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Why the UK should stay within the EU's asylum system after Brexit

Written by
Ali Bilgic, via The Conversation
Date of Publication:
21 January 2019

Until recent media coverage of an increase in people crossing the English Channel by boat, Brexit debates have largely overlooked the future of asylum and international protection after the UK leaves the EU on March 29. The UK's options are challenging – and the risks for current and future asylum seekers are real and serious, particularly if the UK were to leave without a deal.

Complications will stem from the UK's involvement in the EU's international protection and asylum governance structures, known as the Common European Asylum System (CEAS). This determines who qualifies as a refugee, the minimum rights of asylum seekers waiting for the result of their application and the procedures relating to seeking asylum. The UK has so far opted out of the directives that regulate higher common standards for asylum procedures so it can keep only minimum standards.

CEAS also oversees implementation of the Dublin regulations, governing which member state should be responsible for processing an asylum claim. The current rules mean that member states can return asylum seekers to the member state where they first entered the EU. Eurodac, an EU-wide database of fingerprints of asylum seekers, is key in determining the country of first entry of asylum seekers.

Although there has been opposition from member states such as Italy, Hungary, and Greece on the EU's external borders, others, including the UK, have supported the system. This is because it has allowed them to return asylum seekers to the EU country where they first sought asylum.

Should the UK leave the EU without a deal, its rule-making power in CEAS would end. It will be out of the Dublin regulations, will lose the right to return asylum seekers to other EU member states and will have no access to Eurodac. This means a consequence of a no-deal Brexit might be an increase in number of irregular arrivals as the UK will be unable to return them to another EU member state.

Should the UK leave the EU with a Brexit deal and a transition period in place, this could protect the status quo for a short period, providing an opportunity to negotiate a new system without generating a legal vacuum.

Options for the future

There are three routes available for the UK, and none of them are without hurdles. The first is to negotiate bilateral arrangements with individual EU states, including France, in the case of a no-deal scenario. However, since asylum governance is highly harmonised in the EU, despite political differences, it's unlikely that member states and EU institutions will agree to this.

Second, regardless of the deal with the EU, the UK can pursue bilateral agreements with non-EU countries such as Turkey, Egypt, Libya, Senegal, Iraq, and Afghanistan. Currently, the UK benefits from the arrangements the EU has with such countries such as the EU-Turkey deal. Such negotiations will not only take the UK time, but any agreements will not necessarily prevent irregular crossings from Europe.

In the meantime, the UK might deploy more naval ships in the Channel, although even a small operation has recently caused a disagreement within the cabinet regarding its finances. However, as shown in the Mediterranean, highly expensive military operations hardly stop boat crossings, but divert the boats to less monitored but more dangerous areas of the sea.

The third option would be to negotiate a version of the arrangements Norway, Switzerland, Iceland and Liechtenstein have with the EU during a transition period. These non-EU countries are members of the Dublin system, which requires them to be part of the Schengen free movement area too. But they don't have the right to participate in negotiations of new EU rules and must make significant financial contributions to the Schengen and Dublin system. In other words, they accept to be "rule takers" in exchange for comprehensive economic relations and an asylum system integrated with the EU so they can take part in burden-sharing arrangements.

Protecting the most vulnerable

Through Brexit, the UK is voluntarily withdrawing from the rule-making position it held within CEAS without replacing it. As a recent study published by the European Parliament warned, there is no time to formulate and agree a new asylum mechanism before the end of March 2019. The difficulty ahead for the UK is that, because of its geographical position and the fact that many asylum seekers will transit EU member states before arriving in the UK, it must engage with the EU.

The UK should find a way to be part of CEAS so that it isn't considered by the EU as a third country outside the EU's asylum governance structures. To do this, it needs to leave the EU with a deal and negotiate a version of staying within the EU's existing asylum framework beyond any transition period. This might be the only realistic way to protect the existing rights and entitlements of asylum seekers in the UK.