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What is the difference between refugee status and humanitarian protection?

What is the difference between refugee status and humanitarian protection?

Viewers of BBC2’s fly-on-the-wall documentary series about immigration lawyers and their clients may remember Dillian, a gay asylum seeker from the Caribbean. Dillian isn’t granted refugee status, but does eventually get a different legal status allowing him to stay in the UK, called humanitarian protection.

This blog post tries to answer the question that non-lawyers may have had when hearing about humanitarian protection: what is it, and why is it “even better” than refugee status, as Dillian thinks? (A spoiler on the second question: it isn’t.)

On the face of it, refugee status and humanitarian protection seem like two sides of the same coin. Both are a form of international protection granted to a person in need. Both result in a grant of five years of limited leave to remain in the UK on a path to settlement after that. They give most of the same rights to work, study and access benefits.

But as we shall see, they are underpinned by very different legal frameworks, and refugee status is undoubtedly superior to a grant of humanitarian protection in a number of ways.

Before we delve into the advantages of refugee status, we will take a quick look at the circumstances in which a person will be granted one or the other.

When will refugee status be granted?

The Home Office is the government department that assesses an asylum seeker’s claim to international protection in the UK. It uses a hierarchical consideration process. First, officials will assess whether refugee status can be granted. If it cannot, they move on to assess whether humanitarian protection can be granted. Finally they move on to see whether leave to remain should be granted either under human rights laws or on a discretionary basis.

Refugee status will be granted to an asylum seeker who meets the requirements of paragraph 334 of the Immigration Rules:

334. An asylum applicant will be granted refugee status 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 a refugee, as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006;

(iii) there are no reasonable grounds for regarding them as a danger to the security of the United Kingdom;

(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; 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 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.

Let’s unpack that a little. The person must be inside the UK or at a port of entry in order to be granted refugee status, meaning that a claim for asylum cannot be made from outside the UK. It is not possible to apply to the UK government from abroad for permission to enter the UK as a refugee.

You may well be wondering how an asylum seeker might get to the UK to claim asylum if no visas are available for this purpose. That’s one of the fallacies of our island nation’s immigration and asylum policy. Most people have to either arrive illegally or as holders of valid visas which have been issued for some other purpose, such as tourism. There is a caveat to this: the UK does participate in schemes such as the relatively successful Syrian Vulnerable Persons Scheme which allows Syrian people recognised by the UN as refugees in camps surrounding Syria to be admitted to the UK as refugees. This is an exception to the general rule, however.

Once the person is inside the UK or at a port of entry, they must meet the legal definition of a refugee. Now the Immigration Rules point us to the definition contained in UK legislation, but that in turn points directly to the relevant international treaty which is the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 and the New York Protocol of 31 January 1967 (often just referred to as the ‘Refugee Convention’ or the ‘Geneva Convention’). A refugee is defined in Article 1A 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 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.

There is a lot within that definition. Each word has been poured over and analysed by lawyers, judges, and academics for decades. Crucially, a person must fear persecution for a specific reason such as their race, religion, nationality, or political opinion (this is often referred to as a ‘Convention reason’). We won’t delve any deeper at this point, though if you are interested, you can check out Colin’s post on this or the great asylum training materials on the members’ section of the website.

If a person meets that definition of a refugee, assuming there are no reasons to regard them as a danger to the security of the UK, then the final question to be determined is whether refusal of their application would result in their refoulement to a country where their life or freedom would be threatened for a Convention reason.

If the answer to that question is yes, then the person will be recognised as a refugee and receive something called refugee status. Refugee status gives a person five years of limited leave to remain in the UK, with permission to work and study, and access to the NHS and benefits.

Refugees have the right to seek family reunion with family members left behind. At the end of this five-year period, the person will be able to apply for indefinite leave to remain, assuming there has not been a significant change in their circumstances or the circumstances in their country of origin.

When will humanitarian protection be granted?

An asylum seeker who does not meet the criteria for a grant of refugee status will then be considered for humanitarian protection. Humanitarian protection is the name the UK has adopted for an EU law concept known as ‘subsidiary protection’, which stems from the EU Qualification Directive.

The Immigration Rules cover humanitarian protection in paragraphs 339C and 339CA:

339C. A person 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 do not qualify as a refugee as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006;

(iii) 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

(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 be granted humanitarian protection, an applicant must therefore establish that they would face a real risk of serious harm if returned to their country of origin. The definition of serious harm is taken almost word-for-word from Article 15 of the Qualification Directive.

Crucially, it’s not necessary for a person to be at risk of serious harm for a specific reason such as their race, religion, or political opinion. Those at risk of indiscriminate violence can receive protection when they face serious harm for no particular reason other than their mere presence in their country of origin.

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A common example of where humanitarian protection would be given is people are fleeing a conflict zone for the simple reason that their lives may be at risk if they get caught up in the violence. During the Iraqi civil war many asylum seekers were granted humanitarian protection, and likewise many Syrians in the early days of the war there.

A person granted humanitarian protection will receive an almost identical grant of leave as a refugee. They will receive five years of limited leave to remain in the UK, with permission to work and study (but see next section), and access to the NHS and benefits.

They will have the same rights to family reunion as a refugee. At the end of this five year period, like a refugee, the person will be able to apply for indefinite leave to remain assuming there has not been a significant change in their circumstances or the circumstances in their country of origin.

So far, so good: the end product for both refugee status and humanitarian protection looks identical. And for many, the differences I am about to highlight may not have any practical impact on their lives. Yet it is important to be aware that these differences exist.

Higher education

Refugees are classified as ‘home students’ for the purpose of higher education courses (e.g. university degrees). That means they can avoid the cripplingly prohibitive international fees which otherwise apply, and also get student loans, from the moment they are recognised as refugees (provided they are ‘ordinarily resident’ in the UK).

Those granted humanitarian protection are not automatically considered ‘home students’, at least in England. From 1 August 2019 a person with humanitarian protection will need to have been ordinarily resident for at least three years to qualify as a home student. Refugees on the other hand do not have this three year ordinary residence requirement which means that they could theoretically start applying to universities immediately after being granted leave to remain. Those with humanitarian protection would likely have to wait at least three years.

It is worth noting that higher education fee regulations do differ in each nation of the UK. In Wales, Scotland and Northern Ireland, there does not appear to be this same discrimination between refugees and those with humanitarian protection. If you need more specific information, I would strongly recommend checking out the wonderful UKCISA website which sets out the position in each nation in an easily digestible format.

Statutory defence to prosecution

Article 31 of the Refugee Convention strives to ensure that refugees are not punished for illegal entry to a country of refuge. This has been incorporated into UK law at (appropriately) section 31 of the Immigration and Asylum Act 1999. Section 31 sets out a number of defences to various criminal offences connected to illegal entry and possession of false documents that refugees can plead if charged with them.

There is no similar statutory defence for those granted humanitarian protection. Crown Prosecution Service guidance seems to make no mention of humanitarian protection whatsoever. In Scotland, the equivalent guidance urges prosecutors to consider it, but the fact remains that there is no protection enshrined in law.

Revocation

In cases where the Home Office seek to revoke a person’s refugee status, paragraph 358C of the Immigration Rules requires the Home Office to notify the United Nations High Commissioner for Refugees and to provide an opportunity for the UNHCR to present views. These views must be taken into consideration.

No such provision exists for those with humanitarian protection, resulting in a more fragile status with less robust international oversight.

Victims of domestic abuse

Refugees and those granted humanitarian protection can apply to the Home Office for family reunion with pre-flight partners (that is, partners they got together with before they fled their country of origin.) For post-flight partners, they can sponsor their partners under Appendix FM in the same way in which a British or settled person can.

But these partners did not benefit from visa protections for victims of domestic abuse. These protections include the right to stay in the UK if a relationship with an abusive sponsor had ended (which would otherwise terminate the visa).

Thanks to a relatively recent amendment to the Immigration Rules brought about by the case of A v Secretary of State for the Home Department [2016] CSIH 38, these protections have been extended to partners of refugees. Thus, partners of refugees who have been victims of domestic violence can now make applications for indefinite leave to remain in the UK. 

But partners of those with humanitarian protection were not included, leaving a considerable lacuna in the law. 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.

Travel documents

Refugees are entitled to apply for a blue travel document known as a Convention travel document.

This is the equivalent of a passport, but issued to those who have been granted refugee status under the Refugee Convention and enables them to travel internationally to other countries which subscribe to the Convention (still subject to any visa requirements those countries may have).

This travel document is made available to refugees so that they do not have to have any further contact with the country which they have fled from. Indeed, Home Office guidance warns that “a person accepted as a refugee under the terms of the 1951 United Nations Convention relating to the Status of Refugees places that status at risk if they travel on their own national passport”.

Convention travel documents will be issued with an endorsement forbidding travel to the refugee’s country of origin, but beyond that, they offer the refugee a considerable degree of global mobility as they will generally be accepted in lieu of a national passport by other Convention countries.

A person granted humanitarian protection however will not be entitled to apply for a Convention travel document, because their status is not underpinned by the Convention. Instead, they will have to continue to rely on their own national passport. If they cannot get one, they will have to apply for a black travel document called a Certificate of Travel. This is yet another type of travel document issued by the UK government.

In order to obtain a Certificate of Travel, an applicant must normally satisfy the Home Office, with hard evidence, that they have been unreasonably refused a passport by the government of their country of origin. There are some exceptions to this set out in official guidance, but by and large this is a tough test because very often it will be impossible to obtain travel documentation or evidence from the country of origin. Those granted humanitarian protection will not, by definition, be able to travel there safely and are unlikely to be able to use their country’s embassy in the UK.

Even if a person manages to actually get their hands on a Certificate of Travel, due to the very small number of countries that actually allow holders to travel using them, they often prove largely useless.

What about using the passport you came to the UK on, assuming it’s still valid? Official guidance states that “a person with leave to remain on these grounds should in many cases be able to travel on their own national passport”, and perhaps that is one reason why Dillian was happy with humanitarian protection: he gets to keep his passport.

But elsewhere, the Home Office appears to discourage this. Guidance on granting indefinite leave to remain in the UK for both refugees and recipients of humanitarian protection says:

Caseworkers must ensure 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 the country from which they claimed asylum or HP. Where an individual has obtained a national passport, has travelled on it or asked for their conditions of leave to be placed in it (a ‘Transfer of Conditions’ application), then consideration must be given to whether it is appropriate to revoke refugee status or HP.

This is an understandable position to take with refugees, where the Immigration Rules at paragraph 339A(i) are explicit in stating that a refugee who voluntarily re-avails themselves of the protection of their country of origin can face revocation of refugee status. The same rule does not exist for humanitarian protection — yet the Home Office appears to apply that same standard when it comes to settlement applications. 

Conclusion

Ultimately, both refugee status and humanitarian protection are high-quality grants of leave compared to other categories that exist and for many practical purposes they are almost identical. An asylum seeker fearing return to their country of origin isn’t immediately going to quibble over a travel document or access to university education. But the differences set out above, though subtle, are not insignificant. Indeed it was these differences which eventually led the government to recognise the need to “upgrade” the humanitarian protection status of resettled Syrians in 2017.

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John Vassiliou is a partner at McGill & Co, a Scottish law firm specialising in immigration and nationality.

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