By Aykhan Allahveranov
Within the United Kingdom, the current asylum process is established and regulated primarily by the Nationality, Immigration and Asylum Act 2002 and subsequent legislation and by the UK Immigration Rules. Within this process, “fresh claims” for asylum – also referred to as further submissions – play a critical role by allowing asylum seekers to seek a new determination of their refugee status where new evidence or changed circumstances arise following a previous final negative determination of their asylum claim. This article examines the need for and value of a fresh claims procedure within the UK asylum system, with reference to domestic law and the UK’s international obligations.
The key take-aways from this article are that:
- Fresh claims carry significant practical value for asylum applicants.
- A fresh claims procedure is legally required by the 1951 Refugee Convention relating to the Status of Refugees and its 1967 Protocol, to which the UK is a state party.
- The refugee status determination is declaratory in nature.
- The fresh claims procedure in the UK is primarily governed by paragraph 353 of the Immigration Rules, which sets out the legal test for further submissions following refusal of an asylum claim.
What is the practical value of “fresh claims” in the UK asylum system?
Broadly speaking, there are a number of reasons why an asylum applicant may need to submit further evidence or raise new issues, even after a previous application for refugee status or humanitarian protection (collectively referred to as “international protection”) has previously been definitively rejected, and any appeal rights exhausted.
Firstly, the situation in the country of origin may have changed since the examination of the previous application, giving the asylum applicant a fear of persecution (or putting them at risk of serious harm) for reasons that previously did not exist or were not strong enough to merit a grant of international protection. Secondly, asylum seekers in the UK often face difficulties presenting full evidence during initial claims due to trauma, lack of legal advice or delays in obtaining documentation. Fresh claims allow such evidence to be considered and enable decision-makers to reassess credibility and risk. Finally, decision-makers may commit errors, and the possibility of submitting a fresh claim provide a mechanism to correct such errors where new material undermines the basis of an earlier refusal.
Is a fresh claims procedure legally required?
The right to seek and to enjoy in other countries asylum from persecution is recognised in Article 14 of the Universal Declaration of Human Rights and given binding legal effect through the 1951 Refugee Convention relating to the Status of Refugees and its 1967 Protocol, to which the UK is a state party. These treaties form the international law basis for refugee protection in UK law.
The determination of refugee status under the Refugee Convention’s Article 1 refugee definition is one of the principal functions of the UK asylum system. In essence, Article 1A(2) states that a person is a refugee is:
“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”
Other limbs of Article 1 disapply this provision in the event that the person claiming asylum has committed certain serious kinds of criminal acts or already has the protection equivalent to nationality in a country other than that in which they fear persecution.
The UK’s obligations under the Refugee Convention require it to operate a procedure to determine the refugee status of non-nationals, even if a previous claim for asylum has been turned down. This is because refugee status determination is declaratory in nature, i.e. a person does not become a refugee because of recognition within a status determination procedure, but is recognized by that procedure because he or she is a refugee (UNHCR, Handbook (1979), [28]). In other words, a person is legally a refugee as soon as he or she objectively fulfils the criteria contained in the refugee definition. All that the asylum process does is to recognise (or not) that objective fact.
For this reason, it is not enough for the UK government to say that a person was found previously not to be a refugee if there are now good reasons for believing that, due to a change of circumstances, their situation now fulfils the Article 1 definition of the Refugee Convention. If a person is a refugee, then the Refugee Convention implicitly gives them an entitlement to have this international legal status recognised by the country in which they are present. That has considerable practical legal importance too because refugee status is accompanied by a range of important legal rights or guarantees granted to refugees under Articles 3 to 34 of the Refugee Convention. If refugee status is not recognised, then refugees may unlawfully be deprived of the exercise of those rights. That includes the protection from refoulement (return) to a country where the refugee fears persecution, which is enshrined in Article 33 of the Refugee Convention. As such, fresh claims are essential to preserve the rights of refugees, including the principle of non-refoulement, and to ensure that the UK fully complies with its international obligations under this treaty.
The UK is also bound by international human rights instruments, including the European Convention on Human Rights (ECHR), incorporated domestically through the Human Rights Act 1998 (HRA). Article 3 the ECHR is an absolute and fundamental right. It prohibits in absolute terms “torture and inhuman or degrading treatment or punishment”, and its guarantees apply irrespective of the reprehensible nature of the conduct of the person in question. Where there is a real risk that an individual subject to removal or deportation proceedings will face treatment contrary to Article 3 ECHR in the receiving state, removal cannot take place. In such circumstances, the responsibility of the removing state is engaged by the removal itself (AM (Art 3; health cases) Zimbabwe, Upper Tribunal, [17]). This has important implications for the purposes of a fresh claim. Even an asylum seeker who does not qualify as a refugee under the Refugee Convention (or humanitarian protection as a result of Article 3 ECHR) may face a risk of Article 3 mistreatment in the country at the time when their removal comes around due to a change of circumstances. Thus, there needs to be a domestic procedure to identify such changes which might make removal unlawful under Article 3 ECHR, or other incorporated human rights provisions with which removal might interfere or breach (such as the right to family and private life in Article 8 ECHR).
How does UK law regulate the fresh claims procedure?
The existence of a fresh claims procedure is required by law. But law also regulates how that procedure must be implemented. That is governed primarily by paragraph 353 of the Immigration Rules, which sets out the legal test for further submissions following refusal of an asylum claim. Under paragraph 353, submissions will amount to a fresh claim if they are “significantly different” from material previously considered and, when taken together with earlier material, create a realistic prospect of success before an immigration judge.
Moreover, where considering the new material, a decision-maker must consider whether an immigration judge, applying “anxious scrutiny” would think that the applicant will be exposed to a real risk of persecution on return (WM (DRC), [7]). It was further emphasised by the courts that the acid test of “realistic prospect of success” is “not a very high test” (ex parte Boybeyi, 497, per Nourse LJ).
The importance of procedural fairness is heightened by the potentially irreversible consequences of removal, where this is a possibility. UK courts have repeatedly held that when an administrative decision under challenge is said to be one which may put the individual’s life at risk, the basis of the decision must call for the “most anxious scrutiny” (ex parte Bugdaycay, 531, per Lord Bridge).
Conclusion
Together, these obligations require the UK to maintain asylum procedures capable of identifying protection needs accurately and reassessing risk where new information arises. As such, fresh claims for asylum are a necessary and valuable component of the UK asylum system. They provide a mechanism for reassessing protection needs in light of changed circumstances, new evidence and evolving country conditions. Grounded in international refugee and human rights law and informed by paragraph 353 of the Immigration Rules, fresh claims play a central role in preventing refoulement and ensuring procedural fairness.
In the UK context, fresh claims should not be viewed as undermining the finality of asylum decisions but as safeguards that uphold the rule of law. Their continued availability is essential to ensuring that the UK asylum system remains compliant with its international obligations and capable of protecting individuals at risk of persecution or serious harm.
Bibliography
UN General Assembly (1948) Universal Declaration of Human Rights. Paris: United Nations
UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (1979)
UNHCR (2025) Further Submissions in the UK: An audit of the UK’s Further Submissions procedures and decision-making, and recommendations for change
R (WM (DRC)) v Secretary of State for the Home Department [2006] EWCA Civ 1495
R v Secretary of State for the Home Department, ex parte Bugdaycay [1987] AC 514, 531 (Lord Bridge)
AM (Art 3; health cases) Zimbabwe [2022] UKUT 00131 (IAC).
R v SSHD, ex parte Boybeyi [1997] Imm AR 491, 497 (Nourse LJ)
Aykhan Allahveranov is a final year LLB student at UCL. He was a volunteer caseworker at the Refugee Law Clinic in the years between 2024 and 2025. He is interested in refugee law, international law and human rights issues.
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