Reasonable steps – the legal test Regulation 3(2)(a): “He is taking all reasonable steps to leave the United Kingdom or place himself in a position in which he is able to leave the United Kingdom, which may include complying with attempts to obtain a travel document to facilitate his departure.” Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005
What does that mean in practice? In straight forward cases: apply for AVR and follow that process through. HO policy to support for 3 months maximum and extend only if there are good reasons why the person has not left. Frequent reviews (every 3/6 weeks). Person needs to be pro-active. Complex cases: – Nationalities where return is difficult to – Clients who can’t use AVR process – Disputed nationalities – People with no travel documents or proof of ID
Generic “reasonable steps” Pursuing AVR (Choices and Home Office own voluntary returns project, if relevant) Contacting embassies/delegations in the UK Contacting family or friends back home to send relevant documentation Tracing family through Red Cross Contacting Home Office/Immigration Services
What you need to find out (1) You need to find out what your client needs to do to leave the UK Can they apply for AVR? ie exclusions – Previous applications – Detainees – Criminal conviction carrying custodial sentence 12 months plus (need to apply to Home Office) – Check Refugee Action, Choices website and AVR policy If they are not excluded, can Choices help them? ie nationality – Eritreans only with travel documents – Palestinians and Somalis not at all Which type of AVR project is the appropriate one? If Choices are not currently helping, can the Home Office help to return? (ex. Somalia)
What you need to find out (2) If Refugee Action can’t help, what to they need to do to get a travel document and which kind of document do they need? – ETD or EU letter? refer to CROS guidance – Did they ever have a travel document (lost in the journey or with the Home Office or other government department) Is your client planning a fresh claim? (check impact before making S4 application) Is your client’s nationality disputed? – Check immigration documents – Client will have to be willing to take steps to return to other country. So check for impact on any possible fresh claim/statelessness application.
How can you prove your client is taking reasonable steps? Repeating steps at regular intervals. Need to show some attempt at checking obstacle still there. Evidencing steps: diary, witness statements, photographic evidence, travel tickets etc… Keeping the S4 team up to date with all steps taken. Keep in touch with Refugee Action Choices.
Challenging a negative decision Appeal to the Tribunal. It may be possible to JR if the Tribunal dismiss the appeal but these cases are very fact sensitive. Bear in mind that as part of the JR process your client’s entire immigration history will be considered (look for inconsistencies in their evidence). Home Office typically settle JRs (offer S4 if client takes specific steps) so it is going to be difficult to get guidance from the courts. We can advise you if you think your client’s appeal should be challenged.
Eritrea Return only with valid Travel Document Refugee Action will only help if have valid travel document Embassy in London Problem is getting evidence of Eritrean descent in order to get Travel Document Need three witnesses Additional difficulties (tax and being refused asylum seeker) Disputed nationality is an issue (Ethiopian)
Somalia No Embassy Refugee Action does not operate return scheme for Somalians (except to Somaliland and Puntland) But can return on EU letter Disputed nationality is common (Bajuni believed to be Tanzanian or Kenyan)
Palestine Special HO policy Decision by Principle Tribunal Judge – HO should help Refugee Action does not operate a return scheme to Palestine Need travel document issued by Palestinian authorities. Need to have ID card or ID card number AND person in Occupied Territories to apply for Passport. Palestinians who have never lived in Occupied Territories (for ex Lebanese refugee camps) don’t have ID card/number Delegation in London Nationality dispute is common (Egyptian)
Iran Return only with an valid Travel Document. Need documentation to prove nationality. Some of these can only be obtained from within Iran which can be difficult to do. BUT consulate is now open in London and are apparently being very helpful. Refugee Action are now assisting people with AVR and re-documentation.