Tomos Owen
With the first day of 2021 marking our exit from the European Union this was always going to be a year of significant change, and tightening immigration, one of the key promises of the Brexit campaign, was always going to be one of the first of these changes to occur. Unsurprisingly, the government moved to do just that in December when they introduced a change to the rules surrounding asylum cases. Although despite the usual fanfare and rhetoric, these rule changes were published online without any public announcement. This is always an indication that there needs to be extra scrutiny as silent rule changes tend to suggest that the government knows that the change would not be well received.
The new rules stipulate that an asylum claim will be deemed inadmissible if an individual has travelled through, or has a connection to, a “safe third country”. The UK government will also be in a position to remove asylum seekers to any other “safe third country”, if that country agrees to receive them. The idea behind these rule changes is that the UK will be able to restrict the number of asylum claims that are admissible whilst maintaining their obligations under the 1951 Refugee Convention. Although whether this is actually in keeping with the obligations of the Refugee Convention is somewhat unclear; the Convention remains silent on the concept of “safe third countries”. It is possible that those drafting the Convention 70 years ago did not foresee that some countries would now so freely try to circumvent the rules which they themselves signed up to.
Despite the change of rules, the government will still face two major hurdles when it comes to deporting asylum seekers to any third country. The first is the concept of non-refoulement which has been addressed through this blog before. This concept ensures that a country does not deport an asylum seeker if that asylum seeker would then be subject to torture, inhumane or degrading treatment and other irreparable damage. The Refugee Convention does stipulate that non-refoulement must be adhered to. This can lead to a situation whereby an asylum seeker has travelled through a country which, on the face of it, is considered a safe country, but deportation back to that country would fall short of the obligations set out in the Refugee Convention. The UK government was seen to tread this very line when they deported 11 Syrian asylum seekers back to Spain last year only for them to be left destitute. This led to a further planned deportation being halted by the courts, an event which may become even more common this year.
The other major hurdle when it comes to “safe third country” deportations is that the receiving country has to agree to readmit the asylum seeker. The Home Office’s own guidance states that if a third country has not agreed to readmit an asylum seeker within six months of the claim being registered, and if there are no realistic prospects that this will happen, they will have to admit the case for a substantive review. As of writing this, the UK government has not negotiated any return agreement with any country so the likelihood that returns would be facilitated are slim. This is particularly the case with European countries as, following Brexit, policies surrounding tackling refugee flows between the UK and the EU are likely to be complex. France already has almost three times as many refugees as the UK. It is hard to imagine a situation where France would jump at the idea of negotiating a return agreement for asylum seekers.
Without such agreements the new policy introduced by the UK government will create significant hardship for asylum seekers. It will significantly delay claims as many will not even begin to be processed for six months. Asylum seekers in the UK are provided only £37.75 per week and are significantly restricted in their actions. Given the already lengthy asylum process, this new policy will only create more financial hardship for those that have come to the UK seeking our protection. This policy will likely have an effect on the health of asylum seekers too. Asylum seekers in the UK have been noted as five times more likely to suffer from mental health problems in comparison to the general population. Prolonging the asylum process will only deepen this endemic. Ironically, given that the Home Office is introducing this policy to tighten asylum rules, the delays in processing claims will also mean that asylum seekers that do not have genuine claims will get to stay in the UK for longer than they previously would have. The policy as a whole looks to be ill-advised and fuelled by ideology rather than practicality.
Overall, the new policy is just another designed by the Home Office to fix the “broken” asylum system. In reality, it only adds another layer of complexity and uncertainty for asylum seekers that reach the UK. The pressure will now be on the government to negotiate return agreements, but whether this is achievable is debatable. This is particularly so with EU countries which will likely make up the majority of third countries that asylum seekers would have travelled through. The focus should rather be put on speeding up the asylum process so genuine asylum seekers can have their status granted and begin integrating into life in the UK as soon as possible. The only issue is that motivation to approach asylum matters in this way is clearly lacking.
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