Author
General (scope, criteria, time limits)
The inadmissibility grounds in the UK revolve around the question of safe countries, namely whether the person is from a safe country they can be returned to, or whether a person could have claimed asylum in a safe third country on the way to the UK, and then whether it is possible to send them to a safe third country (this does not need to be the one they passed through).
In December 2020 Immigration Rules were changed so that from 1 January 2021 the applicant, if there is evidence that they have a connection with or travelled through another ‘safe’ country prior to their claim in the UK, may be transferred to any ‘safe’ country that will accept the applicant. This was removed from the Immigration Rules on 28 June 2022,[1] when it was replaced by similar provisions by section 16 of the Nationality and Borders Act 2022 which inserted new sections 80B and 80C to the NIAA 2002.
This inadmissibility process at section 80B of NIAA 2002 applies to claims made on or after 28 June 2022. This says that the Secretary of State ‘may’ declare an asylum claim inadmissible where a person has a connection to a safe third country. Safe third country is defined as a state where the person’s life and liberty would not be threatened for a Refugee Convention reason and where their Article 3 rights would not be breached, and where the person may apply for and receive refugee status.
A decision that a claim is inadmissible is not an appealable decision. If a case is deemed inadmissible it can still be considered and decided where the Secretary of State considers that there are exceptional circumstances, or as may be provided in the Immigration Rules (but is not at present).[2] Connection is defined at section 80C of the NIAA as where the applicant:
- has been recognised as a refugee in the safe third country and is still able to access that protection
- has been granted another form of protection in the safe third state which means they would not be sent from there in breach of the Refugee Convention or Article 3 and is still able to access that protection
- has made a protection claim in the safe third country that has not been determined or has been refused
- was previously present in a safe third country where it was reasonable for them to make a protection claim but they did not do so
- due to their personal circumstances would have been reasonably expected to make a relevant claim in the safe third country.[3]
The inadmissibility process is set out in the guidance.[4] The first stage is that the Home Office will make a preliminary assessment of whether it appears the case is suitable for the inadmissibility process (i.e. where a person has travelled through Europe to get to the UK). Enquiries as to the route of travel are also a routine part of the screening process in all cases. The asylum seeker’s account of their route of travel and other evidence of the person having lived in or travelled through a country will influence whether the application is referred to the Third Country Unit.[5] If it is deemed suitable, then the case will be sent to the Third Country Unit. If it is not deemed suitable by that Unit, they will return the case to the asylum team.
If the Third Country Unit does consider that the claim may be considered inadmissible, they will issue a ‘notice of intent’ which states the country of possible return. The final stage is a decision on whether or not the claim will be admitted to the asylum system in the UK.
On 14 February 2024 the government announced a pause on inadmissibility decision making for people who arrived in the UK on or after 1 January 2022 and who received a notice of intent before 29 June 2023 stating that they may be removed to Rwanda.[6]
On 20 July 2023, the Illegal Migration Act 2023 introduced a new section 8AA to the Immigration Act 1971. This says that where a person has ever met the four conditions set out at section 2 of the Illegal Migration Act 2023, then they ‘must not’ be given leave to remain in the UK. This prohibition on a grant of leave will apply where a person has arrived on or after 7 March 2023, has entered unlawfully, did not travel directly to the UK and does not have permission to be in the UK.[7] There are limited exceptions to this for children, victims of trafficking, where the Secretary of State considers that failure to do would be in breach of the UK’s international obligations, including the ECHR, or where there are other exceptional circumstances.[8] This is a decision on a grant of leave, and is separate to the inadmissibility decision. It is currently unclear what happens to a person whose claim is deemed admissible, given this prohibition on a grant of leave.
UNHCR has recommended that provision is made in the Immigration Rules for grants of leave to be made to those in the inadmissibility process.[9]
The MEPD (Rwanda agreement) remained the government’s preferred option for transferring responsibility for asylum processing to a ‘safe third country’. Guidance to caseworkers states that ‘If a case assessed as suitable for inadmissibility action appears to stand a greater chance of being promptly removed if referred to Rwanda, a country with which the UK has a Migration and Economic Development partnership (MEDP), rather than to the country to which they have a connection, TCU should consider referring the case to Rwanda.’[10]
Following the Supreme Court’s decision that Rwanda is not a safe country,[11] there are no functioning returns agreements with a safe third country. The government has introduced the Safety of Rwanda (Asylum and Immigration) Bill and is also in the process of ratifying a treaty with Rwanda which it says will address the Supreme Court’s concerns.[12]
In March 2024, the High Court in Ireland found that the decision to add the UK to the list of safe third countries to return asylum seekers to was unlawful.[13]
When an inadmissibility or removal decision is made and it is proposed to send the person to one of 31 European countries (all EU countries plus Iceland, Norway, Switzerland and Liechtenstein), the decision will be certified to remove any right of appeal based on a claim that removal to that country would be in breach of the Refugee Convention.[14] In practice, very few of these decisions are made.
The Home Office made 83 inadmissibility decisions in 2021 and 2022, having served ‘notices of intent’ to 21,532 claimants. By the end of 2022, 23 people had subsequently been removed. In 2022, 68 claimants were refused on safe third country grounds following full examination of their claims. In 2023, 31,537 cases were identified for consideration of inadmissibility, 12,581 notices of intent were issued, and one claim was deemed inadmissible. There were two removals so a total of 25 removals have now taken place under the process since 1 January 2021.[15] Those were to Belgium, Bulgaria, Denmark, France, Germany, Ireland, Italy, Slovenia, Spain, Sweden and Switzerland.[16] It is understood that the few applicants returned were beneficiaries of international protection in Dublin states to which they were returned.
Personal interview
There is no provision for a specific, separate personal interview in safe third country cases; information is taken from the screening interview.
Applicants for whom the UKVI is considering inadmissibility are issued with a ‘Notice of Intent’ of this fact and can make written representations within strict time limits as to why they should not be considered for removal to a safe third country at all or to a specific country or countries which are named in the Notice of Intent. If UKVI later identifies a different country of possible return, then a further Notice of Intent should be issued inviting representations regarding that country. This is considered before the inadmissibility decision is made and issued.[17]
Appeal
When an inadmissibility 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 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.[18]
Legal assistance
There are no special rules or restrictions applying to legal assistance in the safe third country procedure. 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 (see Regular procedure – legal assistance).
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 reviews, this is broadly speaking only if the court grants permission for the judicial review.
[1] Statement of changes to the Immigration Rules: HC17, 11 May 2022, available at: https://bit.ly/3SMQnoJ.
[2] Section 80B Nationality, Immigration and Asylum Act 2002, as amended by the Nationality and Borders Act 2023, available at: https://bit.ly/49mYvUc.
[3] Section 80C Nationality, Immigration and Asylum Act 2002, as amended by the Nationality and Borders Act 2023, available at: https://bit.ly/49LqM6s.
[4] Home Office, Inadmissibility – third country cases: caseworker guidance, 14 February 2024, available at: https://tinyurl.com/bdffz3bj.
[5] Home Office, Inadmissibility: safe third country cases – Version 7.0, June 2022, available at: https://bit.ly/3qUdPki
[6] Home Office, Policy paper: Consideration of inadmissibility claims under the Migration and Economic Development Partnership, 14 February 2024, available at: https://tinyurl.com/5569pb49.
[7] Section 2, Illegal Migration Act 2023, available at: https://bit.ly/3OQmtPa.
[8] available at: https://bit.ly/3uFiVbV.
[9] Section 8AA, Immigration Act 1971, available at: https://bit.ly/3T5OpRR.
[10] Home Office, Inadmissibility: safe third country cases – Version 7.0, June 2022, available at: https://bit.ly/3qUdPki.
[11] Supreme Court, AAA v Secretary of State for the Home Department [2023] UKSC 42, 15 November 2023, available at: https://bit.ly/3I8J9GJ.
[12] Home Office, Policy paper: Safety of Rwanda (Asylum and Immigration) Bill: factsheet, 26 January 2024, available at: https://tinyurl.com/m5649ae8.
[13] A & anor v The Minister for Justice, Ireland and the Attorney General & anor [2024] IEHC 164, available at: https://tinyurl.com/mheazz7b.
[14] Schedule 3 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, available at: https://bit.ly/49nioKR and https://bit.ly/3URUin6.
[15] Home Office, Immigration system statistics data tables, Asylum and resettlement summary, year ending December 2023, table Asy_09a, available at: https://tinyurl.com/bdhnwfkr.
[16] Home Office, National statistics: How many people do we Grant protection to?, 29 February 2024, available at: https://tinyurl.com/bdcs2dv8.
[17] Home Office guidance, Inadmissibility: safe third country cases, available at: https://bit.ly/48sPcki.
[18] House of Lords, R v Secretary of State for the Home Department ex p Daly [2001] UKHL 26, available at: http://bit.ly/1IbyKpJ.