A guidance change made in July 2023 is affecting the ability of the new-born babies of refugees to obtain refugee status. This is an issue that affects a limited group of people, namely those who have been granted refugee leave for five years, and have a child born in the UK during this period. However the impact can be significant as formal refugee status is important in terms of security and recognition of status, as well as rights like obtaining a convention travel document.

Background

The changes in approach to child dependants in asylum claims were made following the Supreme Court case of G v G[2021] UKSC 9. The decision related to a child in the asylum system in the UK who was also subject to child abduction proceedings under the Hague Convention. Although the main thrust of the decision related to the interaction between refugee and abduction proceedings, it has had a significant impact on families in the UK claiming asylum.

Shortly after the decision in G v G, the Home Office introduced the concept of a ‘Family Asylum Claim’(covered here). Under this process, a family’s asylum claim is dealt with together, although each member of the family is a claimant in their own right and if the claim is successful they will each be granted refugee status.

The guidance says that “The Family Asylum Claim will operate in a similar way to the current policy on dependants, but with additional steps to ensure any protection needs of the child are particularised”. If the child’s protection needs are separate to the main applicant then their claim will be considered separately. This guidance is about the decision making process, and no mention was made of what would happen to a child born after a grant of status was made to the rest of the family.  

Two years later, on 5 July 2023, the Home Office also updated their guidance ‘Dependants and former dependants’ to reflect the introduction of the family asylum claims process. The guidance states that it applies to dependants who do not have separate protection needs such that their claim needs to be considered separately, i.e. the guidance applies to those children who are dependant on a main applicant’s asylum claim.

If a child is born in the UK while the parent(s) asylum claim is ongoing, the position remains unchanged from previous policy positions – the new-born child is treated in the same way as any other dependent child in the asylum claim (the Home Office will need to be notified of the new child). However, the updated guidance has a significant impact on the situation for children born in the UK to parent(s) with protection status.

The previous position

The previous version of the guidance stated that:

Unless specifically requested by refugee parent(s), a child granted leave in line should not normally be recognised as a refugee since this status cannot be recognised without an individual assessment of the child’s protection needs. If refugee status is requested, and both parents are refugees, the child may be recognised as a refugee without detailed enquiry unless the child is of a different nationality. (our emphasis)

The important distinction being made is between the child being granted “leave in line” which is limited leave to remain that will expire at the same time as their parent(s), and the child being granted refugee status in addition to that leave.

The practical approach in this previous version of the guidance provided a simple way for refugee parent(s) to ask that a child born to them after their grant of status be recognised as a refugee and to be granted refugee leave in line with them. There was no application form or fee for making the request which could be made by emailing the Home Office. These requests were routinely granted where the child was the same nationality as their refugee parent(s).

The July 2023 changes

Following the changes to the guidance in July 2023, children born to parents granted protection status can still request protection status in line. However, the guidance now states that:

Unless specifically requested by the parent or parents with protection status, a child granted permission to stay in line must not be granted protection status in line since this status cannot be recognised without an individual assessment of the child’s protection needs. If protection status is requested, you must acquire the necessary evidence to decide whether the child qualifies for protection status in their own right – this is likely to be by writing to the claimant (with a response likely being provided by their responsible adult or adults). This is not a charged application and no application form or fee is involved in this process. However, a claim for asylum will need to be registered in person.

The requirement for an asylum claim to be made in person by the baby needing refugee status is a new one, as is the requirement to obtain evidence by writing to the refugee parent.

This is a completely unnecessary administrative burden for new parents with refugee status. It also puts the family back into the trauma of dealing with the asylum system they have just escaped, as well as the associated delays.

Although the guidance is unclear on this, it appears that requests for leave in line are still being granted under the old process, but any request for refugee status in addition to this are responded to with a direction to make an asylum claim. The practical impact is likely to be that more families will seek leave in line without also seeking refugee status that they are entitled to for their baby.

The practical impact of the changes

Ability to access legal assistance

One impact is the ability of the refugee parent(s) to get help with sorting out their child’s status. The email to the Home Office asking for leave (and previously refugee status as well) to be granted in line with the parent(s) is something that an OISC Level 1 adviser can assist with. This means that many charities and small organisations were able to help people with this.

Requiring an asylum claim to be made is outside of the permitted activities for that level of accreditation and is also a lot more labour intensive and likely to require a legal aid lawyer, in a sector without capacity. This is another barrier that will result in people accepting leave in line for their baby without refugee status.

Ability to access a convention travel document

Another problem this change has caused is that the Home Office has historically refused to grant a convention travel document to children born in the UK who have been granted leave in line without refugee status.

Paragraph 344(i) of the immigration rules states:

After having received a complete application for a travel document, the Secretary of State will issue to a person in the United Kingdom who meets the definition of a refugee in Article 1 of the Refugee Convention and their dependants travel documents, in the form set out in the Schedule to the Refugee Convention, for the purpose of travel outside the United Kingdom, unless compelling reasons of national security or public order otherwise require.

Drawing a distinction between a person recognised as a refugee and their dependants certainly indicates that the dependant does not also need to have refugee status, but that is not how the Home Office applies this in practice.

The guidance states that people who have been recognised as refugees and pre-flight family members of refugees who came to the UK under family reunion (who would have been granted leave in line but not status in line) must be granted convention travel documents if they apply. The guidance has not been changed since 2013 and is silent on the entitlement to a convention travel document of children born in the UK to people holding refugee status.

A plain reading interpretation of the rules would indicate that these children are entitled to a convention travel document, as would the fact that other dependant family members granted leave in line but not refugee status are entitled to the document, as explained in the guidance.

If the baby is unable to get a convention travel document, then the alternative is a certificate of travel which is obviously inappropriate as it would require the refugee parent(s) to make contact with their embassy, which can create further problems. It is also considerably more costly.

Were these changes required by G v G?

The Home Office’s position is that these changes were required following the Supreme Court’s decision. G v G was about a child who was a dependant on their main applicant parent’s asylum claim. It did not address the situation of babies who were born post-grant, as that was not in issue in the case.

Conclusion

This appears to be a completely unnecessary administrative burden for new parents with refugee status. If they are settled when the child is born in the UK, this will not be an issue as the child will automatically be a British citizen. Those with refugee status who later become settled will also be able to register their child as a British citizen.

It is also difficult to see how these changes have been made in accordance with the Home Secretary’s duties under section 55 of the Borders, Citizenship and Immigration Act 2009. It cannot be in a child’s best interests to be left in limbo or with a lesser form of leave, with fewer rights as a result.