Asylum status

An asylum seeker is an individual who has arrived in the country from abroad and made a claim for refugee status. Their claim must be registered with the Home Office. The claimant will continue to be classed as an asylum seeker until a final decision is made as to whether s/he should be granted refugee status or leave to remain in the UK. It should be noted that, formally, 'asylum seeker' is not an immigration status: it simply describes someone who has applied for the immigration status of refugee.

A refugee is defined as a person who has a well founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion [1] and so cannot live in his/her own country or any other country where s/he has a right to live.

Refugee status is only granted if it can be established that the individual has a well-founded fear of being persecuted. Between 1999 and August 2005, people granted refugee status were also granted indefinite leave to remain. This practice has now ceased, with refugees being granted limited leave to remain of five years. The situation in their country will be reviewed at this time and if still unsafe, and possibly conditional on their English language proficiency, they may be granted indefinite leave to remain.

Exceptional leave to remain is no longer granted by the Home Office. It was replaced by humanitarian protection and discretionary leave on 1 April 2003. [2]

Exceptional leave to remain is not defined in legislation. It was granted for a period of four years subject to a discretionary decision taken by the Secretary of State for the Home Office. [3] Exceptional leave to remain was granted to unsuccessful asylum seekers, mostly on compassionate or humanitarian grounds. It was abolished because the Home Office felt it was being over-used. Its replacements (humanitarian protection and discretionary leave) were introduced with the intention that they would be defined more narrowly and used more sparingly. [4]

Humanitarian protection will be granted to anyone who is unable to demonstrate a claim for indefinite leave to remain but who would, if returned to their country of origin, risk a serious threat to life or person arising from [5] the death penalty, or unlawful killing, or torture, inhuman or degrading treatment or punishment.

Humanitarian protection should be granted for up to three years although in specific cases it may be less. At the end of this period the Home Office will hold an active review of the situation. If it is decided that further protection is needed a claimant will usually receive indefinite leave to remain. If protection is no longer needed and a person has no other basis of stay in the UK, they will be expected to leave.

Discretionary leave will be granted in a number of specific circumstances where the claimant is unable to demonstrate a claim for refugee status, and where humanitarian protection is not granted. Discretionary leave may be granted to an individual in circumstances where: [6]

• her/his right to respect for private and family life would otherwise be breached

• s/he suffers from a severe medical condition

• s/he is an unaccompanied asylum-seeking child

• s/he is able to demonstrate particularly compelling reasons why removal would not be appropriate.

A grant of discretionary leave will be made for three years or in some cases less than this. If the applicant is an unaccompanied asylum-seeking child, discretionary leave will generally be granted until s/he turns 18 and can either be granted further leave to remain or be removed from the country.

A person who has been in the UK for six or more years under discretionary leave will generally be entitled to apply for indefinite leave to remain.

An asylum seeker granted refugee status or any other form of leave to remain has the same entitlements to public housing and welfare benefits as a British citizen. When a temporary leave runs out, this entitlement continues as long as any application for extension of leave is outstanding.