A Government’s onslaught on refugees: Safe return reviews, cessation, exclusion, and revocation

Prior to 9 March 2017,  the general  view certainly was that, Home Office practice (subject to some exceptions), was to routinely grant settlement to  refugees  who had  completed the 5year probationary period.  On  9 March 2017,  the Home Office however published updated  Guidance, Refugee Leave  dated  2 March 2017, firmly indicating  that,  “All those who apply for settlement protection after completing the appropriate probationary period of limited leave will be subject to a safe return review with reference to the country situation at the date the application is considered”.

 

Not only that but that  refugees can  be subject to the  review procedure at any  juncture whilst holding  refugee status, “ A person’s case may also be reviewed at any point in the process either when triggered by their actions, for example, they are convicted of a serious crime, or in light of a significant and non-temporary change in conditions in their country of origin such that they no longer need protection”.

 

 

The Revocation of Refugee Status Policy guidance published on 19 January 2016, tentatively refers at page 5,  to the need to conduct “ safe  return  reviews”  when a person applies for  further leave or settlement and provides for revocation  of  refugee status  where protection is considered  no longer necessary or justified. It is however  now of  little doubt  that an onslaught on formally  recognised  refugees has  begun.  Where a  relevant change occurs  in reference to  the country situation, the  affected refugees will be expected, following  revocation of refugee status,  to either leave the UK or place  reliance on  leave to  remain on some other basis.

 

Active reviews in all cases, serve not to  bring any degree  of  certainty in  the  protection needs of recognised  refugees.  Instead,  a sense of  refugees being unwelcome  in the UK might be the result: perhaps that is just  what the Government intends.

 

In light of the clear  Government position, gone  now will be the days where claimants  would  engage in refugee sur place activities in the UK, but which would cease shortly after a grant of refugee status.

 

Gone too are the days when lay persons or even practitioners,  would simply forward  a completed settlement form, Biometrics Residence permit along with some updated evidence on purely personal  Article 8 circumstances and ask for settlement.  Detailed regard will now need to  be had not only to  current country background evidence but also uptodate Country Guidance caselaw.  Strengthened   written submissions presented in relation to seeking to  impress upon the Home Office that there is  still a need for protection will need to be made.

 

Appreciation of the relevant applicable  provisions which  potentially lead to a revocation  of  refugee status,   along with the policy guidance   that the home office will apply in a given situation  is necessary. This can place an applicant in a better position when  presenting their case to the Home office.

 

(1) STATUTORY FRAMEWORK

 

  • The 1951 Refugee Convention and 1967 Protocol relating to the status of refugees.

 

  • European Union Law- Council Directive 2004/83/EC of 29 April 2004 (the Qualification Directive) lays down minimum standards for the qualification and status of third country nationals or stateless persons as refugees and makes provision for the content of the protection granted. The Qualification Directive has been transposed into law in the UK through primary and secondary legislation and the Immigration Rules. The Qualification Directive has been transposed into domestic law via the Refugee or Person in need of International Protection (Qualification) Regulations 2006.

 

  • European Union law- Council Directive 2005/85/EC of 1 December 2005 (the Procedures Directive) lays down minimum standards on procedures in Member States for granting and withdrawing refugee status. The Procedures Directive has been transposed into law in the UK through primary and secondary legislation and the Immigration Rules. The Procedures Directive has been transposed into domestic law via the Asylum (Procedures) Regulations 2007.

 

  • Part 11 of the Immigration Rules includes provisions for refusing asylum or humanitarian protection, excluding a person from the Refugee Convention or humanitarian protection, and revoking or refusing to renew asylum or humanitarian protection.

 

  • Section 82 of the 2002 Act (as amended by the Immigration Act 2014) sets out the rights of appeal available against decisions taken under the Immigration Acts. An appeal can only be brought against a decision to refuse a protection or human rights claim, or revoke protection status. A person has ‘protection status’ if they have been granted leave as a refugee – they have been recognised by the UK as having refugee status – or as a person eligible for a grant of humanitarian protection.

 

(2) REFUGEE STATUS

 

Being a refugee and having ‘refugee status’ are two separate things.

 

Under the Refugee Convention, a person is a refugee where they meet the definition – they are outside their country of origin or former habitual residence owing to a well founded fear of persecution, regardless of any status conferred.

 

Refugee status is derived from the EU Qualification Directive and is the status afforded by Member States to those recognised as refugees. This means that all EU rights flow from this ‘status’.

 

Statutory Provisions:

 

Having regard to the 1951 Refugee Convention and 1967 Protocol relating to the status of refugees, Article 12 provides that the personal status of a refugee is governed by the law of the country of domicile or residence.

 

Article 2(d) of the Qualification Directive  defines ‘refugee status’ as the recognition of a refugee by a Member State; and Article 13 states that Member States shall grant refugee status to persons who qualify as a refugee under the provisions of the Directive.

 

Immigration Rules: Introduction defines ‘refugee status’ as the recognition by the UK, following consideration of an asylum claim, that a person meets the criteria in paragraph 334 of the Rules, one of which is that they are a refugee. ‘Refugee leave’ is leave granted under paragraph 334 or 335 of the Rules which has not been revoked under paragraphs 339A-339AC or 339B.

 

To qualify for refugee status, a person must satisfy the criteria in paragraph 334 of the Immigration Rules with reference to the definition in Regulation 2 of the Refugee or Person in need of International Protection (Qualification) Regulations 2006. This defines a refugee as a person who falls within 1(A) of the Refugee Convention and to whom Regulation 7 does not apply.  Regulation 7 sets out that a person is not a refugee if they fall within the scope of Article 1F of the Convention and explains the construction and application of Article 1F(b) in a way which mirrors the provision of Article 12(2)(b) of the Qualification Directive.

 

In particular, sub-paragraphs 334(iii) and (iv) of the Immigration Rules mean that refugee status will not be granted if there are reasonable grounds for regarding the person as a danger to the security of the UK, or having been convicted of a particularly serious crime as a danger to the community. This reflects Article 14(4) and 14(5) of the Qualification Directive.

 

Article 2(j) of the Qualification Directive defines ‘residence permit’ and Article 24 requires Member States to issue a residence permit to those with refugee or subsidiary protection status, valid for at least 3 years and renewable, unless compelling reasons of national security or public order require shorter grants of leave. This is a similar test to that set out in Article 32 of the Refugee Convention.

 

Paragraph 339Q of the Immigration Rules states that the Secretary of State will issue a grant of leave (Residence Permit) to people granted refugee status, which may be valid for 5 years or for shorter periods in certain circumstances.

 

Paragraphs 339Q(i) and (ii) of the Rules provide that the grant of leave to remain in the UK may be for 5 years unless:

 

  • compelling reasons of national security or public order otherwise require

  • there are reasonable grounds for considering that the claimant is a danger to the security of the UK

  • having been convicted by a final judgment of a particularly serious crime, they are a danger to the community

  • the person’s character, conduct or associations otherwise require

 

Duration and conditions of leave:

 

Those who qualify for refugee status under paragraph 334 of the Immigration Rules should normally be granted limited leave to enter or remain under paragraph 339Q. This will normally include the following period of leave and associated benefits:

 

  • an initial period of 5 years’ limited leave

  • immediate and unrestricted access to the labour market, recourse to public funds and the opportunity to apply for a refugee integration loan

  • a 5 year route to settlement for those who continue to need protection

  • no requirement to demonstrate a knowledge of language and life in the UK when applying for settlement.

 

Family members who have been accepted as dependants on the asylum claim in accordance with paragraph 349 of the Immigration Rules will normally be granted leave and refugee status in line with the main claimant under paragraph 339Q.

 

Settlement and safe return  review:

 

All those who apply for settlement protection after completing the appropriate probationary period of limited leave will be subject to a safe return review with reference to the country situation at the date the application is considered. Those who still need protection at that point will normally qualify for settlement.

 

A person’s case may also be reviewed at any point in the process either when triggered by their actions, for example, they are convicted of a serious crime, or in light of a significant and non-temporary change in conditions in their country of origin such that they no longer need protection. Refugee leave may be revoked where someone no longer needs, is no longer entitled to protection due to their actions, or should not have been given protection under the Refugee Convention.

 

(3) CESSATION

 

Statutory Provisions

 

The 1951 Refugee Convention and 1967 Protocol relating to the status of refugees-

 

Article 1C sets out the circumstances in which the Refugee Convention will cease to apply because an individual no longer needs protection.

 

Article 14 of the Qualification Directive allows Member States to revoke, end or refuse to renew refugee status in certain circumstances. Article 14(1) provides for such action where an individual ceases to be a refugee in accordance with Article 11, which replicates the cessation provisions set out in Article 1C of the Refugee Convention.

 

Article 37 of the Procedures Directive states that Member States shall review refugee status when new elements or findings indicate that there are reasons to reconsider the validity of that status; whilst Article 38 requires Member States to notify the person in writing of the intention to consider withdrawing refugee status and the reasons for it, to provide an opportunity for them to respond.

 

Article 39(1) of the Procedures Directive states that Member States shall ensure the right to an effective remedy against a revocation decision. Under Article 39(3) Member States may provide that this remedy shall not permit the person to remain in their territory pending its outcome.

 

Paragraph 338A of the Immigration Rules sets out when refugee status granted under paragraph 334 will be revoked or not renewed. This is set out in detail in paragraphs 339A to 339AB and 339AC and covers circumstances in which the Refugee Convention will cease to apply; where a person will be excluded; where status was obtained by misrepresentation; and where someone represents a danger to the UK.

 

When protection need ceases to apply:

 

The cessation clauses set out in Article 1C(1) to (6) of the Refugee Convention describe how the Convention will cease to apply  to a person who has previously been recognised as a refugee. The person can therefore no longer be regarded as a refugee.

 

Paragraph 339A (i)-(vi) of the Immigration Rules provides for a person’s refugee status to be revoked where they have ceased to be a refugee. These provisions mirror the cessation clauses of Article 1C of the Refugee Convention and implement the requirements of Article 11(1)(a)-(d) of the EU Qualification Directive.

 

Paragraph 339A(i) – (iv) of the Immigration Rules reflects a change in the refugee’s personal situation and Paragraph 339A (v) and (vi) reflects changes in the country situation and/or the refugee’s personal situation. In considering the country situation, Article 11 of the Qualification Directive requires Member States to have regard to whether the change in circumstances is of such a significant and non-temporary nature that the fear of persecution can no longer be regarded as well-founded.

 

The cessation clauses:

 

The circumstances in which refugee status may be taken to have ceased, as set out in Article 1C of the Refugee Convention, are as follows:

 

  • voluntary re-availment of national protection: an individual voluntarily chooses to re-avail themselves of the protection of the country of their nationality:- This is where a refugee chooses to return to their own country and/or to obtain and/or use a passport issued by that country. Where a refugee has obtained a passport and travelled to their country of origin or former habitual residence, the circumstances of the case must be reviewed to consider whether refugee status should be revoked. However, home office caseworkers must take into account any explanation provided by the individual and any exceptional, compassionate circumstances that may render revocation inappropriate.

  • voluntary re-acquisition of lost nationality: a refugee, having lost (or been stripped of) their nationality of the country in respect of which they were recognised as having a well-founded fear of persecution, voluntarily re-acquires that nationality.

  • voluntary acquisition of a new nationality and protection: a refugee acquires a new nationality and enjoys the protection of the country of their new nationality and has no fear of persecution in that country

  • voluntary re-establishment in the country where persecution was feared: a refugee travels to and re-establishes themselves in the country from which protection was sought.

  • nationals whose reasons for becoming a refugee have ceased to exist because: (a)the circumstances that led to refugee status being granted have ceased to exist and the refugee can no longer continue to refuse the protection of their own country of nationality; (b)protection has now become available where it once was not

  • stateless persons whose reasons for becoming a refugee have ceased to exist: a stateless person with refugee status may be able to return to their country of former habitual residence because the circumstances in which they were recognised as a refugee have ceased to exist and they have a right to reside there.

 

Where a stateless person is unable to reside in their country of former habitual residence, they may meet the requirements for stateless leave.

 

Where a cessation clause applies, such that an individual no longer needs protection, their refugee status will be revoked under Paragraph 339A (i) to (vi) of the Immigration Rules.

 

When refugee status can lapse – cessation cases:

 

In cases of voluntary re-availment or the acquisition of a new nationality, as set out in Article 11(1)(a) to (d) of the Qualification Directive (and reflected in Paragraphs 339A (i) to (vi) of the Immigration Rules), Article 38(4) of the Procedures Directive permits Member States to decide that refugee status shall lapse by law in the case of cessation or if the refugee has unequivocally renounced their refugee status.

 

Paragraph 339BB of the Rules sets out exceptions to the procedure required in paragraph 339BA. Where refugee status is treated as having lapsed in accordance with Article 38(4) of the Procedures Directive, there is no need to inform the person in writing of the reasons for the reconsideration or provide them with the opportunity to submit reasons why refugee status should not be revoked. This may apply where refugee status is revoked under paragraph 339A or if the person unequivocally renounces their recognition as a refugee. However,  home office caseworkers are required to be  cautious in applying this provision and where there is still doubt as to whether someone still needs protection, and they remain in the UK, they should normally be given the opportunity to provide reasons why their status should not be revoked.

 

Letter ASL.5053 – ‘Notification that refugee status has lapsed’,  informs the individual that their refugee status has lapsed in the UK and that any extant leave has been curtailed or revoked.

 

Change in circumstances:

 

Cases where application of paragraph 339A(v)-(vi) of the Rules may be appropriate must be subject to an assessment on their individual merits. Home Office caseworkers must also consider whether compelling reasons have been provided by the refugee as to why they are refusing to re-avail themselves of protection of their country of nationality or former habitual residence.

 

Changes in country situation refers to changes in the country situation that are significant and non-temporary such that a fear of persecution can no longer be regarded as well-founded. The overthrow of one political party in favour of another might only be transitory or the change in regime may not mean that an individual is no longer at risk of persecution. The changes must be such that the reasons for becoming a refugee have ceased to exist and there are no other reasons for an individual to fear return there. In the case of stateless persons, they must be able to return to their country of former habitual residence for the purposes of residency and not be at risk of persecution there.

 

Internal relocation:

 

Where it is considered that it would be reasonable to return an individual to a specific part of a country, the fact that they have previously been recognised as a refugee must form part of the overall assessment. This overall assessment includes, but is not limited to, full consideration of:

 

  • the situation in the country of origin

  • means of travel

  • proposed area of relocation in relation to the individual’s personal circumstances

 

Even where country information and guidance suggest that relocation is possible, it is the ability of the individual and any dependants to relocate in practice which must be assessed, bearing in mind that the changes must be significant and non-temporary.

 

Changes in personal circumstances:

 

Where the original reasons for recognising an individual as a refugee no longer exist due to a change in personal circumstances, home office caseworkers must consider whether other factors mean that they are still at risk.

 

Refugees must be provided with the opportunity to respond where revocation action is being considered.

 

Home Office caseworkers must carefully consider any evidence provided as to why the individual still fears return before revoking refugee status on grounds of a change in personal circumstances. It will only be appropriate to revoke such status on grounds that such status has ceased where an individual no longer has a well-founded fear of persecution on any grounds and it is safe for them to return.

 

Compelling reasons arising out of previous persecution:

 

Article 1C(5) and (6) of the Refugee Convention contain an exception to the cessation provisions, allowing a refugee to invoke ‘compelling reasons arising out of previous persecution’ for refusing to re-avail himself or herself of the protection of their country of origin.

 

This exception applies to cases where refugees, or their family members, have suffered truly atrocious forms of persecution and it is unreasonable to expect them to return to their country of origin or former habitual residence. This might, for example, include:

 

  • ex-camp or prison detainees

  • survivors or witnesses of particularly traumatic violence against family members, including sexual violence

  • those who are severely traumatised

 

The presumption is that such persons have suffered grave acts of persecution, including at the hands of elements of the local population, and therefore cannot reasonably be expected to return. Application of the ‘compelling reasons’ exception is interpreted to extend beyond the actual words of the provision to apply to Article 1A(2) refugees and reflects a general humanitarian principle.

 

This provision is expected to apply only in the most exceptional of cases.

 

(4) EXCLUSION

 

Statutory Provisions:

 

Having regard to the 1951 Refugee Convention and 1967 Protocol relating to the status of refugees, there is provision to exclude individuals from the Refugee Convention under Article 1F where there are serious reasons for considering that the person has:

 

  • committed a crime against peace or humanity or a war crime, as defined in international instruments

  • committed a serious non-political crime outside the country of refuge prior to their admission as a refugee

  • been guilty of acts contrary to the purposes and principles of the United Nations

 

Article 14(3) of the Qualification Directive states that Member States shall revoke, end or refuse to renew refugee status if the person should be (or should have been) excluded from such status in accordance with Article 12, or if the person’s misrepresentation or omission of facts, including use of false documents, were decisive for the grant of refugee status.  Article 12 replicates (among other provisions) the exclusion provisions set out in Article 1F of the Refugee Convention. Article 12 of the Qualification Directive  sets out the circumstances in which Member States will exclude a third country national from being a refugee.

 

Regulation 7 of the Refugee or Person in need of International Protection (Qualification) Regulations 2006 clarifies the definition of a ‘serious non-political crime’ and the timing of a person’s admission to the country of refuge in Article 1F(b) of the Refugee Convention. It also states that Article 1F(a) and (b) of the Refugee Convention will apply to a person who initiates or otherwise participates in the commission of the crimes or acts specified in those provisions.

 

Section 54 of the Immigration, Asylum and Nationality Act 2006 provides a definition of acts contrary to the purposes and principles of the United Nations falling within Article 1F(c).

 

Section 55 of the Immigration, Asylum and Nationality Act 2006 provides that where Article 1F applies, or Article 33(2) applies on the grounds of national security, a claimant is not entitled to the protection of the principle of non-refoulement under Article 33(1), the Secretary of State can issue a certificate to that effect. To ensure that any exclusion issues are fully considered at appeal, the effect of the certificate is that the Tribunal or the Special Immigration Appeals Commission (SIAC) must begin the appeal by considering the certificate.

 

Section 34 of the Anti-Terrorism, Crime and Security Act 2001 (ATCS Act) explicitly provides that when considering Articles 1F and 33(2) of the Refugee Convention there is no weighing up of the extent of persecution feared against the gravity of the Article 1F crime or act or Article 33(2) crime.

 

Exclusion – Article 1F of the Refugee Convention:

 

 

Those who have committed war crimes, crimes against humanity, terrorist acts or other serious criminal offences are excluded from refugee status under Article 1F of the Refugee Convention, even where they meet the refugee definition in Article 1A(2). The exclusions provisions are reflected in EU Directives and the Immigration Rules.

 

Article 1F(a) can be invoked irrespective of the location where the alleged crime was committed. The International Criminal Court (Rome) Statute (‘Rome Statute’) established the International Criminal Court (‘the ICC’) in The Hague, Netherlands as a permanent institution with the power to exercise its jurisdiction over persons for the most serious crimes of international concern.

 

Article 1F is intended to exclude individuals from refugee protection where there are serious reasons to consider that they have committed certain serious crimes and they are avoiding being brought to international or national justice to be held to account for their actions.

 

Those excluded from refugee status under Article 1F will also normally be excluded from humanitarian protection.

 

The Refugee Convention does not stop an individual from being excluded from protection because they have already been punished for their crime or act. Exclusion must still be considered whether or not they have already been punished. Equally, the fact that someone has been pardoned or has benefitted from an amnesty does not mean that they cannot be considered for exclusion.

 

Home Office policy is that there is  nothing in the Refugee Convention or the Qualification  which suggests that the issue of expiation or the passage of time since the crime was committed should play any part in determining the seriousness of the original crime or in reducing the offender’s liability to exclusion.

 

The Refugee Convention does not shield refugees or asylum-seekers who have engaged in criminal conduct from prosecution, nor does international refugee law preclude extradition in all circumstances. However, where an asylum claim has been made on the basis of a well founded fear of persecution in the state requesting extradition, under UK extradition law the claim must be carefully considered and finally determined before extradition can take place.

 

Reasons for exclusion must relate to the most relevant clause 1F(a), (b), or (c), but it is possible for more than one clause to apply, for example, those who engage in certain acts of terrorism should be considered for exclusion under Article 1F(b) as well as 1F(c).

 

Article 1F(a):

 

Article 1F(a) applies where there are serious reasons for considering that a person has committed a crime against peace, a war crime, or a crime against humanity.

 

Genocide is a sub-section of crimes against humanity. It is expressly included within the jurisdiction of the International Criminal Court (ICC). The term ‘genocide’ includes crimes such as murder, causing serious bodily or mental harm, or imposing measures intended to prevent births within a group, if they are committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group.

 

Article 1F(b):

 

Article 1F(b) applies in cases where there are serious reasons for considering that the individual has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.

 

The 4 criteria that must be satisfied are:

 

  • there must be serious reasons for considering that the individual has committed a criminal offence in another country

  • the offence has to be serious

  • the offence has to be non–political

  • the offence has to have been committed outside the country of refuge

 

The Refugee Convention does not list offences which are regarded as serious crimes. Article 12(2)(b) of the Qualification Directive (QD) reflects the provisions of Article 1F(b) of the Convention but expands on the definition:

 

  • he or she has committed a serious non-political crime outside the country of refuge prior to his or her admission as a refugee; which means the time of issuing a residence permit based on the granting of refugee status; particularly cruel actions, even if committed with an allegedly political objective, may be classified as serious non-political crimes

 

The UK defines a particularly serious crime in section 72 of the Nationality, Immigration and Asylum Act 2002 as one which either attracted a custodial sentence of 2 years or more or, where the offence is committed outside the UK, could have attracted a custodial sentence of 2 years or more had the offence been committed in the UK.

 

Article 12(2)(b) of the QD provides further interpretative guidance on Article 1F(b) of the Convention. It states that a ‘particularly cruel action’ will be held to be a ‘serious non-political crime’ for the purpose of Article 1F(b), even if it is committed with an allegedly political objective.

 

Those who engage in certain acts of terrorism may therefore be excluded under Article 1F(b) as most terrorist acts are wholly disproportionate to any political motive. As such, acts of terror may not necessarily be excludable under Article 1F(c) (‘acts contrary to the purposes and principles of the United Nations’) and 1F(b) will often be more appropriate.

 

The Burden of Proof:- The evidential burden of proof rests with the Secretary of State to show that Article 1F applies, not for the claimant to show that it does not. Article 1F applies if there are serious reasons for considering that the person concerned has committed certain crimes or acts. This is lower than the high standard of proof needed for a criminal conviction (‘beyond reasonable doubt’). In JS (Sri Lanka) v SSHD [2010] UKSC 15, the Supreme Court confirmed that the phrase ‘there are serious reasons for considering’ in the Refugee Convention (and similarly in the Qualification Directive), set a standard above mere suspicion and had to be treated as meaning what it says. The Court said that ‘considering’ is nearer to ‘believing’ rather than ‘suspecting’. This means that to engage the exclusion provisions, the evidence should not be tenuous, inherently weak or vague, and should support a case built around more than just suspicion. Decision makers must be satisfied that the person has instigated or otherwise participated in the commission of excludable acts.

 

Meaning of Serious Reasons:- In Al-Sirri v SSHD and DD (Afghanistan) v SSHD [2012] UKSC 54, the Supreme Court further defined the meaning of ‘serious reasons’. It said that ‘serious reasons’ has an autonomous meaning, and is not the same as the criminal standard of proof ‘beyond reasonable doubt’, or any domestic standard. ‘Serious reasons’ was stronger than ‘reasonable grounds’ and therefore strong or clear and credible evidence has to be present and the considered judgement of the decision maker is required. In practice, the standard of proof will not be reached unless the decision maker is satisfied that it is more likely than not that the claimant was responsible for the crimes or acts. The task, therefore, is to apply the wording of Article 1F in each particular case.

 

When transposing Article 1F(b) into EU law, Article 12(2)(b) of the Qualification Directive  reflected the wording but went on to define what it meant by ‘outside the country of refuge prior to his or her admission as a refugee’ as meaning the time of issuing a residence permit following a grant of refugee status. As such, crimes committed in the UK before an individual is granted refugee status (and issued a residence permit under paragraph 339Q of the Immigration Rules) fall within the scope of Article 1F(b).

 

In addition, a crime such as conspiracy to import drugs may have both an international and domestic dimension – that is committed both overseas, before the asylum seeker came to the UK, and continued in the UK after arrival. Continuous crimes such as this can also be considered as being committed outside the country of refuge for the purpose of exclusion under Article 12(2)(b) of the Qualification Directive.

 

Article 1F(c):

 

Article 1F(c) applies in cases where there are serious reasons for considering that an individual has been guilty of acts contrary to the purposes and principles of the United Nations.

 

The purposes and principles of the United Nations (UN) are set out in the Preamble and Article 1 of the Charter of the United Nations. Article 1 lists four purposes, namely to:

 

  • maintain international peace and security

  • develop friendly and mutually respectful relations among nations

  • achieve international cooperation in solving socio-economic and cultural problems

  • in promoting respect for human rights serve as a centre for harmonising actions directed to these ends Acts of terrorism are widely considered contrary to the purposes and principles of the UN, as set out in the United Nations Security Council Resolutions relating to measures combating terrorism.

 

In UK law, section 54 of the Immigration, Asylum and Nationality Act 2006 provides that acts contrary to the purposes and principles of the United Nations shall be taken as including, in particular:

 

  • acts of committing, preparing or instigating terrorism (whether or not the acts amount to an actual or inchoate offence)

  • acts of encouraging or inducing others to commit, prepare or instigate terrorism (whether or not the acts amount to an actual or inchoate offence)

 

The section then defines terrorism for the purpose of interpreting Article 1F(c) in UK law as having the meaning given by section 1 of the Terrorism Act 2000 (as amended by the Terrorism Act 2006).

 

Terrorist groups or other proscribed organisations are listed on the GOV.UK website and in Schedule 2 to the Terrorism Act 2000, (as amended). The fact that an individual may be on a list of terrorist suspects or be a member of a terrorist organisation does not mean that exclusion is automatically assumed to apply but may be evidence of such involvement. The question is: has the individual voluntarily contributed in a significant way to the organisations ability to pursue its aim of committing acts of terrorism or serious crimes, aware that the assistance will in fact further that purpose?

 

In Al-Sirri v SSHD and DD (Afghanistan) v SSHD [2012] UKSC 54 the Supreme Court (SC) ruled that Article 1F(c) should be interpreted restrictively and applied with caution. There should be a high threshold defined by the gravity of the act in question, the manner in which the act is organised, its international objectives and its implications for international peace and security. There should be serious reasons for considering that the person concerned bore individual responsibility for acts of that character. The Supreme Court  said that the phrase ‘acts contrary to the purposes and principles of the United Nations’ must have an autonomous meaning and member states were not free to adopt their own definitions.

 

Other Article 1F Considerations:

 

The individual circumstances of the case must be fully explored during the asylum interview, including any factors that may lead to exclusion. The claimant must be given an opportunity to explain their level of involvement in the crime or act and the motivation or reasoning behind their alleged actions.

 

Prosecutions and convictions : The person does not have to have been prosecuted or convicted of any offence in any country. Equally, evidence of the acquittal of a person accused of a crime or a pardon following conviction, does not necessarily mean that exclusion cannot or should not be applied. Each case must be considered on its individual merits. Evidence of a conviction will usually provide serious reasons for considering that they have committed the crime and home office decision makers will not normally need to examine at length the evidential basis for the conviction.

 

Home Office decision makers are required to keep in mind the possibility that an asylum claimant who was a known opponent of their country’s authorities may be the victim of false charges and that a criminal prosecution or conviction in their country of origin may in fact constitute evidence of persecution, especially in countries where standards of judicial fairness fall well short of internationally accepted standards.

 

Issues of complicity and culpability:- All three clauses of Article 1F will raise issues about the nature of a person’s participation in a possible crime or act. Membership of or employment in an organisation which uses violence or threats of violence as a means to achieve political or criminal objectives is not enough on its own to make a person guilty of an international crime and is not sufficient to justify exclusion from refugee status.

 

Depending on the circumstances, a person may incur individual responsibility for crimes that come within the scope of Article 1F in the following circumstances:

 

  • by personally perpetrating excludable crimes

  • for crimes committed by others, either by provoking others to commit such crimes, for example, through planning, inciting, ordering, soliciting or inducing commission of the crime

  • by aiding or abetting the planning, preparation or execution of the crime, or participating in a joint criminal enterprise

  • by making a significant or substantial contribution to the commission of a group’s crimes (sometimes referred to as joint criminal enterprise or common design or plan)

 

The Supreme Court in JS (Sri Lanka) v SSHD [2010] UKSC 15, said that the exclusion clauses will apply if there are serious reasons for considering that the individual had voluntarily contributed in a significant way to the organisation’s ability to pursue its purpose of committing war crimes, aware that their assistance will in fact further that purpose. If the person was aware that in the ordinary course of events a particular consequence would follow from their actions, they would be taken to have acted with both knowledge and intent.

 

Although the judgment in JS (Sri Lanka) v SSHD [2010] UKSC 15,  relates to Article 1F(a) cases, the test extends to Article 1F (b) and (c). The Supreme Court said that it was preferable to focus from the outset on what ultimately had to be the determining factors in any case, principally (in no particular order):

 

  • the nature and (potentially of some importance) the size of the organisation, particularly the part of it with which the individual was most directly concerned

  • whether and, if so, by whom the organisation was proscribed

  • how the individual came to be recruited

  • the length of time they remained in the organisation and what, if any, opportunities they had to leave it

  • their position, rank, standing and influence in the organisation

  • their knowledge of the organisation’s war crimes activities

  • their own personal involvement and role in the organisation including any contribution they made towards the commission of war crimes

 

Where there are serious reasons for considering that an individual committed the act or crime or significantly contributed to it, and is potentially excludable under one or more of the exclusion clauses of Article 1F, it must also be established that they had the requisite understanding and intention at the time they participated. The asylum interview must investigate both parts of this test and the relevant issues thoroughly.

 

Children and exclusion:- Having regard to Home Office policy, this states that the application of exclusion clauses to asylum claims from children will be rare and must always be exercised with great caution, given the particular circumstances and vulnerabilities of children. Exclusion on grounds of crimes or acts committed by children must always involve an assessment of their ability to understand acts that they may have been ordered to undertake and how far they can be held criminally responsible for them. If there are serious reasons for believing that a claimant (whether a child or an adult at the time of the claim) committed acts or crimes contrary to Article 1F whilst they were a child, for example, while being compelled to serve with armed forces or an armed group, the individual is more likely to have been a victim of offences against international law than a perpetrator.

 

Defences :- An exclusion analysis also requires an assessment of any other circumstances which may give rise to a valid defence which exonerates a person from individual responsibility for their acts. Defences which may be valid, depending on the circumstances, include superior orders, force or duress, self-defence or defence of others. A key issue will be the extent to which the individual could reasonably exercise freedom of choice not to take part or assist the criminal act.

 

Exclusion and dependants:- Where family members are seeking to remain in the UK as dependants of a claimant whose asylum claim is refused partly or wholly in reliance on Article 1F, the claims from the dependants must be refused in line with the main claimant. Dependants may claim asylum in their own right and such claims must be considered on their individual merits. They cannot be excluded from protection simply because of the actions of the main claimant. A claim from a dependant may succeed even where the fear of persecution arises as a result of their relationship to their excluded relative.

 

Cases where Article 1F applies but removal is not currently possible: – In limited circumstances, it is possible that removal may breach one of the Articles of the ECHR, such as Article 3. These must be carefully considered before any removal action takes place. Where removal is not possible a grant of Restricted Leave  or Discretionary Leave may be appropriate.

 

Appeal rights, Article 1F and Section 55 certificates :

 

Where an asylum claim is refused partly or wholly on the ground that Article 1F applies, an appeal against the refusal of the protection claim can be brought under section 82(1)(a) of the Nationality, Immigration and Asylum Act 2002 (as amended by the Immigration Act 2014).

 

Where Article 1F applies, a claimant must not be granted refugee status and the claim must be refused. To ensure that any exclusion issues are fully considered at appeal, section 55 of the Immigration, Asylum and Nationality Act 2006 provides that the Secretary of State can issue a certificate to the effect that the claimant is not entitled to the protection of the principle of non-refoulement. The Tribunal or the Special Immigration Appeals Commission (SIAC) must then begin substantive deliberations on any asylum appeal by considering the certificate. If the Tribunal or SIAC agree with the statements in the certificate, they must dismiss the entire appeal. Decision makers must issue a section 55 certificate in all cases excluded under Article 1F, including cases where refugee status is revoked on that basis.

(5) REFUSAL, DENIAL OF PROTECTION

 

Statutory Provisions:

 

Having regard to the 1951 Refugee Convention and 1967 Protocol relating to the status of refugees, Article 32 states that a refugee shall not be expelled from a country where they are lawfully present except on grounds of national security or public order; and Article 33(2) permits the return (refoulement) of a refugee where either:

 

  • there are reasonable grounds for regarding them as a danger to national security

  • having been convicted by a final judgment of a particularly serious crime, they constitute a danger to the community

 

Both articles apply to those who are still ‘refugees’ under the Refugee Convention, who are not (or cannot) be excluded under Article 1F.

 

Article 14(4) of the Qualification Directive states that Member States may revoke, end or refuse to renew refugee status where there are reasonable grounds for regarding the person as a danger to the security of that Member State; or if, having been convicted by final judgment of a particularly serious crime, they constitute a danger to the community. This replicates Article 33(2) of the Refugee Convention.

 

Article 14(5) of the Qualification Directive allows   the UK  government  to apply Article 14(4) to cases where a decision is yet to be made on an asylum claim. This means that where there are reasonable grounds for regarding the claimant as a danger to the security of the host country; or if, having been convicted by a final judgment of a particularly serious crime, they are considered to pose a danger to that community;  the Home Office  are entitled to refuse to grant refugee status.

 

Section 72 of the Nationality, Immigration and Asylum Act 2002 provides that, for the purposes of Article 33(2) of the Refugee Convention, an individual is presumed to have committed a particularly serious crime and be a danger to the community if sentenced to imprisonment of at least 2 years or the offence is one specified by Order of the Secretary of State. It must be a single crime and cannot be an aggregate sentence and must relate to an ongoing danger. The presumption that a person constitutes a danger to the community is rebuttable by that person.

 

Section 55 of the Immigration, Asylum and Nationality Act 2006 provides that where Article 1F applies, or Article 33(2) applies on the grounds of national security, a claimant is not entitled to the protection of the principle of non-refoulement under Article 33(1), the Secretary of State can issue a certificate to that effect. To ensure that any exclusion issues are fully considered at appeal, the effect of the certificate is that the Tribunal or the Special Immigration Appeals Commission (SIAC) must begin the appeal by considering the certificate.

 

Section 34 of the Anti-Terrorism, Crime and Security Act 2001 (ATCS Act) explicitly provides that when considering Articles 1F and 33(2) of the Refugee Convention there is no weighing up of the extent of persecution feared against the gravity of the Article 1F crime or act or Article 33(2) crime.

 

Article 33(2) of the Refugee Convention:

 

Article 33(2) of the Refugee Convention provides for refugees to be returned to their country of origin where either:

 

Article 33(2) of the Refugee Convention provides for refugees to be returned to their country of origin where either:

 

  • there are reasonable grounds for considering they are a danger to the national security of the host state

  • they pose a danger to the community after having been convicted by a final judgement of a particularly serious crime This provision provides an exception to the principle of non-refoulement set out in Article 33(1) and applies to those who have been granted refugee status and who prove to be serious threats to public security, including those who exhibit extremist behaviours, or those who have been convicted of a particularly serious crime and pose a danger to the community.

 

Purpose of Article 33(2) of the Refugee Convention:

 

Article 33(2) of the Refugee Convention has a different purpose. In effect, it negates the principle of non-refoulement of Article 33(1) and deals with refugees who, after being granted refugee status, prove to be serious criminals or threats to public security. It provides for refugees to be returned to a country of persecution where there are reasonable grounds for regarding them as a danger to the security of the host country; or if, having been convicted by a final judgment of a particularly serious crime, they are considered to pose a danger to that community. Section 72 of the 2002 Act provides an interpretation of Article 33(2). However, in such cases the UK remains bound by the ECHR and will not remove someone to a country where there is an ECHR barrier to removal (normally under Article 3).

 

Article 14(5) provides that where a person meets the criteria in Article 14(4) but has not yet been granted asylum, their claim can be refused. The criteria in Article 14(4) are the same as Article 33(2) of the Refugee Convention and Article 14(5) allows Member States to refuse to grant refugee status where there are reasonable grounds for regarding an individual as a danger to the security of the UK, or they have been convicted of a particularly serious crime such that they are deemed to be a danger to the community. Paragraph 334(iii) and (iv) echoes this and provides for the refusal of refugee status where there are reasonable grounds for regarding an individual as a danger to the security of the UK, or they have been convicted of a particularly serious crime such that they are deemed to be a danger to the community.

 

Section 72 of the 2002 Act:

Section 72 of the Nationality, Immigration and Asylum Act 2002 provides an interpretation of what constitutes a particularly serious crime for the purposes of the second limb of Article 33(2) of the Refugee Convention. Article 33(2) provides that a refugee may be returned to a place where they have a well-founded fear of persecution if, having been convicted by a final judgement of a particularly serious crime, they are a danger to the community of the country of refuge. As the wording is the same as in Article 14(4) of the Qualification Directive, the Home Office would rely on this presumption where looking to refuse asylum under Article 14(5) of the QD, as well as where  they are seeking to remove a refugee under Article 33(2) of the Refugee Convention.

 

Section 72 defines when the serious criminality provision in Article 33(2) will be presumed to apply, stating that:

 

A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if he is:

 

(a) convicted in the United Kingdom of an offence, and

(b) sentenced to a period of imprisonment of at least 2 years

 

Section 72 also applies where a person who is convicted overseas, is sentenced to a period of imprisonment of at least 2 years and could, if convicted in the UK for a similar offence, have been sentenced to at least 2 years. However, what counts for the purposes of section 72(2) and (3) is not the maximum sentence that could have been imposed, or the time a person actually spends in prison or detention, but the period of imprisonment to which they were sentenced.

 

The presumption that an individual is a danger to the community as set out in section 72 is rebuttable. Any evidence provided by the individual must be carefully considered in assessing whether they are a danger to the community.

 

In addition, whilst section 72 provides an automatic presumption where someone is sentenced to a period of imprisonment of at least 2 years, this does not necessarily mean that individuals whose crimes attract shorter sentences cannot be considered for refusal under paragraphs 334(iii) and (iv), which reflect Article 14(5) of the Qualification Directive or removal under Article 33(2) of the Refugee Convention. However, it must be considered that an individual represents a danger to the community and as such it is unlikely that this threshold will be met where the sentence falls short of the provisions in section 72.

 

Extremism:

 

Those who promote extremist views or engage in extremist activities that represent a danger to the security of the UK may engage Article 14(5) of the Qualification Directive  and therefore they will be refused asylum under the corresponding provisions of the Immigration Rules. Decision makers will explore during the asylum interview any issues that may point towards extremist behaviour or activities. Where such issues come to light the case must be referred to the Special Cases Unit for consideration. Those considered to represent a danger to the security of the UK on grounds of extremism may include:

 

  • those whose presence in the UK is deemed not conducive to the public good, for example on national security grounds, because of their character, conduct or associations

  • those who engage unacceptable behaviours, in the UK or abroad, including undertaking, proposing to undertake or espousing extremist views which:(a)foment, justify or glorify terrorist violence to further particular beliefs or provoke others to commit terrorist acts; (b)foment other serious criminal activity or seek to provoke others to such acts or foster hatred which may lead to inter-community violence; (c)spread, incite, promote or seek to justify hatred on grounds of disability, gender, race, religion, sexual orientation, gender identity and/or for purposes of overthrowing democracy

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 social media; or using a position of responsibility, for example. teacher, community or youth leader to express extremist views.

 

Human Rights and Restricted Leave:

 

In September 2011, the Restricted Leave policy replaced grants of Discretionary Leave for those excluded under Article 1F of the Refugee Convention and the policy was also updated in January 2015 to cover those refused under Article 33(2), where the case falls within the remit of Special Cases Unit . Such individuals will not benefit from refugee leave and will instead be granted much shorter periods of leave if they still need protection. All cases involving exclusion issues or extremism are referred to Special Cases Unit.

 

The Restricted Leave policy covers those refused under Article 33(2) of the Refugee Convention where the case falls within Special Cases Unit remit. Restricted leave may be granted in these circumstances where removal would breach the UK’s obligations under the ECHR.

 

In all cases where exclusion or Article 33(2) applies any limited leave granted under either the Restricted Leave or Discretionary Leave policy should normally be for 6 months and the cases reviewed regularly to facilitate removal as soon as possible.

 

It is Home Office policy that where refugee status is not being revoked but the individual has been involved in any criminality, they may be granted 3 years limited leave where there continues to be a need for protection, unless there are compelling reasons to grant a longer period.

 

(6) REVOCATION OF REFUGEE STATUS

 

Statutory Provisions:

 

Paragraph 339B of the Immigration Rules covers curtailment or cancellation of leave when refugee status is revoked.

 

Paragraph 339BA of the Immigration Rules implements Article 38 of the Procedures Directive. This states that where revocation is being considered, the refugee should be informed in writing that their grant of asylum is being reconsidered and the reasons for the reconsideration. It also provides that the person should be given the opportunity to submit, in a personal interview or in a written statement, reasons why their refugee status should not be revoked.

 

Paragraph 339BB of the Immigration Rules sets out the circumstances when the procedure in paragraph 339BA does not need to be followed; and Paragraph 339BC confirms that the procedure can be carried out when the person is outside the UK.

 

Paragraph 358C of the Immigration Rules  entitles UNHCR to present their views when consideration is being given to the revocation of refugee status.

 

Section 76 of the 2002 Act provides the power to revoke indefinite leave to enter or remain in certain circumstances. Section 76(1) applies where someone is liable to deportation but cannot be deported for legal reasons; Section 76(2) applies where the leave was obtained by deception. These sections apply to anyone with indefinite leave regardless of the reason why it was originally granted. Section 76(3) applies where someone has ceased to be a refugee as a result of voluntary actions that mean they no longer need protection. This only applies to a refugee and will most likely accompany a decision to revoke that status.

 

Revocation of Refugee Status:

 

There is no provision to revoke status under the Refugee Convention itself. Articles 1C and 1F simply provide that the Refugee Convention no longer applies when the circumstances set out in those Articles are met. Article 33(2) differs in that it permits the removal of a refugee, but the individual does not stop being a refugee – under this Article they would be removed notwithstanding the fact that they remain a refugee. Any leave to enter or remain that a refugee is given is also separate to their refugee status. This leave and any conditions attached are conferred under the Immigration Act 1971.

 

The process for revoking refugee status and removing or varying their leave includes contact with the refugee normally in writing, and providing the United Nations High Commissioner for Refugees (UNHCR) with the opportunity to present their views on the case. Action to revoke refugee status should normally be carried out by the Status Review Unit. However, if there is criminality involved or there are security issues, Criminal Casework or the Special Cases Unit will be involved in the process.

 

Grounds for revoking refugee status:

 

Refugee status may be revoked for one or more of the reasons set out in the Immigration Rules. If more than one of the following provisions applies, then revocation on all grounds must be considered and addressed as part of the decision:

 

  • Refugee Convention ceases to apply (Paragraph 339A(i)-(vi))

  • exclusion from the Refugee Convention (Paragraph 339AA)

  • misrepresentation of facts decisive to the grant of refugee status (Paragraph 339AB)

  • danger to the UK (Paragraph 339AC(i)-(ii))

 

Where a person acquires British citizenship, their refugee status is automatically revoked in accordance with Paragraph 339A (iii) of the Immigration Rules upon acquisition of that status (they have acquired a new nationality and enjoy the protection of the country of their new nationality). Therefore, revocation does not apply in such cases and there is no requirement to obtain information from the individual as to why they should not have their refugee status revoked. It is also unnecessary to contact UNHCR for comment in these cases.

 

Where a former refugee, who has been naturalised, is found to have obtained refugee status by deception or where they have engaged in conduct which would have brought them within the scope of the exclusion clauses, then the Home Office may review that person’s continuing entitlement to British Citizenship.

 

Triggers that lead to a review of refugee status:

 

Where someone has refugee status, revocation action can be taken at any time if there is sufficient evidence to justify such action. This could be:

 

  • during the initial period of limited leave

  • after their leave has expired pending a decision on any settlement application

  • whilst the refugee has indefinite leave to remain (ILR)

 

The following is not an exhaustive list of triggers:

 

  • Return to country of origin or obtaining a passport:-This will usually indicate voluntary re-availment and may lead to revocation under Paragraph 339A(i)-(vi).

  • Reasons for the grant of asylum no longer exist:- A change in personal circumstances or country situation may mean that the reasons that led to the grant of asylum no longer apply. Any change must be significant and non-temporary. See Refugee Convention ceases to apply (Paragraph 339A(v)-(vi).

  • Misrepresentation:- Material facts were misrepresented or omitted and this was decisive in the decision to grant asylum. See Misrepresentation of facts decisive to the grant of refugee status (Paragraph 339AB).

  • Exclusion:- Evidence emerges after a grant of status that indicates the person should have been or is excluded from the Refugee Convention. See Exclusion from the Refugee Convention (Paragraph 339AA) and Danger to the UK (Paragraph 339AC(i)-(ii).

  • Criminality:- Irrespective of the length of the sentence, a review of refugee status should be conducted in most cases where there are criminality issues. Criminality does not amount to a change of personal circumstances under Paragraphs 339A (i-iv), but it is possible that a review may highlight that protection is no longer needed.

  • Returning residents:- Where a refugee has been outside the UK for more than 2 years their refugee status should be reviewed before any leave is reinstated. Whilst refugee status can only lapse in certain circumstances any accompanying leave will lapse if a refugee fails to comply with the conditions of that leave. Those outside the UK for more than 2 years will be required to apply for a Returning Residents visa to return and must apply using the appropriate form, paying the relevant fee.

  • Extremist behaviour:- Where there is any evidence that a refugee or their dependants have engaged in unacceptable behaviours (whether in the UK or abroad) considered not conducive to the public good or has acted in a way which undermines British values, their status must be reviewed.

 

Revocation of refugee status under Article 1F:

 

There may be occasions where a person has been recognised as a refugee and information later comes to light which provides serious reasons for considering that they should have been excluded from protection under Article 1F. The additional evidence will need to be carefully considered and an assessment of the claim carried out taking into account evidence provided when the claim was made in light of the new material available.

 

Article 14(3) of the QD provides that Member States shall end or refuse to renew refugee status if, after an individual has been granted refugee status, it is established that the claimant either:

 

  • should have been or is excluded from being a refugee in accordance with Article 12 (Article 14(3)(a)

  • misrepresentations or omission of facts, including the use of false documents, were decisive for the granting of refugee status (Article 14(3)(b)

 

Article 14(4) also allows Member States to revoke refugee status on the basis of behaviour carried out by the claimant after they have been granted refugee status when:

 

  • there are reasonable grounds for regarding an individual as a danger to the security of the Member State in which they are present

  • having been convicted by final judgement of a particularly serious crime, an individual constitutes a danger to the community of that Member State

 

This is applicable where, subsequent to the grant of refugee status, a person commits a crime or acts which falls within the scope of Article 1F. Decision makers must refer to the revocation of refugee status instruction in considering these cases.

 

In cases where Article 1F applies but it is not possible to remove the individual due to EHCR reasons, refugee status must be revoked under paragraph 339AC and any refugee leave (limited or indefinite) replaced with a shorter period of leave with more restrictive conditions imposed as appropriate.

 

Exclusion or a danger to the UK:

 

Revocation on the basis of exclusion from the Refugee Convention, or on grounds that an individual poses an ongoing danger to the UK will be appropriate where a refugee’s behaviour warrants withdrawal of the original grant of refugee status. Even where a refugee cannot be removed (due to an Article 3 ECHR risk), it will still be appropriate to consider the duration and conditions of any leave they should be given. Paragraphs 339AA and 339AC(i)-(ii) of the Immigration Rules apply in such cases.

 

It may also be appropriate to consider whether refugee status should be revoked on any other basis.

 

Decisions to revoke refugee status taken in accordance with paragraph 339AA of the Immigration Rules reflect the requirements of Article 14(3) of the Qualification Directive. This permits Member States to revoke refugee status if, following the grant of status, it is established that the person should have been or is excluded from being a refugee in accordance with Article 12(2) of the QD. Article 12(2) reflects the exclusion criteria in Article 1F of the Refugee Convention.

 

Where evidence comes to light following a grant of refugee status such that there are serious reasons for considering that a person has committed a crime or act that falls within the scope of Article 1F(a) (crime against peace, war crime, crime against humanity) or (c) (guilty of acts contrary to the principles and purposes of the UN) of the Refugee Convention their refugee status should be revoked. In such cases, the fact that the person may not present an ongoing danger to the UK is immaterial. Where there are reasonable grounds for regarding the individual as a danger to national security, the cases must be referred to the Special Cases Unit before any action is taken.

 

Decisions to revoke refugee status taken in accordance with Paragraph 339AC(i)-(ii) of the Immigration Rules, reflect the requirements of Article 14(4) of the Qualification Directive. This permits Member States to revoke refugee status, if there are reasonable grounds for regarding the individual as a danger to the security of the Member State. This provision is identical to the expulsion / return provisions provided for under Article 33(2) of the Refugee Convention. Where someone is considered to be a danger to national security or a danger to the community after being convicted of a serious crime, refugee status must be revoked.

 

Requirement to provide the opportunity to respond:

 

Letter ASL.3831: Proposed Revocation of Refugee Status  informs the individual of the proposed action, the reasons why such action is being considered and invites them to submit representations within a specified number of days in support of their continued refugee status in the UK.

 

Where the refugee has legal representation, a copy of ASL.3831 is sent  with the ASL.3834 Representatives Covering Letter.

 

Article 38(1)(a) and (b) of the Procedures Directive (reflected in Paragraph 339BA of the Immigration Rules) set out certain requirements to provide the refugee with the opportunity to respond to where revocation action is being considered. Paragraph 339BC permits the procedure set out in paragraph 339BA to be initiated, and completed, while the person is outside the UK.

 

This includes a requirement to inform them in writing of the reasons why refugee status is being reconsidered and to give them a chance to respond to those reasons. This obligation is fulfilled by providing an opportunity for the individual to respond in writing. However, where it is considered that refugee status has lapsed, it may be possible to dispense with the requirement to provide the opportunity for the refugee to respond.

 

It may also be appropriate to cancel refugee leave in order to prevent an individual returning to the UK until a review of their refugee status has been completed. Refugee leave can be cancelled under Article 13(7) of the Immigration (Leave to Enter and Remain) Order 2000, for example where the individual is considered a danger to the security of the UK as soon as the individual is notified of the intention to revoke refugee status.

 

An interview does not need to be carried out in most potential revocation cases. If an interview is required as part of the consideration process, this must be conducted in accordance with the guidance, on Asylum Interviews and the safeguards set out  in Paragraphs 339NA and to 339ND of the  Immigration Rules.

 

Where the individual submits evidence in response to the notification of intention to revoke refugee status, careful consideration must be given to all the points raised as well as the initial information that led to the decision to consider revocation. The burden of proof rests on the Home Office when making a decision to revoke refugee status and, as with first instance decisions, the relevant standard of proof is a low one.

 

In the absence of any response, the Home Office caseworker should proceed on the assumption that the individual has no reasonable explanation to provide and therefore has no basis on which to remain in the UK.

 

Where no response is received from the refugee, Home Office caseworkers must still provide UNHCR with the opportunity to present their views on the decision to revoke refugee status.

 

Letter ASL.3838 (Revocation of Refugee Status Letter) will  out the reasons for the decision and informing the refugee to return their Convention Travel Document CTD (if applicable); Biometrics Residence Permit  or Immigration Status Document  within 14 days.

 

Where it is accepted that someone still needs protection after having reviewed the case, even if the reasons differ from those which gave rise to the original grant of leave, revocation action should not normally be pursued on cessation grounds. Where the response from the refugee is accepted and revocation action is not being pursued, Home Office caseworkers should complete the relevant templates informing the refugee and UNHCR (where applicable) that no further action is being taken. It may be appropriate to warn them that the behaviour that led to the review potentially jeopardised their entitlement to refugee status even though it has been decided not to pursue revocation on this occasion. It would also be appropriate to advise the refugee that despite no action being taken on this occasion, that this does not preclude any future action.

 

Letter ASL.3841 informs the refugee that no further action is being taken.

 

Letter ASL.3835 (Revocation Cases: Letter to UNHCR) informs the  UNHCR of the decision not to proceed with revocation.

 

View from UNHCR on the proposal to revoke refugee status:

 

It will normally be appropriate to give the UNHCR an opportunity to present their views on individual cases before a final decision is taken. This reflects the requirements in Paragraph 358C of the Immigration Rules. UNHCR should normally be contacted after the individual concerned has had an opportunity to comment so that UNHCR can take the representations of the refugee into account in preparing their view of the case.

 

Letter ASL.3835 (Revocation Cases: Letter to UNHCR), informs the  UNHCR of the intention to revoke the refugee status of the individual concerned and why the refugee’s response to ASL.3831 has not dissuaded  the Secretary  of State  from taking such action together with the ASL.3831 and any representations made by the refugee and/or their representative.

 

Although there is no requirement to formally respond to representations from UNHCR, caseworkers must take their comments into account as part of the decision on whether to proceed with revocation and provide UNHCR with a copy of the final decision.

 

Gateway settlement cases:

 

Those resettled to the UK under the any of the 3 resettlement schemes: Gateway, Mandate or the Syrian Vulnerable Persons Relocation (VPR) Scheme may be considered for revocation action where appropriate. However, it is likely that a number of factors contributed to the decision to resettle, therefore the case should be referred to the Resettlement team for Gateway or Mandate cases or the Asylum Policy team for the Syrian VPR cases in the first instance.

 

Misrepresentation:

 

Whilst the Refugee Convention contains no specific provisions for the revocation of refugee status on the basis of misrepresentation (previously referred to as ‘cancellation’), paragraph 117 of the UNHCR handbook sets out the following circumstances where it would be appropriate to consider doing so:

 

  • refugee status was obtained by misrepresentation of material facts

  • the refugee possesses another nationality that was not disclosed at the time of the original decision

  • the exclusion clauses would have been applied had all the relevant facts been known

 

Paragraph 339AB relates to situations where a refugee has misrepresented or omitted facts, including use of false documents, and this behaviour was decisive in the decision to grant refugee status. This means that had the facts been known, such status would not have been granted.

 

Where refugee status is being revoked on this basis, consideration must also be given to curtailing or revoking any associated leave. A person who obtains leave to enter (limited or indefinite) by deception is an illegal entrant. If it is decided to take illegal entry action (under Schedule 2 to the Immigration Act 1971) the leave can be invalidated. Similarly, where leave to remain (whether limited or indefinite) has been obtained by deception, an individual is liable to removal under section 10 of the Immigration and Asylum Act 1999 (for cases where the leave was granted after 1 October 1996).

 

Any conditions attached to the persons leave which may have given them certain entitlements (for example, to take employment or recourse to public funds) will also end once leave is curtailed or revoked.

 

Where an individual is in possession of another nationality and failed to disclose this during the consideration of the asylum claim, their refugee status should be reviewed and may be revoked.

 

Cases involving misrepresentation may be identified following a family reunion application. In such cases, the refugee status of the sponsor should be reviewed to consider whether the misrepresentation was material to the grant of refugee status and whether such status should be revoked.

 

Article 31 of the Refugee Convention, which is reflected in section 31 of the Immigration and Asylum Act 1999, provides that refugees should not have any penalties imposed upon them as a consequence of illegal entry or presence in the country of refuge, provided they:

 

  • travelled to the country of refuge directly from the territory in which they fear persecution

  • present themselves to the domestic authorities without delay

  • show good cause for their illegal entry or presence

 

Section 31 of the Immigration and Asylum Act 1999 and Article 31 of the 1951 Refugee provide further details.

 

Rights of appeal against revocation:

 

The Immigration Act 2014 changed the rights of appeal in revocation cases. Section 82 of the Nationality, Immigration and Asylum Act 2002 (as amended), provides a right of appeal against a decision to refuse a protection claim; a human rights claim, or the revocation of protection status. A person has ‘protection status’ for the purpose of Section 82(1)(c), where they have been granted leave as a refugee – they have been recognised by the UK as having refugee status – or a person granted humanitarian protection.

 

This means that any decision to revoke a grant of refugee status attracts a right of appeal under Section 82(1)(c) of the Nationality, Immigration and Asylum Act 2002 (as amended). This right is subject to the exceptions and limitations set out in Part 5 of the 2002 Act. Section 92(5) sets out that an appeal under Section 82(1)(c) must be brought from within the UK if the decision to revoke was made while the appellant was in the UK and must be brought from outside the UK where the decision to revoke was made while the appellant was outside the UK. As such, the revocation process can be initiated and concluded where an individual is not in the UK at the time.

 

Dependants who do not have refugee status in their own right do not have a right of appeal, but the home office  would not normally remove a dependant whilst the main applicant has an outstanding appeal against revocation. However, caseworkers will need to cancel, curtail or revoke any extant leave as appropriate.

 

If the refugee is not in the UK when the decision is taken to revoke refugee status, any right of appeal must be brought from abroad. There is no requirement to allow the refugee to return to the UK to exercise their appeal rights. Any leave the refugee has can be cancelled under Article 13(7) of the Immigration (Leave to Enter and Remain) Order 2000 using the grounds in 321A-AC of the Immigration Rules or Section 76 of the Nationality, Immigration and Asylum Act 2002.

 

Cancelling, curtailing or revoking leave:

 

It may also be necessary to revoke, cancel or curtail any extant leave. In certain cases, this will happen automatically as the result of a separate decision, for example serving a Deportation Order will automatically invalidate any extant leave. It may also be necessary to curtail leave in order to grant a different, more restrictive form of leave. This may include, for example, revoking Indefinite Leave to Remain and granting Restricted Leave or curtailing the remaining years of a grant of limited refugee leave and replacing it with 6 months Discretionary Leave.

 

Where a refugee (or dependant) has any extant limited leave when a decision is taken to revoke refugee status, this leave can be curtailed in accordance with Paragraph 323 of the Rules which provides that a person’s leave to enter or remain may be curtailed on any of the grounds set out in paragraph 339A-339AC and paragraph 339GA-339GD. Curtailment of leave does not attract a right of appeal, the appeal is against the revocation of the protection status.

 

Revoking indefinite leave to remain:

 

Section 76 of the Nationality, Immigration and Asylum Act 2002 provides the power to revoke indefinite leave to enter or remain. Section 76(3) only applies to refugees and will most likely accompany a decision to revoke refugee status.

(7) REVOCATION OF REFUGEE SETTLED STATUS

 

Section 76 of the Nationality, Immigration and Asylum Act 2002:

 

Section 76 gives the Secretary of State the power to revoke indefinite leave to enter or remain in the United Kingdom where:

 

1) a person is liable to deportation, but cannot be deported for legal reasons;

2) leave was obtained by deception; or

3) a person, or someone of whom they are a dependant, ceases to be a refugee as a result of the person’s own actions by:

a) voluntarily availing themselves of the protection of their country of nationality;

b) voluntarily re-acquiring a lost nationality;

c) acquiring the nationality of a country other than the United Kingdom and availing themselves of its protection; or

d) voluntarily establishing themselves in a country in respect of which they were a refugee.

 

Section 76(1) and 76(2) apply to any person who has indefinite leave, irrespective of the reason the indefinite leave was originally given.

 

Section 76(3) can only apply to a refugee and will most likely accompany a decision to revoke that status.

 

Under Section 24A as amended by Section 28 of the Immigration and Asylum Act 1999, it is a criminal offence to obtain or seek to obtain leave to enter or remain by deception.

 

Section 10(1) provides that a person may be removed from the United Kingdom if they require leave to enter or remain but do not have it.

 

Paragraph 20 of the Immigration Rules states that indefinite leave to enter or remain will lapse where a person has remained outside of the UK for a period of more than two years and they will have no claim to admission as a returning resident. Leave may be granted, but it will be considered in the light of all the relevant circumstances.

 

Section 76(1):

 

Section 76(1) gives the Secretary of State the power to revoke indefinite leave to enter or remain in the United Kingdom where a person is liable to deportation, but cannot be deported for legal reasons.

 

The circumstances in which a person is liable to deportation include:

 

  • where the Secretary of State deems the person’s deportation to be conducive to the public good;

  • where the person is the spouse or civil partner or child under 18 of a person ordered to be deported; or

  • where a court recommends deportation in the case of a person over the age of 17 who has been convicted of an offence punishable with imprisonment

 

A foreign criminal who is being deported under s32 of the UK Borders Act 2007 can have their indefinite leave revoked only if they have been notified that the Secretary of State has deemed their deportation is conducive to the public good pursuant to section 3(5) of the 1971 Act and section 32(4) of the 2007 Act.

 

A legal reason normally means that a person’s deportation would be in breach of the UK’s obligations under the Refugee Convention or the European Convention of Human Rights (ECHR). It is most likely to arise where a person is liable to automatic deportation under s32 of the UK Borders Act 2007 Act but cannot be deported because to do so would breach the person’s rights under Article 3 of the ECHR.

 

Section 76(2):

 

Section 76(2) gives the Secretary of State the power to revoke a person’s indefinite leave to enter or remain in the UK where a person has obtained indefinite leave to enter or remain in the UK by deception.

 

Deception has the same meaning as in paragraph 6 of the Immigration Rules. This means making false representations or submitting false documents (whether or not material to the application), or failing to disclose material facts.

 

A person who uses deception (whether successful or not) in seeking leave to enter or remain and is found to have no legal entitlement or protection need to allow them to stay in the UK may be prosecuted under section 24A of the Immigration Act 1971. Where a person has been convicted of an offence under section 24A of the 1971 Act, it will have been proven to the criminal standard (beyond reasonable doubt) and therefore the evidentiary requirement in respect of revoking leave (balance of probabilities) will have been met.

 

Section 76(3)- Cessation of Refugee Status Cases:

 

Section 76(3)(a)–(d) mirror Article 1C(1)–(4) of the Refugee Convention and applies to a person who was granted refugee status (or as a dependant of a refugee) but ceases to be a refugee because they have:

 

a) voluntarily availed themselves of the protection of their country of nationality;

b) voluntarily re-acquired a lost nationality;

c) acquired the nationality of a country other than the United Kingdom and availed themselves of its protection; or

d) voluntarily established themselves in a country in respect of which they were a refugee

 

Section 76(3) will most often arise where a person has returned to the country in which they have previously claimed to be at risk of persecution or when a national passport has been sent in with a request that leave be stamped into it.

 

Voluntary re-availment of national protection occurs where the refugee voluntarily opts to be protected by that country. For example, the refugee seeks to obtain or renew a national passport and uses it in preference to a refugee travel document.

 

Voluntary re-acquisition of a lost nationality occurs where, a refugee, having lost (or been stripped of) their nationality of the country in respect of which they were recognised as having a well-founded fear of persecution, voluntarily re-acquires such nationality.

 

Acquisition of a new nationality and protection occurs where the refugee acquires a new nationality and has the protection of the country of their new nationality (a country where they have no fear of persecution).

 

The refugee must be given an opportunity to explain their actions, whether in writing or in person before any decision to withdraw refugee status and invoke section 76 is taken.

 

Passage of Time:

 

Length of time spent in the UK may constitute a reason for not revoking indefinite leave. It would only be relevant to cases under section 76(2) and 76(3). For cases under section 76(1) length of time spent in the UK will not constitute a bar to revocation of indefinite leave because it, and any other Article 8 considerations, will have been taken into account in deciding whether the person should be deported.

 

Genuine Mistakes/Errors:

 

In deception cases, indefinite leave should not normally be revoked just because of minor errors in the application. For example, indefinite leave would not normally be revoked because the person has supplied an incorrect address or misspelt a name on their application form. However, deliberately providing false information because it is likely to result in a ‘hit’ or ‘match’ when checked against other Government departments or Agencies would normally be considered an attempt to deceive, as would providing a date of birth or nationality which is incorrect, in order to make a grant of leave more likely.

 

Failing to declare a one-off, very minor conviction might not result in a decision to revoke indefinite leave. However, a failure to declare multiple offences and/or a conviction which resulted in a period of imprisonment would normally be considered an attempt to deceive.

 

The decision maker must assess the nature, extent and significance of the information which was either incorrectly supplied or omitted. There should be clear and justifiable evidence of deception and the deception was material to the grant of leave.

 

Previously Overlooked or Considered :

 

Indefinite leave should not normally be revoked where the decision maker had the information available and either previously overlooked it, could reasonably have been expected to act on it or considered it and granted anyway.

 

Where the decision maker had the power/authority to grant leave and did so in error and if there was no deception by the applicant, it will not normally be appropriate to revoke the indefinite leave to remain or enter.

 

Compelling and Compassionate Circumstances:

 

There may be exceptional circumstances in an individual case where it would not be appropriate to revoke a person’s indefinite leave, notwithstanding the fact that they appear to fall within the remit of this policy.

 

Examples might include, but are not limited to, persons with serious mental health issues, victims of human trafficking or victims of domestic violence. Each case must be considered on its individual merits.

 

Revoking Indefinite Leave:

 

Where it has been concluded that a person should have their indefinite leave revoked, the decision maker must:

 

  • set out the reasons for revoking indefinite leave in the decision notice – ICD.3621 (for s72 offences), ASL.3760 (for other criminal cases) or a RED 0001 notice (for use of deception and now liable to removal under s10);

  • consider whether leave is appropriate. A grant of leave will only be appropriate in cases where there is a legal barrier to removal. In cases where there is a practical barrier to removal, the person should simply have indefinite leave revoked;

  • where leave is being granted, notify the person that they have qualified for leave, what leave they have been granted and for how long.

 

Right(s) of Appeal:

 

Section 82(1) of the Nationality, Immigration and Asylum Act 2002 provides that there is a right of appeal only against the following types of decisions:

 

  • refusal of a protection claim (asylum and Humanitarian Protection);

  • refusal of a human rights claim;

  • revocation of protection status (refugee status or Humanitarian Protection).

 

There is no right of appeal against a decision to make a deportation order or against liability to removal under section 10 of the 1999 Act.

 

A revocation decision under section 76 does not attract a right of appeal.

 

However, if the Secretary of State makes a revocation decision pursuant to section 76 and either additionally decides to revoke a person’s protection status or the person subsequently makes a protection claim or a human rights claim which is refused, the person may have a right of appeal under section 82(1).

 

(8) HUMANITARIAN PROTECTION(HP)

 

Statutory Provisions:

 

Council Directive 2004/83/EC (the Qualification Directive) sets out the provisions and criteria for granting subsidiary protection (referred to as Humanitarian Protection in the UK). It has been transposed into UK law through The Refugee or Person in Need of International Protection (Qualification) Regulations 2006 and the Immigration Rules. The relevant articles are:

 

  • Article 2(e) provides that those who do not qualify as a refugee but face a real risk of serious harm on return to their country of origin from which the national authorities cannot afford sufficient protection, may be eligible for subsidiary protection

  • Article 15 sets out the definition of serious harm, which includes reference to a serious and individual threat to a civilian’s life due to indiscriminate violence in international or internal armed conflict under Article 15(c)

  • Article 16 sets out when it would be appropriate to cease eligibility for leave, where circumstances which gave rise to the need for protection have ceased to exist or have changed such that protection is no longer needed

  • Article 17 sets out the circumstances in which someone is excluded from subsidiary protection, which mirrors provisions in Article 12 relating to exclusion from refugee status under the Directive

  • Article 19 sets out when it would be appropriate to revoke, end or refuse to renew a grant of subsidiary protection and mirrors provisions in Article 14 that relates to revocation of refugee status under the Directive

 

Immigration Rules:

 

Part 11 of the Immigration Rules sets out the provisions for considering HP and reflects the UK’s obligations under the Qualification and Procedures Directives:

 

  • paragraph 327 reflects the requirements of the Procedures Directive that any application for international protection should be considered as an asylum claim (even if the claimant does not claim to be a refugee under the Refugee Convention)

  • paragraph 339C sets out the criteria that must be met for an individual to be granted HP in the UK

  • paragraph 339D sets out the circumstances in which a person will be excluded from a grant of HP

  • paragraph 339Q(ii) sets out the conditions for granting a residence permit to those who qualify for HP

 

HP must be granted where there are substantial grounds for believing that there is a real risk of serious harm. In considering whether there are such grounds the standard of proof to be applied is the same as applies in asylum, that is ‘a reasonable degree of likelihood’ that the person would face a ‘real risk’ of serious harm on return to their country of origin. These 2 tests reflect the same standard of proof.

 

HP must not be granted where an individual is recognised as a refugee under the Refugee Convention, even if the claimant specifically requests HP instead. The Immigration Rules only allow for a grant of HP where the requirements of the Refugee Convention have not been met.

 

Duration and conditions of leave

 

Those who qualify for HP under paragraph 339C of the Immigration Rules should normally be granted limited leave to enter or remain under paragraph 339Q(ii). This will normally include the following period of leave and associated benefits:

 

  • an initial period of 5 years’ limited leave

  • immediate and unrestricted access to the labour market, and recourse to public funds

  • a 5 year route to settlement for those who continue to need protection

  • no requirement to demonstrate a knowledge of language and life in the UK when applying for settlement

 

Family members who have been accepted as dependants on the claim will normally be granted leave and receive HP in line with the main claimant under paragraph 339Q of the Immigration Rules.

 

Settlement and Safe return review at settlement:

 

Those granted humanitarian protection will be eligible to apply for settlement once they have completed the required probationary period of 5 years’ limited leave.

 

All those who apply for settlement protection after completing the appropriate probationary period of limited leave will be subject to a safe return review with reference to the country situation at the date the application is considered. Those who still need protection at that point will normally qualify for settlement.

 

Exclusion, revocation and refusal to renew:

 

A person will not be eligible for a grant of HP if excluded from it under paragraph 339D of the Immigration Rules. The Secretary of State may also decide to revoke or refuse to renew a grant of HP where the conditions set out in the Immigration Rules are met.

 

Exclusion from humanitarian protection:

 

A person will not be eligible for a grant of HP if they fall to be excluded under paragraph 339D of the Immigration Rules for one of the following reasons:

 

  • there are serious reasons for considering they have 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

  • there are serious reasons for considering they are guilty of acts contrary to the purposes and principles of the United Nations or they have committed, prepared, instigated or encouraged or induced others to commit, prepare or instigate such acts

  • there are serious reasons for considering that they are a danger to the community or to the security of the UK

  • there are serious reasons for considering that they have committed a serious crime

  • prior to their admission to the UK they committed a crime that would be punishable by imprisonment were it committed in the UK and they left their country of origin solely to avoid sanctions resulting from the crime

 

Paragraph 339D mirrors the exclusion provisions in Article 17 of the Qualification Directive (QD). Where the conduct is the same as that in Article 1F of Article 33(2) of the Refugee Convention, they must be interpreted in the same way.

 

Paragraph 339D(i) reflects Article 17(i)(a) of the Qualification Directive and applies to those who would be excluded from refugee status under Article 1F(a) of the Refugee Convention. Paragraph 339D(ii) reflects Article 17(i)(c) of the Qualification Directive  and applies to those who would be excluded under Article 1F(c) of the Refugee Convention.

 

Paragraphs 339D(iii) and (iv) reflect Article 17(i)(d) and (b) of the Qualification Directive and apply where there are reasonable grounds for regarding an individual as a danger to the security of the UK, including those who exhibit extremist behaviours, or to those who have been convicted of a particularly serious crime such that they are deemed to be a danger to the community.

 

Serious crimes:

 

This must be interpreted in a manner consistent with the policy on Exclusion under Article 1F and 33(2) of the Refugee Convention. A serious crime for the purpose of exclusion from HP was previously interpreted to mean one for which a custodial sentence of at least 12 months had been imposed in the UK, but it is now accepted that a 12 month sentence (or more) should not alone determine the seriousness of the offence for exclusion purposes.

 

In AH (Algeria) v Secretary of State for the Home Department [2012] EWCA Civ 395, Lord Justice Ward noted that the sentence is a material factor but not a benchmark.

 

In deciding whether a crime is serious enough to justify 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. Therefore, home office caseworkers must consider the sentence together with the nature of the crime, the actual harm inflicted and whether most jurisdictions would consider the offence a serious crime.

 

Examples of serious crimes include, but are not limited to, murder, rape, arson, and armed robbery. Other offences which might be regarded as serious can 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 security or the community:

 

Where a person has been convicted of a criminal offence, the court may have considered whether they represent a danger to the community or the security of the UK as part of the sentencing. In addition, depending on the facts of the case, an individual who has not been convicted may also be excluded from HP. People who may represent a danger to the community or to the security of the UK can include:

 

  • those included on the Sex Offenders Register (this would apply to those convicted of an offence after 1997)

  • those whose presence in the UK is not conducive to the public good, for example, on national security grounds or due to their character, conduct or associations

  • those who engage in one or more unacceptable behaviours in the UK or abroad, see section on extremism

 

Extremism:

 

Those who promote extremist views or engage in extremist activities that represent a danger to the security of the UK may engage Article 17 of the Qualification Directive and therefore they will be refused HP under paragraph 339D(iii). Home Office caseworkers must explore during the asylum interview any issues that may point towards extremist behaviour or activities. Those considered to represent a danger to the security of the UK on grounds of extremism may include:

 

  • those whose presence in the UK is deemed not conducive to the public good, on national security grounds, due to their character, conduct or associations

  • those who engage in unacceptable behaviours, in the UK or abroad, including undertaking, proposing to undertake or espousing extremist views which:(a)foment, justify or glorify terrorist violence to further particular beliefs or provoke others to commit terrorist acts; (b)foment other serious criminal activity or seek to provoke others to such acts or foster hatred which may lead to inter-community violence; (c)spread, incite, promote or seek to justify hatred on grounds of disability, gender, race, religion, sexual orientation, gender identity or for purposes of overthrowing democracy

 

This list is indicative, not exhaustive and includes the use of any medium to promote extremist behaviour, including:

 

  • writing, producing, publishing or distributing material

  • public speaking, including: (a)running a website or social media; (b)using a position of responsibility, for example, teacher, community or youth leader to express extremist views; (c)preaching

 

It is Home Office policy to exclude from HP and remove those who are a threat to national security and those who commit serious crimes and are considered to be a danger to the community. However, where removal would breach the Home Office obligations under Article 2 or 3 of the ECHR shorter periods of more restrictive leave may be granted and the case kept under review so that the individual can be removed as soon as possible.

 

Prosecution outside the UK:

 

Paragraph 339D(v) reflects Article 17(3) of the QD and applies where prior to their admission to the UK, an individual committed one or more crimes, outside the scope of Article 17(1) of the QD, which would be punishable by imprisonment, had they been committed in the UK, and they left their country of origin solely in order to avoid sanctions resulting from these crimes.

 

Revocation of humanitarian protection:

 

A person’s humanitarian protection granted under paragraph 339C of the Immigration Rules will be revoked or not renewed if any of paragraphs 339GA to 339GB apply. A person’s HP granted under paragraph 339C may be revoked or not renewed if paragraph 339GD applies.

 

Triggers that lead to a review of humanitarian protection:

 

Where someone has HP, revocation action can be taken at any time if there is sufficient evidence to justify such action. This could be:

 

  • during the initial period of limited leave

  • after their leave has expired pending a decision on any settlement application

  • whilst they have indefinite leave to remain (ILR)

 

It is possible to consider revocation on one or more grounds and any criminality by the individual or any dependants should lead to a review to consider whether revocation action is appropriate.

 

Reasons for the grant cease to apply:

 

A change in personal circumstances or country situation may mean that the reasons that led to the grant of HP no longer apply. Any change must be significant and non-temporary.

 

Paragraph 339GA of the Immigration Rules will only apply where the change of circumstances, whether country or personal, is of such a significant and non-temporary nature that the person no longer faces a real risk of serious harm. The majority of grants of HP will be based on a fear of non-state actors against which the state is unable to provide sufficient protection, and it is unlikely that the HP criteria will cease to apply simply because the holder accepts the protection of the country of nationality in a temporary or limited way, for example by obtaining and using a passport. Each case must be considered on its individual merits to see whether the actions of the person and the reasons for returning to the country of origin justify the conclusion that HP is no longer needed.

 

Exclusion:

 

Evidence emerges after a grant of HP that indicates the person should have been or is excluded from HP.

 

Under paragraph 339GB (i) to (v) of the Immigration Rules, HP will be revoked or not renewed if the Secretary of State is satisfied that one of the following applies:

 

  • the person granted HP should have been or is excluded because there are serious reasons for considering that they have 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

  • the person granted HP should have been or is excluded because there are serious reasons for considering that they are guilty of acts contrary to the purposes and principles of the United Nations or has committed or prepared or instigated such acts.

  • the person granted HP should have been or is excluded because there are serious reasons for considering that they constitute a danger to the community or to the security of the UK

  • the person granted HP should have been or is excluded because there are serious reasons for considering that they have committed a serious crime

  • the person granted HP should have been or is excluded because prior to their admission to the UK they committed a crime outside the scope of paragraph 339GB (i) and (iv) that would be punishable by imprisonment had it been committed in the UK and they left their country of origin solely in order to avoid sanctions resulting from the crime.

 

Criminality:

 

Irrespective of the length of sentence, a review of a grant of HP must be conducted where there are criminality issues (paragraph 339GB(iii to v). Criminality will not normally amount to a change of personal circumstances under paragraph 339GA such that a person no longer needs protection, but it is possible that a review may highlight that protection is no longer needed or that exclusion provisions apply.

 

Misrepresentation:

 

Material facts were misrepresented or omitted and this was decisive in the decision to grant HP such that the person did not need protection in the first place.

 

Paragraph 339GD applies when the person granted HP has misrepresented or omitted facts, including the use of false documents, where this was decisive in the decision to grant HP. This means that had the facts been known HP would not have been granted and can include, but is not limited to, misrepresentation of material facts, the individual possessing another nationality that they failed to disclose at the time of the original decision or that the exclusion clauses would have been applied had all the relevant facts been known. Where there is a pending prosecution for obtaining leave by deception, the Home Office will normally await the outcome of the criminal proceedings. However, this is not a formal policy requirement and consideration of revocation action can still proceed where appropriate.

 

Where there is evidence to suggest that HP was obtained by misrepresentation or omission of material facts, the decision maker must be satisfied that:

 

  • clear and justifiable evidence of deception exists, for example: (a)evidence that documents supplied to support the claim are not genuine;(b)evidence of actions after the grant that call into serious question the veracity of the claim;(c)evidence that the person is not the nationality they claimed to be

  • the deception was material to the grant of HP (were it not for the deception, the claim would have been refused)

Even where deception is admitted or proven, the decision maker must consider whether the person still qualifies for leave for any other protection based reasons. It will only be appropriate to revoke HP on grounds of misrepresentation where an individual does not need protection.

 

Cases involving misrepresentation may be identified following a family reunion application. In such cases, the grant of HP to the sponsor must be reviewed to consider whether the misrepresentation was material to their grant of HP and whether their leave should be revoked. Consideration of the family reunion application must be postponed until the review has been completed. Where the sponsors’ grant of HP is revoked, the family reunion application must be refused.

 

Where evidence of misrepresentation derives from information provided by family members, careful consideration must be given as to whether the accounts are so different that they are incompatible and whether this was material to the grant of HP. If the 2 accounts are considered to be incompatible, the sponsor is expected to provide an explanation. This will usually be obtained by writing to the sponsor but it may be necessary to arrange an interview.

 

Possession of another nationality:

 

Where an individual is in possession of another nationality and failed to disclose this during the consideration of their claim, their grant of HP should be reviewed and may be revoked or not renewed. This can apply to an individual holding dual nationality who failed to declare one or both nationalities as they may have residency rights in a country in which they have no real risk of serious harm. This is different to obtaining a national passport or using it to return to the country of origin temporarily.

 

Returning residents:

 

Where a person with HP has been outside the UK for more than 2 years their leave to remain will lapse and their circumstances must be reviewed before any leave is reinstated. Those outside the UK for more than 2 years will be required to apply for a returning residents visa to return to the UK and must apply using the appropriate form, paying the relevant fee.

 

Extremist behaviour:

 

Where there is any evidence that a person with HP or their dependants have engaged in unacceptable behaviours (whether in the UK or abroad) considered not conducive to the public good or acted in a way which undermines British values, their status must be reviewed.

 

Curtailing, cancelling or revoking leave:

 

Limited leave should normally be curtailed in line with paragraph 339H of the Immigration Rules if HP is revoked or not renewed under any of the revocation criteria set out in the Immigration Rules.

 

In certain cases this will happen automatically as a result of a separate decision, for example, where an individual is liable to deportation, the deportation order will have the effect of automatically cancelling any extant leave. Separate action to revoke or vary leave will, therefore, only be necessary where a person is liable to deportation but deportation action is not possible, for example, because Article 3 ECHR reasons apply. This may include, for example, revoking ILR or curtailing limited leave on HP grounds and replacing it with a shorter period of more restrictive leave. Where return is not appropriate or is prevented for the time being, consideration must be given to granting Restricted Leave.

 

A person who obtains leave to enter (limited or indefinite) by deception (misrepresentation) is an illegal entrant. If it is decided to take illegal entry action (under Schedule 2 to the Immigration Act 1971) the leave can be invalidated. Similarly, where leave to remain (limited or indefinite) has been obtained by deception, an individual is liable to removal under section 10 of the Immigration and Asylum Act 1999 (for cases where the leave was granted after 1 October 1996). In deception cases, separate action to curtail leave granted on HP grounds will only be required where a person may not be removed (for example, for Article 3 ECHR reasons).

 

Any conditions attached to the persons leave which may have given them certain entitlements (for example, to take employment or recourse to public funds) will also end once leave is curtailed or revoked.

 

If the individual is not in the UK when the decision is taken to revoke HP, any right of appeal must be brought from abroad. There is no requirement to allow the individual to return to the UK to exercise their appeal rights. Any leave they have can be cancelled under Article 13(7) of the Immigration (Leave to Enter and Remain) Order 2000 using the grounds in 321A-AC of the Immigration Rules or Section 76 of the Nationality, Immigration and Asylum Act 2002.

 

Revoking leave indefinite leave to remain:

 

Section 76(i) and (ii) of the Nationality, Immigration and Asylum Act 2002 provides the power to revoke indefinite leave to enter or remain.

 

Resettlement cases:

 

Those resettled to the UK and granted HP under the Syrian Vulnerable Persons Relocation (VPR) Scheme or the Vulnerable Children’s Resettlement Scheme may be considered for revocation action where appropriate. Such cases must be referred to the Resettlement team and the Asylum Policy team in the first instance.

 

Appeal rights:

 

The Immigration Act 2014 changed the rights of appeal. Section 82 of the Nationality, Immigration and Asylum Act 2002 (as amended), provides a right of appeal against a decision to refuse a protection claim, a human rights claim, or the revocation of protection status. Where HP is refused, or where asylum is refused but HP is granted, this is a refusal of a protection claim for the purposes of section 82.

 

A person has ‘protection status’ for the purpose of section 82(1)(c), where they are granted HP. Therefore, a decision to revoke HP attracts a right of appeal under section 82(1)(c).

 

This right is subject to the exceptions and limitations set out in part 5 of the 2002 act. Section 92(5) sets out that an appeal under section 82(1)(c) must be brought from within the UK if the decision to revoke was made while the appellant was in the UK and must be brought from outside the UK where the decision to revoke was made while the appellant was outside the UK. As such, the revocation process can be initiated and concluded where an individual is not in the UK at the time.

 

Dependants who do not have HP in their own right do not have a right of appeal against the revocation, but the Home Office would not normally remove a dependant whilst the main claimant has an outstanding appeal against revocation. However, caseworkers will need to cancel, curtail or revoke any extant leave as appropriate.

 

Section 3D provided for leave to be extended during the period where an appeal could be brought against the variation or revocation of a person’s leave. There is no longer a right of appeal against a decision to vary or revoke immigration leave. A person whose protection status is revoked will have a right of appeal in relation to that decision, but such an appeal is only against the decision to revoke protection status, not against any decision to revoke ‘leave’. Accordingly, section 3D has no continuing application under the revised appeals regime.

 

A decision to vary leave so that there is no leave remaining, often referred to as curtailment with immediate effect, or to revoke leave did carry a right of appeal before 6 April 2015. This means that where there is an in country appeal outstanding against a variation or revocation (of leave) decision made before that date then the applicant continues to be on 3D leave.

 

(9) RESTRICTED LEAVE POLICY:

 

In September 2011, the Restricted Leave policy replaced grants of Discretionary Leave for those excluded under Article 1F of the Refugee Convention and the policy was also updated in January 2015 to cover those refused under Article 33(2), where the case falls within the remit of Special Cases Unit . Such individuals will not benefit from refugee leave and will instead be granted much shorter periods of leave if they still need protection. All cases involving exclusion issues or extremism are referred to Special Cases Unit.

 

Application of the restricted leave policy:

 

Restricted leave is a form of leave outside the Immigration Rules granted to certain individuals who cannot be removed from the UK because to do so would be a breach of their human rights.

 

Restricted leave will normally be granted where a foreign national:

 

  • is excluded from protection under Article 1F of the Refugee Convention or from a grant of humanitarian protection under paragraph 339D of the Immigration Rules

  • would be excluded had they made a protection claim

  • would be excluded from protection and a previous protection claim was refused without reference to Article 1F of the Refugee Convention or paragraph 339D of the Immigration Rules

  • is subject to Article 33(2) of the Refugee Convention because they are a danger to the security of the UK

  • is subject to Article 33(2) of the Refugee Convention having been convicted by final judgment of a particularly serious crime they pose a danger to the community of the UK

 

and where their removal would breach their human rights.

 

An ECHR Barrier:

 

Home office policy is that restricted leave cases must be reviewed regularly with a view to removal as soon as possible. If there is no longer an ECHR barrier to removal, the individual will not qualify for a further grant of restricted leave and enforcement action must be prioritised. An ECHR barrier to removal includes, but is not limited to:

 

  • Article 2 – right to life

  • Article 3 – prohibition of torture

  • Article 6 – right to a fair trial

  • Article 8 – right to respect for private and family life

 

Duration of leave:

 

The period of restricted leave to be granted and the conditions which apply to a grant of leave will be considered on a case-by-case basis taking into account Home Office policy aims. There is no limit on the number of occasions restricted leave can be granted; provided the individual continues to come within the scope of the restricted leave policy, including that there continues to be an ECHR barrier to removal, a further period of restricted leave can be granted.

 

The period of restricted leave to be granted is at the discretion of the Secretary of State. In most cases, restricted leave should be granted for a maximum of 6 months, however all cases must be assessed individually on their merits. A shorter period than 6 months should be granted where removal appears to be reasonably likely within the next 6 months or where, in exceptional cases, the risk posed by the individual warrants the case being kept under review more frequently. A longer period than 6 months can also be granted if justified by the particular circumstances of the case.

 

Conditions imposed to a grant of leave:

 

Section 3(1)(c) of the Immigration Act 1971 sets out what conditions may be imposed to limited leave to enter or remain in the UK. The conditions which may be imposed, if justified by the particular circumstances of the case, are:

 

  • a condition restricting employment or occupation in the UK;

  • a condition restricting studies in the UK;

  • a condition requiring the person to maintain and accommodate himself, and any dependants, without recourse to public funds;

  • a condition requiring the person to report to an immigration officer or the Secretary of State;

  • a condition about residence.

 

Active reviews:

 

It is the responsibility of the person to apply in writing for further leave, prior to the expiry of restricted leave. There is no application form and no application fee.

 

The Home Office caseworker must proactively review the case, before any new grant of leave to re-assess the prospects of removal. This should be done in all restricted leave cases regardless of whether the person has applied to extend their leave. If there is no longer an ECHR barrier to removal, the case should be prioritised for removal.

 

In all cases, the home office caseworker must assess the conditions in the country of return against the most recent country information, such as the Home Office’s country policy and information note. Information and evidence should also be requested from the person where appropriate and relevant to the consideration as to whether to grant further leave. Information and evidence may include for example up-to-date medical evidence or, where the barrier to removal is ECHR Article 8, information to establish whether there has been any change in family circumstances such as the end of a partner relationship or children who are no longer dependent on their parent or parents).

 

The home office caseworker must seek information either in writing or via a reporting event about the person’s compliance with existing conditions. If an application for further leave is not submitted, the caseworker  must take the lack of compliance with immigration law into account when considering the length of leave to grant and the conditions to impose.

 

If an application for further leave is received, and further restricted leave is to be granted, the home office caseworker  must review the conditions attached to the leave, including any evidence of compliance or non-compliance, and consider whether they remain appropriate.

 

Where the circumstances have changed to the extent that the person’s removal would not breach the ECHR, further leave must be refused and the case progressed to removal.

 

Those who fall within scope of the restricted leave policy but were previously granted discretionary leave before the restricted leave policy was introduced on 2 September 2011 should remain on that existing leave until it falls for renewal. When the application for further leave is received, if removal is not possible, the case must be considered in line with current  policy and granted restricted leave with appropriate conditions.

 

The decision letter and notices accompanying the decision must clearly explain the reason for imposing new conditions including why it is in the public interest to grant a period of restricted leave taking account of the risk the person presents and their compliance with conditions or requirements during previous periods of limited leave or unlawful stay.

 

Discretionary leave:

 

Those who fall within scope of the restricted leave policy may request discretionary leave instead of restricted leave. They may have previously been granted discretionary leave before the restricted leave policy was introduced in September 2011, or they may not have had discretionary leave before. An application for discretionary leave will only be considered if it has been made on the correct form and the prescribed fee has been paid.

 

Section 3.6 of the discretionary leave policy sets out that decision-makers must consider the impact of a person’s criminal history before granting any leave. In particular, it explains that those who fall within scope of the restricted leave policy should not usually be granted discretionary leave.

 

Discretionary leave and restricted leave are both forms of leave outside the Immigration Rules governed by section 3(1) of the Immigration Act 1971. Discretionary leave is usually granted for up to 30 months with no conditions imposed. In restricted leave cases, the duration of leave and the imposition of any conditions must be considered on a case-by-case basis. It will not usually be appropriate to grant discretionary leave to a person who falls within scope of the restricted leave policy even if the decision-maker considers that leave should be granted for more than 6 months and with no conditions imposed.

 

Indefinite leave to remain( ILR):

 

Home Office policy is that it is in the public interest to seek the removal of an individual subject to the restricted leave policy. It is for this reason that cases are reviewed regularly and individuals excluded from qualifying for indefinite  leave to remain under the Immigration Rules. It is only in exceptional circumstances that an individual granted restricted leave will be granted indefinite  leave to remain. Where a decision has been taken to grant indefinite leave to remain  on the basis of exceptional circumstances, which is likely to be rare, this would be granted outside of the Rules.

 

An application made under any part of the Immigration Rules by a person who falls within the restricted leave policy must be refused with reference to the general grounds for refusal in part 9 of the Immigration Rules. An application made under the Immigration Rules which has its own suitability requirements (for example, Appendix FM or Appendix AF) should be refused with reference to those requirements.

 

However, it remains open to the Secretary of State to grant ILR outside of the Rules on a discretionary basis.

 

There is no limit on how many times a person can be granted restricted leave, as long as they continue to fall within the scope of the policy, because it is granted at the Home Secretary’s discretion outside the Immigration Rules. This is the case even where it is not known when, or even if, a human rights barrier to deportation or removal will be resolved. In almost every case, it will not be known when or if the person’s deportation or removal will be possible in the future. That is the nature of human rights and the fact that circumstances can change materially even if there has been a very long period in which no such change has occurred. Therefore, there is no period of time after which a person subject to restricted leave will automatically or generally qualify for ILR. All ILR applications must be considered on a case-by-case basis.

 

In accordance with MS, R (on the application of) v SSHD (excluded persons: Restrictive Leave policy) (IJR) [2015] UKUT 539 (IAC) (22 September 2015), consideration must be given to ’whether or not the point has been reached where the only reasonable course is to grant ILR’.

 

Where a person applies for ILR outside the Immigration Rules, consideration must be given to all relevant factors, including all representations that have been submitted, to determine whether the application should be granted or refused. It will only be in exceptional circumstances that those within scope of the restricted leave policy will ever be able to qualify for indefinite leave to remain outside the rules, and such exceptional circumstances are likely to be rare.

 

Those subject to the restricted leave policy might apply for ILR on the basis of having completed a particular continuous period of discretionary leave.

 

The policy for granting ILR on this basis is set out in the Discretionary Leave Guidance. There are transitional arrangements which apply to those who were initially granted discretionary leave before 9 July 2012 and who do not fall within the restricted leave policy. The current policy applies to those initially granted discretionary leave on or after 9 July 2012, and, a person will normally become eligible to apply for ILR after completing a continuous period of 120 months (10 years) discretionary leave.

 

As those within scope of the restricted leave policy no longer qualify for discretionary leave, accordingly they will not normally qualify for ILR on the basis of having completed any particular continuous period of discretionary leave.

 

(10) DISCRETIONARY LEAVE

 

Discretionary Leave(DL) applies in both asylum and non-asylum cases applying from within the UK. DL cannot be applied for from abroad. It is intended to cover exceptional and compassionate circumstances and, Home Office policy is that it should be used sparingly.

 

DL is granted outside the Immigration Rules in accordance with Home Office policy set out in the Discretionary leave nstruction. It must not be granted where a person qualifies for asylum or humanitarian protection or for family or private life reasons.

 

The Secretary of State has the power to grant leave on a discretionary basis outside the Rules from her residual discretion under the Immigration Act 1971. Discretionary Leave is a form of leave to remain that is granted outside the Immigration Rules in accordance with the Discretionary Leave Policy.

 

Reasons for granting DL:

 

  • Medical cases

  • Other cases where return would breach the ECHR

  • Exceptional circumstances

  • Modern Slavery cases (including trafficking)

  • Exclusion and criminality

  • Unaccompanied asylum seeking children

  • Other cases

 

Exclusion and criminality basis:

 

From 2 September 2011, the Restricted Leave policy replaced grants of DL for those excluded from protection under Article 1F of the Refugee Convention where the case falls within the remit of Special Cases Unit (SCU). The restricted leave policy was updated in January 2015 to cover those refused under Article 33(2) of the Convention where the case falls within Special Cases Unit’s  remit. Restricted leave may be granted in these circumstances where removal would breach the UK’s obligations under the ECHR. Article 1F cases granted DL before 2 September 2011 should remain on their existing leave until it falls for renewal. If a renewal application is received, it must be considered in line with the restricted leave policy instruction. Restricted leave can only be granted by the Special Cases Unit.  All cases involving exclusion or extremism must be referred to Special Cases Unit.  Cases involving criminality where there is no Special Cases Unit interest must be referred to Criminal Casework.

 

Where cancellation, cessation or revocation of refugee status or humanitarian protection is considered appropriate and the individual does not fall within the restricted leave policy it may be appropriate to grant DL.

 

Where an individual does not fall within the restricted leave policy (for example, where they are not excluded under Article 1F or the criminal sentence was less than 2 years’ imprisonment), home office caseworkers must consider the impact of any criminal history before granting DL, having regard as appropriate to Part 9 of the Immigration Rules (General Grounds for Refusal) and, where an individual is not liable to deportation, paragraph 353B(i) of the Immigration Rules. Home office policy is that criminals or extremists should not normally benefit from leave on a discretionary basis under this policy because it is a Home Office priority to remove them from the UK.

 

In cases where there are exceptional reasons for granting DL to someone with a criminal history who does not fall within the restricted leave policy, the duration of leave to be granted, up to 30 months, will depend on the individual circumstances of the case. Home Office Caseworkers must consider whether removal appears to be reasonably likely and the extent of any risk posed by the individual, which may justify keeping the case under more regular review, eg by granting 6 months’ DL. Where DL is granted for 6 months or less, if the individual travels outside the UK their limited leave will lapse whereas leave granted for a longer period allows a person to leave the UK and be readmitted during the validity of their leave, by virtue of Article 13(2)(b) of the Immigration (Leave to Enter and Remain) Order 2000.

 

Duration of Discretionary Leave:

 

From 9 July 2012, those granted DL must normally have completed a continuous period of at least 120 months’ limited leave (i.e. a total of 10 years, normally consisting of 4 separate 2 and a half year periods of leave) before being eligible to apply for settlement. Separate arrangements exist for those granted an initial period of 3 years’ DL prior to 9 July 2012.

 

Those granted leave under the DL policy in force before 9 July 2012 will normally continue to be dealt with under that policy through to settlement if they continue to qualify for further leave on the same basis as their original DL was granted (normally they will be eligible to apply for settlement after accruing 6 years’ continuous DL (or where appropriate a combination of DL and  Leave outside the Rules ), unless at the date of decision they fall within the restricted leave policy.

 

Settlement:

 

A person will normally become eligible to apply for settlement after completing a continuous period of 120 months’ (10 years’) limited leave. The application will be considered in light of the circumstances prevailing at that time. All settlement applications must be made on the appropriate form no more than 28 days before existing leave expires. Any time spent in prison in connection with a criminal conviction will not count towards the 10 years. However, leave can be aggregated either side of a period of imprisonment providing that the continuous residence requirement is met.

 

Where a person has held DL for a continuous period of 10 years and continues to qualify for DL under the policy, they should be granted settlement unless there are any criminality or exclusion issues.

 

(11)ADMINSTRATIVE REMOVAL

 

Section 3(1) of the Immigration Act 1971 provides the power to grant leave to enter or remain in the UK and Section 3(1)(c) provides powers to impose conditions on that leave.

 

Section 10 of the Immigration and Asylum Act 1999 (as amended by the Immigration Act 2014) provides a single power of removal for those who require but do not have leave to enter or remain. A separate removal decision is no longer necessary. Those who are in breach of the conditions of their leave, or obtained leave by deception, may be removed under this power but any extant leave must be brought to an end first (curtailed). All persons removed under this power must still be given notice of removal.

 

A person subject to administrative removal under section 10 has no right of appeal or administrative review and is removable after 7 days from receiving notice of liability to removal if not detained, or after 3 working days if detained. However if the person makes an asylum or human rights claim while in the UK then they may appeal against a refusal of that asylum or human rights claim while in the UK and may not be removed whilst the claim or appeal is pending. The exception to this is where the Secretary of State certifies that claim.

 

(12)DEPORTATION

 

Section 3(1) of the Immigration Act 1971 provides the power to grant leave to enter or remain in the UK and Section 3(1)(c) provides powers to impose conditions on that leave.

 

Section 5(1) of the 1971 Act provides that a deportation order has the effect of invalidating any leave, including indefinite leave, to enter or remain that is given before the deportation order is made or while it is in force. In cases subject to automatic deportation, the effect of a Deportation Order is that any extant leave is automatically revoked or curtailed. This means that where a Deportation Order  is in place, no separate work to curtail or revoke leave is required.

 

Section 32 of the UK Borders Act 2007 imposes a duty on the Secretary of State to deport all foreign criminals who meet the criteria for automatic deportation set out in section 32 unless they meet one of the exceptions in section 33.

 

Where the refugee (or any dependant) has been convicted by a final judgment of a particularly serious crime, this constitutes a danger to the community and the case must be referred to Criminal Casework in the first instance.

 

Deportation with assurances (DWA) cases:

 

Where the UK wishes to deport someone, but needs specific assurances that they would be treated in line with the UK’s international obligations under the EHCR, this is done under the Government’s Deportation with Assurances (DWA) programme. The UK has agreements with several countries – usually in the form of a ‘Memorandum of Understanding’ (MOU) between governments – which provide assurances around the treatment of those deported from the UK to one of these countries, or from one of these countries to the UK. All cases involving potential DWA action are handled within the Office for Security and Counter terrorism (OSCT) who can provide further advice.

 

(13)RELEVANT APPLICABLE HOME OFFICE POLICY GUIDANCE

 

  • Asylum Policy Instruction, Discretionary Leave, Version 7.0 , Published: 18 August 2015

  • Asylum policy instruction, Revocation of refugee status, Version 4.0, 19 January 2016

  • Asylum Policy Instruction Settlement Protection, Version 4.0 3 February 2016

  • Exclusion (Article 1F) and Article 33(2) of the Refugee Convention, Version 6.0, 1 July 2016

  • Revocation of Indefinite Leave, Version 4.0, 19 October 2015

  • Restricted Leave, Version 2.0, 7 December 2016

  • Refugee Leave, Version 4.0, 2 March 2017

  • Humanitarian Protection, Version 5.0, 7 March 2017

(14) CONCLUSION

 

Where action  is taken by the Home office to revoke refugee status or humanitarian  protection and if  Restricted  leave or Discretionary leave is not granted,  it may well become relevant to consider other  options. Various  potentially  applicable options are  set out in a recent blog article:

 

https://ukimmigrationjusticewatch.com/2017/02/14/overstayer-or-failed-asylum-seeker-in-the-uk-why-you-shouldnt-pack-your-bags-just-yet/

Appendix FM and paragraph 276ADE(1) of the Immigration Rules provide the basis on which a person, who is not a foreign criminal liable for deportation, can apply for entry clearance to or leave to remain in the UK on family life grounds or leave to remain in the UK  on private life grounds. Where Article 8 family and/or private life reasons are raised, the  Home Office should consider whether a grant of leave on this basis is appropriate only where refugee status is being revoked. The refugee will  however still have a right of appeal against revocation of status, even where leave on another basis is granted.

 

Article 8 claims from foreign criminals are considered under Paragraphs 398 to 399A of the Immigration Rules which are underpinned by sections 117A to 117D of the Nationality, Immigration and Asylum Act 2002 (as amended by section 19 of the Immigration Act 2014).

 

It is also worth considering that Article 1C(5) and (6) of the Refugee Convention contain an exception to the cessation provisions, allowing a refugee to invoke ‘compelling reasons arising out of previous persecution’ for refusing to re-avail himself or herself of the protection of their country of origin.

 

This exception applies to cases where refugees, or their family members, have suffered truly atrocious forms of persecution and it is unreasonable to expect them to return to their country of origin or former habitual residence. This might, for example, include:

 

  • ex-camp or prison detainees

  • survivors or witnesses of particularly traumatic violence against family members, including sexual violence

  • those who are severely traumatised

 

The presumption is that such persons have suffered grave acts of persecution, including at the hands of elements of the local population, and therefore cannot reasonably be expected to return. Application of the ‘compelling reasons’ exception is interpreted to extend beyond the actual words of the provision to apply to Article 1A(2) refugees and reflects a general humanitarian principle.

 

This provision however is expected to apply only in the most exceptional of cases.

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