Brexit: refugee protection and asylum policy Contents

Chapter 2: Refugee protection: international, EU and UK policy

International refugee protection

The UN Refugee Convention and Protocol

12.The 1951 UN Convention Relating to the Status of Refugees (the Refugee Convention) is the principal framework for international refugee protection. The Refugee Convention sets out the definition of a refugee and establishes the duty of non-refoulement, which prohibits States from returning individuals to territories where they are at risk of persecution, torture, or other forms of serious or irreparable harm.2 The Convention also specifies the assistance and rights a refugee is entitled to receive, as well as refugees’ obligations to their host country.

13.According to the Refugee Convention, a refugee is someone who:

“Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable, or owing to such fear, is unwilling to return to it.”3

14.The Refugee Convention was originally limited in scope to persons fleeing events occurring before 1 January 1951, and within Europe. The 1967 UN Protocol Relating to the Status of Refugees removed these limitations, giving the Convention universal coverage.4

15.Relevant passages of the Refugee Convention and the 1967 Protocol on the definition of the term ‘refugee’ are set out in Appendix 5.

Other international instruments

16.Other relevant international legal instruments highlighted by witnesses to this inquiry include:

The Common European Asylum System (CEAS)

Establishing a common European asylum policy

17.Matters relating to asylum and immigration were first brought into the EU’s sphere of competence by the 1992 Maastricht Treaty. The Maastricht Treaty established a structure for inter-governmental cooperation in a number of areas relating to Justice and Home Affairs, including asylum and migration of non-EU nationals.8

CEAS: phase one

18.The 1997 Treaty of Amsterdam established a new Title IV on ‘visas, asylum, immigration and other policies related to the free movement of persons’, which gave the EU powers to adopt measures on asylum and immigration. Between 2000 and 2006, the EU adopted six legislative measures relating to asylum, now known as the ‘first phase’ of the Common European Asylum System (CEAS):

19.Under the provisions (then) applying in the Treaty of Amsterdam governing the UK’s opt-in arrangements, the UK chose to participate in all the CEAS measures adopted under the so-called first phase.16

CEAS: phase two

20.The 2007 Treaty of Lisbon maintained the UK’s right to decide whether or not to participate in the new Title V (Justice and Home Affairs) and the Schengen acquis (the rules and legislation regulating the Schengen Area).17 The UK subsequently chose not to be bound by parts of the second phase of the CEAS, which ‘recast’ five of the original CEAS measures.

21.Phase two of the CEAS aimed to establish harmonised, rather than minimum, asylum standards. This was intended to reassure judicial systems that asylum seekers would have due access to international protection in any EU Member State, and thereby underpin the system of transferring (or ‘returning’), asylum seekers to the Member State established as responsible for them according to the Dublin criteria.18

Table 1: UK participation in CEAS: phase two

Instrument

UK opt-in

The 2001 Temporary Protection Directive

Yes. (this Directive was not recast so the UK is bound by its original opt-in)

The 2012 Qualification Directive (recast)19

No

The 2013 Eurodac Regulation (recast)20

Yes

The 2013 Dublin III Regulation (recast)21

Yes

The 2013 Reception Conditions Directive (recast)22

No

The 2013 Asylum Procedures Directive (recast)23

No

Source: Written evidence from the British Red Cross (AIP0008)

22.Where the UK did not opt into the recast measures, it remains bound by the original phase one CEAS instruments.24

UK participation in other aspects of EU asylum cooperation

23.Outside of the CEAS, the UK also participates selectively in various other aspects of EU asylum cooperation:

Table 2: Other EU asylum and migration measures

Measure

Purpose

UK participation

European Asylum Support Office (EASO)

An agency to support facilitate, coordinate and strengthen practical cooperation among EU Member States on asylum.

Yes

Frontex

An agency to coordinate cooperation between Member States in external border management, and provide training, technical help, and operational assistance.

No

However, the UK may collaborate with Frontex operationally on a case-by-case basis.

EUNAVFOR MED (Operation Sophia)

A military crisis management operation aiming to disrupt human smuggling and trafficking networks in the Southern Central Mediterranean.

Yes

Asylum, Migration and Integration Fund (AMIF)

A fund to promote the efficient management of migration flows and the implementation, strengthening and development of a common EU approach to asylum and immigration.

Yes

EU Readmission Agreements

Agreements the EU has concluded with 17 third countries providing for the readmission of those countries’ own nationals who do not have a lawful basis of residence in the EU.

Yes

(The UK participates in most of these agreements)25

Returns Directive

Sets minimum standards for the return of third-country nationals staying illegally on the territory of an EU Member State.

No

Immigration Liaison Officers (ILO) network

Allows Member States to send ILOs to non-EU countries to establish and maintain contacts with the relevant authorities of that country, with a view to combatting illegal immigration.

Yes

Family Reunification Directive

Establishes common rules governing the exercise of the right to family reunification by third country nationals, including special rules for refugees.

No

Source: European Parliament, The future relationship between the UK and the EU in the field of international protection following the UK’s withdrawal from the EU, (October 2018): http://www.europarl.europa.eu/RegData/etudes/STUD/2018/608836/IPOL_STU(2018)608836_EN.pdf [accessed 2 August 2019] and European Union Committee, Operation Sophia, the EU’s naval mission in the Mediterranean: an impossible challenge (14th Report, Session 2015–16, HL Paper 144)

Criticisms of the CEAS

24.Despite the ambitions of the second phase of CEAS reforms, witnesses to this inquiry were clear that the establishment of a truly common European asylum system was an “ongoing project”.26

25.The European Children’s Rights Unit (ECRU) and Liverpool Law Clinic, based at the University of Liverpool, said that the aims sought by the CEAS had been “achieved to varying degrees”. In particular, they considered that the Dublin Regulation was “not operating in the way intended … to provide a clear, swift means” of determining responsibility for processing an asylum claim, and transferring asylum seekers to the responsible Member State. They argued that Member States were applying the discretion available to them under the Dublin Regulation in a “self-interested, negative way”, with transfers “typically characterised by lengthy, complex and often hostile proceedings”, which failed to comply with specified time limits.27

Table 3: Time limits for Dublin transfers

Procedure

Timeframe

Submitting take charge requests

Three months from receiving an asylum application or within two months of a ‘hit’ on the Eurodac database.

Replying to take charge requests

Two months after receiving the request.

Transferring applicants

Within six months of the acceptance of the request or the final decision on an appeal or review.

Source: Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, OJ L 180 (29 March 2013)

26.Professor Bernard Ryan and Alan Desmond, of the University of Leicester, believed that the Dublin System was “too oriented to the position of states, and [did] not take into account the legitimate preferences of individuals”. They acknowledged that the CEAS had succeeded in establishing common minimum standards for asylum, but added: “At the same time, the extent to which common harmonised standards are in place across the [EU] is questionable, particularly in light of judicial condemnation of reception conditions for asylum seekers in individual EU countries.”28

27.Judith Dennis, Policy Manager at the Refugee Council, agreed that the implementation of the CEAS Directives relating to reception conditions and procedures was “still very variable”, and thought that the EU had not yet achieved “the vision of it not mattering which European member state one claims asylum in”.29 Rossella Pagliuchi-Lor, UNHCR’s Representative to the UK, explained:

“That is the first reason why many [asylum seekers] tend to choose one country over another, particularly countries where the existence of a community gives them better chances of receiving assistance and help to integrate.”30

28.Refugee Rights Europe told us that their research indicated “widespread human suffering across the continent, as a direct or indirect result of the CEAS, Dublin protocols and national level policies”, including:

The 2015 refugee crisis

29.In 2015–16, more than a million refugees and other migrants—a high proportion of whom were fleeing the conflict in Syria—arrived in the EU.33 The asylum systems of several Member States struggled to cope with this unprecedented influx of asylum seekers, particularly those in Italy and Greece, which faced disproportionate numbers of arrivals due to their location at the southern external border of the EU. As a result, many asylum seekers chose to travel north rather than applying for asylum at their first point of entry to the EU.

30.In response, eight Schengen States temporarily reinstated controls at some intra-EU border crossing points. At the EU-level, a new Agenda for Migration34 established additional support for the registration of asylum seekers at ‘hotspot’ arrival points in Greece and Italy, and plans to relocate 160,000 asylum seekers from these hotspots to other EU countries. Legislative proposals for further reform of the CEAS, EASO, and Frontex were tabled in 2016.35

31.Several witnesses commented on the implications of the 2015 crisis for the CEAS. Prof Ryan and Alan Desmond, for example, thought that efforts to relieve the pressure on Italy and Greece through relocation had had “limited success, on account of the opposition of a number of Member States”.36 Professor Elspeth Guild, Professor of Law at Queen Mary University of London, suggested: “[The relocation mechanism] has not been a great success and has created an enormous amount of ill will, with the idea and the creation of two camps: the western European camp and now the Visegrád camp.”37

32.ECRU and Liverpool Law Clinic referred to a recent report by the European Council for Refugees and Exiles, which found that, after the crisis, a minority of EU countries—Germany, France, Italy, and Spain—continued to shoulder the main burden of asylum applications in the EU.38 Dr Hanne Beirens, Acting Director of the Migration Policy Institute Europe, explained that this imbalance had brought the issue of “fair responsibility sharing” to the fore in negotiations on proposed EU asylum reforms, with significant disagreement over “the question of what it means to do your fair share and how you then make sure all Member States duly apply it”. Dr Beirens continued:

“The frustration is so high that Member States are now willing to resort to quite drastic measures; for example, Italy saying, ‘No more boats in our harbours’, and some western European countries actively contemplating rethinking the Schengen system and saying, ‘Let us make participation in it contingent or conditional upon people doing their fair share on asylum’.”39

33.Efforts to address pressure on the asylum systems of EU border states through the creation of a relocation mechanism in the proposal to reform the Dublin System (Dublin IV40) have been contentious—holding up negotiations on the entire package of asylum reforms. At the time of drafting, these reforms have yet to be agreed.41

Figure 1: Proposed reforms to the EU’s asylum system

Graphic of reforms, the reason for the reform and the associated legilslative proposal

Source: European Commission, The Common European Asylum System (CEAS), (July 2016): https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/background-information/docs/20160713/factsheet_the_common_european_asylum_system_en.pdf [accessed 4 August 2019]

34.Despite delays and disagreement, Refugee Rights Europe believed:

“The current ongoing reform efforts aimed at changing the Common European Asylum System are an important opportunity to implement lessons learned from recent years, creating a system that works better for the displaced, host communities, national governments and EU institutions.”42

Routes to asylum in the UK

35.The CEAS provides one route for asylum seekers to come to the UK—via a Dublin transfer—but there are several other ways that people in need of international protection might seek refuge in the UK.

Asylum

36.Asylum seekers who arrive spontaneously—those who reach the UK by their own means and are encountered at their point of entry, or later by police or social services—must apply for asylum if they want to stay in the UK as a refugee. Applicants register their asylum claim at a meeting with an immigration officer known as a ‘screening’. During this meeting, the applicant will be photographed, fingerprinted, and interviewed, and must produce passports, travel documents, and identification documents (if they have them). After this, the person will be assigned a caseworker and may be detained at an immigration removal centre while their application is considered. The applicant will undergo a further interview to explain and provide evidence to support their asylum claim, before their application is granted or denied. Successful asylum applicants will usually be granted five years’ leave to remain, after which they can apply to settle in the UK.43

Refugee resettlement programmes

37.Resettlement is a separate process, under which people are granted refugee status or another form of protection while abroad and then brought to live in the UK through a resettlement programme. The UK operates four resettlement programmes (see Box 1) with UNHCR undertaking all out-of-country casework: identifying and interviewing registered refugees, assessing their vulnerability and whether they meet UNHCR resettlement criteria, before referring them to the UK for consideration.

Box 1: UK refugee resettlement programmes

Gateway:

  • aims to resettle 750 refugees per year;
  • people resettled through Gateway must have been living in a protracted refugee situation for over five years, unless there is an urgent need for resettlement (e.g. life endangerment);
  • individuals are granted Indefinite Leave to Enter44 as a refugee on arrival;
  • costs are funded by the Government for 12 months.

Mandate:

  • resettles recognised refugees with a close family member in the UK who is willing to accommodate them;
  • the refugee must be a minor child, spouse, or parent or grandparent aged over 65 of someone settled in the UK;
  • no annual resettlement quota or target;
  • resettled refugees are expected to be accommodated and supported by their family member in the UK.

Vulnerable Persons Resettlement Scheme (VPRS) and Vulnerable Children’s Resettlement Scheme (VCRS):

  • VPRS resettles refugees currently in Egypt, Iraq, Jordan, Lebanon or Turkey who have fled the recent Syrian conflict (i.e. after March 2011);
  • VCRS resettles child refugees and their families currently in Egypt, Iraq, Jordan, Lebanon or Turkey, where UNHCR deem resettlement to be in the best interests of the child;
  • VPRS has a target of resettling 20,000 refugees between 2015 and 2020;
  • VCRS has a target of resettling 3,000 refugees between 2016 and 2020;
  • individuals resettled though VPRS and VCRS are granted five years’ refugee leave on arrival, and may then apply for Indefinite Leave to Remain free of charge;
  • the VPRS and VCRS are delivered in partnership with local authorities and stakeholders in the voluntary, private and community sectors;
  • costs that fall to local authorities during the first year are reimbursed using the overseas aid budget; further funding is allocated on a tariff basis over years two to five of the scheme, based on individual need.

Source: Home Office, Resettlement: policy statement, (July 2018): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/730643/Resettlement_Policy_document_.pdf [accessed 4 August 2019]

38.As of 24 May 2019, 15,977 people had been resettled in the UK under the VPRS and 1,410 had been resettled through the VCRS.45

39.On the whole, witnesses to this inquiry were positive about UK resettlement efforts in recent years. Judith Dennis, for example, said that the UK’s resettlement programmes “massively expanded” in 2014 and 2015, and the UK could now “rightly call itself a global leader in resettlement”.46 The Refugee Council told us that the UK was third in the world in terms of the numbers of people resettled, and praised the design of recent resettlement schemes:

“Importantly, the VCRS and VPRS have been designed with adequate funding and allowing for long-term support, to better aid integration. The success of these schemes should provide a model for how resettlement can be delivered in rich, developed countries throughout Europe.”47

Other routes

Family reunion

40.In addition to family reunion transfers taking place under the Dublin System, the UK has its own refugee family reunion rules. Under these rules, partners and children of people with refugee status, humanitarian protection or settlement on protection grounds may apply to join them in the UK. Partners include a person’s husband, wife, civil partner or person they have been in a genuine relationship with for two years before applying to settle. Children must be under the age of 18 and not married or in a civil partnership. Child refugees in the UK are not allowed to sponsor their parents or other family members to join them.48

The ‘Dubs scheme’

41.In 2016 Lord Dubs led a successful campaign to amend the Immigration Bill to commit the UK to relocating and supporting unaccompanied refugee children from other countries in Europe. The so-called ‘Dubs amendment’ initially specified a target of 3,000 children, but this was rejected by the House of Commons. A subsequent version of the amendment with no fixed target was accepted by the Government in May 2016, and became section 67 of the Immigration Act 2016.

Box 2: The ‘Dubs scheme’

Unaccompanied refugee children: relocation and support

1.The Secretary of State must, as soon as possible after the passing of this Act, make arrangements to relocate to the United Kingdom and support a specified number of unaccompanied refugee children from other countries in Europe.

2.The number of children to be resettled under subsection (1) shall be determined by the Government in consultation with local authorities.

3.The relocation of children under subsection (1) shall be in addition to the resettlement of children under the Vulnerable Persons Relocation Scheme.

Source: Immigration Act 2016, section 67

42.Following consultation with local authorities, the Government set a cap of 480 child refugees allowed to transfer to the UK through the Dubs scheme, of whom approximately 220 have arrived so far.49

Humanitarian protection

43.Humanitarian protection was introduced in 2003 to fulfil the UK’s obligations under the 2004 EU Qualification Directive. It replaced the previous Exceptional Leave to Remain (ELR) policy.50

44.Humanitarian protection (referred to as subsidiary protection in EU law) is for people who do not qualify for refugee status under the terms of the Refugee Convention but are still in need of international protection. Under the UK’s Immigration Rules, a person may be granted humanitarian protection when they face a real risk of serious harm on one or more of the following grounds: the death penalty or execution, unlawful killing, torture or inhuman or degrading treatment, prison conditions, general violence and other severe humanitarian conditions, or, indiscriminate violence.

45.People who qualify for humanitarian protection are usually granted five years’ limited leave to remain, during which time they may work and can access public funds if needed. After five years, a safe return review will be carried out to determine whether the person is still in need of protection and may be placed on a route to settlement. If the person no longer qualifies for protection, they must to apply to remain on another basis or leave the UK.51

How many asylum seekers are in the UK?

46.In 2018 the UK received approximately 30,000 asylum applications from ‘main applicants’ (not including dependents). The number of asylum applicants received in any given year does not, of course, reflect the number of asylum seekers in the UK, as the process of applying for asylum can continue over several months, or even years, between an initial decision, appeal, and potentially a judicial review. Other approaches to quantifying the number of asylum seekers in the UK include looking at the number of asylum cases ‘in progress’—88,848 at the end of June 2018—and the number of people receiving the benefit given to asylum seekers who do not have independent means—44,258 at the end of December 2018.52

How does the UK compare with other countries?

47.Several witnesses drew our attention to the relatively low number of asylum seekers in the UK compared to other countries. Prof Guild, for example, told us that the UK received about 6% of asylum seekers who applied for protection in the EU. Rossella Pagliuchi-Lor noted that the UK—as was the case in many other countries—tended to “overestimate the number of people who come to that country relative to other countries”. She observed that, in 2017, the UK received 35,000 new asylum applications, compared to 93,000 applications in France, 127,000 in Italy, and 198,000 in Germany.53

48.Figure 2 shows a comparison of the total number of asylum applications lodged in States participating in the Dublin System (the EU Member States, Iceland, Norway, Switzerland and Liechtenstein) during 2017 and 2018.

Figure 2: Asylum applications lodged in Dublin States, by receiving country and year 2017–18

Stacked bar graph showing asylum applications lodged in Dublin States by receivging country 2017 and 2018, along with percentage change

Source: EASO, Annual Report on the Situation of Asylum in the European Union 2018, (June 2019): https://www.easo.europa.eu/sites/default/files/easo-annual-report-2018-web.pdf [accessed 2 August 2019]

49.Colin Yeo, an immigration barrister at Garden Court Chambers, agreed that the UK took “comparatively few people in comparison to other EU countries, particularly per population”. He added:

“A lot of countries would be surprised to hear us having this kind of discussion about 30,000 asylum seekers per year. The number of refugees or internally displaced persons that Middle Eastern countries … end up hosting is huge compared to the number that we are talking about, which is very small.”54

50.According to UNHCR, nearly 70.8 million people were displaced at the end of 2018, including 41.3 million internally displaced people, 25.9 million refugees, and 3.5 million asylum seekers. About 80% of refugees live in countries neighbouring their countries of origin, which—as Rossella Pagliuchi-Lor pointed out—are often countries with far smaller populations and “immeasurably smaller resources” than European countries.55

Figure 3: Refugee numbers in the UK compared to top refugee-hosting countries in 2018

Bubble diagram of refugee numbers in 2018 of selected countries

Source: UNHCR, Global Trends: forced displacement in 2018, pp 65–68 (June 2019): https://www.unhcr.org/5d08d7ee7.pdf [accessed 28 August 2019]

Recent trends

51.The number of asylum applications in the UK peaked in 2002 and has since fallen substantially. Despite the 2015 refugee crisis, the number of applications for asylum in the UK has remained fairly stable over the past five years (see Figure 4).

Figure 4: Asylum applications in the UK

Bar chart showing number of asylum applications in UK 1984-2018

Source: Georgina Sturge, ‘Migration statistics: How many asylum seekers and refugees are there in the UK?’ House of Commons Library, (18 March 2019): https://commonslibrary.parliament.uk/insights/migration-statistics-how-many-asylum-seekers-and-refugees-are-there-in-the-uk/ [accessed 5 August 2019]

52.There was an increase in asylum applications across the EU during the first part of 2019, although numbers are still significantly lower than during the peak of the 2015–16 crisis. According to EASO, the total number of asylum applications lodged in the EU between January and May 2019 was up by 14% compared to the same period in 2018. For May 2019, the most common countries of origin of asylum applicants were Syria, Afghanistan, and Venezuela, with Iraq, Colombia, Nigeria, Pakistan, Iran, Turkey and Georgia also featuring among the top 10. Compared to the first five months of 2018, there were three times as many asylum applications from Colombians, twice as many from Hondurans and Venezuelans, and 3,000 applications from Nicaraguans compared to just one hundred the previous year.56

53.Dr Beirens observed that a substantial proportion of current asylum applicants in the EU were from Latin and Central American countries with visa-free travel arrangements to the Schengen Area. She explained that the problem of visa loopholes was causing concern among some Member States, and expected it to become a priority issue for the EU.57

Conclusions

54.The 1951 UN Refugee Convention, and its 1967 Protocol, provide the foundation of international obligations relating to the protection of refugees. The Refugee Convention defines who is a refugee, establishes the duty of non-refoulement, and outlines refugees’ rights as well as their obligations to their host country. Other relevant international instruments include the UN Conventions against Torture and on the Law of the Sea, and the European Convention on Human Rights (ECHR).

55.Within this framework, the EU has developed a Common European Asylum System (CEAS) which seeks to establish common standards for the reception and treatment of asylum seekers. Key CEAS measures include the Dublin System—to determine which Member State is responsible for examining an asylum application lodged in the EU—and the Eurodac database of the fingerprints of asylum seekers.

56.While the CEAS has successfully established common minimum standards for examining asylum applications in the EU, it has not yet been able to achieve harmonisation to ensure that, no matter where someone applies for asylum in the EU, the outcome will be similar.

57.The Dublin System has been characterised by low numbers of, and inefficiency in processing, transfer cases, although improvements have been made, particularly with regard to family reunion. The 2015 refugee crisis exposed further flaws, as a minority of EU countries faced a disproportionate burden in terms of arrival numbers and significant numbers of people chose to travel north rather than applying for asylum in the first EU country they reached.

58.Negotiations on further reforms to the CEAS have stalled due to significant disagreement among Member States over plans to establish a ‘corrective allocation mechanism’ in the proposed Dublin IV Regulation to relieve the pressure on countries facing high numbers of asylum arrivals.

59.The UK has a selective relationship with the CEAS. It participates fully in the Dublin and Eurodac Regulations but only opted into the original Directives on reception conditions, asylum procedures, and qualification for international protection (not the phase two recast versions).

60.At the national level, there are a number of routes through which people in need of international protection might seek refuge in the UK, including: the asylum process for spontaneous arrivals, four refugee resettlement programmes, family reunion rules, the ‘Dubs scheme’ for unaccompanied children, and humanitarian protection.

61.The UK receives a relatively low number of asylum applications compared to other European countries, not to mention the total number of displaced people worldwide. Despite the 2015 refugee crisis, the number of applications for asylum in the UK (30,000 in 2018) has remained fairly stable over the past five years. Across the EU, the number of people arriving to seek asylum has fallen significantly since the 2015 crisis, but has recently begun to rise, with notable increases in applicants from Latin and Central American countries.


2 UN High Commissioner for Refugees (UNHCR), The 10-Point Plan in Action, 2016: Glossary, December 2016, available at: https://www.refworld.org/docid/59e99eb94.html [accessed 28 August 2019]

Refoulement can result following e.g. interception operations, rejection at the frontier or return to third countries (indirect refoulement). The principle is expressed in Article 33(1) of the Refugee Convention and is part of customary international law i.e. it is binding on all States whether or not they are parties to the Refugee Convention or other international or refugee human rights law.

3 UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p 137: https://www.refworld.org/docid/3be01b964.html [accessed 30 July 2019]

4 UN General Assembly, Protocol Relating to the Status of Refugees, 31 January 1967, United Nations, Treaty Series, vol. 606, p 267: https://www.refworld.org/docid/3ae6b3ae4.html [accessed 30 July 2019]

5 Written evidence from Professor Elspeth Guild (AIP0001)

6 Written evidence from the Immigration Law Practitioners’ Association (AIP0002). See also: Irini Papanicolopulu, ‘The duty to rescue at sea, in peacetime and in war: A general overview’, International Review of the Red Cross, vol. 98 (2016), pp 491–514: https://www.icrc.org/en/download/file/56144/irc98_7.pdf [accessed 8 August 2019]

7 Written evidence from Professor Elspeth Guild (AIP0001), the Immigration Law Practitioners’ Association (AIP0002), and Professor Bernard Ryan & Alan Desmond (AIP0006). See also: European Court of Human Rights, Asylum (2016): https://www.echr.coe.int/Documents/COURTalks_Asyl_Talk_ENG.PDF [accessed 2 August 2019] and case law arising under Articles 2 and 3 ECHR (the right to life and prohibition against torture and/or ill-treatment): Saadi v Italy (No. 37201/06), Judgment of 28 February 2008, Auad v Bulgaria (No. 46390/10), Judgment of 11 October 2011, Al-Saadoon and Mufdi v the United Kingdom (No. 61498/08), Judgment of 2 March 2010.

8 HM Government, Review of the Balance of Competences between the United Kingdom and the European Union: Asylum & non-EU Migration (February 2014), p 17: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/279096/BoC_AsylumImmigration.pdf [accessed 2 August 2019]

9 Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national OJ L 50 (25 February 2003). So-called because it built on the principles of a Convention signed in Dublin in 2000 by the Member States of the (then) European Communities, which set out criteria for determining responsibility for examining asylum applications. This Convention entered into force in September 1997.

10 Council Regulation (EC) No 2725/2000 of 11 December 2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention OJ L 315 (15 December 2000)

11 Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof OJ L 212 (7  August 2001)

12 Q 37 (Professor Elspeth Guild)

13 Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers OJ L 31 (6 February 2003)

14 Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted OJ L 304 (30 August 2004)

15 Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status OJ L 326 (13 December 2005)

16 HM Government, Review of the Balance of Competences between the United Kingdom and the European Union: Asylum & non-EU Migration, February 2014, p 18: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/279096/BoC_AsylumImmigration.pdf [accessed 2 August 2019]

17 Under Protocol 21 of the Treaty of Lisbon the UK must communicate to the President of the Council its desire to participate in EU legislation brought forward under a Justice and Home Affairs legal basis (to ‘opt in’). Under Protocol 19 of the Treaty of Lisbon, the UK can request to participate in some or all of the provisions of the Schengen acquis. In line with this, the UK currently participates in the police and judicial cooperation aspects of Schengen but not those dealing with border controls. The UK is presumed to be in any new measures that build upon those parts of the Schengen acquis in which it already participates, unless it notifies the President of the Council that it does not wish to take part (to ‘opt out’).

The Schengen Area is currently made up of the EU Member States (except Bulgaria, Croatia, Cyprus, Ireland, Romania and the UK) and four non-EU States: Iceland, Norway, Liechtenstein and Switzerland. Checks at the internal borders of Schengen States are abolished, while controls at the Area’s external borders are tightened, in accordance with a single set of rules. European Commission, ‘Schengen Area’: https://ec.europa.eu/home-affairs/what-we-do/policies/borders-and-visas/schengen_en [accessed 4 August 2019]

18 Written evidence from the European Children’s Rights Unit and Liverpool Law Clinic (AIP0007) and the British Red Cross (AIP0008), Q 2 (Featonby) and Q 18 (Dr Hanne Beirens)

19 Directive 2011/95 of 13 December 2011 OJ L 337 (20 December 2011)

20 Regulation (EU) 603/2013 of 26 June 2013 OJ L 180 (29 June 2013)

21 Regulation (EU) 604/2013 of 26 June 2013 OJ L 180 (29 June 2013)

22 Directive 2013/33 of 26 June 2013 OJ L 180 (29 June 2013)

23 Directive 2013/32 of 26 June 2013 OJ L 180 (29 June 2013)

24 Written evidence from the European Children’s Rights Unit and Liverpool Law Clinic (AIP0007)

25 We note that, since 2010, the UK Government has unilaterally asserted that its opt-in arrangements apply to some of the international agreements negotiated by the EU that underpin these readmission agreements. The Government has argued unsuccessfully to that end before the Court of Justice of the EU (CJEU). See, for example, case 377/12, European Commission v the Council of the European Union (the Philippines case), Judgment 11 June 2014. We examined the implications of this approach in our 2015 report: European Union Committee, The UK’s opt-in Protocol: implications of the Government’s approach (9th Report, Session 2014–15, HL Paper 136)

26 Written evidence from Professor Bernard Ryan & Alan Desmond (AIP0006)

27 Written evidence from the European Children’s Rights Unit and Liverpool Law Clinic (AIP0007)

28 Written evidence from Professor Bernard Ryan & Alan Desmond (AIP0006)

29 Q 2 (Judith Dennis)

30 Oral evidence taken on 6 February 2019 (Session 2017–19), Q 5 (Rossella Pagliuchi-Lor)

31 The ‘hotspot’ approach involves the EU agencies EASO and Frontex working on the ground to support the authorities of those EU States facing disproportionate migratory pressures at the EU’s external borders.

32 Written evidence from Refugee Rights Europe (AIP0009)

33 See for example written evidence from Professor Elspeth Guild (AIP0001) and Professor Bernard Ryan & Alan Desmond (AIP0006)

34 Communication from the Commission on a European Agenda on Migration, COM(2015) 240 final (13 May 2015)

35 Jan-Paul Brekke & Anne Staver, ‘The renationalisation of migration policies in times of crisis: the case of Norway’, Journal of Ethnic and Migration Studies, vol. 44, (2018), pp 2163–2181: https://www.tandfonline.com/doi/full/10.1080/1369183X.2018.1433026 [accessed 4 August 2019]

As of 2019, Prof Guild told is: “the Nordic region has continued to apply some border controls among their states, Germany continues to apply some controls with Austria, and France retains the exceptional power on counter-terrorism grounds. But the impact of these controls has diminished very considerably.” Written evidence from Professor Elspeth Guild (AIP0001). See also Appendix 4: Visit to Oslo.

36 Written evidence from Professor Bernard Ryan & Alan Desmond (AIP0006)

37 Q 37 (Professor Elspeth Guild). The Visegrád group is a cultural and political alliance of four EU Member States: the Czech Republic, Hungary, Poland, and Slovakia.

38 Written evidence from the European Children’s Rights Unit and Liverpool Law Clinic (AIP0007). See also European Council on Refugees and Exiles, The implementation of the Dublin III Regulation 2018, (March 2019): http://www.asylumineurope.org/sites/default/files/aida_2018update_dublin.pdf [accessed 8 August 2019]

39 Q 18 (Dr Hanne Beirens)

40 This proposal COM(2016) 270 final was sifted for examination to the House of Lords EU Home Affairs Sub-Committee and remains held under scrutiny.

41 Written evidence from Refugee Rights Europe (AIP0009) and 28 (Dr Hanne Beirens)

42 Written evidence from Refugee Rights Europe (AIP0009)

43 Home Office, ‘Claiming asylum in the UK’: https://www.gov.uk/claim-asylum [accessed 4 August 2019]

44 Leave to Enter is granted to a person who is outside of the UK. Leave to Remain is granted to a person who is present in the UK.

45 Written Answer 260061, [Commons written answer]

46 Q 4 (Judith Dennis)

47 Written evidence from the Refugee Council (AIP0003)

48 Home Office ‘Settlement: refugee or humanitarian protection: Family reunion’: https://www.gov.uk/settlement-refugee-or-humanitarian-protection/family-reunion [accessed 4 August 2019]. See also oral evidence taken on 13 March 2019 (Session 2017–19), Q 13 (Rt Hon Caroline Nokes MP, then Immigration Minister).

49 QQ 10–11 (Lord Dubs)

The Minister told us that over 220 Dubs children were transferred to the UK when the Calais camp was cleared in late 2016. Since that time, he said that the UK had made “continuous progress … to refer and transfer more eligible children to move closer to the commitment to transfer 480 children.” Letter dated 10 September 2019 from Rt Hon Brandon Lewis MP, Minister of State for Security and Deputy for EU Exit and No Deal Preparation, to Lord Jay of Ewelme (see Appendix 7)

50 Under ELR, a person would usually be given four years’ leave to remain in the UK, after which they would have to apply for indefinite leave to remain.

52 Georgina Sturge, ‘Migration statistics: How many asylum seekers and refugees are there in the UK?’ House of Commons Library, (18 March 2019): https://commonslibrary.parliament.uk/insights/migration-statistics-how-many-asylum-seekers-and-refugees-are-there-in-the-uk/ [accessed 5 August 2019]

53 Oral evidence taken on 6 February 2019 (Session 2017–19), Q 2 (Rossella Pagliuchi-Lor)

54 Q 36 (Colin Yeo)

55 UNHCR, Global Trends: forced displacement in 2018, (June 2019): https://www.unhcr.org/5d08d7ee7.pdf [accessed 5 August 2019] and oral evidence taken on 6 February 2019 (Session 2017–19), Q 2 (Rossella Pagliuchi-Lor)

56 EASO, ‘Latest asylum trends: May 2019’, (8 July 2019): https://www.easo.europa.eu/latest-asylum-trends [accessed 5 August 2019]

57 Q 26 (Dr Hanne Beirens)




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