Natascha Zaun (LSE), reflects upon the situation for third-country nationals, especially asylum seekers, wishing to come to the UK whilst it is part of the EU. Focusing on policies such as the Dublin Regulation, she asks how the situation could change after Brexit, and argues that the UK has more control over third-country migration than Brexit campaigners imply. 

The Brexit campaign, and especially UKIP’s breaking point poster, suggested that the European Union did not control the immigration of third-country nationals (i.e. non-EU citizens) and that this resulted in uncontrolled immigration into the UK. According to Eurosceptics, voting for Brexit would hence help the UK ‘take back control’, not only of the migration of EU citizens, but of third-country nationals as well.

The perception that the UK has little control over immigration because of it’s EU membership is erroneous. Certainly, as various scholars have shown, full migration control is a myth and not even the most restrictive country will ever be able to fully control migration.

In the case of the UK, there are other practical and legal obstacles to migration. As the UK is not part of the Schengen regime, both EU citizens and third-country nationals cannot enter British territory without having to show their travel documents to the British border patrol. The UK hence has a gatekeeping position when it comes to migration that most other EU Member States do not have. With its specific situation as an island in the North-West of Europe, irregular migrants and asylum-seekers who are usually coming from the Middle East or Africa have to cross large distances to reach the UK. Without a valid visa, no migrant is allowed to board a plane from anywhere in the world, given carrier sanctions. The Dublin Regulation, according to which the first country of entry is in charge of an asylum-seeker unless they have close family or a visa or residence permit in another European country, makes it virtually impossible to legally reach the UK these days in order to apply for asylum.

Overall, irregular migrants and asylum-seekers will encounter a lot of practical and legal barriers when trying to enter the UK. Some of the practical obstacles – such as geographic location – will obviously remain, but some of the legal obstacles, especially those resulting from the Dublin Regulation, will disappear, and potentially make the UK less able to control migration of third-country nationals.

Image by ImmigrationEnfIO, (Wikipedia), licenced under CC BY-SA 4.0.

The UK and the Common European Asylum System

The UK and the EU have clear rules regulating the entry, stay and rights of third-country nationals. Except for highly skilled migration, e.g. under the UK’s tier 1 or tier 2 visas, for which applicants have to undergo lengthy procedures and thorough assessment, there is no way to legally enter the UK permanently (i.e. for non-touristic purposes) as a third country national. Genuine refugees who are later recognised as such, usually have to enter a country irregularly to submit their claim for asylum, unless they apply for resettlement from abroad. Yet, resettlement numbers are usually comparatively small, even though the UK, for instance, recently stepped up its commitment to 20,000 resettlement places between 2015 and 2020. To put this into perspective, the USA on average has resettled more than 68,000 refugees a year between 2007 and 2016, whereas the UK has resettled around 1,300 refugees per year during the same time frame.

When it comes to EU asylum policies, the UK currently combines the best of two worlds. On the one hand, it has not opted into recent reforms around EU policy harmonisation. EU asylum harmonisation aims to create common standards in the areas of asylum proceduresreception conditions for those who are applying for asylum and status determination and content of refugee status. While the UK had opted into the first round of legislation (2000-2005), it decided to not opt into the recast of these directives (2008-2013), in order to maintain its national leeway. EU asylum harmonisation had indeed entailed liberalisations against the will of some Member States, and the UK made use of its right to opt out, in part to protect restrictive practices, such as ‘detained fast track’, which would not have been in line with the EU’s policies.

On the other hand, the UK opted into the recast Dublin Regulation (Dublin III). Under the Dublin Regulation it is usually the first country in the EU which is responsible for processing an asylum claim. With asylum-seekers usually coming from the Middle East and Africa, being geographically located in the North-West of the EU entailed a very favourable position for the UK under the Dublin Regulation. Unless an asylum-seeker has close family in the UK or a visa from the UK, the UK is not in charge of processing an application. This obviously applies to most asylum applications made in the EU. While border countries have often been found to violate the Dublin Regulation by waiving asylum-seekers through, most of these asylum-seekers would rather move on to Germany, Austria, or Sweden, whereas the UK has not been among the top destinations in Europe for asylum-seekers in recent years.

The consequences of leaving Dublin

It is, of course, difficult to predict what the exact implications of leaving the Common European Asylum System will be for the UK. Even when the UK has left the EU, it will still ‘benefit’ from restrictive border policies, such as the EU-Turkey deal, the closure of the Balkan route or FRONTEX operations aimed at deterring irregular migrants and asylum-seekers. However, leaving the Dublin Regulation might imply that the UK is less able to control the immigration of third-country nationals, particularly asylum-seekers. European countries would clearly have an incentive to waive asylum-seekers through to the UK, as they could not be forced to take asylum-seekers back who have reached the UK travelling through their territory. Even though it is not clear that EU Member States will take such a step, leaving Dublin leaves the UK in a position of weakness vis-à-vis its European partners. This may possibly affect future negotiations between France and the UK on the irregular refugee camp in Calais, for whose closure the UK has already repeatedly paid significant contributions to France, amounting to more than £150 million after the latest deal in January 2018.

While the role of the Dublin Regulation as an effective instrument for controlling the immigration of third country nationals has often been questioned, given the waive-throughs from border countries, policy-makers from North-Western EU Member States, including the UK, have always wanted to keep it. They usually highlight two reasons for doing so. First, they felt that Dublin sent a signal to asylum-seekers that they would not be able to choose where to apply for asylum. Second, policy-makers argued that Dublin would also sent a signal to voters that governments are in control of migration. Certainly, by leaving the EU, British policy-makers will lose this symbolic tool and they will be no longer able to blame the EU for the lack of managed migration.

This article first appeared on the UCL European Institute blog. The views expressed in this post are those of the author, and not of LSE Brexit, nor of the LSE.

Dr Natascha Zaun is Assistant Professor in Migration Studies at the LSE European Institute.

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