Steve Peers
In two days’ time (Wednesday May
13th), the EU Commission is due to present a communication on a new
EU immigration and asylum agenda. I’ll look at this agenda in detail later, but one key issue calls for comment already: will
the UK have an opt-out from mandatory refugee quotas?
Part of the Commission paper has
been leaked, and it’s clear that at least on the issue of resettlement of
refugees, the current draft of the paper is more ambitious than the conclusions of EU leaders,
agreed a couple of weeks ago (see my comments on their conclusions here).
In particular, the Commission plans to propose mandatory rules on ‘relocation’ of
asylum-seekers and ‘resettlement’ of refugees. In EU jargon, ‘relocation’
refers to those already in the EU, while ‘resettlement’ applies to those currently
in non-EU countries. The first group do not necessarily have valid asylum
claims, while the latter group usually have their status as refugees positively
assessed before they are admitted to the territory.
According to press stories in the
Guardian and the Times (the latter is paywalled)
there may be a conflict with the UK as regards refugee quotas, because of a
doubt that the UK can opt out of these proposals. Let’s look at this from the
legal and political point of view in turn.
Legal analysis
The draft Commission plan refers
to the ‘legal base’ of the relocation proposals as being Article 78(3) of the
Treaty on the Functioning of the European Union (TFEU), which provides that:
3. In the event of one or more Member States being
confronted by an emergency situation characterised by a sudden inflow of
nationals of third countries, the Council, on a proposal from the Commission,
may adopt provisional measures for the benefit of the Member State(s)
concerned. It shall act after consulting the European Parliament.
Article 78(3) is part of the
Justice and Home Affairs (JHA) provisions of the Treaty. All of these
provisions are found in Title V of Part Three of the TFEU. But the UK has an
opt-out from these JHA provisions. In particular, Article 1 of Protocol 21 of
the Treaties provides that (my emphasis):
Subject to Article 3, the United Kingdom and Ireland shall not take part in the adoption by
the Council of proposed measures pursuant to Title V of Part Three of
the Treaty on the Functioning of the European Union.
Article 1 refers to Article 3 of
the Protocol, which is the power for the UK and Ireland to opt in to proposals
on a case-by-case basis if they want to. For the avoidance of doubt, Article 2 of
the Protocol reiterates that (my emphasis):
In consequence of Article 1 and subject to Articles 3, 4
and 6, none of the provisions of Title V of Part Three of the Treaty on the
Functioning of the European Union, no
measure adopted pursuant to that Title, no provision of any
international agreement concluded by the Union pursuant to that Title, and no
decision of the Court of Justice interpreting any such provision or measure shall be binding upon or applicable in
the United Kingdom or Ireland; and no
such provision, measure or decision shall in any way affect the competences,
rights and obligations of those States; and no such provision, measure or
decision shall in any way affect the Community or Union acquis nor form part of
Union law as they apply to the United Kingdom or Ireland.
Article 2 refers to Articles 4
and 6: these rules give the UK power to opt into a JHA measure after it’s
adopted (Article 4) and make clear that if
the UK opts in to a JHA act, all the rules in the Treaty (ie the CJEU’s
jurisdiction) apply (Article 6).
It’s beyond doubt that the
opt-out Protocol applies to all JHA measures. This is confirmed because a
specific clause (Article 9) does, by way of exception, state that one JHA rule
(on anti-terrorist sanctions) applies to Ireland without any opt-out. There’s a
similar sort of exception in a parallel Protocol which sets out JHA opt-outs
for Denmark. So by a contrario reasoning,
the UK can opt out of any JHA measures. If there were any exception for Article
78(3), it would obviously appear in the Protocol.
So it seems clear enough that the
UK does not have to opt in to any refugee law measure, as long as it falls
within a JHA legal base. The Commission paper does not contemplate the dubious
strategy of trying to propose a refugee law measure on a non-JHA legal base, in order to circumvent the UK’s opt-out.
However, there is a specific rule
which applies where an EU proposal would amend
existing EU legislation which the UK is already bound by. In fact, the UK is
not bound by most current EU asylum legislation, but it is bound by the Dublin Regulation, which determines which
Member State is responsible for the application of an asylum-seeker who is on
the territory (or in the territorial waters) of a Member State.
There seems no reason to amend
the Dublin Regulation as regards any resettlement
proposal, since resettlement concerns recognised refugees currently in third
countries, not asylum-seekers currently on the territory of the EU Member
States. However, the relocation
proposal probably would have to amend the Dublin Regulation, since it would necessarily
alter the current rules on which Member State is responsible for an asylum
application.
The special rule applying to the cases
where a JHA proposal amends a JHA act which already binds the UK is set out in
Article 4a of the Protocol:
1. The provisions of this Protocol apply for the United
Kingdom and Ireland also to measures proposed or adopted pursuant to Title V of
Part Three of the Treaty on the Functioning of the European Union amending an
existing measure by which they are bound.
So the UK opt-out continues to apply in such cases. However, there’s a
catch: if the UK opts out of such proposals, it’s possible for it to be turfed
out of its participation in the existing law, ie the law which the proposal
seeks to amend. In this case that would mean that the UK would be turfed out of
its participation in the Dublin Regulation, which results in a net allocation
of asylum-seekers from the UK to other Member States.
Article 4a sets out the details
of how this would work. First of all, the Council (by a qualified majority vote
of participating Member States, ie
without the UK’s vote), on a proposal from the Commission, decides that the revised
law would be ‘inoperable’ for other Member States or the UK, if the UK doesn’t participate.
That decision in effect gives the UK an ultimatum to opt in to the amending law
within two months. If the UK doesn’t opt in within that period, then the original
measure (ie, the current Dublin Regulation) automatically ceases to apply to
the UK.
This ‘ultimatum’ clause dates from
the Treaty of Lisbon, and has never been used. It would obviously cause
considerable political friction if it were, given that the UK is attached to
continuing its participation in the Dublin rules.
The new proposals might
alternatively (or additionally) take the form of amendments to the current EU
temporary protection Directive, which the UK also participates in. The
same considerations about using the ultimatum clause would apply, except that
there would not be so much political sensitivity: that Directive has never been
used in practice, and the current UK government would probably not be upset
about being expelled from it (this Directive dates back to 2001; the UK opted
in under the previous Labour government). However, the proposals might also
take the form of amendments to the EU’s Asylum and Migration Fund, which
the UK participates in and would be reluctant to be expelled from (the previous
coalition government opted in to it).
It should also be noted that
there might be a legal argument about the use of Article 78(3), because the
European Parliament (EP) would likely prefer another asylum ‘legal base’ to
apply which would give it its usual power over EU legislation. But using a
different asylum legal base would not alter the rules relating to the UK’s
opt-out.
Political context
First and foremost, it has to be
pointed out that the Commission’s proposals may not be accepted. Indeed, given
the many previous failed attempts to agree EU rules on relocation and resettlement,
and the obvious lack of willingness of EU leaders to commit themselves on these
issues even in light of the recent migrant death toll, such proposals might
well be dead on arrival. It’s clear from the wording of the Treaty that there
has to be a qualified majority of Member States in the Council to approve such
proposals, although the EP is only consulted.
Similarly, the UK could not be
given an ultimatum as regards its participation in existing EU law unless the
Commission proposes a Council decision to this end, and the Council agrees by
qualified majority (without a UK vote). The EP has no role in that case. It’s
far from certain that this would happen, even if the Council were enthusiastic
about these Commission proposals.
In light of this, in combination
with the election of a majority Conservative government committed to holding a
referendum on the UK’s membership of the EU, is it really wise for the
Commission to make these proposals and suggest that they might bind the UK
despite its opt-out? Admittedly it’s not realistic to expect the Commission to
avoid making any proposal which might cause the least offence to the UK for the
many months up until the referendum date. But if it wants the UK to remain in
the EU – as the Commission President says it does – it has to avoid making
proposals which are liable to cause the most
offence. That particularly applies to proposals relating to immigration, which
is by far the most sensitive issue for the UK’s relations with the EU.
After all, if the UK leaves the
EU, there would anyway be no prospect of relocating asylum-seekers here in any
event. While it’s understandable that the Commission wants bold solutions to
the EU’s migrant crisis, there are times when discretion is the better part of
valour.
Barnard & Peers: chapter 26
Photo: bbc.co.uk
No comments:
Post a Comment