Immigration, Nationality and Asylum (EU Exit) Regulations 2019

Baroness Williams of Trafford Excerpts

Monday 18th March 2019 Lords Chamber

Moved by

[Baroness Williams of Trafford]

That the draft Regulations laid before the House on 11 February be approved.

Relevant document: 19th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee A)

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, delivering a deal with the EU remains the Government’s priority. We are nevertheless preparing for a range of scenarios.

UK domestic law has given effect to our obligations in the fields of immigration, nationality and asylum arising from our membership of the European Union. The UK has also been subject to directly effective EU law. When we leave the EU, aspects of our legislation and retained direct EU law will fail to operate effectively. They will contain deficiencies if they are not modified or revoked by this instrument.

These regulations make changes to a range of domestic primary and secondary legislation to prevent, remedy or mitigate deficiencies in law arising from the UK’s exit from the EU. They ensure that our statute book operates on exit day if the UK leaves the EU without a deal until new legislation on these issues is commenced.

First, the instrument makes technical changes required to correct wording in our legislation that describes the UK in terms of our membership of the EU or European Economic Area. The changes do not alter the effect of the legislation. Similarly, it also makes technical amendments to domestic legislation that refer to EU rights that are retained by the European Union (Withdrawal) Act 2018.

Secondly, this instrument revokes relevant retained EU legislation relating to immigration. It also revokes a number of instruments which give effect to the UK’s membership of the EU asylum acquis and which will be inoperable on exit. This is because by leaving the EU, the UK also leaves the asylum acquis. The order therefore revokes the Dublin regulation and the Eurodac regulation—that is where I got up to last time.

The instrument makes a number of transitional and saving provisions in relation to the measures being amended by it. This is so that the amendments do not have an inappropriate effect in respect of decisions or other action taken before their commencement.

Finally, this instrument applies the UK rules for criminality to EEA, Swiss and Turkish nationals; the amendment applies only to their conduct after exit. Our intention to apply the same rules to new arrivals, irrespective of the country from which they come, has already been announced by my right honourable friend the Home Secretary.

The Government believe that we must plan for every eventuality, including a no- deal scenario. Through introducing this instrument, they are taking practical steps to ensure that the UK statute book operates effectively on exit in the event that the UK leaves the EU without a deal.

This instrument will prevent deficiencies in immigration and asylum law arising from the UK leaving the EU. It ensures continuity until the Immigration and Social Security Co-ordination (EU Withdrawal) Bill allows the Government to introduce the new future borders and immigration system. I beg to move.

[Baroness Lister of Burtersett (Lab)]

My Lords, the Secondary Legislation Scrutiny Committee states that the Home Office anticipates that loss of provisions of the Dublin regulations will have a minimal impact on how those seeking asylum in the UK are handled, yet the British Red Cross, which does invaluable work with asylum seekers in the UK, has raised real concerns in its briefing. I propose to raise just one—that which it says concerns it most.

As I understand it, the Government have committed only to maintaining the Dublin III regulation for unaccompanied children. Of course, that is welcome. However, it will leave many who are currently able to use Dublin III’s family reunion provisions excluded. In 2018, of 1,215 Dublin III arrivals, only 159 were unaccompanied children under Article 8, and 869 were wider family reunion cases under Article 9, which allows people who claim asylum in another Dublin member state to join a relative in the UK who has been granted protection. Will the Minister give a commitment that the Government will retain these Dublin protections in our domestic law post Brexit? I believe that this would require an amendment to our family reunion legislation. This would give substance to the Home Office’s assurance that loss of the Dublin provision will have minimal impact—or, in the words of the Explanatory Memorandum,

“a small impact on net asylum transfers”.

If the 2018 pattern continues, we would otherwise be excluding more than 70% of Dublin III arrivals if this commitment is not given. Is this really what the Government intend?

--- Later in debate ---

[Baroness Williams of Trafford]

I thank all noble Lords who have taken part in the debate. By far the biggest area that noble Lords concentrated on was of course the Dublin regulation. The regulation contains rules to establish the criteria and the mechanisms for determining the member state responsible for examining an asylum application lodged in one of the member states by a third-country national or stateless person and the legal framework for returning and accepting asylum seekers to and from the EU. As I said, the instrument ensures that the statute book will continue to function effectively in a no-deal scenario for asylum and provide transitional arrangements.

In the event of a no-deal scenario, retained EU law becomes deficient, and with respect to asylum, the regulations we use to repeal the Dublin regulation and other common European asylum system measures that we are part of—for example, Eurodac, as the noble Lord, Lord Paddick, pointed out, and the European Asylum Support Office temporary protection directive—will reflect that we will no longer be part of the acquis. This SI ensures that the statute book will continue to function. However, should the UK leave without a deal, Dublin requests relating to family reunification still pending resolution will continue to be considered under the existing provisions, and that will apply to any take-charge requests that we have received before exit day.

The noble Baroness, Lady Lister, asked whether the Dublin regulation will apply in the event of no deal. I will give an example of the numbers we are talking about. Clearly, we will not be a participating state in the Dublin regulation. While this presents a challenge, it also presents in some ways an opportunity to seek new agreements with the EU on asylum which better reflect our position as a third country. Since 2016, we have accepted more Dublin transfers than we have returned to our EU partners. The latest statistics, published in March of this year, show that 209 people were returned to the EU 27 under Dublin in 2018, making up around 5% of the total asylum returns. The Government have committed under the European Union (Withdrawal) Act to seek to negotiate an agreement with the EU that will permit unaccompanied asylum-seeking children to join family members. It would replicate a similar mechanism in the Dublin regulation which would allow children under 18 to join close family members where it is in their best interests.

On returning any individuals under other routes—I think the noble Lord, Lord Paddick, asked me about that—we will always seek to return those who do not require international protection or have the right to be here in accordance with domestic law. We will continue to make returns to countries where appropriate, and on a case-by-case basis.

Continued co-operation on migration issues is in the shared interests of the UK and the EU. We will work to secure a comprehensive returns agreement with the EU to replace our obligations under Dublin once we leave the EU. If unsuccessful, we will look to work bilaterally with EU member states to strengthen our relationships. For example, we will look to build and strengthen our reciprocal agreements with France as set out in the Sandhurst treaty.

The noble Baroness, Lady Lister, talked about family reunification without Dublin, as did the right reverend Prelate the Bishop of Durham. We strongly support the principle of family unity, and there are several routes by which families can be reunited safely. The UK’s family reunion policy is generous, and we continue to reunite refugees with their immediate family, including by granting over 26,000 family reunion visas over the last five years. We are considering the options to ensure effective co-operation on family reunification of asylum seekers after exit. Deal or no deal, Dublin requests relating to family reunification still pending resolution will continue to be considered under the existing provisions, and, as I said, this would apply to any take-charge requests that we received before exit day.

[Baroness Lister of Burtersett]

Before the Minister moves on, can I be clear that the Government will look at the broader family reunion position? Can she give us an assurance that the aim will be that there should not be any diminution of rights for family reunion that currently exist under Dublin III?

[Baroness Williams of Trafford]

I can give an absolute assurance to the noble Baroness that those obligations, which we take seriously and have done for decades, will continue to apply in giving people who need it asylum or refuge. That is why I just went through the various channels and resettlement schemes that we have engaged in. It does not diminish our will to give people who need it refuge and asylum in our country.

I shall move on, but I stay on Dublin. I think it was the noble Lord, Lord Paddick, who asked about any other international agreements affecting asylum that would be affected by Brexit.

[Lord Paddick]

No, it was not.

[Baroness Williams of Trafford]

No, it was not; I am making that up, but I think someone asked it. As a signatory to the 1951 UN refugee convention and the ECHR, we are committed to continuing to fulfil our responsibility. The UK is part of a number of EU readmission agreements with third countries; we are working to replace a number of them with bilateral agreements.

I think this goes to the point made by the noble Baroness, Lady Lister. Our attitude is not changing towards asylum seekers because of Brexit. She will know, because I have said it before, that in 2017, the UK received the fifth highest number of asylum claims in the EU, and since 2016, we have accepted more Dublin transfers than we have returned, as I referred to earlier. In the year ending June 2017, we resettled more than 16,000 refugees from outside the EU, more than any other EU member state and more than a fifth of all resettlement to the EU. We can also be proud of our leading role in supporting children affected by the migration crisis. Since the start of 2010, the UK has granted more than 51,000 children resettlement, refugee status or alternative forms of protection.

The noble Lord, Lord Paddick, definitely asked about admissibility, and I think the noble Baroness, Lady Ludford, referred to it as well. We have always believed that people should be prevented from making claims in more than one country and on multiple occasions. Asylum should always be claimed in the first country that a migrant reaches, as the noble Baroness said. It is vital that our new system does not encourage asylum-seekers who have already reached a safe country to choose to move elsewhere, so we will continue to assess each asylum claim on its individual merits, as set out in the Home Secretary’s Statement to the House on 7 January.

If an individual has travelled through a safe third country and failed to claim asylum, that will be taken into account in assessing the credibility of their claim. This is a widely held principle accepted by the UNHCR, and it is important to send a clear message to smugglers and traffickers and discourage secondary movements. The standards for protection and assistance will in no way be diminished by the UK’s exit from the EU.

On returning asylum-seekers, the UK is attempting to negotiate an ongoing EU-UK readmission agreement which will replace the current Dublin return capability, and this would ideally be underpinned by a biometric system like Eurodac, although clearly it will not be identical to Eurodac. Inadmissibility rules are domestic law and will still be in place regardless of whether the UK leaves the EU.

Finally, the noble Lord, Lord Kennedy, asked why we are using an SI, not the Bill, to legislate. It is important to ensure that the statute book is operable on exit date, especially in a no-deal scenario. As the Bill has just completed its Committee stage in the Commons, we do not expect it to make it in here by 29 March. With that, I hope that I have answered all the questions and I commend the Motion.

Motion agreed.