Immigration & Nationality Directorate August 2005

1. Introduction
Humanitarian Protection and Discretionary Leave were introduced on 1 April 2003 following the abolition of exceptional leave on 31 March 2003.

On 30 August 2005, the policy on Humanitarian Protection was revised in line with new policies on the granting of refugee leave. Although the eligibility criteria have not changed, people who are granted leave on Humanitarian Protection grounds on or after 30 August 2005 (whether after initial consideration or following an allowed appeal) should be granted five years' limited leave in the first instance, rather than three years as previously. The arrangements for reviewing the five years' leave and granting further leave are similar to those now in place for dealing with refugee leave. They are summarised in broad terms below, but see the API on Refugee Leave for details.

Where leave was granted on Humanitarian Protection grounds before 30 August 2005, the review arrangements remain as they were before that date and the new arrangements do not apply. Sections of the previous edition of this instruction are attached at Annex A for reference in those cases only. The main differences in these 'old' cases are that people will continue to be able to apply for ILR after three years' leave on Humanitarian Protection grounds, but that these applications for settlement will always be subject to an active review. The new review category of "a significant and non-temporary change in the conditions in a particular country" (see section 7 below and the API on Refugee Leave)) will not be applied in these cases unless a separate instruction is issued to the contrary. On the other hand, note that the new arrangements for Home Office travel documents will apply even where Humanitarian Protection leave was granted before 30 August 2005.

Where an asylum claimant does not qualify for refugee status, the caseworker should always consider whether they qualify for Humanitarian Protection leave and if not, then consider whether they qualify for Discretionary Leave (see the API on Assessing the Claim).

This instruction explains the limited circumstances in which it would be appropriate to grant leave on Humanitarian Protection grounds. For guidance on Discretionary Leave please refer to the API on Discretionary Leave.

For details on family reunion and on dependants accompanying a claimant who is granted Humanitarian Protection leave, see the APIs on Family Reunion and Dependants respectively. Broadly speaking, anyone who is granted leave on Humanitarian Protection grounds on or after 30 August 2005 is entitled to apply for family reunion immediately.

The great majority of claims for Humanitarian Protection are likely to arise in the context of asylum claims. However, where an individual claims that although they are in need of international protection they are not seeking asylum and the reasons given clearly do not engage our obligations under the Refugee Convention (i.e. the fear of persecution is clearly not for one of the five Convention reasons), then this should be accepted as a standalone claim for Humanitarian Protection.

Separate instructions may be issued by AAPD in relation to handling of claims for Humanitarian Protection. For example, particular circumstances may arise in a country which may give rise to alternative arrangements such as differing periods of leave to be granted. The instructions will be in the form of APU Notices, Country Policy Bulletins or Operational Guidance Notes (OGNs). Where such instructions are in force, they will take precedence over the contents of these instructions, to the extent that they make different provisions.

Key points
* Leave may be granted person on Humanitarian Protection grounds to a person who would, if removed, face in the country of return a serious risk to life or person arising from:
-the death penalty
-unlawful killing
-torture or inhuman or degrading treatment or punishment arising from the deliberate infliction of ill treatment.

* If a person's removal would breach the ECHR they may be granted either Humanitarian Protection leave or Discretionary Leave depending on the circumstances of the case and the Convention right concerned, as set out in this instruction and the API on Discretionary Leave (see also the API on European Convention on Human Rights).
* Persons who face a real risk of treatment which meets the criteria for Humanitarian Protection will not be granted leave on that basis where they fall into the exclusion criteria set out in section 2.5 of this instruction. These criteria include those whose presence in the UK is not conducive to the public good, for example because of their criminal behaviour and/or their threat to the security of the United Kingdom.
* In assessing whether a person qualifies for Humanitarian Protection the principles of internal relocation and sufficiency of state protection should be applied. See the APIs on Internal Relocation and Assessing the Claim.
* Humanitarian Protection is separate from Temporary Protection. Temporary Protection will be granted only to individuals in a category of persons covered by a declaration of the Council of the European Union on the existence of a mass influx situation.
* Humanitarian Protection leave is granted outside the Immigration Rules.
* Leave should not be granted on Humanitarian Protection grounds to EU nationals who are exercising treaty rights.
* Humanitarian Protection leave should not be granted where another EU Member State or Norway / Iceland has accepted responsibility for an asylum claim under the Dublin arrangements or where an individual is otherwise removed on third country grounds.
* Those granted leave on Humanitarian Protection grounds have access to public funds and are entitled to work.

A person who qualifies for Humanitarian Protection and is granted leave on or after 30 August 2005 should be granted leave for five years. The process for reviewing leave and granting further leave is very similar to the process for reviewing and extending refugee leave, and is explained in full in the API on Refugee Leave. The main points are:
* There will be an avenue to apply for settlement (ILR) after five years of leave based on Humanitarian Protection, subject to the checks detailed in the API on Refugee Leave and any other requirements that may be imposed by the settlement policy in force at the time.
* A review will only be conducted during a period of leave in specified circumstances. These are listed in section 7 below, but see also the API on Refugee Leave.

2. ELIGIBILITY
Subject to the exclusion categories set out in section 2.5, it will be appropriate to grant Humanitarian Protection leave to those not granted asylum if they would face in the country of return a serious risk to life or person arising from:
* the death penalty
* unlawful killing
* torture or inhuman or degrading treatment or punishment arising from the deliberate infliction of ill treatment.

2.1. Standard of proof
In considering whether a person would face a serious risk to life or person the standard of proof to be applied is that which applies in asylum cases or ECHR Article 3 cases - i.e. a reasonable degree of likelihood or a real risk (these two tests reflect the same standard of proof).

2.2. Death penalty
Where a person satisfies us that, if they were removed, they would face a real risk of a death penalty being imposed and carried out they will, subject to section 2.5, qualify for Humanitarian Protection.

2.3. Unlawful killing
Where a person satisfies us that, if removed, they would face a real risk of being unlawfully killed they will, subject to section 2.5, qualify for Humanitarian Protection.

This would include a person who if returned to a war/conflict situation would face a real risk of being killed.
Examples of people who would not be included would be where the threat to life was:
(a) in defence of any person from unlawful violence;
(b) in order to effect lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.

Claims from those who face a real risk of being unlawfully killed if removed should be considered in the same way as those from people who face torture or inhuman or degrading treatment or punishment - if there is a real risk that a person, if returned to their home country, would be unlawfully killed by the state (or by agents of the state), or by non-State agents where there is no sufficiency of protection, then Humanitarian Protection leave should be granted, subject to section 2.5.

See the API on European Convention on Human Rights for further information on the application of this element of the definition.

2.4. Removal which would expose an individual to torture, inhuman or degrading treatment
This relates to potential treatment in the country of origin or the country to which removal is proposed (where different).

The terms in this section are based upon Article 3 of the ECHR which states that:

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Relationship between Article 3 and Persecution
In the starred determination of Kacaj in July 2001, the Immigration Appeal Tribunal noted the close link between asylum and Article 3. It said that:

We recognise the possibility that Article 3 could be violated by actions which did not have a sufficiently systemic character to amount to persecution, although we doubt that this refinement would be likely to be determinative in any but a very small minority of cases. But apart from this and a case where conduct amounting to persecution but not for a Convention reason was established, we find it difficult to envisage a sensible possibility that a breach of Article 3 could be established where an asylum claim failed.

There are two types of case where a person whose asylum claim is unsuccessful may qualify for Humanitarian Protection by virtue of the application of Article 3. Namely:
* The treatment feared amounts to persecution but is not for one of the five Convention reasons.
* The treatment or punishment is in the narrow category of actions which are of a severity and nature to amount to Article 3 treatment but not to amount to persecution - for example, where the actions feared do not have a sufficiently systemic character to amount to persecution. As the Tribunal noted in Kacaj, few cases are likely to fit this description.

A person may establish that if removed they would, in the country of return, be subject to treatment contrary to Article 3 yet fail on their asylum claim because they are excluded by virtue of Article 1F or 33(2) of the Refugee Convention. However, all such persons would similarly be excluded from Humanitarian Protection (see section 2.5 below). They may instead qualify for Discretionary Leave (see the API on Discretionary Leave).

Prison conditions
Poor prison conditions may reach the threshold for Article 3 where they attain a minimum level of severity. Caseworkers should first consider whether there are strong grounds for believing that there is a real risk that the claimant will be imprisoned on return. If so, caseworkers should go on to consider whether the conditions of detention the claimant will face are likely to reach the Article 3 threshold.

Section 7.2 of the API on European Convention on Human Rights sets out the issues for consideration, but see also the exclusion criteria in section 2.5 above.

Medical cases
Where a person's removal would be in breach of Article 3 of the ECHR because of their medical condition, the person is not in need of international protection and so would not qualify for Humanitarian Protection. Individuals who cannot be removed for this reason may qualify for Discretionary Leave but the threshold for establishing an Article 3 breach in such cases is very high. For more details see section 7.2 of the API on European Convention on Human Rights, section 3.4 of Chapter 1 Section 8 of the IDIs on Medical Examination and the API on Discretionary Leave.

Other severe humanitarian conditions meeting the Article 3 threshold
There may be some cases (although any such cases are likely to be rare) where the general conditions in the country - for example, absence of water, food or basic shelter - are so poor that removal for some individuals could, in extreme cases, be a breach of the United Kingdom?s Article 3 obligations. Caseworkers will still need to consider how those conditions would impact upon the individual if removed. Any such cases, if granted, would qualify for Discretionary Leave rather than Humanitarian Protection leave, but leave should not be granted without reference to a senior caseworker. See the API on Discretionary Leave.

2.5. Exclusion Criteria
A person who falls under the eligibility criteria listed above should not be granted leave on Humanitarian Protection grounds if there are serious reasons for considering that the person:
* has committed a crime against peace, a war crime, or a crime against humanity as defined in the international instruments drawn up to make provision in respect of such crimes
* has committed a serious crime in the United Kingdom or overseas
* has been guilty of acts contrary to the purposes and principles of the United Nations.

A "serious crime" for these purposes is:
- one for which a custodial sentence of at least twelve months has been imposed in the United Kingdom; or
- a crime considered serious enough to exclude the person from being a refugee in accordance with Article 1F(b) of the Convention (see the API on Cessation, cancellation and revocation of refugee status); or
- conviction for an offence listed in an order made under section 72 of the Nationality, Immigration and Asylum Act 2002 (see Asylum Policy Notice 3/2004 on Section 72 of the NIA Act 2002: Particularly Serious Crimes).

A person should not be granted leave on Humanitarian Protection grounds where they are included on the Sex Offenders Register.

A person shall be excluded from Humanitarian Protection where the Secretary of State deems that their presence in the United Kingdom is not conducive to the public good, for example on national security grounds, because of their character, conduct or associations. In particular, if a person engages in one or more unacceptable behaviours (whether in the UK or abroad) this will justify their exclusion from Humanitarian Protection. The list of unacceptable behaviours includes using any means or medium including:

* writing, producing, publishing or distributing material
* public speaking including preaching
* running a website or
* using a position of responsibility such as teacher, community or youth leader
to express views which:
* foment, justify or glorify terrorist violence in furtherance of particular beliefs
* seek to provoke others to terrorist acts
* foment other serious criminal activity or seek to provoke others to serious criminal acts, or
* foster hatred which may lead to inter-community violence in the UK.

This list is indicative, not exhaustive.

A person may also be excluded where this is considered appropriate in the light of their character, conduct or associations, insofar as this is not covered by the categories listed above. For example, where deportation action has been considered and has only not been pursued or has been abandoned because Article 2 or Article 3 considerations render removal impossible for the time being.

Where a person is excluded from Humanitarian Protection, consideration should be given to whether they qualify for Discretionary Leave (see the API on Discretionary Leave).
3. OTHER ISSUES RELEVANT TO THE CONSIDERATION OF THE CLAIM

3.1. Sufficiency of protection
In deciding whether a person qualifies for Humanitarian Protection, the sufficiency of protection test should be applied in the same way as it is applied in considering asylum claims. For further information on the sufficiency of protection test, see the API on Assessing the Claim.

3.2. Internal Relocation
In considering whether a person qualifies for Humanitarian Protection, the internal relocation test set out in Robinson should be applied. Thus, if there is a place in the country of return where they would not face a real risk of treatment which would qualify for Humanitarian Protection and it is not unduly harsh for them to live there, that person would not qualify for such protection. See the API on Internal Relocation.

4. GRANTING OR REFUSING HUMANITARIAN PROTECTION

4.1. Granting Humanitarian Protection
Leave on Humanitarian Protection grounds should only be considered after any asylum claim has been substantively considered, and it has been decided that asylum should be refused. In cases where Humanitarian Protection leave is granted, claimants should be issued with full reasons for refusal of asylum.

The Reasons For Refusal Letter (RFRL) should briefly set out the reasons why a person is being granted leave on Humanitarian Protection grounds. It should also state clearly whether the grant of Humanitarian Protection leave has been made on the basis of a fear of mistreatment by the national authorities or by non-state actors. This is important because, unless we accept that the individual has a fear of their own national authorities, we will expect those without a travel document at the time of decision to apply for a national passport rather than a Home Office travel document should they wish to travel abroad.

4.2. Refusing Humanitarian Protection
An asylum claim will always be deemed to be a claim for Humanitarian Protection. Therefore where it is decided that a claimant does not qualify for Humanitarian Protection the RFRL, as well as setting out why the asylum claim has been refused, should provide reasons why Humanitarian Protection is being refused.

The reasons for refusing any aspect of a human rights claim which are not covered by the reasons for refusing the Humanitarian Protection claim should also be given where no leave is being granted (this will normally be done, where applicable, when setting out why Discretionary Leave is also not being granted).

Where we are refusing Humanitarian Protection leave but granting Discretionary Leave, the reasons for refusing to grant Humanitarian Protection leave should still be addressed in the letter. There will be no need in such cases to address aspects of any human rights claim except in so far as this is done in explaining why asylum and Humanitarian Protection are being refused.

5. REQUEST FOR HUMANITARIAN PROTECTION AFTER THE INITIAL DECISION AND APPEAL STAGE
Occasions may arise when, following the refusal of asylum and exhaustion of all appeal rights, a request is nonetheless made for Humanitarian Protection, probably in the form of a human rights claim.

By the time all rights of appeal have been exhausted, there will be very few cases that would merit a grant of Humanitarian Protection leave because the relevant factors will have been considered at an earlier stage. However, caseworkers should give full and careful consideration to the reasons given for requesting such leave, and decide whether Humanitarian Protection leave or Discretionary Leave would be appropriate. See the API on Further Representations and Fresh Claims for further guidance.

5.1. Requests for Humanitarian Protection at removal stage
People whose asylum and/or human rights claims were refused before April 2003 did not have had the possibility of being granted leave on Humanitarian Protection grounds at the time of refusal. However, they would have had the opportunity to raise all issues relevant to their asylum and/or human rights claim and exceptional leave to enter or remain would have been granted in circumstances where Humanitarian Protection leave would now be granted. A request for Humanitarian Protection in such a case should therefore either be treated as further representations or, if treated as a fresh claim, be considered for certification under section 96 of the Nationality, Immigration and Asylum Act 2002 (as amended). These cases should be treated in accordance with normal principles since the individuals concerned will have had the opportunity to raise any facts relevant to the present Humanitarian Protection request at the time of their original claim (on asylum/human rights grounds).

For more information see the API on Further Representations and Fresh Claims. See also the API on Appeals - One-Stop Procedure on certification under section 96.

5.2. Requests to upgrade from Discretionary Leave to Humanitarian Protection
Situations may arise where a person previously refused leave on Humanitarian Protection grounds but granted Discretionary Leave seeks to "upgrade" their status to Humanitarian Protection. Such requests should be considered.

5.3. Tribunal determinations and court judgments
Where the Asylum and Immigration Tribunal or a court hears an appeal on human rights grounds and finds that the person would face treatment which qualifies them for Humanitarian Protection, leave should be granted on Humanitarian Protection grounds (subject to any appeal against that determination being lodged) provided the exclusion provisions in section 2.5 do not apply.

6. DURATION OF HUMANITARIAN PROTECTION
Leave on Humanitarian Protection grounds should be granted for a period of five years.

7. ENDING HUMANITARIAN PROTECTION
A grant of leave on Humanitarian Protection grounds will normally be reviewed during its currency only when certain events occur to trigger such a review. The triggers are discussed in section 5 of the API on Refugee Leave and, subject to the supplementary comments made below, caseworkers should apply them in accordance with that guidance. Broadly speaking, they are as set out in section 7.1-7.4 below.

7.1 Where an individual's own actions show that the need for protection has ceased
Given that the majority of grants of leave on Humanitarian Protection grounds will be made on the grounds of fear of persecution by non-state actors, it is unlikely that the Humanitarian Protection criteria will cease to apply simply because the holder accepts the protection of the country of nationality in some temporary or limited way. Obtaining a passport is the obvious example. A refugee who obtains a national passport risks ceasing to be regarded as a refugee (though that is by no means an inevitable consequence), but a person with Humanitarian Protection does not normally run a similar risk. However, each case that arises will need to be considered on its individual merits to see whether the actions of the person provide clear grounds for concluding that they no longer qualify for Humanitarian Protection.

For example, where a person has taken to spending periods of time in the country where they previously feared treatment which qualified them for Humanitarian Protection, that would be very strong evidence that they no longer qualified for it. On the other hand, if a person has merely re-acquired the nationality of their country, that will not necessarily mean they no longer qualify for Humanitarian Protection. For instance, that person may continue to fear treatment contrary to Article 3 from non-state actors against which the state is unable to protect them, and may not have claimed that the state was ever persecuting or mistreating them.

Caseworkers should also refer to the API on Cessation, Cancellation and Revocation of Refugee Status, especially in Humanitarian Protection cases involving a fear of the state as opposed to non-state agents.

7.2 Where evidence emerges indicating that an individual acquired leave by deception
If it transpires that a person has obtained their Humanitarian Protection leave by deception they will be liable to having removal directions set as an illegal entrant or in accordance with section 10 of the 1999 Immigration and Asylum Act. The setting of such directions under section 10 of the 1999 Act invalidates any leave given previously, but in the case of an illegal entrant it may be necessary to cancel the leave separately when the person is removed. Separate action to curtail leave granted on Humanitarian Protection grounds will only be required where removal directions cannot be set (eg for Article 3 ECHR reasons).

7.3 Where a person's actions suggest that protection should not be continued
Examples of the kind of actions meant are covered in sections 5.3 and 5.4 of the API on Refugee Leave. They range from crimes against peace and acts contrary to the purposes and principles of the United Nations to extradition requests and court recommendations for deportation.
Leave granted on the basis of Humanitarian Protection should normally be curtailed if a person becomes subject to any of the exclusion criteria set out in section 2.5 above. This will usually cover situations where a person's actions after the grant of Humanitarian Protection leave bring them within the scope of those criteria. There may also be some situations where we become aware that a person is subject to one of the disqualifying criteria only after the grant of leave on Humanitarian Protection grounds. Again, it will normally be appropriate to curtail any leave granted in such cases.

If the individual was liable to deportation, the deportation order would have the effect of cancelling leave. Separate action to revoke or vary leave would, therefore, only be necessary where a person was liable to deportation but the initiation of deportation action was not possible (e.g. for Article 3 ECHR reasons).

7.4 Where there is a significant and non-temporary change in the conditions in a particular country
The details of this trigger are set out in section 6 of the API on Refugee Leave. When Ministers decide to review the refugee status of people from a particular country, grants of Humanitarian Protection leave involving people from that country should also be reviewed. A person will no longer be eligible for Humanitarian Protection where the change of circumstances is of such a significant and non-temporary nature that the person no longer faces a real risk of serious harm. Note that this test is worded slightly differently from the test in refugee cases.

7.5 Consequences
When a person no longer qualifies for Humanitarian Protection, the expectation is that leave granted on that basis will be curtailed and that removal will follow, subject to any appeal. However, there may be cases where removal is not appropriate as the person qualifies for leave under the Immigration Rules or under another policy. There may also be cases where removal is intended but is prevented for the time being - for example, because of ECHR barriers. In such cases consideration will need to be given to granting Discretionary Leave, but note that practical obstacles to removal would not, in themselves, justify Discretionary Leave.

Chapter 9, section 5 of the IDI on General grounds for the refusal of entry clearance, leave to enter or variation of leave to enter or remain provides further guidance on curtailing leave. Paragraph 3 of that instruction covers the curtailment of leave granted outside the immigration rules.

8. FIVE YEAR REVIEW: GRANTING OR REFUSING SETTLEMENT
People who have completed five years' Humanitarian Protection leave will be eligible to apply for Indefinite Leave to Remain (ILR), also known as settlement.

The individual should apply for settlement shortly before the expiry of their leave. It will not normally be necessary to conduct an in-depth review to determine whether the individual is still entitled to Humanitarian Protection, as long as the application is made before the existing leave expires. Background character and conduct checks will usually suffice, unless the individual concerned should have been subject to a previous case review on the grounds of the triggers listed in section 7 above.

If the application for settlement is made out of time, however, a full review should be conducted to determine whether the individual still qualifies for Humanitarian Protection.

The Five Year Strategy included a proposal to introduce English language and knowledge of British life tests, which applicants granted limited leave should be required to pass before qualifying for ILR. The policy on this is still being developed. This API will be updated once the tests are introduced.

Where a person has held leave on grounds other than Humanitarian Protection, the following are the qualifying periods for settlement purposes:
* Leave on Humanitarian Protection grounds and Refugee Leave in any combination: five years' leave
* Leave on Humanitarian Protection grounds and Discretionary Leave in any combination: six years' leave. However where a person is granted Discretionary Leave after having been excluded from Humanitarian Protection, they would have to complete a cumulative total of ten years' leave before being eligible to apply for settlement.

The criteria to be applied on considering an application for settlement are those relevant to the category in which the applicant currently holds leave. So a person who held Discretionary Leave that has been "upgraded" to leave on Humanitarian Protection grounds should be considered for settlement after six years in accordance with the criteria on Humanitarian Protection.

Leave on other grounds (for instance, under the Immigration Rules) will not count towards the qualifying periods for settlement under this policy.

Where settlement is refused, consideration will need to be given to whether or not the applicant qualifies for leave on any other basis, including Discretionary Leave.

9. APPEAL RIGHTS
Note that changes to appeal rights are contained in a Bill currently before Parliament. This section will be updated when the Bill is enacted.

Section 82 of the Nationality, Immigration and Asylum Act 2002 provides an appeal right where certain immigration decisions are made. These immigration decisions include refusal of leave to enter, deciding to remove a person by way of directions, varying a person's leave such that no leave remains (ie curtailment) and refusing an application to vary leave such that no leave remains.

Where asylum is refused but an alternative form of leave is granted there may be an appeal under section 83 of the 2002 Act.

See the API on Appeals - Rights of Appeal.

10. ISSUING OF TRAVEL DOCUMENTS
A person who holds leave on Humanitarian Protection grounds may apply for a Home Office Certificate of Identity on the appropriate application form. Applicants must normally show that they have been formally and unreasonably refused a national passport, unless IND has accepted that they have a well-founded fear of their national authorities. It will no longer be necessary for those applying for a Certificate of Identity to provide a compelling reason for travelling. Unless the applicant holds ILR, the document will be valid until the holder's current leave to enter or remain expires.

11. TRANSITIONAL ARRANGEMENTS FOR CASES IN WHICH EXCEPTIONAL LEAVE WAS GRANTED BEFORE 1 APRIL 2003
Up until 2007 there will be individuals granted exceptional leave before April 2003 whose leave will be ending and who will be seeking to extend their stay.

Those applicants who were granted a four-year period of exceptional leave in one block and who apply for ILR at the end of that period should be considered for settlement with background character and conduct checks, but without a full review. In other words, they will not need to show that they would necessarily qualify for Humanitarian Protection or Discretionary Leave at the time of the ILR decision.

Where a person seeks an extension of stay having spent less than four years on exceptional leave (or where they have spent four years on exceptional leave and this has been granted in more than one block), their application should be subject to a full active review. It will be necessary for them to show that they qualify for Humanitarian Protection or Discretionary Leave at the time of the decision on their extension request. If they do not qualify on either of these grounds or qualify for leave on any other basis (such as under the Immigration Rules) their claim for an extension of stay should be refused.

If they do qualify for Humanitarian Protection the period of leave granted will depend on how long they have already spent on exceptional leave. Where the period spent on exceptional leave is:
* One year or under - grant three years HP.
* Over one year - grant the balance of leave to take the total leave to four years (e.g. where the person has spent two years on exceptional leave, grant two years HP).

See section 4.9 of the API on Active Reviews for further instructions on handling cases of this kind.

Enquiries: Further enquiries should normally be made in writing via a Senior Caseworker to Group E, APU.

ANNEX A

NOTE THAT THIS INSTRUCTION ONLY APPLIES IN CASES WHERE HUMANITARIAN PROTECTION WAS GRANTED BEFORE 30 AUGUST 2005. WHERE HUMANITARIAN PROTECTION WAS GRANTED AFTER THAT DATE, CASEWORKERS SHOULD REFER TO THE API ON HUMANITARIAN PROTECTION

1. INTRODUCTION
Humanitarian Protection and Discretionary Leave were introduced on 1 April 2003 following the abolition of exceptional leave on 31 March 2003.

On 30 August 2005, the policy on Humanitarian Protection was revised in line with new policies on the granting of refugee leave. Although the criteria for granting Humanitarian Protection have not changed, people who are found to qualify on or after 30 August 2005 should usually be granted five years' limited leave in the first instance, rather than three years as previously. The arrangements for reviewing these cases are also different from those in place before 30 August 2005.

However, where leave was granted on Humanitarian Protection grounds before 30 August 2005, the review arrangements remain as they were before that date and the new arrangements do not apply. This annex explains how caseworkers should review these 'old' cases. Under the 'old' arrangements, people will be continue to be able to apply for ILR after three years' Humanitarian Protection leave, but these applications for settlement will always be subject to an active review. The new review category of "a significant and non-temporary change in the conditions in a particular country" (see section 7 below and the API on Refugee Leave)) will not be applied in these cases. On the other hand, note that the new arrangements for Home Office travel documents will apply even where Humanitarian Protection was granted before 30 August 2005 (see the main API on Humanitarian Protection for details).

Note that the relevant appeal rights will be whatever rights are current at the date of decision. See section 5 below and the API on Appeals - Rights of Appeal.

2. REVOCATION OF HUMANITARIAN PROTECTION
A grant of Humanitarian Protection will not normally be actively reviewed during its currency. This paragraph sets out the circumstances when consideration should be given to revoking or varying leave granted on that basis.

In line with normal practice leave should not normally be curtailed if the leave will expire in less than six months unless the applicant falls into one of the excluded categories at paragraph 2.5 and removal action can be taken.

Any decision to revoke or vary leave should not be taken without reference to a senior caseworker.

2.1 Voluntary actions leading to revocation
There will be occasions where a person shows through their own actions that they no longer fear treatment that originally qualified them for Humanitarian Protection, or that even if they do continue to have such a fear another country is now better placed than the United Kingdom to provide protection against it. Reasons for revocation of refugee status based on actions of an individual are provided for in Article 1C (1-4) of the 1951 Refugee Convention. They are:
* voluntary re-availment of national protection;
* voluntary re-acquisition of nationality;
* acquisition of a new nationality;
* voluntary re-establishment in the country where persecution was feared.

These situations will normally be applicable to considering whether to revoke Humanitarian Protection. However as Humanitarian Protection is not identical to refugee status the above reasons may not always be relevant to whether Humanitarian Protection should be revoked (or varied) or not . Each case that arises will need to be considered on its individual merits to see whether the actions of the person provide clear grounds for concluding that they no longer qualify for Humanitarian Protection.

For example, where a person has taken to spending periods of time in the country where they previously feared treatment which qualified them for Humanitarian Protection that would be very strong evidence that they no longer qualified for it. On the other hand, if a person has re-acquired the nationality of their country that will not necessarily mean they no longer qualify for Humanitarian Protection if, for instance, they continue to fear treatment contrary to Article 3 from non-state actors against which the State is unable to protect them, and that person did not originally claim that the state was persecuting or mistreating them.

2.2 Revocation as a result of a change in country conditions
A grant of Humanitarian Protection should not be reviewed on these grounds before it ends, unless there is a specific instruction from AAPD in relation to a particular country or to a category of cases in respect of a particular country. Any such instruction will provide details of what cases should be reviewed and how that review should be undertaken. Since all Humanitarian Protection grants will be given on an individual basis, any consideration to revoke such leave following a change in country conditions would need to take into account the effect of that change on the circumstances of the individual.

2.3 Revocation on the grounds of character or conduct (including deception)
Leave granted on the basis of Humanitarian Protection should normally be revoked or varied if a person becomes subject to any of the exclusion criteria set out in paragraph 2.5 above. This will usually cover situations where a person's actions after the grant of Humanitarian Protection bring them within the scope of those criteria. There may also be some situations where we become aware that a person is subject to one of the disqualifying criteria only after the grant of Humanitarian Protection. Again, it would normally be appropriate to revoke or vary any leave granted in such cases.

If the individual was liable to deportation, the deportation order would have the effect of cancelling leave. Separate action to revoke or vary leave would, therefore, only be necessary where a person was liable to deportation but the initiation of deportation action was not possible (e.g. for Article 3 ECHR reasons).

If it transpires that a person has obtained their Humanitarian Protection by deception they will be liable to having removal directions set as an illegal entrant or in accordance with section 10 of the 1999 Immigration and Asylum Act. The setting of such directions under section 10 of the 1999 Act invalidates any leave given previously, but in the case of an illegal entrant it may be necessary to cancel the leave separately when the person is removed. Separate action to revoke Humanitarian Protection will only be required where removal directions cannot be set (eg for Article 3 ECHR reasons).

2.4 Action following revocation
When Humanitarian Protection is revoked the expectation is that removal will follow, subject to any appeal. However, there will be some cases where removal is not appropriate as the person qualifies for leave under the Immigration Rules. There may also be cases (most likely in the paragraph 7.3 category) where removal is intended but is prevented for the time being - for example, because of ECHR barriers. In such cases consideration will need to be given to the granting of Discretionary Leave.

So occasions may arise where leave is in effect being varied (eg one form of leave (Humanitarian Protection) being replaced with another, shorter, form of leave (Discretionary Leave)) rather than being revoked.

3. 3 YEAR REVIEW: GRANTING OR REFUSING SETTLEMENT
People who have completed 3 years on Humanitarian Protection will be eligible to apply for Indefinite Leave to Remain (ILR), also known as settlement.

The individual should apply for settlement shortly before the expiry of their Humanitarian Protection leave. The application for settlement should be considered in the light of the circumstances prevailing at that time.

Note that any time spent on Discretionary Leave (or under a category of the Immigration Rules) does not count towards the three year qualifying period for settlement under the Humanitarian Protection scheme.

3.1 Consideration of application for settlement
All applications for ILR will be the subject of an active review, to decide whether the person still qualifies for Humanitarian Protection (or any leave on any other basis that is requested). This review will take account of the information on the extension request form, present country information and any relevant information provided at the time of the original grant of Humanitarian Protection. It will normally be carried out on the papers but there will be discretion to conduct an interview to ascertain further information where this is considered appropriate.

Where it comes to light at the time of the active review or otherwise that a person has conducted one of the "voluntary actions" (see paragraph 7.1 above) the reasons for this will need to be sought.

Where there has been a change in the applicant's country of origin (see paragraph 7.2. above) this may mean the basis for fearing mistreatment no longer subsists. Consideration will need to be given to the basis on which leave was originally granted and to any information provided by the applicant to consider whether they are still in need of Humanitarian Protection.

Where an applicant is identified as falling within the scope of the exclusion criteria (see paragraph 2.5. above) at the time of the active review, ILR should be refused (as should any extension of Humanitarian Protection - if the person cannot be removed for ECHR reasons any leave granted should be Discretionary Leave).

3.2 Granting settlement
Where a person has completed three years Humanitarian Protection and the review confirms that such protection is still appropriate they will qualify for ILR unless the case is subject to any other instruction (see introduction).

3.3 Refusing settlement and/or further Humanitarian Protection
Where settlement or (if a separate instruction is in force) any further Humanitarian Protection is refused consideration will need to be given to whether or not the applicant qualifies for leave on any other basis, including Discretionary Leave.

4. REVIEWS WHERE LESS THAN 3 YEARS HUMANITARIAN PROTECTION WAS INITIALLY GRANTED
A person may have been granted less than 3 years in accordance with a separate instruction which may have been issued. When that leave expires and the person seeks an extension to their stay an active review should be conducted.

Where it is decided that the need for Humanitarian Protection continues a further period of leave should be granted. The period should bring the total time on Humanitarian Protection to 3 years or, if a separate instruction in regard to this category of claim is still in force, for a period of time in accordance with that instruction. However, where granting a further period of leave in accordance with the instruction would lead to more than 3 years being spent on Humanitarian Protection, a shorter period of time should instead be granted to complete the 3 years.

Where it is decided that the need for Humanitarian Protection has ceased the application should be refused unless the person qualifies for leave on another basis.

5. APPEAL RIGHTS
Note that the relevant appeal rights will be whatever rights are current at the date of decision. For instance, if ILR is refused following a period of Humanitarian Protection leave granted before 30 August 2005, the decision will be subject to appeal rights as they stand at the date of decision, not as they stood on 29 August 2005.

For full details of appeal rights see the API on Appeals - Rights of Appeal.

6. TRANSITIONAL ARRANGEMENTS
Up until 2007 there will be individuals granted exceptional leave before April 2003 whose leave will be ending and who will be seeking to extend their stay.

Those applicants who were granted a four-year period of exceptional leave in one block and who apply for ILR at the end of that period should be considered for settlement with background character and conduct checks, but without a full review. In other words, they will not need to show that they would necessarily qualify for Humanitarian Protection or Discretionary Leave at the time of the ILR decision.

Where a person seeks an extension of stay having spent less than four years on exceptional leave (or where they have spent four years on exceptional leave and this has been granted in more than one block), their application should be subject to a full active review. It will be necessary for them to show that they qualify for Humanitarian Protection or Discretionary Leave at the time of the ILR decision. If they do not qualify on either of these grounds or qualify for leave on any other basis (such as under the Immigration Rules) their claim for an extension of stay should be refused.

If they do qualify for Humanitarian Protection the period of leave granted will depend on how long they have already spent on exceptional leave. Where the period spent on exceptional leave is:
* One year or under - grant three years' Humanitarian Protection.
* Over one year - grant the balance of leave to take the total leave to four years (e.g. where the person has spent two years on exceptional leave, grant two years' Humanitarian Protection).

A person granted Humanitarian Protection for under 3 years in accordance with this paragraph (i.e. because they have spent over 1 year on exceptional leave) should be considered for settlement at the point they have spent 4 years in total with Humanitarian Protection leave and ELE/R).