Brexit: the end of the Dublin III Regulation in the UK

The ‘Dublin III Regulation’ and all other aspects of the Common European Asylum System will no longer apply to the UK from January 2021.

The Regulation’s purpose is to ensure that an asylum application is only considered by one of the participating states (the EU member states plus Iceland, Norway, Liechtenstein and Switzerland).

It sets a hierarchy for determining which state should be responsible for processing an asylum application. It gives greater importance to family reunion than which country an asylum seeker first entered. The Regulation also sets out transfer processes and timescales.

The Government did not want to replicate the provisions of the Dublin Regulation.

It proposed two draft agreements with the EU which related to certain specific aspects of the Dublin Regulation:

• an agreement on the transfer of unaccompanied asylum-seeking children for family reunion purposes
• a readmission agreement for accepting returns of irregularly residing UK/EU citizens and third country nationals.

The EU did not publish any comparable draft agreements.

Neither the UK-EU Political Declaration, nor the EU’s draft text for a new partnership agreement with the UK, specifically identified asylum, unaccompanied children, or readmissions as areas for future agreement or co-operation.

There were unconfirmed reports in September that the EU side had rejected the UK’s proposed agreements because they were beyond the scope of their negotiating mandate.

The Government maintained throughout the negotiating period that EU negotiators did have flexibility to discuss the proposals, although it was reluctant to comment on the extent to which they were doing so.

The Government has said that it will pursue bilateral agreements with individual member states if it does not secure EU-wide agreements. It could not start bilateral discussions until the negotiations with the EU had finished. Some experts have suggested that bilateral arrangements could be restricted by the EU’s areas of exclusive competence.

• The loss of a legal route for refugee family reunion

The Dublin Regulation provides a legal route for reuniting people seeking asylum with separated family members in Europe, because it prioritises respect for family reunion above certain other considerations. Furthermore, the Regulation applies more generous eligibility criteria than the UK’s comparable refugee family reunion Immigration Rules. Consequently, it gave some separated family members a legal route to reunion in the UK that they would not have otherwise had.

Campaigners wanted the UK Government to amend domestic legislation to fill the gaps left by the Dublin Regulation (at least in the absence of reaching a similar agreement as a non-member state). They argued that this would avoid asylum seekers in Europe losing a safe and legal means of reuniting with relatives in the UK at the end of the Brexit transition period.

The Government counter-argued that the UK’s refugee family reunion rules are already sufficient, and that it would not be appropriate to replicate Dublin provisions after leaving the EU. It has made a statutory commitment to reviewing legal routes of entry to the UK for people seeking asylum and refugee family reunion, including the position of unaccompanied asylum-seeking children in EU member states seeking to join relatives in the UK.

• Ability to return asylum seekers to European countries

After this year, the UK will not be able to use the Dublin Regulation to return asylum seekers who travel from EU member states.

The Government is hopeful that gaining the ability to negotiate new returns agreements will strengthen the UK’s ability to return people seeking asylum to other European countries, although some external commentators disagree.

Controversial changes to the Immigration Rules due to take effect on 1 January 2021 give the Home Office greater scope to treat as inadmissible asylum claims from people who have passed through, or have a connection with, a safe third country. The Government has described them as paving the way for bilateral agreements with other countries.

Leaving the EU does not change the UK’s obligation to offer protection to refugees as a signatory to the 1951 Refugee Convention. The Government reaffirmed its commitment to the Refugee Convention in October. It has also said that the UK’s status as a ‘world leader’ in the field of asylum will not change once it is no longer subject to EU laws specifying minimum asylum standards.

It appears unlikely that the UK will be able to continue to rely on readmission agreements negotiated between the EU and third countries as a non-member state.

The UK is losing access to EU funding for asylum and immigration initiatives. This has been used, for example, to support Home Office activities related to asylum, refugee resettlement, immigration enforcement, and to provide funding for some NGO-led projects focusing on integration.