Forms of Leave to Remain in the UK
Refugee
The criteria used for deciding if someone should be granted asylum are contained in the United Nations 1951 Refugee Convention, which was designed to avoid a repeat of the genocide in World War II.
The Convention defines a refugee as someone who: 'owing to a well-founded fear of persecution on the grounds of race, religion, nationality, political opinion or membership of a particular social group 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' The UN Refugee Agency Website.
‘The Refugee or Person in Need of International Protection (Qualification) Regulations’ 2006 transposed (on 9 th October 2006) into UK law the provisions of ‘Council Directive 2004/83/EC of 29 April 2004 on the minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted’. These Regulations reiterate and up-date the terms of, and protections afforded by, the 1951 Refugee Convention.
The text of the Regulations can be viewed at:
http://www.opsi.gov.uk/si/si2006/20062525.htmRefugee Status and Rights in the UK
Prior to the 30th of August 2005, if an applicant’s asylum claim was successful he/she would be granted refugee status and indefinite leave to remain in the UK. However all successful asylum claims decided on or after 30th August 2005 will be granted refugee status and five years limited leave to remain in the UK, in line with the Government's Five Year Strategy for Asylum and Immigration announced in February 2005.
A review of the refugee’s status in the UK can occur anytime during the five years and can be triggered by one of the following:
- As a result of a refugee's own actions (or alleged actions) e.g by taking on another nationality or availing themselves of the protection of their country of origin, or acquiring refugee status as a result of deception or exclusion provided under Article 1F of the 1951 Refugee Convention.
- Where there have been signification change in country conditions
If the latter applies, the refugee will have an opportunity to make any submissions of their circumstances which the Home Office is obliged to consider before withdrawing refugee status.
If following a review, it is no longer deemed necessary that the refugee requires or is entitled to protection in the UK, their leave to remain will be withdrawn and leave curtailed under paragraph 323 of the Immigration Rules unless s/he qualifies for leave to remain under another category.
A final review will take place at the conclusion of the five year period when the refugee applies for settlement. The Home Office will not normally conduct a full review at this stage, although records will be checked to ensure the refugee has not been subject to reviews under the points noted above and the refugee does not have a criminal record. The Five Year Strategy also proposes to introduce tests of English and knowledge about life in the UK prior to granting settlement. However, full details regarding these tests are yet to be finalised.
The Home Office, Asylum Policy Instructions (API) on the revised grant of refugee status and limited leave to remain in the UK.
Applicants granted refugee status are entitled to claim social security benefits and are allowed to work. Their rights to services are unrestricted and they are able to access full health care facilities, education and state benefits. These rights have not changed as a result of the new policy to issue limited leave to remain in the UK for five years as opposed to indefinite leave to remain in the UK.
On 9th October 2006, the UK government transposed into UK law ‘Council Directive 2004/83/EC’ which sets out the minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted. This Directive can be accessed through the following link: http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?page=search&docid=4157e75e4 The terms of this Directive are similar, and have similar effect, to the Refugee Convention. Article 11 of the Directive deals with cessation of refugee status and in which circumstances this can occur. Article 14 sets out in which situations member states should revoke or refuse to renew a person’s status. Again, this is very similar to the rules as laid out above.
The Directive was transposed into UK law by the introduction of ‘The Refugee or Person in Need of International Protection (Qualification) Regulations’ 2006 and associated paragraphs of the Immigration Rules. Both of these have their bases in, and make reference to, the 1951 Refugee Convention.
The Gateway Protection Programme is a programme operated jointly by BIA and UNHCR. It is a relatively new programmed and provides a method of obtaining settlement in the UK for up to 500 genuine refugees every year. Applications under the programme are referred to BIA by UNHCR and are assessed from there.
Link to the Home Office guidance on the programme:
http://www.bia.homeoffice.gov.uk/asylum/claimingasylum/humanrightsapps/
Overseas Travel
People with refugee status are free to travel (except to their country of origin) provided they have the correct documentation. They can travel abroad and do not require entry clearance to return to the UK provided they return within the validity of their visa for refugees granted five years limited leave to remain in the UK.
In the case of refugees who have been granted indefinite leave to remain, if their absence abroad exceeds a continuous period of more than two years, their grant of indefinite leave to remain can lapse and they would need to obtain prior entry clearance as a returning resident through the British High Commission in the country they are visiting. There are specific rules in relation to this and prior legal advice should be sought if someone granted refugee status and indefinite leave to remain in the UK intends to be abroad for more than two years.
Refugees are not able to return to their country of origin. If they do return to their country of origin, this may be taken as an indication that they are not longer at risk there, and that their grant of refugee status can be revoked. This could result in them being refused entry on return.
Travel Documents
The Home Office Travel Document section can issue travel documents to those recognised as having refugee status. The Home Office will retain the refugee’s original passport if they hold a passport issued from their country of origin. Travel documents are not always accepted as valid for travel to other countries and advice should be sought from the relevant Embassy that the refugee intends to travel to.
The Home office policy on travel.
Leave to Remain on Human Rights Grounds
Since the introduction of the Human Rights Act 1998 in October 2000, people can be given leave to remain if returning them home would contravene the UK’s obligations under the 1950 European Convention on Human Rights, especially Article 2, the right to life and Article 3, the prohibition on torture and inhuman or degrading treatment. People may also be given leave to stay if returning them home would result in a very serious breach of other Human Rights Articles, eg. Article 8, the right to respect for family and private life. The main categories for getting leave to stay on human rights grounds are now humanitarian protection and discretionary leave, which have replaced exceptional leave to remain. All of these categories are explained below
Exceptional Leave to Remain (ELR)
Before April 2003, people who could not be returned to their home country for human rights reasons, but who did not meet the criteria to be classed as refugees, were given exceptional leave to remain. This was often granted for four years, at the end of which period an application could be made for indefinite leave to remain. In some cases, ELR was granted for one year or in the case of unaccompanied asylum seeker children until the child’s 18th birthday. Whenever limited leave is granted, it is extremely important to apply for an extension of that leave before the existing leave expires. If this is not done, the person will be treated as an illegal overstayer. This status is no longer granted and has been superseded by Humanitarian Protection and Discretionary Leave. It is still relevant because many people resident here will have ELR.
Humanitarian Protection (HP)
A person who does not qualify for refugee status may, since April 1st 2003, be granted humanitarian protection. HP is leave to remain granted to a person who would, if removed, face in the country of return a serious risk to life or person arising from a death penalty, unlawful killing, or torture or inhuman or degrading treatment or punishment. This reflects the UK’s obligations under Article 2 (the right to life) and Article 3 (the prohibition on torture) of the European Convention on Human Rights and Protocol 6 to the Convention (i.e. against the death penalty).
The Home Office policy on humanitarian protection.
Humanitarian Protection Granted after 30 August 2005
On 30th August 2005 the policy on humanitarian protection was revised in line with the new policies on the granting of refugee leave. However, the eligibility criteria remain the same.
People who are granted leave on humanitarian protection grounds on or after 30th August 2005 should be granted five years limited leave in the first instance, rather than three years as previously. A grant of this type of leave may be reviewed during this five year period where the person’s actions show that the need for protection has ceased, where evidence emerges that the leave was acquired by deception, where a person’s actions suggest that protection should not continue or where there is a significant and non-temporary change in the conditions in the country of origin.
Shortly before this five year period expires, a person will be able to apply for indefinite leave to remain in the UK. An in-depth review will not usually be conducted at this stage to determine whether the person is still entitled to humanitarian protection as long as the application is made before the existing leave expires. Background character and conduct checks will usually be sufficient. However, policy is currently being drafted which will require a person with humanitarian protection to pass English language and knowledge of British life tests prior to qualifying for indefinite leave to remain. In the event that this application is not successful, there will be a right of appeal, the details of which are currently contained in a Bill before Parliament.
Humanitarian Protection Granted Prior to 30th August 2005
HP is usually granted for three years and the person can, at the end of that period, apply for indefinite leave to remain (also known as settlement). Settlement will not automatically be granted, but only where the circumstances continue to justify further leave. Whenever limited leave is granted, it is extremely important to apply for an extension of that leave before the existing leave expires. If this is not done, the person will be treated as an illegal overstayer
Humanitarian protection will not be granted to those who meet the criteria for exclusion from the UK, which include the person’s presence not being conducive to the public good because of criminal behaviour or a threat to UK security. S/he may qualify for discretionary leave.
An application for settlement after 3 years will still be subject to 'Active review'.
Discretionary Leave (DL)
Discretionary leave is a more varied concept and will be granted to those whose removal would breach Article 8 of ECHR (the right to Private and Family life), people with Article 3 claims as a result of treatment they would suffer if removed, a medical condition, severe humanitarian conditions or if their removal would breach any ECHR article in general. Its varied nature means that it is a much wider concept than asylum, so it will not be dealt with in detail here (for more details, see 'Asylum a guide to recent legislation' by ILPA and the Resource Information Service, 2004 ISBN 1 871089 70 0). Discretionary leave may be granted to those who fall within the 'excluded' category (as described under the humanitarian protection guidance) for six months at a time. However, they may now also be granted no leave and instead kept or placed on temporary admission or release. Where no leave is granted, Ministers will make the decision in the light of all the circumstances of the case.
Discretionary Leave and Unaccompanied Minors
Whereas children used to be granted exceptional leave to remain for four years, and then were almost guaranteed indefinite leave to remain at the end of that period, unaccompanied minors are now granted discretionary leave until they reach 17 and a half years, and even then there is no presumption that indefinite leave to remain will be granted. The difficulties faced by a child who has spent his formative years in the UK and is then returned unaccompanied at the age of eighteen to a country where they recall trauma or civil war cannot be underestimated.
The Home Office guidance on unaccompanied minors also gives details of its policy on discretionary leave.
Discretionary Leave and Rights to Stay
The period of leave granted could be as short as six months and as long as three years.
Whenever limited leave is granted, it is extremely important to apply for an extension of that leave before the existing leave expires. If this is not done, the person will be treated as an illegal overstayer. Applications to renew discretionary leave are actively considered to see if further leave is justified. Once a person has held discretionary leave for a period of six years they can apply for indefinite leave to remain in the UK. The following rights are the same for those with exceptional leave to remain, humanitarian protection and discretionary leave; overseas travel, travel documents, family reunion, healthcare, work, welfare benefits, housing and homelessness and education.
The ‘Qualifications Directive’
The main categories for being awarded Leave to Remain on human rights grounds changed slightly (again) with the introduction of ‘Council Directive 2004/83/EC’ in October 2006. This Directive was transposed into UK law on 9th October 2006. Applicants can now simply apply for either refugee status or ‘subsidiary protection’. Paragraph 339C of the Immigration Rules sets out how a person can qualify for ‘humanitarian protection’(HP). This is what the UK government has decided to call the subsidiary protection available under the Directive so there is no real change apart from which rules one would apply under. The qualifications within the Immigration Rules for an award of HP are largely the same as they were before. One important advance, however, at para. 339C(iv), is the recognition of civil war type conditions as sufficient to constitute ‘serious harm’ for the purposes of the rule.
Discretionary Leave is not mentioned within either the Directive or the Immigration rules. It is imagined, therefore, that applications for protection under Article 8 and other relevant articles of the ECHR will be dealt with as before, carrying an award of DL with the same onward rights of extension as before.
Overseas Travel
People with one of the above mentioned forms of leave to remain in the UK are free to travel provided they have the correct documentation. The Home Office guidance is that those who return within the period of their original grant of leave will not require fresh leave on their return to the UK, provided they return within the validity of that leave. They will normally be re admitted, but 'there is no right to readmittance and there may be circumstances in which an immigration officer gives notice that s/he is suspending leave'. If they return to their country of origin, this may be taken as an indication that they will not case a risk there, and that their ground for getting humanitarian protection/discretionary leave no longer applies. This could result in them being refused entry on return.
Travel Documents
The Home Office Travel Document section can issue people with one of the above mentioned forms of leave to remain in the UK a travel document provided they meet certain requirements. They are called Certificates of Identity (CIDs) and are not always accepted as valid for travel to other EU countries. The new criteria require individuals to provide evidence they are unable to obtain a passport from their own local authorities and advise of the nature of their intention to travel abroad.
The Home office policy on travel.
Family Reunion
There is no automatic right to family reunion until a person has refugee status. Before that, applications will only be considered if there are compelling compassionate circumstances. Once refugee status has been granted, the immediate family consisting of spouse and dependent children under the age of 18 can apply for entry clearance to join their spouse/parent in the UK.
They would make the application at their nearest British Embassy/High Commission and will be required to provide proof of family member’s Refugee Status and their relationship to them, i.e. Birth and marriage certificates. In the event that these certificates are not available, the family may have to undergo DNA testing at the insistence of the British Embassy. Once the status and relationship elements are confirmed, the family members will usually be issued one way travel documents, for which the fee is usually waived in addition to the flight costs to the UK. In addition, unlike with regular family visit applications, there is no requirement for the family member in the UK to prove that they can maintain and accommodate the applicants without recourse to public funds.
As mentioned above, those with permission to remain in the UK on other grounds than refugee status, e.g. humanitarian protection, discretionary leave, or exceptional leave to remain, can also be considered for family reunion. The applications will not be as straight forward as for those with refugee status, but the Home Office has the capacity to exercise discretion in relation to certain elements and in certain specific cases.
For those with indefinite leave to remain in the UK, applications can be made by spouse and dependent children to join them in the UK. The differences between this application and family reunion, however, is that the ILR holder will have to satisfy the maintenance and accommodation requirements and the applicants will also require to obtain their own passports/travel documents and flights. These requirements can be waived in exceptional cases also.
Legal advice should be obtained from a solicitor or immigration adviser about family reunion. As mentioned above, agencies such as the Red cross may be able to help.
General Rights
People granted ELR/HP/DL are entitled to claim state benefits and are free to take up employment. Their rights to services are unrestricted and they are able to access full health care facilities, education, housing and homelessness legislation and have access to all legal rights and remedies.
Criminal Law
For some people with limited leave to remain, or who are subject to immigration control, a criminal sentence can include a deportation recommendation. Where this happens, detailed legal advice on immigration status is needed as the deportation proceedings may also affect the immigration status of the offender’s family and dependents.