An applicant for asylum who has exhausted their right to appeals is known as a “failed asylum seeker”.
The applicant, a 29-year-old man originally from Somalia, had been seeking asylum in the UK since January 2013. He challenged a decision by the Secretary of State for the Home Department (SSHD) to refuse to provide him with an application registration card (ARC). The applicant also sought to challenge the policy under which this decision was made.
An ARC is an ID card issued to individuals who claim asylum. It contains information about the holder such as age and nationality. According to Home Office guidance, it “certifies that its holder is an asylum claimant and as such will be allowed to remain in the United Kingdom while their asylum claim is still pending”. The guidance notes that where an asylum claim was refused, but a fresh submission was made, such an individual is only entitled to an ARC when the further submissions are considered to be a new asylum claim.
In this case, the applicant was initially refused asylum in the UK because he had previously sought asylum in Italy. He was deported to Italy in August 2013 but returned to the UK and made a fresh asylum application in January 2014. This application was refused in September 2015 and an appeal was dismissed in November 2016. Permission to appeal again was refused in January 2017 and the applicant became disallowed from making any further appeals.
Following this, the applicant sought to lodge further submissions, with his latest submissions relying on psychiatric evidence of a diagnosis of mixed anxiety and depressive disorder of moderate severity.
The decision being challenged
In May 2021, after lodging the latest submissions, the applicant applied for an ARC. On 28 January 2022, an official from the Home Office informed him that he was not entitled to be issued with an ARC as he no longer had an asylum application pending.
The Home Office said that his latest submissions did not amount to a fresh asylum application unless and until a decision maker determined that it ought to be treated as a fresh claim.
The applicant contended that this decision, and the policy underpinning it, were not supported by the Immigration Rules and were therefore ultra vires (outside the scope of powers of the decision maker) and unlawful. He further argued that this decision breached his ECHR rights - Article 8 (right to respect for private and family life) and Article 14 (prohibition on discrimination).
Consideration
In assessing the merits of the case, the Court began by looking at the position of an applicant for asylum who has exhausted their right to appeals (a “failed asylum seeker”).
In the case of Re Omar Mahmud’s Application [2021] NIQB 6, the judge analysed the position of those individuals who have made an asylum claim which has been rejected, and whose appeal rights are exhausted, and noted that, “The mere making of submissions in support of a fresh claim does not alter the status of the claimant.” The Court therefore found that the, “inescapable consequence of this analysis” was that the applicant was legally a failed asylum seeker despite the fact that he had exercised his right to make further submissions.
Turning to the grounds for judicial review, the Court considered the claim that the challenged decision was ultra vires. Here, the Court stated that it was, “apparent that only asylum seekers are eligible for an ARC, not failed asylum seekers.”
Finally, the Court considered the applicant’s claims regarding a breach of his ECHR rights. The applicant stated that, without the benefit of an ARC, he could not access further education and so was refused entry into a course of study at Belfast Metropolitan College. He also complained that he could not register with a GP or dentist and claimed that these issues contributed to harming his mental wellbeing. As such, he argued that the refusal to issue an ARC disproportionately interfered with his right to private and family life.
However, the Court rejected these arguments. It noted that an ARC is not required for the purpose of registering with a GP or a dentist, nor is it necessary in order to enrol in education. Here, the applicant’s inability to enrol in this particular course appeared to be a result of a policy adopted by the educational institution.
As such, it could not be said that the decision to refuse the ARC gave rise to a breach of the applicant’s right to family and private life.
Conclusion
For these reasons, the applicant’s challenge, to both the decision and the policy which underpinned it, failed. The judge dismissed the application for judicial review.
The Court emphasised that Parliament consciously created different schemes of support for individuals based on their asylum status and noted that these differences have been upheld as being legitimate and compatible with ECHR rights.
The Court found that the failure to provide ARCs to failed asylum seekers had a much less significant impact than the different schemes of support. Here, the judge found that although there would be a difference in treatment between the applicant and an asylum seeker who successfully applied for and obtained an ARC, such differential treatment would be justified.