Clause 37 of the EU (Withdrawal Agreement) Bill (‘the WAB’) has been criticised by some opposition MPs and refugee rights campaigners. They are concerned that it waters down commitments made by the May and Johnson Governments on securing family reunion rights for unaccompanied children in the EU/UK post-Brexit.

This Insight explains Clause 37 and its potential impact on family reunion rights for unaccompanied children.

What does the clause do?

Clause 37 would amend section 17 of the European Union (Withdrawal) Act 2018 (‘the 2018 Act’).

Section 17 of the 2018 Act requires the Government to seek to negotiate an agreement with the EU. Such an agreement would aim to facilitate family reunion for unaccompanied children who have claimed asylum in the EU and have a relative in the UK (or vice versa).

Clause 37 would abolish that requirement. Instead, a Government Minister would be obliged to make a single policy statement to Parliament “in relation to any future arrangements” between the UK and EU about these children. The policy statement would have to be laid within two months of the Bill receiving Royal Assent.

The Bill’s Explanatory Notes do not specify why the Government considers the change necessary. The Independent has reported the Prime Minister’s official spokesperson as saying:

The government’s policy on child refugees has not changed and we will continue to do all we can to enable children to claim asylum and be reunited with their families. Indeed the legislation published today reaffirms that commitment.”

The previous version of the WAB was presented to parliament in October 2019. It did not contain any clause similar to Clause 37. The Library has published an initial analysis of the differences between the October WAB and the current Bill before Parliament.

MPs spoke against Clause 37 in the Bill’s Second Reading on 20 December 2019.

Previous Government positions

Previous governments, under Theresa May and Boris Johnson, confirmed their commitment to section 17 of the 2018 Act.

For example, the Home Secretary sent a letter to the Home Affairs Committee on 30 October 2019, stating:

“the Government is committed under section 17 of the European Union (Withdrawal) Act 2018 to seek to negotiate a reciprocal agreement with the EU to allow unaccompanied asylum-seeking children in the EU to join relatives – parents, siblings, aunts, uncles and grandparents – lawfully resident or awaiting a decision on their asylum claim in the UK, where it is in the child’s best interests, and vice versa. This commitment stands whether we leave the EU with or without a deal.”

The letter confirmed she had written to the European Commission on 22 October setting out the Government’s intention to negotiate such an agreement “as soon as possible.” It added:

“Whilst I am confident of a positive response by the Commission, as continued cooperation on asylum matters is in our respective interests, the UK cannot compel the EU to negotiate with us on any given issue, nor compel the EU to do so within a specific timeframe, so it is not possible to put a timeframe on when certain elements of our future cooperation with the EU will be negotiated.”

How else will refugee family reunion rules be affected by Brexit?

EU law (specifically the Dublin III Regulation) can be used to reunite asylum-seeking family members spread across the EU. The Dublin III Regulation gives some families a route to reunion in the UK that they would not otherwise have. This is because it applies different eligibility criteria for sponsors and relatives compared to the UK’s family reunion immigration rules. The UK rules have been criticised for being too restrictive.

Article 8 of the Dublin III Regulation allows unaccompanied children to join a relative who is claiming asylum or has permission to remain in another state. In 2018, 159 unaccompanied children seeking protection were transferred from EU Member States to join family members in the UK under Article 8.

The UK will continue to be bound by the Dublin Regulation until the end of the transition period (31 December 2020), if it leaves the EU with a deal.

Refugee campaigners such as the British Red Cross are concerned that ending the UK’s participation in the Dublin III Regulation will cut off the prospects for family reunion for many people in Europe with family members in the UK, if the Regulation isn’t replaced with similar arrangements.

They are urging the Government to prevent gaps in family reunion provisions, such as by bringing the UK’s Immigration Rules into line with the family reunion provisions in Dublin III and negotiating a replacement agreement with the EU.

Further reading

What is the Dublin III regulation? Will it be affected by Brexit?, House of Commons Library.

The new EU (Withdrawal Agreement) Bill: What’s changed?, House of Commons Library.

About the author: Melanie Gower is a Senior Library Clerk, specialising in immigration.

Photo: ©UK Parliament/Jessica Taylor