NCADC Campaigning Toolkit
Human rights arguments for leave to remain should be made at the same time as applying for asylum, but is it common for human rights grounds to arise after an initial application for asylum. This is particularly so with asylum applications made before 2007 and applications that have not been processed quickly under the New Asylum Model (NAM), as you may have lived in the UK for many years by the time your application is refused.
The UK is bound by the European Convention on Human Rights, and the protection of these rights is part of UK law through the Human Rights Act. The main rights that lead to a specific form of leave to remain are those under Articles 3 and 8 of the Convention.
Article 3 prohibits the use of torture, inhuman and degrading treatment.
Article 8 protects the right to family and private life.
In practice, if you can demonstrate your Article 3 rights are at risk, you are likely to fall under the Refugee Convention, but there are cases where Article 3 applies and the Refugee Convention does not. Article 3 is absolute, so there is no situation in which it can lawfully be breached.
Article 8, respect for private and family life, is not absolute. Human rights law recognises that people have the right to a family and private life, but also recognises that the state has the right to exercise immigration control. Article 8 arguments are therefore always about weighing up these opposing rights – if you can prove that the breach to your Article 8 rights would be so serious that it outweighs the state’s right to deport people with no right to stay in the UK, you should be granted leave to remain. This is called a disproportionate breach.
Factors that count against you in these arguments are things like immigration history and criminal convictions.
Factors that could be in your favour are family in the UK (particularly British children), lack of connection to your country of origin, length of time in the UK and community connections, and some medical and mental health needs.
It is worth remembering that a British partner or child is not enough to be granted leave to remain in the UK – UKBA frequently argue that there would be no breach to your family life if you were deported because the British family could come with you. This is now harder to argue with a British child because of the protection of Section 55 (the statutory duty to safeguard and promote children’s welfare and to treat the best interest of the child as a primary consideration under section 55 of the Borders Citizenship and Immigration Act 2009), but having a British child is not enough in itself to obtain leave to remain. For more on Section 55, see Free Movement blog for more information.
If your asylum application is accepted, you will be granted five years’ refugee status (with the right to work and claim benefits, mainstream housing, family reunion and a travel document). After five years, the normal process would be to apply for indefinite leave to remain and after a year of ILR you can apply for British citizenship.
If your case was handled under the ‘legacy’ process, by the Case Resolution Directorate (CRD), you were likely to be granted a period of leave to remain, without refugee status. This is because the asylum claims were not looked at in terms of risk, and factors such as length of time in the UK were considered instead. This means you are not automatically entitled to family reunion and a refugee travel document, and you should seek legal advice if you wish to challenge this form of status being granted. To start with, most people given a positive decision by the CRD were granted Indefinite Leave to Remain. The CRD later granted Discretionary Leave to Remain rather than Indefinite Leave, though there is an ongoing legal challenge to this.
Indefinite leave to remain does not have a time limit, but it can be revoked under some circumstances (such as serious a criminal conviction). You will also be able to apply for British citizenship. Citizenship is not automatic and there are requirements that must be met. As it is seen as a privilege granted by discretion, not a right, a refusal of citizenship is not easy to challenge. The later stages of some family and spouse/partner visas also result in indefinite leave to remain, but the requirements for these visas are being made even more strict by the current government (including high salary requirements, English language tests and longer probation periods). The pathway to indefinite leave to remain based on 14 years in the UK, where part of that 14 years was without valid leave to remain, will also be increased to 20 years.
A successful Article 8 application outside of the Immigration Rules in the past normally resulted in discretionary leave. This is temporary leave (often 3 years following an Article 8 application), which can be renewed until a point where you can apply for indefinite leave to remain. The current government has severely restricted the circumstances in which discretionary leave can be granted however, especially for family migration.
If someone is excluded from the Refugee Convention (for example, because of committing war crimes/crimes against humanity but their return would breach their Article 3 rights because they would be tortured if returned), they may be granted 6 months discretionary leave which can be renewed while the risk remains.
Discretionary leave could also be granted for exceptional humanitarian or medical reasons; and is currently the leave granted to unaccompanied asylum-seeking children, whose asylum claims have been refused but who cannot be returned because of inadequate reception arrangements in their home country.
Discretionary leave was also granted to some legacy cases decided positively by the CRD.
As will be seen below, the Refugee Convention provides protection for those facing a specific individual threat. It also allows for ‘subsidiary protection’ when there is a risk of serious harm, but not because of an individualised threat of persecution. This subsidiary protection may be discretionary leave (see above) or humanitarian protection.
This type of protection comes from the Qualification Directive, which is the interpretation of the Refugee Convention in European Law. The relationship between the Refugee Convention, the Qualification Direction, and the European Convention on Human Rights is complicated. Broadly speaking, humanitarian protection may be granted when there is a risk of unlawful killing, some uses of the death penalty, breaches of Article 3 and when there is a ‘serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.’ This last definition is article 15c of the Qualification Directive, and very few situations have been ruled to reach this high criterion.
Humanitarian protection (which, along with discretionary leave, replaced exceptional leave to remain) is normally granted for 5 years and brings the same rights as refugee status. It was initially ruled that family reunion was not a right attached to humanitarian protection, but a court judgment has since overturned this.
