What Is A 'Fresh Claim' Under The Immigration Rules?

• Published date: 13 January 2023
• Subject Matter: Government, Public Sector, Immigration, Human Rights, General Immigration
• Law Firm: Richmond Chambers Immigration Barristers
• Author: Mr Thomas Hill

Take the following scenario. A person makes an application for refugee status or humanitarian protection (a 'protection claim'), or an immigration application based on their human rights (a 'human rights claim'). This is refused (or the application is withdrawn), and all rights of appeal are exhausted. Then, the person claims to have important new information or evidence that they want to bring to the Home Office's attention.

The Home Office has to strike a balance here. On the one hand, the new evidence may very well be genuine and significant. As Bingham MR once commented, "it is not hard to imagine cases in which an initial "claim for asylum" might be made on insubstantial, or even bogus, grounds, and be rightly rejected, but in which circumstances would arise or come to light showing a clear and serious threat of a kind recognised by the Convention to the life or freedom of the formerly unsuccessful applicant. A scheme of legal protection which could not accommodate that possibility would in my view be seriously defective." On the other hand, the government has to guard against abuse and protect public funds by dealing efficiently with unfounded or repeated claims.

The 'fresh claims' provisions under paragraph 353 of the Immigration Rules govern the procedure in this situation.

What are 'further submissions' and how should they be made?

Paragraph 353 begins by stating as follows:

353. When a human rights or protection claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim.

'Further submissions' are not defined in the Rules, but the Home Office's policy guidance sets out how they can be made. The process will depend on whether the submissions are based on protection grounds, human rights grounds or both. It may also depend on the individual's specific circumstances, including whether they are currently in detention or subject to removal action.

Generally speaking, further submissions made on protection grounds must be made in person at one of the Home Office's specified Service and Support Centres (SSCs). Exceptions can be made in limited circumstances, such as where an applicant is unable to travel, is an unaccompanied child, has an ongoing judicial review or is in detention. Permission must be specifically requested...