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The Dublin III Regulation: a recap

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.

What future UK-EU co-operation does the Government want?

The Government is in favour of “an ambitious new partnership” with the EU on asylum and illegal immigration. But it does not want to replicate the provisions of the Dublin Regulation.

It has proposed two draft agreements with the EU which relate 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 Government has said that it might pursue bilateral agreements with individual Member States if it cannot secure EU-wide agreements. But some experts have suggested that bilateral arrangements could be restricted by the EU’s areas of exclusive competence.

Will there be a successor agreement with the EU?

There has been very little formal indication of the progress made in negotiations so far.

There have been reports that EU side has rejected the UK’s proposed agreements because they are beyond the scope of their negotiating mandate. Neither the UK-EU Political Declaration, nor the EU’s draft text for a new partnership agreement with the UK, specifically identify asylum, unaccompanied children, or readmissions as areas for future agreement or co-operation.

The Government maintains that EU negotiators have flexibility to discuss the proposals, although it is reluctant to comment on the extent to which they are doing so.

What practical difference will the end of the Regulations make?

  • 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, by prioritising respect for family reunion above certain other considerations. Furthermore, the Regulation applies more generous eligibility criteria to the UK’s comparable refugee family reunion Immigration Rules. Consequently, it gives some separated family members a legal route to reunion in the UK that they would not otherwise have.  

Campaigners want 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). This is to ensure that asylum seekers in Europe do not lose a safe and legal means of reuniting with relatives in the UK from the end of this year.

The Government is not in favour of doing this. It argues 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 proposed a more limited agreement to enable the transfer of unaccompanied asylum-seeking children who have family members in the UK/EU. But campaigners argue that the proposals are inadequate and that, in any case, reaching an agreement before the end of the transition period looks unlikely.

A non-government amendment to the Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2019-21), approved at Lords Report stage, would establish a legal route for people in Europe to apply for asylum in the UK and enter the UK as an asylum seeker, if they would have been eligible for a transfer to the UK under the terms of the Dublin Regulation if it still applied. The amendment also requires the Government to make a strategy to ensure future relocations to the UK of unaccompanied children in Europe.

Consideration of Lords amendments is scheduled for 19 October. The Government is expected to maintain its opposition to the amendment.

  • 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 UK has proposed a UK-EU readmissions agreement. This would specify obligations on either side to accept the return of citizens and certain categories of non-nationals irregularly residing in each other’s territory.

Recent government statements have expressed confidence 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 have taken a different view.

Brexit: broader impact on the UK’s asylum and immigration system

Leaving the EU does not change the UK’s obligation to offer protection to refugees as per the 1951 Refugee Convention.

The Government has recently reaffirmed its commitment to the 1951 Refugee Convention. 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.

The UK will lose 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.

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.

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