Brexit: Refugee protection and asylum policy

Nicola Newson

Image showing three refugee children walking in a refugee camp

Committee report

On 22 September 2020, the House of Lords is due to debate a committee report on Brexit: Refugee Protection and Asylum Policy. The report was published in October 2019 by the House of Lords European Union Committee, following an inquiry by the EU Home Affairs Sub-Committee.

Dublin system

The committee considered what the impact would be of the UK ceasing to participate in the Dublin system after Brexit. The Dublin system is a succession of EU regulations allocating responsibility among EU member states for considering asylum applications. The Dublin III regulation has been in force since 2014. Steve Peers, professor of EU and human rights law at the University of Essex, has summarised how it works as follows:

[T]he Dublin system is based on the idea that an application should only be considered once by one of the participating countries, and sets out criteria to determine which country that is and a process to transfer the people concerned to that country if necessary.

[…] The Regulation first sets out a special rule for responsibility for unaccompanied minors, then allocates responsibility where a family member of an asylum seeker already has refugee or subsidiary protection status, or has applied for it.

Next, it assigns responsibility to a state which admitted an asylum seeker legally […] it then assigns responsibility to a state which the asylum seeker first entered illegally, but that responsibility expires after 12 months.

After that point, it assigns responsibility to the state where the asylum seeker has stayed for more than five months.

Under the withdrawal agreement, the Dublin III Regulation continues to apply to the UK until the end of the transition period on 31 December 2020. It will not be kept as retained EU law in the UK after that; the Government has already made regulations revoking it at the end of the transition period.

The committee concluded that the UK’s withdrawal from the Dublin system after Brexit would result in the loss of a safe, legal route for the reunification of separated refugee families in Europe. It said that unaccompanied children would find their family reunion rights “curtailed”, as the Dublin system offers them the chance to be reunited with a broader range of family members than under current UK immigration rules.

The committee also believed that after Brexit, the UK is “likely to find it more difficult to enforce the principle that people in need of protection should claim asylum in the first safe country that they reach”. Asylum applicants’ fingerprints are stored in the EU’s Eurodac database. The committee argued that without continued access to Eurodac, it is “unclear” how the UK would be able to identify applicants who had already registered in another country. Furthermore, a new returns agreement would be needed for the UK to send asylum seekers back to their first point of entry to the EU.

The committee recommended that future UK-EU asylum cooperation should take the Dublin system as its starting point, ideally with continued UK access to Eurodac. It argued that all routes to family reunion that are currently available under the Dublin system should be maintained.

Bilateral relations

Another key concern for the committee was the potential for Brexit to affect the UK’s bilateral relationships with EU member states. The UK has ‘juxtaposed border controls’ in France and Belgium, allowing the UK to check passengers and freight destined for the UK before they begin their journey. UK, French and Belgian border agencies have been working together to tackle the rising trend in migrants attempting to cross the Channel in small boats. The committee noted that the agreements underpinning border cooperation are bi- or trilateral ones, rather than EU ones. However, it argued that they had been “undoubtedly easier to sustain under the shared umbrella of EU membership”. It was concerned that “a disruptive ‘no deal’ Brexit could place them under considerable strain”.

Government response

The Government responded to the committee report in March 2020. The Government said it was seeking a close partnership with the EU on asylum and illegal migration, as this was in the interests of both sides. However, it said it did not intend to replicate the Dublin system. Instead, it was proposing a “comprehensive readmissions agreement” to allow for the return of EU, UK and third-country nationals who have entered the UK directly from an EU country, and vice versa. It said such an agreement would preferably be underpinned by continued access to Eurodac or a similar biometric system, but this would be subject to negotiation with the EU.

The Government also said it remained committed to seeking a new agreement with the EU for the family reunion of unaccompanied asylum-seeking children in the EU with family members in the UK and vice versa, where that was in the child’s best interests.

For a time, the Government was under a statutory obligation to seek to negotiate such an agreement. This was a provision added to the European Union (Withdrawal) Act 2018 as a result of a Lords amendment originally moved by Lord Dubs (Labour) (although the final text of that act reflected further amendments made by the Commons). The European Union (Withdrawal Agreement) Act 2020 removed the legal obligation to seek to negotiate such an agreement. It replaced it with a requirement for the Government to lay before Parliament a statement of policy in relation to future arrangements between the UK and the EU about unaccompanied asylum-seeking children.

The Government laid its policy statement on 16 March 2020, the same day it sent its response to the committee report. The policy statement confirmed the Government’s commitment to seek to negotiate a reciprocal agreement for family reunion of unaccompanied children seeking asylum in either the EU or the UK with specified family members in the UK or the EU, where this is in the child’s best interests.

In response to the committee’s points about bilateral relations with EU member states, the Government outlined ongoing work in this area that was continuing to take place “against the backdrop of the UK’s departure from the EU”. The Government maintained that “it remains in our firm mutual interests to continue working together to protect life, offer protection to those who need it and maintain the security of our border”.

UK-EU future relationship negotiations

A political declaration agreed by both sides set the framework for the UK-EU future relationship negotiations. The committee noted in the report it was “particularly concerned by the conspicuous lack of any reference to future UK-EU asylum cooperation in the November 2018 political declaration”. This was a reference to the political declaration negotiated by Theresa May. The revised political declaration, negotiated by Boris Johnson shortly after the committee published this report, did not specifically mention asylum either. It does say the UK and the EU would “cooperate to tackle illegal migration […] whilst recognising the need to protect the most vulnerable”.

The UK published a paper on its approach to the negotiations in February 2020. This repeated the commitment to seek to negotiate a reciprocal agreement for family reunion of unaccompanied asylum-seeking children, and stated that:

Beyond this, the UK is open to an agreement regulating asylum and migrant returns between the UK and the EU, or alternatively with individual member states, underpinned by data sharing, to help counter illegal migration and deter misuse of our asylum systems.

The EU’s preferred approach is one comprehensive agreement covering the whole of the future UK-EU relationship. The EU published a draft legal text for its proposed future relationship agreement in March 2020. In line with the negotiating mandate given to Michel Barnier by EU member states, this contained a provision on UK-EU cooperation on “tackling irregular migration from third countries […] whilst at the same time recognising the need to protect the most vulnerable”. But it did not contain detailed provisions on matters such as family reunion or regulating responsibility for dealing with asylum applications.

The UK’s preferred approach is a series of agreements covering different aspects of the future relationship. The UK published a number of proposed draft legal texts in May 2020, including ones on the transfer of unaccompanied asylum-seeking children and the readmission of people residing without authorisation. According to press reporting, the EU rejected the latter of these in August 2020. The same report said that, according to a Home Office spokesperson, once the UK was no longer bound by the Dublin III Regulation at the end of the transition period, it would seek to negotiate bilateral returns arrangements.

Committee follow-up

Following a restructuring of the House of Lords European Union sub-committees, the newly formed EU Justice and Security Sub-Committee took over some aspects of the former EU Home Affairs Sub-Committee’s work. Lord Ricketts, chair of the EU Justice and Security Sub-Committee, wrote to the Home Secretary in May 2020 with some detailed follow-up questions to the Government’s response to the Brexit: Refugee Protection and Asylum Policy report. In July 2020, the EU Justice and Security Sub-Committee held an oral evidence session on the Government’s draft agreement on the transfer of unaccompanied asylum-seeking children.