Prime Minister Theresa May lays out the government's 12 priorities for negotiating the UK's exit from the European Union on 17 January 2017. Jay Allen/Number 10/Flickr. (CC 2.0 by-nc-nd)

The prevailing interpretation of the Brexit referendum result has been that it was a vote to take back control of immigration and, in conjunction with the Conservative party’s manifesto pledge to reduce net migration to the tens of thousands, to ultimately reduce the number of EU nationals moving to the UK.

One of the most pressing issues for EU nationals in the UK has been securing their rights and legal status, with some opting to apply for permanent residence. High profile cases such as Monique Hawkins have demonstrated the inherent difficulties which the UK faces post-Brexit in processing applications for permanent residence from EU nationals. The government appears to prioritise immigration control over unfettered access to the single market, and the recent white paper acknowledged the need to create new immigration laws with the focus being predominantly on ending the free movement of people and reducing net migration.

The EU’s internal asylum elements cannot be replicated.

However, this is only a small sub-section of the migration picture in the EU, and Brexit has a number of implications for UK policy which may not be easily rectified post-Brexit. In this article I set out the areas of UK migration policy requiring substantial reform and investment post-Brexit, with a focus on return procedures. I will focus first on the return procedures for migration between the UK-EU before turning to the potential effects on return procedures between the UK and third countries.

The use of the term ‘cliff edge’ has gained significant traction in the Brexit conversation. It is often used as a term to describe the economic situation that may affect business on both sides of the English Channel. This economic lens is symptomatic of the UK’s perception of the purpose of the EU: to facilitate free trade and the movement of capital across the borders of the member states. But the EU has achieved significant cooperation in asylum and migration, culminating in the creation of the Common European Asylum System (CEAS) alongside an area free of internal borders.

The UK government is now tasked with extricating itself from this system. Some elements of the CEAS can be incorporated into UK law through the proposed Great Repeal Bill, such as the Qualification, Asylum Procedures and Reception Directives. However, the EU’s internal asylum elements cannot be replicated, despite the fact that the UK will presumably push for some form of cooperation.

Furthermore, the EU has created a network of surrounding third countries with whom it cooperates with on return and readmission issues. The term ‘cliff edge’ could thus be more appropriately applied to the situation facing the UK’s migration policy, with its successful resolution being a matter of concern for the government as well as any individual – whether an irregular migrant or an asylum-seeker – who may be caught up in the regulatory void created by Brexit.

The Dublin system

The pursuit of an area free from internal borders, as set out in the Single European Act, necessitated cooperation between member states on issues around the protection of the external borders and the mechanisms through which states may be assigned responsibility for asylum-seekers or irregular migrants who made it through such borders. The answer to this question was the creation of the Dublin System, which is designed to ascertain which member state is responsible for examining an asylum claim made by an individual. The system uses a number of criteria, such as: existing family members in the EU; whether they were granted a visa or residency by a particular member state; or through which state they first entered the territory of the EU.

A hard Brexit may in fact benefit people smugglers as the UK will lack the legal mechanism through which to return people to mainland Europe.

The Dublin System is not without its critics. It has received significant political scrutiny from Italy and Greece, among others, who argue that it places the majority of the burden for assessing claims on them as they are usually the first states of entry. It has also received legal scrutiny from the European Court of Human Rights, who assessed its legality in the case of M.S.S. v Belgium and Greece. The recent migration crisis, and the German response to it under the sovereignty clause in the Dublin Regulation, has demonstrated the need for a fairer system, which may include the use of quotas.

The UK’s geographic location works to its advantage under the Dublin System, as it is very difficult for the UK to become the member state of first entry for the majority of individuals risking their lives across the Mediterranean or travelling to Europe through Turkey. The UK has thus been able to return individuals to states such as France and Italy under the Dublin Regulation.

Brexit threatens this cooperation as there will no longer be the mechanism to return such individuals. In the forthcoming negotiations it may not even be in the interests of the remaining EU members to extend this cooperation as they would still be responsible for assessing the asylum claims and the potential costs which come with it. The EEA and EFTA states of Iceland, Norway, Switzerland and Liechtenstein operate within the Dublin System, but if the UK government is insistent on ‘escaping’ the jurisdiction of the EU Court of Justice and EU regulations then it is difficult to see how it may cooperate on the return of individuals to EU member states.

Therefore, the hard Brexit currently being pursued by the government may in fact benefit people smugglers, who smuggle desperate migrants through Calais and other ports, as the UK will lack the legal mechanism through which to return them to mainland Europe.

The EURODAC Database

The UK government has acknowledged that there may be some areas of EU cooperation for which it may be willing to make a contribution to the EU budget. But the recent decision to withdraw from European Atomic Energy Community demonstrates the uncertainty surrounding what the government considers to be worth paying for. The government’s white paper makes no reference to access to the Dublin System, but this may be access which it cannot simply pay for.

The Dublin System relies on the EURODAC database in order to function and assign irregular migrants to the correct member state. EURODAC is the asylum fingerprint database, into which every new irregular migrant is registered, which therefore acts as evidence of the first country of entry.

The government may find itself in the extraordinary position of not only being unable to identify irregular migrants who have travelled through the EU to the UK, but also lacking the mechanism via to which to return them.

Here, a hard Brexit presents a number of issues. The most immediate of these is that the EURODAC regulation prohibits the sharing of data with a third country, meaning that it would not be possible for a country such as France to share the fingerprints in the database with the UK. The second wider issue for the government to reconcile is that if access to the database could be negotiated, however unlikely, it may then require oversight from the European data protection supervisor and the implementation of the EU data protection law, which has already been a point of frustration for the government.

Rather than taking back control of immigration policy, the government may find itself in the extraordinary position of not only being unable to identify irregular migrants who have travelled through the EU to the UK, but also lacking the mechanism via to which to return them. This may give an extra incentive for migrants to discard any documentation which may be used to identify either their country of origin or to reveal how they entered the UK.

Readmission

In the absence of the means to identify and then return an individual to the EU member states, the Home Office may attempt to return them directly to their state of origin or another state of transit. This process is known as readmission, and relies on two legal bases. The first is a customary international law obligation for a state to accept the return of their own nationals, and this will still operate in the same way post-Brexit.

The second potential legal basis is through a readmission agreement, which sets out the procedure for a successful return. Such agreements have been concluded at the EU level, with 17 currently in force with states such as Turkey, Albania and Sri Lanka. Readmission obligations have also been included in EU trade and cooperation agreements. The EU’s readmission policy has allowed, and indeed facilitated, the conclusion of bilateral readmission agreements by member states with third countries. The key difference between such EU agreements and those of the member states is that EU agreements allow for the return of third country nationals and stateless persons in addition to a state’s own nationals.

However, the ‘cliff edge’ facing the UK is its reliance on the EU for its readmission agreements. The UK currently has formal bilateral readmission agreements with South Korea, Algeria and Switzerland, but is also a signatory of 14 EU readmission agreements. In comparison to other member states and even EEA states such as Norway, the UK is over-reliant on memorandums of understanding (MoU) for its readmission policy. The main weakness of using MoUs for this purpose is their lack of legal enforceability, which is particularly important when you take into account the difficulties in identifying the correct nationalities and the subsequent reliance on the third country accepting them as a national. Indeed, it may be in the interest of a third country to deny that an individual is one of their citizens.

The potential ‘cliff edge’ in readmission policy raises an important question for the UK and the EU: is it possible for the UK to remain a party to international agreements concluded by the EU once it has left the union? This would also require the agreement of the third country in question. Furthermore, would such agreements continue to apply during a transitional period?

To repeat: rather than taking back control of immigration policy, the government may find itself not only being unable to identify irregular migrants who have travelled through the EU to the UK but also being unable to return them to the EU and third countries through which they may have travelled on their journey. This should be a concern for the government as the potential renegotiation of readmission agreements will draw further staff and resources away from the Brexit negotiations. Going over the ‘cliff edge’ may actually be to the benefit of irregular migrants as the ensuing confusion may significantly delay, or even prevent, their return to their country of origin or of transit if they are deemed not to meet the criteria for refugee or humanitarian protection.

Contribute to Brexit Migration Watch

It is clear that Brexit is going to have significant impacts on immigration and asylum law, policy, and the lives of immigrants in the UK. And yet if the likelihood of significant ‘implications’ is clear, the specific policy, legal and other changes remain unknown. OpenDemocracy’s new series Brexit Asylum Watch provides a space for expert analysis and reflection on the theme.

If you would like to contribute, please email the editors Lucy Mayblin (University of Warwick) or Cameron Thibos (openDemocracy) with a short pitch of up to 300 words and a two-sentence bio sketch.