EU Immigration and Asylum (UK & Ireland Opt Out)

Until  the 1990s. asylum and immigration were outside the scope of European Union competence. The Maastricht Treaty in 1992 extended EU powers to include some aspects of asylum. The so-called third “pillar” the Justice and Home affairs Pillar established mechanisms and institutions for intergovernmental cooperation on justice and home affair matters including asylum and immigration.

The Treaty of Amsterdam  1997 which became effective in 1999 provides for policies for full free movement of persons, incorporating measures relating to asylum and immigration and border control. The Amsterdam Treaty incorporated the Schengen Protocol or Schengen Acquis (dating from 1995) into EU Law. It seeks to provide a single area without internal controls between participating states.

The Amsterdam Treaty included measures for determining the responsible state, standards on the grant of refugee status, reception of asylum seekers.

The UK and Ireland are not bound by the Schengen Protocol. The UK and Ireland have opted out of the protocols of Title IV of the Amsterdam Treaty. They may opt into particular measures if they elect. They have not opted into the common visas and border control elements.

The European Councils in 1999 and 2004 provided for a common European Policy or system on asylum and for third-country immigration generally.

Lisbon Treaty

This Lisbon Treaty 2007, which came into force in 2009, provided for Title V, Area of Freedom, Security and Justice in the Treaty on the Functioning of the European Union. This incorporates policies on border checks, asylum, and immigration. The adoption of measures is subject to qualified majority voting by the Council and to the approval of the Parliament.

The TFEU  seeks to develop the EU policy to minimise internal border controls and

  • introduce an integrated management system for external borders,
  • develop measures on a common visa policy and checks on the person at borders,
  • conditions under which third-country nationals have free movement of travel within the EU
  • establishment of an integrated management system for borders.

The EU Council may adopt measures on identity cards, passports, and other documentation. This must be done unanimously after consultation with European Parliament.

The UK and Ireland reserved rights to maintain checks on persons crossing borders.

Article 78 provides for a common policy on asylum, subsidiary protection, and temporary protection. It seeks to ensure compliance with the principle of non-refoulement (non-return to a state of origin having certain risks)

Article 79 provides for a common EU immigration policy. It was aimed at

  • the efficient management of migration flows,
  • fair treatment of third-country nationals,
  • rights of residence
  • sanctioning of illegal immigration and trafficking in human beings.

Implementing Measures

The EU Council and Parliament have adopted measures in this area providing for

  • the terms of rights of entry and residence for third-country nationals living legally in member states
  • combating illegal immigration
  • dealing with the removal of persons unlawfully present.

UK and Ireland may opt into any  Title V measures. They have three months from the date of their proposal by the Council of relevant measures. Once opted, they cannot later opt out. If they do not opt in, they do not vote but remain parties to negotiations.

The UK and Ireland have opted into some elements of the Schengen acquis in relation to mutual cooperation and policing. They do not participate in the Schengen Borders Code establishing rules on the free movement of persons, including an external border checks visa information system to facilitate checks and the issue of visas.

The Schengen Information System is used by police, border guards and customs. It holds information and alerts on missing persons, persons involved in serious crime and rights of the entry. The UK participates in the Schengen Information system and so far as they relate to policing and judicial co-operation but not border control and immigration.

The Advance Passenger Information Directive seeks to improve border controls and combat illegal immigration. It establishes requirements to transmit passenger data on the part of carriers to national authorities on flights into the Schengen area from third countries. Stares must ensure that their carriers transmit further information at the requested border authorities regarding passengers they carry.

Schengen area states must ensure that where a third country national is refused entry into the Schengen area, the carrier that brought him assumes responsibility for returning him They require to ensure that a third country national arriving by sea or air has documents required for entry. This applies to overland carriers as well as air and sea carriers.

Some Opt-Ins

The UK, while not participating has a certain degree of involvement in other Schengen schemes including the following:

A 2004 EU Regulation establishes Frontex as European agency for the management of operational control of the external borders. It coordinates state actions to contribute to an efficient high and uniform level of control on persons at the external border. The UK has limited involvement. It may provide operational cooperation.

EUROSUR is the Europe border surveillance system. It provides Schengen states with a common framework to assist in countering cross-border crime.

Biometric Residence Permits are provided for by a 2002 Regulation. They are an element of a uniform system of residence permits for third-country nationals throughout the EU. Permits evidencing leave for longer than six years must be in a discreet document containing the holder’s fingerprints and facial image. The UK has opted into this provision.

A 1995 EU Regulation provides a uniform format for short-term visas for third-country nationals. The UK is bound is it predates the Schengen opt out.

Common Asylum Rules

The European Union has adopted measures for a Common European Asylum System,   uniform protection status, measures for determining the responsible state and standards for reception conditions.

Measures have been adopted for common asylum standards. A number of measures including the Dublin Regulation, the EURODAC Regulation, the  Preprotection Regulation, the Receptions Condition Directive, the Qualification Directive and the Asylum Procedures Directive have been adopted. The  UK has opted out of these measures.

The Dublin II Regulation sets out the criteria and mechanisms for establishing the state responsible for asylum.

The Reception Conditions Directive establishes minimum standards for reception centres for asylum seekers in the EU. There are proposals for a recast directive.

The Qualification Directives sets minimum standards for the grant of refugee and subsidiary protection status to third-country nationals and stateless persons and the nature of protection to be given to them. It obliges member states to guarantee certain rights for persons who qualify for this status.

These include rights of non-refoulement, to a residence permit of a specified length, to a travel document, to employment education, medical care and access to programs facilitating integration into the host society.

The recast Qualification Directive was passed in 2011. The UK has not opted into the Recast Directive but is bound by the original directive.

The Asylum Procedures Directive establishes minimum procedures for the assessment of asylum claim. Assess requirements in relation to the provision of information and procedures, opportunities for a personal review, access to legal assistance and services and appeal rights. It establishes minimum requirements for the decision-making process. It  defines common standards for the application of certain concepts including “safe third-country” and “safe country of origin.”

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