Asylum - Refugee based Claim
If you are at risk of persecution in your country, and are unable to return because of this risk, you may be recognised as a refugee and be given permission to remain in the UK. If this applies to you, you should claim asylum.
Asylum is protection given by a country to someone who is fleeing persecution in their own country. It is given under the 1951 United Nations Convention Relating to the Status of Refugees. To be recognised as a refugee, you must have left your country and be unable to go back because you have a well-founded fear of persecution.
The United Kingdom also adheres to the European Convention on Human Rights, which prevents the UK authorities sending someone to a country where there is a real risk that they will be exposed to torture, or inhuman or degrading treatment or punishment.
If an asylum seeker does not qualify for asylum but the Secretary of State thinks that there are humanitarian or other reasons why the Home Office should allow the applicant to stay in the United Kingdom, the Secretary of State may give the applicant temporary permission to remain in the United Kingdom.
According to the Immigration Rules, an asylum applicant is a person who either;
(a) makes a request to be recognised as a refugee under the Geneva Convention on the basis that it would be contrary to the United Kingdom's obligations under the Geneva Convention for him to be removed from or required to leave the United Kingdom, or
(b) otherwise makes a request for international protection. "Application for asylum" shall be construed accordingly.
Every person has the right to make an application for asylum on his own behalf.
Criteria For Grant Of Asylum:
According to Immigration Rules, an asylum applicant will be granted asylum in the United Kingdom if the Secretary of State is satisfied that:
(i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom;
(ii) he is 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 him as a danger to the security of the United Kingdom;
(iv) he does not, having been convicted by a final judgment of a particularly serious crime, he does not constitute danger to the community of the United Kingdom; and
(v) refusing his application would result in him being required to go (whether immediately or after the time limited by any existing leave to enter or remain) in breach of the Geneva Convention, to a country in which his life or freedom would threatened on account of his race, religion, nationality, political opinion or membership of a particular social group.
A person may have a well-founded fear of being persecuted or a real risk of suffering serious harm based on events which have taken place since the person left the country of origin or country of return and/or activates which have been engaged in by a person since he left the country of origin or country of return, in particular where it is established that the activities relied upon constitute the expression and continuation of convictions or orientations held in the country of origin or country of return.
In order to be recognised as a refugee you must:
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Be outside your country of origin, or if you are stateless, the country in which you usually live;
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Have a well-founded fear of persecution on the basis of your race, religion, nationality, political opinion or your membership of a particular social group that puts you at risk because of the social, cultural, religious or political situation in your country (for example, your gender, gender identity, sexual orientation);
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Be unable or unwilling to get protection from the authorities in your country;
Have no part of your country where you are able to live in safety that you can reasonably be expected to go.
Before assessing whether the criteria above are met, the UK authorities will consider whether they are responsible for examining your claim. They may find that they are not responsible if:
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There is another country which you can go to which has already recognised you as a refugee or given you protection against ‘refoulement’;
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There is another safe country which you can go to and ask for protection, where it would be reasonable for you to go to due to a previous connection there. For example if you have previously claimed asylum in another EU country, or have family members living there.
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Your right to protection is based on the 1951 Refugee Convention which is also part of UK law. The UK authorities must protect you from ‘refoulement’: your forcible return to a country where you are at risk of persecution.
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If you do not qualify as a refugee, but there is a real risk that you would be killed or suffer serious harm if you had to go back to your country, you may be granted humanitarian protection.
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If you are recognised as a refugee or granted humanitarian protection, you will be issued with a residence permit valid for five years, which is renewable. If your partner or children under the age of 18 applied at the same time as you as your dependants, they will also be issued with a residence permit. After five years, this residence permit may be renewed, or alternatively you can apply for settlement.
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You will have the same rights to work, education, healthcare and benefits as a settled person. In addition, you can apply for a travel document, which you are able to use if you want to travel abroad.
Unaccompanied Children:
Unaccompanied children may also apply for asylum and, in view of their potential vulnerability, particular priority and care is given by the Home Office to the handling of their cases. Although person of any age may qualify for refugee status under the Convention and the criteria in paragraph for grant of asylum as laid in the Immigration Rules apply equally to all cases. However, account is taken of the applicant's maturity and in assessing the claim of a child more weight is given to objective indications of risk than to the child's state of mind and understanding of his situation. An asylum application made on behalf of a child should not be refused solely because the child is too young to understand his situation or to have formed a well-founded fear of persecution. Close attention should be given to the welfare of the child at all times.
Any child over the age of 12 who has claimed asylum in his own right is interviewed by the Home Office Immigration Officer about the substance of his claim unless the child is unfit or unable to be interviewed. When an interview takes place it is conducted in the presence of a parent, guardian, representative or another adult independent of the Secretary of State who has responsibility for the child. The interviewer is required to have specialist training in the interviewing of children and have particular regard to the possibility that a child will feel inhibited or alarmed. The child shall be allowed to express himself in his own way and at his own speed. If he appears tired or distressed, the interview shall be stopped.
If you wish to obtain advice or legal assistance in respect of your immigration matter, we offer an affordable and confidential consultation at a fixed fee with and experienced immigration lawyer where we can answer your questions and explain the processes that will apply. Your consultation fees will be set off against your instructions to the firm if you go on to instruct us.
For more information or to book an initial consultation, please contact us.