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29 Jul 2021

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Since the end of the Brexit transition period on 31 December 2020, the EU’s Common European Asylum System (CEAS) no longer applies to the UK. The government has now introduced its Nationality and Borders Bill to reform the UK’s asylum system.

This explainer sets out the UK’s pre-Brexit asylum system and what was (or was not) agreed in the Trade and Cooperation Agreement. It then looks at what the UK government has proposed as its post-Brexit asylum policy plan and whether it is workable given the overall lack of EU support.

What was the UK asylum system before Brexit?

Until the end of the transition period, the UK was part of the EU’s ‘Dublin system’ – the EU arrangement for deciding which member state is responsible for the examination of an asylum application.

The Dublin III Regulation is the third iteration of EU law establishing the criteria and mechanisms for this allocation of responsibility. It applies to all EU member states and non-EU states that have agreed to the Schengen Area rules.

The criteria for establishing responsibility are, in order of importance: family considerations, recent possession of a visa or residence permit in a member state, and whether the asylum seeker has entered the EU regularly or irregularly.

The core principle underpinning the Dublin system is that responsibility for processing an asylum application lies with the member state most involved in the individual’s entry to the EU. This is usually the member state of first entry as the most frequently applied criteria is irregular entry: this criterion requires that the member state where an asylum seeker first entered the EU holds responsibility for processing their claim.

To help determine the country in which an asylum seeker first arrived, the European Asylum Dactyloscopy Database (EURODAC) – the EU-wide asylum fingerprint database – is used by participating states to cross-check fingerprints taken from asylum seekers.

Family reunion and the protection of unaccompanied minors are the main reasons why responsibility may not be allocated to the country of first entry.

Asylum policy – and migration more broadly – in the EU is a shared competence. When the UK was a member state, it retained control over elements of its asylum policy.

While the UK opted into the Dublin III Regulation and EURODAC, it opted out of the Family Reunification Directive which establishes the rules under which non-EU nationals can bring family members to join them in a member state.

Rather, the UK introduced further restrictions on Third Country Nationals (TCNs) before they could apply for family reunification.

While a member state, the UK opted out of the Emergency Relocation Mechanism (ERM) set up in response to the 2015 refugee crisis to shift pressure off Italy and Greece, the countries of first entry for most asylum seekers arriving in the EU. However, the UK announced it would contribute £1 billion in aid to Syria and take in 20,000 refugees from 2015 to 2020.

Did the UK agree anything on asylum in the Trade and Cooperation Agreement?

No agreement was reached on asylum policy in the Trade and Cooperation Agreement (TCA) between the UK and EU.

As a result, at the end of the Brexit transition period on 31 December 2020, the Dublin III Regulation, EURODAC and all other elements of the CEAS ceased to apply to the UK.

During the negotiations, the UK government was clear that it did not want to remain part of Dublin III as a third party. Initially, the UK was interested in maintaining access to EURODAC but eventually stopped pursuing this.

The government proposed two draft agreements to the EU on certain elements of the Regulation: one on the transfer of unaccompanied asylum-seeking children and the other on irregular migrant returns. The EU rejected both of these proposals arguing that it was ‘not in the EU mandate’ for TCA negotiations.

The EU did not propose alternative draft agreements on post-Brexit asylum cooperation. As a result, no agreements were adopted.

“The EU did not propose alternative draft agreements on post-Brexit asylum cooperation. As a result, no agreements were adopted.”

A Joint Political Declaration on Asylum and Returns, published on 31 December 2020, noted the ‘importance of good management of migratory flows’ and the UK’s intention to have ‘bilateral discussions’.

How does Brexit affect what the UK government can do with asylum policy?

There are some things that will not change. Given the UK’s non-participation in the Schengen Area before Brexit, the country already received lower numbers of asylum seekers than some other EU member states.

Both EU citizens and third-country nationals had to show travel documentation to enter the UK before Brexit. Given this ‘gate-keeping’ position, the UK’s specific geographical location, and the Dublin Regulation’s system whereby the first country of entry is responsible for considering an asylum application, it was already difficult for asylum seekers to apply for refugee status in the UK.

In 2016, the UK ranked tenth in the EU for absolute numbers of asylum seekers, rising to ninth in 2017.

The UK remains a signatory to the 1951 Convention relating to the status of refugees and its 1967 Protocol. The Convention’s key principle of non-refoulement – that a refugee should not be expelled or returned to a country where they face serious threats to their life or freedom, now considered part of customary international law – remains applicable to the UK.

This means that the UK has the duty to verify that third countries receiving asylum seekers from the UK respect human rights. These obligations would therefore apply in any bilateral discussions the UK has with third countries.

However, as the UK is no longer party to Dublin III or EURODAC, there is great uncertainty about the UK’s handling of asylum seekers arriving in the country. There are currently no formal agreements between the UK and the EU or individual EU member states to determine responsibility for examining an asylum request.

Dublin III also provided rules on family reunion which are no longer applicable in the UK. As a result, it is harder for asylum seekers wishing to join family members in the UK to do so.

As of 1 January, UK Immigration Rules changed: family reunion is possible only if the relative living in the UK has refugee- or subsidiary protection status, and unaccompanied minors can only reunite with parents.

What is the UK government’s proposed asylum policy plan?

On 6 July, the Nationality and Borders Bill was introduced to Parliament, the next step in the UK government’s ‘New Plan for Immigration’. The Bill passed its Second Reading on 20 July, with 366 MPs supporting it and 265 opposing.

The proposed legislation would introduce a two-tier asylum system for asylum seekers; Clause 10 of the Bill provides for ‘differential treatment of refugees’ based on whether they arrive legally or illegally into the UK.

Clause 10(5) sets out some of the areas where asylum seekers could be treated differently as a result, such as: the length of leave given, requirements for indefinite leave to remain, and whether leave to enter or remain is given to their family members.

A new ‘temporary protection status’ is set out which would allow failed asylum seekers to stay in the UK for 30 months with less generous entitlements and limited family reunion rights (Clause 11).

This comes as no surprise: the government’s ‘New Plan for Immigration’ announced in March 2021 set out this two-pronged strategy for treatment of asylum seekers arriving by ‘safe and legal routes’ and ‘illegal’ routes.

For those asylum seekers arriving legally, the government intends to provide indefinite leave to remain on arrival for resettled refugees – a shift from previous rules under which refugees received five years’ leave to remain on arrival.

Already, to claim asylum in the UK, a person must be in the UK as there is no asylum visa and it is not permitted to apply from outside the country. Hence, an individual would have to enter the UK either for another purpose (e.g. tourism, study) or illegally.

The Bill sets out provisions to pave the way for the use of offshore centres in asylum claims processing. Clause 12 states ‘an asylum application must be made in person at a designated place’. What is classified as a ‘designated place’ is left relatively open in the Bill: it includes ‘a place to which the claimant has been directed by the Secretary of State or an immigration officer’.

Under the Bill, asylum claims made by EU nationals (Clause 13) or those who have a connection to a ‘safe third country’ (Clause 14) would be inadmissible. This is not a totally new development.

UK Immigration Rules already allow an inadmissibility decision to be taken on the basis of a person’s earlier presence or passage through a ‘safe third country’. The ‘New Plan for Immigration’ also set out the government’s plan to introduce a ‘rebuttal presumption’ for the return of asylum seekers to all European Economic Area (EEA) states and other designated safe countries.

Clause 26 of the Bill provides for the removal of asylum seekers from the UK to safe third countries while their asylum claim or appeal is pending.

This follows the UK government’s intention, set out in their ‘New Plan for Immigration’, to secure returns agreements in order to ‘return inadmissible asylum seekers to the safe country of most recent embarkation’ or to ‘alternative safe third countries’.

The Bill would create a new criminal offence of arrival in the UK ‘without a valid entry clearance’ (Clause 37). It is already a criminal offence to enter the UK illegally, however asylum seekers are not seen as having entered the UK until they disembark and pass through any immigration control.

The broadening of this offence from entry to include arrival would mean that asylum seekers could also be prosecuted for arrival on UK territorial waters before they have technically entered the country.

“The broadening of this offence from entry to include arrival would mean that asylum seekers could also be prosecuted for arrival on UK territorial waters before they have technically entered the country.”

asylum

Clause 38 of the Nationality and Borders Bill introduces two reforms to the Immigration Act’s provisions on those helping asylum-seekers enter the UK. Those assisting people across the English Channel could face life imprisonment, an increase from the current maximum sentence of 14 years.

The Bill also removes the words ‘and for gain’ from the Immigration Act’s section on helping asylum-seekers.

This means that charities like the Royal National Lifeboat Institution (RNLI) could technically be charged with this offence. However, the Home Office has said this would not apply to organisations helping those in distress.

The UK Border Force would see its legal powers increase under Clause 41 and Schedule 5 of the Bill allowing it to ‘stop, board, divert and detain’ vessels on UK territorial waters.

Under these provisions, Border Force agents would be permitted to redirect vessels in the English Channel and the individuals on board them to France. However, permission from the French authorities would be required for that to occur.

The Nationality and Borders Bill also makes provisions (Clause 59) for the Home Secretary to impose visa penalties on countries that do not cooperate in the returns of their nationals who have had asylum claims rejected.

These penalties could include delayed processing of visa applications, temporary suspension of processing visa applications and/or additional financial requirements.

The ‘New Plan for Immigration’ also includes a commitment to ensure resettlement schemes are ‘responsive’ to international crises. However, no timetable or target number has been set out in the plan for resettlement schemes.

Can the UK government deliver its asylum policy without EU cooperation?

In the ‘New Plan for Immigration’, the UK government admitted its plans for the return of inadmissible asylum seekers are ‘contingent on securing returns agreements’ with safe third countries. Without such agreements, Home Office removals would not be facilitated by third countries meaning removals occurring would be on dubious legal grounds.

It is looking highly unlikely that the UK will secure bilateral returns agreements with its EU member state neighbours.

Countries including France, Belgium, Germany, Sweden and the Netherlands have said they will not agree to bilateral returns deals with the UK. Previously, when part of the Dublin system the UK was party to its returns mechanism through which asylum seekers who travelled to the UK from other Dublin countries could be returned to them.

Without replacement returns agreements, UK removals of asylum seekers will not be facilitated by their EU member state neighbours.

On 20 July, the UK and France released a joint statement on the next phase in their cooperation to manage small boat crossings on the English Channel, setting out a new funding agreement in which the UK will contribute €62.7 million (£54.1 million) towards France’s border enforcement and technology capabilities.

The statement included an announcement that ‘the UK and France support the idea of a UK-EU re-admission agreement’. However, such an agreement would have to be to ‘mutual advantage’.

Furthermore, as noted by Professor Steve Peers, a UK-EU readmission agreement would not be ‘solely up to France’ on the EU side and the joint statement makes no mention of a bilateral UK-France readmission treaty.

On 9 July, it was announced that the UK has secured an agreement with the non-EU country Albania for the return of asylum seekers and Albanian criminals.

This is a significant agreement as Albanians make up a significant percentage of asylum applications and foreign national offenders (FNOs) in the UK. Albanians make up the largest number of FNOs held in UK prisons, at 16% of the total FNO prison population.

Similarly, the second largest number of asylum applications in the UK in the last two years has come from Albanian nationals, following the largest number of applications from Iranian nationals.

However, even with this UK-Albania removals agreement, there remains very little to facilitate the removals element of the UK’s post-Brexit asylum system.

A number of former civil servants have said that the critical lack of EU bilateral asylum deals means the ‘New Plan for Immigration’ will see an increased number of asylum seekers who are undocumented and increase delays in the asylum system.

Separate to removals agreements, the UK has opened talks with Denmark on the possibility of sharing an offshore processing centre in Rwanda. This comes after Denmark passed legislation in June allowing it to relocate asylum seekers offshore for processing.

However, Denmark’s willingness cannot be taken as a sign that talks on offshore processing could occur with the rest of the EU.

Rather, the European Commission has raised concerns around Denmark’s new law, stating offshore processing raised ‘fundamental questions about both the access to asylum procedures and effective access to protection’.

The UK government has been domestically implementing other elements of its asylum plans. UK government data released in late May shows a quarter of asylum seekers who arrived in the UK from January to March 2021 have been informed their asylum claims will not be considered on ‘inadmissibility’ grounds.

Amnesty International UK raised concerns that this was ‘reckless and impractical… adding to the mountain of existing backlogs’.

By Sarah Overton, researcher at UK in a Changing Europe. 

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