Settlement as a Refugee or person with Humanitarian Protection

In this post we explore the requirements for obtaining settlement once you have completed 5 years in the UK as a refugee or person with humanitarian protection. 

Does it matter whether I have Refugee or Humanitarian Protection status?

The Home Office generally assesses whether the criteria for Refugee status is met before considering whether Humanitarian Protection applies. Refugees must demonstrate a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”. For more information on refugee status, see blog posts here and here. Comparatively, with Humanitarian Protection, the real risk of suffering serious harm in your country of origin can arise from simply living there e.g. where it is a conflict zone.  In terms of your route to settlement, there is no difference as each status gives the individual a residence permit with leave to remain for 5 years.

Residence permit requirement 

Your residence permit must not have been revoked or not renewed. The reasons for revocation and non-renewal for refugees are found in the Refugee Convention, but similar factors apply to those with Humanitarian Protection under the Immigration Rules.

If the Secretary of State is satisfied that any of the following apply, you may lose your permit:

• You have voluntarily re-availed themselves of the protection of the country of nationality;
• Having lost your nationality, you voluntarily re-acquired it;
• You acquired a new nationality, and are protected by that country;
• You voluntarily re-established yourself in the country which you left owing to a fear of persecution;
• The circumstances in connection with which you were recognised as a refugee or in need of humanitarian protection have ceased to exist. 

It is notable that for the Secretary of State to prove a change of circumstances such that it is unreasonable for the individual to refuse protection in their national country, it must be a significant and non-temporary change. Therefore, events such as elections which theoretically remove a risk to a political refugee, may not count until proven to be long-lasting. The UNHCR Committee Conclusion emphasises that “an essential element in such assessment by States is the fundamental, stable and durable character of the changes, making use of appropriate information available.” The Home Office update their policy on specific countries regularly and are worth checking – guidance for Brazil, Somalia and Egypt have all been published this month.

If the Secretary of State is satisfied that any of the following apply, you are excluded from protection and may lose your permit:

• There are serious reasons for considering that you have committed a crime against peace, a war crime, a crime against humanity, or any other serious crime or instigated or otherwise participated in such crimes;
• There are serious reasons for considering that you have committed, prepared or instigated acts contrary to the purposes and principles of the United Nations or have committed;
• You have used misrepresentation, submitted false documents, or omitted facts which were decisive for the grant of status;
• There are reasonable grounds for regarding you to be a danger to the security of the UK;
• You have been convicted of a particularly serious crime and constitute a danger to the community of the UK.

Challenging revocation

The Home Office has the burden of proof when revoking status but the relevant standard of proof is low: ‘reasonable degree of likelihood’. You have an opportunity to make representations on why your status should not be revoked, and there is a right to appeal if revocation occurs. 

Article 1C(5) and (6) of the Refugee Convention provide an exception to revocation where a refugee invokes “compelling reasons arising out of previous persecution” for refusing to accept the protection of their country of origin. This means that even if there is no longer a real risk of persecution, you may be able to argue that your status should not be revoked. According to Home Office guidance this could include where you were severely traumatized by your experiences.

Character requirements

You must not have been convicted of an offence where you:

• Were sentenced to imprisonment for 4 years or more;
• Were sentenced to imprisonment between 12 months or 4 years and less than 15 years has passed since the sentence ended; 
• Were sentenced to imprisonment for less than 12 months, and less than 7 years has passed since the sentence ended; or
• Received a non-custodial sentence or other out of court disposal (e.g. a penalty notice or caution) that is on your criminal record, and less than 2 years has passed since receiving this;
• Are considered by The Secretary of State to have caused serious harm by your offending 
• Are considered by The Secretary of State to have persistently offended and shown a particular disregard for the law.

Additionally, the Secretary of State must not consider that it is undesirable to grant settlement in light of any other conduct, character or associations or the fact that you represent a threat to national security.

When should I apply?

You should apply before your leave to remain expires. Applications are only processed a month before current leave expires so if you apply earlier, your application will be held until then. If you apply late, you will be considered an overstayer and liable to be removed from the UK. If you apply within a month from the expiry and/or there are reasonable mitigating circumstances why you could not apply earlier, this should not affect your application. However, if made over a month after, or when asked by a Home Office official to do so, you should explain the reasons for the delay and there will normally be a more in depth review of whether protection is still needed. 

Who else can apply with me?

• Your children who are under 18 born abroad or in the UK;
• Your child who is over 18 or partner if they were included as your dependant when your leave was granted or through the family reunion scheme;

You cannot include a dependant if they are in the UK without permission or have permission to be in the UK in another category. If you or your dependant are refused settlement, only that individual’s application will be affected. 

Appeal

Where the original grant of protection is unchanged but settlement is refused – such as on grounds of criminal convictions – there is no right of appeal. You will be granted more leave to remain in 3 year periods, and can reapply each time when your period is expiring, until you are eligible. 

Contact our Immigration Barristers

For expert advice and assistance with your refugee settlement or asylum application, contact our immigration barristers in London on 0203 617 9173 or via the enquiry form below.