Immigration, Nationality and Asylum (EU Exit) Regulations 2019

Lord Bishop of Durham Excerpts

Monday 18th March 2019 Lords Chamber

[Lord Paddick (LD)]

My Lords, the Secondary Legislation Scrutiny Committee’s Sub-Committee A has drawn two issues to the special attention of the House. The first is that there are EU specifications for certain documents, notably the uniform format for biometric residence permits for third-country nationals. The Home Office explained to the sub-committee that the EU is in the process of switching from the current design, the switch to be completed by all member states by the end of 2019, but the UK will not issue the new EU design. In addition to the questions raised by the sub-committee as to whether immigration officials conducting exit checks in foreign countries to establish whether someone has the right to enter the UK before they depart will be notified of such a change, and whether confusion will be created by deviating from the standard EU format, would a potential delay to the UK’s departure from the EU for 12 months or more require the UK to adopt the new EU design despite what is contained in this instrument?

The other issue is the withdrawal of the UK not only from the Dublin regulation but from the Eurodac regulation. Currently, under the Dublin regulation, an asylum seeker must seek asylum in the first safe country arrived in. The Eurodac regulation covers the use and operation of the Eurodac biometric database, which notifies participating member states of a match if a person has been fingerprinted as an asylum seeker in connection with an illegal crossing into a country participating in the Dublin regulation. My understanding is that this instrument makes the necessary legislative changes to acknowledge that the UK will no longer be party either to the Dublin regulation or the Eurodac regulation, as the UK will no longer have access to the mechanism for returning asylum seekers to the first country they arrived in; nor will they be able to establish by fingerprints that they sought asylum in another safe country, as the UK will no longer have access to that database. Will the Minister explain the practical implications of the Home Office’s response to the sub- committee that asylum claims may still be deemed inadmissible to the UK if the claimants have already been recognised as a refugee or could have claimed asylum elsewhere? How, in the absence of the Eurodac database, will the UK establish this?

If EU member states are no longer obliged to accept transfers from the UK under the Dublin regulation, what is the Home Office going to do with those asylum seekers? If by some other means the Home Office determines that an asylum seeker could have claimed asylum elsewhere, or has already been recognised as a refugee elsewhere, they are presumably genuine refugees and so cannot be returned to their country of origin. As the UK will no longer be a member of the Dublin regulation, presumably they cannot be transferred to the EU member state where they first sought asylum either. I eagerly await the Minister’s response.

[The Lord Bishop of Durham]

My Lords, it is striking how small a part asylum and resettlement have played in the conversation about a post-Brexit immigration system. Assuming—and praying—that we do not leave without a deal, I hope that discussion of these vital areas will not be limited to the margins of an already limited engagement with the immigration White Paper and the SIs. I have a series of questions for the Minister.

It might just be me, but I often struggle to see evidence of the Home Office applying the family test in SIs and other areas. Can the Minister assure me that the family test has been applied to these SIs? There is potentially a bit of a catch for people who have made an asylum application in an EU member state prior to 29 March, and who might have chosen to use the Dublin process for the purpose of family reunion. For such people, that might fall out if we leave on 29 March. Can the regulations be amended to ensure that, if they have made an application before 29 March, they will be able to use the Dublin process afterwards?

I endorse the questions of the noble Baroness, Lady Lister, and shall add a couple more. Of the 1,215 people reunited in the UK under the Dublin system in 2018, more than 800 arrived 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 international protection. What assessment has the Minister made of how many of those people may have been eligible to be reunited under Part 11 of the UK’s Immigration Rules? Article 9 also allows people in other EU member states to join relatives in the UK who have been granted refugee status. It is concerning that people in these circumstances have had to travel to Europe to reunite, rather than being able to apply for refugee family reunion under the UK’s own Immigration Rules. What plans does the Minister have to improve access to refugee family reunion under Part 11 of the Immigration Rules, including by expanding eligibility and reducing the costs that families face?

I fully accept that we have to withdraw from the Dublin arrangements, but it is about protecting people, as the Government have promised, into the future. Like the noble Baroness, Lady Lister, I am grateful to the British Red Cross for its advice on this.

[Baroness Ludford (LD)]

My Lords, the right reverend Prelate makes a good point about the continuity of claims that have already commenced. If memory serves, the law enforcement regulations we were discussing earlier make provision for the continuation of cases that have already started. I too am interested in the answer to that question.

When we were discussing the previous SI, several of us were rather struck by the contradiction between the rhetoric about ending free movement and the reality that the Government actually intend to continue it on a one-way basis with no supervision or control whatever, which seems rather perverse. I am also struck by the proposal to pull out of Eurodac and the Dublin regulation, over which I sweated many days, weeks and months as an MEP—but that is neither here nor there.

The Home Secretary made several assertions on this earlier this year—not least when he curtailed his Christmas holiday to come back and deal with what he claimed was the major incident of a few hundred migrants crossing the channel. When addressing the other place on 7 January, he said that the first safe country principle is,

“at the heart of the EU’s own common European asylum system”,

which underpins the 2005 procedures directive and 2004 qualification directive. He went on:

“It is also a principle that underpins the Dublin regulation. The whole point of the Dublin regulation is that if someone has passed through another EU safe country, it is expected that they claim asylum first there”.—[Official Report, Commons, 7/1/19; col. 89.]


Both in that speech to the other place and in numerous instances of press coverage, not least in the Daily Telegraph, a great deal of emphasis was placed on the ability of the UK to send back to other EU countries, particularly France, people whom he thought might be designated economic migrants and would not qualify for asylum. How he could know their status in advance is another question. He made a great deal of this ability of the UK to send people back rather than allowing them to seek asylum in Britain. I found another assertion as recent as a few weeks ago; defending his call to declare a major incident in January, he suggested on 21 February on a visit to Dover that,

“those seeking asylum in the UK should have done so in France or elsewhere on the continent”.

A great deal of emphasis has been placed by the Government, particularly the Home Secretary, on the mechanisms of Eurodac and the Dublin regulation. Suddenly, they are going to disappear.

The Government have made some claims about what they hope to put in its place. Indeed, in the report of the Secondary Legislation Scrutiny Committee we are told in Paragraph 8—apparently this was supplementary information supplied to the committee—that the Home Office said:

“We are also mindful of the obligation in section 17 of the European Union (Withdrawal) Act 2018 (family unity for those seeking asylum or other protection in Europe)”.


As the noble Baroness, Lady Lister, pointed out, under Section 17 of the EU withdrawal Act this would apply only to children. The Home Office went on to say:

“We currently work bilaterally on returns with France where for example the Sandhurst Treaty, and the subsequent Joint Action Plan, features a mutual commitment to return more migrants to France who have used boats to illegally cross the Channel”.


Could the Minister tell us how the family unity provisions under Section 17 of the EU withdrawal Act will work in the absence of the Dublin regulation? How will the arrangements with France, or with any other member state, work—sending people back whom the UK claims need to direct their claims towards the authorities in an EU state? What is the state of play on any replacement measures? Will we just have a blank space where Eurodac and the Dublin regulation currently exist?