Introduction

Ordinarily, a person who makes an asylum claim (that is, a claim that to require them to leave the UK would breach obligations under the Refugee Convention) has a right to have that claim determined in the UK and a right to an onward appeal to the First-tier Tribunal against a refusal of that claim. In limited circumstances, where rights are fully protected, the UK’s international obligations under the Refugee Convention may not be breached if an asylum claim is declared inadmissible on the basis that a person would be safe in a third country.

While the UK was bound by EU law, an asylum claim might not be considered in the UK on the basis that a person was to be transferred to another EU country to have their claim determined there under Regulation (EU) 604/2013 (‘the Dublin III Regulation), for example, by reason of having irregularly entered that EU country before coming to the UK. With the end of the Brexit transition period on 31 December 2020, that option is no longer available.

In the absence of any new international agreements to replace the Dublin III Regulation, the UK has made unilateral provision as regards those who have passed through other countries on their way to the UK. Such effort can only ever be partially successful as, absent EU countries entering into a commitment with the UK to take back asylum seekers who have irregularly entered an EU country before coming to the UK, those people cannot be returned there to have their asylum claims determined.  

By Clause 14 of the Bill, the UK seeks to put into law the provision it had already made in the Immigration Rules (statements of executive policy as to when leave to enter or remain will be granted) at the end of the Brexit transition period when the Dublin III Regulation ceased to apply in UK law. The problem is that the proposal creates gaps in the international protection regime by which the UK is bound by as a result of having ratified the Refugee Convention, the European Convention on Human Rights (ECHR), and other international human rights instruments.

New provisions in respect of ‘safe’ third countries

Clause 14 of the Bill inserts sections 80B and 80C into the Nationality, Immigration and Asylum Act 2002. In the result, if enacted, the Secretary of State may declare an asylum claim made by a person who has a connection to a safe third country inadmissible. An asylum claim declared inadmissible cannot be considered under the Immigration Rules. Nor is there any right of appeal against the inadmissibility decision to the First-tier Tribunal.

As noted above, in limited circumstances, it may be permissible to have an inadmissibility procedure. For example, this could be where an asylum-seeker or  Refugee moves for reason unconnected to a need for international protection. However, the proposals in the Bill do not offer the necessary safeguards to ensure protection of that person’s rights and safety.

Clause 14 of the Bill needs to be read together with clause 26 and Schedule 3 of the Bill (which make provision for off-shore processing of an asylum claim, say when a claim has been declared inadmissible in the UK). If the proposals in the Bill are enacted, an asylum claim may be declared inadmissible and, thereafter, the person seeking asylum may be liable to removal to a place where the claim may be processed off-shore (outside the UK) or not processed at all.

Under the proposals, a third country with which a person has a ‘connection’ may be judged ‘safe’ when, in fact, it is not so for the person concerned. Thereafter, such a person judged to have a connection with a safe third country may be sent to any other third country without proper safeguards. Finally, what counts as a ‘connection’ to third country creates risk of a violation of rights protected under the Refugee Convention and the ECHR.

What is a ‘safe’ third country?

As regards the definition of ‘safe’, there are three conditions.

First, a third country is ‘safe’ only in respect of threats to life and liberty by reason of a Refugee Convention reason (race, religion, nationality, membership of a particular social group or political opinion) and not in respect of risks to other human rights arising in that country. In the result, for example, no account is taken of the risk of torture, or of inhuman or degrading treatment, contrary to Article 3 ECHR. On removal to a safe third country, a person might be destitute contrary to Article 3 ECHR because of inadequate reception conditions. Such considerations are not provided for in the provision made for judging that country to be ‘safe’ when considering whether the asylum claim is inadmissible.

Further, as regards threats to life and liberty, the third country is considered ‘safe’ only in relation to threats by reason of a Refugee Convention reason (race, religion, nationality, membership of a particular social group or political opinion). Threats arising for other reasons are not required to be taken into consideration.

As a second condition, a third country is judged safe only if it is one from which the person will not be sent to another country otherwise than in accordance with the Refugee Convention, or in contravention of their rights under Article 3 ECHR.

As a third condition, the third country is only safe, if the person may apply to be recognised as a Refugee and, if so recognised, receive protection in accordance with the RefugeeConvention in that country.

These conditions lack necessary safeguards. For the third country to be judged ‘safe’ in respect of the standards of protection that are either explicit or implicit in the Refugee Convention, the ECHR, and the Common Law, there would need to be provision in the Bill for a judgment to be reached that there were (i) adequate reception conditions, (ii) full asylum procedure guarantees, (iii)  a Refugee Status Determination procedure that applies the definitions and standards of the Refugee Convention in good faith and which furthers its purpose, (iv) a guarantee of regularisation and lawful status on being determined to be a Refugee, (v) full protection of all human rights protected by the ECHR, and (vi) a guarantee that a person would not be send to a place where their life or freedom would be threatened (that is protection from refoulement).

Further, the Bill makes no express provision for an individual assessment of each element of the test before a third country is considered safe for a person. Nor does it require an assessment of whether or not Refugee Status Determination procedures are working effectively in that third country concerned. Nor does it require that the third country in question need have signed and ratified the Refugee Convention and be bound by it. Moreover, the question of how the third country falls to be considered arises not just in relation to the provision made in respect of the inadmissibility of asylum claims but also in relation to the provision made for the removal of asylum seekers in the Bill, for example for off-shore processing, see  Clause 26 and Schedule 3 of the Bill.

A way back to substantive consideration of the asylum claim in the UK?

Under the proposals, there is a route back into an inadmissible asylum claim being considered substantively in the UK after all.   As under the Immigration Rules at present, under the proposals in the Bill, an inadmissible claim may nevertheless be considered under the Immigration Rules but only if the Secretary of State determines that it is unlikely to be possible to remove the claimant to a safe third country within a reasonable period of the declaration of inadmissibility, or if the Secretary of State determines that there are exceptional circumstances in the particular case that mean the claim should be considered, or in such other cases as may be provided for in the Immigration Rules.

Analogous provision was introduced into the current Immigration Rules at the end of the Brexit transition period. The Government considered that the measure was needed as the Dublin III Regulation was due to cease to be applicable in UK law and some provision had to made in made in the absence of an equivalent international agreement allowing for the transfer of asylum seekers who irregularly entered an EU country before coming to the UK. Absent such an international agreement, the prospects of return  to an EU country were slim or non-existant, and so there needed to be provision for UK consideration of asylum claims where the person could not be returned. In practice, the provision made already in the Immigration Rules has led to delays whereby asylum claims are declared inadmissible and time passes inexorably without progress in removing the person to a safe third country for the asylum claim to be considered there.

What is a ‘connection’ to a safe third country?

As regards what constitutes a ‘connection’ to a third country, there are several ways this may be satisfied. They are listed in diminishing order as to the protection of rights that they afford.  

First, the claimant has been recognised as a Refugee in the safe third country and remains able to access protection in accordance with the Refugee Convention there.

Second, the claimant has otherwise been granted protection in a safe third country  (i.e. Other than as a Refugee) as a result of which they would not be sent from the safe country to another country otherwise than in accordance with the RefugeeConvention, or of their rights under Article 3 ECHR, and they remain able to access that protection in that country.

Third, the claimant has made a relevant claim (as a Refugee or in reliance on Article 3 ECHR) to the safe third country and the claim has yet to be determined, or that has been refused.

Fourth, the claimant was previously present in, and eligible to make a relevant claim (as a Refugee or in reliance on Article 3 ECHR) to, the safe third country, it would have been reasonable to expect them to make such a claim, and they failed to do so. Note no claim has been made here.

Fifth, in the claimant’s particular circumstances, it would have been reasonable to expect them to have made a relevant claim in a safe third country (instead of making a claim in the UK).

The first condition is the sole condition that requires a person to have been determined to be Refugee and to be able to access Refugee Convention protection. The others offer lower, probably inadequate, and diminishing, safeguards. The fifth condition is worst of all, as there is no requirement even to have been in the specified ‘safe’ third country in the past.

Conclusion

The provision made for declaring asylum claims inadmissible offers multiple opportunities to the Secretary of State to take decisions that violate right protected under the Refugee Convention and the ECHR. The proposals work alongside the proposals to modify the regime that permits the removal of asylum seekers to third countries, see s 26 and Schedule 3 to the Bill.