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Briefing: Inadmissibility in asylum claims after the Nationality and Borders Act 2022

Posted: 15th September, 2022

The government’s new rules on inadmissibility in asylum claims have come into force and now apply to asylum claims made on or after 28 June 2022.

These rules set out the circumstances where an asylum claim will be put on hold while the Home Office tries to remove the asylum seeker to some other country for their claim to be considered there, instead of in the United Kingdom. The new rules provide broader grounds for treating asylum claims as inadmissible.

The declared policy behind the new rules is intended to encourage asylum seekers to make a protection claim in the first safe country they reach. In reality, the effect may well be simply to increase delays in the asylum process with minimal removals to safe third countries actually taking place.

For definitions of “inadmissibility” and “safe third country” check out our previous briefing.

When can a claim be treated as inadmissible?

The Nationality and Borders Act 2022  inserted sections 80B and 80C into the Nationality, Immigration and Asylum Act 2002 to provide a wider scope for asylum claims to be treated as inadmissible. Under the modified rules, all that is necessary for the Home Office to declare an asylum claim inadmissible – and thereby put it on hold for an indefinite period – is a “connection” of some sort to a safe third country. The type of connection is defined in section 80C and can take any of five forms:

  1. the claimant has been recognized as a refugee and remains able to access protection;
  2. the claimant has been granted protection and would not be sent from the safe third state to another state, and remains able to access that protection;
  3. the claimant has made a claim in a safe third state which has not yet been determined or has been refused;
  4. the claimant was previously present in and eligible to make a relevant claim to the safe third state, it would be reasonable to expect them to make such a claim and they failed to do so; or
  5. In the claimant’s particular circumstances, they would have reasonably been expected to have made a relevant claim to the safe third state.

In practice, unless a claimant arrives in the UK on a valid visa, they will likely need to travel across land through “safe countries”. Most asylum seekers making claims after 28 June 2022 are therefore likely to be treated by the Home Office as having made an inadmissible asylum claim.

What is the procedure?

When an asylum seeker makes their asylum claim, they will be invited to an initial “screening” interview. At the interview the caseworker will consider whether there is any evidence of the inadmissibility criteria that apply. For example, has the individual travelled through a safe third country? Do they have biometric paperwork indicating a connection to the third country?

If the answer is “yes”, the caseworker must refer the case to the Third Country Unit. Referrals to the Third Country Unit can also take place later in the asylum process. If information suggesting an alleged connection to a safe third country only emerges later in the process, for example at the main asylum interview, the interviewing officer can refer the asylum seeker then instead.

There is no formal standard of proof against which to make this initial referral decision and it is entirely discretionary. The caseworker is instructed to consider, in “broad terms”whether or not “it appears there is a connection” with a safe third country. There is a danger that this individualised approach will lead to a lack of uniformity in how the policy is applied at this stage.

The guidance suggests some key sources of information a caseworker could look at to make their decision:

  1. observations by a Home Office officer or another person in an official capacity, relating to the person’s method and place of entry to the UK and their known or probable place of embarkation;
  2. physical or verbal evidence collected or recorded at the time of the claimant’s first encounter of a Home Office officer or other official;
  3. documents or other physical evidence submitted by the claimant or found in their possession
  4. the claimant’s responses in an interview (for instance, the screening interview, a supplementary screening interview, or substantive asylum interview); and
  5. fingerprint evidence showing the claimant to have spent time in a safe third country (for instance, through the biometric data-sharing process with the USA, Australia, Canada and New Zealand, the bilateral fingerprint sharing process with the Republic of Ireland, or any similar process, or using Europes asylum fingerprint database, Eurodac, to match data from before 2020, where relevant).

The caseworker will also consider if the case is suitable for the Rwanda policy, particularly where there is a greater chance that an individual is “promptly removed” if they are referred to Rwanda. For more information on the Rwanda policy, read this article.

If a referral is made, the Third Country Unit will then look more closely at the evidence and decide whether the case should be considered inadmissible under the new rules, or should be sent back to the allocation unit. What this means in practice is unclear but is likely that the Home Office will attempt to make further checks on claimants travel history.

If the case remains with the Third Country Unit, a “notice of intent” will be issued. This is not a formal decision but it does offer an opportunity to make representations in response. Anyone responding to a notice should consider the circumstances of the individual’s travel through the third country. For example, was the claimant trafficked and under the control of a trafficker or agent? Was the claimant particularly vulnerable? Does the claimant have children?

The Third Country Unit will undertake a review of the further evidence and make enquiries with a third country about a potential return. A decision that the case is inadmissible will not be made until the third country agrees to removal. There is no rigid timescale within which third countries must agree to admit a person and the guidance states that the process must not create a “lengthy limbo position”. Without a definition of what a “length limbo position” means, litigating against delays is challenging. If a third country never agrees to accept transfer of the asylum seeker, which has proven to be the case for almost all cases considered under the inadmissibility process since it was launched, then a formal decision that the claim is inadmissible will never be made.

Eventually, the person’s asylum claim will instead be considered in the United Kingdom. But this may be months or even years after the claim was first made as no time limit is imposed on the Home Office for making a final inadmissibility decision.

If a claim is formally declared inadmissible, other legal arguments may be raised at this stage, such as a claim that the removal is a breach of rights under the European Court of Human Rights. Human rights claims will need to be substantively considered by the Third Country Unit.

Children and those with children

The latest iteration of the Home Office guidance confirms that unaccompanied asylum-seeking children are not suitable for the inadmissibility processes.

It also makes clear that the policy should not apply to claimants with children without due regard to the statutory guidance that sets out key principles to take into account in all Home Office activities involving children. This includes:

There is always a risk that asylum seeking children are treated as adults and there are also instances where notices have been issued to those with children. Representatives should take care to provide representations to the Home Office regarding their statutory duty in this respect.

Other useful tips

Standards or proof

Whilst there is no formal standard of proof for a caseworker to enter a claimant into the inadmissibility process, when the Third Country Unit considers whether a connection to a safe third country is likely or not they must make this decision on the balance of probabilities. In other words, it must be more likely than not that the claimant has a connection to that third country.

Further submissions

An inadmissibility decision is not an asylum or protection decision. If an individual receives confirmation that their case is inadmissible they cannot use the further submissions process to make further protection representations. If a human rights application was raised during the inadmissibility consideration this must be fully considered and any subsequent representations can follow the Further submissions policy.

Humanitarian Protection

Where an inadmissibility decision is taken, any humanitarian protection claim made on the same facts will also be inadmissible under paragraph 327F of the Immigration Rules.

Appealing

As mentioned above, an inadmissibility decision is not a decision on a protection claim. It can therefore only be challenged by Judicial Review.

Conclusions

For a long time there have been delays in asylum decisions. The government’s new rules on inadmissibility have only been in force for a few months but are already causing additional delays in asylum decisions. Refugees are left in limbo, unable to settle or work in the United Kingdom, continuing to rely instead on destitution-level support. Prolonged support of asylum seekers awaiting decisions is pulling hard at the public purse. According to the government’s own report, the majority of individuals subjected to this limbo are genuine refugees who will be allowed to remain in the United Kingdom in the long term.

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