On 10 December 2020 the Home Office published a statement of changes to the Immigration Rules that appears to be a flagrant breach of the UN Refugee Convention. The purpose of the main change is to:

Enhance our capacity to treat as inadmissible to the UK asylum system asylum claims made by those who have passed through or have connections with a safe third country.

It does this by changing the rules on inadmissibility in Part 11 of the Rules.

The inadmissibility rules today

At the moment, paragraph 345A allows the Home Office to refuse even to consider an asylum claim where the person “could have made an application for protection” in a “first country of asylum”; that is, somewhere they passed through en route to the UK. But, crucially, this is only so long as “the applicant will be readmitted to that country”. So enforcing the inadmissibility rule depends on there being arrangements, like the Dublin transfer system within the EU, under which other countries will take asylum seekers back.

Similarly, paragraph 345C is focused on ejecting people to a “safe third country” where there is a “sufficient degree of connection” between the asylum seeker and that third country. But, again, there is a readmission qualification to the rule: it can only be enforced only where the asylum seeker will be let into the allegedly safe third country.

The beefed-up inadmissibility rules

The new paragraph 345A inserted by this statement of changes says:

An asylum application may be treated as inadmissible and not substantively considered if the Secretary of State determines that […] the applicant could enjoy sufficient protection in a safe third country, including benefiting from the principle of non-refoulement because:

(a) they have already made an application for protection to that country; or

(b) they could have made an application for protection to that country but did not do so and there were no exceptional circumstances preventing such an application being made, or

(c) they have a connection to that country, such that it would be reasonable for them to go there to obtain protection.

Inadmissibility is no longer conditional on that other country readmitting the asylum seeker. That safeguard has also been removed from the “safe third country” ground for deeming a claim inadmissible, along with the requirement that there be a “sufficient degree of connection”.

Granted, there is new paragraph 345D:

When an application has been treated as inadmissible and either

(i) removal to a safe third country within a reasonable period of time is unlikely; or

(ii) upon consideration of a claimant’s particular circumstances the Secretary of State determines that removal to a safe third country is inappropriate

the Secretary of State will admit the applicant for consideration of the claim in the UK.

So whether the asylum seeker can actually be sent to another country is still relevant, but this is a significantly weaker qualification to the inadmissibility rules that the current wording. As the explanatory memo admits, the new wording also allows the Home Office to “to pursue… removal not only to the particular third countries through which the applicant has travelled, but to any safe third country that may agree to receive them”.

Left in limbo

Colin has tweeted some thoughts on the likely practical effect of all this (I’ve edited them slightly for flow):

On the face of it, this change to the Immigration Rules looks like a serious breach of the Refugee Convention: declaring asylum claims inadmissible if the person passes through a ‘safe’ country, without even assessing them.

We could end up with nearly every refugee who arrives irregularly in the UK being stuck in limbo, with no decision on their asylum claim but also no possibility of being removed to a ‘safe’ third country with which we have no removal arrangement.

The new Rules say that removal can be to any country on earth, basically. The only obligation to consider the refugee claim in the UK is if removal there “within a reasonable period of time is unlikely” or the Home Secretary decides to process the claim.

This is a domestic-law-only replacement for the existing Dublin agreement on removals to the EU. But the policy is pointless because the government has negotiated no replacement return agreements, so far as we know. The Home Secretary can want to remove refugees to ‘safe’ third countries, but she can’t actually do it without an agreement. So all it does is delay decisions on all aslyum claims, which is cruel to genuine refugees, and delays removal of non-genuine cases.

The new Rules also tighten the Rules on where exactly within the UK an asylum claim can be lodged. It requires this to be at a “designated place of asylum”, defined as:

(i) an asylum intake unit;

(ii) an immigration removal centre;

(iii) a port or airport;

(iv) a location to which the person has been directed by the Secretary of State to make a claim for asylum; or

(v) any other location where an officer authorised to accept an asylum application is present and capable of receiving the claim

This is obviously intended to put petty obstacles in the way of people trying to formally lodge their asylum claim. The new rules also clarify that “an officer is not capable of receiving the claim in the territorial waters of the United Kingdom”. 

Separately, the statement of changes also makes some adjustments to the visitor rules concerning international lorry drivers.

The changes take effect at 11pm on 31 December 2020.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

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