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India and Georgia to be added to the list of ‘safe’ countries

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Draft regulations have been laid which will add India and Georgia to the list of ‘safe’ countries at section 80AA of the Nationality, Immigration and Asylum Act 2002. The Nationality, Immigration and Asylum Act 2002 (Amendment to List of Safe States) Regulations 2024 need to be voted through by both Houses of Parliament and it appears that the expectation is that will happen next year.

The section 80AA list of ‘safe’ countries was introduced by section 59 of the Illegal Migration Act 2023 and was brought partly into force on 28 September 2023, for the purpose of making regulations. There was speculation at the time that the reason for that was so that the list of ‘safe’ countries could be expanded, and now we see that was correct. Presumably the rest of section 59 (including the ‘safe’ list and changes to section 80A of the 2002 Act) will be brought fully into force once these regulations have been approved by parliament.

What does it mean if a country is on the ‘safe’ list?

Section 80A of the 2002 Act currently says that any asylum claims made by EU nationals will be deemed inadmissible unless there are exceptional circumstances. When section 59 of the Illegal Migration Act is fully enacted, section 80A will be expanded beyond EU nationals and will apply to nationals of all countries on the list at section 80AA. If a national of one of the countries on the list claims asylum and/or makes a human rights claim, that claim will be deemed inadmissible. They can then be returned to their own country unless the Home Secretary considers there are “exceptional circumstances” which mean the claim should be considered.

The section 80AA list is also referred to in the Illegal Migration Act 2023 at section 4 (unaccompanied children and power to provide for exceptions) and section 6 (removal for the purposes of section 2 or 4), although neither of those sections are in force yet. Section 6 provides that where the duty to remove applies, a person who has claimed asylum cannot be returned to their home country unless it is on the section 80AA list (see sections 6(8) and(9)). They could be returned to a country listed in the schedule to the Act, but that would require those countries to agree to accept third country nationals.

Why are India and Georgia being added?

The asylum statistics for April 2022 to March 2023 show that 17 Indian nationals were granted refugee status or humanitarian protection. In the same period there were 419 refusals and 1,419 withdrawals of asylum claims by Indian nationals. For Georgian nationals, there have been 14 grants, 52 refusals and 231 withdrawals for the twelve months from April 2022 to March 2023. The number of Georgians claiming asylum (as the main applicant) was 1,391 and for India it was 4,403 main applicants. This has presumably been deemed too high by the Home Office.

There are two separate reasons for the government to add countries to the list. The first one is that if the duty to remove was brought into force, an Indian national who claimed asylum could not be returned to India if it was not on the section 80AA list but they could be sent to Rwanda (if there was a functioning transfer agreement in place). As there is no functioning agreement, it makes more sense for the government to add India to the section 80AA list so that its nationals can be returned there if the duty to remove is brought in.

The second reason is that even without the duty to remove, adding these countries to the list means that asylum and human rights claims made by their nationals must be deemed inadmissible under section 80A of the 2002 Act, absent “exceptional circumstances”.

What is concerning is the fact that the UK does recognise nationals from both India and Georgia as refugees. There is provision in the Act for a national to resist return to their home country even if it is on the section 80AA list but “exceptional circumstances” are needed.

It seems at least possible, if not likely, that this change will result in some people being returned by the UK government to persecution.

Conclusion

It is difficult to see how the duty to remove can be brought into force while there is nowhere to send every person who arrives here (regardless of what happens with the Rwanda case next week). Increasing the use of the ‘safe’ country list and the certification provisions in the amended section 80A may be viewed by the Home Office as a more feasible way to use the Illegal Migration Act 2023. So we may see this ‘safe’ country list expanded further in future and the Home Office deeming more cases inadmissible using these provisions.


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Sonia Lenegan

Sonia Lenegan is an experienced immigration, asylum and public law solicitor. She has been practising for over ten years and was previously legal director at the Immigration Law Practitioners' Association and legal and policy director at Rainbow Migration. Sonia is the Editor of Free Movement.

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