You may have encountered references to asylum and humanitarian protection in news reports, yet grasping the precise nature of these terms might still elude you. Although both confer residency rights upon individuals facing persecution, it’s crucial to recognize that they stem from distinct legal frameworks. In the ensuing discussion, we will delve into the definitions of both concepts and elucidate their contrasting attributes.
What is Asylum or the refugee status?
Within the UK, the responsibility of evaluating an asylum seeker’s plea for protection rests upon the Home Office, a governmental department. This intricate evaluation process comprises multiple stages, each serving a distinct purpose.
To begin, officials assess whether an individual qualifies for refugee status. If they do, a choice must be made between two types of refugee status: “refugee permission,” valid for five years, or “temporary refugee permission,” offering protection for two and a half years.
If an individual doesn’t meet the criteria for refugee status, the decision-maker proceeds to evaluate the possibility of awarding humanitarian protection. If this option is also unavailable, the assessment extends to determining whether permission to remain should be granted based on an alternate section of the Immigration Rules or through other discretionary considerations.
An asylum seeker who fulfills the prerequisites outlined in paragraph 334 of the Rules of the Rules will be eligible for the grant of refugee status.
(i) they are in the United Kingdom or have arrived at a port of entry in the United Kingdom; and
(ii) they are a refugee, as defined in Article 1 of the 1951 Refugee Convention; and
(iii) there are no reasonable grounds for regarding them as a danger to the security of the United Kingdom in accordance with Article 33(2) of the Refugee Convention; and
(iv) having been convicted by a final judgment of a particularly serious crime, they do not constitute a danger to the community of the United Kingdom in accordance with Article 33(2) of the Refugee Convention as defined in Section 72 of the Nationality Immigration and Asylum Act 2002; and
(v) 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 the UK) in breach of the Refugee Convention, to a country in which they would be persecuted on account of their race, religion, nationality, political opinion or membership of a particular social group.
Let’s delve deeper into this. To qualify for refugee status, the individual must be present within the UK or at a port of entry. This implies that seeking asylum from outside the UK is not possible.
You might be curious about how can one seek asylum if visas aren’t granted for that purpose. This is a conundrum of the UK’s immigration & asylum policy which forces desperate and vulnerable people fleeing persecution to either take dangerous routes to come to the UK without a visa or use visas issued for other reasons, like visitors visa. However, there’s an exception for those brought to the UK through refugee resettlement programs, which is a complex process in itself.
Once an individual is within the UK or at a port of entry, they must align with the legal criteria defining a refugee. The Immigration Rules direct our attention to the Convention Relating to the Status of Refugees, established in Geneva on 28 July 1951, along with the New York Protocol of 31 January 1967. These are often colloquially referred to as the “Refugee Convention” or the “Geneva Convention.”
Article 1A of the Refugee Convention defines a refugee 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 or 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.
This definition holds profound significance, with each word undergoing meticulous scrutiny by legal experts, judges, and scholars. Of paramount importance is the requirement that an individual harbors a well-founded fear of persecution due to one or more of the “Convention reasons” of race, religion, nationality, or political opinion.
If it is established by way of evidence that the person genuinely fears persecution for those reasons and that they aren’t a security risk to the community, the crucial issue is whether rejecting their application could lead to them being sent back to a country where they might face serious harm or threats to their life or freedom due to a Convention reason.
If the response to this question is affirmative, then the individual will be acknowledged as a refugee and granted asylum aka the refugee status.
What does the refugee status give you?
Until June 28, 2022, being granted refugee status meant having the right to stay in the UK for five years. This included permission to work and study, and access to healthcare and social security. From that date onward, those who are granted the status might receive “temporary refugee permission” for two and a half years instead.
Refugees can apply to bring their family members stranded overseas to join them (family reunion), but those with temporary permission have some limits on this. Those with temporary permission also must wait for ten years before applying for settlement (“indefinite leave to remain”), whereas people with non-temporary refugee permission can apply for settlement after five years. This is assuming the risks in their home country haven’t significantly gone away.
Under what circumstances is one deemed eligible for the Humanitarian Protection?
If an asylum seeker doesn’t meet the requirements for refugee status, their case will be evaluated for the possibility of being granted humanitarian protection.
Humanitarian protection is outlined in the Immigration Rules under paragraphs 339C and 339CA as follows:
339C. An asylum applicant will be granted humanitarian protection in the United Kingdom if the Secretary of State is satisfied that:
(i) they are in the United Kingdom or have arrived at a port of entry in the United Kingdom;
(ii) they are not a refugee within the meaning of Article 1 of the 1951 Refugee Convention;
(iii) substantial grounds have been shown for believing that the asylum applicant concerned, if returned to the country of origin, 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
(iv) they are not excluded from a grant of humanitarian protection.
339CA. For the purposes of paragraph 339C, serious harm consists of:
(i) the death penalty or execution;
(ii) unlawful killing;
(iii) torture or inhuman or degrading treatment or punishment of a person in the country of return; or
(iv) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.
To receive humanitarian protection, an applicant needs to demonstrate, by way of evidence, that they would genuinely face a real risk of serious harm if sent back to their home country.
It’s crucial to note that a person doesn’t have to face serious harm for specific reasons like their race, religion or political views. Even if they’re at risk of being harmed by indiscriminate violence in their home country without any specific reason, they can still be considered for humanitarian protection.
A common example of this is when people leave conflict zones because they’re afraid for their lives due to indiscriminate violence. This came into play during the Iraqi civil war and early stages of the Syrian war when people fleeing warzones were granted humanitarian protection.
What does the humanitarian protection give you?
For those who applied prior to June 28, 2022, the humanitarian protection granted is nearly identical to refugee permission. However, for those who applied on or after that date, the humanitarian protection is almost the same as “temporary refugee permission”.
Those who applied for asylum before 28 June 2022, and receive humanitarian protection, are given five-year period of residency and the right to work, study, and access healthcare and social security. Their family reunion rights are on par with those of a refugee. After this five-year period, similar to a refugee, they can apply for indefinite leave to remain, assuming that their situation or their country of origin’s circumstances haven’t undergone major changes.
Those who applied for asylum after 28 June 2022 will be granted “temporary humanitarian protection permission to stay.” This permission carries the same limitations as temporary refugee permission: it’s valid for two and a half years, settlement is attainable after a ten-year span, and family reunion is permitted only if there are exceptional difficulties in maintaining family ties. Nevertheless, it does retain the privileges of working, studying, utilizing the NHS, and social security.
Key differences between Asylum and Humanitarian Protection
While both asylum and humanitarian protection grant the right to stay and work in the UK, there are key differences between both as follows:
1. Residence, settlement & citizenship
The refugee status (granted upon a successful asylum claim) holds a higher standing as it paves the way for permanent residence and citizenship in the UK within 5 and 6 years, respectively. In contrast, individuals under humanitarian protection require 10 years to settle and 11 years to become eligible for citizenship.
For those applying after 28 June 2022, the main difference is that humanitarian protection is always temporary. In contrast, refugee status can lead to settlement.
| Applications made on or after 28th June 2022 | Refugee status | Humanitarian protection |
| Regular | 5 years’ permission in one go; settlement after 5 years; full family reunion rights | Doesn’t exist |
| Temporary | 2.5 years’ permission at a time; settlement after 10 years; restricted family reunion | 2.5 years’ permission at a time; settlement after 10 years; restricted family reunion |
2. Travel documents
As Refugees have availed themselves the protection of the UK they won’t use the passport of their country of origin for obvious reasons. However, they also cannot get a UK passport after being granted protection as the UK passport is only given to British citizen. In these circumstances, the question arises how will the person given the refugee status be able to travel without a passport. The solution to that problem is that those with a refugee status can apply for what is called “a blue travel document” also referred to as a Convention travel document.
Refugees, having received protection from the UK, understandably avoid using their country of origin’s passport. However, they can’t obtain a UK passport as it’s reserved for British citizens. This raises the question of how individuals with refugee status can travel without a passport. The answer lies in the “blue travel document,” also known as a Convention travel document, which refugees can apply for to facilitate their travel.
This document serves as a passport equivalent but is only issued to individuals with refugee status under the Refugee Convention. It allows them to travel to other countries that are part of the Convention (though subject to any visa requirements those countries may impose).
The Home Office’s guidance emphasizes that using their own national passport jeopardizes the refugee status of individuals accepted under the terms of the 1951 United Nations Convention relating to the Status of Refugees as that would imply that the person given the refugee status no longer has a well founded fear of persecution from their country of origin.
Convention travel documents aka Blue Travel Document come with a stipulation forbidding travel to the refugee’s country of origin. Nevertheless, these documents grant refugees substantial international mobility, as they are generally recognized by other Convention countries as a valid substitute for a national passport.
Someone who receives humanitarian protection can’t apply for a Convention travel document because their status isn’t covered by the Convention. They’ll need to keep using their own passport. If they can’t get their passport, they can apply for a black travel document called a Certificate of Travel, issued by the UK government.
To get a Certificate of Travel, applicants usually need to prove to the Home Office that their home country refused them a passport without good reason. This can be tough because it’s hard to get proof from their country. Nevertheless, the official Home Office policy guidance does have some exceptions to this requirement. People with humanitarian protection can’t travel back home safely, and using their country’s embassy in the UK is unlikely.
Even if someone somehow gets a Certificate of Travel, it’s not very useful because only a very few countries accept it for travel.
With regards to using the passport you came to the UK on, assuming it’s still valid, the Home Office guidelines say “people with permission to stay this way can often travel with their own national passport”. However, in other places, the Home Office policy seems to advise against it. In the guidance for officials about granting indefinite leave to remain in the UK for refugees and those with humanitarian protection, it says:
You must ensure that all relevant checks have been conducted to establish whether the individual has obtained a passport from the national authorities of their country of origin or their country of former habitual residence. Where an individual has obtained a national passport or asked for their conditions of leave to be placed in it (a ‘Transfer of Conditions’ application), then you must consider whether a revocation referral is appropriate.
The Immigration Rules in paragraph 339A(i) states that if a refugee goes back to their home country, their refugee status can be taken away. However, this rule doesn’t apply to humanitarian protection. Still, it seems like the Home Office uses a similar rule when assessing settlement applications.
3. Domestic violence
If someone with refugee status is abusive to their partner, the victim can apply to stay in the UK indefinitely, under paragraph E-DVILR of the Immigration Rules, if they’re facing domestic abuse.
It is not clear whether this still applies to partners of refugees with only temporary permission. But it definitely doesn’t benefit partners of people with humanitarian protection. Those with humanitarian protection can still sponsor their partners to join them in the UK, but if they are violent or abusive towards them, those partners do not have the benefit of protection under the rules. This is a considerable lacuna in the law.
Whilst it’s not clear if this protection is available to partners of refugees with temporary permission, this protection is unfortunately definitely not available to the partners of people with humanitarian protection.
4. Revocation of refugee status and humanitarian protection
If the Home Office wants to take away someone’s refugee status, they have to follow paragraph 358C of the Immigration Rules. This means they need to inform the United Nations High Commissioner for Refugees (UNHCR) and let them share their thoughts. The UNHCR’s views must be considered before any decision is made.
There’s no similar rule for people with humanitarian protection, which means their status is less secure and doesn’t have strong international oversight like refugees do.
Conclusion
Refugee status and humanitarian protection used to be very similar in most ways. However, things have gotten more complex now. If you’re looking to apply for the refugee status or Humanitarian protection, it’s advisable to get specialist legal advice to make sure you’re eligible.
