Migrant children at Calais. Photo: Chris Radburn / PA Wire/Press Association Images. All rights reservedApart from the occasional media headlines mixing up EU and other migrants, there has been little serious discussion about the implications of the referendum for refugee protection in the UK. This is partly because nobody really knows what shape our exit from the EU will take. Until the negotiations start, that is unlikely to change. Yet despite the dizzying number of possible scenarios, there are parts of the equation refugee advocates should start to think through now, in order to get a better grip on the way Brexit might affect those we work to support.
The ‘clean break’ scenario
Since 1999, the EU has adopted laws aimed at harmonizing member states’ rules, procedures and reception conditions for asylum seekers. Together they form the Common European Asylum System (CEAS). The UK will have an interest in continued cooperation with the EU on some asylum issues even after we cease to be a Member State. Still, thinking through what a complete ‘clean break’ from EU asylum laws would look like is helpful to get some perspective.
Let’s imagine. The first sigh of relief comes when one realizes that the UK’s fundamental obligations to protect refugees under international law would remain, as the UN Refugee Convention, European Convention on Human Rights, and UN Convention against Torture are not EU instruments. For the most part, EU law merely supports the implementation of these protection obligations. Still, EU law has built on these conventions in helpful ways, and because the European Court of Justice relies on the treaties when interpreting the relevant EU rules, the Court has become an indirect means of challenging practice out of line with our international obligations.
the government would have a freer hand to change rules
Another, more temporary relief, is that there could be few automatic changes to refugee law and policy following our departure, because most EU law has been translated into national law. Still, the government would have a freer hand to change rules that it is no longer obliged to have on the statute book. In theory, we could see the end of humanitarian protection since the only international law mandating this is an EU directive. Even if humanitarian protection is rarely granted in practice (the Syrian resettlement scheme being an important exception), the provision is vitally important because it recognises the needs of those at risk from generalised violence, rather than individual persecution. The loss of EU law on standards of living and access to healthcare would make it just that little easier for the UK government to make the UK an even more ‘hostile environment’ for those seeking sanctuary. Organisations (such as my own, Freedom from Torture) are pushing to resist the erosion of specific safeguards for torture survivors derived from EU law.
A clean break with CEAS would also mean losing our participation in the Dublin Regulation which determines which Member State is responsible for processing asylum claims. The UK benefits from the scheme - Eurostat shows an average ‘net’ transfer figure for the UK of just under 400 a year for the period between 2012 and 2014 – mostly because it is far from the main irregular entry points to the EU, making many asylum seekers ineligible for asylum in the UK. Freedom from Torture’s legal advisors would not be alone in their relief if this unfair and inefficient system, delaying torture survivors’ asylum claims and increasing risk of detention, were brought to an end. Yet, losing the Dublin scheme is likely to set off alarm bells in the Home Office. It would almost certainly try to counteract this loss by renegotiating bilateral agreements with EU member states, although whether they would succeed at doing so is questionable. It might instead set standards well below that of the rest of the EU to create a stronger deterrent. In addition to fighting to hold on to the Le Touquet agreement (especially if France elects a populist government next year), it might strengthen ‘Fortress Britannia’ by increasing investment in the policing of its maritime border. Taking a leaf out of the Australian playbook, the government would probably try to make draconian moves to keep irregular arrivals out more palatable by pledging a more generous resettlement intake in line with its ‘managed migration’ objectives.
The UK might set standards well below that of the rest of the EU to create a stronger deterrent.
Breaking free from the EU’s rules and regulations would not, however, prevent the UK from looking to Europe for inspiration. Paradoxically, we could still expect the UK to borrow ideas from the latest – mostly regressive – proposals developed to further harmonise asylum systems within the EU. Driven by a fear of “pull factors”, the UK would almost certainly copy any efforts to further drive down standards. For example, the European Commission’s recent proposals would strengthen sanctions for those who fail to comply with the rules and tighten time-limits at different stages of the asylum procedure.
The less radical scenario
Less than two months after the referendum, most Brexiteers have already admitted that a clean break is near impossible. Two of the four possible models UKIP discusses on its website include (some level of) free movement in exchange for access to the single market. Any deal that includes free movement would create space for negotiations in other areas, opening up a host of opportunities and risks that refugee advocates should start thinking about now.
The Dublin scheme is the obvious first point of call; successive UK governments have valued it highly and when the system came under pressure during last year’s refugee crisis, Theresa May was quick to argue for its retention. The UK has also found practical cooperation under CEAS useful. It has helped fortify the walls of fortress Europe by supporting Frontex in joint border control operations, and has participated in Regional Protection Programmes which provide support to transit countries and countries of origin as a means of keeping refugees closer to home. It has also valued shared charter flights and EU Readmission Agreements with third countries, which have made it easier to return those who had their asylum claims refused.
The UK has helped fortify the walls of fortress Europe by supporting Frontex in joint border control operations
Yet EU officials working on Justice and Home Affairs (JHA) are unlikely to be having sleepless nights about losing an island far away from the main irregular migration routes. In fact, the UK’s departure would make the implementation of CEAS somewhat easier as all Member States would at least be bound by the same legislation (the UK has an ‘opt-in’ right for JHA initiatives and chose not to sign up to the latest Reception, Procedures and Qualification directives but remains bound by the earlier versions). Most Member States are unlikely to have much interest in keeping the UK within the Dublin scheme because it transfers more asylum seekers than it receives under the Regulation, although France and Belgium might be wary of measures that could increase the number of people trying to pass through their territories. The EU as a whole would lose the UK’s occasional operational contributions to Frontex, and its influence with key countries of origin for asylum seekers such as Nigeria and Pakistan, which are among 16 priority countries the EU has proposed partnering with to stem migration.
The reality is that refugee issues are not on the immediate negotiation priority lists of either UK or EU officials – and trade-offs are just as likely to be made across other EU policy agendas (which happened in the case of Switzerland, which agreed to the EU’s terms on the regulation of taxation of savings and anti-fraud measures in order to become associated to the EU’s Schengen and Dublin agreements). This will make it very hard to predict the course of negotiations. Still, negotiations around the Dublin scheme and other areas of practical cooperation might be an opportunity to pressure the UK to participate in additional areas of CEAS. The EU has required Iceland, Lichtenstein, Switzerland and Norway – non-EU states that are part of the Schengen and Dublin agreements – to adopt all acts amending or building upon the Dublin acquis. Last year, the EU made clear that it is serious about this when it threatened that these countries could lose their participation in the Dublin scheme if they did not accept the temporary relocation mechanism proposed at the height of the refugee crisis.
Time to get ahead of the curve
Of course it is not nearly as simple as the two scenarios above would suggest. It might well take much longer than anyone currently imagines before we are actually ‘out’ of the EU. On 20 July 2016, the Home Office’s Permanent Secretary Mark Sedwill confirmed that no policy options had been developed in the lead-up to the referendum because the government’s position was to remain. Yet we can be sure that officials are now manically working out their options. While it may still feel like ‘early days’, we cannot sit back.
Survivors of Torture and other refugees who came here for protection and a safe recovery environment now worry about their future in this country. For their sake, we need to use this time to work out what we want to fight for within the EU asylum acquis, and what we are willing or even happy to let go. We need to be clear on what trade-offs to support and which ones to prevent. And we need to be ready to exploit the opportunities that present themselves along the way. Only then will we be in a position to effectively influence the course and impact of a withdrawal from the EU to maximise protection for refugees.