A successful application for asylum or humanitarian protection in the UK results in the grant of five years’ permission to stay, on what is known as a “protection route”. People granted permission on a protection route then need to apply for settlement, or “indefinite leave to remain”, shortly before the expiry of their initial permission.

This article looks at the law and policies that apply to settlement applications on protection routes, including the “safe return review” that will be conducted.

The Immigration Rules setting out the requirements for settlement are in Appendix Settlement Protection. This is fleshed out by the policy guidance on Settlement for people on a protection route. The policy guidance on Revocation of refugee status is also relevant.

Applications on this route are free of charge. They are also in scope of legal aid, subject to financial eligibility.

The Appendix Settlement Protection rules

Validity

The application must be made online. Applicants must prove their identity and nationality, by submitting their biometric residence permit or travel document. The Home Office has recently made it possible to prove identity using the UK Immigration ID check app; those who cannot use the app will need to provide biometrics (fingerprints and a photograph), usually by making an appointment to do so within 45 days of submitting their online application.

Applicants must be in the UK on the date of application and will not be able to travel abroad while the application is pending. 

The final requirement to make a valid application is that applicants must have, or have last been granted, permission on a protection route. This permission is normally granted for five years. Although applications made after the five years have expired will be valid, it is nevertheless very important to apply before permission expires wherever possible. Doing so ensures that the conditions attached to existing permission are extended during the time it takes for the application to be decided, preserving the right to work, access public funds and so on. The Home Office advises people to apply during their last month of permission.

Applications which do not meet these requirements will normally be rejected as invalid (i.e. thrown out without further consideration). The guidance does confirm that Home Office caseworkers have a discretion to accept an application as valid due to “exceptional circumstances”: for example, “it may be appropriate to consider an application as valid where the applicant is stuck outside of the UK due to a pandemic”.

Suitability

The caseworker will then make checks to ensure the applicant does not fall foul of the suitability requirements in paragraph STP 2.1, which relate to criminal convictions.

Where the applicant has been convicted of an offence and received a custodial sentence of four years or more, the application for settlement will always be refused. Where the sentence is between 12 months and four years, the application will be refused unless 15 years have passed since the end of their sentence. If the applicant has received a sentence of 12 months or more, they will also be considered for deportation.

Where the applicant has received a custodial sentence of less than 12 months, they will be refused settlement until seven years have passed since the end of their sentence. Applications for settlement will also be refused even where the applicant has received a non-custodial sentence, or other out-of-court settlement which is recorded on their criminal record, within the past two years. Settlement applications will also be refused if it would be “conducive to the public good because of their conduct, character, associations or other reasons (including convictions which do not fall within the other elements of the suitability criteria) or the fact they represent a threat to national security”.

Even if the application falls for refusal under the suitability requirements, the caseworker will nevertheless go on to consider the eligibility requirements:

Once you are satisfied that the application has met the validity requirements for settlement on a protection route, you must go on to consider whether the applicant meets the eligibility requirements – even where the applicant falls for refusal of settlement under the suitability requirements. This is because those who still require protection status, or qualify as a dependant, must be granted further permission to stay in the UK.

Applicants with serious criminal convictions may have their status revoked on the basis they should be excluded from the Refugee Convention under paragraphs 339AA or 339AC of Part 11 of the Rules, or excluded from humanitarian protection status under paragraph 339GB.

Eligibility

The eligibility requirements in Appendix Settlement Protection are deceptively straightforward:

Qualifying period requirement for settlement for a person on a protection route

STP 3.1. The applicant must have spent a continuous period of at least five years in the UK with either:

(a) refugee status; or

(b) humanitarian protection.

Continuing status requirement for settlement for a person on a protection route

STP 4.1. The applicant’s refugee status or humanitarian protection must not have been revoked or renounced.

The qualifying period requirement will be easily met where the application is made in line with standard Home Office guidance to apply in the last month of existing permission. It may however be possible to apply for settlement earlier if there are exceptional circumstances.

The continuing status requirement will similarly be met provided there has been no revocation or renunciation of protection status during the initial five-year period.

Dependants

The partners of people granted protection status can apply for settlement with them, provided they were either granted leave in line with them as dependants on the initial asylum application or were granted leave in line under the family reunion provisions of paragraphs 352A and 352D of Part 11 of the Rules.  This means that only partners who accompanied the applicant when they applied for asylum and were included in the application as a dependant, or who were in a relationship with the applicant before the applicant left their country of origin and later joined them in the UK under the family reunion provisions, can apply for settlement under Appendix Settlement Protection. 

Where the relationship was established after the applicant was granted protection status, their partner will not be able to apply for settlement, or indeed leave in line, as a dependant. Instead their partner will need to apply for permission to enter or remain, and eventually settlement, as a family member under Appendix FM.

Similarly, children of the applicant who were either granted leave in line as a dependant on the original asylum application or who joined them under the family reunion provisions can apply with them for settlement. Any child born to the applicant in the UK after they were granted protection status can also apply for settlement with them, even if the child was not previously granted leave in line with the parent.

Dependants are subject to similar validity requirements to be in the UK when applying, to prove their identity and to provide biometrics. Unless they are a child born in the UK while their parent had protection status, dependants must have, or have last been granted, permission as a dependent partner or child in order to make a valid application. 

Dependants are also subject to the same suitability requirements relating to criminal convictions as the main applicant.

The additional “relationship requirements” say that partners must either be applying for settlement with the applicant, or after the applicant has been granted settlement as long as they have leave in line. Their relationship must be “genuine and subsisting” and they must intend to continue to live together in the UK. Evidence of their cohabitation in the UK, such as utility bills, should be provided.

Children are required either to apply at the same time as the applicant, or to apply after the applicant has been granted settlement provided the child has leave in line or was born in the UK. If the child was born in the UK, their full birth certificate must be provided. Children who were granted leave in line with the applicant can apply for settlement with them even if they are over the age of 18.

It is always important to check whether UK-born children are entitled to British citizenship. Children born in the UK after a parent has been granted settlement will be British citizens by birth under section 1(1) of the British Nationality Act 1981. Children who are born in the UK and whose parent is later granted settlement before the child turns 18 are entitled to register as British citizens under section 1(3). Where the children are not already British citizens, they should be included in the settlement application and then apply for registration later.

Refusals

Where the applicant falls foul of the suitability provisions due to criminal convictions but is still entitled to refugee status or humanitarian protection because they continue to be at risk in their country of origin, they will be granted a further period of permission to remain of at least two and a half years. They will then be able to apply again for settlement if and when they are able to meet the suitability requirements with the passage of time after completion of their sentence. The same applies to partners and children with criminal convictions.

If the applicant is refused settlement but granted permission to stay, they will have no right of appeal against the refusal of settlement. By contrast, if the Home Office revokes the person’s refugee or humanitarian protection status altogether, they can appeal, even if they are granted further permission on non-protection grounds.

The safe return review

Despite the Rules themselves making no reference to it, the policy guidance says that a “safe return review” will be carried out as part of the settlement process. This means the caseworker will consider whether there are any reasons why a grant of settlement may no longer be appropriate because the applicant no longer needs protection. 

The factors to be considered in this context broadly mirror Article 1C of the Refugee Convention. This “cessation clause” is incorporated into the Immigration Rules at paragraph 339A:

Refugee Convention ceases to apply (cessation)

339A. This paragraph applies when the Secretary of State is satisfied that one or more of the following applies:

(i) they have voluntarily re-availed themselves of the protection of the country of nationality;

(ii) having lost their nationality, they have voluntarily re-acquired it;

(iii) they have acquired a new nationality, and enjoy the protection of the country of their new nationality;

(iv) they have voluntarily re-established themselves in the country which they left or outside which they remained owing to a fear of persecution;

(v) they can no longer, because the circumstances in connection with which they have been recognised as a refugee have ceased to exist, continue to refuse to avail themselves of the protection of the country of nationality; or

(vi) being a stateless person with no nationality, they are able, because the circumstances in connection with which they have been recognised as a refugee have ceased to exist, to return to the country of former habitual residence

In considering (v) and (vi), the Secretary of State shall have regard to whether the change of circumstances is of such a significant and non-temporary nature that the refugee’s fear of persecution can no longer be regarded as well-founded.

The policy guidance sets out five circumstances which might lead to the refusal of settlement following the safe return review. 

1. Obtaining a national passport

A person granted refugee status in the UK will be eligible for a Refugee Convention travel document to enable them to travel. They should not use or apply for their national passport. Obtaining or renewing a national passport is very likely to be considered re-availment of the protection of their country of origin, leading to revocation of refugee status and/or refusal of settlement.

The UNHCR Handbook says at paragraph 121:

In determining whether refugee status is lost in these circumstances, a distinction should be drawn between actual re‑availment of protection and occasional and incidental contacts with the national authorities. If a refugee applies for and obtains a national passport or its renewal, it will, in the absence of proof to the contrary, be presumed that he intends to avail himself of the protection of the country of his nationality. On the other hand, the acquisition of documents from the national authorities, for which non‑nationals would likewise have to apply – such as a birth or marriage certificate – or similar services, cannot be regarded as a re‑availment of protection.

The situation for people granted humanitarian protection is more complex. Someone with humanitarian protection is not entitled to a Refugee Convention travel document. They may be able to get a certificate of travel, but only if it was “officially accepted” in their protection application that they have a fear of the national authorities in their country of origin, which is not always the case.

Such people will therefore only be able to travel on their national passport. If that is the case, a full explanation of the reasons they have continued to apply for and travel on their national passport should be provided with the settlement application, ideally with evidence from the original application showing that they were not in fear of their national authorities. 

2. Return to country of origin or habitual residence

Returning to the country of origin may lead to refusal of settlement and/or revocation of protection status on the basis that the applicant is no longer at risk of persecution or serious harm there, and has voluntarily re-established themselves in their country of origin. 

Paragraph 134 of the UNHCR handbook states:

The clause refers to “voluntary re‑establishment”. This is to be understood as return to the country of nationality or former habitual residence with a view to permanently residing there. A temporary visit by a refugee to his former home country, not with a national passport but, for example, with a travel document issued by his country of residence, does not constitute “re‑establishment” and will not involve loss of refugee status under the present clause.

In practice, the Refugee Convention travel document will not be valid for travel to the country of origin.

The settlement protection policy guidance also recognises that there may be “compelling and compassionate” reasons for returning to the country of origin. If return was only for a very short period, or if the applicant notified the Home Office before doing so, it may not lead to refusal. The policy expressly recognises that travel to a neighbouring country to that from which they sought protection will not be penalised.

If the applicant has returned to their country of origin, it is vital to provide a detailed explanation of the reasons for doing so, and of why this should not result in refusal of their settlement application.

3. Significant and non-temporary change in country situation

On receiving the application for settlement, the caseworker will consider the situation at that time in the applicant’s country of origin to determine whether there has been a “significant and non-temporary change” since the grant of protection status, such that it is no longer required. This will usually be by reference to Home Office country policy and information notes.

The policy guidance states:

You must consider, utilising relevant country information reports, whether there have been any significant and non-temporary changes to the applicant’s country situation such that a fear of persecution can no longer be regarded as well-founded or there is no longer a real risk of serious harm. You must carefully consider if changes are temporary, for example the overthrow of one political party in favour of another might only be transitory or the election of a new government may not automatically mean that there is no longer a risk of persecution or serious harm for the individual. The changes must be such that the reasons for the grant of protection status have ceased to exist.

There is some guidance on what is considered a significant or non-temporary change in the UNHCR’s guidelines on cessation of refugee status which emphasises:

In taking any decision on application of the cessation clauses based on “ceased circumstances”, States must carefully assess the fundamental character of the changes in the country of nationality or origin, including the general human rights situation, as well as the particular cause of fear of persecution, in order to make sure in an objective and verifiable way that the situation which justified the granting of refugee status has ceased to exist….

An essential element in such assessment by States is the fundamental, stable and durable character of the changes, making use of appropriate information available in this respect, inter alia, from relevant specialized bodies, including particularly UNHCR

The country of origin must have therefore changed in a profound and enduring manner before settlement can be refused or protection status revoked on this ground.

But if the facts are altered slightly:

Even in situations where there has been a significant and non-temporary change, it does not automatically mean that an application for settlement will be refused. Article 1C of the Refugee Convention states that the cessation clauses do not apply to a refugee “who is able to invoke compelling reasons arising out of previous persecution for refusing to return to the country of his former habitual residence”.

The policy guidance on revocation states:

This exception applies to cases where refugees, or their family members, have suffered truly atrocious forms of persecution and it is unreasonable to expect them to return to their country of origin or former habitual residence.

This might, for example, include:

• ex-camp or prison detainees
• survivors or witnesses of particularly traumatic violence against family members, including sexual violence
• those who are severely traumatised

The presumption is that such persons have suffered grave acts of persecution, including at the hands of elements of the local population, and therefore cannot reasonably be expected to return. Application of the ‘compelling reasons’ exception is interpreted to extend beyond the actual words of the provision to apply to Article 1A(2) refugees and reflects a general humanitarian principle.

Where the applicant has suffered such “truly atrocious” forms of persecution it may be unreasonable to expect them to return.

In all cases where there has been a change in the country of origin, it is important to explain why the applicant remains at risk and/or is unwilling to return to their country of origin. It is also helpful to highlight the length of residence in the UK and away from the country of origin, as well as any family ties and other compassionate factors.

All that said: in my recent experience and that of my colleagues, in practice applications for settlement have been granted even where there has been a significant change in the country situation. This includes situations where there had been a subsequent, and adverse, country guidance decision. This is of course encouraging, but nevertheless it is always advisable to address any potential issues in the application.

4. Changes in personal circumstances

The caseworker will also consider whether there have been changes in the applicant’s personal circumstances such that they could return safely to their country of origin. The caseworker should however consider whether protection was granted for more than one reason, and revocation should only be considered if there is no risk of persecution or serious harm on any ground:

For example, a woman may have been granted on the basis that she refused to agree to a forced marriage. If she is now married, she may still face a risk of persecution or serious harm if she has married without the consent of her family. They may also fall within another category of risk and as such, revocation of protection status would not be appropriate.

As with changes in the country situation, where there have been changes in the applicant’s personal circumstances since the grant of protection status, a detailed explanation of why they nevertheless remain at risk should be provided. Factors such as family ties to the UK, private life established through employment and lengthy residence, and any other compassionate features should be emphasised.

5. Evidence that the original grant may not have been correct.

This will only be relevant if there is evidence to suggest the original grant of protection was obtained by misrepresentation. Any such misrepresentation must have been in relation to material facts, and decisive in the decision to grant protection status — “were it not for the deception, the claim would have been refused” — before it can be revoked on this ground.

The policy guidance on revocation states that caseworkers must be satisfied that “clear and justifiable evidence of deception exists”, such as:

• evidence that the refugee is not the nationality they claimed to be
• evidence that documents supplied to support the claim is not genuine
• evidence of actions after the grant that call into serious question the veracity of the claim

It adds that “even where deception is admitted or proven, the caseworker must consider whether the person still qualifies for a grant of refugee status for any other protection based reasons. It will only be appropriate to revoke status on grounds of misrepresentation where an individual does not need protection”.

Revocation consideration process

Where any of the above five scenarios apply, the caseworker will refer the case to the Status Review Unit to consider revocation. The Status Review Unit is required to inform the applicant in writing of the reasons why revocation is being considered and provide them with an opportunity to respond. The caseworker must consider whether there are any compassionate features that mean revocation is not appropriate, and whether there are any other protection-based grounds, including new reasons not raised in the original grant of leave. 

Where the Status Review Unit maintains that revocation is appropriate, it must then contact UNHCR to get its view on the case. UNHCR’s opinion must be taken into consideration in making the final decision to proceed with revocation and the caseworker must also provide UNHCR with a copy of the final written decision.

The person will have the right to appeal to the First-tier Tribunal under section 82(1)(c) of the Nationality, Immigration and Asylum Act 2002.

Conclusion

For most people granted protection status in the UK, it will be reasonably straightforward to apply for settlement for themselves and their dependants.

When preparing the application, it is always important to have a clear understanding of the basis on which asylum or humanitarian protection was originally granted, and copies of the relevant documents.  It is also vital to check the current situation in the person’s country of origin and to check whether they have returned to their country of origin or applied for a national passport. 

If there are any circumstances that could trigger the caseworker to consider revocation under the safe return review, a detailed explanation of why the refugee continues to need protection must be provided with the application.

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