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Immigration And Asylum
11.18 a.m. on 15th March 2017
Coming into force
12.00 noon on 15th March 2017
Laid before Parliament-
4.00 p.m. on 15th March 2017
1. These Regulations may be cited as the Transfer for Determination of an Application for International Protection (Detention) (Significant Risk of Absconding Criteria) Regulations 2017 and come into force at 12.00 noon on 15th March 2017.
2. In these Regulations-
"application for international protection" means an application made by a third-country national or stateless person for protection in a participating State, on the basis that to remove them or require them to leave that State would be contrary to that State's obligations under the Convention Relating to the Status of Refugees done at Geneva on 28th July 1951(3) and its Protocol done at New York on 31st January 1967(4) ("the Refugee Convention") or that they qualify for subsidiary protection status under Council Directive 2004/83/EC(5) or Directive 2011/95/EU of the European Parliament and of the Council(6),
"asylum seeker" means a person who has made a claim for asylum which has been recorded by the Secretary of State but not yet determined, or who has made an application for international protection in another participating State but which has not yet been determined by that State,
"claim for asylum" means a claim by a third-country national or a stateless person that it would be contrary to the United Kingdom's obligations under the Refugee Convention, or under Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (agreed by the Council of Europe at Rome on 4 November 1950)(7) to remove them or require them to leave the United Kingdom,
"the Dublin III Regulation" means Regulation (EU) No. 604/2013 of the European Parliament and of the Council(8),
"immigration application" means an application for-
leave to enter or remain in the United Kingdom, or
variation of leave to enter or remain in the United Kingdom,
"immigration bail" means-
release under a provision of the Immigration Acts(9) on entry into a recognizance or bail bond,
bail granted in accordance with a provision of the Immigration Acts by a court, a justice of the peace, the sheriff, the First-tier Tribunal, the Secretary of State or an immigration officer (but not by a police officer), and
bail granted by the Special Immigration Appeals Commission,
"participating State" means a member State, Iceland, Norway, Liechtenstein or Switzerland,
"stateless person" has the meaning given by Article 1(1) of the Convention Relating to the Status of Stateless Persons done at New York on 28th September 1954(10),
"temporary admission or release" means release of a person who is otherwise liable to detention under the powers conferred by-
"third-country national" has the meaning given by Article 2(a) of the Dublin III Regulation.
3. These Regulations apply where an asylum seeker, P, is liable to detention under Schedule 2 to the Immigration Act 1971 and-
(a)P's fingerprint data has been processed in accordance with Regulation (EU) No. 603/2013 of the European Parliament and of the Council(13) and a comparison with data held by another participating State is to be undertaken;
(b)evidence or information listed in Annex II to Commission Regulation (EC) No. 1560/2003(14) has been identified which suggests that, in accordance with the Dublin III Regulation, another participating State may be responsible for examining P's application for international protection;
(c)P is the subject of an information sharing request made by the United Kingdom to another participating State under Article 34 of the Dublin III Regulation; or
(d)P is the subject of a take charge or take back request made by the United Kingdom to another participating State under Sections II and III of Chapter VI of the Dublin III Regulation-
(i)which has yet to be determined, or
(ii)which has been accepted and arrangements are being made for P's transfer from the United Kingdom to another participating State.
4. When determining whether P poses a significant risk of absconding for the purposes of Article 28(2) of the Dublin III Regulation, the Secretary of State must consider the following criteria-
(a)whether P has previously absconded from another participating State prior to a decision being made by that participating State on an application for international protection made by P, or following a refusal of such an application;
(b)whether P has previously withdrawn an application for international protection in another participating State and subsequently made a claim for asylum in the United Kingdom;
(c)whether there are reasonable grounds to believe that P is likely to fail to comply with any conditions attached to a grant of temporary admission or release or immigration bail;
(d)whether P has previously failed to comply with any conditions attached to a grant of temporary admission or release, immigration bail, or leave to enter or leave to remain in the United Kingdom granted under the Immigration Act 1971, including remaining beyond any time limited by that leave;
(e)whether there are reasonable grounds to believe that P is unlikely to return voluntarily to any other participating State determined to be responsible for consideration of their application for international protection under the Dublin III Regulation;
(f)whether P has previously participated in any activity with the intention of breaching or avoiding the controls relating to entry and stay set out in the Immigration Act 1971;
(g)P's ties with the United Kingdom, including any network of family or friends present;
(h)when transfer from the United Kingdom is likely to take place;
(i)whether P has previously used or attempted to use deception in relation to any immigration application or claim for asylum;
(j)whether P is able to produce satisfactory evidence of identity, nationality or lawful basis of entry to the UK;
(k)whether there are reasonable grounds to consider that P has failed to give satisfactory or reliable answers to enquiries regarding P's immigration status.
Minister of State
11.18 a.m. 15th March 2017
(This note is not part of the Regulations)
Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26th June 2013 ("the Dublin III Regulation") sets out the criteria to be applied and the mechanism for determining which of the member States or other States which participate in the instrument (Iceland, Liechtenstein, Norway and Switzerland), should be responsible for examining an application for international protection lodged in one of those States by a third country national or a stateless person. The Dublin III Regulation also sets out the transfer procedure which applies.
Under article 28 of the Dublin III Regulation, a person who has made an application for international protection may only be detained where they present a significant risk of absconding. Article 2(n) provides that "risk of absconding" means the existence of reasons in an individual case, which are based on objective criteria defined by law, to believe that the individual who is subject to a transfer procedure may abscond.
These regulations set out the objective criteria which will be considered to determine whether a person who has claimed asylum in the UK, but whose application is subject to the Dublin III Regulation procedure, presents a significant risk of absconding for the purpose of considering whether they should be detained.
A full impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary or public sectors is foreseen.
1972 c. 68. Section 2(2) has been amended by section 27(1)(a) of the Legislative and Regulatory Reform Act 2006 (c. 51) and section 3(3) of, and Part 1 of the Schedule to, the European Union (Amendment) Act 2008 (c. 7).
UK Treaty Series No. 39 (1954); Cmd. 9171.
UK Treaty Series No. 15 (1969); Cmd. 3906.
OJ No. L 304, 30.9.2004, p.12.
OJ No. L 337, 20.12.2011, p.9.
UK Treaty Series No. 71 (1953); Cmd. 8969.
OJ No. L 180, 29.6.2013, p31.
Section 61(2) of the UK Borders Act 2007 (c. 30) defines the term "the Immigration Acts" for the purpose of any enactment.
UK Treaty Series No. 41 (1960); Cmd. 1098.
1971 c. 77. Paragraph 21 has been amended by section 10 and paragraph 10(1)(4) of Schedule 10 to the Immigration Act 1988 (c. 14), section 12(1) and paragraph 10 of Schedule 2 to the Asylum and Immigration Act 1996 (c. 49), section 169(1) and paragraphs 62(2) and 62(3) of Schedule 14, and section 169(3) and paragraph 1 of Schedule 16, to the Immigration and Asylum Act 1999 (c. 33) and section 42(4) of the Immigration, Asylum and Nationality Act 2006 (c. 13). Paragraph 21 will be repealed by section 61 and paragraph 20 of Part 2 of Schedule 10 to the Immigration Act 2016 (c. 19) on a date to be appointed.
2002 c. 41. Section 71(2) will be amended by section 61 and paragraph 37(2) of Part 2 of Schedule 10 to the Immigration Act 2016 (c. 19) on a date to be appointed.
OJ No. L 180, 29.6.2013, p. 1.
OJ No. L 222, 5.9.2003, p.3. Annex II was amended by the Annex to Commission Implementing Regulation (EU) No. 118/2014, OJ No. L 39, 8.2.2014, p.1.