Updates, commentary, training and advice on immigration and asylum law

Statement of changes to the Immigration Rules HC 2631: changes to asylum rules


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The government published a new statement of changes on 9 September. We covered changes related to work and study routes in this post, and changes related to the EU Settlement Scheme in this post.

There are two more changes which are worth noting.

Section 67 leave

Section 67 of the Immigration Act 2016, commonly known as the “Dubs amendment”, obliges the British government to admit some unaccompanied children previously living in the Calais camp. You can read more details about the scheme in this post.

Since July 2018, children admitted to the UK under the Dubs amendments could be granted section 67 leave. However, they first had to apply for asylum. It is only if their application for refugee status or humanitarian protection was refused that they could be granted section 67 leave.

Starting from 1 October 2019, children admitted under the Dubs amendment will be granted section 67 leave upon arrival to the UK and will not need to apply for asylum first (although they can if they wish to).

Third country asylum inadmissibility policy

Asylum claims from applicants who are deemed to come from safe countries can be declared inadmissible (and therefore not considered) by the Home Office. Some of the Rules relating to the return of these asylum seekers are drafted with specific reference to the Dublin Regulation and EU members. The Dublin Regulation will cease to apply if there is a no-deal Brexit, of course. The rules have been changed to reflect the position in the event of a no-deal Brexit, by widening the scope of the rules and ensuring continuity after the UK leaves.

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Precisely because the Home Office is trying to ensure continuity, the change are unlikely to make much difference to the treatment of “third country cases”. Although the UK will no longer be able to send asylum applicants to an EU country relying on the Dublin Regulation, they may still declare a claim inadmissible on the ground that another country is the “first country of asylum”. The definition of “first country of asylum” has been expanded as follows (change in bold):

A country is a first country of asylum, for a particular applicant, if:

(i) the applicant has been recognised in that country as a refugee and they can still avail themselves of that protection; or

(ii) the applicant otherwise enjoys sufficient protection in that country, including benefiting from the principle of non-refoulement; or

(iii) the applicant could enjoy sufficient protection in that country, including benefiting from the principle of non-refoulement because:
(a) they have already made an application for protection to that country; or

(b) they could have made an application for protection to that country but did not do so and there were no exceptional circumstances preventing such an application being made, and

(iv) the applicant will be readmitted to that country.”.

In other words, even after Brexit, if an asylum claimant passed by an EU country and claimed asylum or could have claimed asylum there, their claim in the UK may still be deemed inadmissible.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

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Nath Gbikpi

Nath Gbikpi

Nath is an immigration lawyer at Leigh Day Solicitors and a Visiting Fellow in Practice at the London School of Economics.