The issue of asylum and the refugee crisis in Europe played a very significant part in the debate on Britain’s continuing membership of the European Union in the run up to the Brexit referendum in June 2016. Many commentators consider that the issue of immigration proved decisive, in fact, and many members of the public consistently and massively over-estimate the number of refugees contributing to overall migration figures.

Despite the prominence of the issue, particularly prior to June 2016, the UK government has been virtually silent on its future plans for asylum policy. Media coverage of asylum issues has massively subsided in the meantime.

Nevertheless, following the outcome of the referendum, the UK will be leaving the European Union to “take back control.” Looking at this in the context of asylum law and process, what might the impact of Brexit be?

To answer this question, first we have to understand what the UK is actually leaving behind.

Directive 2004/83/EC, known as the Qualification Directive, has become one of the primary sources of refugee law in the UK and across the European Union. Other aspects of the holistic European Common Asylum System such as the Reception Directive and the Dublin Convention have had a huge impact on the practicalities and processes of claiming asylum, right down to the number of asylum claimants reaching the UK.

Withdrawal from these legal instruments is likely to have a profound effect on processes but it is arguable that the impact on refugee law in the UK will be relatively slight given that EU asylum law in effect “levelled up” to pre-existing UK standards in many ways.

What is the Common European Asylum System?

The type of Brexit currently being pursued by the UK government will almost certain involve leaving the Common European Asylum System (CEAS) along with the rest of EU law. Whether EU law generally and specifically the CEAS will apply during any transitional arrangement remains unknown at the time of writing.

To consider the impact of leaving the CEAS, first we have to understand what it is. To evaluate the chances of remaining within it despite leaving the EU, in whole or in part, we have to understand whence it came and where it may go in future.

Origins of the Common European Asylum System

In the early to mid 1990s the breakup of former Yugoslavia led to conflict within Europe, creating hundreds of thousands of refugees. This influx highlighted differences in the recognition and treatment of refugees by different Member States of the EU. Member states decided to take steps to harmonise asylum standards and so the idea of a Common European Asylum System was born.

One way of seeing this harmonisation process is that Member States wanted to address the perceived problem of asylum shopping, where asylum seekers were perceived to be moving between Member States in order to find preferential treatment. There were thought to be two key reasons for this assumed behaviour which the CEAS was intended to address:

1. Differing asylum case outcomes between Member States; and
2. Differing social welfare entitlements for asylum seekers.

The idea was that by harmonising asylum systems and standards, asylum seekers would no longer “shop around”. If they did, they would sent back whence they came, to their initial point of entry.

The legal basis of the Common European Asylum System lies in amendments to the treaties made in the Treaty of Amsterdam in 1997. In particular, Article 67 of the TFEU was amended to include specific reference to asylum in the treaties:

1. The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States.

2. It shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals. For the purpose of this Title, stateless persons shall be treated as third-country nationals…

Article 78 then goes on and adds some detail to what this might entail:

1. The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring inter­ national protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties.

2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures for a common European asylum system comprising:

(a) a uniform status of asylum for nationals of third countries, valid throughout the Union;
(b) a uniform status of subsidiary protection for nationals of third countries who, without obtaining European asylum, are in need of international protection;
(c) a common system of temporary protection for displaced persons in the event of a massive inflow;
(d) common procedures for the granting and withdrawing of uniform asylum or subsidiary protection status;
(e) criteria and mechanisms for determining which Member State is responsible for considering an application for asylum or subsidiary protection;
(f) standards concerning the conditions for the reception of applicants for asylum or subsidiary protection;
(g) partnership and cooperation with third countries for the purpose of managing inflows of people applying for asylum or subsidiary or temporary protection.

3. In the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament.

With this legal framework in place, Member States proceeded to do as they had agreed. This culminated in the Tampere Agreement in 1999, named after the Finnish town in which the initial agreements were reached.

First phase of the Common European Asylum System

Several different pieces of implementing legislation were agreed at Tampere, and these were the first phase of the CEAS:

• Eurodac Regulation: 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
• Temporary Protection Directive: 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
• Dublin Regulation: 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
• Reception Conditions Directive: Council Directive 2003/9/EC of 27 January 2003 Laying Down Minimum Standards for the Reception of Asylum Seekers
• Qualification Directive: 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
• Asylum Procedures Directive: Council Directive 2005/85/EC of 1 December 2005 on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status

The temporary protection directive was intended to address mass influx of refuges. It is dead letter law, however, and has never been used despite the max influx of 2015 onwards.

Second phase of the Common European Asylum System

Once the first phase was complete, in 2013 Member States then proceeded to re-examine and re-write all but the Temporary Protection Directive. The new versions of the legislation are often described as “recast”.

• Recast Asylum Procedures Directive: Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on Common Procedures for Granting and Withdrawing International Protection (applicable from 21 July 2015)
• Recast Reception Conditions Directive: Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 Laying Down Standards for the Reception of Applicants for International Protection (applicable from 21 July 2015)
• Recast Qualification Directive: Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on Standards for the Qualification of Third-Country Nationals or Stateless Persons as Beneficiaries of International Protection, for a Uniform Status for Refugees or for Persons Eligible for Subsidiary Protection, and for the Content of the Protection Granted (applicable from 21 December 2013)
• Dublin III: 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 (applicable from 1 January 2014)
• Recast Eurodac: Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013 on the Establishment of ‘Eurodac’ for the Comparison of Fingerprints for the Effective Application of Regulation (EU) No 604/2013 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 and on Requests for the Comparison with Eurodac Data by Member States’ Law Enforcement Authorities and Europol for Law Enforcement Purposes, and Amending Regulation (EU) No 1077/2011 Establishing a European Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (applicable from 20 July 2015)

The recast versions tend to be rather longer and more complex than the originals and, because of changes in the meantime to the EU legislative process, namely the use of Qualified Majority Voting and a role for the European Parliament, tend to be slightly improved from the point of view of refugee protection.

Future development of the Common European Asylum System

The European Commission announced in COM(2016) 197 final on 6 April 2016 that it would be proposing new consolidated instruments on asylum. The plans were intended to address the supposed weaknesses in asylum procedures across Europe highlighted by the mass influx of refugees in 2015. In particular, it was felt that the Dublin system was not fair and was not working effectively in any event, and there was still too much variation in the treatment of asylum seekers and recognition of refugees between Member States.

Five priority areas were outlined:

• Amend the Dublin Regulation by either streamlining and supplementing it with a corrective fairness mechanism or moving to a new system based on a distribution key.
• Adapt the Eurodac system to reflect changes in the Dublin mechanism and expanding its purpose beyond asylum.
• A new Regulation establishing a single common asylum procedure in the EU and replacing the Asylum Procedures Directive, a new Qualification Regulation replacing the Qualification Directive and targeted modifications of the Reception Conditions Directive.
• Strengthened procedural measures in its proposals under the new Asylum Procedures and Qualification Regulations as well as the Reception Conditions Directive, to discourage and sanction irregular moves to other Member States
• Amend the European Asylum Support Office’s mandate so it can play a new policy-implementing role as well as a strengthened operational role and providing sufficient financial resources and legal means for that purpose.

The move to a Regulation rather than a Directive creating a single common asylum procedure would certainly be a very major reform:

More generally, the Commission intends to propose a comprehensive harmonisation of procedures across the EU by transforming the current Asylum Procedures Directive into a new Regulation establishing a single common asylum procedure in the EU – replacing the current disparate arrangements in the Member States – which would reduce incentives to move to and within the EU. [emphasis in original]

This would include “a fully harmonised list of safe countries of origin at EU level” which would enable certain applications to be declared inadmissible where protection was considered at EU level to be available in a third country. Such as Turkey or Libya, one assumes.

Later announcements have provided some additional detail on the Commission’s thinking. On amendments to Eurodac, the Commission announced

The proposal will extend the scope of the Eurodac Regulation to include the possibility for Member States to store and search data belonging to third-country nationals or stateless persons who are not applicants for international protection and found irregularly staying in the EU, so that they can be identified for return and readmission purposes. In full compliance with data protection rules, it will also allow Member States to store more personal data in Eurodac, such as names, dates of birth, nationalities, identity details or travel documents, and facial images of individuals. Increasing the information in the system will allow immigration and asylum authorities to easily identify an irregular third-country national or asylum applicant without having to request the information from another Member State separately, as is currently the case.

The scale of the Commission’s ambitions for EASO were also made clear:

The proposal will transform the existing European Asylum Support Office into a fully-fledged European Union Agency for Asylum with an enhanced mandate and considerably expanded tasks to address any structural weaknesses that arise in the application of the EU’s asylum system.

One of the main new tasks of the Agency will be to operate the reference key in order to apply the fairness mechanism under the new Dublin system. The Agency will also be tasked with ensuring a greater convergence in the assessment of applications for international protection across the Union, strengthening the practical cooperation and information exchange between Member States and promoting Union law and operational standards regarding asylum procedures, reception conditions and protection needs.

This new EASO mandate would include intervention in individual Member States:

This will include the possibility to deploy asylum support teams from a reserve of experts composed of a minimum of 500 experts from Member States and experts seconded by the Agency, as well as a capacity to provide operational and technical assistance in cases where a Member State is subject to disproportionate pressure which places exceptionally heavy and urgent demands on its asylum or reception systems.

The UK announced shortly before the Brexit referendum that it would not be taking part in the new common asylum system and it seems highly unlikely that position will have changed since the outcome of the referendum. The point of outlining these proposals is to make clear that the CEAS is not a static “done deal”, it is dynamic and evolving. Given the convergence in the second phase of CEAS and the plans for further convergence, the CEAS looks increasingly like a set menu rather than one which is à la carte.

Impact of removing minimum standards

There is no reason to think that the UK will reduce standards of reception, treatment and recognition of asylum seekers and refugees. Undoubtedly, though, leaving the minimum standards regime of the Common European Asylum System opens up the possibility that the UK could do so. This is the very point of “take back control” after all.

There is also most no public indication so far from the UK Government as to its plans in relation to the CEAS. Even the leaked Home Office paper on potential future migration options was virtually silent, stating merely at page 7:

The UK’s adherence to the UN 1951 Refugee Convention and the European Convention on Human Rights is unaffected by our departure from the EU. We will work with partners in the EU and beyond to ensure a comprehensive and compassionate approach to those needing protection.

The paper goes on to suggest that participation in the CEAS and Dublin system is not a top priority:

The UK is currently opted into some of the legal instruments in the Common European Asylum System, notably the Dublin III Regulation, and the first versions of the Asylum Procedures, Qualifications and Reception Conditions directives.

While the terms of the Dublin III Regulation as they currently apply to the UK will not continue, we are ready to discuss the nature of a future relationship between the UK and EU member states on establishing the responsible member state for processing an asylum claim. We will review whether to amend our law in respect of the obligations under the other directives in due course.

The only other mention of asylum or refugee issues in the public Brexit papers so far is a reference to Eurodac in the paper on security, law enforcement and criminal justice. The usefulness of Eurodac is recognised but there is no suggestion that the UK will attempt to retain access.

As the leaked Home Office paper acknowledges, the CEAS is not the only set of minimum standards protecting asylum seekers and refugees. There is also the Refugee Convention itself as well as the European Convention on Human Rights and, to a lesser extent because of the lack of direct enforceability, various UN and international conventions. There are also common law standards of fairness, which can offer at least some procedural protection. None of these instruments tend to set out clear procedural safeguards, though, and all lack specificity on what standards are required.

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