Irregular migration – principally the stream of migrants seeking to enter the UK on small boats – looks set to be a key focal point in the forthcoming general election. The Prime Minister has made ‘stopping the boats’ a key pledge for 2023 – and one of the Government’s proposed solutions is the enactment of the Illegal Migration Act 2023. Labour has also pledged to tackle the issue of irregular migration, with Sir Keir Starmer proposing a new agreement with the EU to help solve the problem. So what would a deal with the EU look like?
What sort of migrants are we talking about?
First, it is important to be clear about different terminology. Migration is not the same as travel. When I travel to France on holiday I am not migrating, I am just going on holiday. Migration is about moving to live.
Second, most migration is legal. Millions of migrants live and work in the United Kingdom perfectly legally, and millions of British citizens live and work legal overseas – I have done so myself.
Third, refugees are not the same as asylum seekers. ‘Refugee’ is a status applying to anyone who falls into certain groups designated by official bodies, such as governments or the UN Refugee Agency. An asylum seeker is someone who is seeking protection from dangers in their home country but whose status has not been pre-determined, so they apply on an individual basis. Only around one-fifth of all migrants to the UK are refugees or asylum seekers, and most of them arrive via legal routes.
Irregular migrants, therefore, are the small group of asylum seekers and refugees who arrive in the UK by unconventional routes, such as on the small boats we see crossing the channel.
EU legal frameworks on travel and migration
Most of the provisions of EU law relating to free movement of persons, such as Articles 21, 45, and 49 TFEU, do not generally apply to asylum seekers and refugees. Free movement of persons is about nationals of EU Member States moving around the EU. One generally applicable provision, however, is the Schengen Agreement.
The Schengen Agreement was signed by five countries (France, Germany, Netherlands, Belgium, and Luxembourg) in 1985, and provides for a common travel area among the states. This means that there are no border controls between the countries. Today, with the exception of Ireland, all EU Member States are either part of the Schengen area, or are expected to join. While the agreement was originally separate to the EU Treaties, it is now integrated into EU law by Protocol 19 to the TFEU.
Removing routine border controls between members of the Schengen area, naturally, creates challenges for managing asylum seekers and refugees. Consequently, the Schengen Agreement was supplemented by Regulation (EU) No 604/2013, commonly known as the ‘Dublin III’ regulation. Dublin III provides that only a single Member State will process the asylum claim of an asylum-seeker, and that asylum applications will be processed in the country in which the claim is first registered (usually by the provision of fingerprints at the border). Crucially, where an asylum seeker first registers in one Member State then moves to another, that other Member State can return that asylum seeker to the original Member State while their application is processed.
This, inevitably, creates problems for what are known as ‘frontline’ Member States: those Member States whose external borders are common arrival points for asylum seekers. Paramount among these are Italy (Central Mediterranean route), Slovenia and Hungary (Western Balkan route), and Greece (Eastern Mediterranean route). In order to assist Member States patrol and secure their external borders, the EU established Frontex in 2004. Frontex is the common name for the European Border and Coast Guard Agency, established by the Frontex Regulation. Under Article 7 of the regulation, Frontex shares responsibility for managing the EU’s external borders with the border forces of the Member States.
The ongoing migrant crisis across Europe has led to calls to reform the EU’s asylum framework to shift the burden away from frontline states. Consequently, on 13 June 2023, the Council agreed a proposal for a new Asylum and Migration Management Regulation, which would replace a number of different EU asylum laws, including the Dublin III Regulation. Crucial within this proposed new regulation is the proposed Part IV, providing for a new ‘solidarity’ mechanism within the process. Proposed Article 44a establishes a ‘solidarity pool’, requiring all EU Member States to contribute by either accepting ‘relocations’ (hosting asylum seekers), making direct financial contributions (€20,000 for each relocation not accepted), or alternative solidarity measures, such as deploying border forces to assist other Member States. All Member States will be required to contribute, but Member States retain absolute discretion as to by which of these three mechanisms the Member State contributes.
Could the UK join these arrangements?
The rationale behind Labour’s proposals is that a problem shared is a problem halved. There is certainly precedent for non-EU countries to participate in the EU’s immigration and asylum system. Although Dublin III is an EU Regulation, agreements between the EU and third-countries, including Norway and Iceland, Switzerland, and Liechtenstein provide for the application of its provisions in those states. It would, therefore, be possible for the UK to apply its provisions in the same way.
Similarly, in 2007, Norway and Iceland concluded an agreement with the EU enabling their participation in Frontex. Under the agreement, Norway and Iceland gain representation and voting rights on Frontex’s management board. This enables Norway and Iceland to have a say in the activities undertaken by Frontex on the EU’s borders. The agreement is subject to the Jurisdiction of the Court of Justice. Unlike Norway and Iceland, however, the UK has never been a party to the Schengen acquis.
The UK is in a somewhat unique position with respect to irregular migration. While EU Member States such as Italy and Greece receive irregular migrants from North Africa and Turkey, the sole source of such migration to the UK is France. Such migration, therefore, involves migrants departing the EU, rather than arriving. Joining Frontex, however, would allow the UK to participate in management of irregular migration at the points at which migrants seek to arrive in the EU, rather than in the English Channel.
This could be mutually beneficial: the UK has a large and experienced coast guard – doubtless frontline Member States would welcome their deployment in the Mediterranean Sea rather than the Channel.
Participation in Frontex, however, would likely be dependent on participation in the replacement for Dublin III, requiring the UK to contribute to the ‘solidarity pool’. While much of that contribution may be contributions in kind to patrolling the Mediterranean, and some might be financial contributions, it is highly likely that the UK would be obliged to accept relocations of refugees and asylum seekers from frontline Member States.
While politicians are famously pro-having their cake and pro-eating it, the reality is that any cooperation will be a two-way street: the UK will be expected to help the EU at least as much as the EU helps the UK.
Dr Stuart MacLennan
Associate Professor of Law
Dr MacLennan is an Associate Professor in the Law School and an Associate Member of the Centre for Financial and Corporate Integrity.