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How the UK will seek to hold other countries responsible for asylum claims post-Brexit

Posted on 26 January 2021

In December 2020 and, in light of the UK's imminent exit from the European Union, the UK Government announced new rules on the processing and handling of asylum claims to take effect from 1 January 2021. These changes have important ramifications for those who have already claimed asylum in the UK and those who may need to claim asylum in the future.

Background to the changes

During the UK's membership of the European Union, the UK's asylum system was inextricably tied to the Common European Asylum System, also known as the Dublin III Regulation. The purpose of this Regulation was to try to ensure that only a single state (one of the EU member states and Iceland, Norway, Liechtenstein or Switzerland) was responsible for each asylum application.

The Dublin III Regulation set out a hierarchy of considerations relating to the allocation of asylum applications between states. These range from family considerations, whether the individual has recently been in possession of a visa or residence permit in the relevant member state and whether they entered the EU unlawfully. Refugee family reunion is at the top of this hierarchy and is given greater weight specifically.

It also allowed the UK to return certain asylum seekers to EU Member States, if the state involved was the applicant's entry point to the EU. Due to Brexit, the Dublin III Regulation is no longer applicable to the UK.

Changes by the Home Office and their implications

In place of the Dublin III Regulation the Home Office has introduced the inadmissibility procedure, guidance to which can be found here.

In short, where an individual is deemed to have travelled through or had a connection to a previous "safe third country" their claim to asylum may be considered as inadmissible. This is the case "even if that particular country will not immediately agree to the person's return".

If a case is inadmissible, that means that the Home Office will not undertake substantive casework to assess the merits of that application. It appears that even the referral of the case to be considered as inadmissible will pause consideration of the case.

If a claim is considered inadmissible, the new rules permit the applicant's "removal to any safe third country that will take them", not just the specific country that the applicant has a connection to.

The Home Office's success in removing applicants whose claims are inadmissible to "safe" third countries around the world will depend on the UK's ability to strike these "return" agreements with such countries. It remains to be seen how successful the UK will be in this endeavour but, in the meantime, it seems likely that applicants can expect more delay and disruption in the processing of their applications.

Where the fear of persecution is one that has developed over time but only materialised in the UK, it will be essential to evidence this as part of the overall strategy in any claim to asylum. Individuals to whom these circumstances apply are described as a "refugee sur place". In short, these individuals leave their country of origin without the expectation that they will need to claim asylum, but at a later date they develop a fear of persecution, often due to a threat later coming to light.  These individuals will often have undertaken legitimate travel through other "safe" countries in the intervening period between leaving their country of origin and arriving in the UK. As a result, it will be necessary to clearly demonstrate when the relevant fear arose.

In addition, where there are developments in the persecution or the threat of it that occurred while the individual was travelling, these claims could still fall under the inadmissibility procedure. We see this kind of issue arising most often in political asylum claims where it is difficult for an individual to pinpoint when they realised that they were facing a legitimate investigation, but rather the investigation is the mode of persecution. 

The changes in the inadmissibility procedure are significant to all those individuals seeking asylum, regardless of whether applications were lodged before or after Brexit finally occurred on 31 December 2020.

Caseworker guidance on the changes suggests that the Home Office could apply the new rules to existing asylum applications lodged before 11pm on 31 December 2020. However, this "is unlikely to be appropriate if the claimant would not have been eligible to receive a similar decision under the previous rules, or if the person's progress through the asylum system has been substantially delayed compared to average decision timescales."

Conclusion

Individuals with a pending asylum claim or those looking to claim asylum in the UK, should seek substantive advice to examine what, if any, impact the new changes will have on their claims. As part of this process, it will be necessary to undertake a detailed examination of all the relevant facts, including where and when an individual's fear of persecution first arose, as this will be relevant to the admissibility of their claim and, ultimately, their chances of success.

For further queries on asylum applications please contact Maria Patsalos or Lucy Humphreys. Maria and Lucy work together on high profile and politically sensitive applications in particular. They are aware of the changing nature of how and when a fear for an individual arises and would be happy to discuss existing, and potential future cases.

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