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 he/she has a connection with or travelled through another ‘safe’ country prior to his/her 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 individual casework will include attempts to return applicants under this policy.
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. The explanatory notes state that the purpose of the 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. But the guidance explains that the Rules allow an inadmissibility decision to be taken on the basis of a person’s earlier presence in or connection to a safe third country, even if that particular country will not immediately agree to the person’s return. More significantly, if someone is inadmissible, the new provisions permit their removal to any safe third country that will take them (not just the specific country or countries through which they travelled or have a connection)
There is no time limit in the rules for taking a decision but the guidance states that general if no return is agreed six months after the asylum claim was made the applicant should be admitted into the UK asylum system. 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 64 inadmissibility decisions in 2021, having initially served ‘notices of intent’ to 8,593 claimants. 50 claimants were refused on safe third country grounds following full examination of their claims.
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.
 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
 Explanatory memorandum, available at: https://bit.ly/3iO8SGV
 Inadmissibility guidance, December 2020, available at: https://bit.ly/2LXZKUs
 Parts 3 and 4 Schedule 3 AITOCA.