International Protection Post Brexit: The Future Relationship Between The UK And The EU

14 Nov 2018, 29 mins ago

The European Parliament has released a study highlighting the fact that limited focus has been placed on the relationship between the UK and the EU with regards to international protection. The study was commissioned by the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIE Committee) and reviewed in detail the issues of asylum, resettlement, return and readmission. This blog will focus primarily on the discussion relating to asylum.

The main purpose of the report – released on 6 November – was to provide an analysis of the legal, institutional and technical implications of the UK’s future relationship with the EU after Brexit in the field of international protection. In doing so, the report points to a dearth of focus on the field of international protection in the negotiations and public statements on the future relationship between the UK and the EU; and highlights that none of the existing legal mechanisms and policy measures currently in place between the EU and other third countries on this topic would currently be replicable after the UK formally leaves the EU.

It will therefore be necessary to make new arrangements specifically tailored to the UK’s unique history, current position and requirements and to address the important implications in the field of international protection after Brexit. One of the key challenges for these new arrangements will be ensuring the protection of asylum seekers’ and refugees’ human rights in the UK after Brexit.

The perception throughout the Brexit campaign and subsequent withdrawal process has been that the EU is incapable of responding to migration pressures and controlling the number of migrants crossing its borders. 


Existing EU legislation covering international protection and the UK’s participation 

The report contains an in-depth analysis of the existing EU legislation covering international protection and the UK’s participation in these measures, including for example, the Common European Asylum System (“CEAS”), which aims to harmonise asylum applications at EU level. CEAS is made up of many different component groups of legislation, such as the Dublin System, the Hague Programme, the European Agenda on Migration and other Treaties, Directives and regulations.

The UK has undertaken a selective participation in CEAS, choosing to opt-in to the first phase between 1999 and 2005 (incorporating the relevant EU Directives into UK law) but not the second phase, which includes the recast Directives from 2011 – 2013.  The UK participates in the Dublin and Eurodac Regulations, however, as well as in the Asylum, Migration and Integration Fund (AMIF) and the European Asylum Support Office (EASO), among others. The UK also cooperates closely with other EU Member States through Frontex operations and is part of the European Migration Network (EMN), the Immigration Liaison Officers (ILOs) Regulation and EU Readmission Agreements (EURAs).

Until the UK withdraws from the EU, the UK remains a full member of the initiatives in which it currently participates, so, for example, it will remain a full member of the first phase of CEAS. However, from the moment the UK formally withdraws from the EU (subject to agreement on any transition period), the EU will have the right to determine that a particular measure will no longer apply to the UK if its participation makes the relevant legislation inoperable for the remaining Member States. It seems most likely that the EU would decide to exercise this right with respect to reforms currently in the proposal stage, such as the proposed reforms to the Dublin System. 

In the event of a no-deal Brexit, all EU rules not currently transposed to UK law will immediately cease to apply to the UK from 29 March 2019. This means, for example that there will be no backup option to transfer asylum seekers to or from the UK under international law after Brexit and the issue of pending transfers will also need to be addressed.


The Future landscape of international protection in the UK 

The EU Parliament’s report makes the point that the UK will continue to be bound by international standards on human rights, including the 1951 Refugee Convention and the European Convention of Human Rights (for now).

However, the EU (Withdrawal) Act already specifies that the EU Charter of Fundamental Rights will not be transferred into UK national law. The EU Charter of Fundamental Rights has played an important role with regard to the protection of the rights of refugees. It includes additional rights for those under its protection to the Refugee Convention or the ECHR, such as the right to data protection and the right to dignity. It is unclear whether the UK will amend its practices after Brexit or whether or how it proposes to adopt these additional provisions.

With regard to asylum, as mentioned above, the UK currently has an opt-in facility to EU asylum legislation. However, according to current proposals, the UK will lose most of its participation rights in the negotiation and formulation of such policies after Brexit. Although standards from the first phase of CEAS will remain in place, subsequent changes to EU legislation will not apply in the UK bar a future agreement, especially if the UK has had no participation in the negotiation of such measures. Therefore a separate system of cooperation will need to be agreed between the UK and the EU, similar to the ones with Schengen associated countries, if the UK is to continue cooperating in these fields.



Overall, the report laments the paucity of dialogue over the future framework for international protection in the UK post Brexit, since the start of negotiations. This matter has received little attention from either side and continues to occupy a negligible space in on-going discussions at the international level; despite the fact that Brexit is less than five months away.

The EU Parliament has set out a series of concrete recommendations, however, which could form a starting point for redressing the balance and resolving some of these key issues. Whether sufficient attention is paid to these recommendations remains to be seen, given the proximity to the UK’s formal exit date.

If it is not, one can only fear a decline in both the efficiency and suitability of the UK’s (already poor) treatment of those in need of international protection and a reduction in its ability to provide a safe haven for individuals in fear of severe harm or persecution.


The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

©Gherson 2018