High Trust Arrangements in a Low Trust Context: The Rwanda Policy’s impact on the Common Travel Area

 

 

Professor Colin Murray, University of Newcastle, and Professor Steve Peers, Royal Holloway University of London

Photo credit: Zairon, via Wikimedia Commons

Introduction

The latest spat between the UK and Ireland over the knock-on consequences of the UK’s Rwanda policy exposes the tangled web of EU law and Common Travel Area (CTA) arrangements which now cover the interactions between both countries’ immigration policies. This post considers these interactions and proposals of the Irish Government to legislate in light of the Irish High Court decision in A v Minister for Justice.

The Realities of the CTA post-Brexit

The CTA has been a remarkably durable feature of relations between the UK and Ireland for over a century. In the immediate aftermath of a bloody war of independence, both countries recognised the mutual benefits of facilitating people moving across their new borders. And even at the height of the Brexit referendum campaign, pro-Brexit campaigners lined up to downplay any concerns around the land border because the CTA would continue after Brexit. Even if it was not, of itself, capable of ensuring an open border on the island of Ireland, the CTA was generally accepted as providing an important ongoing element of UK-Ireland relations. This always underplayed how difficult it was going to be to make these arrangements work post Brexit.

The CTA arrangement has been operable for so long on the basis that it works on two levels; unrestricted movement can take place between the parts of the CTA because each part enforces broadly comparable external rules of entry. For decades, the two states aligned their immigration policy and enforced a shared list of excluded individuals. After both joined the EEC at the same time, these arrangements were augmented by a range of EU law, but Ireland and the UK continued to jointly operate opt outs to let them maintain distinct elements of immigration policy and to provide more legal entitlements to each other’s citizens than they did to other EU citizens (see here).

Post Brexit, the immediate concern was over the UK’s commitment to the CTA. Once Brexit happened, the common external arrangement would no longer be operative, because EU citizens could continue to move freely into Ireland (whereas they would face new restrictions on moving directly to the UK). They could, however, then use the CTA to move into the UK, thereby circumventing the UK’s new immigration policy.  UK ministers, however, remained confident that they could deal with this issue by immigration enforcement away from the border (by requiring banks, landlords, etc to require individuals provide proof of status before accessing services). They therefore signed up to a new CTA deal with Ireland in 2019.

The latest spat in post-Brexit relations between the UK and Ireland, however, involves the necessary corollary of some of the concerns being raised before Brexit took effect. Once the UK set about tightening its restrictions on immigration, and particularly abandoning safeguards around refugees that it had implemented under EU law, would there be a displacement effect as people turned to Ireland instead to process asylum claims. This led to the claims by Ireland’s Justice Minister, Helen McEntee, that not only was there a sharp rise in asylum applications in Ireland in recent months, that 80% of new applicants were now crossing the land border from Northern Ireland. There has not been any evidence published to support this figure (a fact emphasised by some coalition government ministers from other parties, perhaps more alive to the consequences of ramping up these tensions for the CTA).

Groups like the Irish Refugee Council have pointed out that simply because the number of in-country applications has risen, this does not mean that all of those individuals have crossed the land border (people in the country on a different immigration status can make decisions to apply for asylum on the basis of a change in the circumstances of their home country, for example). But the impression that the UK Government’s Rwanda policy has had a direct knock on impact on Ireland, which needs to be addressed, has become central to ministerial thinking.

The position in Ireland

EU asylum law framework

The problem for Ireland is how to enforce returns to the UK, especially in light of the legislation closing off of routes to claim asylum in the UK. The starting point is that Ireland is bound by aspects of EU asylum law, having exercised the possibility to opt in to parts of it. In particular, Ireland opted into the first phase asylum procedures Directive, adopted in 2005, but not the second phase asylum procedures Directive, adopted in 2013 (the ‘2013 Directive’), both of which contain slightly different rules (optional for Member States) on ‘safe third countries’ – ie countries that asylum seekers could arguably make their applications in instead, other than their countries of origin or the country where they are applying now.

The ‘safe third country’ rules in the Directives refer to non-EU countries. If the argument is that the asylum seeker should have applied in an EU Member State or a Schengen associate (Norway, Iceland, Switzerland, Liechtenstein), a different set of rules (the ‘Dublin rules’) apply instead, which determine in detail which Member State is considered responsible for the application, how transfers of asylum-seekers to give effect to the responsibility rules work, and what rights asylum-seekers have to challenge the potential transfers. Ireland has opted in to the current version of those rules – the 2013 version of the Dublin Regulation, known as ‘Dublin III’ – which states that rather than apply those rules to transfer an asylum seeker to another Member State which is responsible, a Member State can choose (as an option) to send an asylum seeker to a non-EU country instead, in accordance with the ‘safe third country’ rules in the 2013 Directive. (One way for Ireland to get around difficulties sending asylum seekers back to the UK would be to revert to the Dublin rules and try to send more of them back to other Member States under those criteria; but that will not always work, for instance because there may not be enough evidence to apply those rules, or the responsibility for the Member State which they first entered illegally to deal with the asylum-seeker may have timed out).

Ireland intends to opt in to the 2024 versions of the Dublin Regulation and the procedures law – which will now become a Regulation – after they are formally adopted, which is scheduled for May 14 (on the details of the new Regulations, see here and here). The procedures Regulation will change the ‘safe third country’ rules again. However, this will not have an immediate impact, since these new Regulations will not apply until mid-2026. So the focus here is the current law.

According to the recent Irish High Court judgment, Ireland had ‘safe third country’ rules at several points previously, but reintroduced the possibility in 2020, when an omnibus law on Brexit amended the International Protection Act 2015 to provide again for ‘safe third countries’ to be designated. Obviously this legal change had the UK in mind – given that the Dublin rules ceased to apply to the UK at the end of 2020, when the Brexit transition period expired. Indeed, the Irish government promptly used these new powers to designate the UK as a ‘safe third country’.

EU ‘safe third country’ rules

The 2005 ‘safe third country’ rules, which apply to Ireland as such, state that a Member State can apply the concept ‘only’ if ‘the competent authorities are satisfied that a person seeking asylum will be treated in accordance with the following principles in the third country concerned:’

a) life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion;

b) the principle of non-refoulement in accordance with the Geneva [Refugee] Convention is respected;

c) the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected; and

d) the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention.

The Directive goes on to state that ‘[t]he application of the safe third country concept shall be subject to rules laid down in national legislation, including:’

a) rules requiring a connection between the person seeking asylum and the third country concerned on the basis of which it would be reasonable for that person to go to that country;

b) rules on the methodology by which the competent authorities satisfy themselves that the safe third country concept may be applied to a particular country or to a particular applicant’, which must ‘include case-by-case consideration of the safety of the country for a particular applicant and/or national designation of countries considered to be generally safe’;

c) rules in accordance with international law, allowing an individual examination of whether the third country concerned is safe for a particular applicant which, as a minimum, shall permit the applicant to challenge the application of the safe third country concept on the grounds that he/she would be subjected to torture, cruel, inhuman or degrading treatment or punishment.

Next, Member States must:

a) inform the applicant accordingly; and

b) provide him/her with a document informing the authorities of the third country, in the language of that country, that the application has not been examined in substance.

Finally, if the non-EU country concerned ‘does not permit the applicant for asylum to enter its territory, Member States shall ensure that access to a procedure is given in accordance with the basic principles and guarantees described in’ the Directive.

The 2013 Directive is similar, except for adding ‘there is no risk of serious harm as defined in Directive 2011/95/EU [the EU Directive on definition of refugee and subsidiary protection status] to the list of principles that must apply in the non-EU country, and providing that the applicant must be permitted to argue that the non-EU country ‘is not safe in his or her particular circumstances’ and ‘to challenge the existence of a connection between him or her and the third country in accordance with’ the Directive.

The impact of designating a country as a ‘safe third country’ is that the application is inadmissible on the merits – on the assumption that it will be considered on the merits in the other country instead, because it is presumed that the asylum-seeker will apply for asylum in that country after being expelled there. The case will be fast-tracked, and it may be harder to stay on the territory in the event of an appeal against the decision than in some other cases.

The Court of Justice has ruled several times on the interpretation of the ‘safe third country’ rules in the 2013 Directive: Cases C-564/18, C-821/19, and C-924/19 and C-925/19 PPU, inter alia ruling that the principle does not apply to transit countries, and that Hungary had not fully provided for the guarantees related to the ‘safe third country’ concept’ required by the Directive in its national law.

The High Court judgment

The Irish High Court judgment ruled that the Irish government’s designation of the UK as a ‘safe third country’ was unlawful; but it did not rule on whether or not the UK was actually safe. This apparent paradox stems from the nature of administrative law, which often concerns itself with whether the public administration followed the correct procedure, rather than the merits of the decision – in part because courts are often more willing to review the procedure which a government applied to take a decision than the merits of that decision, which are seen as to some extent a matter of political discretion. So it’s possible that after a court quashes a government measure as unlawful on procedural grounds, the government could back and lawfully adopt the same decision again, provided that it now does so following the correct procedure. (And to knock on the head another common misconception: a minister taking an unlawful decision does not mean that the minister has committed a crime)

So why was the designation of the UK as a ‘safe third country’ unlawful? Mainly because the Irish law from 2020 providing the powers to designate such countries was not fully consistent with EU law, particularly because it did not provide the guarantees required in the 2013 Directive, which is cross-referenced in the Dublin III Regulation. (As noted above, the CJEU came to a very similar conclusion regarding Hungary’s lack of full application of those guarantees, but oddly the High Court judgment makes no reference to this case law). Also, there had not been a continual review of the position in the UK.

However, this did not mean – despite a popular misconception on this point – that the High Court judgment ruled that the UK was unsafe because of the UK’s Rwanda policy. In fact the judgment is at pains to point out that it was not reaching any conclusion on the Rwanda policy one way or another.

The Irish government’s response

The Irish government has announced plans to adopt legislation to designate the UK as a ‘safe third country’. Depending on the content, this may be sufficient to address the specific reasons why the High Court found that the previous designation was unlawful. But this is not the end of the story, because, as we have seen, the High Court did not get into the merits of whether the UK was ‘safe’ or not, particularly in light of the Rwanda policy, which has moreover developed since. Any fresh legislation could be challenged on those grounds. It’s even possible, if fresh challenges are brought, that an Irish court may want to send questions to the CJEU on this or other aspects of interpretation of the ‘safe third country’ rule. (Incidentally, as the Irish High Court did not rule on the merits of whether or not the UK was 'safe', the Irish government - unlike the UK recently - is not legislating to overturn a court judgment on whether another country is 'safe').

Furthermore, there are other elements to the EU rule, not discussed much in the High Court ruling. As noted above, there must be a ‘connection’ between the asylum seeker and the non-EU country (a point notably missing from the Rwanda policy, on the UK side), and the case law says that mere transit is not enough to create a connection. The two asylum-seekers concerned by the previous High Court judgment had been deemed to have spent enough time in the UK to have a ‘connection’, but that will arguably not be the case for all asylum-seekers who might make their way via the UK to Ireland.

Another point – also scrapped on the UK side in the Rwanda policy – is that the asylum-seeker must be readmitted by the non-EU country. The EU rules thus aim to avoid the very limbo that thousands of asylum-seekers are subject to in the UK, where their cases are inadmissible but with no country willing or obliged to decide their applications on the merits. While the High Court judgment refers to UK willingness to readmit asylum seekers previously (see para 44), the UK has now announced that it is not willing to do so, perhaps because it views the CTA arrangements as not binding. This obviously creates a further issue on the EU side (on the readmission/’safe third country’ nexus in EU law, see the pending Case C-134/23).

Immigration Policy for the whole of the UK?

As well as the Irish dimension to this argument, there is also a Northern Irish aspect. Notwithstanding the current wrangling, many question marks hang over the UK’s policy under the Illegal Migration Act 2023, as extended by the Rwanda Act 2024, and particularly over how they apply in the context of Northern Ireland. As part of the EU-UK Withdrawal Agreement the UK committed to ensuring no diminution of rights and equality protections operative in Northern Ireland law as a result of EU law because of Brexit (Windsor Framework, Article 2). It did so to avoid any claim that Brexit jeopardised the rights provisions of the Belfast/Good Friday Agreement 1998, some of which had come to rely upon EU law in practice. This concession headed off a lightning-rod argument for opposition to Brexit in the Northern Ireland context, and enabled the deal to proceed.

But now that these arrangements are in place, and operative, it means that Northern Ireland has a separate (and higher) floor of rights protections than the remainder of the UK. It is arguable that many aspects of EU law applicable to asylum seekers, and providing protections for them (including the Trafficking Directive), continue in full effect in Northern Ireland post Brexit. As pointed out in previous posts (here and here) the courts have the ability to disapply statutes insofar as they conflict with the Windsor Framework arrangements. In other words, this casts doubt on whether the UK Government’s flagship policy on asylum seekers can apply equally in all parts of the UK. The issue has already been argued before the Northern Ireland High Court with regard to the Illegal Migration Act (judgment is pending). Even if the Rwanda Act closes off many legal challenges, asylum seekers within Northern Ireland are therefore likely to try to use the Windsor Framework to challenge any deportations under these measures for the foreseeable future. 

Conclusions

Amid the tangle post-Brexit arrangements, both countries appear to be talking at cross purposes. For the UK Government, Brexit removed its obligations to comply with the Dublin III regulations and the arrangements thereunder for return of asylum seekers to other EU countries (and it cites the restrictions on it being able to enforce the return of individuals to France post Brexit as evidence of this). For the Irish Government, the Dublin III process might have been used when both countries were EU Member States, but the underlying CTA relationship sprang back into full effect (although conditioned by its own EU obligations) once the overlaying EU law was removed post Brexit. In reality, so much of the CTA relies on shared understandings and reciprocal nods, that there is considerable scope for misinterpretation. Indeed, two countries which were engaging with each other in the close collaborative relationship that the CTA requires might well have been expected to publicly make the appropriate arrangements in advance of Brexit taking effect (but that, alas, is not where UK-Ireland relations are at – see Professor Bernard Ryan here).

Elections loom in both Ireland and the UK, and many politicians in both countries have decided that there are votes to be won in looking tough on immigration. When refugees and asylum-seekers are at issue, however, it is difficult to ignore the fact that both countries process a relatively low number of asylum claims on a European level. But both countries are at loggerheads over policies which increasingly put the CTA arrangements in jeopardy and which seek to ignore the fact that conflict and persecution necessarily create more refugees. Both, it has to be concluded, would like this to be someone else’s problem.