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New Guidance on Inadmissibility of Asylum Claims

On 31 December 2020, at 11pm, the Brexit transition period came to an end. One consequence of this is that the Dublin Regulations no longer apply in the UK. New regulations have since been introduced by the UK government. Under these regulations, asylum claims can be ruled inadmissible. The Home Office is now able to rule that another country, known as a safe third country, should be liable for an asylum claim. The Home Office issued new guidance on inadmissibility of asylum claims in safe third country cases on 31 December 2020.

What are the new inadmissibility rules for asylum applications? 

The Home Office describes the new rules on inadmissibility of asylum claims in safe third country cases as follows: 

“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 persons 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” 

Who do the new inadmissibility rules for asylum claims apply to?

The new rules on inadmissible asylum applications can be applied to any adult who claims asylum after 01 January 2021. The guidance on inadmissibility of asylum claims does state that the Home Office will not apply the new rules to unaccompanied minors. 

What does ‘inadmissible’ mean?

If your claim for asylum is declared inadmissible, it means that it will not be considered any further. Your international protection claim will either be rejected, or not considered any further. This means that you will be left without status or any of the rights listed under the Refugee Convention, and the Home Office will then try to remove you to a safe third country. 

What is the definition of a ‘safe third country’? 

A safe third country is likely to be a country through which you have travelled, in order to reach the UK. The guidance on inadmissibility of asylum claims explains that:

“the safe countries most likely to be identified in asylum claims will be the UK’s near neighbours in the EU. Other EU member states, the wider EEA countries (Iceland, Liechtenstein and Norway) and Switzerland may also be identified, as may country such as the United States of America, Canada, Australia and New Zealand”

The guidance further states that: 

“other countries satisfying the definition in the rules must not be overlooked […] Return may be arranged through a general returns agreement/arrangement with a particular country, or by case-by-case agreements based on individual referrals”

When will a decision on inadmissibility be made? 

The guidance on inadmissibility of asylum claims sets out that all asylum claims must still be registered, but afterwards, a claim may be pronounced inadmissible. 

This could be before or after a substantive interview, however, the Home Office has a limited window within which to make a decision on inadmissibility. 

If there is “no reasonable prospect of removal within a reasonable timescale” then the Home Office should consider the full asylum claim as they usually would. 

There is a 6-month deadline. In essence, if the Home Office wishes to render a claim inadmissible, they must have an agreement from the third country no later than 6 months from the date on which asylum was claimed. In the absence of this, the Home Office should consider the asylum claim in full. 

The guidance on inadmissibility of asylum claims does however leave room for potentially extending the deadline. It states:  

“This timescale may be extended only if removal is still a reasonable prospect and there are clear mitigating factors to justify the extension”

How will the Home Office make an inadmissibility decision?

The guidance on inadmissibility of asylum claims sets out that most inadmissibility cases will be identified through evidence collected during the asylum registration processes, including, at interviews. 

The UK no longer has access to the European fingerprint database. In lieu of this, Home Office decision makers are to use “any evidence, verbal or documentary, of claimants having spent time in or having some other connection to another country”. 

The guidance sets out: 

“In particular, officers should check for biometric evidence, which may identify previous encounters in the UK or overseas (for instance, a visa match or a former removal). Other relevant evidence may include (but is not limited to): file evidence of historic Eurodac matches, HGV or vehicle tracking data, passports, legal papers, employment letters, bank statements, business cards, invoices, receipts and other similar documents.

A proper account of the claimant’s immigration history must always be taken to fully understand the chronology and detail of how the person came to the UK, with appropriate follow-up questions where necessary to address any gaps or possible ambiguities in the account.”

Evidence may include:

  • observations by a Home Office officer or another person in an official capacity, on how and where you entered the UK;
  • physical or verbal evidence collected or recorded at the time of your first encounter with a Home Office officer; 
  • documents or other physical evidence submitted by or found on the yourself;
  • your responses in the any interview; 

What if the Home Office rules that an asylum claim is inadmissible? 

The guidance on inadmissibility of asylum claims does infer that there is a right of appeal for inadmissibility decisions. However, as before, the Home Office is able to, and likely to, certify an inadmissible claim. Certifying a claim means that there would be no right of appeal. The Home Office may also make an appeal right exercisable only from abroad.

Despite this, an inadmissible asylum claim may be challenged in the UK through judicial review.

A judicial review lodged in these circumstances is likely to have suspensive effect, which means that removal from the UK could not take place until the proceedings have concluded.

Asylum applicants may also be given the chance to make further representations to the Home Office. It is important to be aware that this is not the same as further submissions which are considered as a fresh asylum claim. 

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