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’ permission to remain in the UK on a pathway 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 different legal frameworks and refugee status is superior to a grant of humanitarian protection in some important 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.
We have updated this article to reflect the end of differentiated treatment.
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. There are several stages to this process.
First, officials will assess whether refugee status can be granted. If the person is not entitled to refugee status, the decision-maker moves on to assess whether humanitarian protection can be granted. If not, they move on to see whether permission to stay should be granted either under another paragraph of the Immigration Rules or on a discretionary basis.
Refugee status will be granted to an asylum seeker who meets the requirements of paragraph 334 of the Rules:
(i) they are in the United Kingdom or have arrived at a port of entry in the United Kingdom; and
(ii) they are a refugee, as defined in Article 1 of the 1951 Refugee Convention; and
(iii) there are no reasonable grounds for regarding them as a danger to the security of the United Kingdom in accordance with Article 33(2) of the Refugee Convention; and
(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 in accordance with Article 33(2) of the Refugee Convention as defined in Section 72 of the Nationality Immigration and Asylum Act 2002; 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 the UK) in breach of the Refugee Convention, to a country in which they would be persecuted 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 features 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.
As we have seen recently with Honduras and Namibia (and in 2022 with El Salvador and in 2015 with Syria), the Home Office can and will make it more difficult for people coming from countries where an asylum claim may be anticipated to get a standard visa. Those brought here under refugee resettlement programmes (not a straightforward process) are an exception to this general rule.
Once the person is inside the UK or at a port of entry, they must meet the legal definition of a refugee. The Immigration Rules point us 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 going on in that definition. Each word has been pored 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, but if you are interested, you can check out Colin’s post on this or the asylum training materials in the members’ section of the website.
If a person does fear persecution for one of those reasons, then assuming there are no reasons to regard them as a security risk or danger to the community, the final question 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.
What are the terms and conditions of refugee status?
Refugee status gives a person five years of permission to stay 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. After five years they can apply for settlement (aka “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 be considered for humanitarian protection.
The Immigration Rules cover humanitarian protection in paragraphs 339C and 339CA:
339C. An asylum applicant 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 are not a refugee within the meaning of Article 1 of the 1951 Refugee Convention;
(iii) substantial grounds have been shown for believing that the asylum applicant 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; 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.
Want to really get to grips with refugee law? Concise and readable, Colin’s textbook walks you through everything from well-founded fear to refoulement.
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.
A common example is where 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.
What are the terms and conditions of humanitarian protection?
A person granted humanitarian protection will get “humanitarian protection permission to stay”. This involves five years of permission to stay in the UK, with the right to work and study, and access to the NHS and benefits. They 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.
Differences between the two statuses
There are some differences that may not have much practical impact on most people’s lives, but are important to be aware of.
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? One set of official guidance states that “an individual with permission to stay on these grounds should in many cases be able to travel on their own national passport”. But elsewhere, the Home Office appears to discourage this. Guidance for officials on granting indefinite leave to remain in the UK for both refugees and recipients of humanitarian protection says:
You must ensure that 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 their country of former habitual residence. Where an individual has obtained a national passport or asked for their conditions of leave to be placed in it (a ‘Transfer of Conditions’ application), then you must consider whether a revocation referral is appropriate.
This is an understandable position to take with refugees: the Immigration Rules at paragraph 339A(i) say explicitly 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.
Victims of domestic abuse
The partners of people with refugee status benefit from visa protections for victims of domestic abuse. Under paragraph E-DVILR of the Immigration Rules, if a refugee subjects their partner to domestic abuse, the partner can apply for indefinite leave to remain in the UK.
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. This is a considerable lacuna in the law.
In cases where the Home Office seeks 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.
Refugee status and humanitarian protection are almost identical for most practical purposes. A person fearing return to their country of origin isn’t immediately going to quibble over a travel document or domestic violence protections. The differences are less significant than they were in previous years, some still remain as set out above. Indeed it was these differences which led the government to recognise the need to “upgrade” the humanitarian protection status of resettled Syrians to that of refugees in 2017.
This article was originally published in June 2019 and has been updated so that it is correct as of the new date of publication shown above. Sonia Lenegan and CJ McKinney contributed to a previous update.