Safe third country
Where it is certified by the Third Country Unit that an asylum claimant comes from a safe third country, their asylum claim will not be decided in the UK. For 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.
A “safe third country” is defined in the Immigration Rules as a country where:
- the applicant’s life and liberty will not be threatened on account of race, religion, nationality, membership of a particular social group or political opinion in that country;
- the principle of non-refoulement will be respected in that country in accordance with the Refugee Convention;
- the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected in that country;
- the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Refugee Convention in that country;
- there is a sufficient degree of connection between the person seeking asylum and that country on the basis of which it would be reasonable for them to go there; and
- the applicant will be admitted to that country.
The Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (AITOCA) provides for the use of a safe third country concept. All EU Member states (except Croatia) as well as Norway, Iceland and Switzerland are listed in the statute. There is a power to add further countries by order of the Secretary of State. 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.
Safe third country removals may take place on an individual basis to other countries. The Home Office October 2018 policy also provides for safe third country cases to be dealt with on a case by case basis beyond the Dublin countries, and provides the United States, and Canada as examples of such designations.
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 Turkey. The Court found that Turkey ‘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.’
The latest Home Office policy provides, however, that a country may be deemed as a safe third country if it offers protection ‘in accordance with the principles of the 1951 Refugee Convention, regardless of whether a country is a signatory to it.’
The Immigration Rules set out a number of non-exhaustive criteria for establishing a connection between the individual applicant and a safe third country. These include:
- Time spent in the country;
- Relations with persons in that country, who may be nationals of that country, habitually resident non-nationals, or family members seeking protection there;
- Family lineage, regardless of whether family is present in that country; and
- Any cultural or ethnic connections.
Connectivity needs to be sufficient, and sufficiency is to be established based on the facts of the individual case. As regards to cultural or ethnic considerations, speaking a common language or being of the same ethnic group found in another country can be relevant but are not sufficient evidence of a connection per se.
The Home Office policy requires the Home Office to be satisfied that there is clear evidence of the applicant’s admissibility to the third country.
Para 345C Immigration Rules.
High Court, Ibrahimi and Abasi v Secretary of State for the Home Department  EWHC 2049 (Admin), paras 136-137 and 176.
Home Office, Inadmissibility; EU grants of asylum, first country of asylum and safe third country concepts, October 2019 .
Para 345D Immigration Rules Part 11.
Home Office, Inadmissibility; EU grants of asylum, first country of asylum and safe third country concepts, October 2019.