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Legal Status and Refugee Integration: a UK

Perspective

S Y L V I E D A L O M B A

The Law School, University of Strathclyde, 16 Richmond Street, Glasgow G1 [email protected]

MS received January 2010; revised MS received June 2010

The paper focuses on the legal dimension of integration and investigates the

interface between legal status and refugee integration in the UK context. Legal

status shapes one’s legal environment and therefore has significant implications

for integration. For the purposes of this paper, integration is conceptualized as

a multidimensional two-way process that starts upon arrival in the host state.

This forms the basis for assessing whether the refugees’ journey from asylum

seeker to citizen as set out in UK migration law supports their integration. This

paper comes at a time when the UK Government is reforming its immigration

system and making important changes to the path to British citizenship.

Keywords: refugees, integration, UK Government

Introduction

‘The destinies of immigrants are widely determined by national legal systems.

Thus, legal integration is a necessary condition for (. . .) integration’ (Council

of Europe 1997: 23). Yet it does not always receive the attention it deserves.

With this in mind, this article focuses on the legal dimension of integration

and investigates the interface between legal status and refugee integration inthe UK. Integration is a complex and fluid concept that does not suit itself

well to definitions (Council of Europe 1997: 32). The literature, however,

strongly supports the view that integration is a multidimensional two-way

process that starts upon arrival in the host state (Castles et al. 2002). This

conceptualization forms the basis for assessing the linkage that is established

between legal status and refugee integration in the UK context. A compre-

hensive study of this linkage requires bringing together the areas of asylum

and immigration. These are normally treated as discrete topics in the litera-

ture and policy discourse. The aim is to evaluate whether refugees’ journeyfrom asylum seeker to citizen as set out in UK migration law—understood to

include immigration, asylum and naturalization law—supports their integra-

tion in the UK. This in turn involves looking at the rights and restrictions

Journal of Refugee Studies Vol. 23, No. 4 ß The Author 2010. Published by Oxford University Press.All rights reserved. For Permissions, please email: [email protected]:10.1093/jrs/feq039

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attached to the legal status of asylum seeker and to international protection

status as well as examining the question of access to citizenship. The latter

issue is considered in the light of the new British citizenship framework,

originally set out in the Home Office’s 2008 Green Paper entitled The Path

to Citizenship: Next Steps in Reforming the Immigration System (the 2008

Green Paper).

This article focuses on people who have applied for asylum in the UK and

have subsequently been granted international protection status, namely refu-

gee status (recognized refugees) or humanitarian protection. Refugee status is

conferred on asylum seekers who have a well-founded fear of persecution

within the meaning of the 1951 Convention relating to the Status of

Refugee (Art. 1(A)(2)) (the Refugee Convention). Humanitarian protection

status is granted to people who do not qualify for refugee status but cannot

be returned to their country of origin owing to a serious risk to life or person(Immigration Rules HC 395 as amended (Immigration Rules), para. 339C-D).

Asylum seekers who do not qualify for either of these two protection statuses

may be given discretionary leave outside the immigration rules in limited

circumstances (e.g. where removal would involve a breach of Article 8 of

the European Convention on Human Rights (the ECHR)—right to respect

for private and family life—on the basis of family life established in the UK).

Discretionary leave is only conferred in exceptional circumstances (UKBA

2009a) and is not examined in this article for this reason. This article does not

look at the case of people who have been granted refugee status in the UK aspart of the Gateway Protection Programme, as this programme is separate

from the standard procedure for seeking asylum in the UK. This programme

is operated by the UK Border Agency (UKBA) in partnership with UNHCR.

Gateway refugees (up to 750 per year) are allowed to come to the UK having

already been granted refugee status and are given permanent residence upon

arrival (UKBA 2009b; Home Office 2008: para. 125). This fundamentally

distinguishes Gateway refugees from refugees who have arrived in the UK

spontaneously. Finally, temporary protection in the event of a mass influx of

displaced persons is not considered as it assumes from the outset that thepeople concerned will return to their country of origin (Immigration Rules

paras 355–356B; Council Directive 2001/55/EC).

The article is divided in three sections. The first section looks at the con-

cept of refugee integration. The second one considers the significance of legal

status for integration. Finally, the third section further examines the linkage

between legal status and refugee integration in the UK context and considers

refugees’ journey from asylum seeker to citizen.

Refugee Integration: A Multidimensional Two-Way Process that Startsupon Arrival

There is no uniform concept of refugee integration (Castles et al . 2002: 114)

and definitions of integration vary greatly (Council of Europe 1997: 32).

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Some points of commonality, however, may be identified and integration may

be construed as a multidimensional two-way process that starts upon arrival.

This conceptualization of integration is relevant to both refugee and immi-

grant integration. However, it remains necessary to distinguish between these

two groups (Castles et al . 2002: 119).

The Multidimensional Nature of Integration

It is commonly accepted that integration has two broad dimensions: a public

and a private dimension (Council of Europe 1997: 175). The public dimension

of integration refers to the legal and social environment in which refugees and

immigrants are located (ibid.). The social environment includes the domains

of employment, housing, education and health (Home Office 2004a: 3). The

legal environment is constituted by the legal framework applicable tonon-nationals (Council of Europe 1997: 23). It will be shown that this envir-

onment is shaped by one’s legal status, which makes it highly relevant to

refugee integration.

Integration, however, cannot be reduced to its public dimension as ‘[the

latter cannot] fully explain what integration is about for people as they ex-

perience it in their lives’ (Home Office 2004a: 3). The private dimension of

integration refers to individuals’ actual situation in the host state in respect

of, for example, the employment market, education, housing or dependence

on social benefits (Council of Europe 1997: 175 and 176). In this respect,

Ager and Strang identify three key domains: ‘social bridges’ (i.e. connections

within a community defined by, for instance, ethnic, national or religious

identity); ‘social bonds with members of other communities’; and ‘social

links with institutions’ (Home Office 2004a: 3). These are collectively referred

to as ‘social connections’ (ibid.).

Integration as a Process that Starts upon Arrival

Another commonality in attempts to conceptualize integration is its charac-

terization as a process as opposed to a destination point (Spencer 2006b: 47).It is also generally recognized that this process starts ‘from day one of arrival’

(ECRE 2005: 2; Castles et al . 2002: 126), though this paper will show that

this basic principle is not endorsed by the UK Government. Questions, how-

ever, arise as to the nature of this process. ‘Integration is often assumed to be

a similar, universal, stage-sequential and regularly paced process to which all

immigrants and refugees are exposed’ (Castles et al . 2002: 126). Consequently,

it is deemed to follow a common pattern. Yet research suggests that the pace

of integration and its outcomes as well as people’s trajectories do vary across

integration domains (Castles et al . 2002: 126–127; Rudiger and Spencer 2003:

6). With this in mind, Favell construes integration as a set of processes with a

view to reflecting the multidimensional nature of integration (Favell 1998).

Integration journeys may also vary with immigrants and refugees’ circum-

stances. It is argued that, whether definitions of integration describe it as a

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process or a set of processes, they must all reflect its complexities as well as

diversity in experiences. This rules out conceptualizations of integration as a

uniform and pre-ordained process as these cannot match all journeys.

Moreover, such conceptualizations mean that those people whose integration

does not follow the required path are likely to be left behind. Indeed, ‘[i]t is

with reference to (. . .) presumed stages and pace that migrants and refugees

are often judged, in public discourse, as ‘‘successfully’’ or ‘‘unsuccessfully’’

integrated’ (Castles et al . 2002: 126).

Integration as a Two-Way Process

Much of the literature takes the view that integration is a two-way

process (Council of Europe 1997: 9, Spencer 2006b: 14 and Rudiger and

Spencer 2003: 4). This process therefore involves both the newcomersand the host society and requires adaptation on the part of both

parties (Council of Europe 1997: 9; Castles et al . 2002: 113). Refugees

and immigrants have a crucial role to play in their integration, for example

in acquiring the necessary linguistic and cultural knowledge.

Integration duties and responsibilities, however, are shared with the host

society. For instance, it falls on the latter to ensure that newcomers have

access to employment and other domains of integration and that they are

accepted in social interaction (Castles et al . 2002: 113; Rudiger and Spencer

2003: 5).Policies as well as popular discourse and attitude, however, often perceive

integration as a one-way process (Castles et al . 2002: 113; Rudiger and

Spencer 2003: 8). Thus, integration is no longer construed as a process of

mutual accommodation, but as a one-sided process in which refugees and

immigrants must adapt to the host society. Integration then appears as

a ‘watered down form of assimilation’ (Castles et al . 2002: 116).

Assimilation supposes the existence of a homogenous majority culture that

newcomers must embrace (Rudiger and Spencer 2003: 4). Consequently, the

conceptualization of integration as a one-way process does not recognizethe diversity of cultural and social patterns in a multicultural society

(Rudiger and Spencer 2003: 4; Castles et al . 2002: 116). Moreover, it is

argued that, in the absence of adequate support at all levels of government,

this approach risks hindering integration in that it places the ‘burden’ of

integration on refugees and immigrants alone. This article will show that

the new path to British citizenship appears to embrace the idea that integra-

tion is a one-way process, with detrimental consequences for refugee integra-

tion in the UK.

Distinguishing between Refugees and Immigrants

The conceptualization of integration as a multidimensional two-way process

that starts upon arrival is relevant to both refugees and immigrants.

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However, there are differences between these two groups which have impli-

cations for the integration process. First,

[economic] migrants are generally able to plan and prepare their migration and

are likely to have some resources to help them settle, while refugees cannot plantheir migration and may suffer considerable trauma and dislocation during their

flight (Castles et al . 2002: 119).

These dissimilarities, however, must not be overstated as many migrants face

similar hardship to refugees (Migreurop 2009). Secondly, the legal regimes

applicable to these two categories differ significantly. In this respect, the

paper will show that asylum seekers and refugees’ legal status in the host

state has a considerable bearing on the integration process. The question of

refugee integration also raises the issue of return. International protection

regimes are based on the principle of surrogacy (Goodwin-Gill and

McAdam 2007: 9–12). International protection acts as a substitute for

non-existent or defective national protection. Thus, where the need for inter-

national protection is not established or ceases to exist, return to the country

of origin may be legally required. The prospect of return, however, should

not constrain integration and ‘[i]t is important to recognize that integration

does not imply a point of no return’ (Castles et al. 2002: 122). Yet we will

show that the UK’s approach to refugee integration, in particular in its treat-

ment of asylum seekers, departs from this principle.

The conceptualization of refugee integration as a multidimensional

two-way process that starts on day one of arrival will serve as a framework

for examining the interface between legal status and refugee integration in the

UK. First, however, it is necessary to consider the significance of legal status

for the integration process.

Legal Status and Integration

Integration, however conceptualized, has legal aspects (Council of Europe1997: 23) which form part of its public domain. As in the case of citizens,

refugees and immigrants’ legal environment is primarily shaped by their legal

status. International human rights law, which attaches rights to the person as

opposed to legal status in the state of residence, is also a source of rights.

However, it is secondary to legal status. Thus, most rights conferred upon

refugees and immigrants remain predicated on their immigration status and

subsequently on citizenship, should they become naturalized. For example,

legal status determines their residency rights as well as the extent of their

access to central sectors such as employment, education and health care.

These have been identified as means and markers of integration (Home

Office 2004a: 3). This makes legal status highly relevant to integration.

With this in mind, this section investigates the nature of the interface between

legal status and integration. It is contended that there are two aspects to this



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interface: legal status makes claims as to migrants’ integration in the state of

residence, but it is also instrumental in the integration process itself.

Legal status purports to reflect one’s position vis-a ` -vis the nation state. As

such it makes assumptions as to one’s allegiance to the state of residence and

commitment to the national community. While national citizenship assumes a

distinct and privileged bond, immigration status supposes a more remote

relationship (Brubaker 1992: 21–50). How remote, however, depends on the

status ascribed to the immigrant or refugee. While precarious immigration

statuses presume loose ties with the state of residence, more secure immigra-

tion statuses assume a closer bond. Accordingly, the host state assumes that

non-nationals with secure immigration statuses are well integrated. The word

denizen was coined by Hammar to describe those migrants who are long-term

regular residents and have gained a secure residence status (Hammar 1990:

12–13). Denizens enjoy most of the rights conferred on national citizens savein the political domain (Schuck 1998: 203). Conversely non-nationals with a

precarious immigration status are to a large extent located outside the na-

tional community and as such are given limited rights in the host state. As a

result, they tend to fall outside the scope of governmental integration policies.

We will show that asylum seekers fall within this category. It follows that

legal status operates as a marker of integration. This, however, constitutes

only one facet of the interface between legal status and refugee integration.

It is contended that legal status plays a crucial part in the integration

process itself, be it positive or negative. Refugees and immigrants’ legal en-vironment is essentially shaped by their legal status. Consequently, whether

this environment supports or hinders integration depends on their legal

status. ‘Direct restrictions [may be] placed on access to jobs, to housing, to

free post-16 education, to non-emergency health services, and to welfare

benefits [on account of immigration status]’ (Spencer 2006a: x). Yet employ-

ment, housing, education and health are widely recognized as critical factors

in the integration process (Home Office 2004a: 3; Council of Europe 1997:

18–20). It is argued that the legal barriers to integration that come with

precarious legal statuses make access to a more secure legal status criticalto integration. This view finds support in the characterization of rights and

citizenship as the ‘foundation’ of the integration process (Home Office 2004a:

3–4).

It is migration law that determines refugees’ and immigrants’ eligibility for

a more secure legal status. Depending on its perspective on integration, mi-

gration law may either facilitate or hamper integration. Migration law may

construe the grant of a secure legal status as an instrument for integration

(Groenendijk 2004: 113). This approach recognizes that precarious legal sta-

tuses constrain integration and that legal barriers to integration can only

be removed with access to a secure legal status, namely citizenship or per-

manent residence. Access to a secure status, therefore, is seen as a means to

advance integration (Mu ¨ nz 2004 cited in Spencer 2006b: 47). Conversely,

access to citizenship or permanent resident status may be regarded as

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‘the remuneration for a completed integration’ (Groenendijk 2004: 113). This

makes eligibility for such statuses contingent on applicants meeting the inte-

gration requirements embedded in migration law. Accordingly, progress to a

more secure legal status is subject to satisfying the required threshold of

integration. It is contended that this approach is problematic for a number

of reasons. It suggests that integration is a destination point as opposed to a

process and implies that integration is completed upon the acquisition of

citizenship. Yet achieving equal rights with native born citizens does not

necessarily mean that naturalized migrants will be able to exercise them.

‘Citizens and other residents (. . .) often do not enjoy the rights (. . .) they

have been accorded in law’ (Spencer 2006b: 5). Moreover, it is contended

that this approach is potentially exclusionary. Refugees and immigrants are

indeed expected to achieve the prescribed level of integration for access to a

secure legal status notwithstanding the legal obstacles their present status

entails. For these reasons, it is posited that access to a more secure legal

status should be regarded as a means of integration and not as an end

goal. This approach enables the removal of legal barriers to integration

which in turn may have a positive impact on other domains of integration.

There are many intricate interlinkages between the various dimensions of

integration (Home Office 2004a: 3). Location within a more supportive

legal environment, however, cannot of itself offer protection against all

non-legal obstacles to integration. For example, while the right to work

may help refugees to develop the social connections essential to integration,the grant of this right cannot shield refugees—as is the case with citizens—

from non-legal barriers to employment (Bloch 2002).

Refugee Integration in the UK: From Asylum Seeker to Citizen

This section further explores the interface between legal status and refugee

integration. It considers refugees’ journey to citizenship and provides a cri-

tique of the approach of UK migration law to refugee integration. To this

end, the paper looks at the asylum period, the grant of international protec-tion status and access to British citizenship. At this stage, it is important to

stress that it is not assumed that most refugees go on to become British

citizens. There is very little research on this matter and the actual figure is

largely an unknown.1

The Asylum Period

Asylum seekers must apply for refugee status at the port of entry or

in-country. A positive decision will result in the grant of refugee status, or

another form of international protection should the asylum seeker fail to

meet the requirements of the Refugee Convention definition (Art. 1 (A)(2)).

In the event of a negative outcome, asylum seekers will face removal unless

they decide to leave the UK voluntarily. It is contended that the legal status



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of asylum seekers in the UK raises two important issues with respect to

integration. The first one relates to the multidimensional nature of integra-

tion. The second one concerns the start of the integration process. Both

concerns stem from the restrictions attached to asylum seekers’ status.

Asylum seekers do have rights. Provision is made for asylum seekers’

access to health care, accommodation and education, albeit within limits.

We have seen that these have been identified as key domains of integration

(Home Office 2004a: 3). Asylum seekers’ legal status, however, entails signifi-

cant restrictions which impinge on important domains of integration. These

restrictions relate to residence status, work and family reunion.

Asylum seekers are entitled to free health care on the National Health

Service. Support for asylum seekers also includes the provision of accommo-

dation. Asylum seekers, however, do not fall under housing and homelessness

legislation. To qualify for accommodation, asylum seekers must be destitute.This means that asylum seekers must be ‘homeless or without money to buy

food’ (UKBA 2009c). In practice, housing is provided by a combination of

local authorities, private landlords and housing associations (Wren 2007:

p. 393). Accommodation is offered on a non-choice basis. Asylum seekers

are also granted rights in respect of education. Here, however, it is necessary

to distinguish between school and post-school education. Full-time education

is compulsory for all children between the ages of five and sixteen, which

includes asylum seekers’ children as well as children who are themselves

seeking international protection. When the child is already attending schoolwhen reaching the age of sixteen, he or she may stay there until the age of

eighteen. Sixteen to nineteen years olds may also study at sixth form colleges

or colleges of further education (UKBA 2009d). Access to further and higher

education varies depending on where asylum seekers live in the UK. In

England, Wales and Northern Ireland, asylum seekers must pay overseas

fees and are not eligible for student support, access funds or hardship

loans (UKCISA 2007). Moreover, unless they are between the ages of sixteen

and eighteen, they are only entitled to free English for Speakers of Other

Languages (ESOL) classes six months after having lodged their asylum claim(RAGU 2008: 11). This in effect delays entry into English language classes as

asylum seekers usually cannot afford to pay for English classes. In 2007,

asylum support was only 70 per cent of the rate of income support

(Refugee Council 2007: 4). As a result of recent cut backs, the weekly

amount paid to single asylum seekers over the age of twenty-five (including

single parents) is just over half of income support (Refugee Council 2009a).

Moreover, asylum seekers cannot rely on paid employment as they do not

have the right to work. In Scotland, asylum seekers and their dependents may

study free of charge or qualify for home fees for certain further education

courses, including ESOL courses (UKCISA 2007). With respect to higher

education, asylum seekers are classified as ‘home’ students. Fees may be

paid for if the student: is an asylum seeker’s child or an unaccompanied

asylum seeking child; was residing in Scotland at the start of the course;

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has been in Scotland for the three-year period before the start of the course;

or his or her parent(s) applied for refugee status before 1 December 2006; and

was under the age of eighteen at the time of the application (UKCISA 2007).

It is argued that restrictions on asylum seekers’ access to education hamper

their integration. Indeed their ability to maintain and improve their skills and

develop their English is undermined (Refugee Council 2007: 5) as well as their

ability to make social connections. Yet ‘[p]articipation (. . .) and involvement

with teachers and other learners from different backgrounds and countries

encourage interaction and social contact, all vital to integration’ (ABNI 2005/

06: Appendix 2 s16). Likewise language training is central to integration

(Home Office 2004b: 24). It is further contended that the framing of language

knowledge as a migration law requirement makes early access to English

language classes even more vital. This requirement is discussed later in the

paper. Notwithstanding the rights attached to the legal status of asylum

seeker, the latter remains characterized by significant restrictions in relation

to residence status, employment and family reunion.

Upon applying for refugee status, asylum seekers are granted temporary

admission. However, in some cases, asylum seekers may be detained. Asylum

seekers who have been temporarily admitted are not deemed to have entered

the UK (Immigration Act 1971, c. 77, s.11(1)). Thus, while they may stay

in the UK pending the determination of their asylum claim, they are not

given the right to reside there either on a temporary or permanent basis.

This incongruity, it is argued, contributes to making asylum seekers outsiderswithin. The very presence of asylum seekers in the UK was problematized

from the early 1990s onwards following significant increases in the numbers

of asylum claims lodged in the UK (McDonald and Billings 2007: 49).

As non-residents, asylum seekers have no right to family reunion.

Moreover, the asylum period is deemed too transitory to give rise to this

right. Thus, while families may come together to the UK and seek interna-

tional protection there, asylum seekers do not have the right to be joined by

family members. Yet Clayton observes that

Although current Home Office targets aim to decide asylum claims quickly, the

reality for many claimants is still a long drawn-out process. Then, any appeal

may take further years, and again the outcome is uncertain. Once the legal

process is over and has failed, the asylum claimant may well be unwilling or

unable to return to [his or her] country of origin. Many people spend years of

their lives in the UK, often at an age where they would be likely to make

relationships and have children. Life cannot go on hold, though sacrifices are

often made (Clayton 2008: 335).

Asylum seekers’ exclusion from the UK employment market constitutes an-

other major restriction. From 1986 to 2002, asylum seekers whose claims had

not been processed within six months were allowed to work or undertake

vocational training. This right, however, was withdrawn in July 2002. In

exceptional circumstances, asylum seekers may seek permission to work



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from the Home Office if they have been waiting for a decision on their claim

for twelve months or more (Immigration Rules 360). This is in line with the

EU Directive laying down minimum standards for the reception of asylum

seekers (Council Directive 2003, Art. 11). The European Commission’s

Proposal for a Recast Directive on reception standards, however, provides

for their access to the labour market within six months (Commission of the

European Communities 2008, Art. 15). The UK Government justified its

change in policy on the basis that most decisions were made within six

months. This time frame, however, fails to account for appeals (Refugee

Council 2002). The withdrawal of the right to work was part of the policy

of deterrence developed by the UK Government in the 1990s (Bloch 2000;

Sales 2002; Da Lomba 2006). This policy seeks to make the UK less attract-

ive. Yet there is no evidence that granting asylum seekers the right to work

encourages asylum seeking in the UK (Refugee Council 2002). It is recog-nized that the right to work may be difficult to exercise in practice (Archer

et al . 2005: 19–26). There are practical restrictions to asylum seekers working:

they may lack the necessary English language skills; they may struggle to

provide evidence of professional qualifications; their qualifications may not

be recognized in the UK; and any opportunity to re-qualify is likely to be

hampered by a lack of resources. Moreover, employers may be reluctant to

employ asylum seekers. Finally employment opportunities may be scarce.

However, it is argued that the case for allowing asylum seekers to work

remains strong notwithstanding these practical impediments. The withdrawalof the right to work incurs extra costs in supporting asylum seekers who

would otherwise have been in employment (Refugee Council 2002) as well

as a continuing waste of valuable professional skills (Smyth and Kum this

volume). Moreover, inactivity has been reported as having a very negative

impact on asylum seekers, ‘creating unnecessary dependence and reducing

confidence’ (Wren 2007: 407). The right to work, on the other hand, has

been identified as a significant source of empowerment (Wren 2007: 410

and Castles et al. 2002). Furthermore, asylum seekers—and in particular

those with specialist occupations such as health professionals—may becomedeskilled which will undermine their future employability and consequently

their integration should they be granted international protection status

(Refugee Council 2002; Stewart 2007; Smyth and Kum this volume).

It is argued that the balance of rights and restrictions that characterizes the

status of asylum seeker engages two principles relating to the concept of

integration. First, it engages the multidimensional nature of integration.

Indeed, asylum seekers are excluded from key domains of integration, such

as employment, and their access to others, such as education, is limited.

Secondly, it conflicts with the principle that integration starts upon arrival.

The UK Government takes the view that, while asylum seekers’ experiences

affect their later integration, integration ‘in the full sense’ can only take place

when refugee status has been granted (Home Office 2004b: 10). As a result,

asylum seekers are excluded from integration services such as the Refugee

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Integration and Employment Service (UKBA 2009f). Yet evidence shows that

exclusion from these services during the asylum seeking period detrimentally

affects long-term integration (Castles et al . 2002: 124; Joly 1996). It is true

that the UK Government has endeavoured to shorten the asylum seeking

period; however, it may still be protracted. In contrast with the UK

Government, the Scottish Government endorses the principle that integration

begins from day one of arrival (Scottish Refugee Council 2008: 4). While

immigration and asylum are reserved matters (Scotland Act 1998, c. 46,

Part II B6), the provision of support for asylum seekers and their integration

fall within the devolved powers of the Scottish Government. This creates

acute and unresolved tensions between the policy framework for the integra-

tion of asylum seekers in Scotland and the UK-wide deterrence policy in the

field of asylum (Wren 2007: 408).

The Grant of International Protection Status

The restrictions that characterize the status of asylum seeker are lifted upon

recognition of international protection status (Bloch 2001). This supports the

view that access to a more secure legal status is critical to integration.

Refugee status and humanitarian protection entail the right to reside in the

UK, the right to work, access to publicly funded education at all levels (this

includes entitlement to grants and home fees), access to mainstream benefits

and the right to family reunion. This means, for example, that married andunmarried partners do not have to show that they can secure adequate ac-

commodation and maintain themselves and any dependants without recourse

to public funds. In principle, entry clearance for family reunion purposes may

be sought upon recognition of international protection status. However, in

the case of humanitarian protection, where the latter was bestowed before

30 August 2005, applications for family reunion will not be considered until

the sponsor obtains indefinite leave to remain (ILR). Entry clearance for

immediate family reunion will only be granted if there are compelling and

compassionate circumstances. It is apparent that people with internationalprotection status experience fewer legal barriers to integration. This, however,

does not mean that they do not experience difficulties when trying to exercise

the rights attached to their legal status. For instance, many face non-legal

barriers to employment such as poor knowledge of the job market (Sales

2002: 466; Bloch 2002).

Moreover, the certainty that once came with refugee status is being eroded.

Until 30 August 2005, recognized refugees were granted ILR. It is now the

case that recognized refugees receive temporary leave to remain in the UK for

five years (Immigration Rules paras 330–335; Home Office 2005: 22). The

same year, the period of humanitarian protection was extended from three

years to five years (Immigration Rules para. 339E; Home Office 2005: 22). In

both instances, the need for international protection must be reviewed at the

end of the five year period. Return to the country of origin is deemed



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problematization of spontaneous arrivals of asylum seekers and of its support

for the externalization of the asylum process (El-Enany 2008; Garlick 2006).

Access to CitizenshipRefugees’ access to citizenship is examined in the light of the Borders,

Citizenship and Immigration Act 2009 (c. 11) (BCI Act 2009). The Act is

due to come into effect in July 2011 (Hansard 14 July 2009 Column 232). The

new system affirms the importance of citizenship for integration. Yet the new

path to citizenship makes its acquisition more difficult. This, it is argued,

points to the paradox at the heart of the UK Government’s strategy: ‘[i]n the

name of integration, [refugees and] migrants are left either with an inferior

legal status, or are simply excluded from the UK altogether’ (Ryan 2008:

312). It is submitted that the new system is likely to undermine refugee inte-gration in the UK. The section first examines the main changes introduced by

the BCI Act 2009 and then provides a critique of the linkage that the Act

establishes between citizenship and refugee integration.

The new path to citizenship is based on the concept of earned citizenship

(Home Office 2008: para. 96). It introduces an additional category of

time-limited leave and further entrenches integration requirements in migra-

tion law. The BCI Act 2009 provides that applicants for British citizenship or

permanent residence will have to go though probationary citizenship. During

this stage, non-nationals must show whether they have earned the right toprogress to either of these secure legal statuses (Home Office 2008: 20). It is

argued that probationary citizenship further erodes the security formerly at-

tached to the pre-citizenship status of people with international protection

status. Yet we have seen that such precariousness undermines integration.

Progress to citizenship or permanent residence is conditional on satisfying

integration requirements. There are two types of integration requirements:

linguistic and societal requirements as well as active citizenship.

The language and life in the UK tests already apply to applications for

citizenship (British Nationality Act 1981, c. 61, Sched. 1 para. 1(1)).However, with the entry into force of the BCI Act 2009, they will have to

be met at the earlier stage of probationary citizenship (BCI Act 2009 s. 39 or

41). Language knowledge has been a formal requirement in naturalization

law since 1914 (British Nationality and Status of Aliens Act 1914). The so-

cietal knowledge requirement was introduced in November 2005.2

Non-nationals who do not satisfy the knowledge requirements can apply

for permanent residence after a qualifying period of eight years. The signifi-

cance of linguistic and societal knowledge for integration is not disputed.

What is problematic, however, is their characterization as migration law re-

quirements. Paradoxically, as the language knowledge requirement became

tougher, access to publicly funded ESOL classes was curtailed. It is now

the case that asylum seekers only become entitled to free ESOL classes six

months after having lodged their asylum claim. Public funding, however,



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remains available for asylum seekers between the ages of sixteen and eighteen

(RAGU 2008: 10). Data for August 2006 to July 2007 suggest that ‘pass rates

[for the life in the UK knowledge test] are likely to vary significantly with the

initial basis for admission to the UK’ (Ryan 2008: 313). The highest fail rates

are dominated by nationalities which have been the source of large numbers

of refugees in recent years (e.g. the Democratic Republic of Congo, Iraq and

Kosovo) (ibid.). This, it is argued, suggests that the test may be ill-adapted to

refugees’ circumstances. We have observed that construing integration as a

uniform and pre-ordained process may well leave people behind. This data

also provides compelling evidence of the need for adequate government

support from the time of refugees’ arrival in the UK. This would also be

consistent with the conceptualization of integration as a two-way process that

starts upon arrival.

Progress to citizenship may be accelerated if the applicant satisfies anactivity condition. This condition is a creation of the BCI Act 2009 (sections

39 and 41) and is based on the idea of active citizenship proposed by the 2008

Green Paper (Home Office 2008: para. 4.5). Section 41(1) of the BCI Act

2009 reads that an applicant is deemed to have met this condition when ‘the

Secretary of State is satisfied that he or she has participated otherwise than

for payment in prescribed activities; or . . . is treated as having so partici-

pated.’ This raises the question of what amounts to (un)acceptable volunteer-

ing. For instance, would involvement with a group that campaigns against

the detention of asylum seekers count towards demonstrating active citizen-ship? A Design Group set up by the Government to look at the activity

condition in more detail recommended that two types of activities be taken

into consideration, namely formal volunteering and civic activism (UK

Government 2009: para. 5). The former category is defined as ‘giving

unpaid help as part of groups, clubs or organizations to benefit others or

the environment’ (UK Government 2009: para. 5). The latter includes under-

taking ‘specific responsibilities in the community, such as being a school

governor’ (UK Government 2009: para. 5). The Design Group suggested

that applicants for active citizenship should commit a minimum of fiftyhours to the qualifying activities (UK Government 2009).

This author does not dispute the significance of volunteering to integration

(Spencer 2006b: 50). On the contrary, it is recognized that volunteering may

help refugees develop the social connections necessary to integration. What is

criticized is the compulsory element. The UK Government indicated that

‘[t]here [would] be no mandatory requirement to active citizenship’ (UK

Government 2009: para. 1). Yet eligibility for citizenship for those who do

not satisfy the activity condition takes an extra two years (eight instead of

six). Failure to engage in active citizenship is therefore penalized. It is con-

tended that the active citizenship condition is problematical for a number of

reasons. First, it requires of applicants for citizenship that they engage in

activities that many British citizens do not get involved in. Thus, it places

greater demands on aspiring citizens. Secondly, ‘[m]aking volunteering such a

428 Sylvie Da Lomba


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core component of the process could also be discriminatory, as people with

illnesses and disabilities, women and children and single parents may find it

difficult to find suitable volunteering opportunities’ (Refugee Council 2009b:

5). Individuals with a mental or physical impairment may be exempt fromactive citizenship subject to medical evidence showing that they cannot

engage in or would not benefit from such activities (UK Government

2009). The Government, however, dismissed concern that people working

and/or with families could struggle to find the time to volunteer on account

of the ‘discretionary’ nature of active citizenship (ibid.). Thirdly, some appli-

cants, for example people with disabilities or mental health issues, may require

additional support to volunteer (ibid.). In this respect, the Government indi-

cated that since there was no obligation to partake in active citizenship, there

were no plans to provide special funding to organizations ‘choosing’ to do so

(ibid.). It is argued that the UK Government’s lack of support does not sit well

with the importance attached to active citizenship as evidence of refugees and

immigrants’ commitment to the UK (Home Office 2008: para. 168). Fourthly,

it has been pointed out that volunteering opportunities are likely to vary across

the UK. For instance, there might be a lack of such opportunities in rural

areas. The Government simply acknowledged that ‘there may be cost issues in

getting to those opportunities for people living in rural areas’ (UK

Government 2009). Fifthly, compelling people to volunteer counters the very

idea of volunteering (Refugee Council 2009b: 5). Finally, it is argued that the

greatest source of disquiet arises from the characterization of active citizenship

as a migration law requirement. We have seen that linguistic and societal

requirements are themselves problematic. These, however,

at least concern capacities, which a person may choose what to do with. By

contrast, a concept of ‘active citizenship’ implies the official designation of

certain social participation as particularly acceptable (Ryan 2008: 308).

Thus, active citizenship gives migration law an unprecedented role in shaping

non-nationals’ experiences and ultimately lives.

There is an expectation that non-nationals who wish to settle in the UK

will become British citizens. This is not peculiar to British migration law (Da

Lomba 2010: 11). Those who do not qualify for British citizenship or do not

wish to become naturalized will have to wait for a further two years before

being able to apply for permanent residence. Permanent residence, however,

is essentially construed as an alternative for applicants who are ‘unable to

apply for British citizenship because of restrictions on holding more than one

nationality in the law of their country of origin’ (UKBA 2009e: 34). The

emphasis on citizenship may be explained by the strong linkage that the

Government’s integration strategy establishes between citizenship and inte-

gration (Home Office 2008: para. 122). However, while the UK Government

explicitly referred to the wishes of refugees in its National Refugee

Integration Strategy (Home Office 2004b: 11), the tone and language of the



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2008 Green Paper are far more prescriptive in respect of naturalization

(Home Office 2008).

Citizenship is seen as central to integration (Home Office 2008: para. 122).

Yet gaining British citizenship has become more arduous, which does not

support integration. This may be explained by two factors: the premise on

earned citizenship and the perspective that the BCI Act 2009 takes on inte-

gration. The new path to citizenship is underpinned by the idea that

[T]here is a deal for citizenship: that we welcome newcomers, but anyone who

wants to remain here long term must speak our language, obey the law and

contribute to the community (Home Office 2008: para. 33).

The term ‘deal’ suggests a two-way process. Yet the focus is on what

non-nationals must do to earn citizenship. Little is said about the role and

responsibilities of the UK Government and British society in the integration

process (Andreouli and Stockdale 2009: 171; Home Office 2008: paras. 33,

38). Consequently, the burden of integration is essentially borne by refugees

and immigrants and failure to integrate is regarded as theirs alone (Andreouli

and Stockdale 2009: 175). This makes the journey to British citizenship an

intrinsically one-sided and potentially exclusionary process, which goes

against the conceptualization of integration as a two-way process.

Further disquiet arises from the UKBA’s Consultation Paper entitled

Earning the Right to Stay: A New Points Test for Citizenship (the

Consultation Paper) (UKBA 2009e). It is argued that this Consultation

Paper further evinces the ambivalence in the UK Government’s discourse

and strategy on integration. The need to support integration is emphasized

throughout the document. For example, there is an explicit reference to the

Government’s duty to support integration (UKBA 2009e: 8) and there is an

entire chapter on supporting integration (UKBA 2009e: chapter 3). In this

respect, the language and tone of the Consultation Paper are in stark contrast

with those of the 2008 Green Paper. Yet, far from marking a shift away from

the Government’s one-sided approach to integration, the Consultation Paper

further entrenches the idea of earned citizenship. The aim is indeed to strength-en the immigration system by ‘fundamentally breaking the automatic link be-

tween temporary residence and permanent settlement’ (UKBA 2009e: para.

1.8). Accordingly, applicants who wish to progress from temporary residence

to probationary citizenship would have to meet a specific point threshold

(UKBA 2009e: paras. 2.7–2.10). The Consultation Paper specifies that refugees

would automatically secure enough points to progress to probationary citizen-

ship (UKBA 2009e: para. 2.9). This concession, however, does not assuage

concerns over refugee integration. The Consultation Paper considers

the possibility of deducting points or applying penalties for not integrating into

the British way of life, for criminal or anti-social behaviour, or in circumstances

where an active disregard for UK values is demonstrated (UKBA 2009e: para.

2.11).

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Yet integration and adoption of British values cannot be judged or quantified

in an objective manner (Scottish Refugee Council 2009: 3). Moreover, it is

unclear whether refugees’ progression to a secure legal status could be held

back as a result of deductions.

It is contended that the perspective that the BCI Act 2009 takes on inte-

gration contributes to the exclusionary dimension of the new system. As

already mentioned, migration law may construe the grant of citizenship as

a means to advance integration or as a reward for completed integration. It is

argued that the BCI Act 2009 adopts the latter approach. Yet, as shown

above, this approach has three major shortcomings. First, it conflicts with

the conceptualization of integration as a process as it sees it as a destination

point. Second, this perspective on integration implies that the latter is com-

pleted upon the acquisition of citizenship. Yet achieving equality in the legal

domain does not necessarily afford protection against non-legal barriers tointegration (Spencer 2006b: 5). Third and importantly, this paper has demon-

strated that this approach is potentially exclusionary in that it requires of

applicants for citizenship that they achieve the prescribed level of integration

notwithstanding the legal obstacles that stem from their current legal status.

In this respect, it is submitted that the one-sidedness of the new journey to

citizenship makes satisfying the integration requirements embedded in migra-

tion law much harder.

Conclusion

It is submitted that the UK Government’s current approach to the interface

between legal status and refugee integration undermines the latter. Three

factors explain this situation. First, the asylum seeking period is largely

excluded from the integration process. The extent of the restrictions attached

to the legal status of asylum seekers means in effect that integration is

delayed until international protection status is granted. Moreover, their ensu-

ing exclusion from key domains of integration such as employment conflicts

with the multidimensional nature of integration. Secondly, UK migration lawconstrues access to a secure legal status as a reward for successful integration

as opposed to a means to advance integration. Consequently, progress to

citizenship, or alternatively permanent residence, is subject to onerous pre-

scriptive integration requirements. Failure to meet these requirements means

that refugees may be left with an inferior legal status that lacks certainty.

Finally, the approach that UK migration law adopts on integration together

with the underpinning on earned citizenship make the journey to British

citizenship a one-sided process, which goes against the conceptualization of

integration as a two-way process.

Commitment to refugee integration, it is argued, calls for a reassessment of

the linkage currently established between legal status and integration. Such a

reassessment would also bring coherence to the UK Government’s discourse

and strategy on refugee integration. The UK Government has identified



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refugee integration as an important matter and has sought to develop a

comprehensive refugee integration strategy (Home Office 2004a, 2004b).

Yet this article has shown that the new path to citizenship may exclude in

the name of integration. Paradoxically, whilst citizenship is presented as cen-tral to integration, progress to this legal status has become more difficult.

Moreover, the degree of difficulty could potentially engage the UK’s obliga-

tions under Article 34 of the Refugee Convention (UNHCR 2009: para. 4;

Refugee Council 2009b: 4); it reads that

The Contracting States shall as far as possible facilitate (. . .) naturalization of

refugees. They shall in particular make every effort to expedite naturalization

proceedings and to reduce as far as possible the charges and costs of such

proceedings.

With this in mind, a number of recommendations are put forward. First, it is

argued that the period of asylum should be incorporated into the integration

process so that it would begin from the time asylum seekers arrive in the UK.

This in turn calls for greater rights for this group, especially in respect of

education and employment. For example, it is contended that asylum seekers

should have access to the employment market after a period of six months.

As already noted, this would be consistent with the proposed EU Recast

Directive on the reception conditions of asylum seekers (Art. 15). It is not

suggested, however, that their legal status should be brought in line with that

of refugees. It is further argued that the asylum period should count towards

the qualifying period for citizenship or permanent residence status (Refugee

Council 2009b: 5). The UK Government does have discretion in this respect

(BCI Act 200 s. 41(1)), but has already indicated that discretion would be

used sparingly:

In the case of refugees, we [the Government] would usually expect to exercise it

where undue delay has occurred in determining an asylum application or the

delay was not attributable to the applicant (Refugee Council 2009b: 3).

Secondly, it is contended that the certainty that international protection

status once entailed should be reinstated. At the very least, it should not

be subject to further erosion. In this respect, the UKBA’s proposal that

‘the automatic link’ between temporary and permanent residence should be

severed is particularly troubling (UKBA 2009e: para. 1.8). Finally, it is sub-

mitted that UK migration law should envisage access to a secure legal status

as a means to support integration. This in turn would necessitate a reconsid-

eration of the premise or concept of earned citizenship. The latter puts the

emphasis on what aspiring citizens must do to be worthy of British citizen-

ship (Andreouli and Stockdale 2009: 179). As a result, the incorporation of

highly onerous integration requirements in migration law is not accompanied

by a commensurate strengthening of the host government’s duties and

responsibilities in respect of integration.

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It is argued that the British immigration and asylum system deepens the

distinction between deserving and undeserving ‘others’ by questioning the

worthiness of non-nationals who wish to settle in the UK. Yet labelling

groups as undeserving feeds xenophobia and racism (Sales 2005: 457). Thisin turn impacts on everyone from these communities irrespective of legal

status (ibid.). It is the author’s view that the exclusionary dimension of the

UK Government’s refugee integration strategy is ultimately rooted in the

problematization of asylum and immigration (Mulvey this volume). Until a

more balanced approach to and discourse about asylum and immigration are

developed, the UK migration laws and policies will continue to constrain

refugee integration.

1. The UK Home Office produces separate statistics on grants of international pro-

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which means that it is not possible to know how many refugees become citizens.

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legal status.pdf

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