Written by Victoria Roeck
Many Brexiteers voted to curb immigration to the United Kingdom, but it is unlikely they voted to restrict unaccompanied minor refugees stranded in other parts of Europe from reuniting with UK-based family members. As a result of Brexit, however, the UK is likely to be forced out of the European Union’s Dublin Regulation, which will lead to an overall increase in immigration and decrease in the ability of unaccompanied minors stranded in other parts of Europe to reunite with family in the UK. The European Convention on Human Rights (ECHR) will not fill this gap for unaccompanied minors because of the UK’s ruling in ZAT (Syria) vs. Secretary of State for the Home Department limiting ECHR Article 8 protection for unaccompanied minors with family in the UK. Domestic law will also not fill this gap because the Dubs amendment to the 2016 Immigration Act, the UK’s domestic law attempt to establish an emergency resettlement scheme for unaccompanied minors in other parts of Europe, relies on the Dublin Regulation and European Union (EU) cooperation. To address this gap, the UK could commit to a long-standing agreement with the United Nations High Commissioner for Refugees (UNHCR) and the International Committee of the Red Cross (ICRC) to resettle unaccompanied minors in other parts of Europe with family in the UK, which would not require the use of EU resources.
The EU’s Dublin Regulation (“Dublin III”) outlines how to determine which EU member state is responsible for adjudicating asylum seekers’ immigration petitions. In this effort, it provides a procedure for unaccompanied minors stranded in the rest of Europe to reunite with family in the UK while seeking asylum. Article 8 of Dublin III states that if an unaccompanied minor seeking asylum enters the EU and has a family member legally present in another member state, the member state hosting the family member must take responsibility for the child if it is in her best interests.[1] The definition of family member includes siblings, aunts, uncles and grandparents.[2] Additionally, if an unaccompanied minor has family applying for international protection in another member state, she can be transferred to that state if she requests so in writing.[3] EU member states are required to facilitate the exchange of information to ensure families are reunited.[4] Pursuant to Dublin III, between January and early October 2016, 140 children were transferred to the UK from other EU countries.[5]
After Brexit, it is unlikely that the EU will allow the UK to remain subject to Dublin III.[6] Dublin III allows the UK to return asylum seekers to the member state where they first entered the EU for their cases to be processed there, which has resulted in the UK deporting more than 12,000 asylum seekers since 2003.[7] The UK might want to remain part of Dublin III post Brexit because of this power, but the EU is unlikely to agree to that because of the UK’s attitude toward intra-EU immigration. Brexiteers campaigned against free movement within the EU.[8] From the rest of the EU’s perspective, it would seem unequal to allow the UK to send asylum seekers back to other EU countries while EU citizens would no longer benefit from free movement to the UK. Although the EU has signed similar treaties to Dublin III with Norway and Switzerland, both countries associate with the Schengen zone, unlike the UK.[9] The UK would furthermore be unable to sign Dublin III-like agreements with individual EU countries because the EU has exclusive competence over allocation of asylum seekers.[10]
Moreover, in early 2016, the EU proposed amending Dublin III (Dublin IV) to encourage burden sharing between Northern and Southern Europe – which would increase Britain’s share of asylum applicants – but tabled discussions in May.[11] Thus, the UK might face a “take-it-or-leave-it” choice post Brexit: accept a new Dublin system that would no longer shield the UK from responsibility toward asylum seekers because of its geographic location or reject Dublin IV and lose the ability to transfer asylum seekers to other EU countries.[12] When the Minister of State in the Home Office was asked if she could confirm that remaining a part of the Dublin arrangement will “remain a key part of a national policy on asylum” post Brexit, she dodged the question, stating, “Whether the UK will participate in Dublin following Brexit will be a key part of the considerations as part of the process of leaving the EU.”[13]
Absent Dublin III, the UK will face a gap with regard to unaccompanied minors in the rest of Europe who have UK-based family. The UK has some relevant procedures in place, but none of them are as broad as those afforded in Dublin III. Individuals with refugee status in the UK can apply for family reunion visas for their family members, but these are restricted to partners and minor children. Refugees in the UK also have to apply for family reunion visas within their first 30 days of legal status.[14] Individuals can apply for family settlement visas to the UK to join non-refugee family permanently settled there, but minors can only apply to be reunited with their parents, not extended family or siblings.[15] Without Dublin III, unaccompanied minors in other parts of Europe who have siblings or extended family either legally in the UK or in the process of applying for asylum there would no longer be able to transfer their asylum cases to the UK. In addition, unaccompanied minors whose parents have pending cases in the UK would not be able to transfer their cases there until the parents’ cases were resolved.
The UK could turn to the ECHR and domestic law to fill this gap, but neither is adequate to do so. In its August 2016 decision in ZAT (Syria) v. Secretary of State for the Home Department, [2016] EWCA (Civ) 810 (Eng.), the High Court limited the protection afforded via ECHR Article 8 to unaccompanied minors in other EU member states who have family in the UK. The Upper Tribunal originally ruled that the Home Secretary’s insistence on strict application of Dublin III procedures interfered disproportionately with the Article 8 right to family life of the UK-based family members by denying immediate family reunification with unaccompanied minors.[16] The High Court reversed, stating that refusing to let unaccompanied minors bypass Dublin III procedures only interfered with UK-based family members’ Article 8 rights in an “especially compelling case,” a difficult standard to meet.[17] After the UK leaves the EU and is no longer subject to Dublin III, this ruling will increase the barriers for unaccompanied minors to join family members in the UK through legal immigration channels. There will no longer be Dublin III procedures for family reunification, and an unaccompanied minor would have to plead an “especially compelling case” to seek emergency reunification with UK-based family beyond the domestic procedures in place.[18] The family members of unaccompanied minors who fall within the protection gap could potentially litigate under ECHR Article 8, arguing that a lack of procedures for transferring their family members’ asylum cases infringes on their right to family life. The Court would be able to reevaluate the standard set in ZAT, but until then, the protection gap would persist.
Domestic law is also inadequate to address the concerns of unaccompanied minors with family in the UK. The UK has incorporated the United Nations Convention on the Rights of the Child (UNCRC), which imposes enhanced state responsibility toward unaccompanied minor asylum seekers in UK territory.[19] However, it does not establish procedures similar to those in Dublin III for connecting UK-based individuals with unaccompanied minor family members stranded in other parts of Europe. To expand UK responsibility beyond unaccompanied minors in its territory and supplement Dublin III procedure, in April 2016, Lord Dubs sponsored the “Dubs amendment” to the 2016 Immigration Act, which created a resettlement scheme for unaccompanied minors in Europe.[20] The program relied on local councils in the UK choosing to sponsor child refugees and connecting UK-based family with unaccompanied minors in other parts of Europe.[21] However, the program was limited to child refugees who entered the EU before March 20, 2016 and focused on those in Calais, Greece, and Italy.[22] The UK government did so in order to reduce “pull factors,” as it did not want desperate families to send children alone to Europe to take advantage of the UK’s generosity.[23]
Impetus for the program was the impending demolition of the “Jungle” refugee camp in Calais, planned for the end of October 2016.[24] Despite the known deadline, the UK did not begin implementing the Dubs amendment in Calais until mid-October.[25] In the week before Calais was demolished, the UK screened 800 children and admitted about 200.[26] The number of admitted children from Calais rose to about 300 by November 1, 2016.[27] Members of Parliament raised in debate the fact that voluntary agencies claimed many children were unable to register with UK authorities in Calais during these screenings and were forced to sleep outside.[28] However, Home Secretary Amber Rudd denied these claims.[29]
Despite efficiency in the last two weeks before Calais closed, Members of Parliament were dismayed at the UK’s delay in implementing the Dubs amendment, since it had been passed in April 2016.[30] The decentralized structure of the program contributed to the delay, as local government actors struggled to communicate with the French government to locate child refugees in Calais with UK-based family.[31] In addition, the French government requested that the UK not process individuals outside of Dublin III procedures until a few weeks before Calais was set to close.[32] Beyond these hurdles to implementation, political dissension accompanied the program. Opponents voiced concern over verifying the ages of individuals admitted; they argued the UK should assess dental records to confirm the age of refugees without birth certificates rather than having social workers determine refugees’ ages.[33]
The Dubs amendment succeeded in that it provided emergency resettlement to vulnerable child refugees in Calais (and now the UK is addressing vulnerable children in Greece and Italy).[34] However, it was premised on EU cooperation, networks, and law to function. From the beginning, the UK had intended Dublin III to provide the “legal framework for the transfer from other European countries of many of the cases that fall under the [Dubs amendment]. Our aim is to use whatever tools work best for the countries and partners concerned, and give us the best chance of transferring children quickly.”[35] The UK also employed secondees in the French Interior Ministry, the Dublin Unit in Greece, and the Dublin Unit in Italy to implement the Dubs amendment.[36] Without the legal framework of Dublin III and already existing partnerships between the UK and EU member states, the Dubs agreement would not have succeeded as it did.
Post Brexit, the UK could enter into a long-standing agreement with UNHCR and ICRC that expands the scope of the Dubs amendment. Through their networks and family tracing units, UNHCR and ICRC could identify unaccompanied minor asylum seekers with UK family, submit their applications to the UK government for approval, and facilitate the transfer of their asylum case to the UK. The system would function similarly to a resettlement scheme, in which UNHCR identifies strong candidates for resettlement in a refugee-hosting country and the potential resettlement country reviews their application. The one difference is the UK would not have to consent to approving the transferred minor’s asylum case, which could speed up the transfer process. This program would help fill the protection gap for unaccompanied minors stranded in other European countries who have family in the UK without relying on EU resources. No additional treaties would be necessary to carry out this resettlement scheme. It could be carried out solely through memoranda of understanding with UNHCR and ICRC. It also would not trigger the same debates about burden sharing of asylum seekers as the UK trying to remain part of Dublin III would. While the transfer process would likely be lengthier in this system than with Dublin III or the Dubs amendment, it could be a good start to reuniting unaccompanied minor asylum seekers with UK-based family.
After Brexit, the UK would not be able to contribute to family reunification of unaccompanied minors in Europe with UK-based family as it has done so within the EU framework. Dublin III provided a legal pathway for unaccompanied minors in Europe to reunite with family members in the UK and seek asylum there. Since the UK is unlikely to remain a part of the Dublin arrangement after leaving the EU, this legal pathway would disappear. The ECHR would not fill the gap left behind by Dublin III because of the damaging ruling in ZAT (Syria) v. Secretary of State for the Home Department. Furthermore, domestic law would fail to fill this gap because the model of the Dubs agreement would not function properly once the UK is outside of the EU. The UK could set up a transfer scheme similar to resettlement with UNHCR and ICRC to reunite unaccompanied minor asylum seekers with UK-based family while their asylum case is processed. Unfortunately, the politicization of immigration, even of blameless unaccompanied minors, makes it unlikely that the UK would volunteer to protect child refugees with UK-based family post Brexit, but a potential solution is available.
[1] Regulation 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast), 2013 O.J. (L 180) 39.
[2] Steve Peers, The Dublin Regulation: Is the End Nigh? Where should unaccompanied children apply for asylum?, EU Law Analysis (Jan. 21, 2016), http://eulawanalysis.blogspot.com/2016/01/the-dublin-regulation-is-end-nigh-where.html.
[3] Id.
[4] Id.
[5] 774 Parl Deb HL (5th ser.) (2016) col. 2341 (UK).
[6] Andrew McIntyre, Brexit and asylum: Life after the Dublin Regulation, Brexit Law (July 20, 2016), https://brexit.law/2016/07/20/366/; Steve Peers, UKIP borders and asylum policy: You cannot be serious, EU Law Analysis (Sept. 26, 2014), http://eulawanalysis.blogspot.co.uk/2014/09/ukip-borders-and-asylum-policy-you; Kristy Siegfried, What does Brexit mean for refugees?, IRIN (June 27, 2016), http://www.irinnews.org/analysis/2016/06/27/what-does-brexit-mean-refugees.
[7] Duncan Robinson, How the EU plans to overhaul ‘Dublin regulation’ on asylum claims, Financial Times (Jan. 20, 2016), https://www.ft.com/content/d08dc262-bed1-11e5-9fdb-87b8d15baec2.
[8] See Jonathan Portes, This is what Brexit could mean for free movement of EU citizens, World Economic Forum (Aug. 12, 2016), https://www.weforum.org/agenda/2016/08/this-is-what-brexit-could-mean-for-the-free-movement-of-eu-citizens (arguing that the UK’s vote to leave the EU was predominately a vote against free movement of workers within the EU).
[9] McIntyre, supra note 6; Peers, supra note 6.
[10] See Case C-114/12, Comm’n v. Council, 2014 EUR-Lex CELEX WESTLAW 612CJ0114 (Sept. 4, 2014); Peers, supra note 6.
[11] The Road Out of Dublin: Reform of the Dublin Regulation, European Council on Refugees and Exiles (Oct. 28, 2016), http://www.ecre.org/wp-content/uploads/2016/10/Policy-Note-02.pdf.
[12] McIntyre, supra note 6.
[13] 776 Parl Deb HL (5th ser.) (2016) cols. 601, 629 (UK).
[14] Settlement: refugee or humanitarian protection, Home Office (Oct. 25, 2016), https://www.gov.uk/settlement-refugee-or-humanitarian-protection/family-reunion; Maeve McClenaghan, Refugee Families Are Being Torn Apart by British Bureaucracy, Maeve McClenaghan Journalist (May 30, 2016), https://maevemcclenaghan.wordpress.com/2016/05/30/refugee-families-are-being-torn-apart-by-british-bureaucracy/.
[15] Apply to join family living permanently in the UK, Home Office (Sept. 23, 2016), https://www.gov.uk/join-family-in-uk/eligibility.
[16] ZAT and Others v. Secretary of State for the Home Department [2015] JR/15401/2015, JR/15405/2015.
[17] ZAT (Syria) v. Secretary of State for the Home Department, [2016] EWCA (Civ) 810, [8] (Eng.).
[18] Unless they have a parent in the UK. Apply to join family living permanently in the UK, Home Office (Sept. 23, 2016), https://www.gov.uk/join-family-in-uk/eligibility.
[19] United Nations Convention on the Rights of the Child art. 22, Nov. 20, 1989, 1577 U.N.T.S. 3.
[20] Immigration Act 2016, c.19, § 67 (Gr. Brit.).
[21] 616 Parl Deb HC (6th ser.) (2016) col. 67 (UK).
[22] Immigration Act 2016 Factsheet – Unaccompanied Refugee Children, Home Office (July 2016), https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/539906/Immigration_Act_factsheet_-_Unaccompanied_Refugee_Children.pdf.
[23] 617 Parl Deb HC (6th ser.) (2016) col. 244 (UK).
[24] 776 Parl Deb HL (5th ser.) (2016) col. 7 (UK).
[25] Id.
[26] 616 Parl Deb HC (6th ser.) (2016) col. 55 (UK).
[27] 776 Parl Deb HL (5th ser.) (2016) col. 627 (UK).
[28] 616 Parl Deb HC (6th ser.) (2016) cols. 63-4 (UK).
[29] Id.
[30] 776 Parl Deb HL (5th ser.) col. 8 (UK); 776 Parl Deb HL (5th ser.) (2016) col. 630 (UK).
[31] 616 Parl Deb HC (6th ser.) (2016) col. 68 (UK).
[32] 616 Parl Deb HC (6th ser.) (2016) col. 56 (UK).
[33] See, e.g., Peter Dominiczak & Steven Swinford, ‘These don’t look like children to me’: concerns raised over ages of child refugees arriving in Britain, The Telegraph (Oct. 18, 2016, 7:56 AM), http://www.telegraph.co.uk/news/2016/10/17/from-the-calais-jungle-to-croydon-migrant-children-arrive-in-bri/.
[34] 616 Parl Deb HC (6th ser.) (2016) col. 59 (UK).
[35] Immigration Act 2016 Factsheet – Unaccompanied Refugee Children, Home Office (July 2016), https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/539906/Immigration_Act_factsheet_-_Unaccompanied_Refugee_Children.pdf.
[36] Id.