Asylum, Humanitarian Protection & Refugee Applications

For these kinds of applications, the applicant will have to demonstrate that they have a substantial fear of prosecution in their country of origin based on:

• Ethnic background
• Religion
• Place of origin
• Affiliation or membership of a social group
• Political views

The success of asylum (Asylum, Humanitarian Protection & Refugees) claims in the light of the points mentioned above would normally depend on whether the UKVI believes in your story. If you can show that you are facing serious harm or intimidation in your application, you chance of success will be higher. Importantly, a refusal of your application by the Home Office can still be challenged by way of an appeal, which would also depend on whether the application is certified or not.

In some cases, the Home Office may certify the application as clearly unfounded. What this means is that the application was submitted purely for the sake of it. If your application is certified, you will then have to return to your home country to appeal the decision. However, you may still be able to challenge that decision in-country through a Judicial Review.

For asylum applications, the evidence of persecution doesn't have to show that the persecution currently exists. Applications may still be lodged if there is a possibility that persecution will occur as a result of the points mentioned above.

Claims are usually argued based on your rights under the Human Rights Convention of the EC (ECHR). The convention states that you have a right to be free from all forms of torture and cruelty, as well as any other humiliating treatment. It further asserts your right to privacy and family life.

If your application is successful, your entry clearance application will normally be granted for 5 years in line with the terms of protection you need. If you have remained in the country for over 5 years as an asylum seeker, refugee or person seeking humanitarian protection, you may be eligible for settlement (Indefinite Leave to Remain).

Please note, that your status as a refugee or an asylum seeker will be lost if you go back to the country you claim to be fleeing. You are not expected be away from the UK for a period exceeding 2 years or break UK law - your asylum, refugee or humanitarian status will be lost if you do so.

Asylum Claims

Asylum is a protection given by a country to individuals who have fled their country of origin for fear of being persecuted. However, for an individual to be identified as a refugee he must have fled his country of origin and cannot return due to a justifiable fear of persecution - this is established under the United Nations Convention of 1951, which relates to the Status of Refugees.

The commitment of the UK to the European Convention on Human Rights makes it necessary for the British authorities to not send individuals to a country where there is a possibility of them being exposed to inhuman treatments such as torture, punishment etc. upon their return.

In a situation whereby the asylum seeker does not meet the requirements to be granted asylum, the applicant may be allowed to reside in the UK on a temporary permission to remain based on the Secretary of State having perceived humanitarian (or other) reasons as to why the Home Office should reconsider the situation.

An asylum applicant in accordance with the Immigration Rules is an individual who:

• Has requested recognition as a refugee under the Geneva Convention on the condition that if required to be removed from or leave the UK, it will be a violation of the obligation held by the UK under the Geneva Convention
• Has made an "application for Asylum" requesting international protection

Meanwhile every individual is permitted to apply for Asylum in their own interest.

Criteria For Grant Of Asylum

For an individual to be granted Asylum, the Secretary of State must be satisfied on some issues in accordance to the Immigration Rules. These issues are:

• That the individual is present in the UK or has arrived at any official port of entry
• That the individual is a refugee as identified in the regulation 2 of the Refugee or Person in Need of International Protection (Qualification) Regulation 2006
• That there is no real reason to consider the individual as a threat to the security of the UK
• That the individual, having been convicted of a severe offence, does not constitute danger to the UK's community
• That by refusing the individual's application, they would be demanded to leave the UK immediately or when their leave to remain has expired; which would be a violation of the Geneva Convention because the individual will face threats on account of nationality, political affiliation, race, religion etc. on their return to their home country

An individual might have a justifiable fear for persecution and harm on the basis of the occurrences having happened since the individual's departure from the country of origin, and/or on the other hand, the activities that the individual has been engaged in since the departure from the country of origin, especially if these activities aid in the continued arraignment and incarcerations (as well as orientation) occurring in the country of origin.

Unaccompanied Children

Children without the company of legal guardians may apply for asylum if there is a possibility that they will face endangerment; their cases are treated as priority and with serious concern by the Home Office. Although it is stated in the Immigration Rules that any individuals of any age may be qualified for being granted asylum as contained under the Convention, that the rules apply equally to all applicants. The maturity of the individual is considered whilst assessing the claim of the individual; but in the case of the minors, priority is placed on factual evidence of risk rather than the child's mental state and perception of their situation. If an asylum application is made on behalf of the minor, The Home Office is always obliged to pay close attention to the well-being of the child instead of deciding based on the child's age, their ability to understand their situation or their capability to have a justifiable fear of persecution.

Any minor over the age of 12, who has, as a result of their own claims, formally requested for Asylum, will be scheduled for an interview by the Home Office Immigration Officer to identify the validity of their claim. Only in circumstances where the child is unable or is in too poor a condition, the child will not be interviewed. The interview is conducted in the presence of a parent, guardian or another adult person independent of the Secretary of State who is responsible for the child. There is always a great tendency that the child during the interview might feel shy or frightened, which makes it necessary that the interviewer be a professional in handling such issues. The child will, however, be allowed to express themselves in a way which feels most comfortable and at the time which best suits them. The interviewer is therefore bound to stop the interview if the child shows sign of exhaustion or distress.

Transfer Of Refugee Status

Individuals of refugee status who have been offered Asylum by another country are under obligation to submit to the standard immigration control. In some exceptional cases, the UK assumes responsibility for the protection of the individual and as such offer their leave to remain as Refugees in the UK.

Individuals who are identified by the UNHCR as refugees under its mandate (i.e. mandate refugees, as opposed to conventional refugees) who have not been offered asylum by a country are not permitted to apply for a transfer of refugee status.

Individuals who have been recognized as refugees in another country but still wish to enter the UK as refugees can do so by any of these two options:

• By making an application transferring their refugee status from the host country to the UK
• By making a claim for Asylum based on fear of persecution in the host country if they still fear persecution in that country

For a transfer of refugee status under the first option above, it will involve consideration outside the rules under the discretion of the secretary of state. On the other hand, an Asylum claim will fail to be taken into consideration under the Immigration Rules in the second point like every other claim for Asylum but will also be liable for consideration under the removal procedure of the Safe Third Country. More so, some applications will not be considered because of the UK's commitment under the European Agreement on the Transfer of Responsibility for Refugees (EATRR), and the existence of a formal consent of validity to the EATRR by the country that acknowledged the applicant as a refugee. Please note, that the European Agreement on the Transfer of Responsibility for Refugees (EATRR) is a council of Europe Agreement and is not a part of the domestic laws of the UK.

The European Agreement On The Transfer Of Responsibility For Refugees (EATRR)

There are few criteria through which the UK will agree to transfer of responsibility for a refugee in agreement with the EATRR, granting them leave to remain.

These criteria are as follows:

• That the individual is legally residing in the UK on the condition that they are not an illegal immigrant or have not illegally stayed beyond permitted time, and is not making the application abroad or at a port
• That the individual has, under the 1951 convention or the 1967 Protocol, by one of the other countries that has formally consented the EATRR been granted the status of a refugee.
• That there has been an event of transfer of responsibility

Deemed Transfer of Responsibility under the EATRR

Transfer of responsibility of an applicant will be considered to have occurred if, in addition to the first two of the above conditions, the following criteria below are fulfilled:

• The individual in accordance to the authorities has successfully spent two years continuously in the UK
• In accordance with the authorities in this circumstance means:
  • With leave, apart from the leave in any of the excluded categories listed below:
  • Waiting for the UKBA's decision on the application for leave rather than any of the excluded categories listed below.
• The addition to the qualifying period in this category is all visits the applicant has made to other countries for less than three months in succession or six months in total

1. The time an individual spends incarcerated due to being convicted for criminal offences or an unresolved appeal against an immigration decision which was dismissed eventually do not count as part of the two years qualifying period
2. Leave of entry granted for the primary purpose of studying, receiving treatment or training is part of the excluded categories which will not count as part of the two-year qualifying period, whereas leaves in other categories will not be excluded and as such will be counted
3. Any leave awarded to the applying individual, which will grant them permanent residence in the UK like in circumstance where the individual has been granted permanent leave to remain; the individual is not entitled to apply in this category
4. If the individual has been authorised to reside in the UK beyond the validity of travel document issued by the host country. Given the authority to reside should be explained within the context of the advice with the agreement of the authorities as stated above. More so, this condition will not be met under these circumstances:
   • That the extension was authorised mainly for the purpose of study or training
   • That the involved individuals can still re-enter the host country. If the UK requests re-admission in the space of six months within which the applicant's conventional travel document expired, the applicant will be re-admissible to the home country. In a situation where the locations of the individual are not defined in a way that the for application to re-enter the Home country cannot be done within six months of the travel document's expiry, especially in situations where the individual is an illegal entrant. This request, however, might be made within six months of the individuals being noticed by the authorities of the UK, in as much as it is within two years of expiry of the travel document

If an application is not refused under the EATRR, the application will also be considered under the discretionary basis outside of the EATRR.

Discretionary Cases

The reasons why some applications for the transfer of refugee status does not fall under the EATRR provision is because the individual has been acknowledged as a refugee by a country that has not signed the EATRR, or because the refugee does not fulfil the terms of the EATRR. On these aspects, consideration should be distinctive by treating each case uniquely.

The responsibility for such situation should not be transferred on the basis that the applicant just wishes to reside in the UK; rather it should be accepted if the UK is the most suitable place for long term refuge of the applicant.

These applications should be done at a British diplomatic post in another country, a port or within the UK. Interviews in this case are not necessary determinants for the refusal of an applicant's application. Furthermore, if the caseworker is uncertain about any aspect of the individual's application, they may schedule an interview to clarify issues, as well as gather more information.

While the caseworkers evaluate these applications, certain factors come into play. These are as follows:

• The length of time an individual spent in the first country of stay in comparison with the length of time spent in the UK
• The strength of family ties or other affiliations the individual has with the host country compared with the UK
• Sympathetic circumstances that will evoke irresistible interest or attention

Legacy Cases

Before July 2011, asylum claims that have been made before 05-03-07 and had been 'unresolved', which meant that there were still actions pending on their cases, were now having their cases resolved. The criteria here were more lenient than under the main immigration rules.

We saw that people who would normally not get Indefinite Leave to Remain (ILR) were now getting ILR based on Article 8. Note that this was not necessarily a case where the floodgates were open to everyone who had a pending application, as there were still migrants who were removed from the UK under the legacy cases provisions. However, the majority of the decisions normally led to ILR.

Importantly, the Home Office have not specified the criteria upon which legacy cases are being decided. This presents a case for arbitrariness. How it is that one person gets ILR and the other person does not? This presents point of law for solicitors to scrutinise decisions in line with similar cases in the court of law.

Issues under legacy cases include matters relating to a refusal of ILR applications under 10 years long residence and/or article 8 issues, delays in making decisions, granting discretionary leaves rather than ILR, and so much more.

What Are Legacy Cases?

The UKBA have offered very little information on Legacy cases, making it relatively difficult to come up with an encompassing definition which accurately defines Legacy in meaning and accuracy. The best definitions however will include outstanding cases where asylum claims have been made at some point but has not been considered under the New Asylum Model. Where outstanding cases refer to cases where applicants have not been granted leaves but remain resident in the UK.

Case Resolution Directorate (CRD)?

The Case Resolution Directorate (CRD) of the United Kingdom Border Agency has been able to conclude an analysis of older asylum cases (also called Legacy cases). Though a small number of these cases have been analysed, the conclusions of the cases are still being expected.

Examples of such expectant conclusion cases include:

• Cases expecting prosecution
• Cases expecting removal (inclusive of a few cases requiring additional casework before concluding removal action is taken)
• Cases still in process of legal proceedings
• Cases where the CRD could not track down the applicant and as a result have placed the case in a controlled archive

Please note that this list is not exhaustive.

However, due to the quality of data at the time of making the asylum application, some cases have been omitted from the original CRD review.

Case Assurance and Audit Unit (CAAU)

For a case to be considered by the Case Assurance and Audit Unit (CAAU), the UKBA would have contacted the applicant and removed their case from the controlled archive. In a situation where contacting the applicant was not possible by the CRD, there is a probability that the case was placed in the controlled archive.

Discretionary Leave Based On A Rejected Asylum Claim

An individual, who has been offered Discretionary Leave to remain in the UK because they were rejected an asylum claim application, can make an application to extend a Discretionary Leave by completing the DL application form.

An individual, who has been initially offered Discretionary Leave to remain in the UK as a result of the rejection of their asylum claim application and then extension of the same application for an additional 3 years, can make an application for ILR when they have completely elapsed 6 years in the UK. This application for ILR can also be made by completing and submitting the DL application form.

ILR - Humanitarian Protection

In a situation whereby an individual does not meet the criteria to be granted refugee status in the UK but needs protection, they can be granted Humanitarian Protection. The Humanitarian Protection is granted if the individual on his return to the country faces serious risk of life or person, which could arise from:

• the death penalty
• unlawful killing
• torture or inhumane or degrading treatment/punishment

If you are in a situation where you are fleeing your country of nationality as a result of persecution, you may be able to seek Humanitarian Protection from the UK government.

Please note that this area of law is very complex, and it is very important to seek legal advice if you want to proceed on this route. It is also important to inform you that public funding (or what is known as legal aid) is available for both asylum and humanitarian protection applications.

There is a significant difference between an asylum and a refugee protection. However, the definition of what a protection claim is revolves around a claim that acting to remove the claimant from the UK would be in breach of the UK's obligation under the refugee.

Other firms of protection include:

• Article 3 protection
• Protection based on statelessness
• Protection for those who have been subjected to trafficking

Difference Between Asylum And Humanitarian Protection

Asylum has 5 conventional reasons. You can only claim asylum on 5 grounds:

1. Nationality
2. Race
3. Religion
4. Member of a particular social group
5. Political or imputed political opinion

Humanitarian protection is a claim where you don't have a conventional reason, but you can still establish that there is a real risk of serious harm to your life or safety.

Essentially, they both mean the same thing - one is specific while the other is more generic. You cannot claim asylum if it is not under any of the conventional reasons (stated above) - however, if you still need international protection, you can apply for protection on a humanitarian basis.

More importantly, the Home Office considers them interchangeable.

If an application for humanitarian protection is granted, the applicant will normally be granted leave for 3 years. Having completed 5 years under humanitarian protection in the UK, you may qualify for settlement. It is important to note that settlement is not granted automatically just because you have spent 5 years - you must show that you continue needing humanitarian protection or can justify your grant of further leave.

Indefinite Leave To Remain (ILR) As A Refugee

The ILR as a refugee application can be submitted to the Home Office, UKBA on the foundation of the 5 years of residing in the UK as an acknowledged refugee, as is contained under the 1951 United Nations Convention Relating to the status of refugees. This application should be made using the Form SET (Protection) and submitted to the Home Office, UKBA within 30 days from the date at which your leave to remain in the UK as a refugee expired.

Late application will lead to termination of your authorized leave to remain as a refugee in the UK; the Home office, UKBA will then carry out a critical review of your case, which may lead to the revocation of your status, and your removal from the UK. Note that there is no Home Office fee attached to the SET (Protection) application form.

It is important to note that the migrant is now required to undergo an official review after 5 years to obtain ILR under this route. This development was met with reservation as it implies kicking refugees back to the countries they were fleeing from. Understanding that the Home Office granted their initial refugee application based on having shown that they were indeed fleeing persecution or conflict adds a different perspective.

Maurice Wren, the Refugee council's chief, opined that this would effectively be tantamount to the Home Office issuing a death certificate to these refugees and that the government should be more sensitive about what it really means to grant them protection, with this new rule (in principle) going against the core tenets of refugee protection.

It is also important to note, especially if you are looking to make the application yourself, that the right form to use is the Form SET (Protection Route) - this can be downloaded from the Home Office website. Submitting the wrong form will result in your application being returned as invalid.

Also, there is no extra fee payable when applying for ILR or settlement under this route. You should also endeavour to retain a copy of your immigration status document before submitting the form, as well as any associated document by registered post.

Generally, applications would take around 6 months. However, this date may vary depending on the volume of applications at the Home Office. Currently 95% of applications are processed within 6 months. It is also important to note that your records will be checked with the police. Persons with strong convictions are likely to have issues especially when applying for a passport. Should you need any immigration help, please speak to one of our immigration solicitors today for a free consultation.