Brexit spells sliding safeguarding duties as asylum seekers rise

Future co-operation on asylum between the UK and the EU after Brexit is yet to crystallise. The UK’s move to leave the EU created increasing and alarming uncertainty about the future applicable law and how this will affect asylum seekers in Europe. Uncertainty has consequently challenged the trust in the UK needed for any cooperation, let alone when that impacts on vulnerable people. The Brexit uncertainty is also worrying for standards of human rights protection, which could drop with an additionally damning effect on asylum seekers in the UK. Moreover, the government referred to asylum only in light of security concerns or migration control, conflating asylum with security and crime.

Cooperation on asylum between EU Member States has been governed by the Common European Asylum System (CEAS). Secondary measures were adopted in this context about allocating responsibility for processing asylum applications, setting common asylum procedures, common reception conditions, common qualification standards and a common database. The infamous Dublin III Regulation allocates responsibility regarding which single state is responsible for examining an asylum application. When the CEAS was created, the UK negotiated a right to opt-out from any binding legislation, meaning that the UK was not automatically bound by any legislation regarding asylum but enjoyed a selective approach.

Uncertainty and distrust is already manifest in courts. For example, it was not clear whether the UK remains the responsible State for asylum applications on the basis of the Dublin III Regulation (Case C-661/17 M.A, S.A. and A.Z v International Protection Appeals Tribunal and Others ECLI:EU:C:2019:53). In this case, three applicants, a wife, husband and child appealed a decision by Irish authorities to transfer to the UK. Interestingly, they have been living in the UK on a student and dependant visa and their child was born in the UK. The college the wife attended closed. So, the applicants went to Ireland and applied for asylum there. The Irish authorities requested the UK authorities to take charge of the applicants, as per Dublin rules, which opposed the applicants’ wish not to return to the UK. The Court ruled that the UK remains responsible for the purposes of the Dublin III Regulation, in a clear effort to restore trust and certainty. However, it is worth focusing on the reasoning of the Irish High Court which was not entirely convinced that the Brexit related circumstances are irrelevant to the applicant’s situation.

As far as what happens in the event of a No Deal, note that the UK has obligations towards asylum seekers under international law. These obligations are unrelated to the UK’s EU membership and will not be affected by Brexit. Brexit will not alter its obligation not to expel or return (refouler) a refugee ‘to the frontiers of territories where his life or freedom would be threatened’ on grounds of race, religion, nationality, membership of a particular social group or political opinion (Convention Relating to the Status of Refugees (1951); Protocol Relating to the Status of Refugees (1967); Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984); International Covenant on Civil and Political Rights (1966)). Therefore, asylum seekers, will be able to submit their application for asylum in the UK, if they make it to its territory.

The Brexit paradox is that the UK might end up receiving more asylum seekers than before Brexit. This is because the Dublin system resulted in the UK’s decreased responsibility because of geographical and legal reasons. First, the UK is geographically a long distance away from from the entry points of the EU and second, the Dublin III Regulation has a first country entrance rule. As a result, the chances are that the asylum seekers did not make it to the UK and other Member States have processed their asylum applications. Unless the asylum seeker has close family in the UK or the UK has previously issued them a visa or the UK is the first entrance country, the UK has had no responsibility under the Dublin III Regulation. In the event of no deal, this legal frontier will cease to apply and asylum seekers may no longer be returned to other EU countries, as the UK will be solely and independently responsible to consider asylum applications.

Most worryingly, post-Brexit, the UK will be able to drop the standard of safeguards it offers asylum seekers by EU law. Although the Dublin III Regulation is in serious need of reform, it provides for rights in a detailed way which is very important. Following the UK’s exit from the European Union and unless otherwise agreed, the UK will no longer bear duties under these rules. Brexit could open the door for the removal of this level of protection. It is quite worrisome that an Australian-like approach might be followed by the UK by negotiating other bilateral agreement with other countries to keep or to transfer asylum seekers to their territory by paying entirely for the transfer or other costs. Such agreements seek to offshore and outsource obligations towards people who seek asylum. The ‘perils of Australian exceptionalism’ with regard to their asylum system have often been criticized in relation to their human cost and such an approach must not be followed by the UK after Brexit.

The Brexit uncertainty on asylum was not alleviated by the proposed deal, and unwillingness to share responsibility in a spirit of solidarity fuels distrust. Although EU asylum law reform is long awaited, the CEAS offers a system of shared responsibility to address collectively the same legal and moral commitments towards asylum seekers.

This is a summary of Dr Xanthopoulou’s chapter, ‘Legal Uncertainty, Distrust and Injustice in Brexit Asylum Cooperation’ in Ahmed and Fahey (eds), On Brexit: Law, Justice and Injustices (Edgar, 2020)

                    

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