Professor Steve Peers, University of Essex*

*Supported by an ESRC Priority Brexit Grant on ‘Brexit and UK and EU Immigration Policy’.

Some politicians are trying to create unnecessary fear and outrage over a relatively small number of people crossing the English Channel. This situation does bring up important legal questions. While the legal aspects have been discussed elsewhere, such as in the Free Movement blog, this post aims to clarify some of these legal issues in a straightforward question-and-answer format.

What are the international laws regarding asylum?

International laws on asylum are not centralized and are spread across various sources. International law is often described as fragmented, which is especially true when it comes to asylum law. In Europe, there are three primary sources of law: the UN Refugee Convention, the European Convention on Human Rights (ECHR), and EU asylum law. These sources are legally distinct, but their rules often overlap and interact. This post will focus on the aspects most relevant to the Channel crossings.

The UN Refugee Convention

The foundation of asylum law is the United Nations (Geneva) Convention on the status of refugees, which defines who qualifies as a refugee and outlines their rights. However, this Convention does not address asylum procedures and has a complex and unclear relationship with immigration law.

ECHR

The European Convention on Human Rights (ECHR) does not directly address asylum. However, the European Court of Human Rights has issued rulings on asylum-related matters, particularly concerning Article 3 of the ECHR, which prohibits torture and inhuman or degrading treatment. According to these rulings, sending a person to another country where they would likely face a serious risk of such treatment violates Article 3 in the country removing them. This leads to a series of procedural obligations. (While other international human rights treaties address similar concerns, this post concentrates on the ECHR due to its binding rulings and greater practical impact).

EU asylum law

EU law aims to establish a Common European Asylum System (CEAS) in stages. The first phase of EU asylum law was implemented between 2003 and 2005, followed by a second phase between 2010 and 2013. A third phase, prompted by the 2015 European refugee crisis, was proposed in 2016 and is still under negotiation. The CEAS comprises:

a) legislation outlining the responsibility for asylum applications (known as the Dublin rules, currently the Dublin III Regulation);

b) the Eurodac system for fingerprinting asylum-seekers and individuals who entered a country without authorization;

c) laws defining ‘refugee’ status, a similar ‘subsidiary protection’ status, and the rights associated with both;

d) asylum procedures;

e) reception conditions for asylum-seekers, including rules on benefits, detention, and children’s education; and

f) an EU asylum agency that assists, but does not replace, national administrations responsible for applying asylum law.

Contrary to false claims during the 2016 Brexit referendum, the UK, as an EU Member State, does have control over its borders. The UK exercised its right to opt out of the EU’s Schengen system, which aims for open internal borders, and opted out of EU laws on asylum, immigration, and criminal law. The UK opted in to some EU asylum laws: all first-phase laws but only some second-phase laws (Dublin, Eurodac, and the asylum agency).

In conclusion, international asylum law is fragmented. The UN Refugee Convention addresses specific issues but lacks an enforcement mechanism. The ECHR case law is developed on a case-by-case basis and is not direct. While EU asylum laws offer more coherence, only a portion of them apply to the UK. Moreover, these laws are applied differently across nations, with varying interpretations of minimum standards.

Can people who enter a country without authorization be considered refugees?

The belief that individuals who enter a country without authorization cannot be genuine refugees is entirely false, morally, factually, and legally. It is understandable that someone fleeing danger might lack the necessary documents to leave their country or enter another, especially if the persecuting country wants to prevent their escape or due to fear-mongering in the receiving country.

This concept is evident not just in popular culture, such as the movie Casablanca, but also in historical events like the efforts of Raoul Wallenberg and others who prioritized saving Hungarian Jews over legal technicalities.

Legally, the definition of ‘refugee’ in the Refugee Convention (Article 1.A) makes no mention of immigration status. Additionally, Article 1.F does not exclude ‘illegal’ migrants from refugee status. While certain refugee rights under the Convention depend on legal migration status, others do not. Most importantly, Article 33 states that refugees should not be sent back to unsafe countries.

Furthermore, the Convention includes a specific provision addressing the situation of refugees who entered a country without permission, which would be unnecessary if they were not eligible for refugee status. Article 31 prevents states from penalizing refugees for irregular entry under specific conditions. While a penalty might be imposed if these conditions are unmet, it doesn’t disqualify the individual from being a refugee. Notably, neither the ECHR nor EU law disqualifies individuals who entered a country without authorization from obtaining refugee status.

However, it is crucial to note that not everyone who enters a country without authorization is a refugee. They must still meet specific criteria, which include fleeing their home country due to a well-founded fear of persecution based on their race, religion, nationality, political opinion, or social group. Furthermore, states can argue that even if someone is or could be a refugee, another country is responsible for their asylum claim. Let’s examine this aspect further.

Are refugees required to seek asylum in the first ‘safe country’ they enter? Is it true they are not genuine refugees otherwise?

Although it’s often stated that international law requires refugees to seek asylum in the first safe country they reach, the reality is more nuanced. The Refugee Convention lacks a specific rule stating this within its definition of a refugee or its provisions on the cessation (loss) or exclusion of refugee status, as outlined in Articles 1.A to 1.F.

However, the Convention indirectly suggests that the number of countries a refugee has passed through might be relevant. Article 31, which addresses ‘illegal’ entry (as discussed earlier), includes a condition for avoiding penalties: the refugee must have come ‘directly’ from the country they fled. While Article 33’s ’non-refoulement’ principle prevents sending refugees back to unsafe states, it doesn’t prevent their removal to safe ones. Additionally, some benefits the Convention grants to refugees, like welfare and employment access, are limited to those legally residing in the territory. The Convention does not mandate that states grant refugees legal status under national immigration law.

Therefore, the Refugee Convention allows states some leeway to insist on a ‘safe third country’ rule. Still, no absolute rule dictates that refugees must always apply in the first safe country they reach. Had the Convention intended to impose a strict rule, it would have explicitly stated it, defined its application conditions, and outlined obligations for the first ‘safe’ country to readmit the refugee—without such obligations, the rule would be difficult to implement. Moreover, the Convention’s preamble acknowledges the potential burden of granting asylum on some countries and highlights the need for international cooperation to prevent refugees from becoming a source of tension between states. In essence, the Convention’s drafters recognized that a rigid safe third country rule could unfairly burden countries near conflicts but allowed states to determine how to address such situations as they arise. 

The EU’s Dublin rules are an example of states collaborating to establish such rules, which will be discussed in detail later. It is important to note that these rules don’t obligate asylum-seekers to apply in specific countries. Instead, they oblige states to admit asylum-seekers if they are responsible for processing their applications. Asylum-seekers can still apply in a state not responsible for them under EU rules, but their application may be deemed inadmissible (not unfounded) and they could be transferred to the country responsible for their case. This makes it practically challenging for asylum-seekers to apply in certain countries, leading some to suggest that the Dublin rules dictate where asylum-seekers should apply. However, this differs from a legal obligation to apply in a particular country.

Traveling through one or more safe countries to apply for asylum in a specific country doesn’t invalidate an asylum-seeker’s claim. It might indicate a preference for certain countries due to language, family ties, or other reasons. While they have no legal right to have their preference honored, it doesn’t mean they are lying about facing persecution.

(Note: This section draws from a previous discussion on this topic in a 2015 blog post about the so-called EU refugee crisis).

According to the Dublin rules, which country is responsible for examining an asylum application?

It’s often claimed that the Dublin rules require asylum-seekers to apply in the first EU country they enter. Besides not directly regulating asylum-seekers, the ‘first country they enter’ assertion is an oversimplification. While it often occurs in practice, the Dublin rules don’t have a specific ‘first country of entry’ rule.

The Dublin rules have a unique rule for unaccompanied minors, followed by rules regarding family members of those already granted refugee or subsidiary protection status, or who have applied for it. (Some asylum-seekers come to the UK based on such family links under the Dublin rules). These rules also assign responsibility to the first state that issued a visa or residence permit to an asylum-seeker, or waived the visa requirement for them. Additionally, they assign responsibility to the first state where an asylum-seeker entered illegally or stayed without authorization.

These criteria are often challenging to verify, so the Dublin rules outline specific procedures for states to cooperate in applying them. Applying these rules is easier when an asylum-seeker has already been fingerprinted as an asylum-seeker or an individual who entered a country without authorization, as the Eurodac database retains this record. States also have the option to examine an asylum application even if not obligated to do so under these rules.

What is the impact of Brexit?

The UK will continue to be bound by the UN Refugee Convention and the ECHR, as they are separate from EU law. However, the impact of Brexit on UK and EU asylum law is a different matter.

Ratifying the proposed withdrawal agreement, which is discussed in detail elsewhere, will maintain the Dublin rules and other relevant EU asylum legislation for the UK until the end of the transition period (also discussed elsewhere), currently scheduled for the end of 2020 but extendable by one or two years if both parties agree. (For those concerned about the withdrawal agreement’s provision for a ‘Joint Committee’, such bodies are common in international treaties, and this committee can only make decisions if the UK government and the EU jointly agree). The UK will maintain its opt-out regarding new EU asylum laws and its right to opt in if they amend existing laws applicable to the UK.

A new treaty between the EU and the UK could be established after this period, potentially maintaining the Dublin rules or a modified version. However, the declaration on the future relationship between the UK and the EU (annotated elsewhere) makes no mention of this possibility. While this declaration isn’t legally binding and cannot prevent negotiating such a treaty if both sides desire, it is worth noting. While the EU has signed Dublin ‘association agreements’ with non-EU countries like Norway, Iceland, Switzerland, and Liechtenstein, these are primarily due to their association with the EU’s Schengen system.

Alternatively, the UK could theoretically sign treaties or establish informal agreements with individual member states. (It’s unclear to what extent EU asylum laws grant the EU external competence on asylum issues, potentially limiting member states’ ability to do this). Failing that (or in addition to it), the UK might try harder to return asylum-seekers to non-EU countries. However, fundamental international law obligations under the Refugee Convention, the ECHR, and other international laws, which prohibit returning refugees to unsafe countries, will still apply.

The idea that individuals intercepted in the Channel or discovered after crossing could be forcibly returned to France without their consent is unrealistic (as is patrolling French territorial waters without consent). The referendum result is not a mandate to ’take back control’ of a different country, especially not one from which English forces were expelled in 1453.

The ultimate consequence of Brexit for one category of non-EU citizens—asylum-seekers whose applications would be the responsibility of another country under the Dublin rules—might be reduced UK control over migration, not increased control. This highlights the complexities and unintended consequences that can arise from attempts to manipulate a situation through misleading information.

Barnard & Peers: chapter 27, chapter 26

JHA4: chapter I:5

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