47-page report published following review of 30 individual cases
The United Nations High Commissioner for Refugees (UNHCR) last month published the results of a comprehensive review of the UK's Detained Asylum Casework (DAC) procedure.
You can download the 47-page report here.
As the report explains, DAC is an asylum policy for applicants who have either claimed asylum whilst already in immigration detention or who claim asylum in other circumstances such as at an Asylum Intake Unit, at a port, or immediately following apprehension as a illegal entrant. It was introduced after the Home Office's previous Detained Fast Track (DFT) process was found to be unlawful by the Court of Appeal in 2015.
UNCHR undertook the first public audit of the Home Office's approach to refugee status determination decisions made under the DAC process. The audit ran from 2018 to 2021 and was carried out by UNHCR under the Quality Protection Partnership (QPP) in close collaboration with the Home Office.
30 individual cases were selected and reviewed in detail by the UNCHR for the audit.
Overall, the report finds: "During this audit, UNHCR identified some positive approaches to asylum decision-making, however many decisions reviewed within the DAC clearly reveal that improvement is required to ensure accordance with international standards. The report highlights the need to exercise extreme care in conducting first instance asylum decision-making in detention and in taking the decision to maintain detention for the purpose of considering asylum claims in the first place."
UNHCR found during the audit that Home Office caseworkers continue to have difficulty in identifying and engaging with material facts.
UNHCR said: "[I]t was positive to see that no negative decisions were taken where a claim was rejected in its entirety on the basis of one or two negative findings. However, in assessing credibility there was frequently a lack of full and proper anxious scrutiny and appropriate engagement with the analysis of material facts. This undermined the correct assessments of credibility and risk by decision-makers."
Throughout its audit, UNHCR reviewed asylum interview transcripts to assess whether the interviewing style allowed an applicant to substantiate their application and provide the basis for a full and appropriate credibility assessment. While several areas of positive practice were identified in the cases audited, UNHCR also found a number of shortcomings.
The report provides several examples of flawed interviews and finds: "In not putting credibility concerns to the applicant, the caseworkers in these cases have not followed [Home Office] policy. The overall credibility assessment is therefore flawed as the caseworkers have determined the applications to be not credible without affording the claimants a full opportunity to respond to their credibility concerns."
In terms of the application of Refugee Convention criteria when deciding claims, the report notes: "UNHCR found that in the majority of the audited cases, decision-makers correctly ascertained the reasons for the persecution feared and proceeded to correctly identify the Convention reason. There were, however, a number of rejections made which, on the basis of the relevant files audited, do not appear to have carried out the inclusion assessment properly."
Again, a number of examples are provided by UNHCR, including two notable audited cases in which the Home Office considered that there were no Convention reasons, but the UNHCR viewed that there were clear Convention reasons.
In one case, a decision was determined to be not related to the Refugee Convention "despite the representations from the immigration solicitor which indicated that the applicant would appropriately be considered a member of a particular social group as she was a woman at risk of forced marriage." UNHCR found it was unclear as to why the Home Office decision-maker determined that the applicant did not present a Convention reason for seeking asylum.
The audit also considers issues around well-founded fear, persecution, sufficiency of protection, and internal flight alternative (IFA). On the latter, the report states, for example: "Whilst the question of whether an IFA is reasonable correctly arises in many cases reviewed, in a further case, older and arguably unreliable country information was used in relation to consideration of relevant situations that would ensure a safe and not unduly harsh IFA in the country of origin. This latter aspect is an ongoing issue in this audit. In this case, the applicant's claim was determined in 2018 on the basis that country information from 2015 confirmed that it would be safe and reasonable for a lone woman to internally relocate in Nigeria. No consideration was given to whether IFA would be safe or not unduly harsh for this particular applicant. In this matter, the applicant stated that she had been forced into prostitution as a 13-year-old child … The decision-maker did not however consider the Country Guidance from the Tribunal, handed down in 2016 which provides that in relation to vulnerable trafficked women, a woman being returned to Nigeria without familial support may be at risk of trafficking, domestic servitude and sexual exploitation."
The audit also found concerns around the treatment of dependants in decision-making. In one case audited involving a Ukrainian woman and her Ukrainian husband, UNHCR noted: "UNHCR is concerned that no consideration was given to the dependant's case. The dependant in this matter was not interviewed about his own fear of return. … UNHCR notes the lack of preparation for this second full asylum interview in this case. This issue, coupled with the decision to neither interview nor address any possible risks on return for the dependant, is concerning. The shortcomings in this case are compounded by the misapplication of the Refugee Convention criteria."
As a result of the shortcomings identified in its audit, UNHCR proposes a number of recommendations which it says are crucial to improving the fairness and efficiency of first instance decision-making where DAC processes continue to be implemented by the UK.
A total of fifteen recommendations are made in the report.
"The improvements recommended will better protect individuals against harm caused by inappropriate detention and against refoulement of refugees in need of international protection. Limiting the room for error at the earliest stage of the asylum process and in decisions to detain also reduces unnecessary financial and human costs in applications to the Immigration and Asylum Chambers and the Appellate Courts," UNHCR said.
The Home Office accepted four of the recommendations, partially accepted eight, and rejected three.