On Thursday afternoon the Home Office published a new statement of changes to the Immigration Rules: HC 1043. These rules focused on changing the rules on inadmissibility of asylum claims, which confirm when someone can or cannot make a valid asylum claim in the UK.
So what has changed?
The inadmissibility rules focus on asylum seekers who have either already obtained protection status in another country or those who are deemed to have travelled through a ‘safe third country’. The rules currently establish a two stage test, first that the asylum seeker falls into one of the categories listed in the rules for inadmissibility and secondly that the proposed country of return will actually accept them.
The changes will see the second limb of adapted to an assessment of whether removal to a ‘safe third country’ within a reasonable period of time is unlikely. This appears to expand the Home Office’s remit to declare a claim inadmissible as they no longer require an accepting state at the point of inadmissibility, they will now only require to show removal is not unlikely to occur in a reasonable period of time.
Reasons we should be worried!
Statement of changes to the immigration rules also include explanatory memorandums. This is where the Home Office paints a picture of why they are implementing the changes, and it is within this statement of changes explanatory memo that we see something that is concerning.
The memo explains these changes are
“to pursue… removal not only to the particular third countries through which the applicant has travelled, but to any safe third country that may agree to receive them.”
This suggests the Home Office have an intention to remove asylum seekers to any country who would be willing to accept them and where an asylum claim could be processed. This is not a new tactic. Earlier in the year we heard of plans to remove asylum seekers to Ascension Island in the Atlantic Ocean.
Australia has previously operated a policy where asylum seekers were housed on small islands in the Pacific such as Nauru, these camps have been closed owing to widespread human rights violations.
The EU has also reached agreements with Libya, providing them with resources to prevent sea crossings and which have been used to support detention facilities in the country. This again has attracted criticism from INGOs for human rights abuses.
The explanatory memo certainly suggests that the Home Offices future policies may be in line with such ideas; and it makes it obvious there is at least an intention to pursue methods of the UK wiping its hands of its international obligations to support asylum seekers and refugees.
Reasons we maybe shouldn’t be so worried!
This amendment to the Immigration Rules is necessary because as of the 1st January 2021 the UK will no longer have access to the Dublin Regulation (you are probably quite bored of hearing about this if you pay attention to the Broudie Jackson Canter Immigration twitter).
Leaving the EU and Dublin leaves the Home Office with no ability to return asylum seekers to the first member state they arrived in. As it currently stands, days before Brexit, there is no agreement between the UK and the Dublin member states on extending the UK’s ability to use the system.
The Home Office can state as much as it likes that claims should have been made in other countries and that they will return asylum seekers to these countries, but without an agreement on the terms to do so they will be unable to do so. International law 101: individual countries cannot unilateral bind other countries into agreements.
Without an agreement it is fair to say European nations will not simply accept the return of an asylum seeker because the Home Office claims that they should have claimed asylum in that said country. Viewed in this light the amendment seems to be mostly bluster, and considering the Home Offices recent antics regarding twitter videos this is hardly surprising.
These amendments will provide the Secretary of State and her party the opportunity to give the impression of being tough on migration; and will equally allow them to blame activist lawyers and do-gooders when it does not work.
Yet again the real losers in this scenario will be those fleeing war and persecution, coming to the UK to attempt to rebuild their lives. Despite a fall in applications, the back log of asylum seekers waiting for a decision is already at a record high (over 46,000 from figures released last month). The likelihood is that the Home Office will eventually have to accept claims but that those seeking protection will have been stuck awaiting this conclusion far longer than necessary. The new rules on inadmissibility, and the legal challenges they are likely to create, will create further delays in the asylum process and ultimately leave many vulnerable people in limbo.
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