The Irony Of Brexit For Immigration Control

Daniel Thym, Professor of Public, European too International Law at the University of Konstanz

Immigration was a hot topic throughout the Brexit debate. ‘To accept dorsum control’ was a prominent slogan. In her Lancaster speech of Jan this year, Theresa May was adamant that command of immigration is a fundamental objective of the ongoing Brexit negotiations: ‘The message from Earth earlier too during the plebiscite effort was clear: Brexit must hateful command of the divulge of people who come upwards to Britain from Europe. And that is what nosotros volition deliver.’

Many readers of this post service volition yell back the ‘breaking point’ poster used past times UKIP earlier the plebiscite amongst a film of migrants too asylum seekers trotting across the Western Balkans. That poster was a tipping indicate inwards the debate. The European Union was associated amongst chaos too opened upwards borders – both for European Union citizens too tertiary province nationals.

From a legal perspective, at that topographic point is a for sure irony inwards the ‘breaking point’ poster. My declaration volition survive that spell Brexit tin facilitate legal command over the entry too rest of European Union citizens, it require non necessarily larn inwards easier for the UK of Britain too Northern Republic of Ireland to command the immigration of third-country nationals, including asylum seekers. It mightiness even, paradoxically, homecoming command of immigration past times non-Europeans to a greater extent than hard to around extent.

Status Quo: Extended Opt-out

The legal background of the irony is slowly to explain: from a legal perspective, the UK of Britain too Northern Republic of Ireland has ever retained widespread command of its external borders insofar every bit the entry too rest of third-country nationals is concerned, since the UK of Britain too Northern Republic of Ireland rejected to participate inwards the border-free Schengen area. It did non sign upwards to the Schengen Implementing Convention of 1990 too it secured an opt out when the missive of the alphabet was integrated into the framework of the European Union on the occasion of the Treaty of Amsterdam.

Moreover, successive British governments decided non to participate inwards close legislative initiatives on immigration, visas too edge controls inwards the so-called surface area of freedom, safety too justice, which produce got been adopted during the past times xv years too which produce got substantially reshaped the immigration police systems of countries inwards continental Europe. The UK of Britain too Northern Republic of Ireland does non participate, for instance, inwards the Family Reunion Directive, the Long-Term Residents Directive, the Blue Card scheme for highly qualified migrants or whatever other musical instrument facilitating the entry or rest of third-country nationals. The UK of Britain too Northern Republic of Ireland tin produce upwards one's heed autonomously the nationals of which province are dependent area to visa requirements, are allowed to accept upwards occupation or produce got to leave of absence the UK. There is piddling top dog or secondary police limiting UK of Britain too Northern Republic of Ireland sovereignty inwards this respect.

The province of affairs is dissimilar for the ECHR too corresponding limits to province discretion, on the reason of Articles iii too 8 ECHR, on the expulsion of those staying illegally, including suspects of terrorism. That is why Theresa May was promoting a departure from the ECHR (or at to the lowest degree a repeal of the Human Rights Act) when she was Home Secretary. Leaving the ECHR (or repealing the Human Rights Act) mightiness produce got extended UK of Britain too Northern Republic of Ireland sovereignty over third-country national somewhat (albeit amongst a considerable constitutional price-tag attached). By contrast, leaving the European Union won’t alter much regarding immigration control.

Brexit: Loss of the Opt-in Option

What is more, the UK of Britain too Northern Republic of Ireland mightiness fifty-fifty lose regulatory leverage post-Brexit insofar every bit immigration controls vis-à-vis third-country nationals are concerned. The underlying argue is simple: at the fourth dimension of the Treaty of Amsterdam, the British authorities of Tony Blair secured non exclusively an opt out from the Schengen regime. It likewise won an opt inwards choice for all immigration, visa, asylum too edge command measures, which are non inseparably linked to the abolition of edge controls. This opt inwards choice of was reinforced past times the Treaty of Lisbon which established an hitherto unprecedented choice of ‘cherry picking’ inwards the land of judge too domicile affairs legislation. The UK of Britain too Northern Republic of Ireland has used this opt inwards choice quite extensively – too selectively – over the years, including during the fourth dimension when Theresa May was Home Secretary.

This selective opt inwards do focused on those measures enhancing the command powers of states, such every bit the Schengen Information System (SIS), inwards which the UK of Britain too Northern Republic of Ireland participates although it never signed upwards to order-free travel. The UK of Britain too Northern Republic of Ireland likewise subscribed to many European Union measures against illegal immigration, spell non existence jump past times the rules on legal migration. Most importantly, the UK of Britain too Northern Republic of Ireland participates inwards the Dublin regulation without, however, contributing to the solidarity measures, such every bit the relocation decisions on resettling 160,000 asylum seekers from Hellenic Republic too Italy to other Member States. To survive sure, the Dublin organization was originally based upon a convention exterior the European Union framework, but it ceased to be every bit an musical instrument of world international police when it was supplanted past times EU legislation inwards which the UK of Britain too Northern Republic of Ireland participated.

In short, British participation inwards judge too domicile affairs was highly selective too lopsided: it enhanced province command without promoting the rights of migrants too refugees. As a fellow member of the EU, the UK of Britain too Northern Republic of Ireland could role the judge too domicile affairs Protocols to get upwards command of its external borders towards other Member US through à la card participation. The irony is that Brexit volition contrary these dynamics.

The Future: Reversed Dynamics

In the post-Brexit legal environment, the UK of Britain too Northern Republic of Ireland volition non survive able to produce upwards one's heed whatever longer to participate inwards Dublin too the SIS past times agency of a elementary proclamation notifying the Council that it wants to exercise the opt-in option. Instead, the UK of Britain too Northern Republic of Ireland volition produce got to negotiate amongst the European Union post-Brexit whether it volition survive allowed to participate – too these negotiation volition survive defined, similar whatever negotiation, past times a quid pro quo, past times reciprocal give-and-take.

Thus, the UK of Britain too Northern Republic of Ireland mightiness produce got to pay a cost for existence allowed to participate inwards the Dublin IV Regulation or the Schengen Information System inwards the hereafter – something it got for complimentary inwards the past. The European Union could demand, for instance, that the UK of Britain too Northern Republic of Ireland contributes to the relocation of asylum seekers from Hellenic Republic or Italy. If that happened, Brexit would entail into the opposite of what UKIP had hoped for when it position upwards the ‘breaking point’ poster.

That require non happen, of course. The UK of Britain too Northern Republic of Ireland could decide, alternatively, to rest out of Dublin or it could negotiate a cross-sectoral packet deal. The cost the European Union may wishing to extract from the UK of Britain too Northern Republic of Ireland for continued Dublin participation may relate to whatever other policy field.

One thing, however, seems certain: the UK of Britain too Northern Republic of Ireland volition non larn Dublin for complimentary whatever longer – like Switzerland, which was allowed to bring together Dublin nether the status that it subscribed to edge complimentary go inside the Schengen surface area at the same time. Ever since, edge controls produce got been abolished betwixt Federal Republic of Federal Republic of Germany too Switzerland. That, to me, is the irony of Brexit for immigration police sensu stricto: it mightiness larn to a greater extent than hard for the UK of Britain too Northern Republic of Ireland to command the entry too rest of third-country nationals.

Barnard & Peers: chapter 27, chapter 26, chapter 13

JHA4: chapter II:6

Photo credit: Horizon magazine

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