All about Sovereignty? The UK and EU Asylum Directives

Joanna Buckley

On 24 November 2011, the Council of the European Union announced that it had approved amendments to the Qualification Directive, which outlines the standard to be used by EU member states for identifying people in need of international protection either as refugees or as beneficiaries of subsidiary protection. Given recent controversy over the state of UK border control – or alleged lack of it – it is perhaps an inopportune moment to ask whether the UK will opt-in to the amended directive. The answer may also seem pretty obvious. On 13 October the Immigration Minister, Damian Green, announced that the UK would not be exercising its opt-in to the amended proposals to recast, and therefore replace, two other pieces of EU asylum legislation – the Procedures Directive (‘recast PD’) and Reception Conditions Directives (‘recast RCD’). In rather stark terms, the Immigration Minister informed Parliament that: ‘’This Government does not support a common asylum system in Europe. That is why we have not opted in to these directives and will not opt in to any proposal which would weaken our border.”

A seminar at the British Institute of International and Comparative Law (‘BIICL’) held on the same day as the Council’s announcement highlighted why the UK government’s current position may not be as simple as Green suggests. Of course EU legislation on asylum is just one piece of EU immigration policy. So it is worth clarifying what exactly we’re talking about when discussing EU asylum procedures.

In 2010, the UK received 23,715 asylum applications. The UK was the fifth largest recipient of asylum applications in the EU, compared to 51,595 in France, 48,490 in Germany, 31,875 in Sweden and 26,130 in Belgium. 13.2% of the asylum applications received were from minors aged 13 or below.

The Qualification Directive will be the first of five legal instruments to be adopted as part of the second phase of the Common European Asylum System (CEAS), to be established by 2012 (though it is doubtful this target will be met). Though the UK did not opt-in to the amended proposal of the Qualification Directive, the government still has the opportunity to indicate whether the UK will accept the adopted measure. The stated goal of the CEAS is the harmonisation of national asylum systems and higher levels of protection for asylum seekers. The first phase of CEAS ran from 1999 to 2005, during which several pieces of legislation – including the original troika of asylum directives (Procedure, Reception Conditions and Qualification), the Dublin Regulation (“Dublin II”) and “Eurodac” – were adopted, providing for minimum standards across the EU. The goal of adopting a common EU policy on “asylum in respect of persecution” is included in the TFEU at article 78.

And herein lies the potential problem for the UK. The government’s position is that the un-amended versions of the asylum directives will continue to apply to the UK after the amended directives are adopted. This position received support from the European Commission in response to a query from the House of Lords’ European Union Committee in 2009. Furthermore, recital 28 of the preamble to the recast RDC and recital 45 of the preamble to the recast PD both explicitly state that the original directives will continue to apply to the UK.

The government has further argued, as outlined at the BIICL seminar, that article 4a of Protocol 21 – which gives the Council power to decide that the original measure should no longer apply to the UK if the UK’s non-participation in the amended measure renders it “inoperable” – does not apply in this case. Article 4a, it argues, is relevant for amended legislation and not when a measure will be wholly replaced by recast legislation.

While this position is debatable in theory, it is difficult to see how this would work in practice. In its 2009 response to the House of Lords, the Commission also pointed out that the opt-in procedure did not give the UK the possibility of “cherry picking” pieces of legislation that it liked. Yet this is exactly what the UK is trying to do. While it is highly unlikely that the UK will opt-in to the final adopted versions of the asylum directives, the UK government has opted in to the proposals to recast Dublin II and “Eurodac”. Together these provisions are used to ascertain which member state is responsible for examining and determining an asylum application, with the basic principle that the member state by which the asylum seeker enters the EU (either legally or illegally) is responsible for deciding that individual’s claim.

Many would argue that these separate pieces of legislation form a comprehensive and systematic approach to asylum in the EU and cannot be separated out. In fact, the recast Dublin II makes reference to the recast RCD. Again, the UK government has dismissed these concerns. The Home Office official at the BIICL seminar emphasised that Dublin II has been extended to non-EU countries, including Norway, where the asylum directives also do not apply.

What is harder to overlook is that the UK will consciously be implementing asylum provisions which fall below the standards considered necessary by the EU. As a result, the UK may find itself in conflict with its international legal obligations. In the case of M.S.S. v Belgium and Greece (Application no. 30696/09), in which Belgium returned an Afghan asylum seeker to Greece under the provisions of Dublin II, the European Court of Human Rights held that both Belgium and Greece had violated article 3 of the ECHR. Blindly following the provisions of the EU asylum system was no defence.

While it may be true that conditions for asylum seekers in the UK are better than those currently available in other EU member states, the possibility that the UK will be considered to have substantially different procedural protections or guarantees may leave the UK open to challenge in Strasbourg. This becomes clearer when looking at the specific provisions to which the UK is objecting, including provision for judicial review of detention after 72 hours (article 9(2) recast RCD), reduction of detention by restricting its use to four specific situations (article 8(3) recast RCD), access to the labour market after 6 months (article 15(1) recast RCD), restrictions on the use of accelerated procedures for determining asylum applications (article 31 recast PD), enhanced rights to legal assistance (article 22 recast PD) and right of appeal (article 46 recast PD).

The UK government has cast the debate on EU asylum directives in terms of sovereignty and the national interests of the UK. The government has argued that the proposed amendments would place unreasonable burdens on the British courts, increase the bill to the British taxpayer and encourage unfounded applications. Amongst this political point-scoring, the UK government may well have genuine concerns about CEAS. But by opting-out and restricting discussion to over-simplified sound bites, the UK risks undermining the real objective of the legislation, which is to provide assistance to those individuals genuinely fleeing persecution and seeking international protection.

For discussion on the broader issues of EU law and immigration law, there will be a seminar at Matrix Chambers on 6 December with Aidan O’Neill QC and Raza Husain QC.

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