By Tabitha Everett – Legal Associate
Both humanitarian protection and refugee status are forms of leave in the UK that are granted to applicants who are endangered or otherwise in need. In short, the two are very similar, and both ensure permission to stay in the UK for five years with a view to settlement afterwards.
In order to be granted refugee status, an asylum seeker must meet the requirements of paragraph 334 of the immigration rules: Refugee status will be granted to an asylum seeker if:
- they are in the United Kingdom or have arrived at a port of entry in the United Kingdom;
- they are a refugee, as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006;
- there are no reasonable grounds for regarding them as a danger to the security of the United Kingdom;
- having been convicted by a final judgement of a particularly serious crime, they do not constitute a danger to the community of the United Kingdom; and
- refusing their application would result in them being required to go (whether immediately or after the time limited by any existing leave to enter or remain) in breach of the Refugee Convention, to a country in which their life or freedom would be threatened on account of their race, religion, nationality, political opinion or membership of a particular social group.
The Refugee or Person in Need of International Protection (Qualification) Regulations 2006 points to the Refugee Convention to provide the definitive definition of ‘refugee’. A refugee is defined in Article 1A(2) of the Refugee Convention as a person who:
“…owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group of political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
If someone is deemed to be a refugee according to the above definition, then Article 33 of the Refugee Convention prohibits that person from being expelled or returned to the country where their life or freedom would be threatened on account of one of the reasons above. If the refusal of an asylum application would result in this happening – known as “refoulement” then that person is a recognised refugee and will be granted refugee status. This means they have five years of permission to remain in the UK. Refugees can work, study and access the NHS. Refugee status is a route to settlement. This means that after five years, a refugee is entitled to apply for indefinite leave to remain in the UK.
The first thing to note is that Humanitarian Protection is only considered by the Home Office if an Applicant is deemed to not meet the relevant criteria to be granted asylum. Humanitarian Protection is covered in the Immigration Rules at paragraphs 339C and 339CA. A person will be granted humanitarian protection in the United Kingdom if the Secretary of State is satisfied that:
- They are in the United Kingdom or have arrived at a port of entry in the United Kingdom;
- they do not qualify as a refugee as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006;
- substantial grounds have been shown for believing that the person concerned, if returned to the country of return, would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail themselves of the protection of that country; and
- they are not excluded from a grant of humanitarian protection.
Serious harm includes the death penalty or execution, unlawful killing, torture or inhuman or degrading treatment or punishment, and “serious and individual threat to a civilian’s life by reason of indiscrimnate violence in situations of international or internal armed conflict.”
Similarities Between Humanitarian Protection and Refugee Status
Many things about refugee status and humanitarian protection are the same. Both of these grant applicants with five years of leave to remain in the UK and allow them to apply to settle after five years. Both statuses entitle people to work, study, use the NHS and access benefits.
Differences Between Humanitarian Protection and Refugee Status
An important difference is that someone seeking Humanitarian Protection does not need to be at risk of harm for a specific reason such as their race, religion or political opinion. For example, humanitarian protection might be granted if someone is fleeing a war zone and they are at risk of being caught up in indiscriminate violence.
Defence to Prosecution
Those with humanitarian protection do not have the same level of protection against punishment if they enter the country illegally. Section 31 of the Immigration and Asylum Act ensures that there is a statutory defence available to refugees who enter the country illegally. People who are granted humanitarian protection do not have access to an equivalent defence.
Revocation of Refugee Status and Humanitarian Protection Status
If the Home Office wishes to revoke a person’s refugee status, the Immigration Rules require the Home Office to notify the United Nations High Commissioner for Refugees, and to provide an opportunity for the UNHCR to present views on the matter that must then be considered. People with Humanitarian Protection are not entitled to the same provision.
Travel with Refugee Status and Humanitarian Protection Status
People with Humanitarian Protection are not allowed to apply for a Convention travel document. Convention documents are issued to refugees and they are viewed as equivalent to a passport. Those granted Humanitarian Protection have to rely on normal passports instead of being issued a separate travel document. The other option available to those with Humanitarian Protection is to apply for a document called a Certificate of Travel. Applications for a Certificate of Travel have to be well-evidenced; they can be difficult to obtain and they are not hugely useful because few countries recognise and accept them.
Victims of Domestic Abuse
If someone comes to the UK as a partner of a refugee, and then their relationship breaks down due to domestic violence, they can apply to continue living in the UK. The partners can still apply for indefinite leave to remain in the UK; their visas won’t be terminated by the separation. The partners of people with Humanitarian Protection are also entitled to come to the UK to join their partners, but if they are victims of domestic abuse once they arrive here, they are not protected under the immigration rules in the same way, and their visas may be terminated.
Ultimately, Refugee Status and Humanitarian Protection offer many of the same rights and privileges. In subtle ways, however, refugee status provides more stability for those granted. There is still an important place for Humanitarian Protection. It acts as a safety net to ensure protection for those who are not classified as refugees.