4 Immigration, asylum and refugee status

1. People subject to immigration control require leave to enter the UK from an immigration officer (in advance by obtaining a visa from a British embassy or high commission) and may apply to the Home Office for leave to remain in the UK. The Home Secretary operating through UK Visas and Immigration has wide discretion under immigration law to refuse leave to enter or remain, and to impose conditions on any leave granted. A person’s immigration status affects their right to work and to access welfare services.

2. An asylum seeker is someone who has lodged an application for protection on the basis of:

   • the United Nations Convention Relating to the Status of Refugees 1951 (Refugee Convention); or
   • arts 2, 3 or 4 of the ECHR which prohibits unlawful killing, torture, and ‘inhuman or degrading treatment or punishment’, slavery and forced labour.

   If successful, applicants for asylum will be granted ‘refugee status’ or ‘humanitarian protection’ in the UK.

   A refugee is a person who

   • owing to a 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 to or, owing to such fear, is unwilling to avail himself of the protection of that country (art 1(A)(2) Refugee Convention).

   The terms ‘asylum seeker’ and ‘refugee’ are often used interchangeably, but if a person has been granted refugee status they are granted leave to remain; they become eligible for mainstream benefits and are able to seek employment.

3. Under s95 Immigration and Asylum Act 1999 (IAA 1999), a person is defined as being ‘destitute’ if they:
   • do not have adequate accommodation or any means of obtaining it (whether or not essential living needs are met)
   • have adequate accommodation or the means of obtaining it but cannot meet other essential living needs.
4. People with insecure immigration status can include someone who is waiting for a decision by the Home Office on leave to remain, where, for example:
   • their status is dependent on a partner, spouse or other family member
   • their permission to stay in the UK was time limited and they have overstayed their visa permissions
   • an individual is undocumented
   • they have no legal right to be in the UK but might secure their legal status if supported to do so.
5. Section 115 IAA 1999 states that a person subject to immigration control will have no recourse to public funds (NRPF). The IAA 1999 lists what is included as a public fund, but generally it includes non-contributory benefits, such as Child Benefit, Universal Credit, and disability benefits, as well as the Scottish Welfare Fund. Provision of healthcare – by the National Health Service (NHS) – and education, with some exceptions, do not count as public funds. More information is available from the NRPF Network [Tip: hold Ctrl and click a link to open it in a new tab. (Hide tip)] .
6. A migrant is a person who moves from one place to another, especially in order to find work or better living conditions.

More detailed definitions of the terminology used in immigration legislation are available from the Refugee Council.