Asylum and Humanitarian Protection in the UK
Introduction
Asylum law in the United Kingdom is governed by the 1951 United Nations Convention Relating to the Status of Refugees (the Refugee Convention) and its 1967 Protocol, together with the Immigration Rules and relevant domestic legislation. The UK has a long tradition of providing protection to those fleeing persecution, but the asylum system has been the subject of significant controversy and policy change, including the Nationality and Borders Act 2022 and the Illegal Migration Act 2023. The Home Office is responsible for determining asylum claims.
The Definition of a Refugee
Article 1A(2) of the Refugee Convention defines a refugee as a person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of their nationality and is unable or, owing to such fear, is unwilling to avail themselves of the protection of that country.
The definition has been interpreted in UK law through the Immigration Rules and case law. The key elements are: well-founded fear (an objective test based on the conditions in the country of origin); persecution (serious harm or systematic discrimination); and a Convention reason (race, religion, nationality, membership of a particular social group, or political opinion).
In Islam v Secretary of State for the Home Department (1999) and R v Immigration Appeal Tribunal, ex parte Shah (1999), the House of Lords held that women in Pakistan could constitute a particular social group for the purposes of the Refugee Convention, establishing that gender-related persecution may give rise to refugee status.
Humanitarian Protection
Humanitarian protection is granted to individuals who do not qualify as refugees but who would face a serious risk of harm if returned to their country of origin. The grounds for humanitarian protection include: the death penalty; unlawful killing; torture or inhuman or degrading treatment; and a serious threat to life by reason of indiscriminate violence in situations of international or internal armed conflict.
Humanitarian protection is granted for five years and is renewable. Holders of humanitarian protection are eligible to apply for indefinite leave to remain after five years.
The Asylum Process
Asylum applications are made to the Home Office, either at the border or within the UK. The applicant must provide a statement setting out the reasons for their claim and supporting evidence. The Home Office conducts a substantive interview to assess the credibility of the claim and the risk on return.
The Home Office has a duty to consider the claim in accordance with the Immigration Rules and the Refugee Convention. If the claim is refused, the applicant may appeal to the First-tier Tribunal (Immigration and Asylum Chamber). Appeals are on both facts and law, and the tribunal may allow the appeal, dismiss it, or remit it to the Home Office for reconsideration.
The Safe Third Country Concept
The safe third country concept enables the UK to return asylum seekers to a country through which they have travelled, where they could have claimed asylum, and which is considered safe. The concept has been central to the UK’s policy of processing asylum claims offshore.
The Nationality and Borders Act 2022 introduced provisions for the designation of safe third countries, and the Illegal Migration Act 2023 prohibits the consideration of asylum claims from individuals who arrive in the UK illegally, requiring their removal to a safe third country or to their country of origin.
The Rwanda Policy
The Migration and Economic Development Partnership with Rwanda, announced in 2022, provides for the transfer of asylum seekers to Rwanda for processing and resettlement. The policy was challenged in the Supreme Court in R (AAA) v Secretary of State for the Home Department (2023), which held that the policy was unlawful because Rwanda could not be considered a safe third country due to deficiencies in its asylum system.
The government responded by enacting the Safety of Rwanda (Asylum and Immigration) Act 2024, which declares Rwanda to be a safe country and provides that the determination of safety is a matter for the Secretary of State and Parliament, not the courts.
Detention and Bail
Asylum seekers may be detained pending the determination of their claim or pending removal. Immigration detention is not subject to a time limit and is governed by the Home Office’s Detention Centre Rules and the case law on Hardial Singh principles, which require that detention be for a lawful purpose, for a reasonable period, and with reasonable steps taken to conclude the purpose.
The First-tier Tribunal (Immigration and Asylum Chamber) has jurisdiction to hear bail applications from detained asylum seekers, applying the Nationality and Borders Act 2022 which reversed the burden of proof, requiring the detained person to show that they should be released rather than the Home Office to justify detention.
Conclusion
Asylum and humanitarian protection in the United Kingdom is governed by the UK’s obligations under the Refugee Convention and domestic legislation. The asylum process, the definition of refugee status, and the provisions for humanitarian protection provide the framework for determining protection claims. The safe third country concept, the Rwanda policy, and the restrictions on claims by those who arrive illegally have been the subject of significant legal and political controversy.