An asylum application will be declared inadmissible where the applicant:1
Has been granted refugee status in another EU Member State;
Comes from a First Country of Asylum;
Comes from a Safe Third Country;
Has been granted a status equivalent to refugee status in the UK; or
Is allowed to remain in the UK and is protected from refoulement pending the outcome of a safe third country procedure.
Since November 2015, UK law has also reflected the Protocol on Asylum for Nationals of the EU and in December 2015 the policy guidance was issued stating that applications from such nationals are to be treated as inadmissible save in exceptional circumstances.2
The only admissibility procedure in the UK strictly speaking is the safe third country procedure, either removal to an EU country using the Dublin regulation (see section on Dublin), or another safe third country (see Safe Third Country). There is no screening for admissibility on the basis of the merits of the case (see section on Dublin: Procedure). This section deals with decisions to remove the asylum seeker to a safe third country other than an EU Member State or other country using the Dublin Regulation.
As described in the context of the Dublin procedure, in effect the Dublin Regulation countries constitute the First List. Legislation gives a power to create a Second List. A country on the Second List is treated as a place to which non-nationals can be returned without a breach of the Refugee Convention, either in that country or through risk of being sent elsewhere (see Safe Third Country).3 Additionally, there is a presumption that human rights claims against removal to it of non-nationals are unfounded.4
There is no time limit for taking a decision but in practice third country decisions often tend to be taken rather quickly.
As stated in relation to Dublin: Personal Interview, there is no provision for a personal interview in safe third country cases.
Similarly to the Dublin procedure there is no appeal on asylum grounds against a safe third country decision. However, an appeal may be made on the grounds that the person would be sent by that third country to another country in breach of their rights under the ECHR (e.g. indirect refoulement on human rights grounds) or that their ECHR rights would be breached in the receiving country. These human rights appeals may only be brought in the UK if the Home Office does not certify that they are clearly unfounded. In the case of the ‘second list’ there is an obligation to certify human rights claims as clearly unfounded unless the decision maker is satisfied that they are not unfounded.5 Where an appeal is available an out of country appeal must be brought within 28 calendar days; an in-country appeal must be brought within 14 days. The same problems may arise as with the 14 day limit in the regular procedure (see section on Regular Procedure: Appeal).
The result is that the only suspensive appeal against a third country removal would be where a human rights claim is not certified as clearly unfounded. When a decision is made that the person can be returned to a safe third country, a certificate is issued to that effect, and the decision can only be challenged by judicial review. The certificate that the case is unfounded can also only be challenged by judicial review. The scope of judicial review is described above in relation to the regular procedure, but in the case of a judicial review based on human rights, the court looks more closely at the substance of the decision.6
The main distinction between the legal provisions governing appeals in these safe third country cases and Dublin cases is that in Dublin cases there is no appeal from outside the UK on the basis of indirect refoulement in breach of ECHR rights.
Presently no countries are listed in the Second List, and non-Dublin safe third country returns take place on a case by case basis. They have been carried out to e.g. the US and Canada.
There are no special rules or restrictions applying to legal assistance in the safe third country procedure. As with applicants who are subject to the Dublin procedure (see section on Dublin: Legal Assistance), in principle an asylum seeker subject to a third country decision has the same opportunity as any other asylum seeker to obtain access to free legal representation. However, for both Dublin and other third country procedures, once the decision to use a third country procedure has been made, the person is likely to be detained. If they already have a legal representative that person may continue to represent them. If not, they may, again subject to resources, obtain access to representation in detention (see section on Legal Assistance for Review of Detention).
Judicial review is funded by legal aid, subject to the means of the asylum seeker and the merits of the case. However, as in all judicial review, since changes in 2014, this is broadly speaking only if the court grants permission for the judicial review or the Home Office retracts the decision.
- 1. Para 345A, Immigration Rules, available at: http://bit.ly/2krAPs1.
- 2. Home Office, Asylum Policy Instruction: EU/EEA Asylum Claims, 9 December 2015, available at: http://bit.ly/2jQSoRG.
- 3. Para 3 & 4, AITOCA 2004 Schedule 3, available at: http://bit.ly/1Sat3Lt.
- 4. Para 3, AITOCA 2004 Schedule 3, available at: http://bit.ly/1Sat3Lt.
- 5. AITOCA 2004 Schedule 3, Parts 3 and 4, available at: http://bit.ly/1Sat3Lt.
- 6. R v Secretary of State for the Home Department ex p Daly  UKHL 26, available at: http://bit.ly/1IbyKpJ.