The introduction of the Nationality and Borders Act 2022 has brought significant changes to the UK’s immigration landscape, particularly affecting asylum seekers. Among these changes is the increase in the standard of proof required for refugee status claims, applicable to applications submitted on or after June 28, 2022. As these claims begin to be processed and reviewed by judges, it is essential to understand the theoretical and practical implications of this new standard for human rights claims as well.
Previous Standard of Proof for Refugee Status
Historically, the standard of proof for refugee status was guided by the principle of a “reasonable degree of likelihood” that an individual would face persecution if returned to their home country. This standard was articulated in various forms, such as “real risk of serious harm” or “well-founded fear,” but fundamentally meant the same thing. It represented a lower threshold than the civil standard of “balance of probabilities,” focusing on the likelihood of risk rather than a more than 50% chance.
Crucially, this standard applied uniformly across all aspects of an asylum claim: the credibility of the applicant, the occurrence of the claimed events, and the future risk of persecution. This comprehensive approach was reinforced by the landmark case of Karanakaran, which held that a single standard should govern all elements of the asylum assessment.
Changes Introduced by the Nationality and Borders Act 2022
The Nationality and Borders Act 2022 has introduced a bifurcated approach to assessing refugee status claims:
- Assessment of Characteristics and Fear: Decision-makers must first determine, on the balance of probabilities, whether the asylum seeker possesses a characteristic that could lead to persecution and whether they genuinely fear such persecution.
- Assessment of Persecution Risk: If these conditions are met, the decision-maker then assesses whether there is a reasonable likelihood that the asylum seeker would face persecution if returned to their home country.
It is important to note that this new standard applies exclusively to refugee status claims and not to human rights claims, which continue to be evaluated based on established European Court of Human Rights jurisprudence.
Practical Implications of the New Standard
This split standard introduces additional complexity into the decision-making process. For instance, the requirement to assess the applicant’s subjective fear may present challenges in cases involving children or individuals lacking mental capacity, who may not fully comprehend or express fear but are nonetheless at significant risk of persecution.
In practice, the new standard could lead to longer decision-making times and more detailed written decisions. While this might result in some individuals being denied refugee status under the new criteria, these applicants are likely to succeed on human rights grounds, which maintain the traditional standard of proof.
Impact on Decision-Making Culture
The shift in the standard of proof may influence the decision-making culture within the Home Office. New training and supervision aligned with the updated criteria could foster additional scepticism, potentially increasing the rate of refusals for both refugee and human rights claims. Recent statistics indicate a drop in the grant rate from 75% to 66%, suggesting a possible alignment with these new decision-making practices.
Judicial Perspective
Despite these changes, the judicial decision-making culture is expected to remain stable. Judges are likely to continue applying the established standards to human rights claims, ensuring that individuals at risk of persecution receive the protection they need. If Home Office refusals increase, a corresponding rise in successful appeals is anticipated, maintaining a balance in the protection afforded to asylum seekers.
The new higher standard of proof for refugee status claims introduced by the Nationality and Borders Act 2022 complicates the asylum process but does not fundamentally alter the protection available to those at risk. While it may lead to more initial refusals, successful appeals based on human rights grounds will likely offset these outcomes. Ensuring fair and just decisions remains paramount, balancing rigorous assessment with the core principles of international protection.
Get in touch: For a comprehensive understanding of your options or queries on UK immigration matters, contact GigaLegal Solicitors at 02074067654 or click here to book a no-obligation consultation with an immigration expert.