Refugees: End to Automatic Settlement after Five Years
- RSL Law
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Historically, many migrants have come from other countries to live in the UK because they have been persecuted, or they fear they will be persecuted, in their own country. There are of course various possible reasons for persecution: ethnicity, religion, politics, and sexual orientation are perhaps the most obvious.
The UK, like other countries, recognises that such persecution exists in many countries around the world and it will accept claims by migrants on this basis, ie that they would not be safe if they returned to their home country. Such claims are known as asylum claims. A person may claim asylum in the UK but – and here is a catch – they must be physically in the UK before than can make such a claim.
So those who would seek to claim asylum in the UK must somehow – either legally or illegally – first get to the UK. Some people come to the UK on a regular visa (for example on a visitor visa) and then when they arrive here they claim asylum. Others come to the UK illegally, by whatever means, and claim asylum when they arrive. In either case the Home Office has a legal duty to duly consider the asylum claim. Whilst the claim is being considered the migrant is allowed to remain in the UK.
If the asylum claim is ultimately unsuccessful then the migrant loses their right to be in the UK and the Home Office will seek to return them to their home country. In many cases an asylum claim is a difficult exercise and the rate of refusal is high. There is the right of appeal to the First-Tier Immigration Tribunal, which does at least provide the migrant the opportunity to have their claim considered by an Immigration Judge, who is a qualified lawyer.
But if the asylum claim is successful the migrant will be granted immigration leave to remain in the UK and the “asylum-seeker” will then become a “refugee”. Such a refugee will normally be granted five years’ leave. And – as with many other types of immigration leave – after five years they could apply for indefinite leave to remain (settlement), ie the right to live permanently in the UK.
Historically, unless there were strongly unfavourable circumstances (eg serious criminality), in most cases such an application was granted. Settlement was not exactly automatic but, unless there were some significantly adverse issues, it was a very strong application and most applicants could expect to succeed. The Home Office did not carry out any really complex decision-making process (quite unlike the decision-making exercise for the original asylum claim, which is typically very thorough).
But this situation very recently changed and now the Home Office has adopted a new policy. Now when a refugee applies for settlement on the basis of five years’ leave the Home Office will examine the application in more detail, specifically with a view to determining whether it might now be safe for the migrant to return to their home country.
This new policy is called “safe return review”. As the Home Office explain it in their published guidance, this review is “conducted to consider whether there have been any changes in country conditions or personal circumstances so that only those who continue to need protection benefit from settlement on this route.”
This new policy opens an enormous can of worms. It looks rather as though the migrant is having to apply for asylum all over again. And anyone who has experience of Home Office asylum decision-making may fear the worst. Decision-makers always did hold the theoretical power to remove refugee status from a migrant if it could be shown that there had been a significant and permanent change for the better in their home country, but this was not a power that was ever used very much because it is necessarily difficult to prove to a really good standard such a change in circumstances.
But the words “conducted to consider whether there have been any changes in … … personal circumstances” are very worrying. It is all too easy for Home Office decision-makers to say well, even if you were persecuted at that time that was ages ago, and everybody will have forgotten about it by now. (They already say such things in their refusal decisions quite frequently.)
This development is no doubt very worrying for those who have been granted limited refugee leave, and especially for those who really had to fight against the Home Office to obtain it and who are familiar with Home Office tactics. It will be the case that those whose refugee leave is revoked will have the right of appeal to the Tribunal, but the prospect of having to fight an appeal case (and, in some cases, not for the first time) is not a pleasing one.
So if you do find yourself in a situation where your application for settlement has been refused under the new policy you might want to take good legal advice.