General (scope, criteria, time limits)
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. At the time of writing no return agreements had been reached to this effect. It is understood that those applicants returned to Dublin states were beneficiaries of international protection in those countries; numbers remain low – only 23 people have been removed under the inadmissibility rules between January 2021 and December 2022.
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.’
Although the UK is no longer a member of the EU and return agreements have yet to be concluded, the Dublin Regulation countries still 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). Additionally, there is a presumption that claims from non-nationals to be removed to the same list of countries will be unfounded, unless stated otherwise, meaning a human rights claim against removal to that country would usually be non-suspensive.
Presently no countries are listed in the Second List, and non-Dublin safe third country returns take place on a case-by-case basis.
New Immigration Rules were laid in December 2020, in part to replace the Dublin procedure but widened the scope of inadmissibility to any country that would agree to take responsibility for the person’s asylum claim, even if there is no connection with that country. These provisions were put into the Nationality and Borders Act and apply to claims made after 28 June 2022 although this made little change in practice. The guidance explains that ‘In broad terms, asylum claims may be declared inadmissible and not substantively considered in the UK, if the claimant was previously present in or had another connection to a safe third country, where they claimed protection, or could reasonably be expected to have done so, provided there is a reasonable prospect of removing them in a reasonable time to a safe third country’.
There is no time limit in the rules for taking a decision but the guidance states that in general if no return is agreed six months after the asylum claim was made the applicant should be admitted into the UK asylum system, unless there are particular reasons for the delay, including a pending decision as to whether or not the applicant is considered to be a victim of modern slavery.. If a third country has agreed to admit an inadmissible claimant, the removal should be processed without undue delay. The new guidance also states that inadmissibility decisions will generally not be taken on unaccompanied children’s claims although the rules are silent on this matter.
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.
There is no provision for a specific, separate personal interview in safe third country cases; information is taken from the screening interview.
Applicants issued with a ‘Notice of Intent’ that inadmissibility is being considered 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 named in the Notice of Intent. This is considered before the inadmissibility decision is made and issued.
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. 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.
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
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.
 Home Office, Inadmissibility: safe third country cases – Version 7.0, June 2022, available at: https://bit.ly/3qUdPki.
 Parts 3 and 4 Schedule 3 AITOCA.
 Part 3 Schedule 3 AITOCA.
 Statement of changes to the Immigration Rules, available at: https://bit.ly/36eKxVG.
 Home Office, Immigration Statistics.
 Parts 3 and 4 Schedule 3 AITOCA.
 House of Lords, R v Secretary of State for the Home Department ex p Daly  UKHL 26, available at: http://bit.ly/1IbyKpJ.