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Protection claims and discretionary leave

More details on how victims can gain a residence permit, the asylum application process.and what you can do to help.

Discretionary leave as a victim of modern slavery

Discretionary leave can be sought by a victim of modern slavery who has received a positive conclusive grounds decision. This is also known as a “residence permit” but the Home Office uses the term “discretionary leave”. It is usually from 12 months to 30 months in length depending on the case and this can be extended beyond 30 months.

An individual cannot get discretionary leave just because they are a victim of modern slavery. They must have one of these reasons:

  • It is necessary because of their personal circumstances (the Home Office says the circumstances must be “compelling” but this threshold has been found to be unlawful) for example, their health needs as a victim or because they are a child
  • It is necessary because they are helping with a criminal investigation or criminal proceedings
  • They are pursuing a compensation claim against the people who have exploited them. (Arguing a right to stay because a victim has a compensation claim against the state is also possible although not in the Home Office guidance)
  • Assistance and support is needed for an appropriate time after criminal proceedings have concluded (for example, if a victim is still dealing with the memories that have come up as part of their witness evidence)

Discretionary leave for a child must be issued in line with their best interests.

They should provide evidence to support a grant of discretionary leave (e.g. a letter or report from their therapist saying that they are receiving help and how long it will carry on for and why they think help is needed and connected to the trafficking experience).

The period of discretionary leave will depend on the case and the evidence the applicant has about how long they need to stay here. Usually grants are for a minimum of 12 months and not more than 30 months (two and a half years). Once given the residence permit, the applicant should be allowed to claim benefits and be able to work.

They can apply to extend the residence permit if necessary and can get legal aid to help with an extension application.

If an individual is not given discretionary leave, they should read the reasons in the letter from the Home Office carefully. If they want to make a challenge for not getting discretionary leave they must do this by a process called judicial review within three months of the date of the decision. The only alternative would be to make a fresh application but this would mean filling in a form, sending it off and a period waiting for a decision from the Home Office without any leave (unless the person had leave to remain for another reason).

Support workers

Evidence provided by support workers is very important to the decision-making process for granting a residence permit. Their opinions about the needs of the individual from working with them should be given weight by the Home Office. If a support worker wants to add anything to support the case, they should ask the applicant’s lawyer how to do so.

More information here:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/488171/Competent_Authority_Draft_guidance_v2.0_EXT_clean.pdf
p68

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/460712/Discretionary_Leave_2__v7_0.pdf
p.10 and p.17

Asylum and claims for protection

Someone scared of going back to their country might be able to claim asylum from the UK government. A successful asylum seeker is a refugee.

The definition of a refugee is set out in the 1951 Convention Relating to the Status of Refugees (Refugee Convention), art 1A(2):

‘As a result of events occurring before 1 January 1951 and 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.’

Someone who faces a real risk of serious harm if returned to their country and who cannot or is unwilling to get protection there might be able to get ‘humanitarian protection’.

A department in the Home Office called UK Visas and Immigration (UKVI) will decide the asylum claim.

How to claim

There are two ways to claim under current policy:

  1. In person at the Asylum Screening Unit on a walk-in basis, but it is a good idea to ring up before to make an appointment:
    Asylum Screening Unit Lunar House, 40 Wellesley Road, Croydon CR9 2BY (Monday – Friday: 08.00 – 13.00 hrs)
    ASU appointment booking number: 020 8196 4524
    The appointment booking line is open Monday – Friday 08:00 – 15:00 hrs.
  2. A local claim made by the Chief Immigration Officer in exceptional cases when there is a good reason why the individual cannot go to the Asylum Screening Unit (i.e. they were exploited in London and have moved away from the area).

There are two asylum interviews.

Screening interview (initial interview)
The asylum claim starts with this interview. It lasts at least one hour and is conducted by a caseworker. The person claiming gives basic details about their background. It is still important for an applicant to check the copy of the interview record to make sure their answers were written down correctly and to speak up if they do not understand the interpreter or the questions that are asked. They should say now if they would like to have a male or female interviewer or interpreter when they have the main asylum interview.

Processing for asylum support and accommodation will also start here. If an applicant asks the Home Office for help with accommodation they can be sent away immediately to initial accommodation if they have nowhere else to go.

Substantive interview (main interview)
The substantive interview is the most important interview and will last several hours. The applicant should be given an interpreter of their choice of gender and main language.

The applicant can bring a legal representative. The interview should be recorded if no legal aid lawyer can attend. The applicant will be given a copy of a written record of interview afterwards. If they do not agree with the way the answers were written down they can listen to the recording to check that the notes were made correctly.

Timing

The applicant should carefully check the written interview record and write to the Home Office quickly if they have any clarifications. If an applicant needs more time to send in documents or further evidence they should ask as soon as possible. They will usually be given five working days to do this.

A decision can be made at any time after the interview but can take up to several weeks or even months.

Outcomes

If the individual is granted refugee status or humanitarian protection, it will last for five years and gives them permission to work and claim benefits. After five years, they can apply for indefinite leave to remain.

If given discretionary leave to remain for a shorter period (for example because of medical or personal and family life reasons for staying in the country), this will usually be for 30 months.

A biometric residence permit will then be issued, which is a plastic card with the applicant’s photo and personal details on it.

If unsuccessful, the applicant should be given the right to appeal to the Immigration and Asylum Chamber of the First Tier Tribunal.

Travel documents

The individual can apply for a travel document if they are a refugee or have humanitarian protection. If a refugee uses a travel document or passport belonging to their country of origin or goes to their country of origin, they could have their refugee status taken away. This should not be a problem for people with humanitarian protection but if in doubt, please get advice on this.

Family reunion

If an individual has a partner or child under 18 from before they asked for protection, that was part of your family unit they can apply for family reunion with them. There is no fee to pay for this application. They can also apply for other dependent relatives to join them (for example a parent or a child aged over 18 years) but the test for doing this is more complicated and there will be a fee.

Appeals

The applicant has 14 calendar days from the date that the Home Office decision was sent to you (not the date that you receive it) to make an appeal. The appeal can be submitted online, by post or fax.

If a lawyer thinks the case is strong enough and the appellant meets the financial test, they can receive legal aid. If the lawyer says the case is strong enough to justify legal aid (at least a 50% chance of winning) they will put in the appeal.

If the case is not strong enough, the appellant can write to the Legal Aid Agency to ask them for legal aid. As the deadline is short, it’s best that the appellant doesn’t wait for a reply from legal aid before putting in the appeal.

Once an appeal is submitted the appellant will still receive asylum support and be allowed to stay in their Home Office accommodation until the appeal process is finally over.

There are fees to use the immigration court but certain decisions are exempt from fees. An appellant is also exempt if they have legal aid.

The appeal is heard in the Asylum and Immigration Chamber of the First Tier Tribunal. There are branches of this court all round the country and the appellant will be invited to the one nearest to the place where they live.

Cases can move quickly in some courts and more slowly in busier courts. If an appellant needs more time to prepare they should ask for this as soon as possible and explain the reasons.

On the day of the hearing the appellant will have an interpreter provided by the court in their chosen language. They will be asked questions as will any witnesses. Then the Home Office lawyer (Presenting Officer) will make legal arguments to the judge as will the appellant’s lawyer if there is one.

The judge will go away and write up the decision and send it out in the post, which can take up to a few months to receive.

Next steps

If appellant wins and there is no challenge, they should be issued a status document.

If either side believes there is an error of law, they can challenge the decision through the Upper Tribunal, if permission to appeal is granted.

If a protection claim is refused, the applicant can make a new request for the Home Office to look at their case, a ‘fresh claim’. The Home Office will only accept a fresh claim if the information received is ‘significantly different’ to what they have seen before.

The process involves a meeting at the Home Office in Liverpool so that the applicant can hand over any documents that they want considered; however they will not be interviewed again.

If a fresh claim is refused this can only be challenged by a process called judicial review. The deadline to make an application for judicial review is three months from the date of the refusal decision although the applicant should still act promptly. There is legal aid to give advice on fresh claims and judicial review.

More information:
https://www.gov.uk/claim-asylum/overview
https://www.gov.uk/immigration-asylum-tribunal