CCCEU IP 2012

Citizenship and Combating Crime in the European Union, Erasmus Intensive Programme

This unique international educational program  brings together thirty students and around twelve academics from five MS countries, for ten days of concentrated study of  six areas relating to international crime and security: terrorism, asylum and immigration, organised crime, free movement of persons, state surveillance and citizenship, all to be studied from both from national and EU law/policy perspectives.

The participating institutions are:

• INHolland University of Applied Sciences, The Netherlands
• London South Bank University, United Kingdom
• University of Ulster, United Kingdom
• Cergy-Pontoise University, France
• University of Pecs, Hungary

The third and final edition of the IP took place from 10 April to 21 April at Cergy-Pontoise University in France.

 

 

(Individual paper written by Agata Lambrechts)

 

Asylum and immigration policies

The significance and characteristics of legal regulation of asylum and immigration policies in the United Kingdom and the implementation of the EU policy.

 

 Introduction

Immigration and particularly asylum are becoming areas of increasing concern for citizens of the European Union, notwithstanding the fact that the irregular migration levels have in fact decreased in Europe over the last few decades.  Thus, national governments are implementing new rules and regulations to protect the interests of their citizens and international cooperation on the European level is continually becoming closer in this, among other areas, within the so called Area of Freedom, Security and Justice.

This paper is using data from a number of resources, considering the legislation and academic writing in the area, to provide an overview of the immigration and asylum regulations in the United Kingdom and to compare the UK to other European countries. 

We will first look briefly at the phenomenon of migration in the world, within the EU and specifically the UK, providing definitions and considering why this is an area of concern for ordinary citizens of the Union.  We will then look at the current UK law in this area highlighting its significant characteristics.  This will be followed by a discussion on the EU policies as implemented (or not) in the UK.  In particular, the recent decision of British government not to opt-in to the newly proposed EU asylum procedures and reception conditions directives will be considered.

The author of this essay appreciates the overlap with the area of free movement and European Citizenship; however, these are strictly speaking outside the scope of AFSJ and outside the scope of this paper.  We will concentrate on the areas of asylum and migration of third country nationals to the United Kingdom, giving some consideration to the UK’s relationship with the Schengen agreement.

Migration: Global, European and British perspectives

Whether for economic, social, political or environmental reasons, a growing number of people are seeking a better life away from their country of birth today.  There are approximately 214 million migrant persons in the world today [1] and EU has many ‘pull factors’, such as higher employment and political stability that attract immigrants (both those entering the EU legally as economic migrants and those who seek protection by claiming asylum).

The UK has the third highest number of migrants in Europe – 6.4 million.[2]  The share of international migrants in the UK population (10.4%) is slightly above the EU level (9.5%)[3] and the UK is currently hosting approximately 300,000 refugees[4], occupying second place in the EU in terms of the gross number of international refugees.[5]  In 2010 the UK accounted for 19% of the refugees in Europe while having only 9% of the total population.  This has for a long time, especially during election times,   been used by far-right political parties and tabloid media to bring out the scare of the immigration being ‘out of control’ and calling for return of powers from the EU to gain back the British sovereignty.  This leads ordinary citizens to believe (erroneously) that too many people are being allowed into the UK, that refugees and illegal immigrants are taking British jobs or are putting a strain on public services.[6]  British media coverage tends to combine these four separate issues: asylum, illegal immigration (including people trafficking), legal migration and free movement of workers under EU law, into one – ‘asylum and immigration’ which results in the public having a distorted view on the issue.  Much of the present-day British concern about immigration actually derives from the number of people who enter the UK legally (for example as seasonal workers).  This type of immigration is governed by UK law and it is for Parliament to decide how many people to admit and in what circumstances[7] (this is a rather uncontroversial area from the legal point of view and as such will not be discussed in greater detail in this paper).

Definitions

As we will be dealing with the law in relation to asylum-seekers and refugees in the latter parts of this paper, it may be useful at this point to provide definitions of the terms that we will be using throughout the essay.

A refugee is someone who has fled his or her own country, and cannot return for well-founded fear of persecution for reason of their race, religion, nationality or membership of a particular social group or political opinion (the definition is provided by the 1951 UN Refugee Convention[8]). 

Asylum-seekers are people who have moved across an international border in search of protection under the 1951 Convention, but whose claim for refugee status has not yet been determined.[9]

The immigration and asylum policy in the United Kingdom

The structure for handling the immigration and asylum issues is complex and the decision-making is split between the Member States and the EU.  We shall first look at the UK’s particular relationship with the Schengen acquis followed by short description of the UK asylum policy before moving on to the next chapter where we will consider the EU law in this area as applied in the UK.

Schengen and the UK

Most EU MSs co-operate with each other on the issues of immigration as they are bound by the Schengen Agreement[10] which abolished cross-border formalities between them (and three more countries which are not EU MSs: Iceland, Norway and Switzerland).  Signatories to the Agreement have common procedures applying to third country nationals entering the EU and a range of measures designed to ensure the security of the common external border has been agreed between them.   These measures are necessary because once admitted to one of the signatory countries (this will include legal and illegal entries) a migrant can travel freely to other states without having to show any documentation.[11]

The UK has retained its own border controls as it is not a signatory to the Agreement.  However, it has strong interest in close co-operation with the rest of the MS (and other Schengen signatories) so that the problems are not passed on to us from these countries, the main area of concern being the cross-border crime.  Thus, in May 2000, on the application of the UK, the Council adopted a Decision allowing the UK to take part in some of the provisions of the Schengen acquis, namely these concerning police and legal cooperation in criminal matters and the fight against drugs[12].

Asylum

As explained above, asylum-seekers are individuals who claim that they would be subjected to persecution or serious harm were they to return to their home country, but whose claim for refugee status has not yet been determined. [13]  Asylum-seekers may claim asylum at the point of entry, or may be persons who have entered the UK illegally or may be facing deportation, or be granted entry in one capacity, but due to change of circumstances in their home country they now require international protection to prevent them from being subjected to treatment that would breach their Convention rights if they were not granted such protection.[14] The UK adheres to United Nations and European agreements on refugees and human rights and therefore must not return asylum applicants to a place where they are likely to face torture or persecution (the so-called principle of non-refoulement).

The UK Border Agency, an agency of the Home Office responsible for the protection of UK borders states on its website: ‘The UK has a proud tradition of providing a place of safety for genuine refugees. However, we are determined to refuse protection to those who do not need it, and will take steps to remove those who are found to have made false claims.’[15]

A minority of asylum applicants gain permission to stay in the UK (‘leave to remain’), and may remain long enough to settle in the UK.  Leave to remain might mean official recognition as a refugee or permission to stay for ‘humanitarian protection’ or through ‘discretionary leave to remain’.  In each case, the protected individual can stay in the UK for five years and then has the opportunity to apply for indefinite leave to remain.[16]  An unsuccessful applicant will return home, either voluntarily or by enforced removal.

It must be noted here that where asylum is sought on or after arrival in the UK and it is clear that the asylum-seeker has travelled through other countries before reaching the UK, the Secretary of State is entitled to consider the extent to which an individual ought to have applied for asylum in that other country before seeking protection in the UK (consideration of the claim may be declined, and subsequently, application for leave to enter or leave to remain may be refused).[17]  If the asylum-seeker has passed through the territory of another EU country, the responsibility for the assessment of asylum claim lies with that country (under the Dublin II Regulation[18]).  It is worth mentioning here however, that for all practical purposes the Regulation has now been suspended as it was premised on the assumption that all states participating in it respect the principle of non-refoulement which has been disproved in the recent cases of the ECtHR and CJEU (referred to again further in this paper).

The Secretary of State has the power to fingerprint any asylum claimant and make comparison of the fingerprints data with previous applications submitted in the UK, and also with other EU territories (through the database known as Eurodac to which the UK has signed up in January 2011), in order to ascertain whether an individual may have travelled through another MS territory prior to submitting their claim for asylum in the UK.[19]

Implementation of the EU asylum and immigration policies in the United Kingdom

The EU has had to develop a common response to the problems of growing illegal migration and the influx of the asylum applications because of the problems of growing crime and threats of terrorism which cross national borders and cannot be successfully handled by nations acting single-handedly.[20]  The cooperation between the MSs occurred via the traditional means of international law until 1993, when the newly adopted Maastricht Treaty came into effect, transferring the area of immigration and asylum policy to the intergovernmental third pillar of the EU.  

The Treaty of Amsterdam, which came into force in 1999, moved this area again, putting it alongside free movement in a new Title IV of the Treaty.   Due to this ‘communitarisation’ the Court of Justice of the EU assumed jurisdiction over the asylum law against a background of important and well-established international and regional principles of refugee law.[21] One of the main goals of the Amsterdam Treaty (as confirmed by the Tampere European Council) was creation of ‘a Common European Asylum System (CEAS) based on the full and inclusive application of the Geneva Convention, thus ensuring that nobody is sent back to the persecution.’[22]  The EU has since adopted several pieces of legislation aimed at creating common standards in the Union (namely the Council Directive 2003/9/EC laying down minimum standards for the reception of asylum seekers and Council Directive 2005/85/EC on minimum standards on procedures in MS for granting and withdrawing refugee status).  The Stockholm Programme (2009) stated that both common rules and more coherent application of them will prevent or at least reduce secondary movements within the EU, and increase mutual trust between the MSs.[23] 

The UK, however, wanted to preserve its freedom to manoeuvre in deciding its own polices in the areas of immigration and asylum and so it has negotiated the addition to the Treaty.  Under Protocol 21[24], the UK has gained a formal opt-out from Title IV (with option to participate in the chosen elements of the policy in this area).  In fact, it has opted in quite extensively to measures on asylum and border policy over the last two decades[25]; for example, it has opted into the directives as listed above, when they were originally promulgated, implementing its obligations by introducing new legislation[26] or relying on pre-existing legislation, which already complied with the obligations in the EU directives. 

The Treaty of Lisbon, ratified in 2009, has identified further mechanisms for the cooperation in the areas of immigration and asylum (now covered under Title V of Part Three of the Treaty on Functioning of the European Union).  Firstly, the Union will legislate for uniform standards instead of the previous rule of minimum standards provided for in the ToA.  It also aims to gradually introduce an integrated system of external borders.  Secondly, the Treaty (Art 79 TFEU[27]) widens the EU’s power to legislate to define all the rights of Third Country Nationals legally resident in one of the MSs, including their rights to move to and reside in other MSs.  It seems that the only power which will be left in the hands of the MSs is the power to decide how many TCNs are they prepared to admit directly from third countries (this is of course also limited to an extent by the MSs obligations to allow some TCNs family members under Articles 6 and 7 of the Citizens’ Directive[28] – family reunification).[29]   The Lisbon Treaty, however, preserves (with some amendments) the UK’s existing opt-outs (both Schengen and Protocol 21 opt-outs).[30] 

The main impact of the ToL provisions on the UK’s policies on asylum and immigration is that the UK’s decision on whether to opt-in or not to the new EU legislative proposals in this area will become more problematic now that all such legislation will be decided by Qualified Majority Voting.[31]  The UK has to decide whether to opt-in to a new proposal within three months of it being tabled by the Commission.  Once committed to opt-in, the UK cannot back out from the negotiations and may be outvoted at the end of the decision making process (but the positive point is that by taking part in negotiations the UK can have some influence on the final contents of the legislation).  Although the general right to opt-out is unaffected, if the UK adopted a firm policy of opting-out of all new EU legislation on immigration and asylum matters it would inevitably lead to more cases being referred to the CJEU (as described in more detail below) and, especially in the case of the proposal to define the rights of TCNs residing in one MS to move to and reside in another, to the UK being faced with a difficult negotiation with other MSs on what access we would give to this category of migrant coming from their territories to the UK.

Recently, an academic debate was sparked by the UK government’s decision not to opt-in to the newly tabled asylum procedures and reception conditions directives (although there is no definitive formal published statement as yet).   The purpose of the EU amendment process is to establish rules that will more closely align the legal framework for asylum in the MSs and to address criticism that the directives are not compatible with human rights obligations.[32]  The UK government has informally announced that it will not be opting-in to the amended proposals and stated its intention for the continued application of the old directives (that the UK has opted into).  It seems unacceptable that the UK should continue to apply a regime that the EU considers unsatisfactory, especially from the perspective of the asylum seekers who should be treated similarly by all of the EU MSs in the CEAS.[33] We also know informally that the government is planning to stay in the recast Dublin Regulation; however, as it has been suggested by various academics[34] this may be met with opposition on the side of the EU as we have learned in the past that the Commission on the CJEU are not happy to allow the UK to pick and choose parts of the EU legislative regulations to benefit from, while not contributing to the building of a wider acquis in the area concerned.[35]  It is also arguable that the UK opt-out from the directives will render the Dublin Regulation inoperable (Article 4(a) of the Protocol 21) as the reception conditions and procedures must be the same in all MSs; otherwise, as proven by recent cases (MSS v Belgium and Greece[36] and NS v Secretary of State[37]) counties may be prevented from returning asylum-seekers to MSs where the minimum requirements are not met.  Most of the academics in the UK seem to agree that ‘opting into the proposed directives would promote the rule of law in the UK by better protecting the civil liberties of the asylum seekers and ensuring the application of fair and high-quality decision-making processes specifically with regard to asylum applications and decisions to detain’[38] and thus generally support the opt-in.  We are now awaiting a formal statement by the British government in this regard.

Last to mention, but not least in importance, is the fact that the Lisbon Treaty repealed the limitations in the ToA, which effectively prevented immigration cases being brought before the CJEU until they had been taken to the highest court in the MS.  Now, the CJEU has the same jurisdiction in relation to asylum and immigration matters as it had previously in relation to any of the traditional areas of EU common policies.  However, Articles 2 and 6 of the UK opt-out Protocol[39] specify that CJEU’s decisions shall not be binding upon or applicable in the UK and that no such decisions shall in any way affect the Union law as it applies in the UK, except to the extent that it has been opted into the measures in question.  On the other hand, the CJEU can now hear cases referred to it by lower level UK courts when they relate to appellants on migration issues where they can claim that the UK had breached one of the EU asylum or immigration legislations, which the UK had opted into or if the CJEU decides that relevant rights contained in the Charter of Fundamental Rights have direct effect (which would narrow, for UK and other MS alike, the general room for manoeuvre on a range of immigration issues).   The removal of the limitations on the CJEU jurisdiction may well lead to more asylum cases being referred at an earlier stage by UK courts.[40]

Conclusions

Issues of immigration and asylum have become an important part of the EU law and policy over the last few decades.  Ever closer cooperation on the European level is required today to assure protections of the external borders of the Union as well as fair and humane treatment of those who need protection in the territories of the EU.

This paper has considered the legislation and academic writing in the area, providing an overview of the migration phenomenon in numbers, followed by the outline of immigration and asylum regulations in the UK and considering how the EU policies are implemented (or not) there.  In particular, the recent decision of British government not to opt-in to the newly proposed EU asylum procedures and reception conditions directives has been considered.

Throughout the paper we had concentrated on the areas of asylum and migration of TCNs to the UK, giving some consideration to the UK’s relationship with the Schengen agreement and outlining the asylum application process.  The areas of free movement and EU citizenship were left out as they are outside the scope of the AFSJ, as explained in the opening.

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[1]International Organization for Migration, ‘Fact & Figures’ <http://www.iom.int/jahia/Jahia/about-migration/facts-and-figures/lang/en&gt; accessed on 24 February 2012

[2] International Organization for Migration, ‘Europe’ <http://www.iom.int/jahia/Jahia/about-migration/facts-and-figures/europe-facts-and-figures&gt; accessed on 24 February 2012

[3] C Vargas-Silva, ‘Briefing. Global International Migrant Stock: The UK in International Comparison’ <http://migrobs.vm.bytemark.co.uk/sites/files/migobs/Briefing%20-%20Global%20International%20Migrant%20Stock2.pdf>accessed on 15 March 2012

[4] International Organization for Migration, ‘Europe’ <http://www.iom.int/jahia/Jahia/about-migration/facts-and-figures/europe-facts-and-figures&gt; accessed on 24 February 2012

[5] C Vargas-Silva, ‘Briefing. Global International Migrant Stock: The UK in International Comparison’ <http://migrobs.vm.bytemark.co.uk/sites/files/migobs/Briefing%20-%20Global%20International%20Migrant%20Stock2.pdf>accessed on 15 March 2012

[6]A Shah, ‘Immigration’ <http://www.globalissues.org/article/537/immigration&gt; accessed 17 March 2012

[7] Euromove, ‘Asylum, Illegal Immigration & the European Union <http://www.euromove.org.uk/index.php?id=6511&gt; accessed on 19 March 2012

[8] Convention Relating to the Status of Refugees 1951, Article 1

[9] Forced Migration Online – A World of Information on Human Displacement, ‘What is forced migration?’< http://www.forcedmigration.org/about/whatisfm&gt; accessed 18 March 2012

[10] The Schengen acquis – Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders OJ L 239, 22 September 2000

[11] Euromove, ‘Asylum, Illegal Immigration & the European Union <http://www.euromove.org.uk/index.php?id=6511&gt; accessed on 19 March 2012

[12] A Kaczorowska, European Union Law (2^nded Routledge, Abingdon 2011)

[13] Forced Migration Online – A World of Information on Human Displacement, ‘What is forced migration?’< http://www.forcedmigration.org/about/whatisfm&gt; accessed 18 March 2012

[14] Legal Action Group, ‘Asylum and Immigration’ < http://www.lag.org.uk/files/93115/FileName/Chapter1.pdf&gt; accessed on 18 March 2012

[15] Home Office UK Border Agency, ‘Asylum’ <http://www.ukba.homeoffice.gov.uk/asylum/&gt; accessed 22 March 2012

[16] S Blinder, ‘Briefing. Migration to the UK: Asylum’ < http://migrationobservatory.ox.ac.uk/briefings/migration-uk-asylum > accessed on 15 March 2012

[17] Legal Action Group, ‘Asylum and Immigration’ < http://www.lag.org.uk/files/93115/FileName/Chapter1.pdf&gt; accessed on 18 March 2012

[18] Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national

[19] Legal Action Group, ‘Asylum and Immigration’ < http://www.lag.org.uk/files/93115/FileName/Chapter1.pdf&gt; accessed on 18 March 2012

[20] Euromove, ‘Asylum, Illegal Immigration & the European Union <http://www.euromove.org.uk/index.php?id=6511&gt; accessed on 19 March 2012

[21] S Blinder, ‘Briefing. Migration to the UK: Asylum’ < http://migrationobservatory.ox.ac.uk/briefings/migration-uk-asylum > accessed on 15 March 2012

[22] Presidency Conclusions – Tampere European Council, 15-16 October 1999, SN 200/99 p.3

[23] The Stockholm Programme – An Open and Secure Europe Serving and Protecting the Citizens OJC 115/01

[24] Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, OJ [2008] C-115/01

[25] C Boswell and A Geddes, Migration and Mobility in the European Union (Palgrave Macmillan, Basingstoke 2011)

[26] The Asylum (Procedures) Regulations 2007 SI No.3187, The Asylum and Immigration Tribunal (Procedure)(Amendment No.2) Rules 2007 SI No.3170 (L.30), The Special Immigration Appeals Commission (Procedure)(Amendment No.2) Rules 2007 SI No.3370, The Asylum Support (Amendment) Regulations 2005 SI No.11, The Asylum Seekers (Reception Conditions) Regulations 2005 SI No.7

[27] Consolidated Version of The Treaty on the Functioning of the European Union, Article 79 OJ (2010) C-83/47

[28] Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (Text with EEA relevance), Articles 6 and 7, OJ L 158

[29] Migration Watch UK. ‘The Lisbon European Reform Treaty Impact on Asylum and Immigration Policy’ < http://www.migrationwatchuk.org/Briefingpaper/document/82&gt; accessed 22 March 2012

[30] S Peers, EU Justice and Home Affairs Law (3^rd edition, OUP, Oxford 2011)

[31] Migration Watch UK. ‘The Lisbon European Reform Treaty Impact on Asylum and Immigration Policy’ < http://www.migrationwatchuk.org/Briefingpaper/document/82&gt; accessed 22 March 2012

[32] S Peers, EU Justice and Home Affairs Law (3^rd ed OUP, Oxford 2011)

[33] J N Stefanelli, Position Paper – A rule of law analysis of the potential UK opt-in to the newly tabled EU asylum procedures and reception conditions directives (British Institute of International and Comparative Law, The Bingham Centre for the Rule of Law, London 2011)

[34] V Mitsilegas, The Bingham Centre for the Rule of Law, ‘The EU Asylum Directives: Is Opting In Necessary?’ workshop, 24 November 2011

[35] Cases C-77/05 UK v Council [2007] ECR I-11459 and C-137/05 UK v Council [2007] I-11593

[36] MSS v Belgium and Greece (30696/09)

[37] N.S v Secretary of State for the Home Department C-411/10

[38] J N Stefanelli, Position Paper – A rule of law analysis of the potential UK opt-in to the newly tabled EU asylum procedures and reception conditions directives (British Institute of International and Comparative Law, The Bingham Centre for the Rule of Law, London 2011)

[39] Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, Articles 2 and 6,  OJ [2008] C-115/01

[40] Migration Watch UK. ‘The Lisbon European Reform Treaty Impact on Asylum and Immigration Policy’ < http://www.migrationwatchuk.org/Briefingpaper/document/82&gt; accessed 22 March 2012