The Asylum and Immigration Implications of Brexit. Dr. Ciara Smyth, School of Law, NUI Galway

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1 The Asylum and Immigration Implications of Brexit Dr. Ciara Smyth, School of Law, NUI Galway

2 Approach Focus here is on so-called third country national immigration and asylum Simplify scenario by removing inconvenient complications! Gradually problematise scenario Arrive at the key questions for discussion

3 A simplified scenario Blue = harmonised immigration and asylum zone Forget about Northern Ireland!

4 Harmonised immigration and asylum zone Title V TFEU, Area of Freedom, Security & Justice, Chapter 2 Schengen (Art 77) Control of irregular migration (Art 79) Facilitation of regular migration (Art 79) The Common European Asylum System (Art 78)

5 Schengen Abolition of internal borders and flanking measures for external EU border: Schengen Borders Code Visa Code Visa Regulations ( Black and White lists) Visa Information System (VIS) Schengen Information System (SIS) European Border and Coast Guard Agency

Control of irregular migration Returns Directive EU readmission agreements with third countries Directive defining and criminalising human smuggling Directive on

6 Control of irregular migration Returns Directive EU readmission agreements with third countries Directive defining and criminalising human smuggling Directive on preventing and combating trafficking in human beings and protecting victims Directive on residence permits for victims of trafficking Employers sanctions directive

Facilitation of regular migration Regulation on uniform format for residence permits EU Blue Card directive Students and researchers directive

7 Facilitation of regular migration Regulation on uniform format for residence permits EU Blue Card directive Students and researchers directive Family reunification directive Long term residence directive Single permit directive Seasonal workers directive Intra-corporate transferees directive

The Common European Asylum System Phase One Phase Two Proposed Phase Three Dublin & Eurodac Regulations ( Dublin II ) Reception Conditions Directive Asylum Procedures Directive Qualification

8 The Common European Asylum System Phase One Phase Two Proposed Phase Three Dublin & Eurodac Regulations ( Dublin II ) Reception Conditions Directive Asylum Procedures Directive Qualification Directive Recast Dublin & Eurodac Regulations ( Dublin III ) Recast Reception Conditions Directive Recast Asylum Procedures Directive Recast Qualification Directive Proposal for 2 nd recast Dublin and Eurodac Regulations ( Dublin IV ) Proposal for 2 nd recast Reception Conditions Directive Proposal for an Asylum Procedures Regulation Proposal for a Qualification Regulation - EASO Regulation Proposal for a recast EASO Regulation

9 Outcome of Brexit under simplified scenario UK leaves EU and develops own immigration and asylum law Ireland stays in EU and continues to apply EU immigration and asylum law Ireland becomes the EU s Western external border Necessitates flanking measures along Ireland s border with the UK (NI)

10 Complication 1 Neither Ireland nor the UK were ever fully part of the harmonised immigration & asylum zone Reflected in Protocols to the Lisbon Treaty, annexed to the TEU and TFEU: Protocol 19 on Schengen Protocol 21 on the AFSJ These allow Ireland & the UK to opt in (or not) to EU immigration and asylum measures

11 Harmonisation à la carte Result: an extremely complicated patchwork of not entirely overlapping opt-ins! And large areas of immigration and asylum a matter of domestic law in the 2 jurisdictions

12 Complication 2 The Common Travel Area Recognised in Protocol 20 annexed to TEU and TFEU on right of UK and Ireland to maintain border controls for as long as CTA maintained Importance of CTA acknowledged in BREXIT negotiating positions of UK, Ireland and EU

13 Question 1 Is it necessary to maintain the status quo? i.e. Greater alignment with UK than EU immigration and asylum policy Continued flexibility for Ireland viz. EU immigration and asylum measures

14 Well, its complicated CTA mandates continued flexibility re Ireland s participation in Schengen b/c Some measures would require a hard (external) border with NI and abolition of (internal) border control between Ireland and mainland EU But other immigration and asylum measures are different: Many have no cross-border implications Some provide for intra-eu mobility but high degree of MS sovereignty still Also, is UK pull factor so great that it would propel migrants from regularity to precarity?

15 Question 2 Given Brexit, should Ireland be closer to Brighton or Berlin? In other words, is greater Ireland-EU harmonisation on immigration and asylum desirable?

16 Again, it s complicated It s a matter of perspective: State perspective ( sovereignty reflex ) Human rights perspective EU integration perspective Economic, social & politico-cultural perspectives

20 years of migration policy: the path to a European Agenda on Migration

20 years of migration policy: the path to a European Agenda on Migration Hague Programme (2005-2009) March 2005 Stockholm Programme (2010-2014) May 2010 Lisbon Treaty December 2009 Communication "An open