1.The following is the definition of humanitarian protection in legal briefing paper 174:
If a person’s application for asylum is refused consideration must be given immediately as to whether he qualifies for humanitarian protection under paragraph 339C of the Immigration Rules. If he is to qualify he must show that there are substantial grounds for believing that if he is returned to his country of origin he will face a real risk of suffering serious harm and is unable, or owing to such risk, unwilling, to avail himself of the protection of that country. “Serious harm” consists of:
(i) the death penalty or execution;
(ii) unlawful killing
(iii) torture or inhuman or degrading treatment or punishment; or
(iv) serious and individual threat to a civilian’s life or person by reasons of indiscriminate violence in situations of international or internal armed conflict.
In practice (iv) is the commonest form of serious harm which gives rise to grants of humanitarian protection. For example, many Tamil civilians fled the civil war in Sri Lanka and were unable to show that they had any basis for fearing persecution if returned to Sri Lanka, but might be entitled to humanitarian protection because the fighting placed them at risk of death or serious injury.
Paragraph 339C of the Immigration Rules gives effect to an EU Directive 2004/83/EC, promulgated on 29 April 2004. Previously the practice of the Home Office in cases which would now be considered appropriate for humanitarian protection was to grant Exceptional Leave to Remain outside the Immigration Rules.
2. Humanitarian Protection (HP) is now particularly relevant in cases of asylum seekers from Syria. In most cases they will not qualify for asylum because they will be unable to show that if returned to Syria there is a reasonable degree of likelihood that they will be at risk of persecution for a Convention reason, but they will be able to show that they would be at risk of serious harm as defined above.
3. The main evidential requirement on a person seeking HP is expressed as mentioned above in Paragraph 339C. The Secretary of State must be satisfied that:
“substantial grounds have been shown for believing that the person concerned, if he returned to the country of return, would face a real risk of suffering serious harm and is unable, or owing to such risk, unwilling to avail himself of the protection of that country”.
4. Some 5000 Syrian nationals so far have been granted either asylum or HP on the basis of individual applications. In the case of the former, they were probably selected from refugee camps in Turkey, Jordan or Lebanon with the help of the UNHCR. It is perhaps arguable that the “country of return” for the purpose of applying Paragraph 339C should, in cases where the applicant has been resident for some length of time, be the first country of refuge. For example, a family that had fled to Turkey some time ago would not be safe in Syria but might be in Turkey.
5. If an application for HP is refused, there is a right of appeal as HP is covered by the definition of “protection claim” in section 82 of the Nationality, Immigration and Asylum Act 2002, as inserted by section 15 of the Immigration Act 2014.
6. Outside the grants of asylum under the Refugee Convention or HP under paragraph 339C there have been 200 or so Syrian refugees accepted by the UK under the Syrian Vulnerable Person Scheme and the Prime Minister announced recently that the government had decided to accept a further 20,000 refugees under the Scheme over the duration of the present Parliament. A recent Home Office paper entitled “Syrian Resettlement Programme” explains that potential beneficiaries of this scheme are selected by the UK from potential beneficiaries identified by the United Nations High Commissioner for Refugees (UNHCR). Those selected are granted HP for five years. At the end of that period they may apply for indefinite leave to remain or another form of leave to remain.
7. It is important to appreciate that the word “refugee” in current usage is used in two different senses. In the context of the 1951 Refugee Convention under which asylum applications are considered, “refugee” means a person who has satisfied the authorities in a Contracting State to which he has applied for asylum that if he is returned to his country of origin there is a significant degree of likelihood that he will be at risk of persecution on account of race, religion, nationality, membership of a particular social group or political opinion. As used in the first two sentences of paragraph 6, it includes people entitled to claim HP but it also includes economic migrants and others not entitled to claim international protection.
Harry Mitchell QC
Honorary Legal Adviser