Updates, commentary, training and advice on immigration and asylum law
Humanitarian protection is being downgraded from 28 June 2022
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New rules on humanitarian protection status will apply to claims made on or after 28 June 2022. The changes are another example of how the government’s New Plan for Immigration is creating a crueller, less efficient and more costly asylum system.
Around 1,000 people a year are granted humanitarian protection. The Immigration Rules say that it is available to asylum seekers where, among other things, “substantial grounds have been shown for believing that the person concerned, if returned to the country of origin, 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”.
Currently, people who are recognised as being in need of humanitarian protection are granted five years’ permission to stay, as set out in paragraph 339Q(ii) of the Rules. After that, they can apply to stay permanently. The new rules will reduce humanitarian protection permission to the same length of time as “Group 2” refugees: those deemed by the government to be less deserving of protection for reasons including their inability to access a regular route to the UK. [If the term ‘Group 2 refugee’ means nothing to you, I recommend that you take Free Movement’s training course on the Nationality and Borders Act 2022, as a matter of urgency — Ed.]
While there is provision in the new paragraph 339QA(ii) for “exceptional circumstances” in relation to conditions for a Group 2 refugee, there is no such discretion for those who are granted temporary humanitarian protection. Therefore, while it may be possible to challenge a decision to put someone in Group 2 (and indeed, the Legal Aid Agency has already introduced an hourly rates payment for this work), with the effect that their status may ultimately be upgraded to Group 1, there is no equivalent provision for those granted humanitarian protection. The two and a half years’ permission appears to be all that is on offer.
Background to the changes
The government gave no real indication that it intended to make these changes. There is no mention in the explanatory notes to the Nationality and Borders Bill of humanitarian protection, nor in the draft Bill itself, nor in the final Nationality and Borders Act.
Eventually, in response to a written question from Olivia Blake MP, the Minister for Tackling Illegal Immigration mentioned in March 2022 that “the entitlements afforded to recipients of humanitarian protection will also be amended to reflect changes being made elsewhere in the asylum system”. He also referred to previous comments by Lord Wolfson of Tredegar QC during Lords committee stage of the Nationality and Borders Bill: “we will make further changes to align the entitlements of permission to stay granted on the basis of humanitarian protection to that provided to group 2 refugees.”
This change was confirmed in the most recent statement of changes to the Immigration Rules, and comes into effect on 28 June 2022. The rest of this article describes those new rules, as though they were already in force.
The new humanitarian protection rules in more detail
New paragraph 327F provides that, where an asylum claim has been deemed inadmissible under sections 80A or 80B of the Nationality, Immigration and Asylum Act 2002, then any associated claim for humanitarian protection (based on the same facts) will also be inadmissible. This extends the inadmissibility process to humanitarian protection claims. There is no right of appeal against that decision.
It is not possible to make a standalone claim for humanitarian protection to try to avoid this provision. Paragraph 327EC states that anyone who makes such a claim will be deemed to have made an asylum claim, and the person will be assessed for refugee status in the first instance (as is already the case) before humanitarian protection is considered.
The list of reasons for which a person can be excluded from a grant of humanitarian protection has also been extended to include, at paragraph 339D(iv), “having been convicted by a final judgement of a particularly serious crime (as defined in Section 72 of the Nationality, Immigration and Asylum Act 2002), constitutes a danger to the community of the UK”.
New paragraph 339QB states that where a person is granted humanitarian protection, they will be granted a new form of leave called “temporary humanitarian permission to stay”. This permission will last for a minimum of two and a half years (in practice the vast majority of grants will be made for this length of time).
Appendix Settlement Protection is also amended, in order to explicitly exclude those granted temporary humanitarian protection leave from applying for indefinite leave to remain under its provisions. They will however still qualify for indefinite leave after ten years of lawful residence in the UK as set out in paragraph 276B of the Immigration Rules, if they can meet the additional requirements relating to English language and the Life in the UK test, and afford the fees.
What will be the impact of the changes?
These changes mean that the grant of permission made to a person recognised as in need of humanitarian protection has been halved, and the amount of time that they need to spend in the UK before being able to settle here has been doubled. Instead of two applications until settlement, each person must now make up to five: the initial application, the extension from two and a half to five years, then to seven and a half, and then to ten years. Only then may they be eligible to apply for indefinite leave.
In the last year, humanitarian protection has been granted to people from Yemen, Libya, Iran, Iraq, Eritrea, Saudi Arabia and El Salvador, amongst others. In 2018 there were 1,296 grants of humanitarian protection, 1,235 in 2019, 1,005 in 2020 and 942 in 2021.
The human cost of this prolonged period of uncertainty and the need to continue to engage with the Home Office at such regular intervals will be huge. The department is already unable to process asylum-related applications in a timely manner.
Practical steps to take now
It is very important to note that these new rules apply only to applications made on or after 28 June 2022. The Home Office has been experiencing severe delays in screening interviews all year, but it has been confirmed that anyone who has called before 28 June 2022 to ask for an interview will not be caught by these new provisions. Anyone who does contact the Home Office before then should make sure they get a reference number from the person they speak to. It would also seem sensible to take a screenshot of the call as recorded in your phone’s recent calls list, capturing the phone number, the date and the length of the call. This should help if any evidential issues arise surrounding the date of contact.
Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.
Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.