Professor Steve Peers, University of Essex*
*Supported by an ESRC Priority Brexit Grant on 'Brexit and
UK and EU Immigration Policy'.
Cynical politicians, aided by an
uncritical media, aim to manufacture a moral panic from a modest number of
people crossing the Channel. Be that as it may, 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 might also be useful to address some legal issues
here, in a question and answer format.
Where are the international law rules on asylum?
They are scattered all over the
place incoherently. International lawyers like to describe their subject as ‘fragmented’,
and that’s particularly true of asylum law. There are three main sources of law
on asylum in Europe, and although they are legally separate, their rules overlap
and interact. I won’t discuss every way in which this happens in this blog post
– just those most relevant to the Channel crossings.
The UN Refugee Convention
The starting point is the United
Nations (Geneva) Convention on
the status of refugees, which defines what a refugee is and lists the rights of
refugees. But that Convention does not deal with issues like asylum procedure,
and has an uneasy and uncertain relationship with immigration law.
ECHR
Secondly, the European
Convention on Human Rights (ECHR) says nothing about asylum explicitly, but
the case law of the European Court of Human Rights has addressed a number of
asylum-related issues, in particular arising from Article 3 ECHR, the ban on
torture or other inhuman or degrading treatment. According to that case law, removal
to another country to face a sufficiently serious risk of Article 3 treatment in
that other country infringes Article 3 in the country removing the person
concerned. A series of procedural obligations then follow from that. (There are other international human rights treaties
which take a broadly similar approach, but I focus here on the ECHR as its
court rulings are binding and have a greater impact in practice).
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 CEAS consists of:
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.
While some in the 2016 referendum
campaign falsely claimed or implied that the UK has no control over its borders
as an EU Member State, in fact the UK has 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.
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.
What’s the impact of Brexit?
The UK will still be 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.
If the proposed withdrawal
agreement (discussed here)
is ratified, it will keep 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, or one or two years later if the two sides decide.
(Note to those people freaking out that the withdrawal agreement provides for a
‘Joint Committee’: this sort of body is normal in international treaties, and
the Joint Committee can only take decisions if the UK government and EU side
have jointly agreed). The UK will retain 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).
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 declaration on the future relationship between the UK and EU (which I
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.
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.
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.
Barnard & Peers: chapter 27,
chapter 26
JHA4: chapter I:5
Photo credit:
whitecliffsofdover.co.uk
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