Blog post by Olivia Clark, Senior Associate at DLA Piper
The last two weeks saw the one-year anniversary of the fall of Kabul and the six-month anniversary of the start of the war in the Ukraine. These two humanitarian crises have resulted in significant changes to the UK Immigration Rules, with stark differences in the visa schemes available to Afghans and Ukrainians. The commonality between the schemes is the proliferation of new “labels” which demonstrate a significant shift in the government’s approach to humanitarian crises and a narrowing of protection for those fleeing persecution.
In this article, I examine the new visa pathways created by the UK government for Afghans and Ukrainians and highlight the significant gaps in protection for both groups.
When the crisis began in Afghanistan, the UK was under significant domestic and international pressure to react and create a visa pathway for thousands of Afghans. This included those who had worked with the British government or were under threat from the Taliban because of their role promoting the rule of law, human rights, and democracy.
In response, the UK announced the launch of the Afghan Citizens Resettlement Scheme (ACRS), which opened on 6 January 2022. The Scheme has three Pathways:
- Pathway 1: – for those evacuated under Operation Pitting and included women’s rights activists, journalists, and prosecutors, and Afghan family members of British nationals.
- Pathway 2: the United Nations High Commissioner for Refugees (UNHCR) refer refugees who have fled Afghanistan to the scheme, based on assessments of protection needs and vulnerabilities.
- Pathway 3: in the first year, the UK government stated that it will consider only eligible at-risk British Council and GardaWorld contractors and Chevening alumni for resettlement.
The withdrawal from Afghanistan was widely reported as chaotic and badly managed. One of the consequences of this is that many of those evacuated under Pathway 1 of the ACRS scheme were brought to the UK without their family members. They are now trying to bring their families to safety. It was not clear whether those relocated under the ACRS would be eligible for refugee status. Following a request for clarification submitted by the Immigration Lawyers’ Practitioner’s Association (ILPA), the Home Office responded stating that Afghans relocated to the UK under Pathway 1 and 3 will not be considered refugees and there is “no scope…to convert to refugee status.”
The above clarification comes despite the fact that Home Office guidance is clear that many Afghans will now have a strong claim to asylum. The practical consequences of being denied access to the legal category of ‘refugee’ are significant. Firstly, and perhaps most importantly, refugees can apply to bring their immediate family members to the UK under (comparatively) comprehensive family reunion rules. Those granted under the ACRS, who are not recognised as refugees, must instead rely on the family reunion rules set out in Appendix FM of the Immigration Rules. The rules are notoriously stringent, and the process notoriously expensive. Family members of refugees can apply for family reunion at no cost, while a family visa under Appendix FM costs approximately £3500 for one applicant. While it is possible to apply for a fee waiver, the criteria is stringent and the fee waiver can be rejected on the basis that the applicant hasn’t attempted to save for the fee. Further, to make an application under Appendix FM, a sponsor needs to meet a minimum income requirement and adult family members will normally have to pass an English language test. These requirements do not exist for refugee family reunion. This means that Afghans relocated to the UK are being severely prejudiced by being denied the legal status of a refugee and the benefits that flow from refugee status. For example, our client Omid (name changed) was relocated to the UK under the ACRS but his wife and three young children were left behind. Obtaining visas for his wife and children will be complex as Omid is not considered a refugee. If he was considered a refugee, his application would most likely be a straightforward refugee family reunion application.
It is useful to compare the ACRS to the government’s relocation scheme for Syrians, the Syrian Vulnerable Persons Resettlement Scheme (SVPR). This programme, which ran from 2014 – 2020 relocated 20 000 Syrians. Initially, Syrians were granted humanitarian protection, which is a lesser form of protection than refugee status. Although those granted humanitarian protection could apply for refugee family reunion, they were denied other benefits that are made available to refugees, including applying for student finance and a travel document. After justifiable outrage and heavy lobbying, the Home Office changed their policy and allowed Syrians who were here to “upgrade” to refugee status.
Given the government’s response to the Syrian crisis, it seems completely unjustified that they would be denying Afghans the protection of refugee status. However, the creation of new protection schemes for at-risk groups, is, as Professor Roger Zetter argues, the “defining characteristic” of the 21st century refugee regime. The government’s response to Afghanistan and the Ukraine is a clear example of what Zetter argues are the proliferation of new labels which significantly lessen the protection available to those fleeing persecution.
Following the invasion of Ukraine by Russian armed forces on 24 February 2022, the UK was again under significant pressure to act. Eventually, at the end of March 2022, the government inserted Appendix Ukraine into the Immigration Rules, which included the Ukraine Family Scheme and Homes for Ukraine. The government stated that those schemes were devised to assist as many Ukrainians as possible to come to or remain in the UK, including provisions for Ukrainian nationals who were already in the UK to regularise their immigration status or switch in-country to a visa for which they would normally have to apply from abroad. However, the schemes have been criticised as designed to deliberately minimise and control the numbers of Ukrainians coming to the UK through the imposition of biometric enrolments and significant delay in visa processing times. This has left thousands of Ukrainians stranded.
It is important to note that none of these schemes were or have been made available to Afghans. There is no provision in the Immigration Rules for Afghans to be sponsored under a “Homes for Afghans” style arrangement. Similarly, while Ukrainians who are already in the UK with a valid visa can now use the Homes for Ukraine Scheme to sponsor their extended family for free to come to the UK, Afghans remain largely unable to sponsor their family members.
However, while the visas offered to Ukrainians have been wide ranging, there are still some groups of Ukrainians who have been left in legal limbo. Seasonal workers and Ukrainians who were living in the UK undocumented before the war are an example of this. Ukrainians make up the largest proportion of seasonal workers in the UK; in 2021, 67% of all Seasonal Worker Visas were granted to Ukrainians. Seasonal worker visas are typically valid for six months and are tied to a place of employment. This meant that thousands of Ukrainians on seasonal worker visas had no protections once their visa expired. The government eventually launched the Ukraine Extension Scheme (UES), which seasonal workers could apply for and would give them three years’ leave to remain. However, crucially the UES does not allow applicants to sponsor their family. This is particularly problematic for seasonal workers as many are in the UK without their family and due the escalating crisis, are now desperate to bring them to safety. Many seasonal workers were therefore encouraged to apply for sponsorship for themselves and their families under the Homes for Ukraine Scheme through the Welsh or Scottish Government “super sponsor” schemes. Under these schemes, the Welsh or Scottish governments were acting as a Sponsor under the Homes for Ukraine scheme, which meant that individuals did not need to find someone with a spare room willing to sponsor them. However, without any warning, the Welsh scheme paused in June and the Scottish scheme paused in July. This was in response to the overwhelming number of applications both governments were receiving and the need to ensure there was sufficient support for newly arrived Ukrainians.
For some clients, this has left them in legal limbo. For example, our client Andriy (not his real name) had prepared all the documentation to apply for the Scottish sponsor scheme but when he went to apply, it had already closed. Andriy is supporting his wife, elderly mother and three young children, the youngest of whom is only 7 months old. Andriy is now desperately searching for a private sponsor through the Homes for Ukraine Scheme but is stuck in limbo and is very anxious about what to do. His only other option is to apply for asylum but the wait times for the asylum process are hugely delayed. For example, there is currently a 20 week wait to register an asylum claim and analysis by the Refugee Council has found that the average wait time for a decision is between 1-3 years. Most asylum seekers are not permitted to work while they are waiting for their claim to be considered and must live on £40.85 a week.
Whilst the various new visa pathways for Afghans and Ukrainians have helped many fleeing war and conflict, there are still major protection gaps for some of the most vulnerable. Thousands of Afghans are desperately waiting to see if they are eligible under Pathway 2 and 3 of the ACRS scheme. For those Afghans who were evacuated, they now face a difficult and long journey to bring their family members to the UK. While those Afghans who have been evacuated may have escaped conflict and violence, they live in daily fear that their family members will be targeted by the Taliban. On the other hand, while Ukrainians have had a wide range of visas available to them, the government has made it difficult to apply and visa processing times are significant. The proliferation of various new visa schemes, such as Homes for Ukraine and Ukraine Extension Scheme, can be seen as part of a wider trend by the government to create “exclusionary sub-labels” which ultimately offer significantly less protection than refugee status.
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