An unworkable new regime: ‘inadmissible’ asylum seekers
“Inadmissible asylum seekers will have to endure the limbo of the “reasonable period” until the Home Office grudgingly agrees to consider the claim in the UK.”
Immigration lawyer Lauren Butler considers what the new Home Office inadmissibility policy means for asylum seekers.
Before January 2021, whenever my mobile rang before eight on a Friday morning, it meant that another of my asylum-seeking clients had been taken from their accommodation and detained pending removal under the Dublin III policy. They would not face removal to Syria or Eritrea or Iran – since their asylum claims were still pending – but rather to another European country where the Home Office believed they had claimed or should have claimed asylum.
At the end of last year, when the Dublin III treaty and all other aspects of the Common European Asylum System ceased to apply in the UK, we hoped for more stability. However the new domestic-law policy of inadmissibility is wholly unworkable and breaches the 1951 Refugee Convention.
Who is “inadmissible”?
According to paragraphs 345A-345D of the Immigration Rules HC395, the Secretary of State can now refuse to consider an asylum claim if she finds that a “safe third country” should be responsible for the claim. As summarised in the Home Office published guidance: Inadmissibility: safe third country cases version 5.0 on 31 December 2020:
“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”.
Children are excluded, but any non-EU national adult lodging an asylum claim after 1 January 2021 will be subject to these Rules.
How will the Home Office decide who is inadmissible?
An inadmissibility decision may be made at any point in the asylum process – from the initial claim to the substantive interview. No longer having access to the Eurodac fingerprint database, Home Office decision-makers will have to rely on any other evidence they can find of “presence in” or “connection to” to a safe third country.
What is a “safe third country”?
The definition of “safe third country” is set out at paragraph 345B: simply, any country where the claimant would not face persecution or harm, and where they have lodged or may lodge an asylum claim in accordance with the Refugee Convention. The rules are silent on whether the country must be an actual signatory to the Convention.
What happens if an asylum applicant is found to be inadmissible?
Once an inadmissibility decision is made, the Secretary of State will attempt removal to the safe third country. Although the published policy refers to a six-month time limit to do so, the Rules themselves specify only a “reasonable time frame”. Once the unspecified reasonable time frame elapses without removal, then the Secretary of State must go on to consider the asylum claim here.
Challenges will only be possible through a Judicial Review at the High Court.
Incompatible with the Refugee Convention
These procedures are completely unworkable. It is not possible to remove someone to a country of which they are not a national unless that country agrees to receive them. Is the Home Office intending to enter into mass removal agreements with other “safe” countries? Or undertake extensive bilateral negotiations on each proposed removal?
In practical terms, actual removals under this procedure will be extremely rare. The real outcome for asylum seekers will be interminable delays. Asylum seekers who are found to be inadmissible will have to endure the limbo of the “reasonable period” until the Home Office finally and grudgingly agrees to consider the claim in the UK.
These needless delays, and the attendant poverty and vulnerability, violate the Refugee Convention, whose obligations must be construed to include both refugees and those seeking asylum.
We must challenge this policy and ensure that asylum seekers are given access to a fair and timely consideration process.