The UK Border Agency (UKBA) can make one of the following decisions on an asylum or human rights application after full consideration. See the Asylum Policy Instructions for further details.
Refugee status
The UKBA grants refugee status when it considers that someone meets the refugee definition as set out in Article 1 A(2) of the Refugee Convention. Asylum applicants recognised as refugees are issued with a letter confirming their refugee
status.
An asylum applicant granted asylum gets limited leave for five years. At the end of the five-year period of limited leave, the UKBA will review their case to see if the situation in the person’s country of origin has changed and if they can therefore no loner be considered to be in fear of persecution. If this is the case, the person could face removal. If not, they should be granted indefinite leave to remain subject to passing a language test.
During the first five years refugees do have full entitlement to family reunion, welfare benefits, housing and health care. Refugees also have the right to work.
See rights and entitlements for people recognised as refugees.
Humanitarian protection
People who do not meet the refugee definition, but who on return either face a serious risk to their life, the death penalty, the risk of being killed unlawfully or of being subjected to torture or other inhuman or degrading treatment, qualify for humanitarian protection (HP).
In the past, the UKBA would grant people in need of protection for these reasons either exceptional leave to remain (for in-country applicants) or exceptional leave to enter (for port applicants) for a period of four years. ELR/ELE was a status not set out in the immigration rules as it was only given on a discretionary basis.
There are diminishing number of people who got ELR for four years after the refusal of their asylum claims in the late 1990s and early 2000. It is Home Office policy to grant them indefinite leave to remain after their ELR expires unless they have a criminal record.
From 01 April 2003, the UKBA replaced ELR/ELE with HP and discretionary leave (DL). Both HP and DL continue to fall outside the immigration rules and are there fore granted on a discretionary basis. The UKBA normally first decides if someone does not qualify for asylum qualifies for HP. If they don’t qualify for HP, it will consider whether to grant DL.
People granted HP before 30 August 2005 were normally granted limited leave for three years and could apply for settlement before the leave period expired. The Home Office will actively review the case to see if the person still qualified for HP before granting indefinite leave.
People granted HP on or after 30 August 2005 normally get HP for five years. The Home Office will only review the case at the end of the leave period if there are specific reasons to do so. If not, people can apply for permanent settlement.
People can be excluded from HP if, for example, they have committed a serious war or other crime, or are considered to be a threat to national security.
Discretionary leave
The UKBA grants discretionary leave (DL) to applicants who do not qualify for refugee status or humanitarian protection but cannot be removed. This may be because they have a serious medical condition making travel or return dangerous, or because removal would contravene their right to a family and private life under Article 8 of the ECHR.
The UKBA may also grant DL in cases where the general conditions of the applicant’s home country are so poor – for example, absence of water, food or basic shelter – that returning the person would in fact amount to a breach of Article 3 of the ECHR. See the Home Office’s Asylum Policy Instructions on other categories of applicants who qualify for DL.
Discretionary leave is normally granted for three years, but there are exceptions. Unaccompanied children seeking asylum, for example, for whom no proper reception arrangements are in place in their home country, only get DL for three years or until they turn 17 and a half – whichever period is shorter.
People with DL can apply to extend their leave period. A person will not become eligible for consideration for settlement until they have completed six years of discretionary leave. The Home Office will actively review their case if they apply for extension or settlement.
Refusal
The UKBA may give the following reasons for refusing an asylum application:
Non-compliance
If an asylum applicant turns up late or not at all for an interview, or fails to comply with their reporting conditions, s/he may be refused on ‘non-compliance; grounds.
Lack of credibility
The UKBA may simply not believe a person’s story. Reasons include if an applicant did not apply for asylum at the earliest opportunity, if there are inconsistencies in his/her account of events, if s/he has used false documentation or if the applicant is reluctant to submit information.
No objective risk of persecution
The UKBA might accept the applicant’s credibility but may still refuse protection on the grounds that the situation in the country of origin has changed and that there is no longer a risk of persecution. Or they may argue that the treatment likely to be experienced is not severe enough to constitute persecution.
Safe third country
The UKBA can refuse an application at any stage in the process if it finds evidence that the applicant has come from or passed through a safe third country en route to the UK (for example, an EU member state). See Certification. See also Appeals for information on appeal rights after a refusal.
Other refusals reasons
The UKBA can also refuse an asylum application on the following grounds:
- The applicant does not need protection
This may be because other UN agencies may assist them already. Or because the applicant has close links with another country or holds dual nationality, in which case s/he is expected to seek protection there. If the applicant could have fled to another part of his/her country where s/he would be safe and could ‘reasonably’ be expected to settle, the applicant will also be deemed as not needing protection. This is known as ‘internal relocation’ or ‘internal flight’. - The applicant does not deserve international protection
This may be because s/he has committed crimes against peace, humanity or has committed a war crime or another serious non-political crime. The applicant may also have been properly prosecuted by the authorities in their country because of their involvement in criminal activities rather than persecuted in contravention of human rights. - The applicant is a danger to the security of the host country or public order
This list is not exhaustive, but only aims to give some idea about the types of cases the UKBA is likely to refuse.
Special immigration status
The Criminal Justice and Immigration Act 2008 introduced a new special immigration status (SIS) for foreign criminals and their dependants who cannot be removed from the country because of the UK’s obligations under the Human Rights Act 1998 (protection against torture, inhuman or degrading treatment). The conditions that may be imposed on a designated person may relate to residence, employment and reporting including the possibility of electronic tagging. SIS may be applied to any foreign national that has been convicted of, and imprisoned for, a listed crime or one for which he has received a two years sentence. In addition, it may be given to those who have been excluded from the Refugee Convention, under Article 1(F).
For more information about the special immigration status see Refugee Council briefing.
Removal
If any asylum seeker has been refused asylum or a human rights claim and exhausted all rights of appeal, the UKBA is likely to issue removal directions. They may issue the order in person and take the person straight to a removal centre pending removal.
Unaccompanied children and refusals
If the UKBA finds that an unaccompanied child or young person does not qualify for asylum or HP, its policy is not to remove the child from the UK unless the Home Office is satisfied that there are adequate reception and care arrangements in place in the home country. In this case, the minor gets limited leave in the form of DL for three years or until s/he turns seventeen and a half.
Until August 2008, the UKBA had a policy of granting up to 12 months leave to remain for children from non-suspensive appeal countries whose claims were refused. This policy has been withdrawn but the UKBA still has the discretion of granting 12 months leave but it will no longer do so on a routine basis. The policy will now be the same as for children from other countries that is to grant discretionary leave until children are 17 and a half years old, or for three years, whichever is the shorter.
See APU notice: Application of non-suspensive appeal process to asylum seeking children on the Home Office website.
As part of its five-year strategy for asylum and immigration, the UKBA is looking at ways to find alternative acceptable care arrangements in countries of origin that will help it to return unsuccessful asylum-seeking young people home before they turn 18.
Advice and assistance
Asylum seekers who wish to appeal against a refusal can get advice or representation from the Refugee Legal Centre, the Immigration Advisory Service, a private solicitor or a refugee community organisation. The Community Legal Advice directory lists solicitors with a legal franchise for asylum work or organisations who are exempt from registration and provide legal advice or representation.
