- The application process
- The policy in place up to March 2017
- When the Safe Returns Policy came into play
- The Safe Returns Policy
- Cessation: when is a refugee no longer a refugee?
- Significant and non-temporary changes
- What else to consider if a significant and non-temporary change has occurred?
- Practical consideration of Safe Returns
- Wider impact of the new policy
In March 2017 the Home Office has announced a new policy of reviewing whether all refugees require protection at the end of a 5 year initial period of Refugee Status. This policy is effective for all existing and future applications for Indefinite Leave to Remain (‘ILR’) as a Refugee. This policy has now been effective for three months and, with Refugee Week upon us, it is a good opportunity to delve into it in greater detail.
The application process
Those recognised as refugees will usually be granted a period of 5 years limited leave. When that leave is due to expire they must apply for ILR. The Home Office gives guidance on the requirements for this application are contained in various documents including the following:
- Refugee Leave (the current version is 4.0)
- Asylum Policy Instruction Settlement Protection (the current version is 4.0)
- Asylum Policy Instruction Revocation of Refugee Status (the current version is 4.0)
A refugee is required to make an ILR application using a specified application form titled ‘SET(P)’. If an application is made by any other way, for example, in person, it will not be accepted as valid. Choosing the right form is important, particularly where the Home Office guidance continues to make reference to an old version of the form titled ‘SET (Protection Route)’.
The application will need to be made before the 5 year leave to remain expires. It is important that this application is made in time before that leave expires to ensure that the case is considered easily, that the current leave to remain continues and access to public funds or employment is secured throughout the application process.
The refugee must be in the UK when the application is made and the application form should include all dependents living with the refugee, including those who were born in the UK since the Refugee Status was granted. There is currently no fee for making the application.
Once the application is submitted, the Home Office will invite the refugee and family members to record their biometric information. Once recorded the Home Office will decide the application. Under the policy in place up to March 2017, the applications were processed in under 6 months and usually resulted in a grant of ILR. The length of the application process is likely to increase under the new policy and grants of ILR will now be dependent on the evidence submitted by the refugee.
The policy in place up to March 2017
The policy that has been in place since 2005 provided for an initial period of 5 years limited leave and then an automatic grant of settlement save for certain exemptions which, if applied, triggered an in-depth review to determine whether an individual is still a refugee. Those exemptions were identified as ‘triggers’ by the Home Office because they would usually be triggered if the application is made out of time, after the 5 year limited leave to remain expired. The triggers fell broadly in three groups:
Trigger 1: Review on the basis of information relating to actions (or alleged actions) of an individual refugee. This section relates to individual actions by the person in recept of Refugee Status granted that may cause that status to be taken away. These include any allegations of the refugee obtaining protection of a new country (other than the UK), voluntarily returning to the country where they claimed to be at risk of persecution, discovery of crimes before they entered the UK, any crimes committed in the UK, any considered risk the refugee posses to the security of the UK and any allegations of deception used to obtain Refugee Status.
Trigger 2: Review on the basis of a significant and non-temporary change in the conditions in a particular country (cessation). This section relates to general and specific situations in the country where persecution is feared from. The section will apply where there is a significant and non-temporary change in country conditions such that a refugee from that country no longer has a well-founded fear of persecution.
Trigger 3: Where the SSHD has announced to Parliament a review based on a significant and non-temporary change to a country situation. To date, no announcemnt has been made for any country.
If an application was made in time, before the 5 year limited leave to remain expired, all the applicant was required to do was to tick a box on the form declaring that he or she remained at risk from persecution in their country of origin and intends to rely on the facts of their initial claim for asylum. If so, the application operated on an automatic basis and in most cases ILR was granted.
The policy as of March 2017 means that Trigger 2 now applies to all applicants of ILR regardless of the timing of the application. This policy is now referred to as the ‘Safe Returns Policy’.
When the Safe Returns Policy came into play
The Home Office have said that they have never operated a policy of automatic settlement but in reality the process appeared to be automatic where the above triggers did not apply. An old version of the Asylum Policy Instruction actually backed up this position, stating:
Refugees who apply for a further period of leave before the expiry of their limited leave
Where a refugee applies for a further period of leave before the expiry of their limited leave, it will not normally be necessary to conduct an in-depth review to determine whether the individual is still a refugee. However, caseworkers should always check that the individual concerned should not have been subject to a previous case review on the grounds of the triggers listed in 5 and 6 above.
So, it is somewhat disingenuous to suggest that the Safe Returns Policy has always been in place albeit in a different form. The Home Office have also been somewhat unclear as to the publication date of the Safe Returns Policy. The current published guidance confirms the Safe Returns Policy, but its February 2016 publication date predates this change. The Home Office have also not identified when their introduction had been announced to parliament or when it was approved by MPs.
While its murky origins remain, the Safe Returns Policy is here and will need to be dealt with in applications for ILR as a Refugee.
The Safe Returns Policy
The Home Office must now consider whether there are any reasons why a grant of ILR may no longer be appropriate if the individual no longer needs protection. The Home Office Refugee Leave guidance states:
All those who apply for settlement protection after completing the appropriate probationary period of limited leave will be subject to a safe return review with reference to the country situation at the date the application is considered. Those who still need protection at that point will normally qualify for settlement.
The safe returns policy can also be activated at any point during the 5 year route to settlement. The Home Office Refugee Leave guidance states:
A person’s case may also be reviewed at any point in the process either when triggered by their actions, for example, they are convicted of a serious crime, or in light of a significant and non-temporary change in conditions in their country of origin such that they no longer need protection.
This policy means settlement cannot be obtained by simply completing the form and returning the biometric residence permit to the Home Office, detailed information will need to be provided to demonstrate current risk, based on country background evidence and case-law, in order to avoid cessation.
Cessation: when is a refugee no longer a refugee?
The 1951 Convention relating to the Status of Refugees (‘1951 Convention’) recognises that Refugee Status ends under certain defined conditions. This means once an individual is determined to be a refugee, their status is maintained unless they fall within the terms of the cessation clauses or their status is cancelled or revoked.
Article 1C of the 1951 Convention sets out the circumstances when the Refugee Convention will no longer apply because an individual no longer needs protection. These circumstances occur when:
- An individual voluntarily re-availed themselves of the protection of the country of nationality
- Having lost his/her nationality, he/she voluntarily reacquired it
- The acquisition of a new nationality and enjoyment of the protection of the county of new nationality
- He/she can no longer, because of the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality.
- Being a person who has no nationality he is, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, able to return to the country of his former habitual residence.
For the purposes of the Safe Returns Policy the relevant provisions of Article 1C are (iv) and (v), the remaining categories relate to circumstances arising through the actions of refugees which have always applied in Home Office policy. The provisions of Article 1C were ‘mirrored’ in the European Qualification Directive and also the UK Immigration Rules at paragraph 339A which confirms that any change of circumstances must be ‘significant’ and ‘non-temporary’ in nature in order to decide that a refugee’s fear of persecution can no longer be regarded as well-founded.
But who has to prove the significant and non-temporary change? The Qualification Directive states that the UK would be required to demonstrate the person has ceased to be a refugee:
Article 2(2). Without prejudice to the duty of the refugee in accordance with Article 4(1) to disclose all relevant facts and provide all relevant documentation at his/her disposal, the Member State, which has granted refugee status, shall on an individual basis demonstrate that the person concerned has ceased to be or has never been a refugee in accordance with paragraph 1 of this Article.
This demonstrates that it would be incumbent on the Home Office when considering the application to prove a change is significant and non-temporary. The Asylum Policy Instruction Revocation of Refugee Status supports this while explaining what might indicate only temporary changes:
The overthrow of one political party in favour of another might only be transitory or the change in regime may not mean that an individual is no longer at risk of persecution.
While the UNHCR Guidelines at paragraph 25(ii) state that an applicant should not be compelled to provide justification for his or her continuing to possess a fear which he has established as well-founded at the time he or she left the country of her nationality, and the SSHD accepted she bore the burden of proof in SB (Haiti – cessation and exclusion)  UKIAT 00036, it will still be incumbent on the applicant to provide evidence that any changes are not significant, temporary, and will remain at risk.
Significant and non-temporary changes
To determine what is considered a significant or non-temporary change it is often useful to consider the view UNHCR. The UNHCR’s Executive Committee developed guidance in the form of Executive Committee Conclusion No. 69 (XLIII) (1992), which states:
States must carefully assess the fundamental character of the changes in the country of nationality or origin, including the general human rights situation, as well as the particular cause of fear of persecution, in order to make sure in an objective and verifiable way that the situation which justified the granting of refugee status has ceased to exist.
… [A]n essential element in such assessment by States is the fundamental, stable and durable character of the changes, making use of appropriate information available in this respect, inter alia, from relevant specialized bodies, including particularly UNHCR.
Cessation should therefore not result in individuals being compelled to return to a volatile situation. Some relevant indicators of fundamental, durable, and effective change was identified by the UK Executive Committee Conclusion No. 69 (XLIII) and the 1997 Note on the Cessation Clauses, and includes:
- democratic elections
- significant reforms to the legal and social structure
- repeal of oppressive laws
- dismantling of repressive security forces
- general respect for human rights
The country of origin must have therefore changed in a profound and enduring manner before cessation can be applied. Let’s look at two examples:
We can see from this example, that while hostilities against all anti-government movements have halted, the Government of Sudan remains unchanged and, while the socio-economic factors giving risk to anti-government movements remain, the risk of hostilities is present. This indicates a temporary change, and unlikely to result in cessation of her Refugee Status. But if the facts are altered slightly:
An end to hostilities, a complete political change and return to a situation of peace and stability remain the most typical situation in which Article 1C(iv) or (v) applies. This example indicates a long period of time elapsing testing the durability of change. The process of national reconstruction has been given sufficient time to take hold and any peace arrangements with opposing militant groups has been carefully monitored. This is particularly relevant after conflicts involving different ethnic groups, since progress towards genuine reconciliation has often proven difficult in such cases. Unless national reconciliation clearly starts to take root and real peace is restored, political changes which have occurred may not be firmly established.
Once stablished protections against persecution must be effective and available. It requires more than mere physical security or safety. It needs to include the existence of a functioning government and basic administrative structures, as evidenced for instance through a functioning system of law and justice, as well as the existence of adequate infrastructure to enable residents to exercise their rights, including their right to a basic livelihood.
While the Safe Returns Policy is a worry, the reasons requiring cessation must be compelling and is in fact a high threshold to achieve. The Asylum Policy Instruction supports this proposition by stating that cessation policy should only apply in the most exceptional of cases, and any such decision must be made by someone of seniority within the application process.
What else to consider if a significant and non-temporary change has occurred?
If it is possible that the high threshold has been achieved it does not automatically mean that an application for ILR is refused. There may also be other compelling reasons airing out of past persecution which means the individual is refusing or unwilling to re-avail herself of the protection of her country of origin. Where an individual has suffered truly atrocious forms of persecution it may be unreasonable to expect them to return. For example:
In this scenario, while the Home Office may argue that the changes in Sri Lanka mean he is no longer at risk he has suffered at the hands of elements of the local population. It is presumed that such persons have suffered grave persecution and cannot reasonably be expected to return. Children should also be given special consideration in this regard, as they may often be able to invoke “compelling reasons” for refusing to return to their country of origin.
Application of the “compelling reasons” exception is interpreted to extend beyond the actual words of the provision to apply to Article 1A(2) refugees. This reflects a general humanitarian principle that is now well-grounded in Home Office practice. Therefore, psycho-social factors, and the human effects of long displacement, should also be considered. So too, those who suffer from the medical affects of persecution who could be forced to return, and face triggering debilitating medical disorders, if refused.
Practical consideration of Safe Returns
In cases when the Home Office are considering the cessation of Refugee Status the process set out in the Asylum Policy Instruction: Revocation of Refugee Status will be followed:
- A Proposed Revocation of Refugee Status letter will be sent to the refugee, and legal representative, explaining the reasons why such action is being considered
- The SSHD will invite the refugee, and any legal representatives, to submit evidence within a set number of days explaining why the status should not be revoked
- The Home Office will consider any representations and evidence
- Where no further action is taken, a notice will be sent out to confirm this
- Where revocation action will be taken, the Home Office will invite the UNHCR to respond
- A decision to revoke refugee status is made, which will attract a right to appeal, and consideration will be given to the grant of alternative forms of leave
In considering revocation UNHCR recommends that sources of evidence which the Home Office should use to decide if cessation applies must be broad and should include information from:
- its foreign ministry
- diplomatic sources
- non-governmental organisations
- specialised bodies, especially the UNHCR
- from scholars, the press and other public sources
The refugee should provide general evidence from similar sources, as well as evidence concerning his or her own situation, such as personal testimony and testimony or letters from friends or family. In addition, the UNHCR Executive Committee, in Conclusion No. 69, recommends that the Home Office consider appropriate arrangements for persons who cannot be expected to leave the UK, due to a long stay in the UK resulting in strong family, social and economic links. In such situations the individuals concerned may be issued with an alternative residence status, based on family and private life rights, though in some instances with Refugee Status being withdrawn.
Wider impact of the new policy
Cessation is a very complex process which, in practice, will result in very few, if any, refugees left with no form of leave to remain in the UK. The Home Office already faces difficulties in removing failed asylum seekers, but will face an almost impossible job in removing refugees who have lived in the UK building up family and private life rights that require protection. What the policy does do well, is create unfair consequencs to refugees including:
Hostility and uncertainty – Perhaps the entire point of the policy is to create a “hostile environment” giving a sense of unwelcomeness for refugees in the UK. It stretches a period of uncertainty for refugees beyond an initial asylum application to 5 years and more. They may find themselves unable to work, register for eduction, and more, because employers and institutions can no longer assume a refugee will qualify for settlement. It will make it harder for refugees to simply settle down and rebuild their lives ignoring the principles of the UNHCR Handbook which is designed to give a sense of security and integration to refugees.
Availability of legal aid providers – Applications for ILR is in scope for legal aid. It is now very important that refugees applying for ILR should be legally represented because the applications are no longer automatic and will require legal analysis about current risk and future protection. However, individuals have found it hard to find available legal aid solicitors because some have either stopped providing services for asylum seekers and refugees or have prioritised more cost effective legal aid work. They will be faced with making complex applications themselves, which may increase the chances of refusal.
Disproportionally affects women – The change in policy may disproportionately affect women. The risks women face include domestic violence or female genital mutilation. Those types of cases my prove difficult to prove that the risks continue to exist 5 years later.
This retrograde change of policy means that any refugee granted protection in the UK will no longer be secure in their status and will be unable properly to start rebuilding their life. The Refugee Council is calling on the Government to put the futures of refugees first by ensuring that its policies foster successful integration rather than completely undermining it.