Humanitarian Protection: An Alternative to Refugee Protection

Although strictly speaking, the definition of ’protection claim’ refers to a claim that removal of the claimant from the United Kingdom would breach the United Kingdom’s obligation under the Refugee Convention  or  in relation to persons eligible for a grant of humanitarian protection,  there are also other forms of  protection a claimant may seek to place reliance  upon such  as:

  • Article 3 protection( e.g based upon medical grounds, general country conditions or prison conditions );
  • Protection provided to those who are stateless;
  • Protection provided to those who been subject to trafficking

The consideration of claims for humanitarian  protection  is  however quite different from other forms of protection having regard to  the  interpretation  of the relevant originating provisions including the  criteria that an applicant must fall into.

Humanitarian Protection was introduced on 1 April 2003 following the abolition of Exceptional Leave to Remain (ELR).  However since 9 October 2006, UK legislation and policy on Humanitarian Protection has reflected the subsidiary protection provisions of Articles 15 – 19 of the Qualification Directive (2004/83/EC) of 29 April 2004. Subsidiary protection is intended to be complementary and additional to the protection available in the Refugee Convention.

For applicants from countries such as Iraq, Afghanistan   or Somalia for example,  proceedings in the Upper Tribunal and  higher courts have shown  how difficult the area  of  humanitarian protection  is  to adjudicate upon and correspondingly,   how at times  it  appears almost  impossible for  applicants to succeed  in establishing  a claim for humanitarian protection. Where a claim does succeed there are several  important  protective entitlements as set out below.

(1)COMMUNITY LEGISLATION–THE QUALIFICATION DIRECTIVE

The relevant Directive is,   “Council Directive 2004/83/EC of 29 April 2004, on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted”also known as the Qualification Directive.

Relevant Recitals to the Preamble of the Directive include:

(1) A common policy on asylum, including a Common European Asylum System, is a constituent part of the European Union’s objective of progressively establishing an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Community.

 

(6) The main objective of this Directive is, on the one hand, to ensure that Member States apply common criteria for the identification of persons genuinely in need of international protection, and, on the other hand, to ensure that a minimum level of benefits is available for these persons in all Member States.
(10) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular this Directive seeks to ensure full respect for human dignity and the right to asylum of applicants for asylum and their accompanying family members.

 

(24) Minimum standards for the definition and content of subsidiary protection status should also be laid down. Subsidiary protection should be complementary and additional to the refugee protection enshrined in the Geneva Convention.

 

(25) It is necessary to introduce criteria on the basis of which applicants for international protection are to be recognised as eligible for subsidiary protection. Those criteria should be drawn from international obligations under human rights instruments and practices existing in Member States.

 

(26) Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm”.

Relevant Articles of the Directive include;

Article 1

Subject matter and scope

The purpose of this Directive is to lay down minimum standards for the qualification of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted.”

Article 2

Definitions

For the purposes of this Directive:

(a) ‘international protection’ means the refugee and subsidiary protection status as defined in (d) and (f);
(c) ‘refugee’ means a third country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it, and to whom Article 12 does not apply;
(d) ‘refugee status’ means the recognition by a Member State of a third country national or a stateless person as a refugee;

 

(e) ‘person eligible for subsidiary protection’ means a third country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country;

 

(f) ‘subsidiary protection status’ means the recognition by a Member State of a third country national or a stateless person as a person eligible for subsidiary protection;

 

(g) ‘application for international protection’ means a request made by a third country national or a stateless person for protection from a Member State, who can be understood to seek refugee status or subsidiary protection status, and who does not explicitly request another kind of protection, outside the scope of this Directive, that can be applied for separately;

 

Article 15

Serious harm

Serious harm consists of:

(a)

death penalty or execution; or

(b)

torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or

(c)

serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.

 

(2)DOMESTIC REGULATIONS

The Refugee or Person in Need of International Protection

(Qualification) Regulations 2006 No. 2525 came into force on 9 October 2006.

The Explanatory Note to the Regulations states, “ These Regulations together with amendments to the Immigration Rules (HC 395) in part implement Council Directive 2004/83/EC of 29th April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ L304

30.9.2004 p 12) (“the Directive”). Many parts of the Directive do not require implementation as consistent provision is already made in existing domestic legislation….”

The Regulations themselves  therefore run only from Regulations 1 to 7.

(3) THE IMMIGRATION RULES PART 11 AND THE  CORRESPONDING ARTICLES  OF THE  QUALIFCATION DIRECTION

The procedures set out in Part 11 of the Immigration Rules  apply to the consideration of admissible applications for asylum and humanitarian protection.

The Rules relevantly provide:

Article 8 of the ECHR and Humanitarian Protection: Paragraph 326B provides that where the Secretary of State is considering a claim for asylum or humanitarian protection under Part 11  of the Immigration Rules, she will consider any Article 8 elements of that claim in line with the provisions of Appendix FM (family life) and in line with paragraphs 276ADE to 276DH (private life) of the Rules which are relevant to those elements unless the person is someone to whom Part 13 of the Rules applies.

Grant of humanitarian protection: Paragraph 339C of the Rules provides:

“339C. A person will be granted humanitarian protection in the United Kingdom if the Secretary of State is satisfied that:

(i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom;

(ii) he does not qualify as a refugee as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006;

(iii) substantial grounds have been shown for believing that the person concerned, if he returned to the country of return, would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail himself of the protection of that country; and

(iv) he is not excluded from a grant of humanitarian protection.

Serious harm consists of:

(i) the death penalty or execution;

(ii) unlawful killing;

(iii) torture or inhuman or degrading treatment or punishment of a person in the country of return; or

(iv) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict”.

Paragraph 339C needs to be read in conjunction with Articles 2 (e) and 15 of the Qualification Directive.

Exclusion from humanitarian protection: Paragraph 339D provides that a person is excluded from a grant of humanitarian protection under paragraph 339C (iv) where the Secretary of State is satisfied that:

(i) there are serious reasons for considering that he has committed a crime against peace, a war crime, a crime against humanity, or any other serious crime or instigated or otherwise participated in such crimes;

(ii) there are serious reasons for considering that he is guilty of acts contrary to the purposes and principles of the United Nations or has committed, prepared or instigated such acts or encouraged or induced others to commit, prepare or instigate instigated such acts;

(iii) there are serious reasons for considering that he constitutes a danger to the community or to the security of he United Kingdom; or

(iv) prior to his admission to the United Kingdom the person committed a crime outside the scope of (i) and (ii) that would be punishable by imprisonment were it committed in the United Kingdom and the person left his country of origin solely in order to avoid sanctions resulting from the crime.

Article 17 of the Qualification Directive provides for exclusion from humanitarian protection.

Refusal of Humanitarian Protection: Paragraph 339F states that where the criteria set out in paragraph 339C is not met humanitarian protection will be refused.

Revocation and non- renewal of humanitarian protection: Paragraph 339G provides that a person’s humanitarian protection granted under paragraph 339C will be revoked or not renewed if any of paragraphs 339GA to 339GC apply. A person’s humanitarian protection granted under paragraph 339C may be revoked or not renewed if paragraph 339GD applies.

Cessation of humanitarian protection: Paragraph 339GA provides for the cessation of humanitarian protection  and this paragraph applies where the Secretary of State is satisfied that the circumstances which led to the grant of humanitarian protection have ceased to exist or have changed to such a degree that such protection is no longer required. In applying this paragraph the Secretary of State shall have regard to whether 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.

Article 16 of the Qualification Directive provide for the cessation of humanitarian protection.

Exclusion from humanitarian protection: Paragraph 339GB provides for the exclusion from humanitarian protection. . This paragraph applies where the Secretary of State is satisfied that:

“(i) the person granted humanitarian protection should have been or is excluded from humanitarian protection because there are serious reasons for considering that he has committed a crime against peace, a war crime, a crime against humanity, or any other serious crime or instigated or otherwise participated in such crimes;

(ii) the person granted humanitarian protection should have been or is excluded from humanitarian protection because there are serious reasons for considering that he is guilty of acts contrary to the purposes and principles of the United Nations or has committed, prepared or instigated such acts or encouraged or induced others to commit, prepare or instigate such acts;

(iii) the person granted humanitarian protection should have been or is excluded from humanitarian protection because there are serious reasons for considering that he constitutes a danger to the community or to the security of the United Kingdom”.

Paragraph 339GC applies where the Secretary of State is satisfied that the person granted humanitarian protection should have been or is excluded from humanitarian protection because prior to his admission to the United Kingdom the person committed a crime outside the scope of paragraph 339GB (i) and (ii) that would be punishable by imprisonment had it been committed in the United Kingdom and the person left his country of origin solely in order to avoid sanctions resulting from the crime.

Misrepresentation, omission of facts and false documents:  Paragraph 339GD applies where the Secretary of State is satisfied that the person granted humanitarian protection misrepresented or omitted facts, including the use of false documents, which were decisive to the grant of humanitarian protection.

Revocation and non- renewal of humanitarian protection: Paragraph 339H provides that when a person’s humanitarian protection is revoked or not renewed any limited or indefinite leave which they have may be curtailed or cancelled.

Article 19 of the Qualification Directive provides for the revocation of, ending of or refusal to renew subsidiary protection status and is catered for by paragraphs 339F to 339GD of the immigration rules.

The Immigration Rules between paragraphs 339HA and 339N provide for how the Secretary of State will consider applications for asylum , human rights and humanitarian  protection, including the assessment of those claims  and well  as clarifying the duty   of the applicant   to substantiate or establish  their  claim. These paragraphs seek to implement Article 4 of the Qualification Directive , as regards assessment of facts and circumstances. Member States are permitted to consider it the duty of the applicant to submit as soon as possible all elements needed to substantiate the application for international protection. In cooperation with the applicant it is the duty of the Member State to assess the relevant elements of the application.

Consideration of eligibility for humanitarian protection: Paragraphs 339HA to 339IA provide for how the Secretary of State will undertake consideration  of  a person’s  asylum claim  or their eligibility to humanitarian protection. In essence when the Secretary of State considers a person’s asylum claim, eligibility for a grant of humanitarian protection or human rights claim it is the duty of the person to submit to the Secretary of State as soon as possible all material factors needed to substantiate the asylum claim or establish that he is a person eligible for humanitarian protection or substantiate the human rights claim, which the Secretary of State shall assess in cooperation with the person. Paragraph 339I sets out the material factors applicable. Paragraph 339IA makes it clear that for the purposes of examining individual applications for asylum, information provided in support of an application and the fact that an application has been made shall not be disclosed to the alleged actor(s) of persecution of the applicant, and information shall not be obtained from the alleged actor(s) of persecution that would result in their being directly informed that an application for asylum has been made by the applicant in question and would jeopardise the physical integrity of the applicant and his dependants, or the liberty and security of his family members still living in the country of origin.

Assessment of eligibility   for humanitarian protection: Paragraphs 339J to 33JA provide for how the Secretary of State will assess a person’s eligible for a grant of humanitarian protection. The assessment is meant to be carried out on an individual, objective and impartial basis. The Secretary of State will also consider whether the person’s activities since leaving the country of origin or country of return were engaged in for the sole or main purpose of creating the necessary conditions for establishing that he is a person eligible for humanitarian protection or a human rights claim, so as to assess whether these activities will expose the person to persecution or serious harm if he returned to that country; and whether the person could reasonably be expected to avail himself of the protection of another country where he could assert citizenship. Reliable and up-to-date information is to be obtained by the Secretary of State  from various sources as to the general situation prevailing in the countries of origin of applicants for asylum and, where necessary, in countries through which they have transited. Such information  is to be made available to the personnel responsible for examining applications and taking decisions and may be provided to them in the form of a consolidated country information report.

Duty of applicant to establish eligibility for  humanitarian protection: Paragraph 339L provides that  it  is the duty of the person to establish that he is a person eligible for  humanitarian protection. Where aspects of the person’s statements are not supported by documentary or other evidence, those aspects will not need confirmation when all of the stated set out  conditions are met.

Prompt and full disclosure and assisting in establishing the facts: Paragraph 339M provides that the Secretary of State may consider that a person has not established that he is a person eligible for humanitarian protection and thereby determine that he is not eligible for humanitarian protection, if he fails, without reasonable explanation, to make a prompt and full disclosure of material facts, either orally or in writing, or otherwise to assist the Secretary of State in establishing the facts of the case; this includes, for example, failure to report to a designated place to be fingerprinted, failure to complete an asylum questionnaire or failure to comply with a requirement to report to an immigration officer for examination.

Credibility: Paragraph 339N provides that in determining whether the general credibility of the person has been established, the Secretary of State will apply the provisions in Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.

Internal relocation and humanitarian protection: paragraph 339O (i) provides that the Secretary of State will not make:

(a) a grant of refugee status if in part of the country of origin a person would not have a well founded fear of being persecuted, and the person can reasonably be expected to stay in that part of the country; or

(b) a grant of humanitarian protection if in part of the country of return a person would not face a real risk of suffering serious harm, and the person can reasonably be expected to stay in that part of the country.

(ii) In examining whether a part of the country of origin or country of return meets the requirements in (i) the Secretary of State, when making his decision on whether to grant asylum or humanitarian protection, will have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the person.

(iii) (i) applies notwithstanding technical obstacles to return to the country of origin or country of return.

Article 8 of the Qualification Directive, Internal Protection,   provides that as part of the assessment of the application for international protection, Member States may determine that an applicant is not in need of international protection if in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country.

Sur place claims and humanitarian protection: Paragraph 339P provides that a person may have a well-founded fear of being persecuted or a real risk of suffering serious harm based on events which have taken place since the person left the country of origin or country of return and/or activates which have been engaged in by a person since he left the country of origin or country of return, in particular where it is established that the activities relied upon constitute the expression and continuation of convictions or orientations held in the country of origin or country of return.

Article 5 of the Qualification Directive makes provision for international protection needs arising sur place .

Residence Permits and Humanitarian Protection under the Immigration Rules: Article 18 of the Qualification Directive, Granting of subsidiary protection status, states that member States shall grant subsidiary protection status to a third country national or a stateless person eligible for subsidiary protection in accordance with Chapters II and V of the Directive.

Paragraph 339Q(ii) provides that the Secretary of State will issue to a person granted humanitarian protection in the United Kingdom a  United Kingdom Residence Permit, UKRP, as soon as possible after the grant of humanitarian protection. The UKRP may be valid for five years and renewable, unless compelling reasons of national security or public order otherwise require or where there are reasonable grounds for considering that the person granted humanitarian protection is a danger to the security of the UK or having been convicted by a final judgment of a serious crime, this person constitutes a danger to the community of the UK or the person’s character, conduct or associations otherwise require.

The Secretary of State will issue a UKRP to a family member of a person granted humanitarian protection where the family member does not qualify for such status. A UKRP may be granted for a period of five years. “Family member” refers only to those who are treated as dependants for the purposes of paragraph 349. The Secretary of State may revoke or refuse to renew a person’s UKRP where their grant of refugee status or humanitarian protection is revoked under the provisions in the immigration rules.

Residence Permits and Humanitarian Protection under the Qualification Directive; Article 24 of the Qualification Directive in relation to residence permits however provides that as soon as possible after their status has been granted, Member States shall issue to beneficiaries of refugee status a residence permit which must be valid for at least three years and renewable unless compelling reasons of national security or public order otherwise require, and without prejudice to Article 21(3).

Without prejudice to Article 23(1), the residence permit to be issued to the family members of the beneficiaries of refugee status may be valid for less than three years and renewable. As soon as possible after the status has been granted, Member States shall issue to beneficiaries of subsidiary protection status a residence permit which must be valid for at least one year and renewable, unless compelling reasons of national security or public order otherwise require.

Requirements for indefinite leave to remain for persons granted or humanitarian protection: Paragraph 339R of the Immigration Rules provides:

“The requirements for indefinite leave to remain for a person granted refugee status or humanitarian protection, or their dependants granted asylum or humanitarian protection in line with the main applicant or any dependant granted in accordance with the requirements of paragraphs 352A to 352FJ of these Rules (Family Reunion), are that:

(i) the applicant has held a UK Residence Permit (UKRP) issued under paragraph 339Q for a continuous period of five years in the UK; and

(ii) the applicant’s UKRP has not been revoked or not renewed under paragraphs 339A or 339G of the immigration rules; and

(iii) the applicant has not:

  1. been convicted of an offence for which they have been sentenced to imprisonment for at least 4 years; or
  2. been convicted of an offence for which they have been sentenced to imprisonment for at least 12 months but less than 4 years, unless a period of 15 years has passed since the end of the sentence; or
  3. been convicted of an offence for which they have been sentenced to imprisonment for less than 12 months, unless a period of 7 years has passed since the end of the sentence; or
  4. within the 24 months prior to the date on which the application has been decided, been convicted of or admitted an offence for which they have received a non-custodial sentence or other out of court disposal that is recorded on their criminal record; or
  5. in the view of the Secretary of State caused serious harm by their offending or persistently offended and shown a particular disregard for the law; or
  6. in the view of the Secretary of State, at the date on which the application has been decided, demonstrated the undesirability of granting settlement in the United Kingdom in light of his or her conduct (including convictions which do not fall within paragraphs 339R(iii)(a-e)), character or associations or the fact that he or she represents a threat to national security”.

Paragraph 339S provides that indefinite leave to remain for a person granted humanitarian protection will be granted where each of the requirements in paragraph 339R is met.

Paragraph 339T(i) provides that indefinite leave to remain for a person granted humanitarian protection is to be refused if any of the requirements of paragraph 339R is not met. Paragraph 339T(ii) also states that an applicant refused indefinite leave to remain under paragraph 339T(i) may apply to have their UK Residence Permit extended in accordance with paragraph 339Q.

(4) RELEVANT HOME  OFFICE POLICY GUIDANCE

The relevant Home office Policy Guidance is Humanitarian Protection v4.0, 15 May 2013 and amongst others,   clarifies the following issues;

Standard of Proof: The Guidance states that in considering whether there are substantial grounds for believing that a person would face a real risk of serious harm, the standard of proof to be applied is the same as applies in asylum i.e. a reasonable degree of likelihood (these two tests reflect the same standard of proof).

Internal relocation and sufficiency of protection: Further, in assessing whether a person qualifies for humanitarian protection, the same principles of internal relocation and sufficiency of state protection should be applied.

Exclusion and Serious Crime: The Guidance also notes  that a person will not be eligible for a grant of Humanitarian Protection if he is excluded from it because one of the  provisions in paragraph 339D of the Immigration Rules apply.  It is noted that this is to be interpreted in a manner consistent with the policy on exclusion under Article 1F of the Refugee Convention.

The Guidance further notes that a “serious crime” for the purpose of exclusion from Humanitarian Protection was previously interpreted to mean one for which a custodial sentence of at least twelve months had been imposed in the United Kingdom, but it is now accepted that a 12 month sentence (or more) should not alone determine the seriousness of the offence for exclusion purposes.

The Guidance refers to the Court of Appeal’ s judgment in AH (Algeria) v Secretary of State for the Home Department [2012] EWCA Civ 395, Lord Justice Ward noted (paragraph 54) that “Sentence is, of course, a material factor but it is not a benchmark. In deciding whether the crime is serious enough to justify his loss of protection, the Tribunal must take all facts and matters into account, with regard to the nature of the crime, the part played by the accused in its commission, any mitigating or aggravating features and the eventual penalty imposed.”

It is noted that the sentence must therefore be considered together with the nature of the crime, the actual harm inflicted, and whether most jurisdictions would consider it a serious crime. Examples of “serious”  crimes include murder, rape, arson, and armed robbery. Other offences which might be regarded as “serious”  include those which are accompanied by the use of deadly weapons, involve serious injury to persons, or if there is evidence of serious habitual criminal conduct. Other crimes, though not accompanied by violence, such as large-scale fraud, may also be regarded as  “serious”  for the purposes of exclusion

Danger to the Community or Security: The Guidance states that people who may represent “a danger to the community or to the security of the UK” include:

  • those included on the Sex Offenders Register (this would apply to those convicted of an offence after 1997).
  • those whose presence in the United Kingdom is deemed not conducive to the public good by the Secretary of State, for example on national security grounds, because of their character, conduct or associations.
  • those who engage in one or more unacceptable behaviours (whether in the UK or abroad).

The list of unacceptable behaviours includes those 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 and includes the use of any medium to promote these forms of unacceptable behaviour, 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.

A person may also be regarded as a danger to the community or to the security of the United Kingdom 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 not been pursued or has been abandoned only because Article 2 or Article 3 considerations render return unacceptable for the time being. Where a person is excluded from both refugee status and Humanitarian Protection but ECHR considerations apply, consideration should be given to the grant of Discretionary Leave, or Restricted Leave in accordance with the policy brought into force on 2 September 2011.

Article 15(a))- death penalty or execution :The Guidance also provides that   in consideration of death penalty or execution (Article 15(a)) provisions, decision-makers must determine whether there is a real risk of the applicant being intentionally deprived of their life or that, on the basis of the available evidence, a real risk that a person would be convicted and face the death penalty in the country of return. The Guidance states that in death penalty cases it will often be necessary for a decision maker  to contact the Country of Origin Information Service (COIS) for advice as to whether the death penalty is on the statute books for the crime in question and whether it is actually used in practice.  No enquiries should be made to the authorities in the country of origin (or their representatives in the UK) about the risk to a particular individual facing the death penalty. The Foreign and Commonwealth Office (FCO) may be able to help in such circumstances; enquiries should be made via COIS.

Article 15 and unlawful killing- an addition by the UK: The Guidance further states that “ Unlawful killing‟ is a UK provision in addition to those listed in Article 15 of the Qualification Directive. This is where a person would be unlawfully (i.e. extra-judicially) killed by the state (or agents of the state), or there is a real risk of targeted assassination by non-state agents in areas of the country where there is no effective protection and no feasible internal flight alternative. It includes a person who would face a real and individual risk of being killed if returned to a situation of great danger. However it should be distinguished from the protection afforded by Article 15(c) in that it means an unlawful killing other than by reason of indiscriminate violence in a situation of international or internal armed conflict and which would be contrary to Article 2 of the European Convention of Human Rights (ECHR).  The Guidance  gives as examples of situations which should not be accepted as creating the real risk of harm are where the alleged threat to the applicant’s life would be:

(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.

Article 15(b) and torture, inhuman and degrading treatment: As regards the term, “return that would expose a person to torture or inhuman or degrading treatment (Article 15(b))”, the Guidance notes  that this  section reflects Article 3 ECHR which states that: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.   Humanitarian Protection is to be granted where there is a reasonable likelihood of ill-treatment contrary to Article 3 which cannot be linked to a Refugee Convention reason. Even if the more obvious reasons – race, religion, nationality, political opinion – may not apply, it could be that membership of a particular social group (PSG) is established, in which case the individual should qualify as a refugee.

Article 15(c ): As regards the term “Serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict, the Guidance states that an assessment of protection needs under Article 15(c) should only take place if an applicant is unable to establish a need for refugee protection, or for subsidiary protection on Article 15(a) or (b) grounds.

Decision-makers are required to refer to country of origin reports, Operational Guidance Notes, and/or the UK courts‟ assessments on specific countries.

Caselaw on Interpretation of Article 15(c); It is noted that European and domestic case law has established the interpretation of Article 15(c), firstly in the Court of Justice of the European Union, in (Elgafaji[2009] EUECJC-465-07), secondly, in the Court of Appeal in (QD (Iraq) v SSHD [2009] EWCA Civ 620) and in the summaries of the correct legal position as set out in the Upper Tribunal Country Guidance cases of HM and others (Article 15(c)) Iraq CG [2012] UKUT 00409(IAC); AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 00445 (IAC), and AK (Article 15(c)) Afghanistan CG [2012] UKUT 163 (IAC)).

The Guidance further notes that Article 15(c) entails a lower level of harm than Article 3 ECHR and can be engaged by different types of harm than under Article 3.

The test for Article 15(c):A claim for protection based on indiscriminate violence is to be assessed according to the following test set out by the Court of Appeal in QD (Iraq) v SSHD:

“Is there in [ X Country] or a material part of it such a high level of indiscriminate violence that substantial grounds exist for believing that an applicant would, solely by being present there, face a real risk which threatens his life or person?”

Article 3 of the ECHR: The Guidance also notes that a person may establish a real risk of treatment contrary to Article 3 ECHR, though unsuccessful in the asylum claim because of exclusion under Article 1F of the Refugee Convention. However, all such persons would also be excluded from Humanitarian Protection.

Prison Conditions: The Guidance further notes that prison conditions which are systematically inhuman and life-threatening are always contrary to Article 3 ECHR.  However, even if those conditions are not severe enough to meet that threshold automatically, Article 3 will still be engaged if, in that individual’s personal circumstances, detention would amount to inhuman or degrading treatment. This would depend on the likely length of detention, the type and conditions of detention facilities, and the individuals age, gender, vulnerability, state of physical or mental health, or any other relevant factors.

If the prison sentence or the prison regime, irrespective of its severity, is discriminatory or being disproportionately applied for reasons of race, religion, nationality, membership of a particular social group or political opinion, the applicant could in fact qualify as a refugee.

The Guidance refers to COIS country reports  which will normally provide information about prison conditions in the country of origin and Operational Guidance Notes (where available) should provide guidance on whether those conditions are severe enough to meet the Article 3 threshold automatically. If further information is needed, the COIS request service may be accessed.

Exclusion for Humanitarian Protection under paragraph 339D and Article 3 of the ECHR : The Guidance’s states that potential breach of Article 3 will not justify the grant of Humanitarian Protection (or asylum) if the applicant is fleeing justice rather than persecution or falls within the exclusion criteria. Paragraph 339D of the Rules explicitly provides for exclusion where the individual is considered to have “committed a crime….that would be punishable by imprisonment were it committed in the UK and the person left his country of origin solely in order to avoid sanctions resulting from the crime”.  The Guidance however  clarifies that  if  the decision maker nevertheless considers that, although excluded from a grant of Humanitarian Protection, the applicant faces a real risk of imprisonment on return and prison conditions would reach the threshold of Article 3 for the individual concerned, they should consider a grant of Restricted Leave or Discretionary Leave depending on the reasons for exclusion.

General levels of violence and other severe humanitarian conditions and Article 3 of the ECHR: As regards general levels of violence and other severe humanitarian conditions,  the Guidance observes  that the Article 3 threshold is a very high one and notes that In NA. v. The United Kingdom, the European Court of Human Rights (ECtHR) said (paragraph 114) that “a general situation of violence will not normally in itself entail a violation of Article 3 in the event of an expulsion… Indeed, the Court has rarely found a violation of Article 3 on that ground alone.” It went on to say (paragraph 115) that “the Court would adopt such an approach only in the most extreme cases of general violence, where there was a real risk of ill-treatment simply by virtue of an individual being exposed to such violence on return.”

Guidance further states that there may be exceptional situations where conditions in the country – for example, absence of water, food or basic shelter – are unacceptable to the point that return in itself would constitute inhuman and degrading treatment for the individual concerned. Factors to be taken into account include age, gender, ill- health, the effect on children, other family circumstances, and available support structures. The Guidance states that it should be noted that if the State is withholding these resources it could constitute persecution for a Refugee Convention reason as well as a breach of Article 3 ECHR.

The Guidance also refers to   the  judgment in Sufi and Elmi v the United Kingdom, the ECtHR considered the applicability of Article 3 to the question of generalised violence and a severe humanitarian situation as a result of that violence. It firstly found that:

“…following NA. v. The United Kingdom, the sole question for the Court to consider in an expulsion case is whether, in all the circumstances of the case before it, substantial grounds have been shown for believing that the person concerned, if returned, would face a real risk of being subjected to treatment contrary to Article 3 of the Convention. If the existence of such a risk is established, the applicants removal would necessarily breach Article 3, regardless of whether the risk emanates from a general situation of violence, a personal characteristic of the applicant, or a combination of the two. However, it is clear that not every situation of general violence will give rise to such a risk. On the contrary, the Court has made it clear that a general situation of violence would only be of sufficient intensity to create such a risk “in the most extreme cases” where there was a real risk of ill-treatment simply by virtue of an individual being exposed to such violence on return.” It is noted that the ECtHR went on to address the situation where dire humanitarian conditions, widespread displacement and the breakdown of social, political and economic infrastructures were predominantly due to the direct and indirect actions of the parties to the conflict, who were using (in the case of Somalia, for example, at the time of the judgment) indiscriminate methods of warfare in densely populated urban areas with no regard to the safety of the civilian population. It found that regard should be had (following the approach adopted in M.S.S. v. Belgium and Greece) to an applicants ability to cater for his most basic needs, such as food, hygiene and shelter, his vulnerability to ill-treatment and the prospect of his situation improving within a reasonable time-frame.

Medical Condition cases and Article 3  the ECHR – The Guidance clarifies that cases where it is claimed that removal would be a breach of Article 3 on medical grounds will not be considered eligible for Humanitarian Protection, given that (ECtHR, N. v. the United Kingdom) “in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-State bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country.” Instead, they should be considered under the Discretionary Leave policy.

Grant of leave ,  5years and settlement: The Guidance clarifies that the Immigration Rules provide for the grant of five years leave  and it is Home Office policy that five years leave to remain will be a sufficient grant of leave in the first instance, save in the most exceptional of circumstances. It is noted however, Article 20(3) of the Directive states that when implementing the Directive, “Member States shall take into account the specific situation of vulnerable persons such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence.” Article 20(4) of the Qualification Directive states that paragraph 20(3) “shall only apply to persons found to have special needs after an individual evaluation of their situation.”

The Guidance clarifies that if there are compelling reasons for the grant of a longer period of leave to remain (that is, indefinite leave to remain) relevant to a vulnerable person with special needs, as exampled by Article 20(3), these must be considered against the policy set out above. The phrase most exceptional of circumstancesis taken to mean not only a situation which is unusual but one which is distinguished to a high degree from other cases to the extent that it is necessary to deviate from the accepted policy on the granting of leave to refugees and those in need of subsidiary protection. This is to be understood as consistent with the policy guidance set out in the Asylum Instruction on Refugee Leave.

Use of a National Passport: The Guidance also makes it clear that unlike those with refugee status, the possession and use of a national passport to travel and return to the country of origin does not in itself call into question the persons need for protection unless the claimed fear was of the national authorities or the stay in the country of origin is a prolonged one.

Review of Grant of Humanitarian protection; A grant of leave on Humanitarian Protection grounds will not normally be reviewed during its currency unless certain events occur to trigger such a review. These fall into two main categories:

(a) Where the circumstances which led to the grant of humanitarian protection have ceased to exist or have changed to such a degree that such protection is no longer required.  The  criterion is in paragraph  339G(i) of the Immigration Rules).

Decision-makers are required to refer to the Asylum Instruction 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.

(b) Where protection should not be continued because of a person’s actions by reference to  paragraph 339G (ii) – (vi) of the Immigration Rules.

Curtailment: Limited leave should normally be curtailed (paragraph 339H of the Immigration Rules) if humanitarian protection is revoked or not renewed under any of the exclusion criteria set out above.

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

A person who has obtained humanitarian protection by deception (paragraph 339G(v)) is liable to removal either as an illegal entrant under Schedule 2 to the Immigration Act 1971 or under section 10 of the Immigration and Asylum Act 1999. The decision to remove someone under either section 10 or Schedule 2 invalidates any leave given previously. In these deception cases, separate action to curtail leave granted on humanitarian protection grounds will only be required where a person may not be removed (e.g. for Article 3 ECHR reasons).

Travel Documents and Passports: The Guidance notes that paragraph 344A of the Immigration Rules sets out the criteria under which a travel document may be issued to a person granted Humanitarian Protection. It is noted a  person with leave to remain on these grounds should in many cases be able to travel on a national passport. They may be eligible to apply for a Home Office Certificate of Travel (CoT) if they can show that they have been formally and unreasonably refused a national passport.  Where it is accepted that they have a well-founded fear of their national authorities, they will not be required to approach these authorities for a passport before becoming eligible for a CoT. A CoT may also be issued where a person has made reasonable attempts to obtain a national passport or identity document, particularly where there are serious humanitarian reasons for travel.

(5)RELEVANT CASELAW

A decision of the Court of Justice of the European Union:

Elgafaji[2009] EUECJC-465-07:

The reference for a preliminary ruling concerned  the interpretation of Article 15(c) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted in conjunction with Article 2(e) of that Directive. The reference was made in the course of proceedings between Mr and Mrs Elgafaji, both Iraqi nationals, and the Staatssecretaris van Justitie (State Secretary for Justice) relating to his refusal of their applications for temporary residence permits in the Netherlands.

The following questions were referred to the Court for a preliminary ruling:

‘(1)      Is Article 15(c) of [the Directive] to be interpreted as offering protection only in a situation in which Article 3 of the [ECHR], as interpreted in the case-law of the European Court of Human Rights, also has a bearing, or does Article 15(c), in comparison with Article 3 of the [ECHR], offer supplementary or other protection?

(2)      If Article 15(c) of the Directive, in comparison with Article 3 of the [ECHR], offers supplementary or other protection, what are the criteria in that case for determining whether a person who claims to be eligible for subsidiary protection status runs a real risk of serious and individual threat by reason of indiscriminate violence within the terms of Article 15(c) of the Directive, read in conjunction with Article 2(e) thereof?

The Court stated that  while the fundamental right guaranteed under Article 3 of the ECHR forms part of the general principles of Community law, observance of which is ensured by the Court, and while the case-law of the European Court of Human Rights is taken into consideration in interpreting the scope of that right in the Community legal order, it is, however, Article 15(b) of the Directive which corresponds, in essence, to Article 3 of the ECHR. By contrast, Article 15(c) of the Directive is a provision, the content of which is different from that of Article 3 of the ECHR, and the interpretation of which must, therefore, be carried out independently, although with due regard for fundamental rights, as they are guaranteed under the ECHR.

The Court stated that it must be noted that the terms ‘death penalty’, ‘execution’ and ‘torture or inhuman or degrading treatment or punishment of an applicant in the country of origin’, used in Article 15(a) and (b) of the Directive, cover situations in which the applicant for subsidiary protection is specifically exposed to the risk of a particular type of harm. By contrast, the harm defined in Article 15(c) of the Directive as consisting of a ‘serious and individual threat to [the applicant’s] life or person’ covers a more general risk of harm.

The Court decided that the word ‘individual’ must be understood as covering harm to civilians irrespective of their identity, where the degree of indiscriminate violence characterising the armed conflict taking place – assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an application is referred – reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to the serious threat referred in Article 15(c) of the Directive(paragraph 35 of the ECJ judgement).

The Court said that that interpretation, which is likely to ensure that Article 15(c) of the Directive has its own field of application, is not invalidated by the wording of recital 26 in the preamble to the Directive, according to which ‘[r]isks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm’.

While recital 26 of the Directive implies that the objective finding alone of a risk linked to the general situation in a country is not, as a rule, sufficient to establish that the conditions set out in Article 15(c) of the Directive have been met in respect of a specific person, its wording nevertheless allows – by the use of the word ’normally’ – for the possibility of an exceptional situation which would be characterised by such a high degree of risk that substantial grounds would be shown for believing that that person would be subject individually to the risk in question.

The Court stated that the exceptional nature of that situation is also confirmed by the fact that the relevant protection is subsidiary, and by the broad logic of Article 15 of the Directive, as the harm defined in paragraphs (a) and (b) of that article requires a clear degree of individualisation. While it is admittedly true that collective factors play a significant role in the application of Article 15(c) of the Directive, in that the person concerned belongs, like other people, to a circle of potential victims of indiscriminate violence in situations of international or internal armed conflict, it is nevertheless the case that that provision must be subject to a coherent interpretation in relation to the other two situations referred to in Article 15 of the Directive and must, therefore, be interpreted by close reference to that individualisation.

In that regard, the more the applicant is able to show that he is specifically affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required for him to be eligible for subsidiary protection.

Moreover, it should be added that, in the individual assessment of an application for subsidiary protection, under Article 4(3) of the Directive, the following may be taken into account:

–        the geographical scope of the situation of indiscriminate violence and the actual destination of the applicant in the event that he is returned to the relevant country, as is clear from Article 8(1) of the Directive, and

–        the existence, if any, of a serious indication of real risk, such as that referred to in Article 4(4) of the Directive, an indication in the light of which the level of indiscriminate violence required for eligibility for subsidiary protection may be lower.

At paragraph 43 of its judgement, the Court stated that having regard to all of considerations, the answer to the questions referred is that Article 15(c) of the Directive, in conjunction with Article 2(e) thereof, must be interpreted as meaning that:

–        the existence of a serious and individual threat to the life or person of an applicant for subsidiary protection is not subject to the condition that that applicant adduce evidence that he is specifically targeted by reason of factors particular to his personal circumstances;

–        the existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterising the armed conflict taking place – assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an application is referred – reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to that threat.

The Court added that the interpretation of Article 15(c) of the Directive, in conjunction with Article 2(e) thereof, is fully compatible with the ECHR, including the case-law of the European Court of Human Rights relating to Article 3 of the ECHR.

Domestic caselaw in the Court of Appeal:

QD (Iraq) v SSHD [2009] EWCA Civ 620:

 The appeal concerned two cases which were noted to  hinge on the true meaning and effect of article 15 of the Qualification Directive.

The Court of Appeal noted at paragraph 13 of their  judgment that it was  left open to member states, by Article 3 of the Directive , to adopt more favourable standards of protection. This the UK had already done by paragraph 339C of the Immigration Rules, which repaired the omission of Article 15 to provide for protection from a real risk of targeted deprivation of life in breach of ECHR article 2. Rule 339C accordingly adds unlawful killing to the tabulation of forms of serious harm which, for the rest, it takes directly from article 15.

The Court considered it appropriate to begin by considering the approach to the provisions taken by the AIT in KH (Article 15(c) Qualification Directive) Iraq CG [2008] UKAIT 00023.   Their analysis was, in summary, that because the vocabulary of article 15 was clearly drawn from international humanitarian law, that was the context within which and the end to which the article should be interpreted and applied. The Court of Appeal however considered  the premise to be incorrect and the conclusions to fall with it. It was noted that since both tribunals from which the present appeals came took their law, as they were required to do, from KH, theirdecisions too could not  stand.

The Court of Appeal noted that since these appeals were decided by the AIT, the Grand Chamber of the European Court of Justice had given its ruling in the Elgafaji case (C-465/07; 17 February 2009).

At paragraph 24 of its judgement, the Court of Appeal,  noted that the ECJ went on to address the question whether article 15(c) required proof of a threat directed at the individual applicant, and, if not, what was the correct test.  References were therefore  made to paragraphs  31 to  44 of Elgafaji.

At paragraph 25 of its judgement, the Court of Appeal stated that  the ECJ  did not, as it might have done, decide that “individual” was there simply to exclude persons who enjoyed some form of protection from the violence faced by the population generally. Nor, however, has the judgment introduced an additional test of exceptionality. By

using the words “exceptional” and “exceptionally” it was simply stressing that it is not every armed conflict or violent situation which will attract the protection of article 15(c), but only one where the level of violence is such that, without anything to render them a particular target, civilians face real risks to their life or personal safety.

The Court of Appeal however noted that the ECJ’s judgment, however, did not resolve the multiplication of contingencies by Articles 2(e) and 15(c).

At paragraph 29 of its   judgment,  the Court of Appeal stated   “risk” in article 2(e) overlaps with “threat” in article 15(c), so that the latter reiterates but does not qualify or dilute the former. The Court of  Appeal  stated that Tribunals will  need to address them in the light of the ECJ’s ruling, but as a single, not a cumulative, contingency.

Between paragraphs 30 and 32 of their judgment, the Court of Appeal stated that beyond what was decided in Elgafaji, however, lay at least two further questions that arose in KH and had been debated again before them.  One was  whether the word “serious” qualifies “threat”, as grammatically it would appear to do, or “harm”, as the appellants contended it substantively does. In  the Court’s judgment it would be an unjustified departure from the wording of the paragraph to tinker with its grammatical meaning. Not every threat is real and not every real threat is serious. Article 15(c) is intelligibly concerned with serious threats of real harm. The Court stated that,  second is what kind or degree of risk to individuals is required to bring a situation of armed conflict within the purview of article 15(c).

At paragraph 35  of their judgment, the Court  of Appel stated that they  accepted  the proposition,  that the phrase “situations of international or internal armed conflict” in article 15(c) has an autonomous meaning broad enough to capture any situation of

indiscriminate violence, whether caused by one or more armed factions or by a state, which reaches the level described by the ECJ in Elgafaji. It was noted that the Home Secretary in KH accepted that there was currently an armed conflict in Iraq, and the AIT proceeded on that acceptance.

At paragraph 36 of their decision, the Court of Appeal  stated that they   would accept UNHCR’s submission that, for the purposes of Article 15(c), there is no requirement that the armed conflict itself must be exceptional. What is, however, required is an intensity of indiscriminate violence – which will self-evidently not characterise every such situation – great enough to meet the test spelt out by the ECJ

At paragraph 37, the Court stated that it  followed, that “civilian” in article 15(c) means not  simply someone not in uniform – which by itself might include a good many terrorists – but only genuine non-combatants (though UNHCR submitted that former “combatants” should not be excluded).

At paragraph 40 of its judgement the Court  of Appeal stated

“We would put the critical question, in the light of the Directive, of the ECJ’s recent jurisprudence and of our own reasoning, in this way:

Is there in Iraq or a material part of it such a high level of indiscriminate

violence that substantial grounds exist for believing that an applicant such as

QD or AH would, solely by being present there, face a real risk which

threatens his life or person

By “material part” we mean the applicant’s home area or, if otherwise appropriate, any potential place of internal relocation”.

The Court of Appeal remitted the appeals for redetermination by the Tribunal.

(6) ENTITLEMENTS

Effective from 1 December 2007, in accordance with the Procedures Directive (2005/85/EC) of 1 December 2005, paragraph 327 of the Immigration Rules was amended to reflect that any application for international protection should be considered as an application for asylum (even if the applicant does not claim to be a refugee under the Refugee Convention).

Paragraphs 327 of the immigration Rules therefore  provides:

Definition of asylum applicant

  1. Under the Rules an asylum applicant is a person who either;

(a) makes a request to be recognised as a refugee under the Geneva Convention on the basis that it would be contrary to the United Kingdom’s obligations under the Geneva Convention for him to be removed from or required to leave the United Kingdom, or

(b) otherwise makes a request for international protection. “Application for asylum” shall be construed accordingly”.

There is thus no application fee to pay in order for a claim for humanitarian protection to be processed by the Home Office, however in practice, such claims are usually considered in the alternative following a claim for asylum and as such an applicant   is very likely  to be subject  to  a personal substantive asylum  interview  following the screening interview.

Where a person establishes that they are entitled to a grant of humanitarian protection the following entitlements should  accompany that grant:

Access to Information:

Article 22 of the Qualification Directive states that Member States shall provide persons recognised as being in need of international protection, as soon as possible after the respective protection status has been granted, with access to information, in a language likely to be understood by them, on the rights and obligations relating to that status.

Paragraph 344C of the Immigration Rules provides that a person who is granted refugee status or humanitarian protection will be provided with access to information in a language that they may reasonably be supposed to understand which sets out the rights and obligations relating to that status. The Secretary of State will provide the information as soon as possible after the grant of refugee status or humanitarian protection.

Family Reunion:

Article 23 of the Qualification Directive provides for maintaining family unity.

Paragraph 349 of the Immigration Rules in relation to Dependants states that a spouse, civil partner, unmarried or same-sex partner, or minor child accompanying a principal applicant may be included in his application for asylum as his dependant, provided, in the case of an adult dependant with legal capacity, the dependant consents to being treated as such at the time the application is lodged. A spouse, civil partner, unmarried or same-sex partner or minor child may also claim asylum in his own right. If the principal applicant is granted refugee status or humanitarian protection and leave to enter or remain any spouse, civil partner, unmarried or same-sex partner or minor child will be granted leave to enter or remain for the same duration. The case of any dependant who claims asylum in his own right will be also considered individually in accordance with paragraph 334 above. An applicant under this paragraph, including an accompanied child, may be interviewed where he makes a claim as a dependant or in his own right.

Paragraph 349 further provides that if the spouse, civil partner, unmarried or same-sex partner, or minor child in question has a claim in his own right, that claim should be made at the earliest opportunity. Any failure to do so will be taken into account and may damage credibility if no reasonable explanation for it is given. Where an asylum or humanitarian protection application is unsuccessful, at the same time that asylum or humanitarian protection is refused the applicant may be notified of removal directions or served with a notice of the Secretary of State’s intention to deport him, as appropriate.

In paragraph 349 and paragraphs 350-352 of the Immigration Rules  a child means a person who is under 18 years of age or who, in the absence of documentary evidence establishing age, appears to be under that age. An unmarried or same sex partner for the purposes of  paragraph 349 is a person who has been living together with the principal applicant in a subsisting relationship akin to marriage or a civil partnership for two years or more.

Paragraphs 352FA to 352FI provide for the circumstances in which limited leave to enter or remain, on a family reunion basis,   may be granted to a spouse or civil partner, unmarried or same sex- partner or child of a person granted humanitarian protection in the UK.

Paragraph 352FJ however makes it clear that nothing in paragraphs 352A-352FI shall allow a person to be granted leave to enter or remain in the United Kingdom as the spouse or civil partner, unmarried or same sex partner or child of a person who has been granted refugee status, or of a person granted humanitarian protection under the immigration rules in the United Kingdom on or after 30 August 2005, if the person granted refugee status or, as the case may be, person granted humanitarian protection, is a British Citizen.

Travel documents:

 Article 25(2) of the Qualification Directive refers to the provision of travel documents and states that member states shall issue to beneficiaries of subsidiary protection status who are unable to obtain a national passport, documents which enable them to travel, at least when serious humanitarian reasons arise that require their presence in another State, unless compelling reasons of national security or public order otherwise require.

Paragraph 344A(ii) provides that after having received a complete application for a travel document, the Secretary of State will issue to a person granted humanitarian protection in the United Kingdom and their family members a travel document where that person is unable to obtain a national passport or other identity documents which enable him to travel, unless compelling reasons of national security or public order otherwise require. Where the person referred to can obtain a national passport or identity documents but has not done so, the Secretary of State will issue that person with a travel document where he can show that he has made reasonable attempts to obtain a national passport or identity document and there are serious humanitarian reasons for travel. For the purposes of paragraph 344A, a ‘family member’ refers only to a person who has been treated as a dependant under paragraph 349 of the Rules or a person who has been granted leave to enter or remain in accordance with paragraphs 352A-352FJ of the Rules.

 Access to employment:

Article 26 of the Qualification Directive provides for access to employment and in its full version states:

“1.   Member States shall authorise beneficiaries of refugee status to engage in employed or self-employed activities subject to rules generally applicable to the profession and to the public service, immediately after the refugee status has been granted.

  1. Member States shall ensure that activities such as employment-related education opportunities for adults, vocational training and practical workplace experience are offered to beneficiaries of refugee status, under equivalent conditions as nationals.
  2. Member States shall authorise beneficiaries of subsidiary protection status to engage in employed or self-employed activities subject to rules generally applicable to the profession and to the public service immediately after the subsidiary protection status has been granted. The situation of the labour market in the Member States may be taken into account, including for possible prioritisation of access to employment for a limited period of time to be determined in accordance with national law. Member States shall ensure that the beneficiary of subsidiary protection status has access to a post for which the beneficiary has received an offer in accordance with national rules on prioritisation in the labour market.
  3. Member States shall ensure that beneficiaries of subsidiary protection status have access to activities such as employment-related education opportunities for adults, vocational training and practical workplace experience, under conditions to be decided by the Member States.
  4. The law in force in the Member States applicable to remuneration, access to social security systems relating to employed or self-employed activities and other conditions of employment shall apply”.

Paragraph 344B of the Immigration Rules in relation to access to employment simply states that the Secretary of State will not impose conditions restricting the employment or occupation in the United Kingdom of a person granted refugee status or humanitarian protection.

Access to education:

Article 27 of the Qualification Directive provides for access to education and states:

1.   Member States shall grant full access to the education system to all minors granted refugee or subsidiary protection status, under the same conditions as nationals.

  1. Member States shall allow adults granted refugee or subsidiary protection status access to the general education system, further training or retraining, under the same conditions as third country nationals legally resident.
  2. Member States shall ensure equal treatment between beneficiaries of refugee or subsidiary protection status and nationals in the context of the existing recognition procedures for foreign diplomas, certificates and other evidence of formal qualifications”.

Paragraph 353H  has  the  heading Restriction on study and provides that where a person is granted leave in accordance with the provisions set out in Part 11 of the Immigration Rules that leave will, in addition to any other conditions which may apply, be granted subject to the condition in Part 15 of the Rules.

Part 15 of the immigration Rules provides:

“Immigration Rules part 15: condition to hold an ATAS clearance certificate

Condition to hold an Academic Technology Approval Scheme (ATAS) clearance certificate.

  1. Where these Rules refer to leave to enter or remain in the United Kingdom being granted to an individual, subject to the conditions set out in this Part 15, such condition is as set out in (i) and (ii) below:

(i) no study which is:

(a) undergraduate or postgraduate study leading to a Doctorate or Masters degree by research in one of the disciplines listed in paragraph 1 of Appendix 6 of these Rules, or

(b) undergraduate or postgraduate study leading to a taught Masters degree or other postgraduate qualification in one of the disciplines listed in paragraph 2 of Appendix 6 of these Rules, or

(c) a period of study or research in excess of 6 months in one of the disciplines listed in paragraphs 1 or 2 of Appendix 6 of these Rules at an institution of higher education where this forms part of an overseas postgraduate qualification,

unless the migrant has obtained a valid Academic Technology Approval Scheme clearance certificate from the Counter-Proliferation Department of the Foreign and Commonwealth Office which was issued to the migrant prior to the commencement of such study and that specifically relates to the course or area of research the migrant wishes to undertake and to the institution at which the applicant wishes to undertake it, and the migrant has provided a print-out of the certificate to the institution, and

(i) if the migrant is undertaking a course or a period of research of a type specified in (i) above and his course (or research) completion date is postponed or delayed for a period of more than three calendar months or there are any changes to the course contents (or the research proposal), the migrant must apply for a new Academic Technology Approval Scheme clearance certificate within 28 calendar days, and must provide a print-out of the new certificate to the institution promptly after this is made available by the Counter-Proliferation Department of the Foreign and Commonwealth Office.”

Social welfare

Article 28 of the Qualification Directive provides :

“1.   Member States shall ensure that beneficiaries of refugee or subsidiary protection status receive, in the Member State that has granted such statuses, the necessary social assistance, as provided to nationals of that Member State.

  1. By exception to the general rule laid down in paragraph 1, Member States may limit social assistance granted to beneficiaries of subsidiary protection status to core benefits which will then be provided at the same levels and under the same eligibility conditions as nationals”.

Health care:

Article 29 of the Qualification Directive provides:

“1.   Member States shall ensure that beneficiaries of refugee or subsidiary protection status have access to health care under the same eligibility conditions as nationals of the Member State that has granted such statuses.

  1. By exception to the general rule laid down in paragraph 1, Member States may limit health care granted to beneficiaries of subsidiary protection to core benefits which will then be provided at the same levels and under the same eligibility conditions as nationals.
  2. Member States shall provide, under the same eligibility conditions as nationals of the Member State that has granted the status, adequate health care to beneficiaries of refugee or subsidiary protection status who have special needs, such as pregnant women, disabled people, persons who have undergone torture, rape or other serious forms of psychological, physical or sexual violence or minors who have been victims of any form of abuse, neglect, exploitation, torture, cruel, inhuman and degrading treatment or who have suffered from armed conflict”.

Access to accommodation:

Article 31 of the Qualification Directive provides:

“The Member States shall ensure that beneficiaries of refugee or subsidiary protection status have access to accommodation under equivalent conditions as other third country nationals legally resident in their territories”.

Freedom of movement within the Member State:

Article 32 of the Qualification Directive provides:

“Member States shall allow freedom of movement within their territory to beneficiaries of refugee or subsidiary protection status, under the same conditions and restrictions as those provided for other third country nationals legally resident in their territories”.

Access to integration facilities:

Article 33 of the Qualification Directive provides:

“1.In order to facilitate the integration of refugees into society, Member States shall make provision for integration programmes which they consider to be appropriate or create pre-conditions which guarantee access to such programmes.

2.Where it is considered appropriate by Member States, beneficiaries of subsidiary protection status shall be granted access to integration programmes”.

To compliment the above,  the current Home Office Policy Guidance on  Humanitarian Protection, states in Section 2, that those granted humanitarian protection have access to public funds; are entitled to work; to apply for an integration loan, and (since 9 October 2006) access to family reunion, on the same basis as refugees.

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