Human Rights & Asylum
Personal immigration advice, delivered honestly, clearly, and compassionately
Under the Human Rights Act 1998 it is unlawful for any public authority, including the Home Office (UK Visas & Immigration) and its immigration officers to act in a way that is inconsistent with the rights set out within the European Convention on Human Rights.
The protection of the European Convention on Human Rights extends to every person within the United Kingdom and also to those under the authority and control of the UK immigration authorities.
What are the main eligibility requirements for leave to remain on human rights grounds?
In certain circumstances, you may be able to apply for leave to remain in the United Kingdom on the basis that to require you to leave would breach your human rights.
Anyone subject to an eligible immigration decision also has the right to appeal to the Immigration Tribunal on the ground that the immigration decision breaches their human rights.
The most common human rights provisions of the European Convention on Human Rights that are engaged in an immigration context are:
– Article 3: prohibition on torture and inhuman or degrading treatment or punishment;
– Article 8: the right to respect for private and family life.
If you are at risk of persecution in your country, and are unable to return because of this risk, you may be recognised as a refugee and be given permission to remain in the UK. If this applies to you, you should claim asylum.
Your right to protection is based on the 1951 Refugee Convention which is also part of UK law. The UK authorities must protect you from ‘refoulement’: your forcible return to a country where you are at risk of persecution.
What are the main eligibility requirements for asylum or refugee protection?
In order to be recognised as a refugee you must:
- Be outside your country of origin, or if you are stateless, the country in which you usually live;
- Have a well-founded fear of persecution on the basis of your race, religion, nationality, political opinion or your membership of a particular social group that puts you at risk because of the social, cultural, religious or political situation in your country (for example, your gender, gender identity, sexual orientation);
- Be unable or unwilling to get protection from the authorities in your country;
Have no part of your country where you are able to live in safety that you can reasonably be expected to go.
Before assessing whether the criteria above are met, the UK authorities will consider whether they are responsible for examining your claim. They may find that they are not responsible if:
- There is another country which you can go to which has already recognised you as a refugee or given you protection against ‘refoulement’;
- There is another safe country which you can go to and ask for protection, where it would be reasonable for you to go to due to a previous connection there. For example if you have previously claimed asylum in another EU country, or have family members living there.
You can apply for refugee settlement if you have been granted asylum or humanitarian protection status in the UK and have held this status for 5 years. Any dependants granted asylum or humanitarian protection at the same time as you, who were dependent on your claim, may also be included in the application.
What are the main eligibility requirements for refugee settlement?
The requirements for indefinite leave to remain in the UK as a refugee or person granted humanitarian protection are that:
- You have held a residence permit as a refugee or person granted humanitarian protection status (or their dependant), for a continuous period of five years in the UK; and
- This residence permit has not been revoked or not renewed; and
- You have not been:
- Sentenced to imprisonment for 4 years or more; or
- Sentenced to imprisonment for between 12 months or 4 years if less than 15 years have passed since the end of your sentence; or
- Sentenced to imprisonment for less than 12 months, if less than 7 years have passed since the end of the sentence; or
- Received a non-custodial sentence (such as a fine or community sentence) or other out of court disposal (such as a penalty notice or caution) that is recorded on your criminal record, if less than 2 years have passed since you received this; and
- The Secretary of State does not consider that you have caused serious harm by your offending; and
- The Secretary of State does not consider that you have persistently offended and shown a particular disregard for the law; and
- The Secretary of State does not consider that it is undesirable to grant settlement in the UK in light of your conduct, character or associations or the fact that you represent a threat to national security.
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