Brexit: refugee protection and asylum policy Contents

Summary of conclusions and recommendations

Refugee protection: international, EU and UK policy

1.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). (Paragraph 54)

2.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. (Paragraph 55)

3.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. (Paragraph 56)

4.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. (Paragraph 57)

5.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. (Paragraph 58)

6.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). (Paragraph 59)

7.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. (Paragraph 60)

8.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. (Paragraph 61)

Brexit implications

Leaving the CEAS

9.The November 2018 Withdrawal Agreement has been rejected three times by the House of Commons. Nonetheless, it remains the only negotiated Brexit deal on the table. If approved, the Withdrawal Agreement would ensure UK participation in the Dublin System could continue until the end of the transition period, giving the UK and the EU time to negotiate new arrangements for asylum cooperation. (Paragraph 106)

10.The Government has indicated its intention to establish a new strategic relationship on asylum and migration with the EU—replicating some of the key principles of Dublin—rather than seeking some form of continued participation in the CEAS after Brexit. (Paragraph 107)

11.The most significant implication of leaving the CEAS would be the loss of a safe, legal route for the reunification of separated refugee families in Europe. This aspect of the Dublin System has seen improvements in recent years, and family reunion cases now make up more than 80% of incoming Dublin transfers to the UK. We are particularly concerned about a potential reduction in the reunion rights of vulnerable unaccompanied children, who are able to be reunited with a broader range of family members under the Dublin System than under UK Immigration Rules. (Paragraph 108)

12.Other benefits of the Dublin System include procedural safeguards, such as time limits, and increased control over asylum applications, including the ability to identify and return applicants who have already been registered in another European country. This is of clear interest to countries like the UK who seek to enforce the principle that those in need of protection should claim asylum in the first safe country they reach. (Paragraph 109)

13.Asylum standards in the UK will only be affected by Brexit insofar as they relate to the first phase of CEAS Directives. We note concerns about the loss of procedural protections set out in these Directives, and the possibility of “retrograde steps” without the overarching EU framework of standards. Nonetheless, we are reassured that the continued application of international law—including the Refugee Convention and ECHR—should ensure there is no diminution in the treatment and protection of asylum seekers in the UK. (Paragraph 110)

14.We call on the Government to offer public reassurances that it has no intention of curtailing the rights and protections afforded to refugees in the UK after Brexit. As part of these efforts, the Government should confirm arrangements to replace the EU Asylum, Migration and Integration Fund, which supports vital refugee resettlement and integration projects in the UK. (Paragraph 111)

15.In a ‘no deal’ Brexit scenario, the UK’s sudden departure from the Dublin System could have a significant humanitarian impact on separated refugee families, leaving them in legal limbo and at risk of falling into gaps in the system. We are not satisfied that the Immigration, Nationality and Asylum (EU Exit) Regulations 2019 provide sufficient protection against disruption to family reunion routes. We urge the UK and the EU to honour their commitment to the right of refugee family reunion by negotiating an interim agreement to maintain this right in a ‘no deal’ scenario. A temporary extension of current arrangements would be the most feasible option. (Paragraph 112)

Bilateral cooperation

16.Bilateral relationships with EU Member States are essential to the effective management of UK borders, including asylum and migration flows. In particular, we highlight the system of juxtaposed border controls, which allows the UK to conduct checks on passengers and freight in France and Belgium, and France to complete Schengen entry checks in the UK. (Paragraph 113)

17.These arrangements are underpinned by bilateral and trilateral agreements, but their continued operation has come under scrutiny in the context of Brexit. Juxtaposed controls are particularly unpopular in the Calais region, where they have resulted in the establishment of unregulated camps of migrants seeking to travel to the UK to claim asylum. (Paragraph 114)

18.Calls to scrap juxtaposed controls, which followed the 2016 referendum, have now receded, and the UK and France have sought to reinforce their commitment to bilateral border cooperation through the recent Sandhurst Treaty and a joint action plan to tackle the rising trend in migrants attempting to cross the Channel in small boats. However, the effectiveness of these measures is questionable, and they have been subject to criticism for prioritising border control over humanitarian support. (Paragraph 115)

19.Although they are not formally EU-dependent, the agreements underpinning bilateral border cooperation have undoubtedly been easier to sustain under the shared umbrella of EU membership. A disruptive ‘no deal’ Brexit could place a particular strain on these relationships. There would also be significant disruption to cooperation facilitated by EU security tools and measures, as we have noted in previous reports. The Government must make every effort to maintain effective bilateral border cooperation after the UK leaves the EU, especially a ‘no deal’ scenario, when good will towards the UK is likely to be in short supply. (Paragraph 116)

Future UK-EU asylum cooperation

UK-EU cooperation

20.There is a clear shared interest in maintaining UK-EU asylum cooperation after Brexit, to support the effective management of regional migration flows in Europe. Properly managed migration will also ensure that asylum seekers and refugees—some of the most vulnerable groups in society—can continue to exercise their right to claim asylum, and receive adequate protection and integration in a timely and humane way. (Paragraph 160)

21.We support the Government’s ambition, as set out in the July 2018 White Paper on the future UK-EU relationship, to establish a new, strategic relationship with the EU on asylum and illegal migration after Brexit. But we are particularly concerned by the conspicuous lack of any reference to future UK-EU asylum cooperation in the November 2018 Political Declaration. Whether as part of any wider association agreement, or a specific cooperation arrangement, it is vital that refugees and asylum seekers are considered in any agreement on the future UK-EU relationship. (Paragraph 161)

22.Future UK-EU asylum cooperation should take the Dublin System as its starting point and include a framework for the speedy resolution of refugee family reunion cases and a returns mechanism, ideally based on continued UK access to the Eurodac database. It should have at its heart a shared agreement on, and commitment to uphold, minimum standards for refugee protection, asylum procedures, qualification, and reception conditions. Additional agreements on data protection and the respective jurisdiction of EU and UK courts will be needed to facilitate these arrangements. (Paragraph 162)

23.While the relationship of Norway with the CEAS provides a precedent for the participation of non-EU countries in the Dublin System, the UK is unlikely to be able to replicate these arrangements after Brexit, as unlike Norway it is not, and has no intention of becoming, part of the Schengen Area. Nonetheless, Dublin represents a more desirable and realistic foundation for the future UK-EU asylum relationship than attempting to create new returns arrangements from scratch. There is no evidence to support the Government’s suggestion that the UK as a third country could negotiate a “more effective and ambitious” agreement for the return or transfer of asylum seekers than the EU has been able to achieve between Member States. (Paragraph 163)

24.We believe that it is imperative that the right to reunion for refugee families should not be restricted after the UK leaves the EU. All routes to family reunion available under the Dublin System should be maintained in the new legal framework for UK-EU asylum cooperation, together with robust procedural safeguards to minimise delays in reuniting separated refugee families. Neither the UK nor the EU should contemplate vulnerable people who have already experienced trauma facing additional suffering as a result of Brexit. Consideration should therefore be given to establishing interim arrangements for refugee family reunion, even if other aspects of future UK-EU asylum cooperation prove more difficult or time consuming to negotiate. (Paragraph 164)

25.We note the Government’s firm opposition to participating in any kind of responsibility sharing measures relating to asylum seekers, voluntary or mandatory. In the absence of any agreement on this issue at EU level, it is difficult to judge whether this will be an important factor in future UK-EU asylum cooperation. Nevertheless, if responsibility sharing does become an established feature of EU asylum policy, and if it is framed in a voluntary and non-binding way, we believe that it would be in the UK’s interest to participate in such measures. (Paragraph 165)

26.In so doing, the UK would demonstrate solidarity, good will, and a willingness to play its part in managing migration flows across the continent. This in turn would help the UK to achieve its objective of securing an agreement to return asylum seekers to their first point of entry to the EU. (Paragraph 166)

Bilateral cooperation

27.The UK Government must make every effort to preserve the existing cooperation on border and asylum issues that takes place on a bilateral basis with individual EU Member States, notably France and Belgium. (Paragraph 167)

28.We see little scope for extending the UK-France relationship beyond what is already set out in the Le Touquet and Sandhurst agreements, although we recommend that the latter should be amended to preserve enhanced cooperation on family reunion if and when the UK leaves the Dublin System. The UK and France should also give priority to humanitarian protection for asylum seekers, in addition to security measures. (Paragraph 168)

29.We also urge the Government to seek to further develop its bilateral border cooperation with Belgium, especially in light of the increasing numbers of asylum seekers in Belgian ports and coastal areas. This cooperation should include a reasonable and proportionate financial contribution from the UK to the cost of Belgian border controls, including efforts by the Belgian police and border authorities to intercept so-called ‘transmigrants’ seeking to travel to the UK. (Paragraph 169)

30.Bilateral relationships are important in managing migration flows, but they cannot replicate the level of cooperation the Government has said it would like to maintain with the EU after Brexit. Any new bilateral arrangements between the UK and individual Member States should augment—not seek to provide an alternative to—a wider UK-EU agreement on future asylum cooperation. (Paragraph 170)

Future UK asylum policy

31.The UK has a proud history of offering sanctuary to those in need and is a global leader in refugee resettlement. Nonetheless, the UK’s reputation has been damaged by restrictive family union policies and the, at times, inept administration of the UK asylum system. The Government’s wider review of future UK immigration policy provides an opportunity to develop a more effective and humane asylum policy. (Paragraph 239)

32.We support the Families Together coalition’s campaign to expand UK refugee family reunion rules. These demands reflect the conclusions of our 2016 report on unaccompanied migrant children in the UK, which found no evidence to support the Government’s belief that allowing children to sponsor their parents would encourage families to send children to Europe alone in order to act as an ‘anchor’ for other family members. (Paragraph 240)

33.Expanding the definition of family members eligible for reunion to include adult children would help to address the situation that some refugees in the UK find themselves in, where bringing their spouse and or children to join them would mean abandoning their 18- or 19-year-old in a dangerous country of origin, with no other family to protect them. (Paragraph 241)

34.We are disappointed that the Government has failed to implement the recommendation of our 2016 report to establish a guardianship service in England and Wales for all unaccompanied migrant children, to oversee their participation in the asylum process and identify their best interests. We now repeat that recommendation. (Paragraph 242)

35.The Home Office should redouble its efforts to improve the speed and efficiency of its handling of asylum cases. This is likely to require the investment of additional financial and human resources in UK Visas and Immigration, and further training for staff involved in considering asylum applications. (Paragraph 243)

36.The administration of the Dubs scheme is a worrying example of inefficiency in the UK asylum system. The Government was slow to get the scheme off the ground and can only confirm that 220 children have been transferred through it since 2016. Vague assertions that continuous progress is being made towards the commitment to resettle 480 children are unacceptable. The Government must provide regular updates on the number of unaccompanied children brought to the UK through the Dubs scheme, and how it is working with local authorities to provide resettlement places. (Paragraph 244)

37.We note concerns about deficiencies in the UK asylum system in relation to the care and protection of people seeking asylum on sexual orientation and gender identity (SOGI) grounds. Future UK asylum policy should ensure adequate consideration of the particular needs and vulnerabilities of SOGI applicants. (Paragraph 245)

38.We welcome the establishment of a single, global refugee resettlement programme to consolidate the VPRS, VCRS, and Gateway schemes when they come to an end in 2020. This should help to improve consistency in people’s experiences of refugee resettlement, but will not fully address the two-tier system of support for refugees that currently exists in the UK. We urge the Government to follow the example of Norway in offering the same package of financial and other integration support to all recognised refugees in the UK, regardless of whether they arrived through a resettlement programme or by their own efforts as an asylum seeker. (Paragraph 246)

39.We also commend the Norwegian approach of disbursing a fixed sum of money to municipalities to incentivise them to support refugees to integrate successfully, and become financially independent as quickly as possible. A more generous integration support package—along the lines of Norway’s refugee introduction programme—would represent a significant upfront cost, but could reduce the amount of time refugees in the UK are dependent on welfare support, generating savings in the longer term. (Paragraph 247)

40.The new UK resettlement programme should build on best practice from the successful VPRS and VCRS schemes, and be underpinned by a long-term funding commitment to enable forward planning. It will be essential for the Government to work closely with local authorities, charities and community groups in the design and delivery of this programme. The Government should also strive to ensure a better distribution of refugees across the UK by encouraging and supporting the participation of local authorities new to refugee resettlement in the programme, and by facilitating the exchange of information and lessons learned between local authorities. (Paragraph 248)

41.We also urge the Government to reconsider its modest aim to resettle 5,000 refugees in the first year of the new scheme. With the experience and infrastructure from delivering the VPRS already in place—and in the context of record numbers of forcibly displaced people worldwide—the Government should be more ambitious in its resettlement target. (Paragraph 249)

42.On the external dimension of UK asylum policy, human rights considerations must be at the heart of any future agreements with third countries on readmission or cooperation to tackle the root causes of migration. We recommend that all such agreements should be subject to formal human rights assessments, which satisfy widely held international standards. (Paragraph 250)

43.Finally, we urge Ministers across Government to moderate the language they use when discussing asylum issues. The UK has much to be proud of in its contribution to refugee protection at the national and international levels, and should be a vocal advocate for protecting refugees from persecution. The Government should have the confidence publicly to challenge those who seek to present asylum seekers as a threat and something to be feared. (Paragraph 251)

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