Brexit, migration and the Dublin III Regulation reform

November 2017  |  SPECIAL REPORT: PREPARING FOR BREXIT

Financier Worldwide Magazine

November 2017 Issue

Among the multiple issues needing to be dealt with after the Brexit referendum of 23 June 2016, one of the most important is migration policy. Immigration was one of the main referendum campaign drivers and is still one of the most contentious subjects during the Brexit negotiation between the UK and the European Union (EU).

A recent judgment delivered by the Court of Justice of the EU on 6 September 2017 reignited the debate on how the EU is coping with the new migration flows from Africa and the Middle East and the need to update the Dublin III Regulation.

The court dismissed the actions brought by Slovakia and Hungary against the provisional mechanism for the mandatory relocation of asylum seekers. During the summer of 2015 the EU experienced a pitch of migrant flows with thousands of refugees from the East trying to reach Greece and the coasts of Italy by any means. The Council of the EU tried to ease the pressure on these Member States by adopting Decision (EU) 2015/1601 establishing provisional measures in the area of international protection for the benefit of Italy and Greece. The decision established a provisional relocation mechanism according to which 120,000 asylum seekers who had reached Italy and Greece had to be relocated, over a period of two years, to other EU Member States. Article 78, paragraph 3, of the Treaty on the Functioning of the EU states that: “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.”

Slovakia and Hungary voted against the adoption of the decision during the Council sessions and thereafter asked the Court to annul it, affirming that it was neither a suitable response to the migrant crisis nor necessary for that purpose, along with a number of procedural objections. The court rejected the pleas and arguments of Slovakia and Hungary and upheld the validity and proportionality of the relocation mechanism, stating that the Council was not required to act unanimously when it had adopted the contested decision.

The court’s judgement does not directly affect the UK, which did not take part in the adoption of the decision and is not thereby bound by it. However, in accordance with Article 3 and Article 4a(1) of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, annexed to the Treaty on European Union (TEU) and to the TFEU, it had notified its wish to take part in the adoption and application of Regulation (EU) No 604/2013. According to the Dublin III Regulation, the Member State responsible for the asylum eligibility procedure and the concession of the asylum is the Member State where the asylum seeker first arrived. For that reason, other Member States can transfer asylum seekers that are illegally in their territory to the Member State responsible for examining the asylum application. Thanks to its geographic location, the UK has always benefited from the Dublin system by transferring to other Member States a number substantially higher of asylum applicants than the number of applicants transferred to the UK from other Member States.

The current situation will most probably change after Brexit. If the UK does not manage to negotiate a deal with the EU because of the government’s ‘hard Brexit’ approach or the unproductive results of the negotiation, refugees’ rights will still be guaranteed by the fairly strong shield provided by the United Nations Convention of Geneva of 1951 relating to the Status of Refugees. Once out of the Dublin system, the UK could naturally still negotiate bilateral agreements with other countries to transfer asylum seekers in their territory, as Australia already does by paying entirely for the transfer schemes.

The alternative of the UK remaining in the Dublin system is possible in the abstract; for instance, Switzerland also takes part in the Dublin system. However, Switzerland is also part of the Schengen Area and the Dublin system was partially envisaged to remedy some of the drawbacks of the free movement of people. Even if the UK negotiates with the EU to keep participating in the Dublin system, the conditions of its participation (and the Dublin system in general) would nevertheless be less favourable to the UK. Currently, thanks to Protocol No 21 annexed to the TFEU, the British government can decide to opt-in or to opt-out in relation to certain measures adopted pursuant to Title V of Part Three of the TFEU (Area of Freedom, Security and Justice). This power is particularly relevant in light of the current reform proposal to the Dublin III Regulation, whereby the Commission aims to create a fairer, more efficient and more sustainable system for allocating asylum applications among Member States thanks to a new mechanism that will ensure that no Member State is left with a disproportionate pressure on its asylum system, while reaffirming that asylum seekers should, unless they have family elsewhere, apply for asylum in the first country they enter. With the loss of its right to opt-out in relation to specific measures, the UK’s choice could be limited to either accept the new terms of the reformed Dublin III Regulation in their entirety, or not to conclude any agreement with the EU and address migration issues only with bilateral agreements.

The lack of an agreement to continue being part of the Dublin system could have significant consequences. The right of a refugee to be reunited with his or her extended family living in a different Member State than he or she firstly arrived in will no longer be granted if the extended family lives in the UK. Moreover, considering that refugees will not be prevented from seeking asylum in the UK after it is no longer part of the Dublin system, many of them could try to reach the UK as a ‘second chance country’ to apply for asylum, without any possibility for the UK to reject or transfer them prior to an accurate examination of their application.

 

Roberto Jacchia is a partner and Davide Scavuzzo and Sara Capruzzi are associates at De Berti Jacchia Franchini Forlani. Mr Jacchia can be contacted on +39 02 72554 1 or by email: r.jacchia@dejalex.com. Mr Scavuzzo can be contacted on +32 2 742013 8 or by email: d.scavuzzo@dejalex.com. Ms Capruzzi can be contacted on +32 2 742013 8 or by email: s.capruzzi@dejalex.com.

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Roberto Jacchia, Davide Scavuzzo and Sara Capruzzi

De Berti Jacchia Franchini Forlani

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