How Does The Nationality & Borders Act Affect Inadmissibility In Asylum Claims?

New government regulations on admissibility in asylum claims are now in effect and apply to applications submitted on or after June 28, 2022. These regulations outline the situations in which an asylum application will be delayed while the Home Office attempts to relocate the applicant to another nation so that their application can be evaluated there rather than in the United Kingdom. The new regulations offer more justifications for rejecting asylum petitions. The stated goal of the new regulations is to encourage asylum seekers to file a claim for protection in the first safe country they arrive in. The result may really be limited removals to safe third countries and merely longer processing times for asylum claims.

When Is a Claim Deemed to Be Inadmissible?

Sections 80B and 80C were added to the Nationality, Immigration, and Asylum Act of 2002, by the Nationality and Borders Act of 2022, to give asylum applications a broader definition of what constitutes inadmissibility. According to the revised guidelines, the Home Office only needs a “connection” of some kind to a secure third country to reject an asylum claim and put it on hold for an unlimited period. Section 80C defines the type of connection, which can take one of five forms:

  1. the applicant’s status as a refugee has been confirmed, and they can continue to receive protection.
  2. the applicant is still able to utilise the protection that has been given to them and will not be transferred from the safe third state to another state.
  3. the applicant filed a safe third state claim that has either not yet been resolved or has been rejected.
  4. the applicant was previously present in the safe third state, was qualified to file a pertinent claim there, and it was reasonable to anticipate that they would do so but did not; or
  5. it would have been reasonable to anticipate that the applicant would have submitted a pertinent claim to the safe third state given their specific circumstances.

An applicant will probably need to travel by land through “safe nations” if they don’t already have a valid visa when they enter the UK. The Home Office will likely consider most asylum seekers who file claims after 28 June 2022 to have filed inadmissible applications.

What Steps Are Involved?

A person seeking refuge will be invited to a preliminary “screening” interview after submitting their asylum petition. The caseworker will evaluate if there is any proof that the applicable inadmissibility criteria apply during the interview. Has the person passed through a secure third country, for instance? Do they possess biometric documentation proving a relationship with the third country? The caseworker must refer the case to the Third Country Unit if the response is “yes.” Later in the asylum procedure, referrals to the Third Country Unit are also possible. The interviewing officer can refer the asylum seeker there instead if information indicating a purported connection to a safe third country is first discovered later in the procedure, for example during the main asylum interview. This initial referral decision is solely at the discretion of the referrer and is not subject to any specific standard of proof. The caseworker is told to think about whether “it appears there is a connection” with a secure third country in “broad terms.” This individualised approach runs the risk of causing inconsistent application of the regulation currently.

The guidelines make the following essential information sources that a caseworker should consult while deciding:

  • observations made by a member of the Home Office or another official regarding the person’s means of entrance into the UK and their known or anticipated port of embarkation.
  • physical or verbal proof gathered or recorded during the claimant’s initial meeting with a Home Office officer or another representative.
  • Submitted by the claimant or discovered in their possession, documents, or other tangible proof.
  • responses given by the claimant during an interview; and
  • Fingerprint evidence indicating that the claimant has been to a secure third nation.

The caseworker will also consider whether the situation is in line with the Rwanda policy, especially if there is a higher likelihood that a person will be “promptly removed” if they are referred to Rwanda.

If a referral is made, the Third Country Unit will next review the information in more detail and determine whether the case should be rejected based on the new regulations or returned to the allocation unit. Although it’s unclear what this implies in practise, it’s likely that the Home Office will try to investigate claimants’ travel history again.

A “notice of intent” will be given if the Third Country Unit continues to handle the matter. Although this is not an official judgement, it does provide you the chance to respond with representations. Anyone responding to a notification shall consider the details of the person’s passage through the third nation.

Inquiries concerning a potential repatriation will be made with a third nation by the Third Country Unit, who will also assess the additional evidence. Until the third country consents to removal, it will not be decided whether the case is admissible. The guidance emphasises that the procedure must not result in a “lengthy limbo position,” yet there is no strict deadline by which third nations must agree to admit a person. Litigating against delays is difficult if “length limbo positions” are not defined. A formal determination that the claim is inadmissible will never be made if a third country never agrees to accept the transfer of the asylum seeker, which has proven to be the situation in nearly all instances examined under the inadmissibility process since it was established.

The person’s asylum application will eventually be evaluated in the UK. However, given that the Home Office is not given a deadline for rendering a final inadmissibility determination, this could happen months or even years after the claim was initially filed.

Other legal defences, such as a claim that the removal violates the European Court of Human Rights, may be made at this point if a claim is formally ruled to be inadmissible. The Third Country Unit will need to give human rights claims serious consideration.

Children and Those with Children

Unaccompanied minors seeking asylum are not appropriate for the inadmissibility procedures, according to the most recent Home Office guidance. It also makes it plain that claimants with children should not be subject to the policy without giving appropriate consideration to the legislative guidelines, which outlines important considerations to be made in all Home Office activities involving children. This comprises:

  • the same level of fairness that a British child would experience
  • making the child’s interests the top – though not the only – factor
  • no form of discrimination of any kind
  • prompt handling of asylum requests
  • the determination of those who might be in danger

There is always a chance that minors requesting refuge will be handled as adults, and there have been cases where notifications have been given to parents. Representatives must be careful to inform the Home Office of their statutory obligation in this regard.

Other Helpful Suggestions

Standards or evidence: the Third Country Unit must decide whether a connection to a safe third country is likely or not based on the balance of probability even though there is no specific standard of proof for a caseworker to enter a claimant into the inadmissibility procedure. For the claimant to have a relationship to that third country, it must be more probable than not.

Additional submissions: an exclusion ruling is not an asylum or protection ruling. An individual cannot use the process for future submissions to make further protection claims if they are informed that their case is inadmissible. Any additional submissions may adhere to the Further submissions rules if a human rights application was brought up during the inadmissibility consideration.

Humanitarian defence: any claim for humanitarian protection based on the same facts will also be ruled inadmissible in accordance with paragraph 327F of the Immigration Rules when an inadmissibility judgement has been issued.

Appealing: an inadmissibility determination is not, as was already said, a decision on a protection claims. Judicial Review is the sole means by which it can be contested.

Decisions on asylum have been delayed for a very long period. Only a few months after being put into effect, the government’s new regulations on inadmissibility are already prolonging the time it takes to grant refuge. Inability to establish or find employment in the UK leaves refugees in a precarious situation where they must continue to rely on assistance that would leave them in squalor. Long-term assistance for asylum seekers who are awaiting decisions is heavily taxing the public coffers. The majority of those caught in this limbo are legitimate refugees who will be permitted to stay in the United Kingdom in the long run, according to the government’s own report.

Written by:

Tahir Shahab Khan

Managing Director of Law Lane Solicitors

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