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Appendix Settlement Protection: indefinite leave to remain for refugees
Credit: John Englart on Flickr

Appendix Settlement Protection: indefinite leave to remain for refugees

Appendix Settlement Protection to the Immigration Rules came into force on 6 October 2021. As the name might suggest, it consolidates the rules on settlement for people who have been in the UK on a protection route (i.e. refugee status or humanitarian protection) for five years. It also applies to partners and children of the person with protection if they were granted permission as a dependent at any time. A successful application under Appendix Settlement Protection results in permission to stay in the UK indefinitely.

Validity requirements

Paragraphs STP1.1 – STP.1.4 cover the requirements for making a valid application.

The first of these requirements is to apply online using the right form. While the Rules refer to two possible application forms, the one most commonly used in practice is Form Settlement Protection, also known as SET(P). Partners and children can be included on the same application form if they are already dependants, or they can apply on their own. This includes children born in the UK. Adult dependent relatives need to fill out a separate SET(P) form from the main applicant.

Applicants must provide biometrics. This means they will need to make an appointment at a UK Visa and Citizenship Application Services centre where their photograph and fingerprints are taken.

They also need to “satisfactorily establish their identity and nationality”. This is usually straightforward enough: providing a copy of their biometric residence permit will establish this.

Also straightforward is paragraph STP 1.2(c): “the applicant must be in the UK on the date of application”.

Failing to do any of this means that the application is invalid and may be rejected out of hand. In practice, applicants have quite a large window of time to attend a biometric appointment and submit their supporting evidence. This means that it is unlikely many people will fall foul of these rules.

However, the route contains a final validity requirement worth watching out for, which is that the main applicant must have been granted permission as a refugee or humanitarian protection. Someone with a different status will be applying in the wrong route if they apply for settlement protection: for example, if they are a dependant with leave outside the Rules. This does not apply to a child born in the UK, though.

Suitability requirements

Paragraph STP2.1 says that an application on this route “must” be refused where the person:

(a) has been convicted of a criminal offence in the UK or overseas for which they have received a custodial sentence of four years or more; or

(b) has been convicted of a criminal offence in the UK or overseas for which they have received a custodial sentence of at least 12 months but less than four years, unless a period of 15 years has passed since the end of their sentence; or

(c) has been convicted of a criminal offence in the UK or overseas for which they have received a custodial sentence of less than 12 months, unless a period of seven years has passed since the end of their sentence; or

(d) within the 24 months before the date on which the application for settlement is decided, has been convicted of, or admitted to an offence in the UK or overseas for which they have received a non-custodial sentence, or received an out-of-court disposal that is recorded on their criminal record; or

(e) is a persistent offender who shows a particular disregard for the law; or

(f) has committed a criminal offence, or offences, which caused serious harm; or

(g) where a grant of settlement is not conducive to the public good because of their conduct, character, associations or other reasons (including convictions which do not fall within the criminality grounds) or because they represent a threat to national security.

If you are aware of a relevant conviction it is important to disclose it. If enough time has passed since the end of the sentence to make you eligible for settlement again, make this clear in the application.

If someone falls foul of any of these suitability requirements, whilst settlement will be refused, they should get an extension of their refugee status / humanitarian protection (see paragraph STP 5.2). This is a new rule since October 2021: people in this position used to be given Discretionary Leave instead. 

Eligibility requirements

There are two more rules, dubbed the “eligibility requirements”. The first is the qualifying period: the applicant must have spent a “continuous period of at least five years” in the UK with refugee status or humanitarian protection. The second is the “continuing status requirement”, which simply means that the person’s status has not been revoked or renounced.

Extra rules for family members

For someone to be eligible for settlement as a partner, the main applicant must either be already settled as a refugee or be applying for settlement at the same time as the partner.

The Appendix also requires that the applicant show the relationship is “genuine and subsisting” and that they intend to continue living together as partners in the UK. This is best shown through evidence of cohabitation such as joint letters to the shared home, accompanied by short supporting statements from the couple.

Similarly, a child must apply for settlement alongside their parent, unless their parent is already settled. The only further requirement for a child is that they are under the age of 18 on the date of application.

Troubleshooting

The issues that often cause people problems when applying for settlement as a refugee are:

  1. Knowing when to apply. Some people want to get their application in early and some people leave it until the last minute. Knowing the expiry date of your current permission to stay is really important. As Home Office guidance states, an application should generally be made in the month before that permission expiry date. Provided it is made no more than three months early, though, it should not generally be refused for that reason.
  2. Criminal history. A criminal conviction is not necessarily fatal to an application but not disclosing it can cause problems and delay. It is best to highlight any relevant conviction and explain how it relates to the rules. If enough time has passed since the end of a conviction to make it no longer a bar to settlement, point that out.
  3. ID. Proving identity is a fundamental requirement of the application. If you have lost your biometric residence permit, this can cause a real problem. Ensure you have a copy of any ID. If you lose your BRP, report it. If you have a Convention Travel Document, include a copy in the application.
  4. “Cessation”. When assessing settlement applications, the Home Office will consider whether it is now “safe” for the applicant to be returned to their home country. Whilst the person is not expected to apply for asylum all over again, if there has been a change in country conditions or personal circumstances, it is worth addressing this in the application to explain why protection is still required. Even if not, it is good practice to provide a brief summary of why protection is still required, particularly with reference to country guidance and NGO reports.
  5. “Re-availment”. The Home Office will also look at whether the applicant has re-availed themselves of the protection of their country of origin. It is helpful to check whether the applicant has travelled to their home country or obtained a passport from that country.

That said, settlement applications are a fairly routine procedure and should not cause too many problems, assuming there have been no significant change in either country conditions or personal circumstances over the previous five years. As long as care is taken over the presentation of the evidence, and the validity requirements are met, the application is usually straightforward.

Katherine Soroya is a Senior Immigration Caseworker at Turpin & Miller, an Oxford-based specialist immigration firm. Katherine undertakes a wide range of Legal Aid immigration work and has a particular interest in complex trafficking matters.