Author
The Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (AITOCA) provided for the use of a safe third country concept, i.e. that a person could be removed from the UK to a country they are not a national of. All EU Member states (except Croatia) as well as Norway, Iceland and Switzerland are listed in the AITOCA. There is a power to add further countries by order of the Secretary of State.[1] The only one to have been added is Switzerland. There is no obligation to review the lists, and there is no appeal against the inclusion of a country on the list.
Section 59 of the Illegal Migration 2023 is not currently in force, but if it is brought into force then it provides for asylum and human rights claims made by people from certain countries to be deemed inadmissible. The list includes EU Member states, Norway, Iceland and Switzerland, and Albania has been added. Draft regulations have been laid to add India and Georgia to the list. [2]
Where the Third Country Unit has decided that a person has a connection to a safe third country then the claim may be deemed inadmissible. For detailed explanations on the different kinds of safe third country decisions, and for challenges to them by judicial review see section on Admissibility Procedure. The concept is used widely in practice.
Safe third country removals may take place on an individual basis to other countries.
Safety criteria
States listed as safe third countries are treated as a place where a person’s life and liberty are not threatened for a Convention reason and where they will not be subject to refoulement.[3] As regards the required level of protection available in a third country, the High Court assessed the ratification of the 1951 Refugee Convention in Ibrahimi and Abasi, although the case concerned a Dublin transfer to Hungary. The applicants complained that their transfer to Hungary would subject them to “chain refoulement” as the applicants would risk removal to Iran along a chain of unsafe States, including Serbia, Macedonia, Greece and Türkiye. The Court found that Türkiye ‘is considered to be an unsafe country’, inter alia since it retains discretion to provide asylum seekers with ‘limited residence but with a status short of refugee status.’[4]
Requirement for a connection
Since the change in rules at the end of 2020 it is clear that a case may be considered under the inadmissibility policy if there is evidence that an applicant has spent time in or travelled through a country where it is deemed they could have made a protection claim and benefitted from the principle of non-refoulement. However, the instruction goes on to state that removal can be to any country that will accept them.
The introduction into policy of the MEPD (Rwanda agreement) to inadmissibility procedures means that it is intended to remove people to a country that is willing to take them, regardless of the lack of connection to Rwanda. This is despite the government’s own evidence indicating that the impact on people with protected characteristics under the Equality Act 2010 could be adversely affected by the policy[5] and strong criticism from the UNHCR.[6]
[1] Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (AITOCA).
[2] The Nationality, Immigration and Asylum Act 2002 (Amendment of List of Safe States) Regulations 2024.
[3] Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (AITOCA), sch 3 part 1 s 13 (2).
[4] High Court, Ibrahimi and Abasi v Secretary of State for the Home Department [2016] EWHC 2049 (Admin), paras 136-137 and 176, available at: https://bit.ly/48t6opQ.
[5] UK government, ‘MEPD Equality Impact Assessment’, last updated 4 July 2022, available at: https://bit.ly/3EAJSyt.
[6] UNHCR, UNHCR Analysis of the Legality and Appropriateness of the Transfer of Asylum- Seekers under the UK-Rwanda arrangement, 8 June 2022, available at: https://bit.ly/3EvP7iU.