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An asylum seeker is a person who has made application for refugee status in line with immigration rules and the guidance set out in the Refugee Convention. (The Refugee Convention is a general phrase used to cover the 1951 Convention and its 1967 Protocol).
Person granted asylum
A person will be granted asylum if they meet the requirements of paragraph 334 of the Immigration Rules. In general terms, where a person is able to demonstrate a fear of persecution, if returned to their country, for reasons of race, religion, nationality, membership of a particular social group or political opinion and the person is not excluded from the provisions of the Refugee Convention, they will be granted asylum.
Exceptional leave to remain (until 31 March 2003)
Exceptional leave to remain (ELR) was granted to a person who failed to demonstrate a claim for asylum but was able to demonstrate that it would not be safe to be returned to their country of origin at that time or there were compelling, compassionate or humanitarian reasons to remain in the UK. This status is open to review, as the situation in the country of origin may change. ELR was granted outside Immigration Rules and could be given for up to four years.
Humanitarian protection (from 1 April 2003)
This is granted to a person who has failed to demonstrate a claim for asylum but is able to demonstrate that if returned, they would face a serious threat to life or person (subject to certain exclusions) arising from:
- the death penalty,
- unlawful killing,
- torture, inhumane or degrading treatment or punishment.
Humanitarian protection status is given for up to three years, after which the person can apply for settlement.
Discretionary leave to remain (from 1 April 2003)
This is granted to a person who has failed to demonstrate a claim for asylum and does not fulfil the criteria for humanitarian protection but is able to show that he or she:
- has a claim based on Article 8 of the European Convention on Human Rights (a claim to stay based on keeping a family united);
- has a claim based on Article 3 of the European Convention on Human Rights (only on medical or severe humanitarian grounds);
- is an unaccompanied asylum seeking child (UASC) for whom adequate reception arrangements are not available in their own country or
- would have qualified for asylum or humanitarian protection but has been excluded and is able to demonstrate particularly compelling reasons why removal would not be appropriate.
Discretionary leave to remain is given for up to three years, after which a renewal application can be made.
National Asylum Support Service (NASS)
This supports newly arrived asylum seekers. It provides emergency accommodation and financial support to asylum seekers who would otherwise be destitute until their claims for asylum have been determined. NASS also assists in dispersing asylum seekers from their port of entry to other areas of the country. Before the creation of NASS, local authorities had a duty to provide for a destitute asylum seeker presenting in their areas.
European Convention on Human Rights
Article 3 - prohibition of torture
No one shall be subjected to torture or to inhumane or degrading treatment or punishment.
Article 6 - right to a fair trial
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In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
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2.
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Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
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3.
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Everyone charged with a criminal offence has the following minimum rights:
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- to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
- to have adequate time and facilities for the preparation of his defence;
- to defend himself in person or through legal assistance of his own choosing or if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
- to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
- to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
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Article 8 - right to respect for private and family life
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Everyone has the right to respect for his private and family life, his home and his correspondence.
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2.
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There shall be no interference by a public authority with the exercise of this right, except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.
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More information may be found on the Home Office website (www.homeoffice.gov.uk).
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