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Brexit doesn’t mean Brexit just yet, Court of Justice holds in asylum case


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A reminder from the Court of Justice of the European Union that EU law still applies to the UK until Brexit actually happens. The Irish asylum authorities had asked, in effect, whether the triggering of Article 50 meant that it shouldn’t send asylum seekers across to the UK any more. The Court of Justice said no. The case is C‑661/17 MA, SA and AZ v International Protection Appeals Tribunal and others.

On a more technical level, the query was whether:

the fact that a Member State, designated as ‘responsible’ within the meaning of [the Dublin III] regulation, has notified its intention to withdraw from the European Union in accordance with Article 50 TEU, obliges the determining Member State to itself examine, under the discretionary clause set out in Article 17(1), the application for protection at issue.

In other words, if an EU country intends to trigger the “Dublin” system for sending an asylum seeker to a different country for a decision on their claim, should it refrain from doing so when that different country is on its way out the door.

The Court of Justice thought not, pointing out that EU law “continues in full force and effect” until a country actually leaves the Union. So there is no obligation for other EU countries to suspend Dublin III transfers in the meantime.

A UK administration not exactly noted for throwing out the welcome mat for refugees might be a little disappointed, but in this context the continuation of EU law works in the government’s favour. Although the court does not spell this out, the same presumably applies in reverse: EU countries have to keep taking asylum seekers from the UK for now. Because one of the principles of the Dublin system is that people can be sent back to the first EU country they arrive in, it generally results in a net outflow of asylum seekers from these shores. Over the last decade the UK has shipped 6,200 asylum seeker abroad under the Dublin system, whereas only around 3,000 souls have come the other way.

The MA judgment also includes various other findings on the workings of the Dublin III system, which I will leave you to discover in the press release (link here and embedded below).

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

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CJ McKinney

CJ McKinney

CJ McKinney is a specialist on immigration law and policy. Formerly the editor of Free Movement, you will find a lot of articles by CJ here on this website! Twitter: @mckinneytweets.