The Nationality and Borders Act 2022 brought sweeping changes to asylum and immigration law in the UK. The Act distinguishes between people who made a protection claim before 28 June 2022, the commencement date of the Act, and those who claimed after that date. Changes include the length of leave to remain granted if a claim is successful and in turn the length of time before an individual is eligible to apply for indefinite leave to remain or settlement. This article has been revised to reflect those changes.
Before the new Act, all successful applications for asylum or humanitarian protection in the UK resulted in the grant of five years leave to remain, on what is known as a “protection route”. People granted leave on a protection route were then eligible to apply for settlement on completion of their five-year period. Under the new Immigration Rules, introduced under the new Act, the date the protection claim was lodged becomes very important.
Where the protection claim was made before 28 June 2022, people granted both refugee status and humanitarian protection will continue to be granted five years leave to remain (also known as permission to stay) and will be eligible for settlement on completion of those five years. Their applications for settlement will be made under the provisions of Appendix Settlement Protection.
Where a protection claim is made on or after 28 June 2022, the type and length of leave granted on a successful application depend on several factors. Everyone granted humanitarian protection after this date will be granted “temporary humanitarian permission to stay” for 30 months. They will only be eligible to apply for settlement after ten years under the separate long residence rules.
The position of those who are granted refugee status and who made their claim after the cut-off date is more complicated. Those who are determined by the Home Office to be “Group 1 refugees” will be granted “refugee permission to stay” and continue to be granted five years leave to remain with eligibility to then apply for settlement under the provisions discussed below. Those who are determined to be “Group 2 refugees” will be granted “temporary refugee permission to stay” and leave to remain for 30 months. They will be eligible for settlement after 10 years under the long residence rules, in line with those granted temporary humanitarian permission to stay.
The basis for determining whether a refugee is Group 1 or Group 2 under the new Act is complex and contentious, and will no doubt be the subject of many future Free Movement articles as well as much litigation. This article therefore only addresses the law and policy applicable to settlement applications made by people whose protection claim was made before 28 June 2022 and who were granted refugee status or humanitarian protection; and those who claimed after that date but were determined to be Group 1 refugees, as well as their family members.
A “safe return review” will be conducted in all applications for further leave or settlement by persons granted any form of protection status. That includes those granted 30 months temporary refugee or humanitarian permission to stay.
The requirements for settlement for those on the five-year protection route are set out in a dedicated Appendix to the Immigration Rules, entitled Appendix Settlement Protection. The current introduction to the Appendix confirms:
“Only those granted refugee status or humanitarian protection as a result of asylum applications made before 28 June 2022 or granted refugee status and refugee permission to stay on asylum applications made on or after 28 June 2022, are eligible to apply on the settlement protection route.”
The Appendix is further fleshed out by the policy guidance Settlement for people on a protection route (refugee status/humanitarian protection), which was most recently updated on 6 October 2021, before the new Act came into force. The new policy guidance on Refugee and humanitarian protection leave in claims made before 28 June 2022 and Permission to stay on a protection route for claims lodged on or after 28 June 2022, as well as the policy guidance Revocation of Refugee Status are also applicable.
Appendix Settlement Protection sets out the validity, suitability and eligibility requirements for settlement applications for persons on the five-year protection route, as well as for their partners and children who are with them in the UK having been granted leave to remain in line as their dependants. Applications on this route are free of charge. They are also in the scope of legal aid, subject to financial eligibility.
Applications must be made online on the specified form, SET (Protection Route) or SET(P). All mandatory sections of the form must be completed. Applicants must provide biometrics, usually by making an appointment within 45 days of submitting their online application or using the UK Immigration ID check app. They must also prove their identity and nationality, by submitting their BRP or travel document. Applicants must be in the UK on the date of application and will not be able to travel until further leave has been granted.
Applicants must have, or have last been granted, refugee status or humanitarian protection following an application made before 28 June 2022 or refugee permission to stay following an application made on or after 28 June 2022. Applications under this route from Group 2 refugees or those granted temporary humanitarian permission to stay will not be valid as they are subject to separate long residence rules.
Although applications made after the expiry of the initial five years leave will be valid, it is nevertheless very important to make the application before the initial leave expires wherever possible. Doing so ensures that the conditions attached to the leave are extended during the time it takes for the application to be decided, which should be within 6 months. This preserves things like the right to work and access public funds.
Applications which do not meet the validity requirements will be rejected as invalid. The settlement protection policy guidance confirms that Home Office caseworkers have the discretion to accept an application as valid if an applicant has failed to meet a validity requirement 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”.
Once a valid application has been made, the caseworker will then make checks to ensure the applicant does not fall foul of the suitability requirements. These relate to criminal convictions. Any criminal convictions, including those resulting in a non-custodial sentence, will result in mandatory refusal of the settlement application. That is unless a specified period has passed since the completion of the sentence, the length of which depends on the length of the sentence.
Applicants with serious criminal convictions may also 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. If the applicant has received a sentence of 12 months or more, they will also be considered for deportation.
Settlement applications will be refused if it would be “conducive to the public good [to do so] 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.”
The eligibility requirements 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.”
Although the rules do not refer to the new “refugee permission to stay” granted to Group 1 refugees, it is clear from the policy guidance that it nevertheless also encompasses them.
The qualifying period will be easily met when the application is made in line with standard Home Office guidance to apply in the last month of an existing grant of leave to remain. It may be possible to apply for settlement earlier in exceptional circumstances. The continuing status requirement will similarly be met provided there has been no revocation or renunciation of protection status during the initial period of leave.
Safe return review
The immigration rules do not refer to it, but it is apparent from the settlement protection policy guidance that a “safe return review” will be carried out as part of the eligibility consideration. The safe return review will also be conducted when Group 2 refugees and those granted temporary humanitarian permission to stay apply for extensions after 30 months.
The caseworker is required to consider whether there are any reasons why a grant of settlement or further leave to remain 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 relating to the Status of Refugees. It sets out the circumstances when the Refugee Convention will no longer apply because an individual no longer needs protection. This cessation clause is incorporated into the Immigration Rules at paragraph 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 settlement protection policy guidance sets out the information to be considered as part of the safe return review:
“In order to assess the eligibility, you must consider all available evidence by referring to:
- the information provided by the applicant with their application form
- the Immigration Officer’s reports
- other information held on Home Office databases and files
- policy guidance and country of origin information.”
The policy guidance sets out five circumstances which might lead to the refusal of settlement following the safe return review.
Re-applying for 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. The travel document will not be valid for travel to their country of origin. Obtaining or renewing a national passport is very likely to be considered a re-availment of the protection of their country of origin, leading to a revocation of refugee status and/or refusal of settlement.
The grant of humanitarian protection does not give entitlement to a Refugee Convention Travel Document. A person granted humanitarian protection will only be entitled to a Certificate of Travel if it was “officially accepted” in their asylum application that they have a fear of the national authorities in their country of origin, which is not always the case. These individuals 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 to travel on their national passport should be provided with the application, ideally with evidence from the asylum application showing they were not in fear of their national authorities.
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 the applicant is no longer at risk of persecution or serious harm. They will have shown that they can voluntarily re-establish themselves in their country of origin.
The settlement protection policy guidance also recognises that there may be particular compelling and compassionate reasons for returning to the country of origin. If a return was only for a very short period, or if the applicant notified the Home Office before doing so, this may not lead to refusal. 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 a refusal of their application.
The policy expressly recognises that travel to a neighbouring country to that from which they sought protection will not be penalised.
Significant and non-temporary change in the country of origin
On receiving the application for settlement, the caseworker will consider the situation at that time in the applicant’s country of origin. This is usually done by reference to the country policy and information notes. They will determine whether there has been a “significant and non-temporary change” in circumstances in the country since last the grant of protection status that may mean a further grant of leave is no longer required. 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 the 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. The changes must be such that the reasons for the grant of protection status have ceased to exist.”
Some guidance as to what is considered a significant or non-temporary change is to be found in the UNHCR’s Guidelines on Cessation of Refugee status. The country of origin must have changed in a profound and enduring manner before settlement can be refused or protection status revoked on this ground.
We can see from this example that while hostilities against all anti-government movements have halted, the government of Sudan remains unchanged and the risk of a resumption of hostilities against anti-government movements remains, particularly as the announcement is so recent. This indicates a temporary change and it is unlikely to result in revocation of her refugee status or refusal of settlement. But if the facts are altered slightly, the outcome could be different.
Here, a complete political change has occurred and a long period of time has elapsed. This indicates the durability of the change. As her political movement has seats in the government, it is likely Susan’s settlement application would be refused and her protection status revoked because the reasons she needed protection no longer exist; unless she can show she has other reasons for fearing return.
Even in situations where there has been a significant and non-temporary change, there are no grounds for automatic refusal. 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 of refugee status 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 “truly atrocious” forms of persecution it may be unreasonable to expect them to return.
In this scenario, the Home Office may argue that the changes in Sri Lanka mean he is no longer at risk. However, Andrew witnessed particularly traumatic violence against family members and is traumatised. He cannot reasonably be expected to return. Detailed representations explaining the basis of the original grant of asylum, as well as supporting medical evidence, should be submitted with the application.
In all cases where there has been a change in circumstances in the country of origin, it is important to explain why the applicant remains at risk and/or is unwilling to return. It is also helpful to highlight the length of residence in the UK and time away from the country of origin, as well as any family ties and other compassionate factors.
In practice, it is my experience that applications for settlement have been granted even where there has been a significant change in the country situation, including where there had been a subsequent, and adverse, Country Guidance decision in the courts. Nevertheless, it is always advisable to address any potential issues in the application. It is encouraging that the new policy guidance on claims made after 28 June 2022 states the following about safe return reviews:
“All those who apply for further permission to stay on a protection route, including settlement protection, will be subject to a safe return review with reference to the country situation at the date the application is considered. […] In the vast majority of cases, it is likely that a person’s protection needs will remain and that further permission to stay or settlement would be granted on that basis.”
Changes in personal circumstances
The caseworker will also consider whether there have been changes in the applicant’s personal circumstances that mean they could return safely to their country of origin. They should also consider whether protection was granted for more than one reason. Revocation should only be considered if there is no risk of persecution or serious harm on any grounds:
“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, a detailed explanation of why they 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.
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 must have been decisive in the decision to grant refugee status. The policy guidance on revocation of refugee status also states:
“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 scenarios apply, the caseworker will refer the case to the Status Review Unit to consider whether revocation of protection status is appropriate, in line with the policy guidance on revocation of refugee status. The unit is required to inform the applicant in writing of the reasons why revocation is being considered and to provide them with an opportunity to respond. The caseworker must consider the applicant’s response. The response may include any compassionate features which mean revocation is not appropriate and any other protection-based grounds, including new reasons not raised in the original grant of leave, which means protection is still required.
Where the unit maintains that revocation is appropriate, they must then contact the UNHCR to provide their view as to whether revocation is appropriate. The UNHCR’s view must be taken into consideration in making the final decision as to whether to proceed with revocation. The caseworker must also provide the UNHCR with a copy of the final decision.
If a decision is made to revoke protection status, the applicant will have the right to appeal to the First-tier Tribunal under section 82 (1)(c) of the Nationality, Immigration and Asylum Act 2002.
The partners and children of Group 1 refugees and persons granted protection status following a claim made before the cut-off date can apply for settlement with them. Only those who accompanied an eligible applicant when they applied for asylum and were included in the application as a dependant, or who was in a relationship with them 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 a relationship was established after the applicant was granted protection status, their partner will not be able to apply for settlement or leave in line. Instead, they will need to apply for leave to enter or remain as a family member under Appendix FM.
Any child born to the applicant in the UK after an individual was granted their protection status can apply for settlement with them, even if the child was not previously granted leave in line with the parent.
Dependants can be included in the SET(P) application form. They are subject to similar validity requirements to be in the UK when applying, to prove their identity and to provide biometrics. Dependants are also subject to the same suitability requirements relating to criminal convictions.
To be eligible for settlement, partners must meet the relationship requirements. 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 must also meet the relationship requirement. Documents such as birth certificates should 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.
Where the applicant has children born in the UK, it is always important to check whether the 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) of the British Nationality Act. Where the children are not already British citizens, they should be included in the settlement application and then apply for registration later.
Where the applicant and any dependants meet the validity, suitability and eligibility requirements of Appendix Settlement Protection, they will be granted settlement.
Where the applicant falls foul of the suitability provisions due to criminal convictions but is still entitled to protection status because they continue to be at risk in their country of origin, they will be granted a further period of leave to remain of at least 30 months. They will then be able to apply again for settlement once they can meet the suitability requirements with time. Partners or children who fall for refusal on suitability grounds but meet the relationship requirements will similarly be granted leave to remain for a period of 30 months.
Where the applicant is refused settlement but granted further leave to remain, they will have no right of appeal against the refusal of settlement. If a decision is made to revoke their protection status there will be a right of appeal, even if they are granted further leave to remain on non-protection grounds.
For most people granted protection status in the UK who continue to be eligible to apply under Appendix Settlement Protection, it will be reasonably straightforward to apply for settlement for themselves and their dependents. When preparing the application, it is always important to have a clear understanding of the basis on which protection status was originally granted, and copies of the relevant documents. It is also vital to check the current situation in their 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 which could trigger the caseworker to consider refusal or revocation under the safe return review, a detailed explanation of why they continue to need protection must be provided with the application.
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