legal and social conditions for asylum seekers and refugees in ...

applicants, but could be invoked for a person who claims very soon after entering the country
illegally.
The decision to return the applicant to a “safe third country” is normally taken within 24 hours of
arrival, while the applicant remains at or near the port of arrival, and the asylum seeker will be
refused leave to enter on the grounds that his/her claim has been certified to be without
foundation (see “Unfounded (“certified”) applications” below). Reasons for refusal are given in
writing, and the decision is notified orally to the applicant by an immigration officer.
The Asylum and Immigration Appeals Act 1993 introduced a right of appeal, with suspensive
effect, for all asylum seekers whose applications for asylum were refused on “safe third country”
grounds. Appeals are submitted to the Immigration Appellate Authority, where they are heard by
special adjudicators under a fast-track procedure (see “Unfounded (“certified”) applications”,
below). These rights were considerably restricted by the Asylum and Immigration Act 1996, but
as successful applications direct to the High Court for judicial review of “safe third country”
decisions have multiplied rapidly since 1998, further restrictions are to be introduced under the
Immigration and Asylum Act 1999.
At present the law provides:
– that appeal rights are now no longer suspensive if an asylum seeker is being returned to a
third country which is a member of the EU. The appeal can only be lodged once the applicant
has left the UK and it must be lodged within 28 days after departure. The appeal has to be
determined by the special adjudicator within 42 days after submission. Applicants are not
allowed to return to the UK to attend the hearing;
– that the Secretary of State can designate countries other than EU Member states as “safe
third countries”, subject to approval by both Houses of Parliament. Non-suspensive appeal
rights would then apply where an asylum seeker is to be returned to such a “safe third
country”. The USA, Canada, Norway and Switzerland have been designated under this
procedure;
– that if an asylum seeker is to be removed to a country other than an EU Member State or a
designated “safe country”, suspensive rights of appeal still apply. The appeal must be lodged
within two days if the asylum seeker is detained, and within seven days if he/she is not
detained. The appeal has to be determined by the special adjudicator within ten days;
– that it is no longer possible for the asylum seeker to apply for leave to appeal to the
Immigration Appeal Tribunal against the special adjudicator’s decision; but the Home Office
would be able to do so.
Where no suspensive appeal right exists the only remedy is by way of application to the High
Court for judicial review. The principal change to be introduced to these procedures by the
Immigration and Asylum Act 1999 is the intent to reduce the scope of judicial review by enacting
a presumption that all EU states comply with the convention criteria and are therefore “safe” by
statutory definition, removing any challenge to the decision on the ground that the third country
may not in fact fully apply convention criteria.
Asylum seekers whom the authorities wish to remove to other countries will usually be detained
until they are removed, unless a successful application for bail or temporary admission is made.
This may happen if legal challenges are made (by way of judicial review, rather than appeal, as
that could only occur after removal) to the decision to return them. During 1998 and 1999 a small
number of challenges to these decisions were upheld by the High Court or, beyond that, the
Court of Appeal. Those cases focussed on differences in the ways Convention status is applied in
various member states, and in particular on cases where the threat of persecution came from
“non-state agents”, rather than direct from the state in the country of origin.
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