In this article, we will highlight the key changes people in the asylum system will experience to their immigration status as a result of the Nationalities and Borders Act that received Royal Assent on 28 April 2022.
The new rules will only apply to people who have lodged an asylum application on or after 28 June 2022.
Changes introduced by the Act are:
- The creation of two groups of refugees based on how they entered the country.
- Differential treatment will apply to Group 1 and Group 2 refugees, which will affect:
- The status and leave to remain they will receive
- The settlement route available to them
- Family reunification rights
- Access to public funds
- The introduction of temporary refugee permission to stay.
- The downgrading of the leave associated with the humanitarian protection status with the introduction of temporary humanitarian permission to stay.
- An expanded definition of “inadmissible asylum claims” and a limitation on the support a person with such a claim can receive.
What is the position for a person who claimed asylum before 28 June 2022?
Under the transitional arrangements, if a person made an asylum application before 28 June 2022, and is granted refugee status or humanitarian protection status, they will have:
- 5 years leave to remain in the UK, with permission to work and study, and access to the NHS and public funds (benefits and local authority housing assistance).
- Right to seek family reunion
- Right to apply for Indefinite Leave to Remain (ILR) at the end of the five-year period
In the Home Office guidance Permission to stay on a protection route for asylum claims lodged on or after 28 June 2022, the Home Office clarified the transitional arrangements for claims made before 28 June.
The guidance states:
“...individuals who sought to register an asylum claim before the commencement date of 28 June 2022 but were provided with an appointment to attend a designated place to register their asylum application on or after 28 June will be considered to have ‘made an asylum claim’ before the commencement date but only if they attend their scheduled appointment”
What is the position for a person who claimed asylum on or after 28 June 2022?
The Act creates two groups of refugees based on their means of entry into the UK. Once a person's asylum claim has been considered and they have been accepted as being a refugee, the Home Office will specify whether they are a Group 1 or Group 2 refugee.
To be considered a Group 1 refugee, a person seeking asylum has to:
- come to the United Kingdom directly from a country or territory where their life or freedom was threatened (in the sense of Article 1 of the Refugee Convention), and
- present themselves without delay to the authorities.
Whilst a person will be considered a Group 2 refugee if:
- Their entry in the country is consider unlawful (this would for instance apply to people coming to the UK across the English Channel).
A Group 1 refugee will receive:
- Leave to remain for a minimum of 5 years
- Settlement protection route: they will be able to apply for Indefinite Leave to Remain after the initial 5 years.
- Family reunification rights
- Access to public funds
- Right to work
A Group 2 refugee will:
- Receive temporary refugee permission to stay for a minimum of 30 months which will be renewable.
- Not have a defined route to settlement. In fact, they will not be able to apply for Indefinite Leave to Remain (ILR) unless they meet the 10-year long-residence requirements.
- Have restricted family reunion rights
- They could have the NRPF condition imposed on them, unless in cases of destitution or for unaccompanied asylum-seeking children (UASC).
- Have the right to work
Group 2 refugees will have to renew their temporary refugee permission to stay three times before being able to apply for Indefinite Leave to Remain after 10 years. See Gov.uk for more information on the long residency rules.
They will only be able to access the family reunion route where there are insurmountable obstacles to continuing family life without family reunification (thus meeting the threshold of Article 8 of the European Convention of Human Rights).
The Home Office guidance clarifies that all those granted permission to stay on a protection route will be subject to a safe return review which will look at whether there have been any changes since the original permission to stay was granted adding that:
“...In the vast majority of cases, it is likely that a person’s protection needs will remain and that further permission to stay or settlement would be granted on that basis.”
Where an individual on a protection route does not apply for further permission to stay before their current permission expires or does not apply for further permission to stay at all, they become an overstayer and are no longer entitled to the benefits associated with a valid period of permission to stay on a protection route, such as permission to work.
When is an asylum claim declared inadmissible?
The Act introduces broader powers for the Home Secretary to declare an asylum request inadmissible if a claimant was previously present in or had another connection to a safe third country. Connection to a safe third country may include a country where a person previously claimed protection or could reasonably have been expected to claim protection.
Asylum claims which are declared inadmissible will not be considered in the UK if there is also a reasonable prospect of removing the person to a safe third country. The safe third country to which a person may be removed includes both the country that they claimed protection in previously, or indeed had reasonable opportunity to claim protection, or another third country equally capable of considering and deciding their protection claim.
There will not be right of appeal when an asylum claim is declared inadmissible so any challenge will have to be by way of application for judicial review. Readers may wish to refer to Home Office guidance relating to inadmissibility of asylum claims for further information.
What support will be available for people whose asylum application has been declared inadmissible?
Home Office guidance on Ceasing Section 95 Support has been updated to reflect that support will be withdrawn for people whose asylum application has been declared inadmissible and they do not have a child under 18 in their household.
Similarly to failed asylum seekers, they may be “supported under section 4(2) of the Immigration and Asylum Act 1999 if they meet the eligibility criteria.”
For more information, see our Home Office asylum support page.
It is the responsibility of failed asylum seekers to apply for section 4(2) support once their section 95 support is discontinued.
According to the Home Office guidance relating to inadmissibility of asylum claims, if after a reasonable period (the document mentions 6 months) the Home Office has not found a third safe country to remove the person to, their asylum claim will be considered in the UK. They will then be able to transfer back to section 95 asylum support. If their asylum claim is successful, they will be deemed to be a Group 2 refugee.
What will change for people granted humanitarian protection?
Humanitarian protection is granted to people not at risk of serious harm for a specific reason such as their race, religion, or political opinion but instead at risk of indiscriminate violence for no particular reason other than their mere presence in their country of origin (for instance in the case of civil war). Previously, people granted Humanitarian Protection status were granted 5-years leave to remain.
The Act downgrades the humanitarian protection status which will now become temporary humanitarian permission to stay.
People claiming asylum on or after 28 June who are granted temporary humanitarian permission to stay will be treated in the same way as Group 2 refugees, thus receiving 30 months leave. Additionally, they will not be able to apply for ILR unless they meet the 10-year long-residence rule and may not have access to public funds.
Will people granted temporary refugee permission to stay or temporary humanitarian permission be able to access public funds?
The Home Office has not clarified or published guidance in relation to when the No Recourse to Public Funds (NRPF) condition will be attached to a person considered a Group 2 refugee or granted temporary humanitarian permission to stay.
The guidance states:
“temporary refugee permission to stay will normally last for 30 months and may include the right to work, recourse to public funds and family reunion rights limited to that which meet the threshold of Article 8 of the ECHR. The conditions attached to temporary refugee permission to stay may change at a later point."
The Home Office confirmed in its Nationality and Borders Bill: children factsheet and equality impact assessment, that unaccompanied asylum seeking children (UASC) and people at risk of destitution will not be subject to the NRPF condition.
However, it is not clear how this will be determined. It is unlikely that the NRPF condition will be imposed on a person who is exiting asylum support, which is provided to people who are destitute, so there is a question regarding the extent to which the condition will be used when people are initially granted temporary refugee permission.
What do these changes mean for councils?
The Nationalities and Borders Act comes into force at a challenging time for the Home Office, with immigration statistics for the year ending March 2022 showing a record 109,000 people waiting for an initial decision on their asylum application and Home Office detention and return statistics also reporting a continued decline in the number of returns being achieved. Concerns for local authorities will relate both to the welfare and protection of people claiming asylum and the impact on communities if the UK asylum system is not operating effectively.
The reduction in the period of leave granted to Group 2 refugees and people with humanitarian protection, both of whom are likely to have a long-term future in the UK, will present integration challenges. There is also the possibility that the number of people with no recourse to public funds conditions in our communities will increase, if these are to be applied at a future date. As we said in our response to consultation on the New Plan for Immigration, the introduction of a new category of leave that is subject to the NRPF condition, on an immigration route that requires more frequent renewal applications, is highly likely to give rise to more people being in need of local authority intervention to alleviate destitution. We are also concerned by the possibility of more people whose claim has been declared inadmissible falling into destitution while transferring between Section 95 and Section 4(2) support.
To date, local authorities have not had to provide ‘safety-net’ support under Section 17 of the Children Act 1989 or the Care Act 2014 to people exiting the asylum system with refugee leave or humanitarian protection. Without clear guidance from the Home Office about when the NRPF condition will be imposed on people granted temporary refugee permission it is currently unclear to what extent the Nationality and Borders Act will lead to increased pressures on local authorities.
The new system could significantly increase the workload of already stretched Home Office caseworkers whilst not offering clear solution to the increasing number of people waiting for a decision on their asylum claims. With people with no recourse to public funds receiving local authority ‘safety-net’ support for an average time of 1.5 years (families) or 2.5 years (adults with care needs), it is deeply concerning that the administrative burden on the Home Office to make immigration decisions is being increased rather than reduced.
We will continue to work with government to highlight these issues and will provide a further update as soon as more guidance is produced.