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. (Some UK Statutes on Immigration and Asylum). People may also be given leave to stay if returning them home would result in a very serious breach of other Human Rights Articles. 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 This status is no longer granted and has been superseded by humanitarian protection and discretionary leave.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 1 April 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. API link on 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.

See also the Home Office guidance.

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 ½ , 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 under estimated.

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 www.redcross.org.uk

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.