Migrants have a number of mechanisms by which to enter the UK depending on their situation. The Immigration Act 1971 grants the Home Office the power to draft immigration rules which set out who can and cannot enter the UK, and conditions which can be attached to such permission.

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Migrants have a number of mechanisms by which to enter the UK depending on their situation. The Immigration Act 1971 grants the Home Office the power to draft immigration rules which set out who can and cannot enter the UK, and conditions which can be attached to such permission. Migrants may apply to enter as migrant workers (see 8.5 – Migrant Workers), and may then be granted work permits. After four years of work permit status they may apply for indefinite leave to remain, which allows them permanent residence.

Citizens of the European Union are entitled to immigration rights, conferred by European law under the EC Treaty; these rights extend to the EEA (EU, Norway, Iceland and Liechtenstein citizens). Citizens of the EEA may enter the UK without leave to do so and are not subject to immigration control as set up by the Immigration Act (1971). After entry they may take up employment or establish their own businesses. Their immigration rights are dependent on their exercise of free movement as recognised by European Community law, of workers, self-employed persons, providers or recipients of services, people who are self-sufficient, and retired persons or students.

Persons seeking protection may claim asylum in the UK, although they must be on the territory of the UK to do so. A number of pieces of legislation determine the manner in which their application under the 1951 Convention Relating to the Status of Refugees will be dealt with. The Asylum and Immigration Appeals Act (1993) first incorporated the 1951 Convention into UK law. The most recent legislation is the Nationality, Immigration and Asylum Act (2002). Section 1(1) of the Human Rights Act (1998) incorporated into UK law the European Convention on Human Rights, (1950), (ECHR). The major significance of this is that claims for asylum may be made under Article 3, the prohibition of torture or inhuman or degrading treatment, of the ECHR. The definition of a refugee in section 1 of the Asylum and Immigration Appeals Act (1993) states that such a claim is one where it would be contrary to the UK's obligations under the 1951 Convention to remove, or require an individual to leave. Section 2 states that immigration rules must not be interpreted to allow immigration authorities to do anything which would be contrary to the 1951 Convention.

Asylum seekers may apply for asylum at the port of entry or in country. The Immigration officer dealing with them may interview them either briefly and/or in full in relation to the persecution they have suffered. The asylum seeker will be fingerprinted and if the Immigration officer is satisfied with their evidence of identity and travel to the UK the asylum seekers will receive an Application Registration Card. The asylum seeker may then be granted temporary admission. If the Immigration officer is satisfied that they claimed asylum “as soon as reasonably practicable after arriving in the UK” under section 55, of the Nationality, Immigration and Asylum Act (2002), their case will be referred to the National Asylum Support Service in order for them to be given support, otherwise support may be refused. The case may also be transferred to another EU member state to be processed there under the Dublin Convention, which allocates responsibility for asylum claims. Under section 11 of the 1999 Act EU countries are regarded as safe countries. Cases may also be transferred to another safe country outside the EU for processing, where the applicant’s life or liberty would not be threatened under the 1951 Convention and they would not be returned to face persecution under the Convention. Asylum seekers may be detained at the port (see 8.11 – Migration and Crime). Applications made in country to the Asylum Directorate at the Home Office will follow the same procedures. Asylum seekers who are recognised as refugees are granted indefinite leave to remain.

For those who do not qualify for refugee status discretionary leave may be granted. The previous discretionary status of exceptional leave to remain was replaced in the Asylum Policy Instructions on the first of April 2003 with two discretionary statuses. Humanitarian protection (HP) is granted to anyone who is at risk of the death penalty; unlawful killing; or prohibited treatment under Article 3, ECHR. This status is granted for three years after which people become eligible for indefinitely to remain. Discretionary leave (DL) is granted to applicants who have claims under Article 8, ECHR, the right to family life; Article 3, ECHR on medical or humanitarian grounds; our unaccompanied minors; are excluded from asylum or HL; or can demonstrate compelling reasons why they should not be removed. This status is not granted for more than three years, after this time the situation is reviewed, persons with this status may apply for indefinite leave to remain after six years. Asylum seekers whose asylum applications are refused have the right to appeal against this decision (see 8.9 – Legal Recourse).

Analysis provided by: Anisa Niaz LLM (Public Law), United Kingdom.

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