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Asylum Procedure

Part 1: Introduction to Asylum Law

Immigration Law Asylum Law

Part 2: Introduction to Asylum Procedure

Applying for Asylum Port Applicants In-country Applicants Safe Third Countries Safe Countries of Origin The Decision-making Process Statement of Evidence Form Unaccompanied Minors and SEFS One Stop Notice and Statement of Additional Grounds Interviews Young Unaccompanied Asylum Seekers and Interviews Age Disputes Detention of Unaccompanied Minors The Decision Decision-making and Children Persecution of Children If the Claim is Successful If the Claim is Refused Where there is No In-Country Right of Appeal Child Applicants and Non-Suspensive Appeals The Adjudicator/Immigration Judge The Asylum and Immigration Tribunal Interpreters and Translators Judicial review Non-removal of Unaccompanied Minors

Section 1: Support from National Asylum Support Service

Applications to National Asylum Support Service Dispersal Unaccompanied Minors Not Normally Dispersed Asylum Seeker Families Destitute Adult Asylum Seekers Late Claims For Asylum NIAA 2002 Section 55 Challenges to Section 55 NASS Guidance on Late Claims Late Asylum Claims From Families and Unaccompanied Children Failed Asylum Seeker Families Failed Asylum seekers Without Children IAA 1999/Section4/Hard Cases Support 2004 Act Changes to Hard Cases Support Appeals: the Asylum Support Adjudicators Destitution – The Position For Unaccompanied Minors

Section 2: Local Authority Support

Support for People who Claimed Asylum Before 3 April 2000 Are Post-April 2000 Asylum Seekers Entitled to Local Authority Support? Needs Arising Solely Because of Destitution or its Physical Effects Needs Arising Otherwise than Solely Because of Destitution SWSA Section 12A Consequences of the NASS Duty to Destitute Asylum Seeker Families Local Authority Duties to Unaccompanied Minors What Happens When a Young Unaccompanied Asylum Seeker Turns 18? The Hillingdon Case in Scotland Summary of Local Authority Duties Destitution – The Position for Unaccompanied Minors

Status, Rights & Issues

What is an Asylum Seeker? Families What are Unaccompanied Minors or Separated children ? Unaccompanied Minor Asylum Seekers Rights to Stay Overseas Travel Travel Documents Family Reunion Healthcare Marriage Work Housing Homelessness Education Detention Legal Aid Forms of Leave to Remain in the UK Leave to Remain on Human Rights Grounds Adoption Fostering Female Genital Mutilation Asylum and Immigration Implications for HIV/AIDS Diagnosis Mental Health Issues Destitution Minors

Legislative Framework

Relevant Provisions of the Children (Scotland) Act 1995, and their Interface with Immigration and Asylum Provisions Selected International Materials European Union Materials Regulations Directives Soft Law Measures Some UK Statutes on Immigration and Asylum Secondary Legislation Procedure Rules Statutory Instruments Soft Law Relevant Social Work Legislation

Marriage

Immigration and Asylum Act 1999 s 24 imposes a duty on the marriage registrar to report suspected 'sham' marriages to the Secretary of State.

A 'sham' marriage means one entered into by a non British Citizen/non-EEA national for the purpose of avoiding the effect of immigration law or rules (sham marriage has a statutory meaning in this context, which is different from the common law meaning).

The Immigration and Asylum (Treatment of Claimants etc) Act 2004 s 19-25 prohibits registrars from allowing the marriage of someone who is 'subject to immigration control' to go ahead unless he is satisfied that the person subject to immigration control has the appropriate permission from Immigration or the appropriate entry clearance to allow him to get married. This section of the Act was fully enforced on 1st February 2005.

All overseas nationals 'subject to immigration control' now require permission from the Home Office to be allowed to marry in the UK. Persons subject to immigration control include all overseas nationals requiring entry clearance to enter the UK. British citizens, EEA nationals and those with right of abode in the UK or people with indefinite leave to remain in the UK are not subject to immigration control and do not require permission to marry in the UK.

An application form referred to as COA (marriage) 'Certificate of Approval' must be completed and submitted to Immigration and Nationality Directorate. The form is subject to a fee of £295 which is non-refundable.

To be eligible to apply for a Certificate of Approval (COA) applicants must meet the following criteria:

• Applicants must hold leave to enter or remain in the UK for a period exceeding six months
• Applicants must still have at least three months of that leave remaining when applying If both parties to the marriage are overseas nationals subject to immigration control, two applications will need to be submitted to the Home Office. Passports or immigration status documents must be submitted with the application together with evidence that both parties are free to marry if they have been previously married.

Asylum seekers in the UK on temporary admission are unlikely to be able to meet the conditions noted above. The Home Office policy is not to make a decision on the COA application until a decision is issued in respect of the asylum claim. If a negative decision has been made on the asylum claim the COA application falls likely to be refused even if there is an outstanding appeal submitted in respect of the refusal of asylum. Discretion may be exercised if the initial decision or appeal remains outstanding for a period exceeding 18 months or if there are exceptional compassionate circumstances. Following certain decisions in the High Court and Court of Appeal in England, procedures have been introduced by the Home Office which enable applicants with no valid leave to remain at the time of the application to still be able to apply. Such applicants should provide as much information as possible to explain to the Home Office why the have no leave to remain and why the Home Office should exercise discretion in their favour. Evidence to prove that the relationship and proposed marriage are genuine is essential. The Home Office may write to such applicants after the application is submitted to request further information.

There is no right of appeal against refusal of a COA and it is therefore strongly advisable to obtain legal advice prior to submitting the application. A COA if granted is valid for a period of three months or to the date of the expiry of the applicant’s visa if this is less. The notice to marry must be given to a designated register office within the validity of the COA (Certificate of Approval). All register offices in Scotland are designated to carry out marriages of overseas nationals.

A 'certificate of approval' does not act as a form of an extension of leave to remain in the UK, it merely gives permission to marry in the UK. If asylum seekers get married to a person present and settled in the UK this will not given them an automatic right to apply for a variation of their leave to remain in the UK from within the UK. The Home Office would expect the person to return to their country of origin and apply for entry clearance in the normal procedure. Legal advice should be sought in these circumstances.

Those granted refugee status will hold indefinite leave to remain in the UK and will not require permission to marry in the UK.

People with Discretionary Leave, Humanitarian Protection or Exceptional Leave to Remain will have to apply for a COA if they wish to get married in the UK.

Home Office guidance on this issue.

The British Nationality (Proof of Paternity) Regulations 2006 are now in force and affect the nationality of children of couples who are not married where the father is British. Should a child be born to a non-British mother and a British father, the new regulations mean that the British nationality of the father can be passed on to the child without the requirement of marriage. This is an important advance, as previously such children would only take their mother’s nationality and would therefore have the same limitations on their right to remain in the UK placed upon them as their mother.