Understanding the Difference between Asylum and Humanitarian Protection in the UK

Published by Maliha Khan at February 20, 2025

As one considers the applications for international protection in the UK, the distinction between asylum and humanitarian protection is crucial to understand. Each mechanism protects a person fleeing persecution or harm, yet they differ with regard to the legal definition, criteria for eligibility, and rights extended to the recipient.

The article delves into these distinctions, bringing forth clarity for those wading through UK immigration law’s complexities.

What Is Asylum?

Asylum is a form of protection granted under the 1951 Refugee Convention and its 1967 Protocol. It is specifically intended for individuals who have a well-founded fear of persecution in their home country due to one of the following five reasons.

1. Race
2. Religion
3. Nationality
4. Membership of a particular social group
5. Political opinion.

One must prove that such an applicant cannot return to their country of origin because of this fear of persecution and that their government is either unwilling or unable to offer them protection.

Legal Basis:

The asylum system in the UK is founded upon the Immigration Rules, which express the Refugee Convention in domestic law. Article 1A (2) of the Refugee Convention is the building block of asylum law, as it states who is considered a refugee.

How to Apply:

Individuals who wish to apply for asylum are required to:

1. Report their application upon entering the UK by making contact with UK Visas and Immigration (UKVI).
2. Attend a screening interview in which general personal data is obtained.
3. Attend a substantive interview, where they give detailed accounts of their reasons for seeking asylum.
A successful asylum application grants refugee status, which is usually valid for five years. Refugees can apply for indefinite leave to remain (ILR) at the end of this period, if their circumstances have not changed.

What Is Humanitarian Protection?

Humanitarian protection is a species of leave in the UK provided under domestic law. It seeks to provide relief to applicants not strictly qualifying for the definition provided by the Refugee Convention, while they face serious harm in reality if sent to their country.

Eligibility criteria:

Paragraph 339C, Immigration Rules qualify humanitarian protection on the grounds where an applicant risks:

1. Capital punishment or execution
2. Crime of murder
3. Torture or inhuman or degrading treatment or punishment
4. Serious and individual threat to their life or person due to indiscriminate violence in situations of international or internal armed conflict.

This group tends to be composed of those escaping war-torn regions or zones of generalized violence, where persecution is not necessarily targeted but is generally a threat to the civilian population.

Application Procedure:

Applications for humanitarian protection are usually considered as part of an asylum claim. If the applicant does not qualify for refugee status but is considered to be eligible for humanitarian protection, UKVI will grant him that form of leave instead.
Humanitarian protection is also provided for a first period of five years. Like asylum seekers, holders of humanitarian protection may seek ILR after five years if their situations have not altered.

Important Comparisons Between Asylum and Humanitarian Protection:

Though both streams confer protection, many important differences follow:

1. Legal Source: Asylum is founded upon international law, the Refugee Convention, whereas humanitarian protection emanates from UK domestic law.
2. Eligibility: Asylum caters to persecution with particular grounds. Humanitarian protection deals with broader grounds of risk of serious harm.
3. Rights and Benefits: Both statuses offer similar rights, including public funds, healthcare and right to work. The ‘rights’ are anyway more or less the same; possibly only minor procedural differences in how these may be delivered.
4. Travel Documents: Under the 1951 Convention, Refugees can apply for a Refugee Travel Document. The ones with humanitarian protection may apply for a Certificate of Travel, but there are more stringent demands and it will not be uniformly accepted.

Some Common Challenges and Considerations:

Application to the asylum and humanitarian protection system in the UK is very challenging. Applicants face lots of challenges in their applications, among them:

• Burden of Proof: Asylum seekers and applicants for humanitarian protection must present believable evidence to support their claims. This may be in the form of witness statements, medical reports, or country-specific information.
• Delays: The UK asylum system is often criticized for taking a long time to process, keeping applicants in limbo for months or years.
• Appeals: If the application is rejected, the right of appeal to the First-tier Tribunal can be exercised. Legal representation in this stage would be important as it would represent the strongest possible case.

Conclusion:

Understanding the distinction between asylum and humanitarian protection is essential for individuals seeking safety in the UK. While both mechanisms aim to protect vulnerable individuals, their legal foundations and criteria differ significantly.

Anyone considering an application should seek legal advice to navigate the complexities of the system effectively and to ensure their rights are safeguarded throughout the process. By doing so, they can build a stronger case for the protection they need and deserve.

For further advice please get in touch with our team today by calling 020 8538 0182 or +44 7857 809932, or you can email us on [email protected].

Please note these blogs are to enhance your knowledge and are not tailored advice, for specific advice please get in touch with our outstanding team.