Steve Peers

The EU Commission is anticipated to unveil a new immigration and asylum agenda on May 13th. A pressing issue within this agenda is whether the UK can opt out of mandatory refugee quotas, a question this article will examine.

Leaked portions of the Commission’s paper suggest a more ambitious approach to refugee resettlement than EU leaders recently agreed upon. Specifically, the Commission intends to propose mandatory rules for relocating asylum-seekers already within the EU and resettling refugees currently residing in non-EU countries. News reports in the Guardian and the Times highlight a potential conflict with the UK regarding these refugee quotas, stemming from uncertainty about the UK’s ability to opt out. This article will analyze this issue from both legal and political perspectives.

Legal analysis

The draft plan cites Article 78(3) of the Treaty on the Functioning of the European Union (TFEU) as the legal basis for relocation proposals. This article empowers the Council to adopt provisional measures for member states facing a sudden influx of third-country nationals, based on a Commission proposal and after consulting the European Parliament.

Article 78(3) falls under the Justice and Home Affairs (JHA) provisions of the Treaty, from which the UK has an opt-out. Protocol 21 of the Treaties, particularly Article 1, states that the UK is not obligated to participate in Council adoptions of measures under Title V of Part Three of the TFEU, which covers JHA provisions.

Article 2 of Protocol 21 further reinforces this opt-out, emphasizing that provisions, measures, or decisions under Title V of Part Three of the TFEU are not binding or applicable in the UK. This opt-out does not impact the UK’s existing competences, rights, obligations, or its relationship with the Community or Union acquis.

The Protocol unequivocally applies to all JHA measures, as evidenced by Article 9, which specifically mentions an exception for Ireland concerning anti-terrorist sanctions. This implies that the UK can opt out of any JHA measures unless explicitly stated otherwise in the Protocol, which is not the case for Article 78(3). Therefore, the UK can opt out of any refugee law measure falling under the JHA legal framework. The Commission’s paper does not consider proposing a refugee law measure outside the JHA legal base to circumvent the UK’s opt-out.

However, a specific rule applies when an EU proposal amends existing EU legislation binding the UK. The UK currently participates in the Dublin Regulation, which determines the Member State responsible for examining an asylum application. The relocation proposal would likely require amending this regulation, potentially triggering this rule.

Article 4a of the Protocol outlines the procedure when a JHA proposal amends an existing act binding the UK. Essentially, if the UK opts out, it risks being excluded from participation in the original law. This scenario implies that the UK could be excluded from the Dublin Regulation if it chooses not to participate in the relocation proposal.

According to Article 4a, the Council, through a qualified majority vote (excluding the UK) and based on a Commission proposal, can decide that the revised law would be impractical without the UK’s participation. This decision serves as an ultimatum, granting the UK two months to opt into the amended law. Failure to do so would automatically exclude the UK from the original measure.

This “ultimatum” clause, introduced by the Treaty of Lisbon, has never been used and could create political tension, particularly given the UK’s commitment to the Dublin rules.

Alternatively, the new proposals could involve amendments to the EU’s temporary protection Directive or the Asylum and Migration Fund, both of which the UK currently participates in. The “ultimatum” clause dynamics would still apply, but with varying degrees of political sensitivity. The UK government might not be opposed to being excluded from the temporary protection Directive, which has never been implemented. However, it would likely resist being excluded from the Asylum and Migration Fund.

The European Parliament might contest using Article 78(3), potentially preferring an asylum “legal base” that grants it more legislative power. However, using a different legal base wouldn’t alter the UK’s opt-out rules.

Political context

The Commission’s proposals might not gain approval, given past unsuccessful attempts to establish EU relocation and resettlement rules and the reluctance of EU leaders to commit, even in light of recent migrant tragedies. The Treaty requires a qualified majority vote in the Council to approve such proposals.

Similarly, the UK can only receive an ultimatum regarding its participation in existing EU law if the Commission proposes and the Council approves (excluding the UK’s vote) a Council decision. The European Parliament plays no role in this process, making it uncertain whether such a decision would pass, even with strong Council support for the Commission’s proposals.

Considering this context and the newly elected Conservative government’s commitment to an EU membership referendum, it is questionable whether the Commission is wise in proposing measures potentially binding the UK despite its opt-out right. While expecting the Commission to refrain from potentially sensitive proposals until the referendum is unrealistic, it should avoid measures causing significant offense. This is particularly important for immigration, a highly sensitive topic in the UK-EU relationship.

Ultimately, the UK’s exit from the EU would eliminate any prospect of relocating asylum-seekers there. While the Commission’s pursuit of bold solutions for the migrant crisis is understandable, caution might be more appropriate in certain situations.

Barnard & Peers: chapter 26

Photo: bbc.co.uk