Asylum-Seekers and Refugees
There are many geo political conflicts around the world and many people flee their homes and their own countries for many reasons and seek the protection of the UK government. A person who seeks protection from the UK Government against persecution in his own country is referred as an Asylum-seeker.
Once an Asylum-seeker’s protection is approved or granted by the Home Office he would acquire the status of a Refugee
An Asylum seeker may also be granted a protection on Human Rights grounds as well, which is commonly referred to as Humanitarian Protection or Discretionary Leave
Anybody in the UK can apply for asylum, irrespective of his/her immigration status, it could be a student, visitor, over stayer even an illegal immigrant with or without any documents. Currently, the Home Office aims to decide a claim within the 1-month time frame.
An asylum seeker may have to call the Home Office and book an appointment. A solicitor can be present at the first interview which is known as a screening interview. In the screening interview, the asylum seeker’s identity and nationality will be established and he may have to answer a few questions in regards to his claim. His finger prints and photographs are also taken at this stage
A person may face persecution from different sources, it may include governments and state or state bodies such as the Army or Police. A person may have a fear of persecution from non-state actors. Non-state actors are people who are not related to Government. Examples of non-state actors may include, political, religious and racially intolerant groups.
It may also occur due to someone’s race, religion, nationality, political opinion, by being a member of a particular group. It is important that to claim asylum the person has to leave his country of citizenship.
Where an asylum seeker meets the conditions of the Geneva Convention and other requirements, he is likely to be granted refugee status, however, the UK Government has the power and discretion in certain circumstances to refuse the claim of a person for asylum and may also forcibly remove him.
However, before the UK government can take such a decision it is obliged to consider the application of the asylum seeker on HUMANITARIAN grounds as well, where it is appropriate to do so.
- UK government can remove an asylum seeker where there is evidence and grounds for regarding him as a danger to the security of the UK
- Involved in serious crime
- Danger to the general public
Obligation of an asylum seeker
An asylum seeker is under an obligation or duty to disclose to the Secretary of State as soon as possible
- All material factors required to validate the claim
- It may include a statement of the reason for making such a claim, and
- All documentation which may disclose or provide information about his age, background, identity, nationality, country and place of previous residence, previous asylum applications, travelling history and other travel documents
- The burden to provide the evidence and explanations are on the Asylum-Seeker
Upon a successful claim, an asylum seeker is granted refugee status, which is normally for 5 years leave to remain in the UK. A refugee is free to work and he may also be able to claim some public benefits as well.
Curtailment of Status
A refugee’s status is subject to review, which may result in curtailment of status, cancellation or revocation as well. The Secretary of State has the power to withdraw refugee status from a person on the fulfilment of certain criteria. The Secretary of State also holds power to cancel the refugee status where it is acquired through false documentation, misrepresentation and where such an asylum seeker is a threat to national security
Human Rights Issues
A person may also claim the right to remain in the UK on the basis of Human Rights as his removal would be a breach of his private and family life in the UK and he cannot reasonably be expected to return voluntarily.
A person may have a claim on the basis of family and private life in the UK or where a person may have claimed that requiring him to leave the UK will result in violation of his EU convention rights in the country of return or he may be subject to inhuman or degrading treatment in the country of return or may suffer death or may be subject to unlawful detention in his country of return
Humanitarian Protection and Discretionary Leave
A person will be granted humanitarian protection in the UK where he fulfils the following criteria
- The person is in the UK or has arrived at a port in the UK
- The person does not qualify as a refugee or asylum seeker
- The person has shown substantial evidence, that if the person is returned to the country of return he will face real risk of suffering serious harm
- He is not excluded from a grant of humanitarian protections
By serious harm it means
- The death penalty or execution
- Unlawful killing
- Torture or inhuman or degrading treatment
- Punishment in the country of return
- Serious and individual threat to a private life in the country of return
- Subject of indiscriminate violence in the situation of international or internal armed conflict
Grant of Humanitarian Protection
Upon a successful claim, humanitarian protection is granted normally for 5 years, as leave to remain in the UK. Such a person is allowed to work and he may also be able to claim some public benefits as well. The grant is also subject to review and may be withdrawn in certain cases.
Most cases for discretionary leave arises due to asylum claims and some due to claim under human rights, where a qualifying criterion is met by an applicant. There is no separate application for discretionary leave. A person has to apply for either Asylum or for Humanitarian protection. Discretionary leaves is normally granted for 6 months and 3 years, depending upon the facts of the case. The discretionary leave can be extended
For a settlement, the applicant has to complete at least 6 years in total or in certain cases the time period is 10 years.
An unsuccessful claim can have a severe impact on the current status of a person, provided the person has some sort of status i.e. limited leave to remain. Where a person who has a limited leave to remain applies for asylum and his application is refused, the Home Office may consider whether his existing limited leave to remain meets the required criteria.
Appeals in the case of asylum are dependent on the outcome of the case. A person whose asylum case is refused outright will have no rights of appeal but in certain circumstances an appeal can be made to the First-Tier Tribunal. The appeal is a complex area of Immigration Law, please ask our experienced Immigration lawyer for further help and guidance.
In very limited circumstance, an applicant whose application is refused for asylum is allowed to make a fresh application. It is only allowed where there is significantly new material or facts have arisen which
- Have not already been considered in previous application
- And taking together the previous application and facts and this new development or facts a claimant has a realistic prospect of success
As many people have used the asylum process especially failed asylum seekers to extend their stay in the UK, the likelihood of a fresh application is very rare unless there are new facts which were not considered in the last application.
Asylum is a very technical area of Immigration law, it is advisable to seek professional help before making an application for Asylum. Legalally, has an experienced team of Immigration lawyers who will support and guide you throughout your immigration issue. Please refer to step 3 for further details
While every effort has been made to ensure the accuracy of the information provided in this article, it does not constitute legal advice and cannot be relied upon as such. Each legal case and issue may have unique facts and circumstances, as a result legalally does not accept any responsibility for liabilities arising as a result of reliance upon the information provided. For further help and guidance, you can always rely on and seek advice from our experienced lawyers.