- How does the UK participate in EU border control practices?
- What is Frontex? And how does the UK engage with Frontex?
- What is the UK position on the moves towards a Common European Asylum System (CEAS)?
- How does the UK engage with EU Immigration Law?
- Does the UK’s selective participation allow it ‘the best of both worlds’?
This policy primer examines the UK’s selective participation in the Common European Asylum System, and EU immigration law. It should be read with the policy primer on the UK, EU Citizenship and Free Movement of Persons.
The UK has always maintained a distinctive position in the EU as regards border controls, opting out of the Schengen arrangements that abolished internal border controls across most of the EU. However, it participates selectively in some aspects of EU border policies, as discussed in sections 2 and 3 below.
Section 4 examines the UK’s position vis-à-vis the Common European Asylum System (CEAS). The Amsterdam Treaty (1997) marked a decisive shift on EU competence over asylum, with the EU becoming competent for the first time to adopt binding EU law in this field, with the aim of establishing a Common European Asylum System (CEAS). The UK (with Ireland) has an option to participate in this policy area, and chose to opt in to the first phase of EU asylum measures adopted between 1999 and 2004. However, in 2013 the coalition government confirmed that it has “no plans for future participation” in the second phase, judging it not to be in “Britain’s best interests” (Home Office Commitment to Write: Debate on the Report of the European Union Committee on the EU’s Global Approach to Migration and Mobility 2013).
Section 5 examines immigration of so-called ‘Third Country Nationals’ (TCNs), from outside into the EU, where the EU is also competent to develop a common immigration policy. To date, it has done so in a piecemeal manner. The Treaty requires the EU to ‘develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of third-country nationals residing legally in Member States, and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings.’ (Article 79(1) TFEU). However, that policy “shall not affect the right of Member States to determine volumes of admission of third-country nationals coming from third countries to their territory in order to seek work, whether employed or self-employed”. (Article 79(5) TFEU).
Although the UK has long been committed to an internal market, it did not become a member of the Schengen system for the abolition of internal border controls on intra-EU movement. The UK position is reflected in a special Protocol to the EU Treaties, which stipulates that notwithstanding the internal market, the UK maintains its right to keep border controls on movement from within the EU. The Treaty of Amsterdam fully integrated the Schengen system into the EU framework, although the UK opted to preserve autonomous border controls and visa policy under the Schengen Protocol. The UK consistently asserts that maintenance of its own border controls is required (Government’s Response to the House of Lords EU Committee’s 8th Report of Session 2012-2013).
Although the UK remains outside of the Schengen border free area, that area’s existence has had an impact on UK border practices. In particular, the UK’s establishment of so-called juxtaposed border controls in France is seen as a response to the internal free movement across the continent (Ryan 2004).
Moreover, the UK does participate in the policing and security aspects of Schengen. Under the Schengen Protocol, the UK may “request to take part in some or all of the provisions of this acquis“. The request requires unanimous approval of the other Schengen states. The UK has challenged its legal exclusion from three EU border measures with a security dimension: the creation of Frontex (the EU’s external border agency discussed below); EU measures on biometric passports and the decision allowing police services access to data in the EU Visa Information System. The Court of Justice has confirmed, however, that the UK’s participation in new aspects of the Schengen system is in effect subject to prior approval of the other Member States (Case C-77/05 UK v Council and Case C-137/05 UK v Council 18 December 2007; Riipma 2008; Case C-482/08, UK v Council 26 October 2010). In effect, the UK cannot expect to participate in border control/enforcement measures which are framed as ‘Schengen-building’ without adopting the underlying rules on border crossings first.
On 26 October 2004, the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex) was established. Frontex, based in Warsaw, has been operational since 2005. Starting out with a modest coordinating role between national authorities, Frontex now has a major operational role in practice. Frontex plans, coordinates and implements joint operations across the EU’s air, land and sea borders; carries out risk analysis and research; provides rapid response capabilities through European Border Guard Team and assists Member States in the return of foreign nationals (Frontex Mission and Tasks 2014).
EU rules on crossing external borders apply to the borders of the Schengen States. The expanse of land and sea includes the Spanish enclaves of Ceuta and Melilla in Morocco, the Polish-Ukrainian land border, and the sea borders of Spain (including the Canary Islands) and Italy and Greece, including their islands. (However, it explicitly excludes Gibraltar, due to the on-going disagreement between Spain and the UK on its frontiers).
The UK only has observer status on the Frontex Management Board, yet it does contribute to practical cooperation and has been involved in several joint operations. The Management Board reports annually to the European Parliament, Council and Commission. The UK participates selectively on a number of operations coordinated by Frontex. For instance, on land, Britain cooperates in Operation Poseidon Land that aims to stem irregular migration on the Greek-Turkish and Bulgarian-Turkish borders. Meanwhile, in the air, Britain cooperates with Focal Points Air targeting particular air-travel routes by using flexible deployments to match changes in migration flows. Enhanced border controls on land have resulted in a renewed influx of irregular migrants by sea and the UK also cooperates in a number of Frontex Operations at sea. These include Operation Poseidon Sea targeting irregular migration by sea from Turkey to Greece; Operation Indalo which targets irregular migration by sea from Algeria and Morocco to Spain, Operation Hermes which targets irregular migration in the Central Mediterranean area towards Italy; and, Operation Aeneas which focuses on illegal migrants from Turkey, Albania and Egypt to the South East coast of Italy (Home Office Review of the Balance of Competences between the United Kingdom and the European Union: Asylum & non-EU Migration 2014).
Particular concerns have been raised regarding the perilous journeys undertaken by migrants and refugees attempting to enter the EU regularly and/or clandestinely. Under international law there is a duty to render assistance to persons in distress at sea, however there is only a requirement to take those rescued to a place of safety. One of the most controversial issues is thus where to disembark irregular migrants intercepted at sea. Push-backs of migrants often entail breach of the international and EU legal obligation of non-refoulement, which forbids the return of any individuals claiming asylum to a place where they are likely to face persecution serious harm, including torture or inhuman or degrading treatment (European Union Agency for Fundamental Rights and Council of Europe 2013). Under the 1951 Refugee Convention and international human rights law, states’ obligations of non-refoulement apply at the states’ borders and sometimes extraterritorially (Goodwin-Gill 2011). In 2012, the European Court of Human Rights condemned push-backs from Italian waters to Libya and clarified that states’ human rights obligations apply not only at their territorial borders, but also to exercises of control over persons or places extraterritorially. Accordingly, Italy’s push-backs were condemned as a violation of both Article 3 ECHR (as it exposed the migrants in question to risks of inhuman and degrading treatment) and Article 4, Protocol 4 prohibiting collective expulsions (Hirsi Jamaa v Italy (2012) 55 EHRR 21). Nonetheless, various forms of push-back continue, with deaths at EU borders’ leading to further condemnation by human rights institutions (Muižnieks 2013; Sitaropoulos 2014). Interception is but one of the many tools used to prevent or deter the arrival of asylum seekers (see our the Migration Observatory policy primer on Asylum Policy).
The EU continues to increase surveillance and tracking of irregular migrants. The Entry Exit System aims to identify and prevent visa over-stayers. Furthermore, in December 2013 the European Border Surveillance System (EUROSUR) entered into force for 19 Schengen countries and will apply to the remaining 11 from December 2014. EUROSUR is an information-exchange system covering land, sea and air borders with the aims of reducing irregular migration and protecting migrant’s lives. The UK and Ireland are not in EUROSUR but have Regional Cooperation agreements, although Spain has recently challenged their legality (Case C-44/14 Spain v Parliament and Council). EUROSUR will utilise new surveillance technologies such as drones and high-resolution cameras, and will function as “a system of systems,” coordinating national surveillance systems through Frontex. Concerns have been raised that EUROSUR is more likely to be used in securing borders and preventing arrivals, rather than as a genuine life-saving tool (Crépeau 2013). Concerns about Frontex at a structural level have also been raised in terms of a lack of transparency, unclear responsibility and accountability, and a lack of democratic scrutiny, particularly of agreements with third countries (PACE 2013). In addition, analysis of joint actions has revealed human rights concerns (Guild and Bigo 2010). In 2011 the EU amended the Regulation founding Frontex to explicitly require Frontex to comply with the EU’s Charter of Fundamental Rights. Despite some improvements, the European Ombudsman still found Frontex’s human rights protection lacking (European Ombudsman 2012). So far, a gap still persists between rhetoric and reality in implementing proper procedures to protect human rights, such as a lack of independent oversight (Crépeau 2013). External border controls have only limited effects on reducing irregularity, not least since irregular migration most often occurs through means other than clandestine entry, particularly through overstaying of legal entry visas (Düvell 2009). The EU’s priorities regarding border control focus on the securitization of external borders though increasing technological surveillance (Crépeau 2013).
Asylum formed part of the Schengen system, and was for many years subject to intergovernmental cooperation at EU level. Prior to the Treaty of Amsterdam (1999), the EU set up the Dublin system for allocation of responsibility for processing asylum claims, and adopted several non-binding resolutions on asylum matters. During this period, there were also strong horizontal policy transfers across European countries (Byrne, Noll and Vedsted-Hansen 2004).
The UK opted in to the main post-Amsterdam asylum directives (the ‘first phase’), namely the Temporary Protection Directive, and those on asylum procedures, qualification and reception conditions adopted between 2000 and 2005. In defining the refugee, the EU is writing the Refugee Convention into EU law, and also creating a status for some of those who are currently non-removable under the UK’s obligations under human rights law (Lambert 2006). While the EU harmonisation exercise established only minimum standards and leaves Member States considerable leeway to do their own thing, writing refugee law into EU law brings with it other EU law doctrines and (since Lisbon) entails a full role for the Court of Justice of the European Union (CJEU) in Luxembourg in asylum law and policy. UK courts have also made important rulings on the Reception Conditions Directive, clarifying the right to work of asylum seekers who have been awaiting decisions in the UK beyond the one-year period specified in the Directive (ZO (Somalia)  UKSC 36).
The second phase of legislation making up the CEAS has now been agreed. The UK government chose not to participate fully in the reform process, as is its prerogative under its Protocol on these matters, with the Home Office stating: “[W]e do not judge that adopting a common EU asylum policy is right for Britain”. (Secretary of State for the Home Department 2011: 2). In particular, the UK alleges that a number of reforms enhance the rights of all asylum seekers regardless of the validity of their claims. The government expressed ‘grave concerns’ about allowing asylum seekers to work after six months in the absence of a decision (nine in the final adopted version); restrictions on the ability to detain asylum seekers in exceptional circumstances; and limits to fast-track procedures. The UK government originally argued that if it did not opt-in to the recast measure, then the original first phase measure would cease to apply in the UK following the entry into force of the recast. The House of Lords EU Committee doubted the cogency of this claim, and the Government has now accepted the continuing application of the first phase where it has not opted in to the recast (House of Lords European Union Committee 2012: para 179).
The Dublin System
The Dublin System sets up criteria for allocating responsibility for processing asylum claims, principally allocating responsibility to the state responsible for the asylum seeker’s entry to the EU, albeit with some allowance for family unity. The system potentially overburdens the Member States at the EU’s periphery. Moreover, it presupposes uniformity in the protection offered to refugees, which is far from the case across the EU, where both reception conditions and recognition rates for refugees still vary enormously. The unfairness and inefficiency of the system is now well-established, but it has been revised time and again, without revisiting the fundamentals. In practice, it often seen as unduly coercive, overriding asylum seekers’ wishes, often confining them for years in places far from family and community. Recall that even if asylum claims are recognised, refugees do not acquire a right to move elsewhere in the EU for many years. Dublin also appears to increase detention of asylum seekers across Europe (JRS 2013).
At its worst, Dublin risks exposing asylum seekers to inhuman and degrading treatment. Asylum seekers have frequently turned to human rights law, both before national courts and the European Court of Human Rights in Strasbourg, to resist transfers to other EU Member States, invoking dangers of refoulement from those states and the woeful reception conditions for asylum seekers in some EU Member States. In January 2011, the Grand Chamber of the European Court of Human Rights held that it would violate Article 3 EHCR (the right not to be subjected to torture, inhuman or degrading treatment) to return asylum seekers to Greece (MSS v Belgium and Greece (2011) 53 EHRR 2). The UK had persisted in such transfers in spite of well-documented human rights concerns. Following referral from a UK court, the CJEU later held that Member States were obliged as a matter of EU law to exercise their discretion not to transfer asylum seekers to face inhuman or degrading treatment (Case C-411/10 NS v SSHD  ECR I-13905; Costello 2012).
Concerns have been expressed for some time about the treatment of asylum seekers in Italy and Bulgaria, to name just two other Dublin states (see UNHCR observations on the current asylum system in Bulgaria 2014). The High Court of Northern Ireland has refused to permit the transfer of asylum seekers to Ireland, due to reception conditions there being inadequate to ensure the best interests of children. (ALJ and A, B and C’s Application for Judicial Review,  NIQB 88, United Kingdom: High Court (Northern Ireland), 14 August 2013) The UK Supreme Court recently gave an important ruling in on returns to Italy, confirming that if return there poses risks of inhuman or degrading treatment, then return is prohibited, irrespective of whether such treatment emanates from a systemic failure in the asylum system (as was the case in Greece in 2011) or any other source (R (EM(Eritrea) v SSHD  UKSC 12). A similar case is currently pending before the Grand Chamber of the European Court of Human Rights in Strasbourg (Tarakhel v Switzerland App No 29217/12).
The UK has opted in to the Dublin III Regulation, which purports to address some of the problems outlined above. In particular, the reform provides for crisis-prevention and cooperation measures between Member States, places limits on detention of asylum seekers, and prevents transfer of a person where there is a real risk of violating a fundamental right. The UK has also adopted the recast EURODAC Regulation, which works in tandem with the Dublin Regulation by collecting and storing fingerprints of asylum seekers or other irregular migrants. The recast EURODAC Regulation contains a new clause allowing Member State´s law enforcement authorities and Europol to request data, furthering the criminalisation of migration (Hayes and Vermeulen 2012).
Legal aid reforms under the Legal Aid Sentencing and Punishment of Offenders Act 2012 and those currently proposed in the Criminal Justice and Courts Bill 2014, curtail the rights of asylum seekers to legal aid. An application made under the Dublin system may lead to challenges to potentially overly restrictive legal aid rules. The UK is required to provide for effective access to justice for those seeking to vindicate EU rights (Case C-279/09 DEB  ECR I-13849).
Since the Treaty of Amsterdam, the EU has also adopted a variety of binding measures on immigration. These individual measures cover some forms of immigration, but are by no means comprehensive. For instance, only some high-skilled immigrants to the EU may fall under the Blue Card Directive. The Directive on Family Reunification covers some family reunification. A Seasonal Workers Directive has recently been adopted, and political agreement was reached on a Directive on Intra-Company Transferees in April 2014. On security of residence and free movement within the EU, the key measure is the Long-term Residents Directive. The UK has not opted in to any of these immigration directives. The House of Lords EU Committee has repeatedly urged the UK to opt in to the both the Long-term Residents Directive and the Family Reunification Directive. Such a move would strengthen the rights of the UK’s economic migrants and enable them to enjoy equality with economic migrants in the rest of the EU:“We consider that the United Kingdom should review its opt-out from both these measures, which together provide an excellent foundation of rights for migrant workers in the EU. They do not have any consequences for its position on border controls, and would enhance the position of third country nationals resident in the United Kingdom. When the Long-term Residents Directive comes into effect, third country nationals in the United Kingdom, for instance US or Indian nationals who have resided here for five years, will not be able to take advantage of the Directive’s provisions to move, for instance, to Paris or Frankfurt. They remain blocked in the United Kingdom. This is neither in their interests nor in the United Kingdom’s. Moreover, assimilating the position of long-term third country nationals’ rights to that of migrant citizens of the Union, including by enabling participation in the political life of the country, is not only a matter of improving their living and working conditions: it is also a matter of fostering their harmonious integration into society.” (House of Lords European Union Committee 2005: para 102).
Despite continued support from the House of Lords EU Committee for the UK to opt in to the Family Reunification Directive, the UK instead in 2012 introduced further restrictions for TCNs before they can apply for family reunification. Amongst other criteria, TCNs require a minimum income, language skills and knowledge of life in the UK. The EU Committee notes this increases the UK’s divergence from the common EU policy on family migration. Furthermore, the Committee notes that if spouses and children are admitted to one Member State they may anyways eventually acquire the right to freedom of movement throughout the EU (House of Lords European Union Committee 2012: paras 62-64).
The UK has opted in to some of the EU measures which aim to combat ‘illegal immigration’, including the Carriers Sanctions Directive (2001). However, it has not opted in to the Return Directive (2008), a controversial EU measure which obliges removal of ‘illegal’ or irregular immigrants and sets time-limits for pre-deportation detention. The UK’s non-participation has been explained in the following terms:
“The UK has not participated in and has no plans to implement the EU Returns Directive 2008/115/EC. We agree that a collective approach to removal can have advantages. However, we are not persuaded that this Directive delivers the strong returns regime that is required for dealing with irregular migration. Our current practices on the return of illegal third country nationals are broadly in line with the terms of the Directive, but we prefer to formulate our own policy, in line with our stated position on retaining control over conditions of entry and stay.” (Phil Woolas, Statement to Parliament, Hansard 2 November 2009).
In contrast, the UK has endorsed another central element of EU removals policy, namely Readmission Agreements with non-EU Countries, which aim to facilitate removal of irregular migrants not only to their countries of origin, but also to third countries (Ryan 2004).
The UK has also not opted into the Employer Sanctions Directive. Whilst prohibiting the employment of those without permission to work, the Directive also protects some of their labour rights, notably the right to back-pay. In contrast, as currently interpreted, the common law doctrine of illegality precludes enforcement of many labour rights of irregular migrants. This not only exposes them to exploitation and abuse, but it may also create greater demand for irregular migrant workers and facilitate labour exploitation by unscrupulous employers, undermining working conditions for all workers in the UK (Bogg and Mantouvalou 2014).
Aside from Citizenship and the internal market, the UK participates selectively in EU policy on asylum and immigration. Tony Blair famously characterised the UK’s selective participation as giving it ‘the best of both worlds’ as the UK was not obliged to take on EU commitments in the asylum and immigration context but could opt in to measures in order to “make sure that there are proper restrictions on some of the European borders that end up affecting our country.” (Tony Blair 25 October 2004, quoted in Geddes 2005). It has been contended that the UK’s “selective use of the EU as an alternative, cooperative venue for migration policy management actually reinforces rather than overturns established patterns [in domestic policy]” (Geddes 2005: 723).
A common observation is that “Britain has tended to participate in coercive measures that curtail the ability of migrants to enter the EU while opting out of protective measures [such as] on family reunion and the rights of long-term residents that to some extent give rights to migrants and third-country nationals.” (Fletcher 2009: 81). This trend continues as the UK chose not to opt in to several CEAS recasts enhancing the position of asylum seekers. In contrast, the UK has now opted in to the Anti-Trafficking Directive. This measure fits the UK approach to regard trafficking as predominantly a criminal law matter, rather than a labour rights issue (Costello 2014).
The disadvantages of the UK’s selective approach should also be noted. The UK may find itself excluded from EU policies it wishes to engage in, as the rulings on Frontex, biometric passports and data from the visa information system illustrate. Moreover, the new government’s reluctance to engage with the reforms to EU asylum measures may also undermine its position when seeking to use the Dublin system.
The failure to opt in to EU measures clearly diminishes migrants’ and refugees’ rights in the UK, in particular as regards their rights to move within the EU. The UK could thereby find itself at a disadvantage in the race for talent. For example, there is a case for the UK to opt in to the Long-Term Residents Directive on such grounds. Moreover, some EU measures attempt to balance migration control and migrants’ rights. For example, the EU approach to employment of irregular migrants aims both to prevent their employment, and decrease demand by ensuring that at least some labour rights of irregular migrants are protected.
The authors would like to thank Professor Elspeth Guild and Professor Valsamis Mitsilegas for immensely helpful comments. The usual disclaimer applies.
- This primer updates and expands the Migration Observatory policy primer – UK Migration Policy and EU Law
- Migration Observatory policy primer – The UK, EU Citizenship and Free Movement of Persons
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- Home Office – Review of the Balance of Competences between the United Kingdom and the European Union: Asylum & non-EU Migration 2014
- Migration Observatory policy primer – Asylum Policy
First Phase of the Common European Asylum System
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- Blue Card Directive: Directive 2009/50/EC on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment  OJ L155/17.
- Frontex Regulation: Regulation 1168/2011 amending Council Regulation (EC) No 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union  L304/1.
- Anti-Trafficking Directive: Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA  OL L101/1.
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