The new third country inadmissibility regime for asylum claims

Friday 5 March 2021

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The new Immigration Rules addressing the inadmissibility of asylum claims pending third country action being pursued have now been in force for over two months. It’s time to consider their meaning and whether decisions made under this new regime might be challenged. 

In summary, the new scheme is essentially this:

  • Claims are treated as inadmissible where there is a relevant relationship (usually!) with a safe third country 
  • Safe third countries are defined as those where: (i) life and liberty would not be threatened for a Convention reason; (ii) where there is respect for the right to be free from inhuman and degrading treatment;  (iii) where the asylum seeker will not be ‘refouled’, i.e. there is no expulsion to a territory where the applicant faces persecution; and (iv) there is a possibility of seeking and receiving Refugee Convention protection. 
  • The relevant relationships with safe third countries are:  
    • A grant of refugee status of which one can still avail oneself: “has been recognised as a refugee”  
    • Enjoying sufficient protection there including non-refoulement protection (implying some other form of immigration status): i.e. that one “otherwise enjoys sufficient protection” 
    • The possibility of protection from non-refoulement exists because the applicant has already applied for asylum there, or could have done so and one has no excuse for not so doing, or one has a connection there such that it would be reasonable to go there to obtain protection
  • Following an inadmissibility decision, the SSHD will attempt to remove the individual to any safe third country, even, the Rules suggest, if it is not one with which the applicant has any ‘relevant relationship’.
  • However this process will not apply, or will be discontinued, where: 
    • Removal to a safe third country is unlikely within a reasonable period of time 
      • If the Home Office cannot obtain a third country’s agreement to accept an asylum seeker within six months of the date on which they claimed asylum, the claim must be admitted for substantive consideration unless there are “clear mitigating factors” (six month ‘long-stop’)
    • Removal is inappropriate due to a claimant’s particular circumstances 

We can see from the supporting Guidance that the process is as follows: 

  1. Notice of Intent issued – one that does not invite applicants to make representations or raise any reasons why they may not be suitable for the inadmissibility process
  2. Decision on inadmissibility made 
  3. Under the relevant statutory regime (Sch. 3 of the Asylum and Immigration Treatment of Claimants Act 2004) EU Member States will be deemed safe as to dangers within their territories on Refugee Convention grounds, and also vis-á-vis the prospect of refoulement
  4. Representations will then be considered, and if these amount to a human rights claim, then the response:
    - Will not give rise to a right of appeal if the argument put forward is based on refoulement risks;
    - Will be certified as “clearly unfounded” if the SSHD considers this appropriate (as has almost always been the case over the years of Dublin returns to EU Member States)
  5. Attempts will be made to secure removal: either via a general returns agreement/arrangement with a particular country, or by case-by-case agreements based on individual referrals
  6. A six-month long-stop applies; if there is no agreement to remove the applicant and no ‘mitigating factors’ justifying an extension of time, the claim will be treated as admissible

The efficacy and implementation of these new provisions will only become clear over time. Until the system beds down and cases proceed along the decision-making process it may be difficult to determine a strategy for advising in these cases. For many years the primary reference points have been the successive EU law instruments parcelling out responsibility for assessing asylum claims amongst EU countries: the Dublin Convention, then Dublin 2 Regulation and finally Dublin 3. 

Third country returns are far from a novelty: they have always been a feature of refugee casework. The courts have not found the idea of return to safe third countries objectionable in principle: the Refugee Convention’s backstop protection is simply the protection against refoulement to the frontiers of territory where one’s life or freedom would be threatened. And the authorities on delay in determining asylum seekers’ claims are not especially encouraging. So what legal strategies might there be for challenging the new processes?

Here are some initial thoughts. There appear to be four areas which give rise to potential challenges in individual cases, viz

  1. Is the proposed removal destination truly a safe third country? 

    - These arguments will presumably reflect those advanced in recent years vis-á-vis EU Member States whose asylum systems have struggled with numbers leaving individuals, or vulnerable individuals, unable to access the status determination system or to find accommodation in the meantime. 

    - As noted, for some purposes EU Member States are simply deemed safe. Whilst we were subject to EU law supremacy, the statutory deeming provisions did not prevent a challenge: as discussed in Dudaev [2015] EWHC 1641 (Admin). However now there is nothing to resolve the clash between the Human Rights Act 1998 and Sch 3 of the AITCA 2004 save for a declaration of incompatibility. Those deeming provisions bite on refoulement arguments (e.g. inadequate status determination systems) but not on reception arrangements arguments (e.g. inadequate social welfare arrangements for the vulnerable and threats of extended periods of street homelessness). If a refoulement argument is pursued, the JR will have to be brought in the Administrative Court for a Declaration of Incompatibility to be sought. 
  2. Is the asserted relationship with the safe third country made out? Which includes whether there was a legitimate excuse for failing to claim asylum there (which potentially includes a lack of any physical opportunity due to being secreted within a container, for example, or being under the influence of people smugglers or traffickers, or other duress).
  3. Will the return arrangements secure removal within a reasonable period? Can the SSHD point to overt evidence of arrangements that will credibly achieve that result? He who asserts must prove, after all, and the burden of proof in demonstrating admissibility is generally on the decision maker: see eg Yassine [1990] Imm AR 354.
  4. Should the individual asylum seeker be subjected to the process in the first place? This may depend on their vulnerability and their family connections in the UK. 

    - There are legal obligations which contraindicate delay in the cases of individual asylum seekers. Whilst the Guidance exempts unaccompanied children, that still leaves families with children, and other vulnerable asylum seekers may still be caught within its purview: e.g. those suffering from PTSD, torture victims, and trafficking survivors.

    - Strong claims to private and family life will still be relevant. Close family relationships, as between partners and children, receive relatively strong protection from the Strasbourg court. Other pre-existing family ties where there is some dependency may also present a compelling case. The line of authority epitomised by ZAT [2016] EWCA Civ 810 has made ECHR Article 8 claims rather difficult to pursue in the Dublin era: only “an especially compelling claim” can be recognised. But that test flows from the starting point that the Dublin arrangements provided a framework under which family life was protected in an orderly manner, recognising that families might be split by the exigencies of flight from persecution. That element of the thinking underlying ZAT has now been removed.

A practical question arises. When might a challenge be made? In particular, can a notice of intent be challenged? This may in practice be unnecessary if the decisions in principle follow reasonably speedily and provide useful further information – especially if the Notice of Intent were to be followed by a process by which all relevant information is collected by a decision maker to make lawful decisions by reference to the four headings just outlined. But as time passes, particularly where the very premise for invoking the r345 regime seems questionable, a challenge to this initial notice should be considered. 

Notice of intent decisions would not appear to be realistically appealable; there has been no decision on the substance of any claim at that stage. The Refugee Convention authorises removal to safe third countries, so the international protection grounds of appeal would not seem very helpful. Of course, if a human rights claim based on private and family life and/or physical and moral integrity were to be refused, then a right of appeal might follow, subject to the issues of certification and the deeming provisions mentioned above. 

However their lawfulness vis-á-vis public law and human rights standards is another matter. It would seem that challenges to issues (a), (b) and (d) above could be brought at the first opportunity, perhaps even against a Notice of Intent. Whereas challenges to the reasonableness of removal will presumably become stronger over time. A judicial review could reasonably seek disclosure of all relevant information held by the SSHD as to the likelihood of removal within a reasonable timeframe. 

Doubtless interesting litigation is on the cards: do get in touch with the Garden Court Immigration Team if you have relevant cases. 

Practitioners had a useful discussion of these issues at the ILPA refugee working group recently. We encourage readers of Garden Court’s blog posts to attend those meetings. 

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