Brexit has raised many significant questions regarding the future direction of our legislative and political landscape. Much of the focus on the implications of EU withdrawal are concerned with the potential erosion of rights that common EU membership once afforded and subsequently the rights of EU nationals living in the UK and vice versa. However, much less attention following the referendum result has been concentrated on the rights of third-country nationals seeking asylum in the UK, specifically how the unique geographical location of Northern Ireland factors into this. This is somewhat surprising considering how much momentum and focus was attached to this in the lead up to the vote, especially if we recall UKIP’s ‘breaking point’ poster and media coverage.

This blog attempts to address two areas specifically; the Dublin III Regulation, applicable to the circumstances of the UK as a whole, and secondly the subject of a land border of Ireland and Northern Ireland (Gibraltar aside) significantly now becoming an external EU border. These elements will be discussed below.

Dublin III Regulation

Prior to the referendum and subsequent vote on EU withdrawal there was a prevailing sense that that this was a vote largely dominated by viewpoints on immigration control and the number of third-country nationals attempting to seek asylum in the UK. ‘Taking back control’ of immigration, borders and insular narratives on refugee protection will remain a prominent source of the debate in ongoing Brexit negotiations. Yet there is an ironic twist in the life post-Brexit decision specifically with regards to refugee protection; from a legal standpoint the UK continues to be bound by the 1951 Refugee Convention and 1967 Protocol and, furthermore supplemented by a vast array of human rights obligations. Whilst many refugee scholars will undoubtedly lament the lack of supranational supervision from the CJEU, and participation in the CEAS (not immune to criticism either), core protection obligations do remain.

As such, EU withdrawal does not automatically equate to a reduction in refugees and the protection obligations which follow from this, much as the ‘leave’ side tried to convince the public otherwise. Brexit, however, does mean that the UK will no longer be able to rely on their negotiated ‘opt-out/in’ status in the Area of Freedom, Security and Justice, specifically in this case the Dublin III Regulation. The Dublin system attempts to determine the Member State responsible for the processing of the asylum claim based on a hierarchy of criteria, although most commonly renowned for the principle which sends an asylum seeker back to the first State of entry within the EU. To give this some context, in 2017 the UK had 2,137 incoming ‘take charge’ requests compared with 5,712 outgoing requests (although actual transfers remain much lower) to other States associated with the CEAS.

There remains the possibility of a separate negotiation with the EU to participate in the Dublin system, similar to that of Switzerland who participate by virtue of an association agreement with the EU. This is significantly burdensome considering the previous process was a simple notification to the Council of their opt-in intent. It would be naïve to assume that the UK can expect the same allowances it once did, a prime example being participating in the Dublin system whilst at the same time opting out of the majority of second-phase CEAS legislation and the Council relocation decisions at the height of increased arrivals (see here for more detailed discussion). In light of this it would appear unlikely that the UK would be allowed to freely participate without some sort of reciprocal arrangement in return; Switzerland for example participates in the Schengen area of free movement within the EU which remains a highly unlikely scenario for the UK given the desire to withdraw from the EU and having never been part of Schengen before Brexit. This leads to the second discussion point of borders, significant by virtue of the geographical location of Northern Ireland.

Border (and Broader) Concerns for Northern Ireland

Perhaps the most delicate issue is that of borders, particularly in light of Northern Ireland’s political history and the importance that the Belfast/Good Friday Agreement of 1998 processes (specific discussion on the GFA can found here). EU withdrawal will therefore transform an internal EU border into an external border, in other words a border between an EU and non-EU State and putting at risk the Common Travel Area encompassing the north and south of Ireland. It is no longer simply about the UK being concerned with a porous border, but equally the EU’s concern of third-country nationals gaining entry to EU territory. Whilst the border issue will be a major factor in continuing Brexit negotiations, it is apparent that most (although not all) do not want to return to the past; a ‘hard’ border symbolising potentially more to the citizens on the island of Ireland than to others not well versed in the political complexities of the Ireland/Northern Ireland divide. It must also be noted here that Northern Ireland voted by majority to remain.

A final broader point is also worth mentioning regarding the aim of this post; it provides a brief overview of some (but not all) of the legal outcomes that third-country nationals will potentially be subject to in the Brexit negotiation process. However, on a more meaningful note, it can provide us with the impetus to reflect on the human cost of the referendum result. As has been outlined, the UK’s core protection obligations under the 1951 Convention and human rights law remain; yet it remains imperative that Brexit, a clear declaration of sovereignty, does not become the start of the erosion of rights once enjoyed particularly with the rights of third-country nationals in mind.

Transitional Justice Institute CAJ