Professor Steve Peers, University of Essex
The issue of asylum seekers crossing the Channel has again arisen as a moral panic. These crossings raise a number of legal issues. There’s already a good discussion of many of them in the Free Movement blog, but I think it’s also useful to address some legal issues here, in a question and answer format. The following is an update of a January 2019 blog post on the issue; the updates particularly concern the Brexit process, with new material on bilateral treaties with France.
Where are the international law rules on asylum?
EU asylum law
Thirdly, EU law has aimed to create a Common European Asylum System (CEAS) in several phases. A first phase of EU asylum law was adopted from 2003 to 2005, and a second phase was adopted between 2010 and 2013. A (de facto) third phase of laws, responding to the perceived European refugee crisis of 2015, was proposed in 2016, but negotiations on those laws are still continuing (the Commission plans to attempt a relaunch of talks in autumn 2020).
a) legislation on responsibility of asylum applications (the Dublin rules: currently the Dublin III Regulation);
b) the Eurodac system of taking fingerprints of asylum-seekers and ‘illegal’ migrants;
c) laws on the definition of ‘refugee’ and parallel ‘subsidiary protection’ status, and the rights of beneficiaries of either status;
d) asylum procedure;
e) reception conditions for asylum-seekers, ie rules on benefits, detention and childrens’ education; and
f) an EU asylum agency, which supplements Member States’ administrations applying asylum law, but does not replace them.
As an EU Member State, the UK had an opt out from the EU’s Schengen system of (in principle) open internal borders, as well as an opt out on EU law on asylum, immigration and criminal law. In practice, the UK only opted in to some EU asylum laws: all of the first phase laws, but only some of the second phase laws (Dublin, Eurodac and the asylum agency).
Overall, the international asylum law rules are fragmented in various ways: the UN Refugee Convention only applies to certain issues, and has no enforcement mechanism; the ECHR case law is ad hoc and indirect; and while the EU asylum laws are potentially more coherent than the other two sources, only some of those EU laws apply to the UK. There’s also divergent national application of the laws, some of which is built in, as the various sources mostly set only minimum standards.
Can ‘illegal’ migrants be refugees?
The notion that ‘illegal’ migrants – ie those people who entered the country or arrived at the borders without authorisation – cannot be ‘genuine’ refugees is utter nonsense: morally, factually and legally. It’s inherent in the notion of fleeing a dangerous country that one might not have the documents to leave and/or the documents to enter another country – because the persecuting country might want to keep its dissidents where it can mistreat them, or because of moral panic in the country they might flee to.
This is recognised not just in popular culture – think of the plot underlying the romance of Casablanca – but also (for example) by the efforts of Raoul Wallenberg and others, who hardly felt constrained by the finer legal details in their efforts to save Hungarian Jews.
Legally, there’s no reference to immigration status in the definition of ‘refugee’ in the Refugee Convention (Article 1.A). Nor is there an exclusion from refugee status on the grounds of being an ‘illegal’ migrant in Article 1.F. Some refugee rights in the Convention are explicitly dependent on having lawful migration status, but some are not – most importantly the fundamental rule, in Article 33, that a refugee should not be sent to an unsafe country.
Furthermore, there’s an explicit provision on the position of refugees who entered a country illegally – which would be irrelevant if they were not eligible to be refugees at all. In fact, Article 31 of the Convention restricts States from penalising refugees for irregular entry, subject to certain conditions. If the refugee doesn’t satisfy those conditions, a penalty for irregular entry could be imposed – but that does not mean that the person concerned is disqualified from being a refugee. For that matter, the ECHR and EU law don’t disqualify ‘illegal’ migrants from refugee status either.
On the other hand, not all those who enter illegally are refugees: they must still meet the relevant criteria (fleeing their country of origin due to a well-founded fear of persecution due to race, religion, nationality, political opinion or particular social group). Moreover, it is still possible for States to argue that even though a person is (or might be) a refugee, their refugee status (or responsibility for considering their asylum claim) is the responsibility of another country. Let’s now turn to that issue.
Don’t refugees have to apply in the first ‘safe country’ they enter – otherwise they are not genuine?
While it is often strongly asserted that 'international law requires refugees to apply for asylum in the first safe country they enter', in fact the position is rather vaguer than that. The Refugee Convention doesn’t contain any express rule to that effect in the rules on the definition of refugee, or on the cessation (loss) or exclusion from being a refugee, as set out in Articles 1.A to 1.F of that Convention.
However, there are some indirect suggestions in the Convention that the number of countries which a refugee has crossed through might be relevant. Article 31 of the Convention, which deals with ‘illegal’ entry (as discussed above), includes the condition that a refugee had to be 'coming directly' from the country which they had to flee, in order to avoid penalties for illegal entry. While the 'non-refoulement' rule in Article 33 of the Convention prevents States removing refugees to an unsafe State, it does not prevent refugees from being removed to a safe State.
Furthermore, as noted already, some of benefits which the Convention gives to refugees (such as welfare and access to employment) are reserved for those who are lawfully resident or present in the territory; and the Convention does not require States to give refugees a lawful status under national immigration law. In particular, Article 32 of the Convention prevents expulsions of refugees in general (whether to an unsafe or a safe country, subject to exceptions), but its protection applies to ‘a refugee lawfully in their territory’. The obvious implication is that refugees not lawfully in the territory are protected only against expulsion to unsafe states, under Article 33. In fact, in its judgment on the validity of the EU law on relocation of asylum seekers (discussed here), the CJEU explicitly took the view (paras 338 to 344 of the judgment) that the Refugee Convention did not prevent removing an asylum seeker to another safe country, at least within the context of the EU’s relocation scheme.
So overall, the Refugee Convention gives States a degree of flexibility to insist upon a 'safe third country' requirement, but there is no absolute rule that refugees must always apply in a ‘safe’ third country. If the Convention had intended to impose a firm rule in that regard, it would surely have said so expressly, defined the conditions for such a rule to apply, and provided for obligations for the first ‘safe’ country to readmit the refugee – for without such obligations the rule would not easily be workable. Moreover, the preamble to the Convention refers to the heavy burden which the grant of asylum may place upon some countries, and the need for international cooperation to avoid refugees becoming a source of tension between States. Taken as a whole, then, the drafters of the Convention recognized that a strict safe third country rule could impose undue burdens on countries neighbouring a conflict in some cases, but left it to States to work out the details of how to address such burdens when they occur.
The EU’s Dublin rules are an example of a group of States working out such rules, and we’ll now look at them in more detail. But note that they don’t create obligations for asylum-seekers to apply in certain countries; they create obligations for States to admit those asylum-seekers if they are responsible for the application. Asylum-seekers can still apply in a State which isn’t responsible for them under the EU rules; but they might face the consequence that their application is deemed inadmissible (not unfounded on the merits) and they are transferred to the country responsible for their application, where they can apply for asylum (or pick up where they left off, if they had applied for asylum there already). This will make it de facto impractical for an asylum seeker to apply in a particular country, and one might describe the Dublin rules as setting out where asylum seekers should apply for asylum; but that’s not the same as a legal requirement to apply in a certain country.
Travelling through one or more safe countries to apply in a particular country doesn’t mean that the asylum-seekers don’t have a genuine refugee claim; it just means that they prefer some countries to others, due to language or family links, for example. That doesn’t mean that they have a legal right to have their preference accepted; but nor does it mean that they are lying when they say that they faced persecution.
(Note: part of this answer is adapted from my previous discussion of this issue in a 2015 blog post on the supposed EU refugee crisis).
What do the Dublin rules say about which country has to consider an asylum application?
It’s often claimed that the Dublin rules say that an asylum-seeker has to claim asylum in the first EU country they reach. Apart from the fact that the rules don’t regulate asylum seekers directly – as discussed above – the ‘first country they enter’ point is oversimplified. That’s not a rule as such, although in practice the Dublin rules will often – but not always – amount to assigning responsibility to the first country of entry.
The Dublin rules include a special rule for responsibility for unaccompanied minors, and then rules about responsibility for family members of someone who already has refugee or subsidiary protection status, or who has applied for it. (In fact, some asylum seekers come to the UK under the Dublin rules on the basis of such family member links). They also assign responsibility to a State which first issued an asylum seeker with a visa or residence permit, or which waived the visa requirement for them to enter. It also assigns responsibility to a State which they first entered illegally, or where they stay without authorisation.
These criteria are often hard to prove, and the Dublin rules set out details about how States must cooperate applying them. It’s easier to apply them where the asylum-seeker has been fingerprinted already as an asylum-seeker or irregular entrant, because the Eurodac database then contains a record of this. Also, States have the option to consider an asylum application if they are not obliged to do so under the rules.
It’s often argued that France is a ‘safe’ country for asylum seekers. The Dublin rules assume that all Member States are safe, but the case law of the CJEU and European Courts of Human Rights have recognised exceptions, either where there is a systemic problem with the asylum system of a Member State (NS and MSS cases), or where there are problems for specific asylum seekers amounting to a real risk of torture or inhuman or degrading treatment (Tarakhel and CK cases). An asylum seeker might challenge their return to France under the Dublin rules on that basis. If their challenge fails, this does not mean that they are not a genuine refugee; it simply means that their transfer to France, which is responsible for considering their asylum application, can go ahead. But this brings us to the question of how much longer the Dublin rules will apply between the UK and France.
What’s the impact of Brexit?
The UK is still bound by the UN Refugee Convention and the ECHR, because (as noted above) these are separate sources from EU law. In contrast, the impact of Brexit on the UK and EU asylum law is a rather different kettle of fish.
The withdrawal agreement keeps in place the Dublin rules and other EU asylum legislation which binds the UK until the end of the transition period (discussed here), which is the end of 2020. During this period, the UK retains its opt out over new EU asylum laws (and its capacity to opt in to those laws, if they amend existing EU laws which apply to the UK). The withdrawal agreement contains no common rules on what happens to Dublin cases pending at the end of the transition period; the UK has adopted unilateral rules on this issue, but it remains to be seen what approach Member States will take.
It’s possible that after that point a new treaty between the EU and UK, perhaps keeping in force the Dublin rules or some version of them, could be agreed. However, there is no reference to this possibility in the political declaration on the future relationship between the UK and EU (annotated here) – although that declaration is not binding, so can’t prevent such a treaty being negotiated if the two sides wish. Although the EU has signed Dublin ‘association agreements’ with some non-EU countries – Norway, Iceland, Switzerland and Liechtenstein – the rationale for this is that those countries are also associated with the EU’s Schengen system. In practice, the UK has tabled proposals for treaties on readmission of people and unaccompanied minors, which would replace aspects of the Dublin system, but the EU proposals do not so far deal with this issue.
Alternatively the UK could arguably sign treaties or reach informal arrangements with individual Member States. (It’s not clear to what extent EU asylum laws confer external competence on the EU on asylum issues, which might limit Member States from doing this). Failing that (or in addition to it), the UK might try to make greater efforts than it does now to return asylum-seekers to non-EU countries – although the basic international law obligations (in the Refugee Convention, the ECHR, and under other international law) not to return a refugee to an unsafe country will still apply.
The notion that those intercepted in the Channel or detected after crossing the Channel could be forcibly returned to France without that country’s consent is a non-starter (as is patrolling French territorial waters without consent). The referendum result is not a mandate to ‘take back control’ of a different country – least of all a country which English forces were booted out of in 1453. Comparisons to Australian policy miss the point: that country intercepts asylum seekers in international waters, and obtains the consent of the country or territory which it sends asylum seekers to.
However, the separate bilateral treaties in force between the UK, France and other nearby states relating to ‘juxtaposed controls’ – the exercise of power by the immigration control officers of one country on the territory of another – will not automatically cease to apply at the end of the transition period. These include notably the Le Touquet treaty, as supplemented in 2018 by the Sandhurst agreement, which provides for some broader UK/France cooperation. Note, however, that while juxtaposed controls are linked to an asylum responsibility system, and the former treaty includes a provision on responsibility for asylum claims made to UK border officials exercising controls in France (or before a vessel departs), they are not a full asylum responsibility system as such. In particular these treaties have no direct impact on people who evade such controls by crossing the Channel on boats without authorisation. The UN Protocol on the trafficking in persons, the Council of Europe Convention on trafficking in human beings and the UN protocol on smuggling of migrants oblige States to take back their citizens and some permanent residents who have been smuggled or trafficked; but there's notably no obligation to take back other non-citizens who have been smuggled or trafficked from their territory.
The end result of this is that for one category of non-EU citizens – asylum-seekers whose application would be the responsibility of another country under the Dublin rules – the effect of Brexit may be ultimately to reduce UK control of migration, not increase it. What a tangled web some people weave, when first they practice to deceive.
*Amended on August 9 2020, as regards asylum applications made to UK border officials under the Le Touquet treaty. Amended on August 12 2020 to add a sentence on the UN Protocols on trafficking and smuggling of persons and the Council of Europe Convention on trafficking in human beings.
Barnard & Peers: chapter 27, chapter 26
JHA4: chapter I:5
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