In this post Alfred Artley of Monckton Chambers examines issues related to cross-Channel migration after the end of the transition period.
The recent rise in the number of migrants attempting to cross the English Channel has brought renewed political pressure on the UK government to show that it is serious about addressing the issue. As well as appointing a former Royal Marine commando as the new ‘clandestine Channel threat commander’, ministers have also promised to look at legal changes to the asylum rules once the Brexit-transition period ends at the beginning of next year. Vowing to rip up “inflexible and rigid” laws that supposedly stop Britain returning (illegal) immigrants quickly, the Prime Minister has criticised the Dublin Regulation (the current EU framework) on the grounds that it is currently “abused by both migrants and their lawyers”, and promised new alternative arrangements: “[i]t’s time to look at the legal framework we have that means, when people do get here, it is very, very difficult to send them away again even though blatantly they’ve come here illegally.” This post looks briefly at how the current Dublin Regulation operates and considers how far new UK asylum laws might make it easier to return migrants to other European countries more quickly.
Dublin III: a quick guide
The ‘Dublin system’ provides a harmonised set of rules for determining which EU/EEA state is responsible for determining asylum applications from third country nationals. The original Dublin Convention dates from 1990, and the current rules are found in the Dublin III Regulation (EC 604/2013). The Regulation’s purpose is stop abuse of EU freedom of movement rules by both asylum seekers and Member States: first, by preventing ‘asylum shopping’, where applicants move between EU countries to seek the most attractive regime of protection; second, by preventing ‘refugees in orbit’, whereby Member States could simply ‘export’ the burden of dealing with asylum applications to their neighbours.
Though this was largely ignored in the recent media reports, the central premise of the Dublin scheme is that asylum claims should be processed in the first EU state which the applicant entered (Article 13(1)). If, for example, a migrant lands in Sicily having crossed by sea from North Africa, but rather than claiming asylum in Italy travels onwards through Europe to the Channel coast and ultimately to the UK to seek asylum there, the UK should in principle be able to return the applicant to Italy.
This ‘first safe country’ rule can, however, be trumped by other considerations, the most significant of which are those relating to family unity and protection of minors (Articles 8 to 11) and ‘tolerated illegal presence’ (Article 13).
The first category serves to ensure consistency with Member States’ obligations under Article 8 ECHR, Article 24 of the Charter of Fundamental Rights, and the UN Convention on the Rights of the Child. As such, an unaccompanied child’s asylum application will be considered in the Member State where they have a parent or other relative legally present where that is in the child’s best interests; similarly, the family unity rules in Article 11 prevent individual asylum applications by members of one family being artificially dispersed across several European countries when a rigid application of the Regulation might otherwise bring this about.
The second category covers situations where 12 months have passed since the claimant’s first illegal entry into a Dublin State, whereupon that State’s obligation to consider the asylum claim ceases; thenceforth, under Article 13(2), the State responsible will be the one where (most recently) the claimant has been living for five consecutive months (the State being deemed to have acquiesced accordingly) .
Procedurally, Article 27 requires Dublin States to give applicants the right to appeal or review of any transfer decision that affects them, which in the UK will usually be in the form of a judicial review. Article 27(3) provides that a transfer is automatically suspended once the appeal is lodged, though a court may lift that suspension pending consideration of the substantive appeal.
Finally, it is also worth noting that the Dublin rules significantly limit the ability of States to detain asylum applicants who fall within their scope. Article 28 requires that detention is only possible “when there is a significant risk of absconding, … in order to secure transfer procedures in accordance with this Regulation, on the basis of an individual assessment and only in so far as detention is proportional and other less coercive alternative measures cannot be applied effectively. Detention shall be for as short a period as possible and shall be for no longer than the time reasonably necessary to fulfil the required administrative procedures with due diligence until the transfer under this Regulation is carried out.”
“Sending them away again”: easier post-Dublin?
Will it therefore be easier to deport those have crossed the Channel illegally once the UK leaves the Dublin system at the end of this year? That of course depends very much on what new system the Government chooses to put in place, but there are good reasons to doubt that the end of Dublin will soon make it easier to remove (illegal) entrants expeditiously.
Firstly, the cornerstone of the Dublin rules is that the first EU state of illegal entry should take responsibility for determining the substantive claim. The concomitant obligation on the state liable to accept the transfer represents a significant incursion into the sovereign right to determine entry of non-nationals who would otherwise have no legal right of residence. For simple reasons of geography, this principle ought normally to work in the UK’s ‘favour’: asylum seekers are far more likely to have transited through another Dublin State in order to reach the UK than vice-versa. However, once the Brexit transition period ends, the continental European states will no longer be subject to any Dublin obligations in respect of the UK; as such, once a migrant has made landfall in Britain and claimed asylum here, there will be no possibility of transferring them back to another European state simply because they have transited through that country. While it might in theory be possible to negotiate a new arrangement with the EU states (either collectively or bilaterally) and implement something similar, there is nothing about maintaining the Dublin rules in the Political Declaration that accompanied the Withdrawal Agreement, and domestic politics elsewhere in Europe would make this unlikely anyway: already the burden of transfer acceptance falls predominantly on a small number of southern and eastern frontier states, and the Dublin system is already extremely unpopular there as a result.
Secondly, in so far as the complexities of the current system are due to the rules preserving family unity and children’s rights, and appeals against transfer decisions are lodged on this basis, it is not clear that the UK could readily abolish equivalent protections while remaining consistent with its other international obligations. As noted above, Articles 8 to 11 of the Dublin Regulation do no more than give effect to rights and obligations under the ECHR and the UN Convention on the Rights of the Child; thus any new system that allowed for deportation of illegal migrants regardless of family ties would inevitably be challenged on human rights grounds.
Thirdly, the complaint that the Dublin rules are rigid and inflexible seems somewhat surprising; though there is a hierarchy of criteria which have to be taken into account in determining which State is responsible for determining the asylum application, those criteria reflect the need to keep families together and ensure that children’s best interests are respected; though the system may appear complex, this is precisely because there is not a rigid rule simply requiring the first country of entry to take responsibility for the claim, regardless of any countervailing factor. Moreover, the Regulation already contains two discretionary mechanisms: under Article 17(1), Member States may choose to process asylum applications lodged with them, even where they are not obliged to do so by the Regulation; under Article 17(2), a State may also request that another State take charge of an applicant for family, cultural or humanitarian reasons, even where the requested State would not otherwise be responsible (provided the person concerned consents in writing).
Finally, in so far as the concern about the present regime relates to the length of time it may take to process appeals, this may be a more a matter of how the UK has implemented the right of appeal domestically rather than anything to do with the underlying Dublin rules. Article 27(1) requires no more than ‘the right to an effective remedy, in the form of an appeal or a review, in fact and in law, against a transfer decision, before a court or tribunal’. In so far as challenges typically take place by way of judicial review, this reflects the UK’s domestic rules, which in practice means that Dublin removal decisions are certified under Schedule 3 of the Asylum and Immigration Act 2004 and statutory rights of appeal are thereby ousted; judicial review is then all that is left as a ‘remedy of last resort’. Indeed, whatever new system the UK chooses to implement in future will inevitably require some form of appeals process, and it is likely that those who have often risked their lives in order to enter the UK will continue to use that process as far as possible to prevent their removal. It may however be easier to detain asylum applicants pending determination of their claims, once the ‘significant risk of absconding’ requirement no longer applies.
Conclusion
Britain’s departure from the Dublin system is unlikely to make it easier to deport unlawful cross-Channel migrants back to Europe so their asylum claims can be considered elsewhere. Instead, other EU countries will no longer be obliged to take back those who have transited to Britain through their territory, and the UK will simply be responsible for their substantive claims; no deportation will be possible until the outcome of that claim is determined. That process may well be at least as complex and involved as a decision under the Dublin rules, especially where family considerations are in play, and will remain amenable to legal challenge as currently.
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