Individuals who are in the UK on a protection route – i.e., those who have been granted refugee status or humanitarian protection, and their dependants – have their own specific route to settlement (also known as Indefinite Leave to Remain in the UK).
The rules on settlement for these individuals are governed by the new Appendix Settlement Protection, which from 06 October 2021 replaced paragraph 339R-T of the Immigration Rules.
Those on protection routes do not qualify for settlement automatically, and must make an application after spending five years in the UK.
When to Apply for Refugee Settlement?
Individuals in the protection route are eligible for settlement after completing five years in the UK with permission to stay on the route. However, individuals must also apply before the expiry of their five-year grant of permission. The expiry date will be displayed on the Biometric Residence Permit granted to individuals in the protection route. If an individual does not make an application for settlement before this grant of leave expires, they will become an overstayer.
While it is important for applications to be made on time, they should not be made too early. The Home Office guidance advises that "Applications should be made in the last month of an individual's permission to stay." Applications made "significantly earlier" than this (defined in the guidance as more than three months remaining on the five-year grant of leave) will be refused unless there are exceptional circumstances.
Which Dependants Can Apply for Settlement?
Partners
For the dependant of a main applicant to be eligible for settlement as a partner, they must have been granted leave in-line with a main claimant who was granted refugee status or humanitarian protection in accordance with the definition of dependants set out in Paragraph 349 of the Immigration Rules. A partner who was not granted protection leave in line with the main applicant cannot apply for settlement through this route.
The relationship between the applicant and their partner must be genuine and subsisting, and the applicant and partner must intend to continue to live together as partners in the UK.
Children
For the dependant of a main applicant to be eligible for settlement as a child, they must either have been granted leave in-line with a main applicant who was granted refugee status or humanitarian protection, or they must have been born in the UK while the main applicant had permission to stay in the protection route.
If an application is not made on behalf of a child born in the UK until after the main applicant is granted settlement in the protection route, the Home Office's guidance states that this should not be held against the applicant.
Family reunion
Partners and children who were granted leave in-line under the family reunion policy, having met the requirements of Paragraphs 352A to 352G of the Immigration Rules, are eligible to apply under Appendix Settlement Protection.
Other Potential Issues in Settlement Applications Under the Protection Route
Cessation of Refugee Status
When considering cessation of refugee status, the Home Office will consider whether there have been any significant and non-temporary changes to the applicant's country situation such that a fear of persecution can no longer be regarded as well-founded or there is no longer a real risk of serious harm. The changes must be such that the reasons for the grant of protection status have ceased to exist.
The Home Office will also consider whether the applicant's personal circumstances have changed such that the original reasons for the grant of protection no longer exist, and they could safely return to their country of origin.
Re-availment
The decision maker will also conduct checks to establish whether the individual has travelled back to their country of origin or country of former habitual residence without the knowledge of the Home Office, or whether they have obtained a passport from the national authorities of their country of origin or their country of former habitual residence.
Suitability requirements (criminality, conduct or associations)
Applications must be refused under Appendix Settlement Protection where an applicant:
- a) has been convicted of a criminal offence in the UK or overseas for which they have received a custodial sentence of four years or more; or
(b) has been convicted of a criminal offence in the UK or overseas for which they have received a custodial sentence of at least 12 months but less than four years, unless a period of 15 years has passed since the end of their sentence; or
(c) has been convicted of a criminal offence in the UK or overseas for which they have received a custodial sentence of less than 12 months, unless a period of seven years has passed since the end of their sentence; or
(d) within the 24 months before the date on which the application for settlement is decided, has been convicted of, or admitted to an offence in the UK or overseas for which they have received a non-custodial sentence, or received an out-of-court disposal that is recorded on their criminal record; or
(e) is a persistent offender who shows a particular disregard for the law; or
(f) has committed a criminal offence, or offences, which caused serious harm; or
(g) where a grant of settlement is not conducive to the public good because of their conduct, character, associations or other reasons (including convictions which do not fall within the criminality grounds) or because they represent a threat to national security.
Applications will be refused where a refusal would be conducive to the public good because of the individual's conduct, character, associations or other reasons (including convictions which do not fall within the other elements of the suitability criteria) or the fact they represent a threat to national security. These assessments will be made on a case-by-case basis.
In a change from previous policy prior to October 2021, those applicants whose settlement applications are refused may be granted an extension of their refugee status or humanitarian protection, rather than Discretionary Leave as was previously the case.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
