Asylum and Immigration (Treatment of Claimants, etc.) Act 2004

Section 27: Unfounded human rights or asylum claim

127. Section 27 amends section 94 of the Nationality, Immigration and Asylum Act 2002. Section 94 provides that a person may not bring an appeal while in the United Kingdom solely by virtue of having made an asylum or human rights claim where the Secretary of State certifies that claim as clearly unfounded. It also provides that where the Secretary of State is satisfied that an asylum or human rights claimant is entitled to reside in a State listed in subsection (4) he shall certify the claim as clearly unfounded unless satisfied that it is not. Subsection (5) provides an affirmative order-making power under which a State or part of a State may be added to the list in subsection (4) where certain conditions are met. Those conditions are that:

a)

there is in general in that State or part no serious risk of persecution of persons entitled to reside in that State or part, and

b)

removal to that State or part of persons entitled to reside there will not in general contravene the United Kingdom’s obligations under the Human Rights Convention.

128. Section 27 extends the order-making power in section 94. It provides that where the conditions in section 94(5) are met for a “description of person” within a State or part of a State then that State or part may be added to the list in subsection (4) in respect of that description of person only. Examples of what might constitute a “description of person” are given in new subsection (5C) of section 94.

129. The effect of using the power in section 27 to add a State or part to the list in section 94(4) is that where an asylum or human rights claimant is both entitled to reside in the State or part added and falls within the defined “description of person” for that State or part, the Secretary of State shall certify the claim as clearly unfounded unless satisfied that it is not. The purpose of this section is to provide extra flexibility to identify groups of persons within a State or part for whom conditions are generally safe.

130. Section 27(4) deletes from the list in section 94(4) of the 2002 Act the 10 States which joined the European Union on 1 May 2004. From that date, the appeal rights of a national of one of those State who makes an asylum claim have been governed by different legislation (at present, the Immigration (European Economic Area) Regulations 2000 as amended by the Immigration (European Economic Area) (Amendment No.2) Regulations 2003).

131. Section 27(7) disapplies the requirement in section 94(3) of the 2002 Act to certify a clearly unfounded asylum claim made by a claimant entitled to reside in a state or part designated under section 94(4) where that claimant is subject to extradition proceedings or has been arrested in anticipation of extradition proceedings pursuant to the Extradition Act 1989 or the Extradition Act 2003. The effect of section 27(7) is that a claimant who is subject to extradition proceedings and would normally have a non-suspensive right of appeal by virtue of section 94 of the 2002 Act will have a suspensive right of appeal against any refusal of his asylum or human rights claim.

132. Section 27 also amends section 94 of the 2002 Act to provide that an asylum or human rights claimant will not benefit from a suspensive right of appeal in reliance on section 92(2) against an immigration decision of a kind in section 82(2)(c), (d) or (e) of the 2002 Act if the Secretary of State certifies the asylum or human rights claim as clearly unfounded.