Positive decisions

Refugee status

A person is granted refugee status when the Home Office recognises him or her as a refugee according to its own interpretation of the criteria set out in the Refugee Convention.

Under international law, someone has to meet the criteria set out in the Refugee Convention to be recognised as a refugee. It is possible for an individual to be seen as a refugee under international law by the United Nations High Commissioner for Refugees (UNHCR), but may still not be recognised as a refugee by the Home Office, for example, those awaiting resettlement in UNHCR refugee camps.

The Home Office used to grant people it recognised as refugees with limited leave for four years. On 27 July 1998, it changed its policy and granted them indefinite leave to remain (ILR). ILR allows someone to stay in the UK indefinitely with no conditions associated with their leave. On 30 August 2005, the Home Office changed its policy again, now granting people recognised as refugees with five years’ limited leave.

See the Immigration Rules, paragraph 330 to 335 and the Asylum Policy Instructions on refugee leave on the Home Office's website.

The Home Office notifies asylum applicants of their grant of refugee status by sending them a letter marked ACD2151 and Grant of Asylum in the subject line.

Reviewing refugee status

The Home Office can review a person’s refugee status at any time during their period of leave and decide that they no longer qualify for refugee status. This could happen if, for example, the following applies:

• The person is no longer considered a refugee because of their own actions (this could be if they returned to the country where they feared persecution or if they acquired the nationality of another country other than their home country)
• The Home Office reviews the situation in the refugee’s home country and finds that the situation has changed such that the person no longer has a well-founded fear of persecution there, or
• The person has acted in a way which is against the Refugee Convention principles such as committing a serious crime

The review of the first cases of refugees with 5 years leave to remain is due in 2010. The Home Office is yet to announce how it will set about reviewing the cases. However, the Government announced that from 02 April 2007 all people ‘seeking to live in the UK permanently will have to pass English language and knowledge of life in the UK tests’. This brings settlement/ILR in line with the requirements for gaining British nationality.

Asylum seekers granted refugee status after 30 August 2005 will be affected by these changes. The changes mean that refugees applying for ILR after a successful review will need to have passed the Life in the UK test at ESOL Entry level 3 or above, or gained an approved ESOL qualification with citizenship materials at a local college if below Entry level 3. Refugees who have not satisfied one of the above will be given an additional two years leave to do so. At the time of writing, the Home Office has yet to clarify its position beyond this point.

Humanitarian protection

The Home Office grants humanitarian protection (HP) to a person who would face a real risk of death, torture, or other inhuman or degrading treatment. However, the Home Office will not grant HP to people:

• Who have committed a crime against peace, a war crime or a crime against humanity
• Who have committed a serious crime in the UK or overseas
• Who have been guilty of acts contrary to the purposes and principles of the United Nations
• Who are a danger to national security,or
• Whose character, conduct or associations lead the Home Office to exclude him or her from granting humanitarian protection

The Home Office can also grant HP to someone facing the death penalty or at risk of being killed unlawfully if returned to their country of origin. HP is a category in the Immigration Rules

See link to Humanitarian Protection on on the Home Office website.

Reviewing HP

A person who is granted HP on or after 30 August 2005 should be granted five years’ limited leave. During this time, the Home Office can review if someone continues to qualify for HP in more or less the same way as it can review grants of refugee status during the initial five-year leave period. If the Home Office decides to withdraw HP, it will consider if the person could be granted discretionary leave (DL) instead. If a person was granted HP before 30 August 2005, s/he would have been given three years’ limited leave and could apply for ILR before the limited leave period ran out - people who get HP now have to wait five years.

However, when applying for ILR, the Home Office will actively review their case. This involves:

• Looking at current situation in the applicant’s home country, and
• Considering the applicant’s character and conduct during their time in the UK

Discretionary leave

The Home Office can grant discretionary leave (DL) to someone, where it has already been decided that they do not qualify for refugee status or HP, but they cannot be removed for other reasons such as:

• Where removal would breach Article 8 (right to family life) of the European Convention on Human Rights (ECHR)
• Where the applicant has a serious medical condition such that their removal could amount to inhuman or degrading treatment, or if any other severe humanitarian issue applies
• Where the applicant cannot be removed for other practical or legal reasons

DL is a discretionary status because it is granted outside the Immigration Rules. People granted DL normally get three years’ limited leave but the Home Office can also grant shorter periods of leave. For example, when an unaccompanied child under 18 is refused asylum, the Home Office will grant DL and limited leave up until they turn 17.5.

Once a person’s DL expires, s/he must apply for extended leave. The Home Office will carry out an active review of the case and consider the following:

• Examine the applicant’s family situation if s/he was granted DL on the basis of the right to family life under Article 8 of the ECHR
• If the person with DL is applying for extended leave and is still under 18, it will consider if there are any adequate reception facilities overseas allowing the young person to be removed

• If the criteria for the original grant of DL still apply to the case
• If there have been any changes in the country the applicant is from which might warrant grants of HP or even refugee status

Appeal rights

When an asylum applicant is granted HP or DL, their application for asylum has actually been refused, and people can only appeal against the refusal to grant refugee status if the period of HP or DL they have been granted is for more than one year. This is called an ‘upgrade appeal’ and is set out in Section 83 of the Nationality, Immigration and Asylum Act 2002.

This is significant as refugee status brings greater rights for people as regards family reunion and travel. If an asylum applicant is not recognised as a refugee but is granted HP or DL, they should still be given the full reasons in the Home Office decision letter as to why their application for asylum was refused and on what basis they were granted HP or DL.