Brexit and asylum: Life after the Dublin Regulation

Andrew McIntyre

The UK, like all EU Member States, is a party to the 1951 Refugee Convention, which guarantees certain fundamental rights for refugees and asylum seekers. Brexit will not release the UK from its basic obligations under the Convention or under international law generally. It may, however, spell the end of the Dublin III Regulation in the UK. This post considers the possible implications of Brexit for the redistribution of asylum seekers within the EU.

At the heart of the Refugee Convention is the principle of non-refoulement, which holds that a refugee or asylum seeker should not be returned to a place where his or her life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion. The principle of non-refoulement does not, however, preclude the State in which an individual applies for asylum from transferring him or her to a safe third country. This is the premise on which Regulation (EU) No 604/2013, the Dublin III Regulation, is built. In broad overview, Dublin III allows EU Member States to transfer asylum seekers back to the countries through which they first entered the EU. In this way it acts as a check on the principle of free movement and – as the CJEU has described it – prevents “forum shopping” by applicants for refugee status: Case C-411/10 NS v Secretary of State for the Home Department at [79].

Dublin III works by designating a single Member State as the State “responsible” for examining an asylum application. The Responsible State is identified by applying a hierarchy of factors but, in practice, will very often be the first Member State through which the applicant entered the EU (whether regularly, eg, following the issue of a visa, or irregularly). The Responsible State must generally take charge of an individual who has applied for asylum in another Member State upon receipt of a valid “take charge” or “take back” request from that second State. In this way, Dublin III places the administrative burden of examining asylum applications disproportionately on the southern Member States (such as Italy and Greece) in which so many refugees first arrive in the EU.

As an island State on the periphery of the EU, the UK is a net beneficiary of the Dublin III system. In 2014, the last year for which figures are available, the UK transferred 252 applicants for asylum to other Member States pursuant to the Dublin III mechanism, but received just 69 applicants from other Member States. (By contrast, Italy transferred 10 applicants in 2014 and received 1,918.) According to the previous Minister for Immigration, the UK has used Dublin III to “remove” more than 12,000 asylum claimants since 2003.

Could the UK continue to participate in the Dublin scheme, post-Brexit? The fact that the UK is something of a free rider on the Dublin III Regulation does not necessarily mean that it could not; Switzerland is a member of the Dublin system by virtue of an association agreement with the EU, notwithstanding that it transfers substantially more asylum claimants out of its territory than it takes in from EU Member States. Significantly, however, Switzerland is also an associate member of the Schengen area. If the UK aims to negotiate a deal with the EU that limits the free movement of persons, it is difficult to see why it would be allowed to take the benefit of a system that was designed, at least in part, to temper the effects of such free movement (and of Schengen in particular). That would very much be a case of the UK both having its cake and eating it.

What, then, would happen if Dublin III ceased to have effect in the UK? To date the Dublin system has largely obviated the need for the UK to negotiate individual arrangements for the transfer of asylum seekers to or from other States. If the UK wished to continue transferring applicants to safe third countries, it would have to enter into specific agreements with those countries. Such agreements are not unknown; for example, Australia has entered bilateral agreements permitting the transfer of asylum seekers to Malaysia and the resettlement of refugees in Cambodia. However, without offering some element of reciprocity, it is difficult to see what the UK could bring to the bargaining table. In the Australian examples, it is worth noting that the government of Australia agreed to bear the financial cost of both schemes.

In any event, in the immediate future, the loss of Dublin III might not be very keenly felt in the UK. The actual number of outgoing Dublin III transfers from the UK fell from 1,217 in 2008 to 252 in 2014. In part, this is because Dublin III is probably on its last legs on any view. Transfers to Greece have all but halted since the judgment of the European Court of Human Rights in MSS v Belgium and Greece, in which the Court found that Belgium had violated Article 3 ECHR by transferring an asylum seeker to Greece, thus exposing him to the “deficiencies” of the Greek asylum procedure (see also NS, above, in the CJEU). In 2015, Germany temporarily suspended normal Dublin III procedures for Syrian refugees by invoking Article 17, the “sovereignty clause”, which allows Member States voluntarily to assume responsibility for applications they would not otherwise be obliged to examine. By contrast, Hungary suspended Dublin III in 2015 with the opposite effect, refusing to “take back” asylum seekers it would otherwise have been required to accept. In the UK, the Upper Tribunal recently held in ZAT v Syria (currently on appeal) that the Home Secretary’s insistence on the strict application of Dublin procedures interfered disproportionately with the Article 8 ECHR rights of unaccompanied minors in Calais seeking immediate family reunification in the UK.

The European Commission is contemplating various proposals for reform of the Dublin system. Options include the introduction of a corrective fairness mechanism designed to redistribute asylum seekers from “overburdened” Member States, taking into account population and GDP. For the UK, which receives around 0.6 asylum applications per 1,000 residents (below the EU average of 2.48 and far below, eg, Hungary (16.6), Austria (9.44) and Germany (5.31)), this would almost certainly mean taking in a greater share of asylum claimants. Were it to remain in the EU, the UK would be able to opt out of these measures and continue to take advantage of the existing Dublin III rules. Were it to withdraw from the EU, however, the UK would probably face a starker take-it-or-leave-it choice: either the new system, or no transfers at all. Traditionally a somewhat reluctant member of the Common European Asylum System, it is not clear how enthusiastic the UK would be to volunteer for a more proportionate share of responsibility for those seeking refuge in Europe.