action, means, purpose) must be present together. There is, however, an exception regarding children: under Article 4(c) recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation is to be regarded as trafficking in human beings even if it does not involve any of the means listed in Article 4(a). Under Article 4(d) the word child means any person under 18 years of age. 84. A wide range of means therefore has to be contemplated: abduction of women for sexual exploitation, enticement of children for use in paedophile or prostitution rings, violence by pimps to keep prostitutes under their thumb, taking advantage of an adolescents or adults vulnerability, whether or not resulting from sexual assault, or abusing the economic insecurity or poverty of an adult hoping to better their own and their familys lot. However, these various cases reflect differences of degree rather than any difference in the nature of the phenomenon, which in each case can be classed as trafficking and is based on use of such methods. 85. The purpose must be exploitation of the individual. The Convention provides: Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. National legislation may therefore target other forms of exploitation but must at least cover the types of exploitation mentioned as constituents of trafficking in human beings. 95. The ECHR bodies have defined servitude. The European Commission of Human Rights regarded it as having to live and work on another persons property and perform certain services for them, whether paid or unpaid, together with being unable to alter ones condition (Application No.7906/77, D.R.17, p. 59; see also the Commissions report in the Van Droogenbroeck case of 9 July 1980, Series B, Vol. 44, p. 30, paragraphs 78 to 80). Servitude is thus to be regarded as a particular form of slavery, differing from it less in character less than in degree. Although it constitutes a state or condition, and is a particularly serious form of denial of freedom (Van Droogenbroeck case, judgment of 24 June 1982, Series A, No.50, p.32, paragraph 58), it does not have the ownership features characteristic of slavery. 98. Under sub-paragraphs b. and c. of Article 4 taken together, recruitment, transportation, transfer, harbouring and receipt of a child for the purpose of exploitation are regarded as trafficking in human beings. It is immaterial whether the means refers to in sub paragraph a. have been used. It is also immaterial whether or not the child consents to be exploited.
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[Region/Directorate]
[First line of address] [Second line of address] [Third line of address] [Fourth line of address] [Postcode]
[Addressee name] [First line of address] [Second line of address] [Third line of address] [Postcode]
Tel Fax
+44 (0)[000 0000 0000] +44 (0)[000 0000 0000] @homeoffice.gsi.gov.uk
Email [name.surname] Web www.ukba.homeoffice.gov. uk
[00 Month 0000] Ref: [Insert reference]
BEST INTERESTS CONSIDERATION PRO FORMA Name: HO Reference: Date of Birth First Name Surname HO Ref DOB
Title First Name Surname is receiving accommodation and care from your local authority. I am considering his/her immigration status. Before I make a final decision on his/her application to stay in the United Kingdom I would be grateful if you could assist me by providing some important information. The information is important in order that I can take account of all factors relevant to his/her welfare and best interests before I make the final immigration decision. Section 55 of the Borders, Citizenship and Immigration Act 20009 requires the UK Border Agency to make arrangements to ensure that its functions are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom. According to the guidance accompanying Section 55, arrangements include having an effective system for sharing information between different agencies. My information is that First Name has family in country. If return was to take place we would prefer this to be direct to family If return cannot be made direct to family, the UKBA has arrangements in place in country which might be suitable for First Name if it is decided that return should take place. The following is a non-exhaustive list of the matters that are likely to be relevant to the consideration of First Names welfare and best interests. physical and mental health & medical needs level of education emotional and behavioural development family and social relationships self-care skills the childs views the childs age and maturity; experience of mental or emotional trauma; compassionate factors the duration of absence from the home country and level of integration in the UK;
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whether the child is settled in education in the United Kingdom and the disruption caused to those arrangements by a decision to refuse outright. the desirability of continuity in the childs upbringing and to the childs ethnic, religious, cultural and linguistic background; the childs right to preserve their identity, including nationality, name and family relations the availability of care arrangements, the safety and security of the living arrangements, and the socio-economic conditions; the availability of education, work or training opportunities in the country of return.
It would be helpful if you relay the information I need by giving an assessment of the important factors listed below. But please feel free to provide any supplementary information that you feel is important. Health & medical needs Please type
Level of education/Skills or qualifications gained in the UK
Emotional and behavioural development
Family and social relationships
Self-care skills
The childs views (including age & maturity)
Other vulnerabilities (e.g. disability; victim of torture or violence; victim of abuse, neglect or armed conflict)
Any other relevant information
The information I have requested may be disclosed to the UK Border Agency in order that the Agency can discharge its statutory duty to make arrangements to have regard to the need to safeguard and promote the welfare of children. However, it is of course important that First Name is informed of the exchange of information and that the completed proforma is copied to him/her and his/her legal representative.
PROCESSING HYBRID APPLICATIONS

Table of Contents
Introduction Definition of Hybrid Applications Identifying Hybrid Applications File Checks CID Checks Charging Issues Application Forms Where a Prescribed Form is not on File Target Deadlines Handling and Considering Hybrid Cases Types of Case Applying for Variation of Leave Where the Non Asylum Application is not one of the Types of Cases Listed/Covered Non Suspensive Appeal (NSA) Asylum Cases - section 94 Certification of Claims Brought by Applicants from Designated Countries Case by Case Certification European Economic Area/European Union Cases Priority of Consideration Considering Illegal Entrants Determining Immigration Status Other Points to Note - Handling Marriage or Civil Partnership Applications Determining Rights of Appeal Implementing Decisions - Outright Refusals Preparing Implementation Paperwork for Outright Refusals Decision Letters (Reasons for Refusal Letter) Decision Notices Appeal Proforma (PF1) Updating CID/INDECS Minute Writing Implementing Decisions - Grants of Leave Granting Asylum Granting Leave on Rules Based Application, HP, DL or LOTR Preparing Paperwork for Granting Leave Uncontrolled if printed
Decision letters Preparing decision notices Preparing appeal proformas (PF1) Endorsement on United Kingdom Residence Permits Updating CID/Stats codes Minute Writing Withdrawal of Asylum or Non Asylum Application Withdrawal of asylum claim Withdrawal of 'Rules based' application Further Guidance Wordings for Decision Notices Outright Refusals Grants of Leave (Asylum Refused) Example Wordings for Proformas Decision Immigration History Glossary
Uncontrolled if printed
Introduction
This instruction provides guidance to asylum officers on how to process hybrid asylum casework. Guidance is also provided regarding implementing decisions and determining rights of appeal in hybrid cases and how to proceed in the event that the asylum or non asylum application is withdrawn by the applicant.
Definition of Hybrid Applications

A hybrid case is defined as a case where there is an outstanding asylum claim (at the initial decision stage) or Active Review application, along with an outstanding general casework application. Where the hybrid case is being handled by ACD and an initial asylum claim is outstanding the case should be considered by asylum decision makers who have attended the necessary hybrid training course and who have been allocated this workstrand. Where the hybrid case arises within the context of an Active Review application and is being handled by ACD, the case should only be considered by Active Review asylum officers who have attended the necessary hybrid training course.
Identifying Hybrid Applications

Cases can be identified in the following ways: File Checks Asylum officers should check a case file to see if there is an outstanding asylum claim and a general casework application. A checklist is available to aid asylum officers to complete basic file checks.
CID Checks The asylum officer should check G-CID to ensure that there is an outstanding rules-based application. Asylum officers in ACD who find a hybrid case should forward the case to the relevant location, marked for the attention of the 'hybrid team'.
Charging Issues
Application Forms In cases where the applicant has made an application that attracts a fee, all payments will be handled by ATOS in Cannock. If the general/Rules based application was made before charging was introduced (1 August 2003) the case will not attract a fee. If there are any charging issues for example, over or under payment, this will be dealt with by the Charging Support Team in Croydon. Staff in the New Asylum Model (NAM) or the Asylum Casework Directorate (ACD) are not expected to handle any fees.
Where a Prescribed Form is not on File The asylum officer will need to cross check CID and Warehouse/File Tracking System as some subfiles may have been separated and be located in another area. If asylum officers in the NAM or ACD receive a general casework application, which post dates the date on which charging was introduced (1 August 2003) and the applicant had extant leave at the time they made the application, they should write to the applicant and ask them to submit the application in the correct form and, if chargeable, to pay the required fee. It should be noted that, although illegal entrants have no leave there is nothing to prevent them from submitting an application, but they will usually fall for automatic refusal (see Handling and Considering Hybrid Cases Priority of Consideration and Considering Illegal Entrants) for considering illegal entrants). The file should be minuted accordingly, and a decision made on the asylum and/or human rights claim as normal.
Target Deadlines
Where possible, the two month target should be met for making a decision on the case. Managed Migration Directorate (MMD) have a target to deal with most applications within seventy working days, therefore the NAM and ACD's targets are compliant with this. However, it is acknowledged that most cases handled when the applications are first dealt with will have passed both deadlines.
Handling and Considering Hybrid Cases

Types of Case Hybrid asylum officers are trained to consider the following categories of general/Rules based applications: Prospective Student Student Nurses and Midwives Students Dependants of Students Fiance()s or proposed civil partners Marriage or civil partnership Unmarried Partners Bereaved Spouses and Unmarried partners Long Residence Work Permits (including ECAA applications) Domestic Violence
Consideration of cases should be made in accordance with the relevant hybrid training, handouts issued during the hybrid training and communications issued by the General Group communications team. In addition to this, hybrid asylum officers will be able to deal with medical cases (as part of the general asylum casework).
Applying for Variation of Leave Where a person has submitted an in time in country application to vary leave, further grounds for applying to vary leave may subsequently be submitted. An application for leave in a different category made by a person who has continuing leave under section 3C (and an application for further leave outstanding) will be treated as a variation of the original application rather than as a fresh application to vary leave. This ensures that there is only one right of appeal. For example, applicants who submit in-time applications for LTR as a student can subsequently seek leave in a different category e.g as the spouse of a British Citizen. If the spouse application is made after the original leave has expired and section 3C leave is running, it will be treated as a variation of the original application for LTR as a student. If the applicant makes it absolutely clear that the new basis of the application should be considered instead of the original basis, then the original application need not be considered. However, it should not be assumed that the applicant wishes to withdraw the original basis for application simply because it appears incompatible with the later grounds, and the general position is that all grounds relied upon should be considered. Using the example above, when considering the application to vary leave, the case owner/caseworker should consider it as both an application for leave as a student and application for leave as a spouse.
Where the Non Asylum Application is not one of the Types of Cases Listed/Covered Currently, only the cases listed under Types of Cases can be dealt with. If the case contains a different type of general application than those listed above and is being handled by a hybrid asylum officer within the NAM, they should liase with Managed Migration, ensuring that they provide them with a full overview of the case. Where the case is being dealt with by a hybrid asylum officer within ACD, the case file should be forwarded to the ACD hybrid SCW for guidance, who will then, if necessary, liase with Managed Migration on how to proceed. In the event that asylum officers should need to contact the hybrid SCW for guidance, they should provide them with a full overview of the case to enable them to respond to the query quickly and effectively or liase with Managed Migration as appropriate.
Non Suspensive Appeal (NSA) Asylum Cases - section 94 Certification of Claims Brought by Applicants from Designated Countries Only NSA accredited asylum officers should certify decisions under section 94 of the Nationality, Immigration and Asylum (NIA) Act 2002. Where an asylum or human rights claim made by an applicant from a designated country is certifiable under section 94, ACD hybrid asylum officers should apply the same procedures used when considering certifying cases on a case by case basis (see Case by case certification). If the asylum/human rights claim was made before the country was designated, it should be dealt with as a non NSA case, unless it is considered appropriate to certify the claim as clearly unfounded on a case by case basis (see Case by case certification). Please note that most of the hybrid cases will include backlog asylum claims. Hybrid Asylum officers within the NAM, who are NSA accredited may make a decision to certify under s94 but before implementing the decision should refer the case to an NSA accredited colleague to act as a second pair of eyes.
Case by Case Certification Decisions to certify clearly unfounded asylum or human rights claims on a case by case basis should only be made by decision makers who are NSA accredited. Hybrid asylum officers within the NAM should make the decision themselves if NSA accredited, however before implementing the decision should refer the case to a NSA accredited colleague to act as a second pair of eyes. ACD hybrid asylum officers who are not NSA accredited should refer cases suitable for case by case certification to the country SCW, who will decide whether the asylum element of the claim should be considered by a NSA accredited asylum officer or returned to the hybrid asylum officer for consideration. The hybrid asylum officer should ensure that the file is returned to them in order for the general/Rules based application to be considered.
European Economic Area/European Union Cases Nationals from the European Economic Area (EEA) or European Union (EU) do not need to apply to UK Border Agency for limited leave to enter/remain the UK, but they may apply for ILR. This should be done in a prescribed form (EEC2) and there is no charge. EEA nationals can also apply for refugee status. For further guidance see Applications from nationals of the EEA and EU accession countries Uncontrolled if printed
Priority of Consideration Although the decision for leave on the various applications should be made at the same time (resulting in only one immigration decision being made), the priority of consideration should follow: 1. Asylum If the applicant qualifies for asylum they should be granted asylum. If they do not, consideration should then be given to the next category. 2. General/Rules based application. Even if the applicant is an illegal entrant, or an on entry case, substantive consideration of the case under the Immigration Rules should still be given if the applicant is refused asylum. Illegal entrants will usually fall for automatic refusal as they had no leave or entry clearance at the time of submitting the application (see Considering illegal entrants). 3. Humanitarian Protection If the applicant qualifies for HP they should be granted HP in line with current policy and processes 4. Discretionary Leave If the applicant qualifies for DL they should be granted DL in line with current policy and processes. It should be noted that in cases where the applicant has made an application under the marriage or civil partnership Rules, and they do not qualify for leave under the Rules (e.g. if they are an illegal entrant), as the NAM and ACD are bound by the ECHR, hybrid asylum officers should consider whether UK Border Agency would be in breach of Article 8 of the ECHR if the applicant was required to leave the country in order to apply for the appropriate entry clearance. For further guidance on granting HP and DL see the Asylum Instructions Humanitarian Protection and Discretionary Leave.
Considering Illegal Entrants As detailed in Priority of Consideration illegal entrants who make a general application will usually fall for automatic refusal as they had no leave or entry clearance at the time of submitting the application. Illegal entrants may only qualify for leave if they make an application under Long Residency and have been resident in the United Kingdom for at least fourteen years prior to the service of any illegal entry papers. Illegal entrants may also qualify for leave, outside of the immigration rules, if they are married to someone settled here and have lived in this country continuously since their marriage or civil partnership for at least two years prior to the commencement of enforcement action. For further guidance see DP 3/96 Marriage Policy.
Determining Immigration Status Asylum officers must determine the immigration status of a hybrid case, in the same way that it is done for asylum and Active Review cases. The NAM or ACD will be required to make an immigration decision in accordance with section 82 & 83 of the Nationality, Immigration and Asylum Act 2002. The immigration decision will depend upon the immigration status of the Uncontrolled if printed
applicant and each dependant and it is therefore important for the immigration status to be identified.
Other Points to Note - Handling Marriage or Civil Partnership Applications When processing marriage or civil partnership cases, it should be noted that both the applicant and the sponsor (i.e. spouse or civil partner) will need to be called into UK Border Agency for an interview. The marriage interview questions can be obtained from the Document Generator (ICD.2715 - or ICD.2716 for unmarried partners). The applicants asylum interview should be carried out first, using the standard SEF Interview. The marriage or civil partnership interview should then follow the asylum interview, with the sponsor, (i.e spouse or civil partner) being interviewed first. Where the applicant has requested the interview to be tape recorded and this has been agreed in accordance with current processes, the interview (both asylum and marriage/civil partnership) should be tape recorded. Please note that a sponsor should not be interviewed if the marriage application pre dates March 2003, as this is when the interviewing of sponsors commenced.
Determining Rights of Appeal

An applicant's right of appeal will depend upon their immigration status and what application they are making. For further guidance, see the Asylum Instruction on Appeals Rights of Appeal and Chapter 12 of the IDIs Immigration Directorate Instructions
Implementing Decisions - Outright Refusals

Preparing Implementation Paperwork for Outright Refusals Once the immigration status has been determined and the asylum officer has made a decision on the application, they should implement the decision. For outright refusals there is no difference in paperwork which is to be issued to the applicant, therefore the standard implementation minute sheets can be used when dealing with hybrid applications. However hybrid asylum officers should note that the standard RFRL used (ACD.0015) should be replaced with the hybrid decision letter (ASL.2533) and use the additional standard wording for the decision notices. Hybrid asylum officers must ensure detailed consideration minutes are placed on file, outlining each application applied for and why they did not qualify for leave. This will aid the case owners (NAM) or Presenting Officers (ACD), if the decision is appealable. Section 17 of the Asylum & Immigration (Treatment of Claimants, etc.) Act 2004 gives the Secretary of State the power to retain documents which may facilitate removal. As long as caseworkers are satisfied that an applicant is liable to removal and retention of that applicants documents may facilitate, the relevant documents should be retained on file and should not be returned to the applicant when a decision on their claim is made. This includes, but is not limited to: passports; identity cards; membership cards; birth certificates; school certificates; etc. Where it is clear that a document will not facilitate removal, it should be returned to the applicant. In the NAM and ACG (S) these documents are to be kept in a clear plastic wallet, available from team support, attached to the right hand side of the file. The file must be clearly flagged with a white "Passport" flag. All documents retained on file should be recorded on A-CID and clearly minuted on the file on a separate minute sheet. In ACG(N) the documents will be kept in the Valuable Document Bank. For further guidance on the retention of documents see Asylum Guidance on Document Retention.
Decision Letters (Reasons for Refusal Letter) In cases where the applicant is being refused leave, the decision letter must contain all the reasons why the asylum/human rights application and application under the rules have been refused. The letter should contain all the grounds for refusal for each application, i.e. in respect of the application under the Rules, which of the requirements of the Immigration Rules have not been met, (e.g. if the person has failed to meet the maintenance and accommodation requirements, or has not provided evidence of employment, has not provided the relevant evidence, this needs to be acknowledged). More detailed guidance on refusal wordings relating to specific categories can be found in the Immigration Directorate Instructions, Chapter 9 relating to General Grounds for the Refusal / Cancellation of Entry Clarence, Leave to Enter or the Refusal of Variation of Leave to Enter or Remain. Hybrid asylum officers should use the hybrid decision letter template (ASL.2533).
Decision Notices The decision notice must set out the applications made and the paragraph of the Rules under which the application is being refused. It is not necessary to list all of the reasons for refusing the application under the Rules as the decision letter will set out all of the reasons. Standard wording for decision notices are contained at Wording for Decision Notices. Asylum officers should insert the wording to the decision notice as directed.
Appeal Proforma (PF1) Where we are refusing both an asylum and a Rules based application, the PF1 must set out in chronological order the applications made (including applications made under the Rules)and the immigration decision being made. The ACD.1989 should be used. For further guidance see the Asylum Policy Instruction (API) on The PF1.
Updating CID/INDECS The asylum officer should update both 'A' and 'G' flavours of CID with the relevant case outcomes for each case type.
Minute Writing Hybrid asylum officers must ensure detailed minutes are placed on file, outlining each application applied for and why they did not qualify for leave. This will aid the case owners/Presenting Officers in refusal cases where a right of appeal exists and is exercised.
Implementing Decisions - Grants of Leave

Granting Asylum If the applicant qualifies for asylum, asylum officers should use the standard implementation minute sheet for granting asylum. There is no need to produce any additional paperwork as once a decision has been made to grant asylum, the Rules based application need not be considered.
Granting Leave on Rules Based Application, HP, DL or LOTR - If an applicant has made one or more applications under the rules, and they qualify on each basis (but not asylum), the asylum officer should contact the applicant, before the applications are investigated and find out which applications they wish to pursue. Where the applicant qualifies for HP or DL plus the category sought under the Rules, the Rules based application takes precedence over a grant of HP or DL. It should be noted that if someone does not have leave at the time of the application, they will not qualify for a grant of leave under the Rules. However it is possible for someone who has leave outside the rules (i.e. LOTR, HP or DL) to switch into Rules based leave, provided that the Rules for that category of leave allow for switching. Where the person does not qualify for asylum or for a grant of leave under the rules but qualifies for leave under the HP or DL policy, they should be granted leave in accordance with current policy and processes for HP or DL. Asylum officers need to address why the leave under the Rules has not been granted (see Preparing paperwork for granting leave).
Preparing Paperwork for Granting Leave Decision letters In cases where the applicant is being refused asylum, the decision letter must contain all the reasons for refusing the asylum claim. The decision letter must also set out all the reasons for refusing any unsuccessful applications under the rules, i.e setting out which of the requirements of the Immigration Rules have not been met, (e.g. if the person has failed to meet the maintenance and accommodation requirements, or has not provided evidence of employment, or has not provided any other relevant evidence, this needs to be acknowledged). More detailed guidance on refusal wordings relating to specific categories can be found in the Immigration Directorate Instructions, Chapter 9 relating to General Grounds for the Refusal / Cancellation of Entry Clarence, Leave to Enter or the Refusal of Variation of Leave to Enter or Remain. Hybrid asylum officers should use the hybrid decision letter (RFRL) template (ASL.2533).
Preparing decision notices Where we are refusing both asylum and an application under the Rules but HP or DL is being granted, the decision notice must outline the applications made and the paragraph under the rules under which the applications are being refused. It is not necessary to list all of the reasons for refusing the Rules based applications, as the decision letter will set out all of the reasons. The decision notice should state that leave has been granted. Uncontrolled if printed
Preparing appeal proformas (PF1) Where we are refusing asylum and a general/Rules based application, but granting leave, the PF1 must outline what applications were made and what decision is being made. If leave is being granted for a period exceeding a year, there is a right of appeal against the refusal of asylum under s.83 of the NIA Act 2002. Hybrid asylum officers should use the PF1 template ACD.1990 and should set out all the applications which were made, including applications made under the rules, in chronological order. For further guidance see the API on The PF1.
Endorsement on United Kingdom Residence Permits The applicant can only be granted one type of leave and whichever type of leave is being granted must be endorsed on the United Kingdom Residence Permits (UKRP), and the appropriate conditions attached to that UKRP. This will automatically feed from the Vignette Implementation Pro-forma (ICD.2100) printed from CID to the vignette machine.
Updating CID/Stats codes The asylum officer should update both 'A' and 'G' flavours of CID with the relevant case outcomes for each case type. 'G' CID cases will also require a stats code/outcome.
Minute Writing Hybrid asylum officers must ensure detailed minutes are placed on file, outlining each application applied for and why they did or did not qualify for leave. This will aid Active Review asylum officers when an application for further leave is made or the case owners/Presenting Officers in cases where the decision attracts a right of appeal.
Withdrawal of Asylum or Non Asylum Application Withdrawal of asylum claim In cases where the applicant wishes to withdraw their asylum claim they should be asked to confirm this in writing. A withdrawal pro forma can be found at Applications from nationals of the EEA and EU accession countries (and see Further Guidance). When the withdrawal has been confirmed in writing, the asylum officer should update the 'A'-CID record with the 'withdrawal' outcome. Depending on the immigration status of the application the case should be forwarded to: On entry cases - the hybrid asylum officers should consider the general/Rules based applications in the normal way. In time in country or overstayers of less than six months this will vary according to when the application was made and whether a fee was paid. If the application was made prior to 01/08/2003 the case should be forwarded to NCC 3. Where the application was made after 01/08/03 and a fee was paid, the case should be sent to ICC Support and where the application was made after 01/08/03 and no fee paid, the case should be sent to NCC 5. Uncontrolled if printed
Illegal entrants and overstayers of more than six months - to the relevant regional IS Removal Casework Team (RCT).
Withdrawal of 'Rules based' application If the applicant wishes to withdraw the general/Rules based application, they must be asked to confirm this in writing. Once this has been received the hybrid asylum officer should update the ''G' CID record with the 'withdrawal' outcome. The asylum/active review decision can be processed in the normal way and the NAM case owner should consider the case themselves. In ACD, the case should be forwarded by the hybrid asylum officer to ACU1 Team B (South) or ACU 11 (North) to be allocated to other CMUs on a rota basis. For more information see Immigration Directorates Instructions, Chapter 1, Section 6, Paragraph 9 on Withdrawal of Applications.
Further Guidance
Hybrid asylum officers should be alert to any Global emails circulated. These may mention a change in Rules or practices.
Wordings for Decision Notices

Outright Refusals The following wording should be inserted into decision notices where asylum is being refused: On date XXXX (name) applied on your behalf/you applied for variation of your leave as CATEGORY. I have considered whether you should be granted leave in the United Kingdom but you do not meet the requirements of the Immigration Rules for this category and I have refused your application under insert para. Full details for this decision are provided in the attached letter. Positioning of paragraphFor ACD.1046 - refusal to vary leave to enter/remain - the paragraph should appear as the final paragraph above the Decision Maker's signature. ACD.1050 - refusal to vary leave to enter/remain and curtailment of existing leave - The paragraph should appear as the third paragraph - before the 'curtailment' paragraph (i.e. the paragraph which begins 'Furthermore, I have decided that you no longer meet the requirements of the Immigration Rules under which you were granted leave')
Grants of Leave (Asylum Refused) The following wording should be inserted into decision notices where asylum is being refused, but leave is being granted: ACD.1047 granting leave Refusing Asylum but granting rules based application: On date XXXX (name) applied on your behalf/you applied for variation of your leave as CATEGORY which has been granted. This should appear after the paragraph refusing asylum Refusing asylum, rules based application but granting under HP or DL On date XXXX (name) applied on your behalf/you applied for variation of your leave as CATEGORY. I have considered whether you should be granted leave in the United Kingdom but you do not meet the requirements of the Immigration Rules for this category and I have refused your application under insert para. Full details for this decision are provided in the attached letter. This should appear after the paragraph refusing asylum, and before the paragraph granting leave under HP or DL.
Example Wordings for Proformas

Decision Example A On date a decision was made to refuse to grant asylum and to refuse to grant leave on the basis of marriage/civil partnership to a person present and settled in the United Kingdom. On date a decision was made to remove from the United Kingdom by way of directions under section 10 of the Immigration and Asylum Act 1999. Example B On date a decision was made to refuse to grant asylum and to refuse to grant leave for the purpose of studying in the United Kingdom. On date a decision was made to refuse to grant leave to enter the UK Example C On date a decision was made to refuse to grant asylum and to refuse to grant leave for the purpose of studying in the United Kingdom. On date a decision was made to refuse to vary leave to enter the United Kingdom
Immigration History The full immigration history should be set out chronologically, detailing when the appellant arrived in the UK and under what category of leave they have (if any). The date of the asylum claim as well as when all of the other rules based applications were made should be made. Document immigration history. DO NOT forget to mention dependants or detention if relevant. Example A The appellant claimed to have arrived in the back of a lorry in the United Kingdom on 1 March 2003 and claimed asylum. On 3 April 2003, the appellant submitted an application for leave to remain on the basis of his marriage/civil partnership to a person present and settled in the UK. Example B The appellant entered the UK, at Heathrow on 1 July 2002, and claimed asylum upon arrival. On date the appellant applied for leave in order that she could study. Example C The appellant entered the UK, at Gatwick on 23.02.02. On arrival the appellant was given six months leave to enter as visitors on a condition prohibiting employment. The appellant claimed asylum at ASU on 14.07.03. On 25.09.02 the appellant applied for leave to remain in the UK as a Work Permit holder.
Glossary
Term
ASL.2533 ACD.1989 ACD.1990 ICD.2100
Meaning
Hybrid decision letter PF1 PF1 Vignette implementation proforma
Document Control
Change Record
Version 1.0 2.0 3.0 Authors BF GT OM Date 20/02/2007 10/05/2007 29/10/2008 Change Reference New web style implemented Formatting updates Update branding only
PROCESSING FAMILY CASES

Table of Contents
1.Introduction 1.1 Purpose of instruction 1.2 Review into ending the detention of children for Immigration purposes 1.3 Application of this instruction in respect of children and those with children 1.3.1 Other useful information regarding children 1.3.2 Referencing consideration of section 55 and the best interests of the child 1.4 Involving children in decisions that impact on them 2. Point of claim 2.1 Screening 3. Contact Management 3.1 Reporting restrictions 3.2 Family Welfare Form 3.3 Referrals to Local Authorities 3.4 One Case Owner throughout the claim 3.5 Managing promotion of Assisted Voluntary Returns (AVR) appropriately 3.6 Absconders 4. Interviewing 5. Decision-making 6. Possible outcomes 6.1 Successful outcome 6.2 Unsuccessful outcome 7. Appeals 8. Leaving the UK 8.1 Assisted Return 8.2 Required Return 8.3 Ensured Return Document Control
1.Introduction
1.1 Purpose of instruction This Asylum Instruction sets out the policy, processes and procedures to be followed when considering an asylum claim from a family with at least one child under 18 years of age. This instruction does not provide guidance on how to process cases where the family unit does not include a child under 18 years of age, for example a married couple with no children. It should be noted that the family unit may constitute a variety of different members, and need not be a conventional father, mother, child unit. The unit must contain at least one child under 18 years of age, however, in order to fall within the guidelines in this instruction. This instruction does not provide guidance on how to process non-asylum family cases. This instruction should be read in conjunction with Chapter 45 of the Enforcement Instructions and Guidance on Family Cases.
1.2 Review into ending the detention of children for Immigration purposes On 15 May 2010, the government announced a review into ending the detention of children in the UK for immigration purposes. The UK Border Agency began work to establish a radically different approach to the way it manages the departure from the UK of failed asylum seeking family groups. This new approach was designed to secure departure without the need for immigration detention. The UK Border Agencys approach to this work has been underpinned by these key principles: The new process must take full account of the need to safeguard and promote the welfare of children in the UK in accordance with our statutory and international obligations. The new process must treat families with children humanely and with compassion. Independent expertise should be brought to bear at the most difficult stages of the process. Families with no legal right to be in the country need to leave. Parents should have the opportunity to make some choices about the manner and timing of their departure. The new approach must be affordable.
In designing a new approach, we re-examined all of UK Border Agencys interactions with families from the point of first contact. For the purposes of this instruction, that is when the family claims asylum (see Point of claim). This instruction outlines how to process asylum claims from families in line with this new approach, which reflects the outcome of the child detention review. A new four stage process for working with families who no longer have the right to remain in the UK was introduced in March 2011, which gave them greater support and advice when considering their options for voluntarily leaving the UK. Families are now given the opportunity to leave of their own accord and offered assistance on their return, before enforcement action is considered. The new process also ensures that the welfare of children is explicitly addressed in planning family returns.
The four stages of the process are decision-making, assisted return, required return, and ensured return.
1.3 Application of this instruction in respect of children and those with children Section 55 of the Borders, Citizenship and Immigration Act 2009 (the 2009 Act) requires the UK Border Agency to carry out its existing functions in a way that takes into account the need to safeguard and promote the welfare of children in the UK. It does not impose any new functions, or override existing functions. Officers must comply with the section 55 duty in carrying out the actions set out in this instruction, in respect of children and those with children. The UK Border Agency statutory guidance under section 55 Every Child Matters - Change for Children sets out the key principles to take into account in all Agency activities. Our statutory duty to children includes the need to demonstrate: Fair treatment which meets the same standard a British child would receive; The childs best interests are a primary, although not the only consideration, in any decision affecting the child; No discrimination of any kind; Asylum applications are dealt with in a timely fashion; Identification of those that might be at risk from harm. Safeguarding and promoting the welfare of children is defined in Part 1, Paragraph 1.4 of the statutory guidance under section 55 as: Protecting children from maltreatment; Preventing impairment of childrens health or development (where health means physical or mental health and development means physical, intellectual, emotional, social or behavioural development); Ensuring that children are growing up in circumstances consistent with the provision of safe and effective care; and Undertaking that role so as to enable those children to have optimum life chances and to enter adulthood successfully. The best interests of the child, whilst a primary consideration, is not the sole consideration when considering whether a child should be granted leave to remain in the UK or return to the country of origin. Other factors, including the need to control immigration, are also relevant. In ZH (Tanzania) v the Secretary of State for the Home Department [2011] UKSC 4, the Supreme Court addressed the weight to be given to the best interests of children who are affected by the decision to remove or deport one or both of their parents from the UK. Key points to note are: The best interests of the child broadly means the well-being of the child. A consideration of where those best interests lie will involve asking whether it is reasonable in all the circumstances of the case to expect the child to live in another country. The best of the interests of the child is not a factor of limitless importance: it can be outweighed by the cumulative effect of other considerations, including the need to Uncontrolled if printed
maintain a proper and efficient system of immigration control. But it is a factor that must rank higher than any other: it is not merely one consideration that weighs in the balance alongside other competing factors. Where the best interests of the child clearly favour a certain course, that course must be followed unless countervailing reasons of considerable force displace them.
An important part of discovering the best interests of the child is to discover the childs own views. The appropriate method of doing so will vary from case to case, but will be determined, at least in part, by: (i) the extent to which the childs best interests and those of its parent(s) (or any accompanying adult who has parental responsibility for the child) are synonymous; and (ii) the childs age and willingness to express its own views independently.
1.3.1 Other useful information regarding children The Asylum Instruction Processing Asylum Applications from a Child contains useful information that Case Owners must be familiar with before dealing with children, or processing claims that involve a child, even when the child is not the main applicant but a dependant on the claim. Please see that instruction for further information on: The United Nations Convention on the Rights of the Child (UNCRC) Considering the Best Interests of the Child UK Border Agencys statutory duty under section 55 of the 2009 Act, to have regard to the need to safeguard and promote the welfare of children in the UK 1.3.2 Referencing consideration of section 55 and the best interests of the child When considering the best interests of the child and applying section 55 of the 2009 Act, Case Owners must explain in any Reasons for Refusal Letter (RFRL) what information they have considered, and how they came to a decision to refuse leave to remain in the UK in the light of this information.
1.4 Involving children in decisions that impact on them Case Owners must take account of the views of any children likely to be affected by a decision of the UK Border Agency. Provided they are able and willing to do so properly, the role of representing those views to UKBA should be performed by the childs parent(s), or any other accompanying adult who has parental responsibility for the child. However, the UK Border Agency should not assume that the best interests of a child, on the one hand, and those of its parents (or any adult with parental responsibility for the child), on the other, will be the same. Where those interests are not aligned, appropriate steps must be taken to elicit and assess the childs views, as well as those of the parent(s) or any other adult with parental responsibility for the child.
2. Point of claim
The main applicant within a family may claim asylum at their port of entry, at the Asylum Screening Unit, or in some circumstances, via a Local Immigration Team. All members of the family wishing to be dependent on the asylum claim should be present when the claim is made, including children.
2.1 Screening For general information regarding screening procedures, see the following instructions: Asylum Instruction - Registering an asylum claim in the United Kingdom Asylum Instruction Third Country Cases: Referring and Handling
Other instructions to look at, specific to families, include the following: Asylum Instruction - Processing Asylum Applications from a Child
During the screening interview, applicants will be asked whether due to their personal circumstances, they would prefer a male or female Case Owner. Where requested, the UK Border Agency will make every effort to fulfil such a request.
3. Contact Management
Regional Asylum Teams undertake contact management in order to inform families about the asylum process, the familys own responsibilities, and of the possible outcomes to their asylum claim including information regarding integration, along with the possibility of an ensured return should their application be refused and they choose not to leave the UK of their own volition. Contact management may also be a good opportunity to raise awareness of assisted voluntary return programmes and the benefits they can provide to families (see Managing promotion of Assisted Voluntary Returns appropriately below). Contact management meetings should always be used to continuously gather information about the familys personal circumstances, health and the well being of each member of the family, with particular emphasis on identifying the welfare needs of any children.
3.1 Reporting restrictions Case Owners are responsible for setting reporting restrictions for the main applicant of a family, and should do so on a case-by-case basis. The main applicant of a family case will be put on a reporting regime, however family members will only be asked to report on an infrequent / irregular basis.
3.2 Family Welfare Form The Family Welfare Form (FWF) is a multi-purpose document consisting of eight sections. It is the basis upon which key operational decisions including job-specific risk assessments will be made for each family case. It is also used as part of the referral process to the Family Returns Panel, and by the Family Returns Unit to assist in the booking of accommodation for families. It is very important that a FWF is included on each family case file from the start of each family claim, and that the information in the FWF is detailed, fully accurate and regularly updated with any changes to the familys circumstances. The FWF provides evidence of the familys behaviour throughout the asylum process, and if being returned, demonstrates their willingness to take responsibility for their return. Any evidence of child welfare concerns, medical issues, or non-compliance recorded in the FWF will inform key operational decisions regarding the family, including in planning their return. This information is also crucial for the Family Returns Panel to consider whether the case should proceed to the Ensured Return route. For further information on the Family Welfare Form, please see Section 45.1 of the Enforcement Instructions and Guidance. Case Owners should be aware that this guidance must be followed.
3.3 Referrals to Local Authorities Case Owners must make a referral regarding a child to the Local Authority or to other agencies with child protection responsibilities, in the following circumstances: Where there are concerns about the current or future abuse of child for example: Neglect Physical abuse Emotional abuse Uncontrolled if printed
Sexual abuse Where there are concerns about the lack or poor level of support a child may be receiving When the child is in a private fostering arrangement Where there are concerns that a family or care provider is not meeting a childs developmental needs Where there are concerns about trafficking
This is an intrinsic part of the UK Border Agencys obligations under section 55 of the 2009 Act to have regard to the need to safeguard and promote the welfare of children in the UK. For further information on when and how to make a referral to the Local Authority and other agencies, please see Processing Asylum Applications from a Child. For further information on section 55 of the 2009 Act and safeguarding children, see the statutory guidance Every Child Matters - Change for Children.
3.4 One Case Owner throughout the claim In order to strengthen the relationship between a family and the UK Border Agency, and thereby to reassure family members and encourage compliance from them at all stages of the asylum claim, Regional Asylum Teams should enable the same Case Owner to deal with the family throughout their asylum claim, wherever practicable. This may not always be appropriate at the Family Return Conference stage, however. Regions should take the decision on a case-by-case basis, according to the needs of the family, and the wider practicalities. Where several members of the same family unit claim asylum in their own right, they may be allocated to different Case Owners within the region. Regional Asylum Teams should enable the same Case Owner to deal with all members of the same family throughout each of their asylum claims, wherever practicable. Where this is not possible or appropriate, Case Owners must liaise with each other, for example to coordinate events such as the Family Return Conference. For general information regarding contact management and reporting regimes, see the following instructions: Asylum Instruction - Case management following onward movement of Applications
In addition, for families see the following instructions: Chapter 45 of the Enforcement Instructions and Guidance on Family Cases
3.5 Managing promotion of Assisted Voluntary Returns (AVR) appropriately Contact managers must ensure that one full explanation of the benefits of leaving the UK under an AVR scheme is given during the asylum process, at a stage appropriate to the family. This option for departure will be explored again at the Family Return Conference. In order to assist with this, the following are currently available from the Assisted Voluntary Return team: Basic guidance Stories of Return Nationality scripts Uncontrolled if printed
Frequently Asked Question sheets Information in various languages
For further information, please see Voluntary Assisted Return and Reintegration Programme. For case specific advice, please email UKBA AVR (duty inbox).
3.6 Absconders Where one or more members of the family abscond, including the entire family unit, see the following for advice: Chapter 45 of the Enforcement Instructions and Guidance on Family Cases
4. Interviewing
For general information regarding interviewing, see the following instructions: Asylum Instruction - Conducting the asylum interview
Interviewers should be ready to ask searching questions while being sensitive to the difficulties an applicant may have in disclosing all the relevant information. Each applicant will have been asked at screening to indicate a preference for a male or female interviewer, and it should normally be possible to comply with a request for a male or female interviewer or interpreter that is made in advance of an interview. Requests made on the day of an interview for a male or female interviewer or interpreter should be met as far as is operationally possible. It is the UK Border Agencys duty to avoid the undermining or weakening of family relationships that can occur, for instance, by undue or inappropriate questioning of parents in front of their children. UK Border Agency staff must ensure that parents are not required to give an account of personal victimisation if their children are present. Children should therefore not be present at an asylum interview, in the interests of all concerned, and in the interests of the child in particular, bearing in mind the statutory duty to safeguard and promote the welfare of children. In some cases, however, children may be required to attend at the beginning of the interview, for re-documentation purposes only. For those without satisfactory childcare arrangements of their own, each UK Border Agency regional office has its own arrangements in place to ensure that children are not present when parents are interviewed about their reasons for seeking asylum. This can include rescheduling the asylum interview date to accommodate childcare arrangements, or the provision of childcare at or near UK Border Agency premises.
5. Decision-making
For general information regarding considering an asylum claim and making a decision, see the following instructions: Asylum Instruction Considering the protection (asylum) claim and assessing credibility Asylum Instruction Considering human rights claims Asylum Instruction Article 8 of the ECHR
Other instructions to look at, specific to families, include the following: Asylum Instruction Processing Asylum Applications from a Child
6. Possible outcomes
6.1 Successful outcome As with any case, the possible successful outcomes of an application for asylum made by a main applicant with family members dependent on the claim are a grant of refugee status, humanitarian protection (HP) or discretionary leave (DL). For general information regarding the implementation of a grant of status and/or leave (refugee status, HP or DL), see the following instructions: Asylum Instruction Guidance for Issuing Status Documents and No Photos Asylum Instruction Implementing Substantive Decisions Asylum Instruction NINo Guidance Asylum Instruction - Refugee Integration and Employment Service
6.2 Unsuccessful outcome For general information regarding implementing an outright refusal decision, see the following instructions: Asylum Instruction Implementing Substantive Decisions Asylum Instruction - The Reason for Refusal Letter
7. Appeals
It should be noted that the cases of family members each with an asylum claim in their own right should, where possible, be linked at the appeal stage. Linking the cases enables common issues to be heard together, and ensures that cases within a family unit progress through the asylum process at the same pace. For general information regarding asylum appeals, see the following: Modernised guidance pages - Unified Tribunal Appeals System The Procedure Rules
Where the familys appeal against the asylum refusal is successful, please refer to Successful outcome.
8. Leaving the UK
Once a decision has been taken that a family must leave the UK, and any in-country appeal rights have been exhausted, the new approach to family cases has three elements: Assisted Return The UK Border Agency will ensure that families have a dedicated Family Return Conference to discuss future options and the specific option of assisted return. UKBA has incorporated its findings having examined how best to bring strong family engagement skills to bear at these conferences and when engaging families throughout the process. Required Return The UK Border Agency will give families who do not choose to take up the offer of assisted return at least two weeks notice of the need to leave the country and the opportunity to leave of their own accord without any enforcement action. This extended notification period increased from 72 hours will ensure that the family can prepare properly for their return and give them time to raise any further issues or seek further legal redress. Ensured Return Once the new assisted and required stages have been exhausted, the UK Border Agency will consider enforcement action, the aim being for families to depart before reaching this stage of the process. An independent Family Returns Panel has been created to help to ensure that individual return plans take full account of the welfare of the children involved.
It should be noted that although the expectation is that families will be given the opportunity to go through both the Assisted and the Required Return stages, it will not be appropriate in all cases. For example, the Assisted Return stage may not take place because consistent attempts to hold a Family Return Conference fail for reasons within the familys control. Similarly, the Required Return stage may not take place for reasons such as compelling evidence that self check-in is likely to fail because of reasons within the familys control, or because there is a risk of harm to family members or the wider public to the extent that we believe we will need to use an element of control at the point of departure. For more information on what to consider before making the decision that a family should or should not proceed to each stage, Chapter 45 of the Enforcement Instructions and Guidance on Family Cases.
8.1 Assisted Return The Assisted Return stage aims to make sure that all families correctly understand their current immigration status in the UK, and are informed of their options for returning home. Families will have a dedicated Family Return Conference to discuss the options available to them, and are encouraged to start making arrangements for their return. The Assisted Voluntary Return for Families and Children (AVRFC) programme is for families who have either sought asylum or who are in the UK illegally and wish to return home permanently. Returnees receive up to 2,000 worth of reintegration assistance per person including a 500 relocation grant on departure for immediate resettlement needs and, once home, a range of reintegration options which are delivered "in kind. The scheme offers flexibility of reintegration for the whole family and increased emphasis is placed on the use of reintegration assistance for educational needs as well as income generation. Uncontrolled if printed
For more information regarding Assisted Returns, see: Voluntary Return Chapter 45 of the Enforcement Instructions and Guidance on Family Cases
8.2 Required Return The Required Return process is the UK Border Agencys first attempt to secure the return of those families who are not prepared to return voluntarily. The key objectives of the process are to: Ensure that removal directions are served with at least 2 weeks notice while the family remain living in the community providing the family with ample final opportunity to present further submissions and ensuring they have access to justice; Achieve successful departures without the need for ensured return; Ensure that further submissions, legal challenges, or other issues raised by families are addressed promptly and professionally;
The family will be given notice of the time and manner of their departure while they are still in the community so that they have the opportunity to comply with the arrangements made for them and to make their own preparations for departure. A planned departure of this sort, over which the family is able to exercise some control, is preferable to an Ensured Return. A Required Return involves the setting of Self Check-In removal directions, either where the family make their own way to the airport or where we send transportation (for example a taxi) if the family request this. The Required Return route must not involve the use of arrest. For more information regarding Required Returns, see: Chapter 45 of the Enforcement Instructions and Guidance Family Cases
8.3 Ensured Return If a family has exhausted the new assisted and required stages (as appropriate), the UK Border Agency will consider enforcement action. However, our aim is for families to depart before reaching this stage of the process. The Ensured Return route is overseen by an independent Family Returns Panel, which ensures that the welfare of the children involved is fully considered in a tailored returns plan. Cases are referred to the Panel, who will consider the family returns plan and advise on its suitability. For more information see chapter 45 of the Enforcement Instructions and Guidance Family Cases.
Document Control
Change Record
Version 1.0 Authors CC Date 2011-03-01 Change Reference First publication
Settlement Protection
Table of Contents
Introduction Application of this instruction in respect of children and those with children Pre-application Two months prior to leave expiring Two weeks prior to leave expiring Application received Application complete checklist Actions for DPT Applications made early Applications made late Initial casework actions incomplete applications Actions if the case is live with CCD Actions following request for further information Casework considerations Question 1 Question 2 Question 3 Question 4 Question 5 Does the applicant or do any of their dependants meet the criteria for deportation on grounds of criminality? Dependant meets the criteria for deportation on grounds of criminality Main applicant or dependant has criminal charge pending Main applicant or dependant has had a Deportation Order enforced Main applicant or dependant has had a Deportation Order not pursued Should the applicant be referred to Asylum colleagues? Significant and non-temporary change in country situation Travel home without UKBA permission Obtaining a national passport Evidence that status should never have been granted Actions following consideration Dependant has travelled home or obtained a national passport Decision to grant settlement Uncontrolled if printed
Which ISD should be produced? Main applicant refugee status and ILR (ASL.4211) Dependant refugee status and ILR (ASL.2151) Humanitarian Protection and ILR (ASL.2152) Indefinite Leave to Remain and no protection status (ASL.2150) Discretionary Leave (ASL.2373) Dependants Pre-grant dependants Estranged spouses Post-grant dependants UK born dependants New spouses New spouses with leave granted under the Immigration Rules New spouses with leave granted outside the Immigration Rules New spouses without leave Contact details provided for dependants no longer living with the main applicant Actions to take when individual becomes an overstayer Application received following expiry of leave No application received Up to date address identified Individual becomes an overstayer and then comes to light Status withdrawn Status not withdrawn Appeal Rights Successful applications Unsuccessful applications Applications successful following appeal Annex A CID guidance Purpose Process Maps 1 Decide 3 Cancellation / Cessation / Revocation 4 Refer to Asylum 5 Conclude: Grant Case Consideration Transfer Grant / Refuse Uncontrolled if printed
Statistics Categories Explanatory Notes: If refused If leave granted Document Control
Introduction
This Instruction is to assist caseworkers in dealing with applications for settlement from those who were originally granted five years limited leave to enter or remain as a refugee or on grounds of humanitarian protection, a policy in place since 30 August 2005. For further information on processing these applications, see also the Asylum Instructions on: Refugee Leave Humanitarian Protection Discretionary Leave Cancellation, Cessation and Revocation of Refugee Status Caseworkers may also need to refer to the following instructions: Referring a case to Criminal Casework Directorate Referring cases to Criminal Casework Directorate
Application of this instruction in respect of children and those with children Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the UK Border Agency to carry out its existing functions in a way that takes into account the need to safeguard and promote the welfare of children in the UK. It does not impose any new functions, or override existing functions. Caseworkers must not apply the actions set out in this instruction either to children or to those with children without having due regard to section 55 of the 2009 Act. The UK Border Agency instruction Arrangements to Safeguard and Promote Childrens Welfare in the United Kingdom Border Agency sets out the key principles to take into account in all Agency activities. Our statutory duty to children includes the need to demonstrate: Fair treatment which meets the same standard a British child would receive; The childs interests being made a primary, although not the only consideration; No discrimination of any kind; Asylum applications are dealt with in a timely fashion; Identification of those that might be at risk from harm.
Pre-application
Two months prior to leave expiring Approximately two months in advance of the individuals leave expiring, an initial contact letter should be sent to their last known address to remind them of the need to apply for further leave. Where the last known address is an Asylum Support address, the initial contact letter should not be sent to the individual, as there will be no possibility that the individual is still living at that address, whilst a current asylum seeker may be.
Two weeks prior to leave expiring Where no application has been received, two weeks in advance of the individuals leave expiring, a copy of the initial contact letter that was sent to them (as above) should be sent to the last known representatives, where applicable. Please note that where the last known representative is Refugee Migrant Justice, the above step should not be taken, as the company went into administration in June 2010 and so will no longer be in a position to represent or contact former clients.
Application received
The application can be made on the application form SET (Protection Route), or by letter. Applicants should be encouraged to apply on Form SET (Protection Route), as by filling this out correctly, they will have provided UKBA with everything required to consider the application more quickly. Form SET (Protection Route) can be found here: http://www.ukba.homeoffice.gov.uk/settlement/applicationtypes/completing_set_protection_ route/ Applications must be made in writing and posted to the address on Form SET (Protection Route). Any attempt to make an application any other way, for example by telephone or by email, will not be accepted as valid.
Application complete checklist In order to establish whether an application is incomplete, the following must be included as a minimum: Full name, date of birth, nationality and Home Office reference number of main applicant and any dependants included in the application; Two photographs of main applicant and any dependants, with the full name of the individual on the reverse; Previously issued Immigration Status Document(s) of main applicant and any dependants; Birth certificate of any UK-born dependants, born following the grant of 5 years leave; Criminality declaration.
Actions for DPT Upon receipt of the application, the Data Processing Team (DPT) will carry out the following actions: register the application on CID, so that anyone in UK Border Agency will know the individual has an outstanding application. Case type: Settlement Protection ILR where the applicant is represented, send the acknowledgement letter ICD.4207 to their representative as soon as possible, within 7 calendar days of receipt of the application; where the applicant is not represented, send the acknowledgement letter ICD.4206 to the applicant as soon as possible, within 7 calendar days of receipt of the application; scan photographs of the main applicant and any dependants onto CID; where possible, list any documents missing from the application, particularly noting where Form SET (Protection Route) was ticked to indicate those documents were included. The application should then be forwarded to workflow to be allocated to a caseworker.
Applications made early Applications should not be received until a month before the applicants leave expires.
If the application is received early, the individual should be sent the invitation to withdraw letter ICD.4205. This letter invites them to withdraw the application as it has been submitted too early, and cannot be successful, as the individual has not completed the required five years leave as a refugee or person with humanitarian protection. If after 14 days there is no response, the early application should be refused using refusal letter ICD.4227. This letter advises the individual that they are being refused settlement, that they have no right of appeal against that decision, and that they should apply for settlement again when their leave is due to expire within a month.
Applications made late Please see Application received following expiry of leave.
Initial casework actions incomplete applications

Caseworkers may be allocated incomplete applications. The caseworker should consult the list of missing documents provided by DPT, and the Application complete checklist above, to establish what is missing from the application. Caseworkers should send letter ICD.4210 to the applicant, requesting the further information that is required before the application can be considered. The applicant should be given 28 days to respond. Where the application was submitted by letter, caseworkers should consider the merits of sending a blank Form SET (Protection Route) to the applicant, if so much information is missing that this would make it easier for the applicant to know what is required by UKBA. Alternatively, caseworkers can use free text to explain what is required in ICD.4210.
Actions if the case is live with CCD Where DPT have established that the case is live with CCD, caseworkers should contact the CCD Case Owner (found on Admin Events screen on CID) to discuss transfer of the settlement application. It is unlikely that there will any further action for settlement caseworkers on such cases.
Actions following request for further information Caseworkers should monitor whether the further information required is received. If no further information is received, they should consider the application on the information available to them. If there is not enough information to grant the application, caseworkers should refer the file to Asylum colleagues, to consider refusal of the application.
Casework considerations
Once allocated a case, and satisfied that all the necessary information is on the file, caseworkers must answer the following questions: 1 Does the applicant have a criminal record? 2 Has there been a significant and non-temporary change in country situation? 3 Is there evidence the applicant travelled home without UKBA permission? 4 Has the applicant obtained a national passport? 5 Is there evidence that the applicant should never have been granted status? Caseworkers must answer all of these questions before proceeding onto the next appropriate stage of the process.
Question 1 Does the applicant have a criminal record? Do any of the applicants dependants have a criminal record?
Question 2 Has there been a significant and non-temporary change in the situation in the country from which the applicant was (or any dependants were) granted asylum or leave on grounds of humanitarian protection? Any significant and non-temporary change in country situation will be announced by the Home Secretary in Parliament. So far, the Home Secretary has not announced any such changes. If the Home Secretary makes such an announcement, this will be clear on the country specific asylum pages on Horizon. This Instruction will also be updated to reflect such a change.
Question 3 Has the applicant travelled home without the permission of UK Border Agency? Have any of the applicants dependants travelled home without the permission of the UK Border Agency?
Question 4 Has the individual obtained a national passport, indicating they no longer have a fear of their national authorities? Have any of the individuals dependants obtained a national passport, indicating they no longer have a fear of their national authorities?
Question 5 Is there evidence to suggest that the applicants original grant of status as a refugee or on grounds of humanitarian protection should not have taken place?
Caseworkers should answer these questions in order, and must answer all of these questions before proceeding to the next stage of consideration. Uncontrolled if printed
If the answer to Question 1 is YES, caseworkers should proceed to Does the applicant or do any of their dependants meet the criteria for deportation on grounds of criminality? If the answer to Question 1 is NO, and the answer to one or more of Questions 2, 3, 4 and 5 is YES, caseworkers should proceed to Should the applicant be referred to Asylum colleagues? If the answer to all of the above questions is NO, caseworkers should proceed to Decision to grant settlement.
Does the applicant or do any of their dependants meet the criteria for deportation on grounds of criminality?
By this stage, caseworkers have conducted checks and established that the individual has a criminal record. Caseworkers should refer to the Criminal Casework Directorate (CCD) Guidance, Referring a case to Criminal Casework Directorate, and establish whether the applicant meets the criteria for deportation on grounds of criminality. UNSURE: Discuss with your senior caseworker, who may in turn choose to discuss with CCD colleagues. This should help you to reach an answer Yes, refer or No, do not refer. YES: Complete the CCD proforma and email to the appropriate in box, as outlined in How to refer cases to the criminal casework directorate. Await confirmation that CCD are prepared to accept the case. Transfer the case to CCD, updating CID to reflect the transfer. Send the applicant ICD.4208, or their representative ICD.4209, informing them that their case has been transferred for further consideration. This letter provides the Immigration Enquiry Bureau number for any enquiries. N.B. Settlement teams will retain responsibility for any dependants on the main applicants application for settlement, but should not process their applications until CCD have decided what action to take on the main applicant. NO: Where the answer to any of Questions 2, 3 or 4 is also YES, caseworkers should proceed to Should the applicant be referred to Asylum colleagues? Where the answer to each of Questions 2, 3 and 4 is NO, caseworkers should proceed to Decision to grant settlement.
Caseworkers must update the CID Standard Events screen with the Pass/Fail details as appropriate (see Standard Events Screen).
Dependant meets the criteria for deportation on grounds of criminality Where a dependant rather than the main applicant meets the criteria for deportation on grounds of criminality, caseworkers should transfer the dependants case to CCD. They will consider what action to take depending on the dependants status, age and continuing dependency on the main applicant. CCD will not process the application from the main applicant and any other dependants. Consideration of these can continue in the settlement teams and it is not necessary to hold these cases pending a decision on the dependants CCD case.
Main applicant or dependant has criminal charge pending Where a main applicant is subject to criminal prosecution and successful prosecution could potentially mean that they meet the criteria for deportation on grounds of criminality (either on the basis of this sentence, or aggregate sentences), their application for settlement, Uncontrolled if printed
together with those of any dependants, should be kept on hold within the Settlement Protection caseworking team pending the outcome of that prosecution. Where a dependant is subject to criminal prosecution and successful prosecution could potentially mean that they meet the criteria for deportation on grounds of criminality (either on the basis of this sentence, or aggregate sentences), then their application for ILR should be kept on hold within the Settlement Protection team pending the outcome of that prosecution, but the cases of the main applicant and any other dependants should be considered by the Settlement Protection team in the normal way and settlement should be granted if they are found to qualify. Where the main applicants and/or any dependants applications are being placed on hold, those affected should be informed that their application will not be decided until the criminal proceedings are resolved.
Main applicant or dependant has had a Deportation Order enforced Where DPT or the caseworker have established from CID that the main applicant or a dependant has been removed from the UK under a Deportation Order (DO), the application for settlement would indicate that the individual has returned to the UK in breach of that DO. In such cases, the individual should be referred to the relevant regional asylum team, according to the individuals current address.
Main applicant or dependant has had a Deportation Order not pursued It is likely that where CCD have already had sight of a case, and have decided not to pursue a Deportation Order (DO), they will not want the case transferred to them at this stage. This should be discussed with CCD colleagues through your senior caseworker.
Should the applicant be referred to Asylum colleagues?

Significant and non-temporary change in country situation Caseworkers should check whether there has been a significant and non-temporary change in country situation, in the country from which the applicant was granted asylum. Any significant and non-temporary change in country situation would be announced by the Home Secretary in Parliament. So far, the Home Secretary has not announced any such changes. If the Home Secretary makes such an announcement, this will be clear on the country specific asylum pages on Horizon. This Instruction will also be updated to reflect such a change and to advise case owners on further action to take.
Travel home without UKBA permission By this stage, caseworkers will have conducted checks and established that the individual has travelled back to their country of origin, or the country from which they claimed asylum, without the permission of UKBA. Caseworkers must now decide whether it is appropriate to refer the case to Asylum colleagues for consideration of cancellation / cessation / revocation action. Information regarding the individuals travel history may be found in CID notes, information provided by the applicant with their application for settlement, Immigration Officers reports (on CID or on file, if file is held) etc. For detailed guidance, see the AIs on Cancellation, Cessation and Revocation of Refugee Status, and Humanitarian Protection. Following consideration, see Actions following consideration for next steps.
Obtaining a national passport By this stage, caseworkers will have conducted checks and established that the individual has obtained a national passport from the national authorities of their country of origin, or the country from which they claimed asylum, since they were granted refugee status or humanitarian protection. Caseworkers must now decide whether it is appropriate to refer the case to Asylum for consideration of cancellation / cessation / revocation action. For detailed guidance, see the AIs on Cancellation, Cessation and Revocation of Refugee Status, and Humanitarian Protection. Following consideration, see Actions following consideration for next steps.
Evidence that status should never have been granted There may be evidence to suggest that the individual was never eligible for the status granted to them by the UK Border Agency, for example they may have obtained their status by deception. For detailed guidance, see the AIs on Cancellation, Cessation and Revocation of Refugee Status, and Humanitarian Protection. Following consideration, see Actions following consideration for next steps.
Actions following consideration UNSURE: Discuss with your senior caseworker, who may in turn choose to discuss with Asylum colleagues. This should help you to reach an answer Yes, refer or No, do not refer. YES: Contact Asylum colleagues, who will consider within 5 working days whether the case should be transferred to them. If Asylum colleagues do agree to take the case, transfer the case to them and update CID to reflect the transfer. Send the applicant ICD.4208, or their representative ICD.4209, informing them that their case has been transferred for further consideration. This letter provides the Immigration Enquiry Bureau number for any enquiries. NO: Where the answer to each of the other 3 questions is also NO, caseworkers should proceed to Decision to grant settlement.
Caseworkers must update the CID Standard Events screen with the Pass/Fail details as appropriate (see Standard Events Screen).
Dependant has travelled home or obtained a national passport Where a dependant, rather than the main applicant, has either travelled home without UKBA permission, or obtained a national passport, caseworkers should transfer the case to Asylum. They will consider what action to take depending on the dependants status, age and continuing dependency on the main applicant. They will process the application from the main applicant and any other dependants as well as that of the dependant who has travelled home and/or obtained a national passport.
Decision to grant settlement

If the decision is made to grant settlement, caseworkers should: Ensure that the photographs of the main applicant and any dependants were scanned onto CID by DPT (if not, for example because the applicant had to be reminded to submit photographs, these should be scanned onto CID now). Ensure that the Condition Code is completed, in the upper right hand boxes, as these are required for the vignette. The Condition Code will be ILR (see Grant / Refuse).
Check the status of the main applicant and any dependants being granted ILR by cross referencing their previous ISD which they should have returned or by checking on Doc.Gen. For those main applicants with refugee status the following documents will be produced automatically on Doc Gen with the grant of ILR: o Immigration Status Document (ASL.4211) o Grant of ILR letter refugee (ICD.4213) o covering letter to representative refugee (where applicant is represented) (ICD.4222) o Grant of ILR information notice refugee (ICD.4214) See also Grant / Refuse. For main applicants with status other than as a refugee, and for all dependants, documents must be manually selected and placed in the document pack to send to the Secure Handling Area (SHA). This should include: o Immigration Status Documents for main applicant and any dependants (as applicable) ASL.2151 (Refugee status (for dependants)), ASL.2150 (ILR), ASL.2152 (Humanitarian Protection) - depending on status of the individual(s) being granted ILR, see below Which ISD should be produced? o grant of ILR letter ICD.4217 o covering letter to representative ICD.4216 (where applicant is represented) o grant of ILR information notice ICD.4215 See also Grant / Refuse. In all cases the following documents must also be manually selected on Doc Gen, printed and placed in the pouch for SHA: o A copy of caseworker checksheet ICD.3667 (applicant) or ICD.3674 (where applicant is represented). These will be automatically generated by CID on case outcome for caseworkers to check and print. See also Grant / Refuse. Enter the case outcome of GRANT I.L.R (Exempt from KOL) and choose the relevant statistics category (see Grant / Refuse for the full list of statistics categories and explanatory notes).
See also the following Asylum Instructions for further details of how to carry out these actions: UKRP vignette production from CID Implementing the Decision
N.B. In cases where the individual has humanitarian protection based on a fear of someone other than their national authorities, or where a dependant has leave but not status in line, and it is appropriate to place the vignette in the individuals national passport, staff are reminded not to do so if the passport has expired. In such cases, the vignette should be placed on an Immigration Status Document, as appropriate to the individuals status (see below, Which ISD should be produced?).
Which ISD should be produced? Main applicant refugee status and ILR (ASL.4211) This ISD will be issued where the main applicant has refugee status, and will be produced automatically from CID. Their previous ISD, which they should have returned, will have been ASL.2151. If they have not returned their previous ISD, for example because they lost it, check Doc.Gen to see which ISD was originally produced. Dependant refugee status and ILR (ASL.2151) This ISD will be issued where the dependant has refugee status. Their previous ISD, which they should have returned, will also be ASL.2151. If they have not returned their previous ISD, for example because they lost it, check Doc.Gen to see which ISD was originally produced. N.B. There is no difference between ASL.4211 and ASL.2151, the different references relate to a different method of production. Humanitarian Protection and ILR (ASL.2152) This ISD will be issued where the individual has humanitarian protection. Their previous ISD, which they should have returned to UKBA, will also be ASL.2152. If they have not returned their previous ISD, for example because they lost it, check Doc.Gen to see which ISD was originally produced. Indefinite Leave to Remain and no protection status (ASL.2150) This ISD will be issued where the individual was originally granted leave in line with the main applicant, to expire on the same day as the main applicant, but was not granted status in line (refugee or humanitarian protection). Their previous ISD, which they should have returned to UKBA, will also be ASL.2150 (although will not have been for a grant of ILR). If they have not returned their previous ISD, for example because they lost it, check Doc.Gen to see which ISD was originally produced. Discretionary Leave (ASL.2373) This ISD will be issued where the individual cannot be removed from the UK for protection reasons, but is not, or no longer, eligible for refugee or humanitarian protection status, for example because they have been excluded from such status. Settlement Protection caseworkers are unlikely to need to produce this ISD.
Dependants
Pre-grant dependants This section applies to dependants who were included on the individuals application for asylum, and were granted leave (and possibly status) in line with the main applicant when he or she was granted refugee status or humanitarian protection. Pre-grant dependants who remain under the age of 18 should be included in the main applicants form. Pre-grant dependants who are now over the age of 18 who were previously granted leave and status in line with the main applicant may apply on the main applicants form, or using their own form. Pre-grant dependants who are now over the age of 18 but were previously granted leave in line only, and not status in line, must be included as a dependant on the main applicants form, and cannot apply on their own form. Spouses and unmarried partners can be included in the main applicants application, or by using their own form if they have status. Estranged spouses Estranged spouses who do not have status are not eligible to apply for settlement as a dependant of the main applicant. Instead, they should apply to regularise their stay under an Immigration Rule appropriate to them, or leave the UK. Where a caseworker is made aware of an estranged spouse who has not made an application to regularise their stay, they should refer the individual to Asylum colleagues for consideration of enforcement action.
Post-grant dependants This section applies to either: dependants who are being included as dependants for the first time on the application for settlement; or dependants who were not included on the individuals application for asylum, and have been granted leave (and possibly status) in line with the main applicant after the grant of refugee status or humanitarian protection; or UK born dependants This includes those who have been born in the UK since the main applicant was granted leave, and who may not have leave to enter or remain. They can apply for settlement on the main applicants form. A UK born child should be treated in the same way as any other dependant child. New spouses It is possible that a spouse, civil partner, unmarried partner or same sex partner may be listed on the application form requesting settlement as a dependant, not having been previously dependent on the main applicant, for example where the relationship formed after the original grant of asylum or humanitarian protection.
As soon as the caseworker is allocated the case, and becomes aware that there is a new dependant of this kind listed on the application form, they should establish whether the new dependant has leave or not, and follow the relevant actions below. New spouses with leave granted under the Immigration Rules If the new dependant has leave under the Immigration Rules, the caseworker should send them a letter which explains to them that they will not be considered as part of the main applicants settlement application. Instead, as soon as the main applicant receives the outcome of the settlement application, if it has been successful, the new dependant should apply for leave on form FLR (M). The completed Settlement (Protection Route) application and the undecided marriage application should be linked on CID, and the dependants marriage application should then be considered by temporary migration colleagues in Sheffield (not by settlement caseworkers). If form FLR (M) was received when the new dependant had extant leave, and the marriage application is successful under paragraphs 284 and 295D of the Immigration Rules, they should be granted 2 years limited leave under paragraphs 285 and 295E of the Immigration Rules. If form FLR (M) was received following the expiry of the new dependants leave, but the marriage application is successful outside the Immigration Rules on Article 8 grounds, the new dependant should be granted 3 years Discretionary Leave. They would be required to complete another 3 years of Discretionary Leave before becoming eligible to apply for settlement. If the new dependants marriage application is unsuccessful, for example because the relationship is not considered to be subsisting, enforcement action may be appropriate against the dependant. If the main applicant is not successful in obtaining settlement, then the dependant should not apply for leave on this route, and should seek to regularise their stay under alternative Immigration Rules, or leave the UK. New spouses with leave granted outside the Immigration Rules If the dependant has leave outside the Immigration Rules, they should be included on the main applicants Settlement (Protection Route) application form. The dependants application should be considered as part of the main application for settlement, and should be considered by settlement caseworkers (not by temporary migration colleagues in Sheffield). If the main applicant is successful, the dependant should be granted Discretionary Leave (DL) to take them up to a total of 6 years, before they will become eligible for settlement. If the dependant originally had less than 3 years DL, they should initially be given 3 years DL, after which if they still qualify, they should be given a shorter period to take them up to 6 years in total. New spouses without leave If the dependant does not have leave, caseworkers should not write to them asking them to complete form FLR (M) as this is not necessary. Any application for leave in this capacity Uncontrolled if printed
from a new dependant without leave will have to be considered outside the Immigration Rules, and should be done by settlement caseworkers (not by temporary migration colleagues in Sheffield). If the marriage application is successful outside the Immigration Rules on Article 8 grounds, the new dependant should be granted 3 years Discretionary Leave. They would be required to complete another 3 years of Discretionary Leave before becoming eligible to apply for settlement. If the main applicant is not successful in obtaining settlement, then the dependant should not apply for leave on this route, and should seek to regularise their stay under alternative Immigration Rules, or leave the UK.
Contact details provided for dependants no longer living with the main applicant Where a dependant no longer lives with the main applicant, for example a child who is now over-18, staff may be made aware of their up-to-date contact details by the main applicant. There is specific provision for this information to be included on Form SET (Protection Route). Where the main applicant is seeking settlement on the dependants behalf, caseworkers should proceed as if the dependant still lives with the main applicant. Where the main applicant is not seeking settlement on the dependants behalf, and the dependant had refugee or humanitarian protection status and leave in line with the main applicant, the individual should be referred to the Permanent Migration Design Team to follow the actions in Pre-application or Up to date address identified, depending on whether the individual still has extant leave or not. Where the main applicant is not seeking settlement on the dependants behalf, and the dependant had leave in line with the main applicant but no status, the individual should be referred to the Asylum team in the North West region to consider the case.
Actions to take when individual becomes an overstayer

Where an individual does not make an application for settlement before their leave expires, they become an overstayer.
Application received following expiry of leave Where an application is received within UKBA following the expiry of the individuals leave, the application is considered to be out of time. Caseworkers should continue to process the application as they would an application received before the expiry of an individuals leave, as set out in Application received. However, caseworkers should also be aware that they may initiate a more in-depth case review and enquire of the individual why the application was submitted late. If the application is only a short period out of time and/or there are reasonable mitigating circumstances for applying late, it may not be necessary to enquire too thoroughly into reasons for the delay. However, where the application is over a month late, or the application is only made following contact initiated by the UK Border Agency, for example follow-up action (as set out in No application received) or enforcement action, the individual should be asked to explain the reasons for the delay. In such circumstances, caseworkers should consider whether it might also be appropriate to pass the case to Asylum colleagues for review. No application received Where no application is received, and the individuals leave expired 14 days ago or more, the Permanent Migration Design Team will refer the case to the Absconder Tracing Team in the North West. Up to date address identified If an up to date address is identified and corroborated by the Absconder Tracing Team, they will record the new address on CID, and refer the case back to the Permanent Migration Design Team. The Permanent Migration Design Team will send the out of time contact letter at Annex C, reminding the individual that their limited leave has expired, and that they should already have applied for settlement. This should be copied to the last known representative. This letter refers to the possibility of withdrawing the individuals status, to give them fair warning of the possible consequences of not applying. If the out of time contact letter prompts an application for settlement, follow the process from Application received following expiry of leave. If there is no response after 14 days, or the letter is returned to UKBA undelivered, the individual should be referred to Asylum colleagues in the North West. Asylum colleagues should follow the process below in Up to date address not identified. Up to date address not identified If an up to date address is not identified, and all reasonable steps have been taken, the Absconder Tracing Team will inform the Permanent Migration Design Team of the outcome. The Permanent Migration Design Team should send the out of time contact letter to the Uncontrolled if printed
last known representative. This letter refers to the fact that the UK Border Agency may go on to withdraw the individuals status, giving the individual fair warning of the possible consequences of not applying. If the out of time contact letter to the last known representative prompts an application for settlement, follow the process from Application received following expiry of leave. If there is no response after 14 days, or the letter is returned to UKBA undelivered, or the representative responds confirming they are no longer acting on behalf of the individual, the Permanent Migration Design Team should refer the individual to Asylum colleagues in the North West region to consider the case on the information available. Asylum staff should assess the individual against the harm matrix, and should investigate withdrawal of refugee status or humanitarian protection, in line with the criteria at Casework considerations, and referral for possible future enforcement action. Where refugee status or humanitarian protection is withdrawn, relevant withdrawal papers should be served to file. For further information see the Asylum Instruction on Cancellation, Cessation and Revocation. Where the individual or their representative was served withdrawal papers directly, they may appeal. At the point they become Appeal Rights Exhausted (ARE), they will no longer be eligible for the benefits of being a refugee or individual with humanitarian protection. Where withdrawal papers are served to file, once any period in which to appeal has expired, the individual will no longer be eligible for the benefits of being a refugee or individual with humanitarian protection. At this point, colleagues in other relevant government departments should be informed of the change to the individuals status, for example Department for Work and Pensions, in order to cease their benefits where appropriate. The decision to share data with other relevant government departments must be approved by a senior caseworker at SEO level or above. Please see also the data protection guidance, Powers to share and access information from other organisations, on Horizon. An email containing the following information should be sent to the Settlement Protection in box (Settlement.Protection@homeoffice.gsi.gov.uk): Name Date of Birth Nationality HO reference Date status withdrawn (if the individual appeals this will be the date the appeal is dismissed, if the individual does not appeal, this will be the date when any appeal would no longer be in time). CID should be updated to reflect that status has been withdrawn (see AI on Cancellation, Cessation and Revocation). Again, for further information see the Asylum Instruction on Cancellation, Cessation and Revocation.
Individual becomes an overstayer and then comes to light Where the individual has become an overstayer, it is likely that they will come to light at some point. Status withdrawn In cases where the individuals status has been withdrawn and the papers served to file, the individual may have a reasonable excuse for not having applied for settlement, or may still require protection. In such cases it may not be appropriate to remove the individual. Where the individual has no such excuse, caseworkers should proceed with enforcement action and removal. Status not withdrawn In cases where it was decided to be inappropriate to withdraw the individuals status and serve the papers to file, when the individual comes to light it is important that their immigration status is regularised, or their refugee or humanitarian protection status withdrawn, depending on the circumstances of the individual. They should be encouraged to apply for settlement as soon as possible. Where the individual fails to apply for settlement, or applies but is unsuccessful, caseworkers should now give consideration to withdrawing status, and possible enforcement action and removal.
Before removal, consideration must always be given to the paragraph 395C of the Immigration Rules. For further guidance, see Chapter 53 of the Enforcement Instructions and Guidance.
Appeal Rights
Successful applications If the application is successful, and the individual is granted settlement, there will be no right of appeal against the decision.
Unsuccessful applications If the application is unsuccessful because CCD is pursuing deportation action, the individual will have a right of appeal against the decision to make a deportation order, as part of that process. If the application is unsuccessful because Asylum colleagues are pursuing cancellation, cessation or revocation action, the individual will have an appeal against either the decision to refuse to vary leave or the decision to remove, which will take place as part of the process to cancel, cease or revoke their refugee status. If the application is unsuccessful because Asylum colleagues are pursuing cancellation, cessation or revocation action, but are granting limited leave in another category, the applicant will have a right of appeal against revocation of status.
Applications successful following appeal If the application is originally unsuccessful because CCD is pursuing deportation action, and the individuals appeal is successful, CCD will implement the appropriate leave. If the application is originally unsuccessful because Asylum colleagues are pursuing cancellation, cessation or revocation action, and the individuals appeal is successful, Asylum colleagues will implement the appropriate leave.
Annex A CID guidance

Purpose This Guidance is intended to supplement the CID Guidance already available for General Settlement applications. The details included are those that are specific to Settlement Protection. Please see Process Map 1. The main difference in processes will be the recording of the application requirements in the Standard Events Screen. These requirements are referred to as Checkpoints and whether these are met will determine if it is necessary to transfer a case for further consideration (see Transfer). This annex should be read in conjunction with the Settlement Protection Asylum Instruction. See also: Application for General Settlement - Business User Reference Guide General Casework Process Manual
Process Maps
1 Decide
Filename: Level 2 Decide v6.vsd Version: 15:05 14/07/10 11:05 Drawn by: Approved by: 6 Business Development Team Earned Citizenship
Level 2 Decide
Last Updated: Printed at:
14/07/10
Refer to SP guidance Has applicant confirmed a need for continuing protection? Check Documents Check Leave Check Absences
Active Review
Refer to Lvl3 Obey the Law Process Map Non Temporary Change Is there special interest noted on CID? Analyse pre consideration check results
Grant
Take Case
Validate Documents
Decide
Refuse Contact relevant team and transfer where appropriate. Cancellation/ Cessation/ Revocation
Obey the Law
Level 2 Decide v6.vsd - page 1 of 2
N.B. In most cases outright refusals will need to be referred to Asylum or Criminal Casework Directorate to see if they fall for cancellation, cessation or revocation of refugee or humanitarian protection status, and/or deportation.
3 Cancellation / Cessation / Revocation
4 Refer to Asylum
Filename: Lvl4 Refer to Asylum v1.vsd Version: 15:00 23/07/08 15:06 Drawn by: Approved by: 1 Business Development Team
Level 4 Refer to Asylum
14/07/10
Settlement caseworker retains case and processes application
Settlement caseworker processes application
No
Settlement caseworker identifies potential Asylum referral
Settlement/ Asylum SCWs discuss possible transfer
Asylum agree to further consideration of case?
Case transferred back to Settlement team
No Yes
Sub-owner Request to Asylum Team
Asylum consider pursuing Cancellation/ Cessation/Revocation
Asylum to pursue action?
Yes
Case Ownership details updated.
Home Office File called
Asylum retain case to conclusion
Lvl4 Refer to Asylum v1.vsd - page 1 of 2
5 Conclude: Grant
Filename: Lvl2 Conc v8.vsd Version: 17:29 23/07/08 15:06 Drawn by: Approved by: 0.1 Business Development Team Earned Citizenship
Level 2 Conclude / Grant
23/07/10
Update case maintenance screen
Update CID case notes
Produce Check Sheet
Check details
Attach sheets to docs to be returned
Place in pouch with all valuable documents
Send pouch to Vignettes production
Secure Handling Area send out Vignette & Documents
Lvl2 Conc v8.vsd - page 1 of 2
N.B. The above process is based on a main applicant who has Refugee status.
Case Consideration
STANDARD EVENTS SCREEN This screen is used to record whether the applicant has passed the checkpoints of the Settlement Protection application (and other relevant information). It is therefore not necessary to re-enter these details in the Caseworker Notes Screen. The Standard Events Screen must be completed for all main applicants regardless of whether the case falls for Grant, Refusal or Transfer.
1 Type: This field is used to record the title of the Settlement Protection checkpoint. 1. There are 3 checkpoints and these must be placed in the Type field in the following order by clicking in each box, starting at the top, and using the F9 key function. Continuing Need for Protection Obey the Law In Time 2. 2 Level: This field is used to record the result of the checkpoint. This must be recorded for each of the 3 checkpoints by clicking in the Level field next to the relevant checkpoint and using the F9 key function. For Continuing Need for Protection choose the Level of Pass or Fail. This decision Uncontrolled if printed ntrolled
should be based on consideration of the requirements, as set out in Should the applicant be referred to Asylum colleagues?.
For Obey the Law choose the Level of Pass or Fail. This decision should be based on consideration of the requirements, as set out in Does the applicant or do any of their dependants meet the criteria for deportation on grounds of criminality? For In Time choose the Level of Pass or Fail. This decision should be based on consideration of the requirements, as set out in Application received.
Pass
3. 3 Event Type: This field is used to record the reasons for failure of the Continuing Need for Protection Checkpoint. Event Type details are not required for Obey the Law or In Time. If the Level for Continuing Need for Protection has been recorded as Fail then at least one reason must be recorded in the Event Type. (If the Level is Pass then Event Type details are not required.) Select Continuing Need for Protection in the Type field and then select the top box in the Event Type field , press F9 to choose the appropriate reason for failure (please refer to Should the applicant be referred to Asylum colleagues?). If there is more than one reason for failure select the next box down in the Event Type field and choose the appropriate reason, using the above process. Repeat as necessary. The reasons for failure of the Continuing Need for Protection Checkpoint that are available to select in the Event Type field are: Available Event Types in CID Refer to the information contained in Section 3 of the Application Form (if provided) and the Settlement Protection Asylum Instruction
Application Form Non-temporary change HS announcement Return to country of origin Regained Nationality New Nationality Other
If Other is chosen, record the reason in Caseworker Notes.
Asylum Instruction Question 3 Question 4 Question 5 Question 5
3.6 3.4 3.5 3.7 etc
Deception* Change in personal circumstances*
* Deception and Change in personal circumstances are reasons for failure that are unlikely to become apparent until the case has been transferred for further consideration. Uncontrolled if printed ntrolled
Question 1 in the Asylum Instruction refers to the Obey the Law Checkpoint and should be considered when recording the Level for that checkpoint. Based on the Level recorded for each checkpoint Type (see also process maps 2 and 3) please go to: Case Maintenance Screen Ownership Tab to transfer for further consideration (see Transfer). or Case Maintenance Screen Outcome Tab to grant Leave (see Grant / Refuse).
Transfer
CASE MAINTENANCE SCREEN OWNERSHIP TAB
This Tab is used to transfer a case to another unit. Process map 2 shows why a case would be transferred to Criminal Casework Directorate. See separate modernised guidance for transferring a case to CCD. http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/modernised/crosscut/transfer-refer/transfer-refer?view=Binary ) Process map 3 shows why a case would be transferred to Asylum caseworkers and process map 4 shows the procedure. This section will now outline how this should be recorded on CID. Before transferring a case to Asylum, all initial checks must have been completed and the Checkpoint details must be recorded in the Standard Events Screen (see Standard Events Screen).
2 3
1. 1 Click the Case Extended tick-box.
Uncontrolled if printed ntrolled
2. 2 Request to Unit: This field is used to record the name of the team that the case is being transferred to. Delete anything currently entered in the field and add the new team (Asylum Team 6 Liverpool) into the Sub-owner line from the options available in the F9 key function. 3. 3 Sub-Owner: When the Asylum Team accepts sub-ownership, the caseworker details will be shown here. 4. 4 Previous Category: This field should be used to enter the immigration status that the applicant held at the time of application. This will be either Refugee Leave or HP (humanitarian protection). This information can be found on the endorsement of the submitted immigration status document/ passport/travel document and/or the relevant outcome on the Case Search Screen. The Previous Category information must be recorded before the case is transferred. 5 Allocated to (unit): If Asylum accept full ownership of the case, the relevant 5. caseworker will enter their team details in this field (and also reassign their name from Sub-Owner to Owner). Repeat steps 1 4 for any dependants
Complete Caseworker Notes to state that the case is being transferred and the reasons for the transfer. For any linked cases, simply note with See main applicants notes. Complete and print any required proformas and letters (see Does the applicant or do any of their dependants meet the criteria for deportation on grounds of criminality? and Should the applicant be referred to Asylum colleagues?).
Grant / Refuse
CASE MAINTENANCE SCREEN OUTCOME TAB
Please see process map 5 and the Settlement Protection Asylum Instruction. If a case has been returned for an outcome, following a transfer for further consideration, then ensure your team is entered into the Allocated To (unit) field using the F9 key function and there is no Sub-Owner. (see process maps 2 and 4 for why this may happen)
1 Previous Category: This field should be used to enter the immigration status that 1. the applicant held at the time of application. This will be either Refugee Leave or HP (humanitarian protection). This information can be found on the endorsement of the submitted immigration status document/ passport/travel document and/or the relevant outcome on the Case Search Screen. The Previous Category information must be recorded before the case is outcomed. 2 Outcome: This field is used to record the actual outcome of the case. 2. 3 The Stats Category and Condition Code fields should also be completed, as 3. appropriate, when recording an outcome on a case.
The main outcomes available are: Outcome

GRANT I.L.R (EXEMPT FROM KOL)
Condition Code
ILR
Main Child Other Dependant Spouse
Appropriate Stats Categories

4AA Refugee Settlement as. 4EA Settl. following grant of HP LTR 4AC Refugee Settlement as. 4EC Settl. following grant of HP LTR 4AD Refugee Settlement as. 4ED Settl. following grant of HP LTR 4AS Refugee Settlement as. 4ES Settl. following grant of HP LTR XC Discretionary Leave - Extn HR Article 3 XD Discretionary Leave - Extn HR Article 8 XE Discretionary Leave - Extn other than HR
Articles 3 or 8 Child
REFUSE I.L.R, GRANT D.L.
1A
Main
XCC Discretionary Leave - Extn HR Article 3 XDC Discretionary Leave - Extn HR Article 8 XEC Discretionary Leave - Extn other than HR
Articles 3 or 8 XCD Discretionary Leave - Extn HR Article 3 XDD Discretionary Leave - Extn HR Article 8 XED Discretionary Leave - Extn other than HR Articles 3 or 8 XCS Discretionary Leave - Extn HR Article 3 XDS Discretionary Leave - Extn HR Article 8 XES Discretionary Leave - Extn other than HR Articles 3 or 8
Other Dependant
Spouse
REFUSE I.L.R R.O.A REFUSE I.L.R LIMITED R.O.A REFUSE I.L.R NO R.O.A
N/a
Main
XOTRSPA01 S:P Refusal Combination of

reasons failed
Child
XOTRSPA02 S:P Refusal Obey the Law XOTRSPA03 S:P Refusal 339A XOTRSPA04 S:P Refusal 339G XOTRSPC01 S:P Refusal Combination of
reasons failed
Other Dependant
XOTRSPC02 S:P Refusal Obey the Law XOTRSPC03 S:P Refusal 339A XOTRSPC04 S:P Refusal 339G XOTRSPD01 S:P Refusal Combination of
reasons failed
Spouse
XOTRSPD02 S:P Refusal Obey the Law XOTRSPD03 S:P Refusal 339A XOTRSPD04 S:P Refusal 339G XOTRSPS01 S:P Refusal Combination of
reasons failed
XOTRSPS02 S:P Refusal Obey the Law XOTRSPS03 S:P Refusal 339A XOTRSPS04 S:P Refusal 339G
Statistics Categories Explanatory Notes: 4A is to be used when ILR is granted to an applicant whose previous category was Refugee Leave. 4E is to be used when ILR is granted to an applicant whose previous category was HP. XOTRSP02 is to be used if an applicant is refused because they failed the Obey the Law checkpoint XOTRSP03 is to be used if an applicant, whose previous category was Refugee Leave, is refused because they failed the Continuing Need for Protection checkpoint XOTRSP04 is to be used if an applicant, whose previous category was HP, is refused because they failed the Continuing Need for Protection checkpoint. XOTRSP01 is to be used if an applicant is refused because they failed both the Obey the Law and Continuing Need for Protection checkpoints. Following entering the outcome, stats category and condition code:
Complete Caseworker Notes following best practice guidelines. If refused
Print the appropriate letter/s and send to applicant (and representative if applicable) along with any documents to be returned. N.B. If a case falls for refusal it must first be transferred to Asylum/CCD for further consideration. If leave granted For main applicant whose Previous Category is Refugee Leave' then document production will be automatic and appropriate letters and Immigration Status Document (ISD) will be sent to Liverpool Secure Handling Area (SHA) to be printed. For main applicants whose Previous Category is HP then covering letters need to be suppressed, via the exceptions tab. and the appropriate letters and ISD printed manually from DGP (see Decision to grant settlement).
For all dependants, regardless of their status or that of the main applicant, covering letters need to be suppressed as above and the appropriate letters and ISD printed manually from DGP (see Decision to grant settlement). As the majority of applicants will not have passports, in order to bypass the reference required for the Checksheet, the Case ID Number must be entered into the Person Notes field as a Passport Number.
Check that all the personal details are correct.
Check that all the details on the Checksheet document are correct before saving and printing. Send these documents, along with all documents to be returned, in a pouch to Liverpool Secure Handling Area (SHA) who should check that the Case ID Number input by the case worker matches any ISD produced
Update Caseworker notes, if necessary, to clarify the Passport Number is the case ID Number.
Update Ownership and Allocated To (unit) fields as appropriate. Uncontrolled if printed
Document Control
Change Record
Version 1.0 Authors CC Date 26/08/2010 Change Reference First publication
IDENTIFYING, HANDLING AND CONSIDERING ASYLUM CLAIMS MADE BY SUSPECTED WAR CRIMINALS AND PERPETRATORS OF CRIMES AGAINST HUMANITY, INCLUDING GENOCIDE
Table of Contents 1. Introduction 1.1 1.2 Purpose of Instruction Use of Terms
2. Background 3. The War Crimes Team 4. Conducting the Asylum Interview of a Suspected War Criminal 4.1 4.2 5.1 5.2 6.1 6.2 6.3 6.4 6.5 7.1 7.2 7.3 7.4 7.5 7.6 7.7 7.8 Forwarding cases to the War Crimes Team Post-Interview Analysis Credibility Issues Forwarding cases to the War Crimes Team Cases of no interest Cases of interest Determination of assessment Updates Impact on Target Dates Seriousness of Exclusion Refusals under both Articles 1F and 1A(2) No Balancing Test Certification under Section 55 of the IAN Act 2006 Drafting the RFRL Exclusion from HP Applicants who Cannot be Removed for Human Rights Reasons Referring Decision Letters to WCT
5. Identification of Suspected War Criminals
6. Case Assessment by War Crimes Team
7. Excluding Suspected War Criminals from Convention Protection
8. Action Prior to Service of Exclusion 9. Dealing with Cases where the claim is being considered in the Detained Fast Track (DFT) or Detained NSA 9.1 9.2 9.3 War Crimes and DFT / Detained NSA Actions for Staff in DFT / Detained NSA War Crimes Team Actions
10. Dealing with Dependants where a Main Applicant is Suspected of Involvement in War Crimes 11. Appeal Rights 12. Applications for Further Leave Following Grants of Humanitarian Protection and Discretionary Leave 13. War Crimes Referral Template Glossary Document Control
1. Introduction
1.1 Purpose of Instruction This Asylum Instruction gives guidance to staff involved in decision making on how to determine whether there are serious reasons for considering that an asylum applicant has committed or been complicit in war crimes, crimes against humanity or genocide. This Asylum Instruction also gives guidance on what action should be taken by staff where an applicant has been identified as someone who may have committed or been complicit in war crimes, crimes against humanity or genocide.
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1.2
Use of Terms
Throughout these instructions the term: War crimes includes war crimes, crimes against humanity and genocide. Case owner refers to case owners or caseworkers within the Regional Asylum Teams, Detained FastTrack (DFT), Criminal Casework Directorate (CCD), or the Case Resolution Directorate (CRD). Senior Caseworkers applies to SEO Senior Caseworkers within the regional teams or DFT and to Technical Specialists within CRD. Presenting Officer refers to Regional Asylum Team or DFT case owners, Regional Presenting Officers or Specialist Appeal Team members who are responsible for presenting cases at appeal. Applicant, individual, person and subject are all interchangeable terms referring to the asylum seeker. 1951 Convention and Refugee Convention are used interchangeably when referring to the 1951 United Nations Convention relating to the Status of Refugees and the 1967 Protocol to that Convention. An explanation of terms and abbreviations specific to this instruction are explained in the Glossary.
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2. Background
The 1951 Convention relating to the Status of Refugees recognises that signatory states may identify persons applying for refugee status whose actions mean it would not be appropriate for them to enjoy the protection offered by the Convention. These actions are specified within the provisions of Article 1F of the 1951 Convention. Any action committed by a person and which falls within the scope of the Article 1F exclusion clauses would result in them being excluded from international protection. The provision relating to involvement in war crimes is contained within Article 1F (a), the full text of which states: The provisions of the Convention shall not apply to any person with respect to whom there are serious reasons for considering that he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; For further guidance on the application of Article 1F exclusion clauses, refer to the Asylum Instruction on Exclusion: Articles 1F and 33(2) of the 1951 Refugee Convention. The rationale behind the exclusion clauses is given in paragraph 148 of the UNHCR Handbook on Procedures and Criteria for determining Refugee Status and which states that: At the time when the Convention was drafted, the memory of the trials of major war criminals was still very much alive, and there was agreement on the part of the States that war criminals should not be protected In the 2002 White Paper Secure Borders, Safe Haven, the Government made a commitment that the United Kingdom should not provide a safe haven for war criminals or those who commit crimes against humanity. In order to meet this commitment the UK Border Agency War Crimes Team (WCT) was set up in March 2004 to focus on modern day war crimes.
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3. The War Crimes Team

The War Crimes Team (WCT) works with colleagues throughout the UK Border Agency to assist in the identification of people who may have committed or been complicit in war crimes, and to support action against them such as refusal of leave to enter, exclusion from refugee status and deprivation of citizenship. If such a person already has refugee status in the United Kingdom, it may be appropriate to initiate revocation action. For further guidance on the revocation of refugee status, refer to the AI on Cancellation, Cessation and Revocation of Refugee Status. The primary role of the WCT is that of an advisory and investigative body. The unit is mainly responsible for researching and analysing cases with a view to making recommendations to operational colleagues. WCT does not have a caseworking capacity and can only make recommendations on the basis of its research on the likelihood of involvement in war crimes. It does not exist to make decisions on behalf of case owners.
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4. Conducting the Asylum Interview of a Suspected War Criminal

4.1 Forwarding cases to the War Crimes Team For further information on the asylum interview, refer to the AI on Conducting Asylum Interviews. In some instances, evidence of war crimes may only come to light during the interview. Officers should be prepared to explore any new areas as they arise during the interview.
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4.2
Post-Interview Analysis
Where it is considered that an applicant may have committed or been complicit in war crimes, Case Resolution Directorate (CRD) caseworkers should write a comprehensive minute for the attention of a Senior Caseworker to indicate this. Senior Caseworkers will then refer the case using the War Crimes Referral Template to WCT by email. Regional Asylum Team Case Owners can refer cases direct to WCT, without referring to a Senior Caseworker, using the War Crimes Referral Template. The file should be minuted to indicate that the applicant is suspected of having committed or been complicit in War Crimes. Case files should not be sent to WCT at this point. For further guidance on writing minutes, refer to the AI on Minute Writing.
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5. Identification of Suspected War Criminals

5.1 Credibility Issues If there is any evidence that an applicant may have committed or been complicit in war crimes, officers should refer the case to the War Crimes Team for consideration. Although it may be that an applicant has mentioned involvement with a particular organisation or participation in a certain event in an effort to enhance their asylum claim, this will be for the War Crimes Team to consider. WCT will be responsible for assessing whether the elements of the claim relating to war crimes are deemed to be credible. Case Owners may see cases where an applicants credibility is uncertain and where there are doubts over whether the case should be referred to the War Crimes Team (WCT). In these instances, the Case Owner must always err on the side of caution and forward the case to the WCT. Where the applicant claims to have committed or been complicit in war crimes but the claim is not found to be credible, the case can be decided by the Case Owner. Any refusal of asylum should be drafted on the standard RFRL template ASL.0015 and the case should not be certified under section 55 of the Immigration, Asylum and Nationality Act 2006. Following consideration under Article 1A (2) and any credibility issues, the Case Owner should clearly state that if the claim were considered to be credible, the individual would be excluded from Convention protection under Article 1F (a). For further guidance on the application of Article 1F exclusion clauses, refer to the Asylum Instruction on Exclusion: Articles 1F and 33(2) of the 1951 Refugee Convention.
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5.2
Forwarding cases to the War Crimes Team
When referring a case to the War Crimes Team, Case Resolution Directorate (CRD) Senior Caseworkers and Regional Asylum Team Case Owners should prepare a copy of the War Crimes Referral Template. They should include a brief background of the basis of claim and as much information as possible in relation to the applicant having committed or been complicit in war crimes. It is particularly important that all details regarding the applicants possible involvement with organisations involved in war crimes are included in the War Crimes Referral Template since assessment by War Crimes Team (WCT) on whether or not the case merits further investigation will be based on this information. The completed referral template should then be sent to WCT by email.
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6. Case Assessment by War Crimes Team

Based upon the information provided by the Case Owner, the War Crimes Team (WCT) will make an initial assessment on whether the case merits further investigation. WCT aims to confirm whether or not they have an interest in a case within 48 hours of receiving an email referral post interview. If this deadline is missed, the onus is on the referrer to contact WCT according to need.
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6.1
Cases of no interest
Where War Crimes Team (WCT) considers that a case does not merit further investigation they will email the referrer to indicate this and explain why.
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6.2
Cases of interest
Where War Crimes Team (WCT) considers that a case merits further investigation, they will request the case file and conduct further enquiries. It may be that during their investigations they need further information from the applicant. If this is the case, WCT will return the case file to the Case Owner with a request that the applicant is re-interviewed. WCT will also include a Case Research and Analysis Report (Case Report) providing guidance on lines of questioning and specific areas to concentrate on. When a Senior Caseworker or Case Owner receives such a request, they should arrange for an interviewing officer to conduct the interview and book a further interview. The interviewing officer must contact the WCT prior to the interview to discuss the issues raised in the Case Report. The Case Owner should use this opportunity to raise any concerns they have about the lines of questioning with the WCT analyst. During the interview, the interviewing officer must ask all the questions in the lines of questioning. The interviewing officer must ensure that they are persistent in their questioning to ensure that the applicant provides a full answer to the question being put to them. By doing this it will reduce the likelihood that a further interview will need to be conducted. Following interview, the case file should promptly be returned to WCT so that they may conclude their enquiries.
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6.3
Determination of assessment
Upon completion of their investigations, War Crimes Team (WCT) will determine whether or not there are serious reasons for considering that the applicant has committed or been complicit in war crimes. If WCT consider that there is insufficient evidence to suggest involvement in war crimes, they will return the case file to the Case Owner for consideration of the asylum claim as normal. Uncontrolled if printed
Even in cases where WCT have not recommended exclusion under 1F(a), Case Owners should still give consideration to whether the applicant should be excluded from the Refugee Convention under any of the other exclusion clauses. For further guidance on the application of Article 1F exclusion clauses, refer to the Asylum Instruction on Exclusion: Articles 1F and 33(2) of the 1951 Refugee Convention. However, if the WCT analyst thinks there are serious reasons for considering that the applicant has committed or been complicit in war crimes, they will draft a Case Research and Analysis Report (Case Report). This report will explain the reasons why WCT considers that there are serious reasons for considering that the applicant may have been involved in war crimes. WCT will return the case file, including the Case Report, to the Case Owner. Where WCT has returned a case file with a Case Report indicating involvement in war crimes to a Senior Caseworker in the Case Resolution Directorate (CRD), the Senior Caseworker should then follow the instructions in 7. Excluding Suspected War Criminals from Convention Protection. If the file has been forwarded to a Case Owner in one of the Regional Asylum Teams, they should liaise with a Senior Caseworker to reach a decision as to whether exclusion would be appropriate.
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6.4
Updates
Within four weeks of receiving the Case Report, Case Owners or Senior Caseworkers (in CRD) must contact WCT by email to give them a progress report and to confirm the following: That they are proceeding with exclusion, or That they are not proceeding with exclusion and explain the reasons why, or To request further input from WCT before deciding on the next course of action.
Where a Senior Caseworker concludes that there are serious reasons for considering that an applicant has committed or been complicit in war crimes, the applicant must be excluded from Convention protection by virtue of Article 1F(a). See 7. Excluding Suspected War Criminals from Convention Protection.
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6.5
Impact on Target Dates
If a case identified by War Crimes Team (WCT) as a possible war criminal or as meriting further investigation is likely to miss any decision target date, it should be allowed to miss these targets due to the particular nature of these cases. War Crimes Team (WCT) should contact the originating Case Resolution Directorate (CRD) unit or Regional Asylum Team Case Owner from which the case was referred and inform them that the case will miss its decision target date and the reasons for this.
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7. Excluding Suspected War Criminals from Convention Protection

7.1 Seriousness of Exclusion Excluding an applicant from Convention protection is a serious matter. As a consequence, such cases must always be seen by Senior Caseworkers regardless of whether the claim is being handled in the Case Resolution Directorate or the Regional Asylum Teams. In the Case Resolution Directorate, this decision must be made by a Senior Caseworker. In the Regional Asylum Teams, the Case Owner must liaise with a Senior Caseworker before deciding whether exclusion action is appropriate. Where War Crimes Team (WCT) has prepared a Case Research and Analysis Report (Case Report) that concludes that there are serious reasons for considering that an applicant has committed or been complicit in war crimes, it is for a Senior Caseworker to decide whether exclusion is appropriate having considered all the evidence supplied by WCT. Senior Caseworkers can seek further guidance or clarification from WCT on any issues or points raised in the Case Report. Senior Caseworkers should note that when excluding an applicant under Article 1F the normal procedure is to consider the asylum claim in its totality. This means that the claim must be considered against the well-founded issue (Article 1A (2)) and the applicants position under Article 1F.
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7.2
Refusals under both Articles 1F and 1A(2)
Where grounds exist for refusing a claim both under Article 1F and under Article 1A (2), Senior Caseworkers should do so using both grounds, not one alone, in order to ensure the decision can be robustly defended at any subsequent appeal. This would include either (a) when the applicant is being excluded or (b) when the applicant is found not to be credible but if their account was credible they would fall to be excluded. The RFRL should first deal with the exclusion on 1F grounds and then go on to deal with refusal under 1A; including any credibility issues. The belt and braces approach ensures that full reasons are provided for all aspects of the decision.
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7.3
No Balancing Test
In considering whether Article 1F applies in a case where the person appears to have a well founded fear of persecution, there is to be no weighing up (balancing) of the amount of persecution feared against the gravity of the Article 1F crime or act which it is considered has been committed. Having considered all relevant issues with care, Senior Caseworkers must use Article 1F to exclude the applicant from Convention protection in all instances where it is applicable. Where Article 1F applies, the person concerned cannot be a refugee. The 1951 Convention contains no requirement to treat the crime as being expired by virtue of already having been punished for it. The fact that a person has been convicted and punished for an offence does not mean that Article 1F does not apply. Uncontrolled if printed
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7.4
Certification under Section 55 of the IAN Act 2006
Where Article 1F(a) applies, the claim should be certified under section 55 of the IAN Act 2006. Section 55 of the IAN Act 2006 provides for cases that are excluded by virtue of Article 1F that the Secretary of State can issue a certificate and the Asylum and Immigration Tribunal (AIT) or the Special Immigration Appeals Commission (SIAC) must then begin substantive deliberations on any asylum appeal by considering the certificate. If the AIT / SIAC agree with the statements in the certificate, they must dismiss the asylum claim i.e. they must consider exclusion first and if they agree that the person is excluded they need not consider whether Article 1A of the Convention applies. It is not appropriate to apply a certificate in a case where a belt and braces refusal has been made. Senior Caseworkers should use the RFRL template ASL.3212. The template provides the framework for exclusion under 1F(a) as well as the other 1F categories, the certificate and formal exclusion of Humanitarian Protection. Also, where appropriate, refusal of asylum under Article 1A(2).
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7.5
Drafting the RFRL
The reasons for exclusion should be based on the information provided in the Case Report prepared by the WCT. The RFRL should outline the international legal instruments (as mentioned in the Legal Annexe of the WCT Case Report) being relied on. The draft RFRL should be copied, by e-mail, to the WCT for comments before it is served. Any deadlines of serving the decision should be flagged to the WCT. The hard copies of evidence provided by WCT to support the recommendation must be attached to the PF1. The name, telephone number and address of the War Crimes Team analyst must not, however, be disclosed outside of the UK Border Agency. Senior Caseworkers should use the RFRL template (ASL.3212) and follow the standard minute sheets. In all cases, the case should be marked for Assured Representation. The draft RFRL and any submission must be forwarded to the relevant WCT senior analyst by email for comment. WCT will provide comments within 48 hours of receipt. For further guidance on the application of Article 1F exclusion clauses, refer to the Asylum Instruction on Exclusion: Articles 1F and 33(2) of the 1951 Refugee Convention.
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7.6
Exclusion from HP
Senior Caseworkers should handle cases where the applicant is being excluded from Convention protection. This applies to cases handled in both the Case Resolution Directorate and the Regional Asylum Teams. Uncontrolled if printed
Senior Caseworkers should note that where there are serious reasons for considering that an applicant has participated in war crimes they will fall to be excluded from Humanitarian Protection. Since the 9 October 2006, the criteria for granting Humanitarian Protection has been contained within paragraph 339C of the Immigration Rules, which includes the clause that he is not excluded from humanitarian protection. A person is excluded from a grant of Humanitarian Protection under paragraph 339D where the Secretary of State is satisfied that: (i) there are serious reasons for considering that he has committed a crime against peace, a war crime, a crime against humanity, or any other serious crime or instigated or otherwise participated in such crimes; there are serious reasons for considering that he is guilty of acts contrary to the purposes and principles of the United Nations or has committed, prepared or instigated such acts or encouraged or induced others to commit, prepare or instigate instigated such acts; there are serious reasons for considering that he constitutes a danger to the community or to the security of the United Kingdom; or prior to his admission to the United Kingdom the person committed a crime outside the scope of (i) and (ii) that would be punishable by imprisonment were it committed in the United Kingdom and the person left his country of origin solely in order to avoid sanctions resulting from the crime.
(ii)
(iii) (iv)
So by virtue of (i) above the applicant will be excluded from Humanitarian Protection. However, it may not be possible to remove the applicant for Human Rights reasons. For further information on exclusion from HP, refer to the AI on Humanitarian Protection.
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7.7
Applicants who Cannot be Removed for Human Rights Reasons
If it is considered that removal would constitute a breach of either Articles 2 and/or 3, e.g. applicant is at real risk of death or inhuman or degrading treatment or punishment, the Senior Caseworker should, in consultation with WCT and AOPU, arrange for the case to be brought to the attention of the Chief Executive. Applicants who fall to be excluded from the 1951 Convention and Humanitarian Protection will normally be placed on Discretionary Leave for a period of six months. All proposals to grant Discretionary Leave in these circumstances must be passed by the Chief Executive. When considering Article 8, Senior Caseworkers should note that persons involved in war crimes are excluded from Discretionary Leave unless it is not possible to remove them from the United Kingdom. Officers should also bear in mind that, since there is a proportionality test (the right to private and family life balanced against the interests of national security, public safety or the economic wellbeing of the country), the fact that a person fits into an exclusion category may well mean that their removal would not be a breach of Article 8. However, each case will be different and must be treated on its merits. If Senior Caseworkers consider that removal may be a breach of Article 8 they should bring the case to the attention of the Chief Executive. Individuals who have been granted a limited period of Discretionary Leave by agreement of Ministers will be subject to a review of their leave every six months until removal becomes a Uncontrolled if printed
viable option. In order to be eligible to apply for settlement in the United Kingdom, they will need to have accrued ten years continuous grants of limited leave. For further guidance on granting a limited period of Discretionary Leave, refer to the Asylum Instruction on Discretionary Leave.
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7.8 1. 2. 3. 4. 5. 6. 7.
Referring Decision Letters to WCT Draft RFRL (ASL.3212) and do a final print. Locate the letter from printed documents and choose properties. Record Draft for WCT and put a stop on the letter. Copy and Paste the RFRL (ASL.3212) on a Word Document. Save the document entitled HO Reference RFRL Draft Insert/attach the Word Document to an email and send it to War Crimes Team entitled exactly as the saved document title. Include contact details in the email.
The Case Owner / Senior Caseworker should:
The WCT Analyst should then: 1. 2. 3. 4. 5. Locate the Word Document from the email received. Make any changes necessary / appropriate. Save the same entitled Word Document HO Reference RFRL Draft. Send the saved Word Document as an attachment to the Senior Caseworker / Case Owner by email, titling the email Draft for SCW as per contact details in the email. Include contact details in the email.
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8. Action Prior to Service of Exclusion

Prior to serving the exclusion decision, Senior Caseworkers can check with War Crimes Team (WCT) to see if they have any further interest in the case. In some cases WCT may refer the case to the Metropolitan Police who may consider pursuing a criminal prosecution. It should be noted, however, that United Kingdom jurisdiction over an offence committed abroad before September 2001 is limited. WCT Case Reports and the evidence cited within them are disclosable at appeal (unless stated otherwise). Officers should ensure that all the evidence provided by WCT to support the recommendation is included in the PF1 bundle. The name, address and contact number of the War Crimes Team analyst must not, however, be disclosed outside of the UK Border Agency.
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9. Dealing with Cases where the claim is being considered in the Detained Fast Track (DFT) or Detained NSA
9.1 War Crimes and DFT / Detained NSA This section sets out additional processes specifically covering issues that are unique to the DFT and detained NSA locations. They should be acted upon in conjunction with the wider referral process as set out in this Asylum Instruction. It is recognised that the cases under the DFT and detained NSA procedure are subject to different deadlines and pressures than other cases within the asylum system. Given that the applicants are detained and, should their claim be unsuccessful, their removal can be achieved in a much quicker timeframe, it has been agreed that cases where there is minimal evidence of involvement in War Crimes or Crimes against Humanity should continue to be processed in the detained locations. Only cases where there is substantial evidence that the applicant has been involved in War Crimes or Crimes against Humanity will consideration be given to removing them from the DFT to allow more detailed investigation to take place. Substantial evidence would include an admission that the applicant had committed serious offences which might amount to war crimes or crimes against humanity; that he had held a position of authority within an organisation known to have committed war crimes or crimes against humanity; or evidence of a lengthy period of voluntary membership during a relevant time period. Further information about organisations of interest can be found in the War Crimes Interviewing Aid.
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9.2
Actions for Staff in DFT / Detained NSA Refer the case to the WCT in the usual way if, after the interview and having consulted the Interviewing Aid, the Case Owner thinks that there is cause to believe that the applicant may have been involved in war crimes or crimes against humanity. Fax a copy of the file to the War Crimes Team if WCT requests sight of the file. The name of the individual analyst who requested the file should be clearly noted on the fax header. Ensure that contact is maintained with the WCT analyst to keep them informed of any relevant developments in the case. Staff from the DFT or detained NSA will be responsible for maintaining contact with the applicant Remember that even in cases where WCT do not recommend exclusion under Article 1F (a) that other exclusion clauses may apply
Staff in the DFT and detained NSA process should:
For further guidance on the application of Article 1F exclusion clauses, refer to the Asylum Instruction on Exclusion: Articles 1F and 33(2) of the 1951 Refugee Convention.
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9.3
War Crimes Team Actions Inform staff in the detained fast track or detained NSA system within 24 hours of receipt of the e-mail referral whether a case is of interest to the War Crimes Team. Ensure that contact is maintained with the relevant Case Owner within the DFT or detained NSA process to keep them up to date with how the case is progressing on a case by case basis. Ensure that the case is given priority and that work continues to occur on it whilst the applicant remains in detention. It is vital that any problems with processing the case are communicated to the Case Owner as soon as possible. When an RFRL is sent to the War Crimes Team it should be looked at within 24 hours of receipt and feedback given to the case owner.
Staff in War Crimes Team will:
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10. Dealing with Dependants where a Main Applicant is Suspected of Involvement in War Crimes
Family members of applicants who have been excluded from Convention protection on grounds of involvement in war crimes will normally fall to be refused in-line with the main applicant. However, some dependants may also apply for asylum in their own right, and such claims should be considered on their merits. They cannot be excluded from the protection of the Refugee Convention solely because of the actions of the main applicant. If the dependants own asylum claim meets the requirements for inclusion under Article 1A, and they are not excluded from protection due to their own actions, they should be granted asylum. Individuals may seek to remain as dependants of asylum seekers or refugees but appear to have committed an act which, had they been seeking asylum in their own right, would make them potential candidates for exclusion under Article 1F or 33(2). In such cases, consideration should be given to whether the conditions of Article 1F or 33(2) are met. If they are met, the application to enter or remain as dependants should be refused. Individuals who seek to be dependants on other claims and have been excluded from the protection of the Refugee Convention as a result of their own actions should not be given leave in line with the main applicant. For further guidance on dealing with the dependants of asylum applicants suspected of involvement in war crimes, refer to the Asylum Instruction on Exclusion: Articles 1F and 33(2) of the 1951 Refugee Convention.
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11. Appeal Rights

The rights of appeal against a decision to exclude from Convention protection are the same as those against refusal of asylum and are triggered by the accompanying immigration decision. The specific right of appeal to which an applicant is entitled depends on the specific immigration decision. However, where the applicant is to excluded from Convention protection by virtue of Article 1F(a) then section 55 of the Immigration, Asylum and Nationality Act 2006 will also apply and a certificate is to be issued but no such certificate should be issued in belt and braces cases. The AIT / SIAC must deal first with the Secretary of States certificate. If the certificate is upheld, the appeal must be dismissed to the extent that it relies on asylum grounds, though any ECHR considerations raised in the appeal will still have to be taken into account. For further information see the Asylum Instruction on Rights of Appeal in Asylum Claims.
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12. Applications for Further Leave Following Grants of Humanitarian Protection and Discretionary Leave
Although this guidance is specifically aimed at staff involved in asylum decision making, Case Owners involved in considering applications for further leave following grants of Humanitarian Protection or Discretionary Leave should also refer to these instructions. When considering applications for further leave, Case Owners should thoroughly check through the file and compare with the information contained within whether or not an interview has been conducted. If an interview has not already been conducted, the Case Owner should invite the applicant to attend an interview. As the Asylum Instruction for Considering Applications for Further Leave Following ELTE, ELTR, HP & DL (Active Reviews) is currently being revised, contact AOPU for further information on Active Reviews. In addition, some applicants will apply for further leave after initially being granted Exceptional Leave to Remain (ELR) for a period of four years. For further information on this, refer to the AIs on Exceptional Leave To Remain: Not Appropriate to Grant Settlement and Exceptional Leave to Remain: Suspected War Criminals and Perpetrators of Crimes against Humanity and Genocide.
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13. War Crimes Referral Template

Instructions for use: 1. Open the War Crimes Referral Template. 2. Complete all relevant sections as appropriate. 3. Save the document as WAR CRIMES REFERRAL HO Ref. No. 4. Attach the Word document to a blank email and send to War Crimes Team WCT aims to respond to all email referrals within 24 hours for pre-interview referrals and 48 hours for post interview referrals. Should you wish to discuss your referral, particularly where it is urgent, speak to the duty officer.
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Glossary
Term ASL.3212 ASL.0015 IAN Act 2006 Meaning Exclusion from Refugee Convention RFRL template Standard RFRL Immigration, Asylum and Nationality Act 2006
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Document Control
Change Record
Version 3.0 Authors MS (AOPU) JE (WCT) 4.0 BN 14/11/08 Update branding only Date 10/03/07 Change Reference Approved for Publication
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THIRD COUNTRY CASES: Referring and Handling

Table of Contents 1. Introduction 1.1 Purpose of Instruction 1.2 Application of this Instruction in Respect of Children and those with Children 2. Background 2.1 Dublin Arrangements 2.1.1 Dublin Convention and Dublin Regulation 2.2 Eurodac 2.3 Non-Asylum Cases 2.4 Safe Third Country Cases (Non-Dublin Arrangements) 3. Referral Criteria 3.1 General Criteria and Requirements 3.2 Criteria Other Issues and Further Information 3.2.1 Other Evidence of Residence in a Member State 3.2.2 Asylum Screening Interview and TCU Travel History Interview Record 3.2.3 Unaccompanied Children 3.2.4 Age Dispute Cases 3.2.5 Potential Victims of Trafficking 4. Referral Actions TCU and LITs/Ports/The ASU 4.1 Referring Cases to TCU 4.1.1 Pre-Referral Actions 4.1.2 Referral Actions 4.1.3 Post-Referral Actions (Case Ownership and Onward Routing Actions) 4.2 The FIU Accepting Referrals for Third Country Action 5. Third Country Detained Cases 5.1 Detaining Confirmed TCU Cases 5.2 Detaining Prospective TCU Cases 5.3 Detained Drop-In Process 5.4 Potential Victim of Trafficking in Detention 5.5 Release from Detention/Onward Reporting 6. Third Country Non-Detained Cases 6.1 Routing the Applicant to Initial Accommodation 6.2 Applicant Not in Initial Accommodation 6.3 Third Country Adult Absconders 6.3.1 Third Country Unaccompanied Child Absconders 6.4 Applicant Claims to be a Victim of Trafficking 7. Substantive Case Owners - Third Country Case Checks 7.1 Has the Applicant Been Fingerprinted? 7.2 Do TCU Already Have an Interest in the Case? 8. Removals 8.1 Removing Third Country Cases: General Actions 8.2 Removing Detained Cases (Applicant in TCU Ring-Fenced Detention) 8.3 Removing Unaccompanied Children
8.3.1 Removing Unaccompanied Children Initial Actions 8.3.2 Local Authority Childrens Services Department and UK Border Agency Meeting 8.3.3 Removal Action Not Taken Within Three Months of the Childs Case Conference Concluding 8.3.4 Unsuccessful Child Removals (Where the Child is Returned into Care) 8.3.5 Referral to the Office of the Childrens Champion (OCC) 8.3.6 Service of Removal Documentation 8.3.7 Notifying Social Services of the Childs Imminent Removal 8.3.8 Unescorted and escorted Removal - Detention Process 8.4 Family Removals 8.4.1 TCU Role in Family Returns 8.4.2 Overview of the Family Returns Process 8.4.3 Family Unity 8.4.4 Educational Exams Criteria 8.5 Removal Barrier Judicial Review (JR) 9. In-Cases and Repeat Applicants 9.1 Third Country In-Cases 9.2 Third Country Removals Who Have Returned 9.2.1 Section 95 Support 10. Actions When Eurodac Data Is Disputed 11. Annex A FIU (TCU Cases) Referrals Process Map Glossary
1. Introduction
1.1 Purpose of Instruction This instruction is intended to detail the responsibilities of referring offices/regions in the identification of third country cases and the process by which such cases are referred, via the Fast Track Intake Unit (FIU), to the Third Country Unit (TCU). It also details how such cases are detained, managed and removed in liaison with TCU. This instruction is intended to set out the main interactions between the FIU, TCU and case referring offices. It is not intended to fully document the detailed daily actions of the TCU. TCU officers must in such cases follow relevant instructions and unit specific procedures. Referring offices/regions will usually be case owners and enforcement officers in regional Local Immigration Teams (LITs). Other sections and units (for instance CCD, CAAU, etc.) may, in their handling of third country cases, perform similar functions as LITs. In such instances, they are expected to follow the actions as laid out for LITs.
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1.2 Application of this Instruction in Respect of Children and those with Children Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the UK Border Agency to carry out its existing functions in a way that takes into account the need to safeguard and promote the welfare of children in the UK. It does not impose any new functions, or override existing functions. All UKBA staff (and contractors carrying out UKBA functions) must have regard to the statutory UK Border Agencys Section 55 guidance, Every Child Matters: Change for Children, which sets out the key principles to take into account in all Agency activities. Our statutory duty to children includes the need to demonstrate: Fair treatment which meets the same standard a British child would receive; The childs interests being made a primary, although not the only consideration; No discrimination of any kind; Asylum applications are dealt with in a timely fashion; Identification of those that might be at risk from harm.
It is important to understand that this instruction operates alongside existing child safety procedures and considerations, and in some cases assists such procedures and considerations. It does not replace such considerations, or reduce the scrutiny which must be given to child safety at asylum screening and throughout the asylum process.
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2. Background
2.1 Dublin Arrangements The Third Country Unit performs a national function handling two broad categories of case. The majority of cases fall under the Dublin Regulation. However, there are some other third country removals (see 2.1.1 Dublin Convention and Dublin Regulation, 2.3 Non-Asylum Cases and 2.4 Safe Third Country Cases (Non-Dublin Arrangements)). The aim of the Dublin Regulation, and its predecessor the Dublin Convention, is to avoid the successive transfer of applicants between Member States without any single state taking responsibility for determining the claim and the prevention of multiple parallel or successive claims in different Member States and related secondary movements (asylum shopping). 2.1.1 Dublin Convention and Dublin Regulation The provisions of the Dublin Convention were effective from September 1997 until they were replaced in September 2003 by the Dublin Regulation. There will be some legacy cases in the system that will still reside under the Dublin Convention, e.g. where the transfer of an applicant was agreed prior to September 2003 under the Convention but could not be implemented immediately. In these rare cases, officers must contact the FIU for advice. The Dublin Regulation is now the basis for determining responsibility for third country cases. Like the Dublin Convention, the Dublin Regulation has established a set of hierarchical criteria for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a non-Member State national. For further information on the Dublin Convention and the Dublin Regulation, refer to the background document Safe Third Country Cases or to the Dublin Regulation in full.
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2.2 Eurodac The Eurodac Regulation established a database to store, search and compare fingerprints solely in order to support the application of the Dublin arrangements by identifying those individuals/applicants already known to other Member States. The Eurodac database went live on 15 January 2003. It cannot be accessed for the purposes of criminal law enforcement reasons nor can its data be used to support criminal prosecutions. All asylum applicants are fingerprinted by ports, ASU and LITs/LEOs using live-scan, cardscan and in some cases wet prints. Fingerprints are then sent to the Immigration Fingerprint Bureau (IFB) which automatically runs a fingerprint check on the Eurodac database. Data subjects have the right to challenge the accuracy of data held about them on the Eurodac database; see chapter 10 Actions When Eurodac Data Is Disputed.
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2.3 Non-Asylum Cases Where a subject has been found illegally present in the UK and has not claimed asylum, but there is evidence to suggest they have previously claimed asylum in a Member State, the case must be referred to the FIU. See 4. Referral Actions TCU and LITs/Ports/The ASU.
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2.4 Safe Third Country Cases (Non-Dublin Arrangements) It is possible to return certain asylum applicants to safe third countries outside of the provision of the Dublin arrangements. Such applicants are generally returned either to the safe third country of embarkation or, more rarely, to another safe third country if clear evidence exists that the applicant would be admitted to that state, as provided for by Paragraph 345 of the Immigration Rules. Examples of countries to which such returns have taken place are Australia, Venezuela, the United States of America and Canada. There are no binding agreements between these countries akin to the Dublin arrangements and at present all decisions whether to apply the safe third country provisions in paragraph 345 of the Rules are considered on a case by case basis. Speed of referral in these cases is vital to successfully adopting the case to resolution.
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3. Referral Criteria
The Fast Track Intake Unit (FIU) receives and considers all third country case referrals. All individuals who meet the criteria in this section must be referred to the FIU, who will then determine if the applicant is potentially removable on safe third country grounds. If a case does not fall to be referred for third country action, standard screening must be completed, and the applicants case routed and handled according to mainstream procedures. This may include referral to Detained Fast Track processes. 3.1 General Criteria and Requirements For a case to be accepted into TCU under the Dublin Regulation or non-Dublin arrangements, at least one of the following pieces of evidence must be held: A Eurodac hit (matched fingerprints) showing that the applicant illegally entered or claimed asylum in another Member State (see 4.1.1 Pre-Referral Actions); A visa or residence permit issued by another Member State or non-Dublin state; Other reliable evidence of residence in another Member State (see 3.2.1 Other Evidence of Residence in a Member State); Statements from the applicant that members of their immediate family or other relatives are present in another Member State and their details, including their status (if known).
LITs/ports/ASU dealing with a case that does not fall under the Dublin Regulation (i.e., Dublin Convention or a non-Dublin country (for instance, a port arrival direct from a third country)), must contact the FIU who will advise if any further action is appropriate. If a potential third country case is identified, it must be referred immediately to the FIU. A non-Dublin Regulation case will usually require action within a few hours, a Dublin Regulation case usually six months, but there must be no delay in referral in any case.
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3.2 Criteria Other Issues and Further Information 3.2.1 Other Evidence of Residence in a Member State In some circumstances, it may be possible to remove on third country grounds without a EURODAC hit or visa/residence permit or similar official documentation, through reliance on evidence such as correspondence, bills or wage slips, or credible statements and details from the applicant that they have been living (legally/illegally) in the territory of another Member State, etc. (For non-Dublin countries this type of evidence will not be sufficient.) In such instances, the FIU must be contacted, and will advise according to the facts available. 3.2.2 Asylum Screening Interview and TCU Travel History Interview Record TCU will be particularly interested in responses relating to the travel route, family details in the UK and in other countries/Member States, marital status and previous asylum claims in other Member States. The credibility of these responses must be tested robustly, as the information will be passed on to Member States, potentially contributing significantly to the successful handling of the case on third country grounds. It is also important that the chronology of events since the applicant left their country of origin or another Member State is as complete as possible. Member States will request that unexplained periods of time in excess of three months are accounted for, before accepting responsibility, due to Dublin Regulation provisions concerning cessation of responsibility.
It is important to note that the screening interview and the travel history interview is not an exercise to gather substantive detail regarding an asylum claim. 3.2.3 Unaccompanied Children Unaccompanied children of any age can be removed under the Dublin Regulation if they have claimed asylum in a safe third country, and should be referred to TCU accordingly (although it must be noted that only those from the age of 14 can have their fingerprints entered onto the EURODAC database). If an unaccompanied child has entered a safe third country, e.g. as an illegal entrant, but has not applied for asylum they must not be referred for third country action unless there is documentary evidence or statements from the child suggesting that family members or other relatives are present in another Member State. In these cases it may be possible to request that another Member State takes responsibility for examining the childs asylum claim on family unity/humanitarian grounds, if this is in the best interests of the child. 3.2.4 Age Dispute Cases The UK Border Agencys handling of age dispute cases is determined by policy set out in the Assessing Age instruction, which must be fully reviewed before handling a potential age dispute case. The key points only are summarised here. If there is a doubt over the age of an applicant who claims to be a child, the UK Border Agency will treat him or her as a child, unless their physical appearance and/or general demeanour very strongly suggests that they are aged 18 or over, unless there is credible evidence to demonstrate the age claimed. An applicant whose claim to be a child is disputed may be treated as an adult only in the following circumstances: There is credible and clear documentary evidence that they are 18 years of age or over; A full Merton-compliant age assessment by Social Services is available stating that they are 18 years of age or over. (Note that assessments completed by social services emergency duty teams are not acceptable evidence of age); Their physical appearance/demeanour very strongly indicates that they are significantly over 18 years of age and no other credible evidence exists to the contrary.
In all cases where an applicants age has been disputed, the following documents must be faxed to the FIU, in addition to the documents stated in 4.1.2 Referral Actions: A completed copy of form IS.97M, indicating in one or more of the four tick boxes the basis on which the applicants age has been disputed. Note: only where boxes 1-3 apply may the applicant be treated as an adult (this is particularly important if it is intended to detain the applicant as an adult); A social services Merton compliant age assessment, or written notification from the social services that the applicant is regarded as an adult following a Merton compliant age assessment.
If TCU take ownership of a case where the applicant has been age disputed and then decides to disagree with a Merton compliant age assessment, this must be approved at SEO level and a written note of why the decision was made recorded on the port/HO file. For further guidance please see the instruction Assessing Age.
3.2.5 Potential Victims of Trafficking Potential victims of trafficking (PVOT) who meet the criteria detailed at 3. Referral Criteria must be referred to TCU according to the instructions at 4. Referral Actions - TCU and Regions/Other Units. The referral must make it clear to TCU that the applicant is a PVOT. TCU will undertake the Reasonable Grounds decision for any case they accept and manage. However, LITs/ports/the ASU will be responsible for conducting any interview required to assist TCU in their investigations. TCU will outline the key questions and issues to the referring unit who will then build on these key areas at the interview and supply TCU with the interview record. For further guidance refer to the victims of trafficking instruction: Guidance for the Competent Authorities.
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4. Referral Actions TCU and LITs/Ports/The ASU

Most TCU cases will be identified by an individuals fingerprints being matched against the EURODAC database or by holding a residence permit or visa issued by a Dublin signatory, although there are other circumstances where cases may be suitable for third country action (see 2.4 Safe Third Country Cases (Non-Dublin Arrangements)). 4.1 Referring Cases to TCU The actions described here will mostly apply to officers encountering asylum applicants and illegal entrants at first contact (e.g., at the ASU, at a port, during enforcement visits etc.). Regional case owners and other officers responsible for case management must ensure that all relevant actions here are undertaken if for any reason they have not been already. 4.1.1 Pre-Referral Actions LITs/ports/the ASU must: Ensure the subject is fingerprinted immediately at the point of claim/detection, or as soon as possible afterwards (see 24 Hour Asylum Fingerprinting Initiative, Fingerprinting and Applicants with Poor Quality Fingerprints); Submit fingerprints to IFB without delay for checking against the EURODAC database. Note that children from the age of 5 must be fingerprinted, but only those aged from 14 can have their fingerprints stored or checked against the Eurodac database; Await notification from IFB as to whether there is a EURODAC database match (a hit); Check CID to see if the case is already listed as a Third Country Case case type; Check CID Notes to see if the FIU have asked for the case be referred. (The FIU receive EURODAC notifications to a dedicated inbox, and proactively request referrals); Conduct the screening and travel history interviews as soon as possible. The FIU need this information to decide whether the case can be processed under the Dublin Regulation; Record issues and actions relevant to the FIU interest on CID Notes screen; Record issues and factors relevant to particular heightened interest (whether TCU specific or otherwise) on the CID Special Conditions screen, where applicable.
4.1.2 Referral Actions If a potential third country case is identified, the LIT/port/ASU must refer the case immediately to the FIU according to the mandatory requirements below. The FIU will consider and respond to the referral, and advise whether the TCU detained processes apply. LITs/ports/the ASU must: Review 3. Referral Criteria, and ensure that all key considerations and actions have been undertaken; Telephone the FIU to outline the referral; Fax to the FIU the following documents, which (if applicable) are requirements: o Evidence of the Eurodac hit, or evidence relating to links with the third country (see 3.2.1 Other Evidence of Residence in a Member State); o The Asylum Screening Interview Record (ASL.3211); o The TCU Travel History Interview Record (ASL.3766); o The Family Welfare Form (ICD.3629), if the case involves a child/children; o Age dispute documentation, if age is disputed (see 3.2.4 Age Dispute Cases); o A clear note to indicate whether the applicant has been accepted as a potential victim of trafficking.
Commence/maintain suitable reporting restrictions, to await notification of whether the FIU will accept the case on behalf of TCU. Weekly reporting is usually applicable, for a period of 3 months, with a note on the final reporting date to continue if appropriate (see Reporting AI).
4.1.3 Post-Referral Actions (Case Ownership and Onward Routing Actions) LITs/ports/the ASU must: Await formal notice (via CID Notes) that the FIU have accepted a case for third country action. This notification will come within 2 days of the referral. The notification will also clearly stipulate whether the subject is to be detained in a TCU ring-fenced detention bed; On receipt of formal notification: o Undertake detained case actions (the FIU will clearly advise in their notification whether) (see 5. Third Country Detained Cases); or o Undertake non-detained case actions (6. Third Country Non-Detained Cases); Transfer case ownership to TCU: o Minute the file and CID Notes to show TCU are responsible for the case; o Insert TCU in the CID Allocated To and Ownership fields; o Cancel any future asylum events on CID (e.g., first reporting event, substantive interview); o Inform the applicant of any cancelled events; o Forward the HO case file (if there is one) and any related documentation to TCU via the Interdepartmental Despatch Service (IDS) within 24 hours of TCU accepting the case; o If the file is allocated to an asylum team, confirm with TCU that they have emailed the Routing Team inbox to advise them of the case transfer to TCU; o Respond to any representations from the applicant/legal representative, advising that TCU is now dealing with the case and that they should now liaise with TCU in writing.
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4.2 The FIU Accepting Referrals for Third Country Action The FIU must: Update CID Notes within 1 working day of the EURODAC hit, requesting the case be referred to the FIU. This is an expression of interest by the FIU in a case and does not imply that a case can definitely be processed under the Dublin Regulation; Request the asylum screening interview record (ASL.3211) and travel history interview record (ASL.3766) via CID Notes and a follow-up telephone call; Notify (via telephone) the LIT/port/ASU whether a TCU detention bed is available (in the event that a decision is made that detention is appropriate); Within 2 days of receiving a screening interview, decide if the case will be progressed under the Dublin Regulation; Notify the LIT/port/ASU, clearly stating whether the FIU is definitely accepting the case. Decide whether detention is appropriate. See Chapter 55 of the Enforcement Instructions and Guidance and 5. Third Country Detained Cases; If accepting the case, update CID case type, to show Third Country case EURODAC (Dublin II Regulation); or, Third Country case Definite (Dublin II Regulation).
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5. Third Country Detained Cases

5.1 Detaining Confirmed TCU Cases Once the FIU have accepted a case for third country action, they will consider whether or not the applicant is to be detained, according to published detention policy (chapter 55 of the Enforcement Instructions and Guidance (EIG) and the availability of a TCU ring-fenced detention bed. The LIT/port/ASU must: Contact the FIU to ensure there is agreement for the applicant to be detained in a TCU ring-fenced detention bed; If not already completed, conduct a PNC check; Cancel any reporting restrictions in place; Complete and serve the IS.151A Part 1 in all illegal entry cases; Complete and serve the IS.91/91R/91RA; Ensure that the CID Special Conditions screen is noted appropriately using the DEPMU dropdown; Forward the port/HO file and all documents to the TCU case owner.
FIU must: Take responsibility for the case, and liaise with the Detainee Escorting and Population Management Unit (DEPMU) to arrange the movement of the applicant into a TCU ringfenced detention bed; Once detention has been arranged, TCU will conduct a 24 hour detention review and all subsequent reviews.
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5.2 Detaining Prospective TCU Cases LITs/ports/the ASU may in some circumstances not be able to immediately conduct checks or immediately receive results to/from EURODAC. The referring office may be able to detain the applicant in a TCU ring-fenced detention beds, pending completion of EURODAC checks. This additional detention provision of regional TCU beds is intended to enable LITs/ports/the ASU to complete third country referral actions without impacting their own limited detention resources. (It is important to note that all detention considerations must be in line with detention policy, as laid out at chapter 55 of the EIG. See also 24 Hour Asylum Fingerprinting Initiative). The LIT/port/ASU must: Retain full case management responsibilities until such point as the case is clearly accepted as a TCU case. These responsibilities will include completing detention reviews and responding to all correspondence; Contact the Detention Allocation Unit (DAU), according to established procedures; Identify the case as a potential TCU case or one awaiting EURODAC confirmation; If DAU does not for any reasons provide a regional TCU bed, ensure the case is appropriately handled and applicant routed; If DAU accept the case into a regional TCU bed, monitor the case daily to ensure there is no delay in onward handling and routing in the event that the EURODAC check is negative. (Note that in such cases, if the referring office has not made further contact, DAU may revert detention ownership to the regions own detention allocation.)
DAU must: Receive prospective TCU case referrals; Decline prospective TCU case referrals where inappropriate or where detention space is unavailable; Allocate regional TCU ring-fenced beds where appropriate and available; Complete bed space ownership detention actions on the CID Restrictions > Detention Management screen: RFO should be entered as the referring region; SRFO should be entered as blank; and the DCO should be entered as TCU.
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5.3 Detained Drop-In Process TCU will monitor its ring-fenced detention bed allocation closely to ensure that occupancy is maximised, insofar as detention is appropriate on a case by case basis, in line with chapter 55 of the EIG. TCU will occasionally require LITs to detain individuals who have been reporting (drop-in). These will be individuals who are suitable for detention but were not originally detained (for instance, due to a delayed EURODAC hit, the detention estate being full when the referral was made, or due to changes in case progress, such as a JR application being concluded). TCU will also consider the suitability of detention for any cases where removal has not been achieved within 1 month of the starring. TCU must: Complete a drop-in referral pro-forma and fax this to the relevant office 3 working days before the subjects next reporting event; Create a CID Calendar Event, 3 working days before the next reporting event to inform the LIT that TCU has requested the detention of the subject with a request for TCU to be notified once the applicant reports; Provide all relevant information so the LIT can complete the detention paperwork including any known conditions or risk factors; Update CID Calendar Events to pre-book a detention bed with the DAU; Complete a 24 hour detention review once the applicant is in a TCU bed; If appropriate cancel the instruction to detain as soon as possible by contacting the LIT via fax and CID Notes; Re-issue the drop-in pro-forma if detention is not possible within 1 month of the original pro-forma being issued; Contact the LIT to establish if the subject is being formally treated as an absconder if reporting is not completed.
The LIT must: Conduct a current circumstances interview with the subject at the reporting event; Contact TCU should there be any indication that the subject is not suitable for detention at that time; If detention remains appropriate, carry out detention actions (including all risk assessments, detention paperwork and movement orders) to detain in a TCU bed.
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5.4 Potential Victim of Trafficking in Detention Detention should initially be maintained for those cases where information has come to light to suggest that an applicant is a PVOT (see Victims of Trafficking: Guidance for Frontline UKBA Staff). If the Reasonable Grounds decision made by TCU states that the applicant is a victim of trafficking (VOT) then the applicant should be released from detention and an appropriate reporting regime established (see the Reporting instruction).
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5.5 Release from Detention/Onward Reporting If a detainee is released from TCU detention, the LIT taking ownership must complete the necessary actions and paperwork. TCU will then arrange the first reporting appointment, but the reporting centre must then set up reporting for the applicant (usually weekly, due to the prompt progress usually applicable in TCU cases, but see Reporting).
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6. Third Country Non-Detained Cases

The actions in this section apply only if the applicant is not going to be detained. 6.1 Routing the Applicant to Initial Accommodation The LITs/ports/ASU must: Confirm with TCU that they have asked the Routing Team to arrange for the applicant to be transferred to initial accommodation in London (only if the applicant is already in initial accommodation, see 6.2 Applicant Not in Initial Accommodation); Update CID with the applicants new accommodation details; Cancel all future reporting events for the old reporting centre on CID; Setup three initial reporting events for Croydon Enforcement Unit on CID: o Go to the Events section of the screen; o The Restriction type, Restriction from date, Booked by user and Booked by unit fields populate automatically (from the Restriction screen) o In the Event type field, select TA or TR; o Click into the Centre field and select Croydon Enforcement Unit; o Click into the Booked for date/time field and enter the date of the first reporting event (the day after the applicants transfer to London initial accommodation); o Click into the Unit Responsible and enter Third Country Unit; o Send a revised IS.96 to the applicants current address and their new initial accommodation address.
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6.2 Applicant Not in Initial Accommodation The LITs/ports/ASU must: Place the applicant on appropriate reporting restrictions, attending the reporting centre nearest to their accommodation. Appropriate reporting frequency will normally be weekly, as third country cases are progressed quickly and contact must be maintained with the applicant to enable removal action to proceed as soon as the requested Member State has accepted the transfer of the applicant. However, the LIT/port/ASU must refer to the Reporting instruction and consider whether a different reporting regime would be more appropriate in the particular case. If a reporting regime other than weekly is considered, this must be discussed with TCU; Update CID to reflect any changes to reporting. Click on the first new reporting event and under Event Status Details in the Comments box type Reporting Centre: Third Country Case - applicant is being transferred to your area, please setup further reporting events according to current regime (usually weekly); Manage the applicants reporting; Take prompt absconder action if the applicant fails to report (see the instruction Failure to Report and Absconders).
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6.3 Third Country Adult Absconders TCU requires formal notification of absconding in order to request from the Member State an extension within which removal can take place. Without this notification, TCU may miss a case deadline and the UK would have to substantively consider the case in the UK. The subject must be removed within 18 months of the Member States initial acceptance. The LIT/port/ASU must: Take formal absconder action if a third country applicant fails to report (see the instruction Failure to Report and Absconders); Complete form IS.274 and update CID, both within 5 working days of the applicant being treated as an absconder; Notify TCU of absconder action via fax; Take action to the remove subject within 1 month of receipt of the starring pro-forma once the subject is located.
TCU must: If the subject is located, consider the appropriateness of detention, and within 10 working days of the subject being located, either: o Issue a new starring pro-forma for the case, and direct non-detained case actions (see 6. Third Country Non-Detained Cases); or o Request the subject be detained (see 5.2 Detained Drop-In Process); Provide any information or copies of documents required by the LIT/port/ASU.
6.3.1 Third Country Unaccompanied Child Absconders The LIT/port/ASU must: As soon as it is known that a child has absconded, review and follow the actions detailed in the instruction Failure to Report and Absconders (particularly section 6); Contact the TCU Childrens Team to notify them that the child has absconded and to confirm that appropriate action (according to the instruction above) has been taken.
Refer to 1.2 Application of this Instruction in Respect of Children and those with Children.
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6.4 Applicant Claims to be a Victim of Trafficking The LIT/port/ASU must: As soon as it is known that an applicant is a PVOT, fax a referral to TCU. (See Victims of Trafficking: Guidance for Frontline UKBA Staff.)
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7. Substantive Case Owners - Third Country Case Checks

TCU are unable to remove a case under the Dublin Regulation if a substantive asylum decision has been served. It is therefore important that before substantive casework commences, actions are undertaken to be sure the correct checks have been made and there is no TCU interest. If there is TCU interest, referral action must be undertaken. 7.1 Has the Applicant Been Fingerprinted? Applicants must be fingerprinted in order that the EURODAC database may be searched. It is therefore necessary to be sure that fingerprints have been taken, transmitted and checked against EURODAC. The LIT must: Check CID to ascertain whether an IFB1 reference number has been recorded under person details, and a note recorded on CID stating that the fingerprints have been added to the Immigration Asylum Fingerprint System (IAFS) and the date the fingerprints were sent to IFB; If neither CID nor the case file indicate that fingerprints have been taken or added to IAFS, arrange as a priority for the applicant to be fingerprinted on form IFB1 and for the prints to then be sent to IFB immediately. See the Fingerprinting AI for further detail; Take no action until the fingerprint results have been confirmed. If there is a Eurodac hit the case owner must refer to 4. Referral Actions - TCU and Regions/Other Units.
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7.2 Do TCU Already Have an Interest in the Case? The LIT must: Check CID to see whether TCU have indicated interest in the case (this will usually be done within 1 working day of the EURODAC hit); If TCU have registered an interest in a case or if a EURODAC hit is indicated, the case owner must refer to 4. Referral Actions - TCU and Regions/Other Units.
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8. Removals
Regional teams obtain the removal statistic for TCU cases when the region arranges the removal and uses its own bed allocation to facilitate the transfer. TCU obtains the removal statistic when it detains in a TCU bed and sets removal directions. TCU obtains the conclusion statistic for all third country removals within deadline (insofar as conclusions are counted). 8.1 Removing Third Country Cases: General Actions TCU must: Handle all communication with the relevant Member State, including gaining agreement for removal to go ahead and notification of the transfer; Complete a removal starring pro-forma, clearly flagging the case conclusion and Dublin Regulation deadline, and any other key requirements; Send the starring pro-forma to the LIT via fax and post within 5 working days of the Member State accepting responsibility; Reply to all correspondence from representatives, MPs or applicants regarding the Dublin removal; Seek clarification from the LIT when necessary; Review the case regularly; Re-issue the starring pro-forma if there are any material changes to update, or if removal does not take place within 3 months of the original pro-forma being sent.
The LIT must: Update CID Notes to register the starring pro-forma has been received; Arrange removal within 1 month of receiving starring pro-forma; Set removal directions according to standard procedures (for further guidance refer to the Enforcement Instructions and Guidance). See also: 8. Removals. Key points: o Provide the applicant with 5 clear working days notice of removal (not including the day removal directions are served). Note that this notice must be given or the removal will have to be cancelled; o Ensure flights arrive in the relevant Member State by 2.00pm unless agreed otherwise by TCU; Notify TCU of the removal directions, allowing 3 working days for the Member State to be notified. Serve the applicants certificate (IS.240), a copy of the acceptance letter issued by the Member State, the IS.87 (non-UK) appeal papers and all other standard removal documents including the factual summary (which must be updated as appropriate); Obtain authority from the relevant DD for family split removals if appropriate. The LIT must copy the submission to TCU for addition to the TCU file; Reply to all correspondence regarding any regionally organised detention and conduct detention reviews for all subjects detained in a regional bed; Cancel removal directions and notify relevant parties if the transfer cannot go ahead, and reset removal directions.
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8.2 Removing Detained Cases (Applicant in TCU Ring-Fenced Detention) TCU must: Undertake all aspects of removal listed above as regional actions (TCU case owner).
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8.3 Removing Unaccompanied Children Throughout the process of removing an unaccompanied child, all officers involved must have due regard to Section 55 of the Borders, Citizenship and Immigration Act 2009 (refer to 1.2 Application of this Instruction in Respect of Children and those with Children). All officers involved must bear in mind that the prospect of removal is likely to be distressing and stressful for the child. Reasonable and practical steps must therefore be sought to minimise this and to safeguard and promote the welfare of the child. See also: Chapter 55 (Detention and Temporary Release) and Chapter 60.6 (Judicial Review) of the Enforcement Instructions and Guidance (EIG) 8.3.1 Removing Unaccompanied Children Initial Actions On identifying the child as a TCU case, TCU must: Check that the cases of any unaccompanied children referred to the TCU have been referred to the Refugee Councils Panel of Advisers. If this has not been done then TCU must make the referral as soon as possible, The Panel will assist the unaccompanied child and their social worker in sourcing legal advice. See: http://www.refugeecouncil.org.uk/howwehelp/directly/children; Issue to the child and the childs representatives (where representatives are notified) the Applicants Third Country Introduction Letter (held locally in TCU). This letter lays out for the child, in plain and simple language, that the TCU is handling their case and what this means for them. It also asks them to state any reasons that are not asylum based, why they wish to remain in the UK; Issue to the relevant local authority childrens services department the Social Services Third Country Introduction Letter (held locally in TCU). This letter explains TCUs involvement in the childs immigration case, outlines the key steps in the TCU process, and lays out what this means for the child.
8.3.2 Local Authority Childrens Services Department and UK Border Agency Meeting TCU must: Arrange a meeting with the relevant social services department and the LIT (where appropriate), usually within 10 working days of receiving notification that the Member State has accepted responsibility for the child. Hold the meeting and discuss: o Any reasons the local authority childrens services department may have as to why the child should not be removed; o The likelihood of the child absconding; o Any additional factors which may indicate that the child is particularly vulnerable; o Childrens services producing and releasing to either the UK Border Agency and or the child, copies of their UK care plan and if appropriate age assessment, to be passed to the receiving Member State either by the applicant on their arrival or via TCU in advance of their transfer. Document the discussion;
Consider carefully any reasons given why removal should not take place, and if concluding that removal remains appropriate, document the reasons for this decision in writing, via either the TCU refusal letter or if appropriate in response to further representations. This includes specifically addressing the consideration of section 55 of the Borders, Citizenship and Immigration Act 2009.
The LIT must: During the meeting, fully complete the TCU Child Check Sheet and Social Services Liaison Form (see below); Ensure that TCU and social services receive a copy of the form, noting the following: points: o If sending the form electronically to social services, it must be encrypted; o Note that the form is protectively marked RESTRICTED and must not be forwarded to any other parties. o Hard copies of the form within UKBA must be clearly labelled as Medical Information RESTRICTED and placed in an unsealed envelope which must also be clearly labelled as Medical Information RESTRICTED and then placed in the port/HO file. For further guidance refer to UKBA Information Management resources.
8.3.3 Removal Action Not Taken Within Three Months of the Childs Case Conference Concluding TCU must: Review the file and consider if the childs situation has significantly changed since the last case conference and contact the childs social worker to see if there have been any significant developments or changes to the childs circumstances that would a make an additional case conference appropriate; If after reviewing the file and considering the views of social services the case worker does not think it appropriate to conduct a further case conference the caseworker should minute the file clearly explaining their reasons; If the case owner does consider a further case conference appropriate they must organise one, usually within 5 days. This additional case conference must follow the same format as the first; Upon concluding the second case conference the case owner must review the case and assess if removal is still appropriate. If removal is considered appropriate a starring pro forma will be faxed to the LIT for action.
The LIT must: Where appropriate, participate in the additional case conference, if one is thought appropriate; If removal is still considered appropriate, make a referral to the OCC, as outlined in section 8.3.5 of this instruction.
8.3.4 Unsuccessful Child Removals (Where the Child is Returned into Care) TCU must: Arrange a further meeting with the relevant social services department and the LIT to discuss the reasons for the attempted removal failing or otherwise being cancelled, and ways in which those reasons may be addressed in any further removal attempt; Document the discussion, and record to the case file; Consider any further reasons given why the removal should not take place;
Decide whether to continue with the removal.
8.3.5 Referral to the Office of the Childrens Champion (OCC) Referral to the OCC is necessary only if removal is still considered appropriate following the meeting between childrens services and UKBA. TCU must: Fax a starring pro-forma to the LIT, accompanied by relevant key documentation (e.g., refusal letter, return acceptance, social service liaison form, etc.); Partially complete the OCC referral form (excluding the section regarding the plans on how the removal will be conducted - this section is for the LIT to complete and submit to the OCC).
The LIT must: Complete the OCC Referral pro-forma (below). Please note this form is protectively marked RESTRICTED and must not be forwarded outside of the GSI network. For further guidance refer to the UKBA Information Management web site; Within 4 weeks of receiving the starring pro-forma, refer the case by attaching the OCC Referral Pro-Forma, the TCU Child Check Sheet and Social Services Liaison form to an email addressed to the Office of the Childrens Champion (copied to the TCU Childrens Team; (Note: The OCC endeavours to respond to all referrals within 5 working days, but as much notice as possible should be given.) Consider the OCCs response in coming to a final view on whether to proceed with removal (however, the LIT has final authority).
8.3.6 Service of Removal Documentation The LIT must: Apply the actions at 8.1 Removing Third Country Cases: General Actions; Arrange escorts to accompany the child to the Member State by: o Fully completing the IS.108 Request for Escorts Public Expense Removal Case Form, ensuring the form clearly states that the escorts are required for a child; o Faxing the IS.108 Form directly to the overseas escort supplier, currently G4S (please telephone G4S in advance to alert them that a fax is being sent to them).
Please note: Although Section 55 of the Borders, Citizenship and Immigration Act 2009 does not apply to overseas UK Border Agency staff and contractors, it is UK Border Agency policy that when escorts are escorting children overseas, they should have regard at every stage of the journey to the need to safeguard and promote the welfare of children. 8.3.7 Notifying Social Services of the Childs Imminent Removal The LIT must: Inform the relevant childrens services department of the childs removal date; Clarify collection arrangements for the child; Pass on information regarding the general reception arrangements that are expected to be in place once the child arrives in the Member State (if known) to the childs social worker (and if appropriate the childs foster family); If the child is considered to be an adult in the receiving Member State, request a copy of the childs age assessment, which should, if possible, be sent to the authorities of the
receiving Member State for consideration prior to the childs arrival. If this is not possible it should accompany the child and be handed to the receiving authorities upon arrival; Request a copy of the childs care plan and the social workers and foster familys contact details (subject to their agreement) which should, except in exceptional circumstances, be sent to the receiving authorities for their consideration prior to the childs arrival. If this is not possible it should accompany the child and be handed to the receiving authorities of the Member State upon arrival.
8.3.8 Unescorted and escorted Removal - Detention Process When planning and undertaking the removal of an unaccompanied child, officers must take reasonable and practical steps to minimise any distress that the child might experience and where possible ensure that the child is comfortable. When considering the appropriateness of self check in removal directions the LIT must consider their duty under Section 55 of the Borders, Citizenship and Immigration Act 2009 to safeguard and promote the childs welfare. It may well be inappropriate to expect the child to travel to the airport particularly given the time of day and distance they may need to travel. If self check-in removal directions are considered the LIT must: consult with the childs social worker over the appropriateness of these arrangements Satisfy themselves that the childs plans / arrangements to reach the airport safely and in time are adequate (in the context of safeguarding and promoting the childs welfare). Put their consideration in writing and fax or email it to the relevant TCU case worker.
If detaining the child for removal (usually for only a few hours whilst the child is escorted to the airport), all of the applicable actions below, LITs must: Obtain authority to proceed with the removal of an unaccompanied minor in accordance with current policy. Refer to paragraph 55.9.3 of Chapter 55 of the Enforcement Instructions and Guidance; Arrest the child under schedule 2 of the 1971 Act if the IS151A has been served (if the IS.151A has not been served, arrest on suspicion and then serve the papers); Advise the overseas escorting supplier that the detention has been undertaken and of any additional risk factors, if identified; Complete the IS.91R ensuring box C is ticked in the first part under Section 2, and boxes 5, 7, or 9 in the second part under section 2; Serve the IS.91R; Complete the IS.91 ensuring: o In Transit is entered as the Place of Detention under section 4; o UK Border Agency is entered as the Detaining Agency under section 4; o The time and date of the childs detention is logged under section 4. At the van swap (in a secure area e.g. Yarls Wood) amend the IS.91 by: o Entering the contracting company as the Detaining Agency; o Entering In transit to [Name of Port] as the Place of Detention; o Logging the time of the transfer. On arrival at the port, the contracting company should amend the IS.91 by: o Logging the time of arrival at the port; o Entering [Name of Port] as the Place of Detention. If detention is cancelled, fax form IS.109 - Cancellation of Escorts to DEPMU and the overseas escorting supplier (please telephone G4S to notify them a fax is being sent).
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8.4 Family Removals For all families with dependant children (aged under 18), who are liable to be removed under the Dublin Regulation, the new family returns process laid out at Chapter 45 of the Enforcement Instructions & Guidance will apply. This section provides only an outline of requirements: TCU officers are expected to read and follow the full process guidance. 8.4.1 TCU Role in Family Returns In addition to regular case management responsibilities, TCU case owners must liaise closely with the LIT responsible for the familys case, to ensure they are fully aware of the progress of the familys case through each stage of the family returns process. They must also ensure that from the start of the process, the Family Welfare Form (FWF) (ICD/3629) is generated and updated as fully as possible as required. This information is important throughout, and vital should the case proceed to the ensured return stage. See Chapter 45.1 The Family Welfare Form for further details on what the FWF requires. 8.4.2 Overview of the Family Returns Process The family returns process has three key stages: assisted return, required return and ensured return. Except for in exceptional circumstances, a familys case should go through both the assisted and required returns stages, before ensured return is considered (see Chapter 45.5 Ensured Return for further information regarding exceptions). Assisted Return The assisted return stage aims to make sure that all families correctly understand their current immigration status in the UK, and are informed of their options for returning home. Families will have a dedicated family return conference to discuss the return options available to them, including assisted voluntary return. Families will be encouraged to take responsibility for their return, and to start making arrangements accordingly. This conference will be conducted by the LIT. Before the family returns conference TCU will complete the immigration history and section 1 of the FWF with as much information about the family as possible. The FWF must be shared with the LIT via CID before the family returns conference is conducted. Following the family returns conference the LIT will update the FWF on CID, ensuring that sections 1 and 2 are fully accurate, up to date, and thoroughly set out the discussion of voluntary return. The LIT should inform TCU when the family returns conference has been completed so that TCU are able to view the updated FWF on CID, and to ensure they are fully aware of any issues arising as a result of the conference. For full guidance on the assisted return stage of the process, please see Chapter 45.3 Assisted Return.
Required Return Following the family returns conference families will be given at least two weeks to consider the offer of assisted return. Within this period, families will be expected to begin making preparations for their return, or to raise any further issues relating to their claim or to seek legal redress. After this reflection period the family will be invited to a family departure meeting to follow up the discussion about their options for return. The family departure meeting offers families a final opportunity to reconsider assisted voluntary return or voluntary departure before steps are taken to ensure their return. The family departure meeting will be conducted by the LIT, and following the meeting the LIT will complete section 3 of the FWF. The LIT should inform TCU when the family departure meeting has been completed so that TCU are able to view the updated FWF on CID, and to ensure they are fully aware of any issues arising as a result of the meeting. If the family refuses the offer of assisted return, and expresses they have no intention to voluntarily depart, self check in removal directions will be served on the family. These removal directions will be served while the family remain in the community. The family will be given at least two weeks notice of the time and manner of their departure, and where requested, we may provide assistance to the family. Assistance may include helping them with transportation to the port of departure e.g. booking a taxi, or providing a rail warrant. For full guidance on the required return stage of the process, please see Chapter 45.4 Required Return. Ensured Return Where a family fails to comply with self check in removal directions the familys case will proceed to the ensured return stage. At this stage of the process, a range of enforcement actions will be considered to ensure the familys return. For further information on what enforcement actions can be considered at this stage, see Chapter 45.5 Ensured Return. A key part of the ensured returns process is the introduction of an independent family returns panel. The panel has been created to ensure that individual return plans for families take full account of the welfare of any children involved. All family cases that have reached the ensured return stage will be referred to the panel, whose role it is to advise on the suitability of the returns plan. For further information about the role of the independent family returns panel see Chapter 45.6 Family Returns Panel. Referrals to the independent family returns panel should be made by the LIT, after obtaining input from TCU about the method of return to the third country. The referral will be contained within section 5 of the FWF. The TCU case owner should be copied into the completed referral when this is sent to the Family Returns Unit (FRU). The TCU case owner will be expected to attend the panel meeting to discuss the familys case and so should be prepared to answer any questions from the panel about the familys return to the third country. The panel will provide their advice on the suitability of the returns plan at the panel meeting, and the LIT will be expected to implement this advice in all but the most exceptional cases. The TCU case owner should liaise closely with the LIT in taking forward the proposed returns plan. For full guidance on the ensured return stage of the process, please see Chapter 45.5 Ensured Returns, and Chapter 45.6 Family Returns Panel.
8.4.3 Family Unity There is a presumption that it is in the best interests of the child that a family will remain together throughout the family return process. However, there may be occasions where it is necessary to separate a family during ensured return to manage disruption, to effect arrest and return, and to safeguard the welfare of the child. Proposals to separate family units as part of a return plan should proceed only after advice has been received from the family returns panel. Any unplanned disruption of family unity during an ensured method of return will be reported to the Family Returns Panel. See ch. 45.7 of the EIG. 8.4.4 Educational Exams Criteria Chapter 45.2.3 of the EIG applies fully in TCU cases, including the requirement for departures to the policy to be authorised at AD level, with reasons for the departure to be updated to section 1 of the FWF.
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8.5 Removal Barrier Judicial Review (JR) The TCU JR Team handles all judicial review applications received for third country cases. It liaises with the Treasury Solicitors, compiles all grounds and provides advice to the relevant Treasury Solicitor on third country issues. TCU must: Notify the LIT when a signed JR application has been received within no more than 5 days of receiving the application in TCU and complete CID Judicial Review Maintenance screen and CID Notes; Seek to expedite all JR cases, particularly those which are detained and those involving families. This must happen as soon as the applicants JR grounds are received (within 7 days of the crown office reference number being obtained in TCU cases); Enter the caseworkers name and unit on CID Notes and Case Ownership screens; Update CID Judicial Review Maintenance screen and CID Notes with progress of the judicial review application; Respond to pre-action protocol letters within 2 weeks of receipt, prioritising detained cases; Send a starring pro-forma to the LIT within 2 weeks of judicial review being concluded.
The LIT must: Once a judicial review application is lodged, immediately cancel removal in accordance with Chapter 60 of the Enforcement Instructions and Guidance; Check CID Judicial Review Maintenance screen and CID Notes for progress reports and make enquiries to the specific JR caseworker if necessary. Where none is specified telephone the TCU JR Section; Once the JR is concluded, the LIT must aim to remove the subject within 1 month of receiving a starring pro-forma and definitely within the case conclusion deadline (if relevant).
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9. In-Cases and Repeat Applicants

9.1 Third Country In-Cases Just as the UK will send individuals to other countries when they are responsible for handling the asylum and immigration issues under the Dublin Regulation, so too will the UK be required to accept cases inward from Member States, where responsibility falls to the UK. These are known as in-cases. Ports must: Conduct a risk assessment on third country in-cases, according to normal procedures.
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9.2 Third Country Removals Who Have Returned If an applicant returns to the UK after previously being removed under third country legislation and they wish to continue with their asylum claim, the below actions must be taken. The LIT/port/ASU must: Re-fingerprint all purported repeat third country applicants; Record recorded on CID as an initial asylum claim and not a fresh one; (This action must be taken because the UK has not previously refused their first asylum claim; rather the UK has declined to consider it, as the UK is not the responsible Member State. Therefore, when the applicant returns it would be incorrect to consider under Paragraph 353 of the Immigration Rules.) Conduct a travel history interview record (recorded on form ASL.3766) to ascertain where the applicant has been since leaving and then returning to the UK, and assess whether removal under third country legislation is still appropriate; Refer appropriate cases to TCU (see 4.1 Referring Cases to TCU).
9.2.1 Section 95 Support Applicants who return to the UK after a third country removal and wish to continue with their asylum claim still have an outstanding asylum claim which has not yet been determined, so they will be asylum seekers for support purposes, and so may be eligible for section 95 support if they are destitute.
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10. Actions When Eurodac Data Is Disputed

Article 18 of the Eurodac Regulation provides that data subjects have the right to challenge the accuracy of data held about them on the Eurodac database. Article 18 will be engaged in cases where the data subject accepts that he/she was fingerprinted in another Member State but challenges any of the recorded information as set out in Article 5(1) of the Eurodac Regulation. Where the condition is met, Article 18(4) places a duty on the TCU to: Relay to that Member State the challange advanced by the data subject, and ask that Member State to look again at the data it entered on Eurodac for accuracy and the lawfulness of their transmission and recording in the central database; Forward all necessary particulars (including fingerprints) to identify the data subject. This data is to be used exclusively to permit the exercise of the rights set out in article 18 and should be destroyed immediately afterwards. There is a duty on the competent authorities of Member States to cooperate actively to enforce the right to access and rectify information.
It should be noted that the TCU may receive challenges forwarded by other Member States. Where data is found to be inaccurate or recorded unlawfully, the subject has a right to have the correction or erasure carried out without excessive delay by the Member State which transmitted the data, in accordance with its laws, regulations and procedures. The subject should be given confirmation in writing when this has taken place. If the Member State which transmitted the data does not agree that data recorded in the central database is factually inaccurate or has been recorded unlawfully, it should explain in writing to the data subject, without excessive delay, why it is not prepared to correct or erase the data.The data subject should also be provided with information explaining the steps which he/she can take if he/she does not accept the explanation provided.
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11. Annex A FIU (TCU Cases) Referrals Process Map

Start Point Officer receives a potential third country case Contact TCU Telephone FIU to outline the referral, providing documentary evidence if necessary and requested Acceptable to FIU? Yes Transfer Case to TCU Transfer over all aspects of the case including files and relevant paperwork to TCU
No
End Point Not a third country case. Progress case through standard procedures
End Point TCU may contact the officer to undertake some further actions
Start Point
Decision Point Self-Contained Process Step
End Point
Glossary
Term AI Applicant ASL.3211 ASL.3766 ASU Case Owner Meaning Asylum Instruction The asylum applicant (in the context of this instruction) The Asylum Screening Interview Record The TCU Travel History Interview Record The Asylum Screening Unit, based in Croydon Any officer holding responsibility for substantively handling asylum applications, in areas such as regional asylum teams, Criminal Casework Directorate (CCD), Third Country Unit (TCU), Case Resolution Directorate (CRD), etc. Detention and Removals Team (TCU) Detainee Escorting and Population Management Unit Agreement between Member States for determining the responsibility of third country cases Enforcement Instructions and Guidance Database to store, search and compare fingerprints to support the Dublin arrangements Fast Track Intake Unit. The unit responsible for determining entry to the processes operated by the Third Country Unit and also Detained Fast Track Immigration Asylum Fingerprint System Immigration Fingerprint Bureau The asylum applicant (in the context of this instruction) Local Enforcement Office Local Immigration Team, within which substantive asylum and enforcement activities take place. The actions outlined for the LITs are a regional responsibility. For the purposes of this instruction only, some of the activities laid out for LITs may also apply to non-LIT offices, such as CCD or CRD. If there is any doubt, advice must be sought from the NAM+ Protection inbox. A state participating in the Dublin arrangements (including Eurodac), currently all EU Member States plus Norway and Iceland Office of the Childrens Champion The asylum applicant (in the context of this instruction) Police National Computer Potential Victim of Trafficking One of the UKBA regional directorates. SEO senior caseworkers within the regional teams, DFT
DART DEPMU Dublin Regulation EIG Eurodac FIU
IAFS IFB Individual LEO LIT
Member State
OCC Person PNC PVOT Region Senior Caseworker / SCW
and CRD (not HEO technical specialists) Starring Pro-Forma Form in which the key facts about an individual and their priority for removal are laid out, for consideration by the removing office. The asylum applicant (in the context of this instruction) Third Country Unit Victim of Trafficking
Subject TCU VOT

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Document Control
Change Record
Version 1.0 2.0 Authors BN BN Date 14.01.09 05.05.09 Change Reference New published instruction. Updated instruction to reflect minor changes to trafficking and removal of unaccompanied children processes. Amendments in light of the Childrens Duty. Amendments in light of LAB comments. Update to include Childrens Duty. Update to reflect changes in EIG Ch. 60 re. RDs. Update to mention new family removals policy, allowing applicants to challenge Eurodac results and mention of TCU regional detention beds.
2.1 2.2 3.0 4.0 5.0
BN BN BN MK MK/GL
09.10.09 22.10.09 30.10.09 05.01.10 11.08.11

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HOME OFFICE FULL EQUALITY IMPACT ASSESSMENT TEMPLATE

Directorate Unit Date

Immigration Group Permanent migration programme 05 July 2010

Home Office EIA Template.

ia reviewing refugee settlement

1 SCOPE OF THE EIA

Key stakeholders in relation to settlement protection are:

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ia reviewing refugee settlement

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ia reviewing refugee settlement

Religion/ belief & non belief

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ia reviewing refugee settlement

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ia reviewing refugee settlement

3 INVOLVING AND CONSULTING STAKEHOLDERS

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ia reviewing refugee settlement

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ia reviewing refugee settlement

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ia reviewing refugee settlement

Now complete the report and Action Plan.

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ia reviewing refugee settlement

5 REPORT, ACTION PLANNING AND SIGN OFF 5.1 EIA Report

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ia reviewing refugee settlement

Annex A - Equality Impact Assessment Report TITLE

SCOPING THE EIA

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ia reviewing refugee settlement

INVOLVING AND CONSULTING STAKEHOLDERS

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ia reviewing refugee settlement

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ia reviewing refugee settlement

OWNER AND INTERESTED STAKEHOLDERS

DEPENDENCIES / RISKS / CONSTRAINTS

To monitor volumes of applications received compared to projected figures.

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ia reviewing refugee settlement

Communications literature updated to reflect process in the devolved administrations.

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ANNEX C National Asylum Stakeholder Forum representation

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ia reviewing refugee settlement

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ia reviewing refugee settlement

Joint Council for the Welfare of Immigrants (JCWI)

Refugee Arrivals Project (RAP) Refugee Council

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APPLICANTS WITH POOR QUALITY FINGERPRINTS

5 Onward routing actions where the applicant is not being detained

7 Sector 8 Compliance Team action following case referral

9 Sector 8 Compliance Team no longer has an interest in a case

3. Designated States section 94 (4)

4. Case by Case Consideration

5. When to use Certification