The current shape of UK asylum law and illegal migration

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The EU asylum law is based on directives adopted in the framework of the Common European Asylum System (CEAS). The UK initially opted into the first instruments adopted in the CEAS in the early 2000s.

The CEAS was revised in 2011 and most EU countries adopted further directives. In 2016, a reformed version of the CEAS was proposed which aims to harmonise asylum systems further, using regulations rather than directives. The UK did not opt into these newer instruments and instead still applies the original directives on asylum procedure and qualification for refugee status.

Accordingly, the UK currently relies on Directive 2004/83/EC, the Qualification Directive, as a primary source of asylum law. This sets out the minimum protection a member state must provide to stateless refugees and those otherwise in need of international protection. Post-Brexit, the UK will most likely withdraw from the minimum protection directives, and will no longer be required to comply with the procedural safeguards and specified standards set by EU law. Fundamental protection will still be provided under the ECHR and 1951 UN Convention relating to the Status of Refugees. However, it should be noted that the Conservative Party has previously stated they intend to withdraw from the Refugee Convention and Human Rights Act 1998.

The CJEU regularly rule on procedural matters relating to asylum cases. They have also provided several rulings on issues substantive law, such as the 2013 judgment in case C-201/12 which concluded that homosexual applicants for asylum can constitute a particular social group who may be persecuted on account of their sexual orientation. Such interpretations are specific to questions arising under EU law, therefore it is unclear what the role of the Court will be in the UK following Brexit. It is likely that there will be convergence from the approach followed by the CJEU over time.

With regards to humanitarian (subsidiary) protection, EU law confers multiple rights to relevant individuals under the Qualification Directive. This protection is available to persons who do not qualify for refugee status, but are nevertheless at risk of serious harm on return to their country of origin. Under the Directive, individuals benefit inter alia from the right of family reunion, the right to work and access to core benefits. Conversely, the UK’s minimum requirement is simply a grant of 6 months temporary immigration status. Unless the UK voluntarily replicates the standards of the Directive post-Brexit, it is likely that individuals granted humanitarian protection will have considerably less rights.

Irregular Immigration

Recent developments have made clear the government’s intention to crackdown on irregular migration. The Illegal Immigration (Offences) Bill has been proposed to create offences in respect of persons that have entered the UK illegally or who have remained in the UK without legal authority and for connected purposes. The Bill was presented to parliament last September for a first reading and is expected to have its second reading debate on Friday 6 July 2018. The contents have not yet been made public.

This month the government’s controversial bank account checks also came into force. The checks form part of a series of measures in the Immigration Act 2016 aimed at encouraging illegal immigrants to leave the country voluntarily. Banks and Building Societies are required to check whether account holders are legally resident in the UK and report those who are not. The Home Office published guidance for its caseworkers on 20 December 2017 which set out factors to be considered when deciding whether to apply for a bank account freezing or closure order.

The measures have come under scrutiny from experts who warn that there is a high risk of mistakes being made in cases of mistaken identity and similar names. The move has also been described as a hostile attempt to make life intolerable for people alleged to be in the UK unlawfully. An open letter from MPs and various campaign groups was sent to Home Secretary Amber Rudd last month, urging her to halt the ‘inhumane’ policy. With checks beginning this month, it remains to be seen whether the government will back track on their plans. 

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