Schedule 4: Removal of asylum seeker to safe country
- Paragraph 1 inserts new subsections 2A, 2B and 2C into section 77 of the 2002 Act. These new subsections create an exemption to section 77, allowing for the removal of an asylum seeker to a safe country, provided the individual is not a national or citizen of that country. Any such removal is only permitted to states where the individual will not be at risk of persecution for reasons of race, religion, nationality, membership to a particular social group or political opinion, in line with the Article 1A(2) of the Refugee Convention, and from where they will not be returned to the country from which they are seeking protection, in keeping with the principle of "non-refoulement". Additionally, individuals may only be removed to states where their Article 3 rights will not be breached and to states which will not remove them to countries where their Article 3 rights may be breached. It is acknowledged that not all countries are signatories to the Refugee Convention, therefore the references to anything being done in accordance with the Refugee Convention in this section refer to the thing being done in accordance with the principles of the Refugee Convention whether or not that country is a signatory to it.
- Paragraph 2 amends section 77(3) to insert a definition of "Convention rights".
- Paragraph 4 makes consequential amendments to Schedule 3 to the 2004 Act, removing the need to certify before a person with a pending asylum claim can be removed.
- Paragraph 5(2) amends paragraph 3(1) of Schedule 3 to the 2004 Act. It provides that a person who has made an asylum claim or a human rights claim will be referred to as "the claimant" for the purpose of the subsequent paragraphs of Schedule 3.
- Paragraph 5(3) inserts new sub-paragraph (1A) into Schedule 3 to the 2004 Act, creating a presumption that a country to which a person may be removed under this section, is considered safe unless proven otherwise by the claimant. "Safe", in this context, means that an individual’s rights under Article 3 of ECHR would not be contravened by their removal to the country and that the country would not send the individual on to another country where their rights under the Convention would be contravened.
- Paragraph 5(4) makes a consequential amendment, removing paragraph (b) from paragraph 3(2), since this is now captured in new paragraph (1A).
- Paragraphs 6 amends paragraphs 5(3) of the 2004 Act in order to simplify the current drafting in relation to asylum claim appeals. It removes 5(3)(b) and 5(5) and amends paragraph 5(4) so that all human rights claims are treated the same.
- Paragraph 7 inserts a definition of "state" into paragraph 1(1). The definition is intended to capture British Overseas Territories.
- Paragraph 8 adds the Republic of Croatia and Liechtenstein to the list of countries considered safe (and listed in the First List of Safe Countries).
- Paragraph 9 inserts a new paragraph (b) under 20(1) to confer a power to the Secretary of State to remove countries from the list of countries considered safe to return to under the Refugee Convention and ECHR. This is in addition to the power the Secretary of State already has under this section to add countries to that list.
- Paragraph 10 amends paragraph 21 as a result of the changes made by paragraph 9. This is to ensure that any additions to the list of safe countries are made by statutory instrument and subject to the affirmative resolution procedure, and that removals from that list are made by statutory instrument subject to the negative resolution procedure.
- Paragraphs 11 to 17 amend paragraphs 5, 10, 15 and 19 and omit paragraphs 6, 11 and 16 of Schedule 3. As currently drafted, these paragraphs allow immigration appeals against the individual’s removal to the safe country to be brought from outside the UK. This section removes all appeal rights in respect of claims that removal to a specified State to which each Part applies would breach the UK’s obligations under the Refugee Convention and in respect of human rights claims brought against removal to the safe country, where the claim is deemed to be clearly unfounded.
- Paragraph 18 makes consequential amendments to the 2002 Act.
- Paragraph 19 sets out transitional provisions: claimants will retain a right to appeal from outside the UK if their claim was certified before the amendments by paragraphs 11, 13, 15 and 17 of this Schedule come into effect.
