Briefing: the inadmissibility process in asylum claims

The inadmissibility process is what the UK has used in recent years to exclude a person’s asylum claim from being considered and decided in the UK, so that they can then be removed to a third country (first Rwanda and now France).

The current inadmissibility process in asylum claims was introduced, first through post-Brexit changes to the immigration rules, then in primary legislation by the Nationality and Borders Act 2022. The Act introduced a new section 80B to the Nationality, Immigration and Asylum Act 2002 which applies to asylum claims made on or after 28 June 2022. Things then got quite complicated with the Illegal Migration Act 2023 but we are now in a position of certainty and it is section 80B which will be applied to claims the Home Office is seeking to exclude from the UK’s asylum system.

The declared policy behind the 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 Colin’s 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. All that is necessary for the Home Office to declare an asylum claim inadmissible 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:

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

In practice, unless a claimant arrives in the UK on a valid visa, they are likely to have travelled across land through “safe countries”. Most asylum seekers making claims after 28 June 2022 could possibly 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 for consideration of inadmissibility action 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.

The caseworker is instructed to consider, in “broad terms”, whether or not “it appears there is a connection” with a safe third country. The standard of proof for this decision is the balance of probabilities.

The main evidence used by the Home Office to consider whether to refer the case to the Third Country Unit will be the immigration history given by the claimant during their screening interview. The guidance suggests some other key sources of information a caseworker could look at to make their decision:

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;
physical or verbal evidence collected or recorded at the time of the claimant’s first encounter of a Home Office officer or other official;
documents or other physical evidence submitted by the claimant or found in their possession
the claimant’s responses in an interview (for instance, the screening interview, a supplementary screening interview, or substantive asylum interview); and
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 Europe’s asylum fingerprint database, Eurodac, to match data from before 2020, where relevant).

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. The deadline for response is seven days for those who are detained and 14 days for anyone who is not detained. Claimants may ask for an extension of time to respond and, following a challenge by Asylum Aid in the Rwanda cases, the guidance was amended to say that:

The grant of an extension is not necessarily an exceptional event: each request for an extension must be carefully considered on a case-by-case basis, taking account of the stated need for the extension and the particular circumstances of the claimant and their case, and the overriding principle of fairness.

For more on this, read Alison Pickup’s post on procedural fairness and extensions of time. Where an extension of time is granted, the claimant will be notified in writing. Where the request is rejected, the Home Office must explain what factors were considered and how the decision was reached. It may be possible to challenge a rejection through judicial review.

Responses to a notice of intent should include 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 guidance is prescriptive about the format of the decision letter:

Each inadmissibility decision letter must, as a minimum, set out clearly and with reasoning and reference to evidence, the following key points:
the safe third country with which the person is believed to have a relevant connection
why it would have been reasonable to expect the person to claim asylum in a safe third country (if the person was present in or has another connection to a country in which it would have been reasonable to expect them to have claimed asylum – this should refer to the language in the relevant decision framework)
why the country of connection would be regarded as safe in the context of the individual’s particular circumstances (this may, where relevant, include reference to the safe third countries listed in paragraph 2 of Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc. ) Act 2004 (2004 Act), and the presumptions in the part, and it may include consideration of European Convention on Human Rights (ECHR) issues, or reference to consideration of those issues if they are addressed fully elsewhere in the decision)
the factors known or representations made by the claimant relevant to the exercise of discretion on whether to proceed to declare the claim inadmissible, and with reference to each point, why inadmissibility is nonetheless considered appropriate
the safe third country to which removal is proposed (if it is different from the country of connection)
why the third country of removal is regarded as safe, in the context of the individual’s particular circumstances, including addressing any ECHR claims regarding serious harm (again, where relevant, this must include reference to the safe third countries listed in paragraph 2 of Schedule 3 to the 2004 Act and any presumptions which must be applied)
why removal would be appropriate in the context of any other ECHR claims the person has raised
certificates applicable to the country of removal for Refugee Convention purposes
certificates or appeal rights applicable to any ECHR claims made

If a claim is formally declared inadmissible, the decision is not appealable but a judicial review challenge may be possible, depending on the merits. If the claim is not deemed inadmissible, the person’s asylum claim will instead be considered in the United Kingdom.

Children and those with children

The 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 considering the statutory guidance on section 55 that sets out key principles to take into account in all Home Office activities involving children. This includes:

fair treatment which meets the same standard a British child would receive
the child’s interests being made a primary, although not the only, consideration
no discrimination of any kind
timely processing of asylum applications
identification of those that might be at risk from harm

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

Conclusions

The use of the inadmissibility process in the Rwanda cases caused a large level of chaos in the asylum system, from which it is still recovering. Everyone who was subject to that process has since had their asylum claim admitted to the UK’s asylum system. It is obviously still early days with the new UK/France agreement, but it seems that the Home Office may be more selective with their attempts to deem claims inadmissible this time around, albeit that they have not provided any details on how a selective process will be operated.

This post was first published in September 2022 and has been updated by Sonia Lenegan so that it is correct as at the new date of publication.