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.
Until the end of 2020 the Immigration Rules defined a “safe third country” 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 rules were amended in December 2020, to come into force at the exact time the UK left the transition period of exit from the EU. The new rules make no distinction between EU and non-EU states. The new rules remove the requirement for the individual to have a connection to the country to which it is proposed they be returned. The rules explicitly state that “When an application is treated as inadmissible, the Secretary of State will attempt to remove the applicant to the safe third country in which they were previously present or to which they have a connection, or to any other safe third country which may agree to their entry.”
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.
- Safety criteria
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.’
- Connection criteria relevant to claims made prior to 31/12/20
The Immigration Rules relevant to claims in 2020 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.
Since the change in rules 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. Whilst no return agreements are in place at the time of writing the stated intention is that people seeking asylum will be returned despite the lack of participation in Dublin III as a mechanism to facilitate that.
 Para 345A-C Immigration Rules.
 High Court, Ibrahimi and Abasi v Secretary of State for the Home Department  EWHC 2049 (Admin), paras 136-137 and 176.
 Para 345D Immigration Rules Part 11.