Appeal - backdated CB for refugee - tribunal support?

I have been trying to help one of our clients to appeal a decision to backdate CB only to the date of her most recent asylum claim, which resulted in her being granted refugee status, and I am seeking to argue that she should be entitled to the Monday following her daughter’s date of birth (about 10 months more than what has already been backdated).

I am struggling a little to put together the arguments (each person’s asylum case and legal history is always so different, which scrambles things a bit!) and would really love some help with what I should do next:

The appeal was received in mid-April, and HMRC sent their response in late May, with the covering letter saying that the next step would be for HMCTS to arrange a hearing. I haven’t heard anything since and also haven’t proactively corresponded with the tribunal or HMRC since then either.

I was thinking of writing a response to HMRC’s response, but wasn’t sure if this was the done thing? (As I don’t usually deal with appeals at all, referring them onto a wiser benefits adviser by that point :)) Is it worth responding to their response?

Everyone deals with appeals differently, but yes putting in a written submission and any necessary evidence explaining why you are right and HMRC are wrong is absolutely the done thing.  You will want, in particular, to draw the tribunal’s attention to FK v HMRC [2009] UKUT 134 (AAC) which is authority that the backdating goes to the first claim for asylum.

Thank you! I’ve read through the FK v HMRC case and it is heavily featured in the appeal lodged earlier this year.

So I have drafted something to send back to the tribunal/HMRC which says that she should be entitled to CB back to her daughter’s birth - her daughter was born in January 2020, in between asylum claims submitted in November 2018 (which was refused and permission to appeal refused also), and October 2020.

Part of the complicating factor is that our client originally claimed asylum in early 2017 on the basis of religious-based persecution, and was then immediately trafficked and so her asylum claim was treated as withdrawn, and she as an absconder. She then claimed asylum in 2018, again on the basis of her religious activities, and at the time of her interview, because of what she had disclosed happening to her after arriving in the UK, a referral was made to the National Referral Mechanism, for her to be considered as a survivor of trafficking. This referral came back negatively, but is referenced in the Home Office’s decision refusing her asylum claim in 2018.

She then claimed asylum again in 2020, having had a solicitor properly challenge the negative trafficking decision, and she was by that point a recognised survivor of trafficking. Her asylum claim in 2020 was again refused, but appealed and successful at tribunal.

HMRC (with a witness statement from the HO) are arguing that her application for asylum in 2018 was refused on the basis that she had not established a well-founded fear of persecution in China on the basis of her religion, and then that her reasons changed - the asylum claim in 2020 was on the basis of her being a survivor of trafficking and this was successful at appeal granting her asylum in 2022.

However I was thinking to argue that the trafficking part of her asylum claim WAS mentioned in the refusal of her 2018 asylum claim, therefore meaning that this claim wasn’t solely based on the religious persecution, and that this 2018 claim did reference the circumstances for which she was ultimately recognised as a refugee). REGARDLESS of whether the Home Office had correctly identified her as a survivor of trafficking in 2018 or that this happened only later on (regarding events that had already happened, not new events between 2018-2020 when she was recognised as a survivor of trafficking).

This meaning that her circumstances were the same in 2018, and therefore that CB should be backdated to the date they first claimed asylum (in this case 2018, not the 2017 claim as that is irrelevant for CB anyway), where the claimant satisfied the conditions for refugee status at the time of their initial claim and their circumstances have not changed.

From Judge Jacobs in FK v HMRC: “14. It is possible that a claimant’s refugee status may depend on events that occurred after the initial claim for asylum. If that were so, the status would only exist from that later date. That, however, is not what has happened in this case.” - I think the same applies here, does this make sense to argue?

Yes, the point would be that when she arrives back in the UK in 2018 as a victim of trafficking, she is a refugee for the purposes of the Refugee Convention as has now been belatedly acknowledged. The fact that she may have originally articulated her claim in a different way to that which was ultimately successful seems to be besides the point for present purposes. All the facts which were relied on to establish status existed back in 2018.

That of course wouldn’t be true if you were trying to establish backdating to 2017, when the facts were different and the claim based on religious persecution is, at its highest, unresolved. But you don’t need to do that.

We are not dealing with a case in the Immigration Tribunal and the precise procedural niceties of what went on shouldn’t be allowed to distract from the central point.