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The Future Relationship Between the UK and the EU in the Field of International Protection Following the UK's Withdrawal From

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The Future Relationship Between the UK and the EU in the Field of International Protection Following the UK's Withdrawal From STUDY Requested by the LIBE committee The future relationship between the UK and the EU in the field of international protection following the UK’s withdrawal from the EU Policy Department for Citizens' Rights and Constitutional Affairs Directorate General for Internal Policies of the Union EN PE 608.836 - October 2018 The future relationship between the UK and the EU in the field of international protection following the UK’s withdrawal from the EU STUDY Abstract This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs, at the request of the LIBE Committee, provides expertise on the legal, institutional and technical implications of the UK’s withdrawal from the EU in the field of international protection. More specifically, this analysis presents the current situation with regard to UK–EU cooperation in the field, the legal standards that will be applicable to the UK following its withdrawal, the areas of common interest in the field and the potential forms of future cooperation. ABOUT THE PUBLICATION This research paper was requested by the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs and was commissioned, overseen and published by the Policy Department for Citizen's Rights and Constitutional Affairs. Policy Departments provide independent expertise, both in-house and externally, to support European Parliament committees and other parliamentary bodies in shaping legislation and exercising democratic scrutiny over EU external and internal policies. To contact the Policy Department for Citizens’ Rights and Constitutional Affairs or to subscribe to its newsletter please write to: [email protected] RESPONSIBLE RESEARCH ADMINISTRATOR Marion SCHMID-DRÜNER Policy Department for Citizens' Rights and Constitutional Affairs European Parliament B-1047 Brussels E-mail: [email protected] AUTHORS Mirja GUTHEIL, Optimity Advisors Quentin LIGER, Optimity Advisors James EAGER, Optimity Advisors Aurélie HEETMAN, Optimity Advisors Micol TEDESCHI, Optimity Advisors With the support of Professor Steve PEERS, University of Essex; Dr Natascha ZAUN, London School of Economics and Political Science; Dr Jan-Paul BREKKE, Institutt for samfunnsforskning; Dr Jorrit RIJPMA, Universiteit Leiden; and Dr Carolin MÖLLER, Optimity Advisors. LINGUISTIC VERSION Original: EN Manuscript completed in November 2018 © European Union, 2018 This document is available on the internet at: http://www.europarl.europa.eu/supporting-analyses DISCLAIMER The opinions expressed in this document are the sole responsibility of the author and do not necessarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorised, provided the source is acknowledged and the publisher is given prior notice and sent a copy. The future relationship between the UK and the EU following the UK’s withdrawal from the EU in the field of international protection ____________________________________________________________________________________ CONTENTS LIST OF ABBREVIATIONS AND ACRONYMS 5 LIST OF TABLES 7 LIST OF FIGURES 7 LIST OF BOXES 7 EXECUTIVE SUMMARY 9 1. INTRODUCTION 12 2. BACKGROUND AND CONTEXT 16 2.1. EU policy in the field of asylum, resettlement, return and readmission 18 2.1.1. EU competence in the field of border checks, asylum and immigration 18 2.1.2. Common European Asylum System (CEAS) 19 2.1.3. Return and readmission 27 2.1.4. Relocation and resettlement 30 3. UK PARTICIPATION IN EU MEASURES IN THE FIELD OF INTERNATIONAL PROTECTION 35 3.1. Current UK participation in EU measures 35 3.1.1. UK opt-in system 35 3.1.2. UK participation in and contribution to the CEAS and related measures 36 3.1.3. UK’s application of the EU Charter 42 3.1.4. The UK and the jurisdiction of the CJEU 43 3.2. UK participation during the transition period 44 4. OVERVIEW OF THE LEGAL STANDARDS APPLICABLE TO THE UK AFTER ITS WITHDRAWAL FROM THE EU AND THE IMPLICATIONS 46 4.1. International legal standards on asylum, resettlements, return and readmission that will remain applicable to the UK following Brexit 47 4.1.1. United Nations International legal instruments for the protection of refugees and asylum seekers 47 4.1.2. Council of Europe legal standards 48 4.2. UK legal standards on asylum, resettlements, return and readmission that will remain applicable following Brexit 48 4.2.1. The UK legal framework in the field of international protection 49 4.3. Protection of fundamental rights in the UK following Brexit 51 4.3.1. Possible implications of ceasing to apply the EU Charter of Fundamental Rights protection in the UK 51 4.3.2. Possible implications of ceasing the jurisdiction of the CJEU on dispute resolution in the field of international protection in the UK 53 3 Policy Department for Citizens’ Rights and Constitutional Affairs ____________________________________________________________________________________ 5. OVERVIEW OF THE EU AND UK POSITIONS ON THE FUTURE RELATIONSHIP AND AREAS OF COMMON INTEREST IN THE FIELD OF INTERNATIONAL PROTECTION 56 5.1. EU position on future relationships 57 5.2. UK position on future relationships 58 5.3.Areas of common interest of the UK and the Union in the field of international protection 59 6. POTENTIAL FORMS OF FUTURE COOPERATION AFTER BREXIT 63 6.1. EU–third country cooperation models 64 6.2. Prerequisites for future EU–UK cooperation in the field of international protection 68 6.3. Dublin System (including Eurodac) 70 6.3.1. Existing forms of cooperation with third countries 70 6.3.2. Potential options for the future relationship with the UK 70 6.4. European Asylum Support Office (EASO) 73 6.4.1. Existing forms of cooperation with third countries 73 6.4.2. Potential options for the future relationship with the UK 74 6.5. Asylum, Migration and Integration Fund (AMIF) 74 6.5.1. Existing forms of cooperation with third countries 74 6.5.2. Potential options for the future relationship with the UK 74 6.6. Frontex 75 6.6.1. Existing forms of cooperation with third countries 75 6.6.2. Potential options for the future relationship with the UK 79 6.7. Readmission 79 6.7.1. Existing forms of readmission agreements of non-EU countries with third countries 79 6.7.2. Potential options for the future relationship on readmission 79 7. CONCLUSIONS AND RECOMMENDATIONS 81 7.1. Conclusions 81 7.2. Policy recommendations 84 ANNEX I: LIST OF STAKEHOLDERS 87 ANNEX II: REFERENCES 88 4 The future relationship between the UK and the EU following the UK’s withdrawal from the EU in the field of international protection ____________________________________________________________________________________ LIST OF ABBREVIATIONS AND ACRONYMS AFSJ Area of Freedom, Security and Justice AMF Asylum and Migration Fund AMIF Asylum, Migration and Integration Fund API Advance Passenger Information CAMM Common Agendas on Migration and Mobility CEAS Common European Asylum System CJEU Court of Justice of the European Union CoE Council of Europe EAoM European Agenda on Migration EASO European Asylum Support Office EBCG European Border and Coast Guard Agency (Frontex) ECA European Community Act ECHR European Convention on Human Rights ECtHR European Court of Human Rights EEA European Economic Area EFTA European Free Trade Association EMN European Migration Network EP European Parliament EU European Union EUAA European Union Agency for Asylum EURAs European Union Readmission Agreements Frontex European Border and Coast Guard Agency (EBCG) GAMM Global Approach to Migration and Mobility ILO Immigration Liaison Officer JHA Justice and Home Affairs MPs Mobility Partnerships RABITs Rapid Border Intervention Teams RPP Regional Protection Programme RSF Regional Structural Funding TEU Treaty on European Union TFEU Treaty on the Functioning of the European Union 5 Policy Department for Citizens’ Rights and Constitutional Affairs ____________________________________________________________________________________ TF50 European Commission Article 50 Taskforce WA Working Arrangements 6 The future relationship between the UK and the EU following the UK’s withdrawal from the EU in the field of international protection ____________________________________________________________________________________ LIST OF TABLES Table 1. Number of asylum applications per year (2012–2017) 16 Table 2. Existing EU Readmission Agreements 28 Table 3. Summary table UK participation in CEAS legislation 36 Table 4. Transfers into and out of the UK under the Dublin Regulation from 2015 to 2017 37 Table 5. UK's current level of participation in EASO 38 Table 6. UK's current level of participation in Frontex 40 Table 7. UK’s participation in EU Readmission Agreements: 41 Table 8. UK’s contribution to key EU legislation and policy in the field of international protection 64 Table 9. Appropriateness of existing models of cooperation to the future EU–UK relationship 67 Table 10. Potential options for UK’s future participation in the Dublin system 71 Table 11. Frontex working arrangements with third countries by type of cooperation 77 Table 12. List of stakeholders contacted and interviewed for the study 87 LIST OF FIGURES Figure 1. Timeline of Brexit negotiations 12 Figure 2. Positive decisions on asylum applications of all EU Member States per million population (2017) 18 Figure 3. EU legislative instruments related to the CEAS 21 Figure 4. Comparison of the CJEU and ECtHR in regard to the number of asylum judgements 54 LIST OF BOXES Box 1.
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