Clarifying the Burden of Proof for Return Viability and Safe Third Country Principle in Asylum Law: AAZA (Yemen) v SSHD

Introduction

AAZA (a Yemeni national born in 2000, long resident in China but without Chinese citizenship) appealed against the refusal of his application for asylum and humanitarian protection in the UK. He claimed fear both of the Houthi rebels and of Chinese authorities, relying on the 1951 Refugee Convention and the Qualification Directive (2004/83/EC) as implemented by the 2006 Regulations. The Home Office refused on both refugee and humanitarian grounds, asserting that China was an available and reasonable “alternative country of return.” After dismissal at the First-Tier Tribunal (FTT) and the Upper Tribunal (UT), AAZA obtained permission to appeal to the Court of Appeal on multiple grounds: principally, whether China was indeed safe, who bore the burden of proof on return-feasibility (i.e. obtaining a visa or residence permit), and whether risks of indirect refoulement had been properly considered.

Summary of the Judgment

On 6 June 2025 the Court of Appeal (Underhill LJ, Bean LJ, Cobb J) dismissed AAZA’s appeal. The Court held:

The FTT’s finding that there was no real risk of persecution or serious harm if AAZA returned to China was a question of fact, supported by adequate reasons and not perverse.
The statutory concept of a “safe third country” (in Schedule 3 to the 2004 Act or s. 80B of the 2002 Act) did not apply here: China is not on any prescribed lists and no inadmissibility certificate was issued.
Where a return to a non-national third country is proposed, the Tribunal may require the claimant to act bona fide and take all reasonably practicable steps to obtain entry documents (passport, visa, residence permit). AAZA had not made any application for a Chinese student visa or permit post-2020; that failure was fatal to his argument that return was infeasible.
A risk of indirect refoulement (from China to Yemen) must be raised before the FTT or UT; it was not, and therefore not available on appeal.
The “Abunar” point—that paragraph 339C of the Immigration Rules incorrectly transposes “country of origin” as “country of return”—was not raised below, was not “Robinson obvious,” and permission to advance it for the first time was refused.

Analysis

Precedents Cited

HJ (Iran) v SSHD [2010] UKSC 31 – Definition of “persecution” and recognition that discrimination alone may not suffice.
MI (Pakistan) & MF (Venezuela) v SSHD [2014] EWCA Civ 826 – Discrimination vs persecution; strong word “persecution.”
HF (Iraq) & Others v SSHD [2013] EWCA Civ 1276 – No protection claim can succeed on lack of travel documents alone; but feasibility must be established with bona fide efforts.
MA (Ethiopia) v SSHD [2009] EWCA Civ 289 – Adversarial process; claimants must take reasonably practicable steps to secure documents required for return.
RR (Refugee Safe Third Country) (Syria) [2010] UKUT 422 – Safe third country concept under EU law requires a genuine connection; statutory lists govern appeal rights.
Abunar (Para 339C: “country of return”) [2018] UKUT 387 (IAC) – Held that Immigration Rule 339C mis-transposes “country of origin,” but point post-dated and not raised here below.

Legal Reasoning

The Court’s reasoning rested on established principles:

Findings of Fact and Persecution Risk:
The FTT judge had examined AAZA’s own minor role in the Yemen-China conference, the harassment endured by his father, and the absence of personal mistreatment over two decades. On that evidence, it was reasonable to find no real risk of persecution or serious harm on return to China.
Safe Third Country Concept:
“Safe third country” as a statutory concept affects appeal rights only if the state appears on prescribed lists or is declared inadmissible under s. 80B. No certificate of inadmissibility was issued and China is not listed; thus the statutory mechanism did not arise.
Burden of Proof on Document Feasibility:
Under HF (Iraq) and MA (Ethiopia), when return to a third country is proposed, asylum-seekers must act in good faith to secure entry permission. AAZA had neither applied for nor shown he had been denied a visa or permit post-July 2020. In the absence of evidence of refusal, it was not irrational to expect bona fide enquiries.
Indirect Refoulement:
Arguments about onward removal (“chain refoulement”) must be advanced at first instance. The FTT and UT were not given such arguments, which therefore could not be introduced on appeal.
Abunar and Directive Transposition:
Although Abunar identifies a mismatch between the Directive’s “country of origin” and Rule 339C’s “country of return,” that issue was never pleaded below, was not obvious, and permission to raise it first in the Court of Appeal was refused.

Impact

This decision reinforces and clarifies several important rules in UK asylum law:

Tribunals may require asylum-seekers to take reasonable steps to obtain travel or residence documents when a non-national third country is proposed as a return destination.
Statutory “safe third country” rules (lists and inadmissibility powers) are distinct from common-law or Directive-based safe third country arguments.
Points of indirect refoulement must be raised at first instance; appeals courts will generally refuse to admit new grounds not argued below unless manifestly obvious and not causing prejudice.
The role of the Immigration Rules vis-à-vis the Qualification Directive remains tightly constrained: transposition issues (e.g. Abunar) will be scrutinized for procedural regularity before admission.

Complex Concepts Simplified

Safe Third Country: A state other than an asylum-seekers’ country of origin or the UK, to which the person might be returned. In the UK context, only certain countries on statutory lists (or with an inadmissibility certificate) qualify to restrict appeal rights.
Refoulement: Forcible return of an asylum-seeker to a country where they face persecution or serious harm. “Indirect refoulement” refers to onward removal from a third country to a place of danger.
Qualification Directive (2004/83/EC): EU legislation setting minimum standards for defining refugees and persons needing international protection, incorporated into UK law by the 2006 Regulations (now revoked), guiding interpretation of asylum and humanitarian protection criteria.
Humanitarian Protection (Rule 339C): UK domestic category for non-refugees who face serious harm on return. Must show a real risk of serious harm in the “country of return” (now amended to “country of origin”).
Perverse Finding of Fact: An appeal threshold: only if a Tribunal’s findings are wholly unsupported by evidence will an appellate court overturn them as “perverse.”

Conclusion

AAZA v SSHD confirms that when a third country of which the asylum-seeker is not a national is proposed for return, the claimant must undertake bona fide steps to secure entry documents; failure to do so may justify refusal. The judgment delineates the limits of “safe third country” arguments outside statutory schemes, underscores the need to raise all relevant risk issues at first instance, and illustrates the care with which domestic Rules must mirror EU standards. For practitioners, the case is a timely reminder to advise clients to pursue any feasible visa or permit applications and to comprehensively frame all grounds—including indirect refoulement—before the FTT.