Asylum Seeker or Refugee Status to stay legally in the United Kingdom



In the United Kingdom a person is called a refugee if their application to the UKVI for asylum is successful and they are granted refugee status. Until that point and while their claim for asylum is pending, they are referred to as an asylum seeker/applicant.

To stay in the UK as a refugee, you must be UNABLE to live safely in any part of your own country because you fear PERSECUTION there. This persecution must be because of:

• your race
• your religion
• your nationality
• your political opinion
• anything else that puts you at risk because of the social, cultural, religious or political situation in your country, for example, your gender, gender identity or sexual orientation AND you must have failed to get protection from authorities in your own country.

The definition of a refugee is given in the 1951 UN Convention relating to the Status of Refugees (known as ‘the 1951 ¬Convention’ and the Geneva Convention). The original 1951 Convention definition related to “events occurring before 1 January 1951”. However, the 1967 Protocol to the Convention removed this dateline to accommodate the “emergence of new refugee situations”. The UK is a signatory to the 1951 Convention and the 1967 protocol.

It is recognised in the domestic asylum law that the UK must abide by its international obligations under the 1951 Convention in dealing with all applications for refugee status.

Article 1(A)(2) 1951 Convention defines a refugee as a person who:

“…..owing to 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 his nationality and is unable, or owing to such fear is unwilling, to avail himself of the protection of that country….”.

Article 33 1951 UN Convention states:

“No contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers or territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”

To understand the legal basis on which a person may be assessed to be a refugee in the United Kingdom, it is necessary to look at the individual parts of the above definition. The refugee definition needs to be broken down into its constituent elements. Only if the UKVI is satisfied that a person’s claim fulfils each part of the definition will they be granted refugee status.

Constituent Elements of Refugee Definition:

➢ Does the client have a well-founded fear?
➢ Does the feared treatment amount to persecution?
➢ Is there a Convention reason for their fear?
➢ Is the applicant outside their country of origin?
➢ Is there available State protection?
➢ Is there an internal flight alternative?
➢ Is the client excluded from the 1951 Convention?

Only if the UKVI is satisfied that a person’s claim fulfils each part of the definition will they be granted refugee status.

The 1951 Convention provides the refugee definition. Several different authorities offer additional guidance to the legal definition of a refugee.

The Asylum and Immigration (Treatment of Claimants etc.) Act 2004 provides mandatory guidance in respect of the assessment of an asylum seeker’s credibility.

The UNHCR (United Nations High Commissioner for Refugees) Handbook on Procedures and Criteria for Determining Refugee Status (‘UNHCR Handbook’) provides essential guidance on the definition and the procedures to be followed by decision-makers dealing with asylum applications. The UNHCR Handbook should be referred to when representing a client applying for refugee status. The guidance provided by the UNHCR Handbook is sometimes comprehensive and open to interpretation. This has led to different States taking varying approaches to elements of the definition. This area of law necessitates the solicitor having an intimate knowledge of the above provisions, relevant case law, and some scholarly opinion.

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