David Conlan Smyth, Senior Counsel of the Bar of Ireland and the Former Chair of Migration Law Committee, CCBE, provides an analysis of the EU’s view of the impact of the migration of Afghans fleeing the Taliban, the consequence for our lawyers’ project in Greece, and emphasises the importance of adopting a successor instrument for the Dublin Regulation as between the EU and the UK.

The rapid ascent to power of the Taliban in Afghanistan is generating considerable concern about a new EU migration crisis and is leading to renewed pressure for the adoption of the New Pact on Migration and Asylum proposed by the European Commission in September 2020. The New Pact replaces the original reform package published in 2016 which proved too controversial for adoption. The reforms – made up of a series of both legislative and non-legislative measures - are intended to mark a shift towards greater solidarity and responsibility which were sorely lacking during the last migration crisis and accordingly the matter is very controversial in certain EU Member States. Of course it remains to be seen how and even if the proposed measures can be adopted at all at least in their present guise. Whilst these measures will of course not apply to the UK post-Brexit, it is difficult to see how any EU-UK migration measures can be progressed in the absence of agreement at EU level on its own rules - a matter to which I return below.

Fears of the Taliban’s ascent creating a new migration crisis in the EU are hardly overblown when one considers the number of displaced Afghan nationals who are already living outside their country of origin prior to recent events. According to the UNHCR there are currently about 1.4 million registered Afghan refugees in Pakistan with some sources estimating the true figure of displaced Afghans present in Pakistan as being up to 4 million Afghans. Closer to home the EU’s statistics show 400,000 Afghans lodged asylum claims in the EU between 2015 and 2017.

It is in this context that the solidarity mechanism contained in the proposed Regulation on Asylum and Migration Management which provides for a sharing of the burden – for example either in terms of relocating recognised refugees or paying a levy for refusing to do so – is intended to relieve the pressures which were placed in particular on Greece and Italy a few years ago. It is this Regulation which will replace the Dublin III Regulation which itself no longer applies to the UK since 31 December 2020.

As regards the challenge presented to Greece a few years ago I am delighted to take this opportunity to mention the response of the European legal professions to the crisis in 2015 which was to establish European Lawyers in Lesvos (ELIL) through the auspices of the Council of Bars and Law Societies of Europe (CCBE) in partnership with the German Bar Association Deutscher Anwaltverein (DAV) and recently joined by the French Council of Bars – Conseil national des barreaux (CNB). ELIL focusses on providing assistance to asylum seekers for their interviews with the Greek Migration Service and regarding family reunification. It has been made possible through the financial support from more than 35 of Europe’s legal professions and with the support of 250 asylum lawyers from across the continent who have volunteered their services. Since June 2016 over 11,000 asylum seekers (including 3,090 from Afghanistan) on the islands of Lesvos and Samos have received legal assistance from ELIL. The value of the project can be summed up in the following statistic: 74.5% of the total numbers assisted by ELIL were granted asylum compared to a Greek national average of 46.5%.

I would like to also take this opportunity to pay tribute to Phil Worthington, an English solicitor who has managed the ELIL project on the ground since 2016 and under whose stewardship ELIL has been internationally recognised with recent awards including in 2020 alone the Law Works Best International Pro Bono award, the UIA/LexisNexis Rule of Law Award, the PILNet Pro Bono Publico Award and the Financial Times and Legal Week Social Innovation Awards. Further information can be found on the website at elil.eu.

Returning to the general situation as regards the future for migration relations between the EU and the UK, the rather bellicose cross-channel statements from officialdom following recent increased migratory flows emphasise the importance of adopting a successor instrument for the Dublin Regulation as between the EU and the UK. The UK’s interest in this is clear – the migrants arriving on the south coast self-evidently come from the EU and before Brexit could in principle in many cases be returned to another Member State. That possibility no longer exists. The EU’s interest at least in immediate terms is less clear. The UK also has the difficulty in that it is hard to see how the EU will agree to a successor instrument that does not contain similar procedural and rights guarantees as the Dublin Regulation presently does which appears to be the intention of the present UK Government’s migration policy. Indications for example from London that there could be limited access to judicial review for asylum seekers will be hard to reconcile with the right to an effective remedy already provided for by the Dublin Regulation. It is also unlikely that France will agree to rules requiring it to take back migrants under the same conditions as before. Ultimately it appears that there will be very little ‘taking back control’ if there is a deal to be done with the EU. In this regard it might be recalled that non-Member States such as Switzerland and Norway must accept the ‘Dublin system’ in return for access to the Schengen passport-free zone. In any event all of these challenges will have to await the French elections, the German elections and the controversy regarding the solidarity mechanism referred to above before attention is likely to turn to EU-UK migration relation.