By Zeyu Huang
The UK government has recently introduced new regulations under which lowers the bar for ruling an asylum claim inadmissible. An asylum-seeker is a person who has left their country and is seeking protection from persecution and serious human rights violations in another country, but who hasn’t yet been legally recognized as a refugee and is waiting to receive a decision on their asylum claim. Seeking asylum is a human right. Therefore, everyone should have the right to enter another country to seek asylum.
The new rules mean the Home Office does not have to consider the claim in the UK if they rule that another country – a “safe third country” – should in fact be responsible for your asylum claim.
What are the new sections of the Nationality and Borders Act 2022 which relate to inadmissible asylum claims?
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. As pursuant to the new rules, Home Office may declare an asylum claim inadmissible and thereby hold it for an indefinite period, on the ground that there is a connection to a safe third State.
According to Section 80C, there are five conditions of the meaning of the connection to a safe third country:
1. The claimant has been recognised as a refugee in the safe third county and obtained the access to protection under the Refugee Convention in that State.
2. The claimant has otherwise been granted protection in a safe third State. He would not be sent from the safe third State to another State, unless it is in accordance with the Refugee Convention or Article 3 of the Human Rights Convention.
3. The claimant has made relevant claim to the safe third State and the claim 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. And it would be reasonable to expect them to make such a claim and they failed to do so.
5. In the claimant’s particular circumstances, they would have reasonably been expected to have made a relevant claim to the safe third state
The definition of “safe third State” is in Section 80 B:
(4) For the purposes of this section, a State is a “safe third State” in relation to a claimant if:
(a) the claimant’s life and liberty are not threatened in that State by reason of their race, religion, nationality, membership of a particular social group or political opinion,
(b) the State is one from which a person will not be sent to another State:
(i)otherwise than in accordance with the Refugee Convention, or
(ii)in contravention of their rights under Article 3 of the Human Rights Convention (freedom from torture or inhuman or degrading treatment), and
(c)a person may apply to be recognised as a refugee and (if so recognised) receive protection in accordance with the Refugee Convention, in that State.
What do the new rules on inadmissibility mean?
In practice, unless a claimant arrives in the UK on a valid visa, asylum seekers 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.
Moreover, according to Section 80B, a declaration that an asylum claim is inadmissible is not a decision to refuse the claim and, accordingly, no right of appeal under section 82(1)(a) (appeal against refusal of protection claim) arises. It can therefore only be challenged by Judicial Review.
There have been delays in asylum decisions from Home Office for a long time. The new regulations of Sections 80B and 80C on inadmissibility have already caused further delays in asylum decisions. Such delays render their inability of settlement and work in UK, which exacerbates their poverty. 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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