Indefinite Leave to Remain for Refugees

For refugees who have found the courage to leave their home and everything they have known because of the dangers they face in their native nation, achieving Indefinite Leave to Remain (ILR) in a safe, prosperous country such as Britain is a dream come true. However, as the best Immigration solicitors will tell you, many refugees face enormous difficulty in successfully obtaining ILR, especially following the tightening of the rules regarding the ‘good character’ requirement in early 2015.

Before we progress with what some of these challenges are, it is important to make the distinction between an Asylum seeker, refugee and economic migrant as the terms are often confused.

Asylum seeker - An Asylum seeker means a person who has applied for Asylum under the 1951 Refugee Convention on the Status of Refugees on the ground that if they are returned to their country of origin they are likely to face ongoing persecution on account of race, religion, nationality, political belief or membership of a particular social group.

Refugee - A refugee is a person whose Asylum application has been approved.

Economic migrant - An economic migrant is a person who has left their home country in order to seek work. They may or may not come from a dangerous or politically unstable nation.

Applying for ILR as a refugee

You may be able to apply for ILR after five years if you have been granted refugee status. There is no charge for refugees applying for ILR and you will not have to pass an English language test or a Life in the UK test.

Reasons for refusal of ILR for refugees

The Home Office can refuse to grant ILR if:

• it is believed that you have entered the country fraudulently
• you have submitted falsified documents or made fraudulent claims in order to achieve your refugee status
• you have been convicted of a criminal offence in the UK

In 2015, in a move that would have been almost completely unpublicised except for the fact some of the country’s best Immigration solicitors alerted the public via their blog, the Home Office added new guidance to the ‘good character’ criteria for ILR.

The new guidance reads:

9.7 Evasion of Immigration control. The decision maker will normally refuse an application if within the 10 years preceding the application the person has not been compliant with Immigration requirements, including but not limited to having:

a) failed to report

b) failed to comply with any conditions imposed under the Immigration Acts

c) been detected working in the UK without permission ".

This presents a significant challenge to refugees who wish to apply for ILR after five years. Often forced to flee their country with no travel documentation, Asylum seekers often enter the UK (or other safe nations) illegally, and subsequently seek Asylum once they have arrived.

Even if an Asylum seeker does have a valid passort, the Home Office will often declare them illegal entrants if they told the Immigration officer that they were entering the UK for another reason other than to seek Asylum.

Therefore, if a refugee who entered the country illegally (say on the back of a lorry), they may have to wait for 10 years before being able to apply for ILR.

The new guidance may breach of the Refugee Convention itself in that it appears to penalise refugees on account of their illegal entry. Article 31 of the Convention states:

The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

The new guidelines also appear to contravene Article 34 of the Refugee Convention, which states:

The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.

It is little wonder the change was passed through so quietly.

Home Office discretion regarding ILR guidance

Home Office officials have the discretion to grant ILR even if the refugee did enter the country illegally. However, it is possible that officials will be reluctant to do this as refugee status allows for permanent residency in the country, so it is easy for the Home Office to argue that refusing to grant naturalisation does not prejudice the applicant in any material way.

However, for many hopeful refugees who have committed to making a new life in the UK, being told they must wait a further five years before they can reapply for refugee status can be devastating. Being a citizen of your adopted country brings a sense of rights and belonging that simply being permitted to reside does not provide.

One way refugees who entered the country illegally but wish to apply for ILR after five years can do which may improve their chances is to instruct an Immigration solicitor to submit the best application and a letter explaining the reasons why you had to enter the country illegally and the actions you took to ensure you reported immediately to officials.

For refugees who have successfully made a start on a new life in a new home, naturalisation is the least they deserve.

OTS Solicitors is one of the most respected immigration law firms in London. Our immigration team dealing with ILR comprises of Smit Kumar, Hans Sok Appadu and Maryem Ahmed, all of whom would be happy to talk to you about applying for ILR as a refugee.

By making an appointment with one of our Immigration solicitors, you can be assured of receiving some of the best legal advice available in the UK today.

If you wish to discuss any of the points raised in this blog, please phone our London office on 0203 959 9123.