Brexit: refugee protection and asylum policy Contents

Appendix 7: Letter from the Security Minister to Lord Jay of Ewelme, 10 September 2019

This letter is available on the Committee’s website at: https://www.parliament.uk/documents/lords-committees/eu-home-affairs-subcommittee/Immigration/letter-from-brandon-lewis-mp-to-lord-jay-100919.pdf

Dear Lord Jay,

Following your letter of 17 July to the then Immigration Minister, I am writing to address your questions raised in preparation for the future evidence session on ‘future UK-EU asylum cooperation. I have addressed each of the questions below, in turn.

The Government’s White Paper on the Future Relationship between the UK and the EU says it will seek “a new legal framework to return illegal migrants and asylum-seekers to a country they have travelled through, or have a connection with, in order to have their protection claim considered, where necessary”.

Has the Government determined that it will not be possible to participate in the Dublin system as a third country after the UK leaves the EU? Will the Government seek to include Schengen-associated countries in this agreement? Will the Government seek to ensure that any new legal framework mirrors the Dublin System? If not, in what ways do you expect it will differ? Do you hope to continue cooperating with other relevant EU measures and agencies, such as EURODAC, EASO, and operations like EUNAVFOR MED?

There is no precedent for a non-EU country outside of the Schengen Area to participate in the Dublin Regulation, though our continued participation in Dublin as a third-country may not be impossible. More importantly, the EU is currently discussing a range of reforms to the Common European Asylum System, which specifically includes the recasting of the Dublin Regulation. As it is currently constructed, the UK has chosen to not opt-in to the Dublin IV regulation. This is because a key premise of the recasted regulation is the introduction of a redistribution mechanism to relocate asylum seekers. The UK does not intend for the future relationship with the EU to include a mechanism that will allow for the redistribution of asylum seekers.

The Government believes that a redistribution mechanism will simply move the problem around Europe, whilst ultimately being unlikely to be effective at stopping secondary or tertiary movement.  For these reasons, the UK is unwilling to participate in a voluntary relocation programme, and as such, we would not expect the future EU-UK relationship to be underpinned by such a proposal.

The UK is not seeking third country access to the Dublin Regulation. Instead, the UK is seeking to negotiate a new reciprocal returns agreement with the EU to ensure that third country illegal migrants and asylum seekers can be returned to the country they entered the UK/EU from or have a connection with (for example, a student visa). Ideally this agreement would be underpinned by a biometric system, such as Eurodac, which would be used to evidence travel through or connection to the EU or the UK, and would provide a seamless and efficient way of monitoring secondary movements. An agreement based on this framework would reflect the UK’s unique geographical position in relation to the EU, and the ongoing need for consistent messaging to migrants about secondary movements between the EU and the UK.

The Government’s ambition is to achieve a readmissions agreement with the EU following the UK’s departure from the EU. Arrivals from and returns to Schengen Area countries that are not in the EU account for a very small proportion of overall arrivals and returns.  However, once such an agreement with the EU is reached then the UK could look to extend this to all Schengen Area countries.

While the proposed new UK-EU Readmissions Agreement may share some similarities with Dublin, the UK does not intend to replicate the Dublin Regulation. The UK’s departure from the EU presents us with an opportunity to achieve an agreement that is more effective and ambitious than the Dublin Regulation. Consequently, we are confident of negotiating important differences, for example, to ensure the inclusion of all illegal migrants rather than only including asylum seekers.

We value close co-operation with the EU on asylum and migration matters, and we want that to continue, whether we achieve this continued co-operation will depend on post EU Exit negotiations. However, we intend to continue participation with Eurodac, EASO and Eunavfor Med.

Does the UK have staff in all its European embassies dedicated to managing the protection of asylum seeker children or asylum seekers generally? Please provide an overview of the support provided.

The protection of asylum seeking children and asylum seekers more generally is the responsibility of the country in which they are present. However, the UK has staff in each of its European embassies with responsibilities relating to Justice and Home Affairs or wider political affairs. The specific nature of these responsibilities varies depending on the relevant bilateral relationship.

Responsibilities often include observing the development and implementation of asylum policy by the host authorities. Where necessary, embassies are also reinforced with liaison officers to facilitate the safe transfer of eligible children (under section 67 of the Immigration Act), as well as children, families and adults (under the Dublin III regulation).

We work closely with European governments to facilitate both schemes. In specific relation to France, the Sandhurst Treaty provides for a dedicated liaison officer, who is based in the French Ministry of Interior, to help support this work.

How much funding has the UK Government provided, or committed to provide, for humanitarian efforts in the Calais region to support asylum seekers and refugees?

As part of our cooperation on asylum under the Sandhurst Treaty, we have strengthened the processes for transferring unaccompanied children between France and the UK to reduce the numbers of people attempting to cross the border illegally. Our comprehensive plan ensures that migrants, and particularly unaccompanied children, who have travelled to northern France and are willing to engage with and access the asylum system in France quickly, and are supported through the process.

A portion of the total £45.5 million Sandhurst Treaty funding package has been used to progress this work. £3.6 million was specifically allocated to funding the development of the Dublin and Dubs process to support transfers of eligible children to the UK, including training for those working with unaccompanied children, family tracing and targeted information campaigns.

We continue to work with the French authorities to transfer eligible children under section 67 of the Immigration Act 2016 and the Dublin regulation, and transfers are ongoing.

We heard evidence from Safe Passage that a very low number of unaccompanied refugee children have been brought to the UK under the Dubs scheme. Safe Passage criticised the Government’s decision to “arbitrarily impose a cap” on that scheme of 480 places, and highlighted that only 220 Dubs children have arrived in the UK so far. Why has the Government only resettled 220 unaccompanied children through the Dubs scheme and why was the scheme capped at 480 places?

When does the Government expect to resettle children in the remaining 260 places and what action is it taking to expedite this process?

The Government is resolutely committed to transferring the specified number of 480 unaccompanied children under section 67 of the Immigration Act 2016 (‘the Dubs Amendment’) as soon as possible. The Government did not impose an arbitrary cap on the number of children we committed to relocating under the Dubs Amendment.

During the passage of the Immigration Bill through Parliament in 2015 and 2016, there were robust debates about the issue of supporting unaccompanied children in Europe as well as those much closer to conflict regions. However, Parliament rejected the proposal to relocate 3,000 unaccompanied children to the UK from Europe. The Dubs amendment was only approved by Parliament when it made clear that the Government would commit to relocate a specified number of unaccompanied children, to be determined by the Government in consultation with local authorities. The Government’s consultation, which has been endorsed by the courts, determined the total figure to be 480.

Over 220 children were transferred to the UK under section 67 when the Calais camp was cleared in late 2016. Since then we have been making continuous progress with the three participating States–France, Greece, and Italy–to refer and transfer more eligible children to move closer to the commitment to transfer 480 children. However, the relocation of eligible children to the UK is dependent on the availability of appropriate care placements in local authorities, who have faced significant pressures in recent years in caring for an increasing number of unaccompanied asylum seeking children (UASC) from spontaneous arrivals.

In 2018 alone, the UK received 2,872 asylum claims from unaccompanied children, which represents 15% of all UASC claims lodged in EU countries in 2018; only two other EU Member States received more UASC than the UK–Germany and Italy. Responsibility for their care falls to local authorities, and the Home Office recognises the highly valuable work that they do to support UASC. That is why, in May this year, we increased the funding they receive as a contribution to the costs of looking after these children.

We heard evidence from Safe Passage that the average wait for a positive response to a request by unaccompanied children in Calais to join families in the UK increased from 10.98 days in 2016 to 111.31 days in 2018. It has been suggested that the decentralised structure of the programme contributed to the delay, as local government actors struggled to communicated with the French government. In addition, there was a request by the French Government to not process applications outside of the Dublin system, until a few weeks before the Calais camps were set to close. Can you confirm this information and explain why there has been an increase in processing times?

The Dublin III Regulation allows for unaccompanied children who are seeking asylum in Member States, including France, to transfer their asylum claim to another Member State and reunite with family who are legally residing there. There is an agreed eleven-month process under which a request by a Member State to ‘take charge’ of a child’s asylum claim can be lodged, decided and in the event of a positive decision a transfer of that person completed.

With regards to lodging Take Charge Request (TCR) of an asylum claim, Member States have three months from when the person claims asylum to gather evidence to support a request. The processes involved to make a request vary in all Member States depending on the circumstances of each person who may be eligible to transfer under the Dublin provision, and will also depend on the domestic laws and processes within that govern that country in respect of supporting asylum seekers and unaccompanied children.

Upon receiving a TCR it is important that Member States act in the best interest of the child. We work closely with the Department for Education (DfE) and with local authorities to develop and improve the processes for consideration of a TCR for an unaccompanied child, with a view to achieving the efficient and effective discharge of our obligations under Dublin III, ensuring there is proper regard to the best interests of each child. To make these necessary checks takes time to enact working with appropriate partners. It is only right that sufficient time is dedicated to these important steps.

Our work under Dublin III is much broader than the work around children in Calais. We undertake work with the rest of France and the other 30 participating Member States involved in Dublin for the safe transfer of unaccompanied children, adults and family groups to the UK. In 2016 the work of the UK regarding unaccompanied children seeking to reunite with family under Dublin III was primarily focused on one area in France (Calais) as this is where most of the requests relating to unaccompanied children originated from. However, as time has progressed the number of requests received from other Member States has grown.

For wider context, in 2015, the Home Office received 110 TCR under the family reunion provisions in Dublin III (of which 50 were for unaccompanied children); in 2018 the Home Office received 933 TCRs (of which 249 were for unaccompanied children).

The difference between average processing times in 2016 and 2018 can be explained partly by the uplift in caseload and the make-up of the requests being made, as well as the evolution and improvement of procedures noted above.

As referred to above, the Dublin III regulation is the common legal agreement to transfer an asylum claim from one European Member State to another. To work outside of this agreed regulatory framework needs an agreement between countries to enact. We continue to work collaboratively with all Member States on the safe transfers of children.

Safe Passage also suggested that excessive evidentiary requirements led to incorrect refusals of family reunion applications by the Home Office, and that families and children were not being given the opportunity to respond to negative findings or to provide an explanation about supposed inconsistencies. Meanwhile, the SOGICA Project noted that the burden of proof can be much greater on the claimant. The SOGICA Project advised the UK to implement a UNHCR recommendation to specify that the burden of proof be shared between asylum claimants and public authorities. What is the Government’s response to these concerns? How is the Home Office working to ensure that it manages family reunion applications not just efficiently and effectively, but thoughtfully and with compassion?

The UK takes its responsibilities towards unaccompanied children extremely seriously. This includes our duties towards the safeguarding of children as well as ensuring that their best interests are served. Accordingly, the Home Office works closely with local authorities, Member States and facilitating partners to assess the best interests of the child, trace their family members and verify the claimed family relationship.

Published guidance on the implementation of the Dublin III Regulation makes clear to Home Office decision makers that:

This guidance can be found at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/797216/Dublin-III-regulation-v2.0ext.pdf

There is an established process under the Dublin Regulation’s Implementing Regulation whereby the requesting State can ask for a reconsideration of a decision to reject a request and where additional evidence can be provided. Where we reject a TCR, the Home Office provides the requesting State with a full explanation of the reasons in our rejection letter.

The Home Office also recently revised its guidance on the refugee family reunion Immigration Rules, to streamline the process and make it clearer for applicants and sponsors to understand what is expected of them, including the types of documentary evidence that can be provided to support an application. The revised guidance recognises the challenges applicants face in obtaining documents to support their application.

Whilst the onus is on the applicant to show that the relationship with the sponsor is genuine, there are no specific requirements to provide certain types of evidence. We recognise evidence may not always be available, particularly in countries where there is no functioning administrative authority to issue documents such as passports, marriage or birth certificates. Every family reunion application is carefully considered with sensitivity and compassion on its individual merits based on the evidence provided by the applicant and their sponsor. In the last five years, the UK has granted over 27,000 family reunion visa applications.

What is the Government’s response to SOGICA’s recommendation?

The SOGICA Project requested that the Home Office implement a UNHCR recommendation to specify that the burden of proof be shared between asylum claimants and public authorities. The citation given is to UNHCR’s paper commenting on the European Commission’s 2016 Proposal for a Qualification Regulation, with UNHCR placing emphasis on a shared burden of proof applicable in assessing applications for international protection.

We note the comment and the context in which it was given, which is the consideration of a claim to be in need of protection and not the assessment of family relationships. Published guidance makes it clear to decision makers that when considering whether there is sufficient information to accept the relationship in a Dublin III case the standard to be applied is that of the balance of probabilities and they must be mindful of the difficulties that people may face in providing documentary evidence of their relationship.

What is your anticipated timetable for concluding an agreement with the EU on family unity for those seeking asylum or other protection in Europe, as set out in section 17 of the EU (Withdrawal) Act 2018?

The Government is committed to fulfilling the obligation under section 17 of the EU Withdrawal Act 2018 regardless of whether we leave the EU with a deal or not.

The SOGICA Project, which is researching sexual orientation and gender identity claims of asylum, submitted evidence that asylum seekers in the UK were unaware they could claim asylum on the basis of their sexual orientation or gender identity (SOGI). The SOGICA Project recommends that the UK advise all asylum seekers that persecution on the grounds of SOGI, among other grounds, constitutes a legitimate claim to international protection. What information on grounds for claiming asylum does the UK Government provide asylum seekers on its territory? How is this information provided and can it be found at all airports, ports, and UK Visas and Immigration Offices?

The UK Government publishes clear information concerning the eligibility grounds on which individuals may claim asylum in the UK. This can be found on the Government website at the following link https://www.gov.uk/claim-asylum/eligibility.

The UK Government also publishes an information leaflet entitled “Information about your Asylum Application.” This is available online and is also provided to asylum claimants during screening, including where that claim is made at a port; airport; or the Asylum Intake Unit. It contains clear information about the eligible reasons for applying for asylum in the UK. It further explains what a claimant can expect during the registration of a claim and afterwards. It also provides contact referral details of non-government organisations specialising in assisting claimants who may be presenting an asylum claim based on sexual orientation or gender identity and expression.

Additionally, Migrant Help provide independent advice and guidance to asylum seekers in initial accommodation including providing information relating to the asylum process in the claimant’s own language. Information about the asylum process is also available, from their website, in 16 languages for those individuals who are staying with family, friends or who have their own accommodation - https://www.migranthelpuk.org/advice-and-guidance. The asylum advice guide consists of six sections. “Section 3: Substantive interview” makes it clear that refugee status can be granted where a claim is made in connection with the claimant’s sexuality. The English asylum advice guide as well as the translated versions are available from this page.

Application data does not suggest that asylum seekers are unaware that sexual orientation is a ground for claiming asylum in the UK, although multiple factors will impact on the number of applications. Published Home Office statistics indicate that during the three years 2015, 2016 and 2017, a total of 5,916 asylum applications where a sexual orientation basis was recorded were lodged in the UK, representing 6.6% of all asylum applications received in this period. The data show an increasing proportion of asylum applications recording a sexual orientation basis over this period, from 5.4% of all applications in 2015 to 7.2% in 2016, and then remaining at this level (7.3%) in 2017. The UK does not currently publish statistics on gender identity-based asylum claims.

The UK has a proud record of providing protection to individuals fleeing persecution based on their religious belief, sexual orientation and gender identity and are committed to delivering an asylum system that is responsive to all forms of persecution. All asylum claims lodged in the UK are carefully considered on their individual merits, against a background of relevant case law and up to date country information.

Published guidance on considering asylum claims based on sexual orientation and gender identity exist for Home Office case workers. Both are currently being reviewed.

Additionally, we would also expect the claimant’s independent legal representative and / or immigration adviser to advise their client about the grounds that may constitute a protection claim and advise their client that they need to inform the Home Office and themselves of all reasons why they cannot return to their home country.

We have heard that there is effectively a ‘two-tier’ support system for refugees in the UK, with people resettled under VPRS having a much better resettlement and integration experience than those who make their first claim for asylum in the UK.

What is your response to this suggestion, and what steps are you taking to ensure that everyone granted asylum in the UK is treated equally?

Why has the Government been unable to replicate best practice from the VPRS to ensure that all those granted protection in the UK are treated equally with regard to accommodation, funding, and other integration support? How will lessons learned from the VPRS be used to inform the development and operation of the recently announced new UK global resettlement scheme?

Refugee resettlement is a specific humanitarian effort, based on need, which aims to provide sanctuary to the world’s most vulnerable people and the associated level of funding and integration support reflects this.

All refugees have immediate access to the labour market and mainstream benefits and services that support their integration. We are working across Government to ensure services meet the needs of refugees.

The Integrated Communities Action Plan, published in February 2019, set out our commitment to increase integration support for all refugees in the UK. We will focus on supporting refugees with English language, employment, mental health, and cultural orientation to life in the UK.

The Vulnerable Persons and Vulnerable Children’s Resettlement Schemes (VPRS and VCRS) are being evaluated through a programme of quantitative data work and qualitative research with refugees and key delivery partners, including local authorities. The findings will help shape ongoing improvements to the delivery of the VPRS and VCRS schemes and good practice will be incorporated into the design and operation of the new global resettlement scheme.

We will also continue to apply good practice from the VPRS to integration support for all refugees. Additionally, we will share good practice more widely with civil society, local authorities and other stakeholders, as we recognise the work they do in refugees is key to enabling integration for all refugees.

After the UK leaves the EU it will need to negotiate new bilateral agreements with some third countries to facilitate the return of irregularly staying migrants. Refugee Rights Europe recommends that the UK should carry out human rights impact assessments on third countries before entering into return agreements with them.

Does the UK carry out human rights impact assessments on third countries before concluding return agreements with them? Will the UK seek to replicate the EU’s return agreements with third countries?

All asylum and human rights claims are carefully considered on their individual merits in accordance with the UK’s obligations under the 1951 United Nations Convention Relating to the Status of Refugees and the European Convention on Human Rights. The Home Office closely monitors developments in all countries of return and takes decisions on a case-by-case basis in the light of international obligations and the latest available country policy and information notes.

There may be some countries where it is difficult to remove to because of the country situation, or where there may be legal barriers to removal. We make returns to countries where appropriate and on a case by case basis.  Returns agreements are a practical way to set out the removals process with a country of return.

The UK has various bilateral agreements with key third countries that assist in expediting the return of individuals; the EU Readmission Agreements supplement these agreements and provide us a wider range of levers to facilitate returns. The UK will prioritise transitioning EU Readmission Agreements post EU exit in order to maintain, and where possible enhance, the UK’s capability to return individuals.

In a ‘no deal’ scenario, there is likely to be a significant build-up of traffic around Calais–and other European ports–which could make it easier for migrants to board vehicles and vessels bound for the UK.

What preparations have Border Force made to deal with any consequential rise in ‘clandestine entrants’ to the UK? How would such migrants be detected if–as promised by the UK Government–for a temporary period roll-on/roll-off traffic will be allowed to drive straight off ferries and Channel Tunnel trains by filling in a frontier declaration beforehand?

The security of the UK border is paramount and Border Force have extensive preparations in place to mitigate for emerging threats if we leave the UK without a deal. We have detailed plans to minimise the risk of-and detect-clandestine activity.

This includes having mobilised a fully-mobile national readiness taskforce (c300 staff) who can be deployed against emerging risks and capability to increase the number of body-detection dogs.

Advance frontier declarations relate to customs activity and will not affect our vehicle screening and search capability or our ability to secure the Border. We continue to invest heavily in security detection systems and adapt process in readiness for our exit including maintaining enhanced detection screening at juxtaposed locations.

UK NGOs currently receive funding through the EU Asylum, Migration and Integration Fund. After the UK leaves the EU, and no longer has access to EU funding programmes, how will the Government replace this funding stream for asylum and migration programmes?

The Government recognises the vital role that NGOs have played in supporting asylum and migration programmes and is considering a range of sources to fund future NGO activity following the UK’s departure from the EU.

Rt Hon Brandon Lewis MP

Minister of State for Security and Deputy for EU Exit and No Deal Preparation





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