Can The Uk Opt-Out Of Mandatory Eu Refugee Quotas?

 

Steve Peers

In ii days’ fourth dimension (Wednesday May 13^th), the European Union Commission is due to acquaint a communication on a novel European Union immigration as well as asylum agenda. I’ll facial expression at this agenda inwards exceptional later, but i primal number calls for comment already: volition the UK postulate maintain an opt-out from mandatory refugee quotas?

Part of the Commission newspaper has been leaked, as well as it’s clear that at to the lowest degree on the number of resettlement of refugees, the electrical current draft of the newspaper is to a greater extent than ambitious than the conclusions of European Union leaders, agreed a brace of weeks agone (see my comments on their conclusions here). In particular, the Commission plans to advise mandatory rules on ‘relocation’ of asylum-seekers as well as ‘resettlement’ of refugees. In European Union jargon, ‘relocation’ refers to those already inwards the EU, spell ‘resettlement’ applies to those currently inwards non-EU countries. The origin grouping produce non necessarily postulate maintain valid asylum claims, spell the latter grouping commonly postulate maintain their condition equally refugees positively assessed earlier they are admitted to the territory.

According to press stories inwards the Guardian as well as the Times (the latter is paywalled) at that topographic point may hold upwards a conflict amongst the UK equally regards refugee quotas, because of a incertitude that the UK tin laissez passer on the axe opt out of these proposals. Let’s facial expression at this from the legal as well as political betoken of persuasion inwards turn.

Legal analysis

The draft Commission conception refers to the ‘legal base’ of the relocation proposals equally existence Article 78(3) of the Treaty on the Functioning of the European Union (TFEU), which provides that:

3. In the lawsuit of i or to a greater extent than Member U.S. existence confronted yesteryear an emergency province of affairs characterised yesteryear a abrupt inflow of nationals of tertiary countries, the Council, on a proposal from the Commission, may adopt provisional measures for the produce goodness of the Member State(s) concerned. It shall deed after consulting the European Parliament.

Article 78(3) is business office of the Justice as well as Home Affairs (JHA) provisions of the Treaty. All of these provisions are industrial plant life inwards Title V of Part Three of the TFEU. But the UK has an opt-out from these JHA provisions. In particular, Article 1 of Protocol 21 of the Treaties provides that (my emphasis):

Subject to Article 3, the Great Britain as well as Republic of Ireland shall non convey business office inwards the adoption yesteryear the Council of proposed measures pursuant to Title V of Part Three of the Treaty on the Functioning of the European Union.

Article 1 refers to Article three of the Protocol, which is the ability for the UK as well as Republic of Ireland to opt inwards to proposals on a case-by-case footing if they desire to. For the avoidance of doubt, Article 2 of the Protocol reiterates that (my emphasis):

In outcome of Article 1 as well as discipline to Articles 3, four as well as 6, none of the provisions of Title V of Part Three of the Treaty on the Functioning of the European Union, no mensurate adopted pursuant to that Title, no provision of whatever international understanding concluded yesteryear the Union pursuant to that Title, as well as no conclusion of the Court of Justice interpreting whatever such provision or mensurate shall hold upwards binding upon or applicable inwards the United Kingdom or Ireland; as well as no such provision, mensurate or conclusion shall inwards whatever means deportment on the competences, rights as well as obligations of those States; as well as no such provision, mensurate or conclusion shall inwards whatever means deportment on the Community or Union acquis nor shape business office of Union constabulary equally they apply to the Great Britain or Ireland.

Article 2 refers to Articles four as well as 6: these rules laissez passer on the UK ability to opt into a JHA mensurate after it’s adopted (Article 4) as well as brand clear that if the UK opts inwards to a JHA act, all the rules inwards the Treaty (ie the CJEU’s jurisdiction) apply (Article 6).

It’s beyond incertitude that the opt-out Protocol applies to all JHA measures. This is confirmed because a specific clause (Article 9) does, yesteryear means of exception, state that i JHA dominion (on anti-terrorist sanctions) applies to Republic of Ireland without whatever opt-out. There’s a similar form of exception inwards a parallel Protocol which sets out JHA opt-outs for Denmark. So yesteryear a contrario reasoning, the UK tin laissez passer on the axe opt out of whatever JHA measures. If at that topographic point were whatever exception for Article 78(3), it would manifestly look inwards the Protocol.

So it seems clear plenty that the UK does non postulate maintain to opt inwards to whatever refugee constabulary measure, equally long equally it falls inside a JHA legal base. The Commission newspaper does non contemplate the dubious strategy of trying to advise a refugee constabulary mensurate on a non-JHA legal base, inwards fellowship to circumvent the UK’s opt-out.

However, at that topographic point is a specific dominion which applies where an European Union proposal would amend existing European Union legislation which the UK is already natural springtime by. In fact, the UK is non natural springtime yesteryear most electrical current European Union asylum legislation, but it is natural springtime yesteryear the Dublin Regulation, which determines which Member State is responsible for the application of an asylum-seeker who is on the territory (or inwards the territorial waters) of a Member State.  

There seems no argue to amend the Dublin Regulation equally regards whatever resettlement proposal, since resettlement concerns recognised refugees currently inwards tertiary countries, non asylum-seekers currently on the territory of the European Union Member States. However, the relocation proposal in all likelihood would postulate maintain to amend the Dublin Regulation, since it would necessarily modify the electrical current rules on which Member State is responsible for an asylum application.

The special dominion applying to the cases where a JHA proposal amends a JHA deed which already binds the UK is get inwards Article 4a of the Protocol:

1. The provisions of this Protocol apply for the Great Britain as well as Republic of Ireland too to measures proposed or adopted pursuant to Title V of Part Three of the Treaty on the Functioning of the European Union amending an existing mensurate yesteryear which they are bound.

So the UK opt-out continues to apply inwards such cases. However, there’s a catch: if the UK opts out of such proposals, it’s possible for it to hold upwards turfed out of its participation inwards the existing law, ie the constabulary which the proposal seeks to amend. In this illustration that would hateful that the UK would hold upwards turfed out of its participation inwards the Dublin Regulation, which results inwards a internet allotment of asylum-seekers from the UK to other Member States.

Article 4a sets out the details of how this would work. First of all, the Council (by a qualified bulk vote of participating Member States, ie without the UK’s vote), on a proposal from the Commission, decides that the revised constabulary would hold upwards ‘inoperable’ for other Member U.S. or the UK, if the UK doesn’t participate. That conclusion inwards effect gives the UK an ultimatum to opt inwards to the amending constabulary inside ii months. If the UK doesn’t opt inwards inside that period, so the master copy mensurate (ie, the electrical current Dublin Regulation) automatically ceases to apply to the UK.  

This ‘ultimatum’ clause dates from the Treaty of Lisbon, as well as has never been used. It would manifestly crusade considerable political friction if it were, given that the UK is attached to continuing its participation inwards the Dublin rules.

The novel proposals mightiness alternatively (or additionally) convey the shape of amendments to the electrical current European Union temporary protection Directive, which the UK too participates in. The same considerations nearly using the ultimatum clause would apply, except that at that topographic point would non hold upwards so much political sensitivity: that Directive has never been used inwards practice, as well as the electrical current UK regime would in all likelihood non hold upwards upset nearly existence expelled from it (this Directive dates dorsum to 2001; the UK opted inwards nether the previous Labour government). However, the proposals mightiness too convey the shape of amendments to the EU’s Asylum as well as Migration Fund, which the UK participates inwards as well as would hold upwards reluctant to hold upwards expelled from (the previous coalition regime opted inwards to it).

It should too hold upwards noted that at that topographic point mightiness hold upwards a legal declaration nearly the utilization of Article 78(3), because the European Parliament (EP) would probable prefer to a greater extent than or less other asylum ‘legal base’ to apply which would laissez passer on it its park ability over European Union legislation. But using a dissimilar asylum legal base of operations would non modify the rules relating to the UK’s opt-out.

Political context

First as well as foremost, it has to hold upwards pointed out that the Commission’s proposals may non hold upwards accepted. Indeed, given the many previous failed attempts to grip European Union rules on relocation as well as resettlement, as well as the obvious lack of willingness of European Union leaders to commit themselves on these issues fifty-fifty inwards low-cal of the recent migrant cash inwards one's chips toll, such proposals mightiness good hold upwards dead on arrival. It’s clear from the wording of the Treaty that at that topographic point has to hold upwards a qualified bulk of Member U.S. inwards the Council to approve such proposals, although the EP is exclusively consulted.

Similarly, the UK could non hold upwards given an ultimatum equally regards its participation inwards existing European Union constabulary unless the Commission proposes a Council conclusion to this end, as well as the Council agrees yesteryear qualified bulk (without a UK vote). The EP has no piece of job inwards that case. It’s far from sure enough that this would happen, fifty-fifty if the Council were enthusiastic nearly these Commission proposals.

In low-cal of this, inwards combination amongst the election of a bulk Conservative regime committed to asset a plebiscite on the UK’s membership of the EU, is it actually wise for the Commission to brand these proposals as well as suggest that they mightiness bind the UK despite its opt-out? Admittedly it’s non realistic to facial expression the Commission to avoid making whatever proposal which mightiness crusade the to the lowest degree offence to the UK for the many months upwards until the plebiscite date. But if it wants the UK to rest inwards the European Union – equally the Commission President says it does – it has to avoid making proposals which are liable to crusade the most offence. That peculiarly applies to proposals relating to immigration, which is yesteryear far the most sensitive number for the UK’s relations amongst the EU.

After all, if the UK leaves the EU, at that topographic point would anyway hold upwards no prospect of relocating asylum-seekers hither inwards whatever event. While it’s understandable that the Commission wants bold solutions to the EU’s migrant crisis, at that topographic point are times when discretion is the amend business office of valour.

 

Barnard & Peers: chapter 26

Photo: bbc.co.uk

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