EU Law Analysis: Brexit, asylum and the rights of the child: clarification from the CJEU

Professor Steve Peers, University of Essex
What effect does Brexit have on
asylum issues? That was one of the issues in a recent judgment
of the CJEU, responding to a request
from the Irish High Court which apparently affected a number of cases pending
in Ireland. The judgment further addressed issues relating to the rights of
child asylum-seekers, and the degree of discretion a Member State has under the
EU’s Dublin rules on allocation of responsibility for considering asylum applications.
The case concerned a family of
three asylum-seekers. Two had previously held visas in the UK, and the third
was their child, born in the UK. When the UK visas expired, they travelled to
Ireland, and applied for asylum there.  The
Irish authorities decided that the UK was responsible for the claim, and
requested the UK to take charge of the asylum seekers; the UK accepted.
Also the Irish authorities
refused to apply the ‘sovereignty’ clause in the EU Dublin rules, which gives every Member State the
option to decide whether to take responsibility for an asylum application even
if that Member State would not normally be responsible for it. The asylum seekers
objected to this due to health issues with two family members and the imminence
of Brexit, and appealed to the High Court, which asked the CJEU several
questions about applying the Dublin
III Regulation
in these circumstances.
First, the CJEU ruled that it was
irrelevant that Brexit is pending, applying its previous
judgment (discussed here) in the context of the European Arrest Warrant,
that EU law remains fully applicable to the UK until Brexit Day. Equally,
the CJEU repeated its prior case law (see, for instance, Halaf)
that the ‘sovereignty’ clause left ‘absolute discretion’ to each Member State
to decide when to implement it. It followed that the Member State was not
obliged to apply this clause purely because Brexit is pending.
Second, the CJEU ruled that it
did not breach EU law for the decision on responsibility under the Dublin rules
to be made by one part of the Irish government (the Refugee Applications
Commissioner), while the decision on the sovereignty clause was left to another
part of the government (the Minister for Justice and Equality). In the Court’s
view, there was nothing in the Dublin III Regulation to require these decisions
to be made by the same part of the national administration, or require any
specific part of the administration to make those decisions. Indeed, the
Regulation refers to ‘authorities’ in the plural at several points.
Third, the CJEU
ruled that the general reference in the Dublin III Regulation to the ‘best
interests of the child’ did not limit Member States’ discretion as to whether
or not to apply the sovereignty clause.
Fourth, in the Court’s view there
was no right to a separate appeal against the decision not to apply the
sovereignty clause. Rather, the Dublin III Regulation only required an ‘appeal
against a transfer decision, or a review, in fact and in law, of that decision,
before a court or tribunal’. This did not ‘expressly’ extend to an appeal
against the refusal not to apply the sovereignty clause, and the Court refused
to find an implied right of appeal in such cases, because ‘the objective of the
rapid processing of applications for international protection and, in
particular, the determination of the Member State responsible, underlying the
procedure established by the Dublin III Regulation…discourages multiple
remedies’. The EU Charter principle of effective judicial
protection was not infringed, because the refusal to use the
sovereignty clause could always ‘be challenged at the time of an appeal
against a transfer decision’.
The Court added more on Brexit in
this context, noting that ‘the mutual confidence and presumption of respect, by
the Member States, for fundamental rights, continues in full force and effect
in [the UK] until the time of its actual withdrawal from the European Union.’
While an asylum transfer under the Dublin rules, following the Court’s case
law, cannot take place if ‘there are substantial grounds for believing that
that notification would result in a real risk of that applicant suffering
inhuman or degrading treatment in that Member State, within the meaning of
Article 4 of the Charter’, the notification of leaving the EU ‘cannot, in
itself, be regarded as leading to the person concerned being exposed to such a
Explaining its reasoning, the Court
referred to the previous case law on the assumption that States part of the
Dublin system – including non-EU States (Norway, Iceland, Switzerland and
Liechtenstein) – ‘observe fundamental rights, including the rights based on the
Geneva [Refugee] Convention and the 1967 Protocol, namely the principle
of non-refoulement, and on the ECHR, and, therefore, that those Member
States can have confidence in each other as regards respect for those
fundamental rights’, given that all these States are parties to the two
Conventions and the 1967 Protocol to the Refugee Convention. In
the continuing
participation of a Member State in those conventions and that protocol is not
linked to its being a member of the European Union. It follows that a Member
State’s decision to withdraw from the European Union has no bearing on its
obligations to respect the Geneva Convention and the 1967 Protocol, including
the principle of non-refoulement, and Article 3 ECHR.
Finally, the CJEU ruled that the Dublin III Regulation creates an assumption that the best
interests of the child mean that the child’s situation is indissociable from
that of its parents. Indeed, this is explicitly set out in the Regulation. The
Court set out the consequence that ‘it is only where it is established that
such an examination carried out in conjunction with that of the child’s parents
is not in the best interests of that child that it will be necessary to treat
the child’s situation separately from that of its parents.’
The Court’s ruling on Brexit is
unsurprising in light of its previous ruling on the UK remaining covered by EU
law until Brexit day. There are no direct
implications of this judgment for what happens after Brexit day as regards the UK and EU asylum law, particularly the
Dublin rules – an issue which I discussed recently here.
However, the Court’s reference to non-EU countries participating in the Dublin
rules on the condition that they are parties to the ECHR and the Refugee
Convention reaffirms that there is no EU law requirement for non-EU countries to
participate in the rest of EU asylum law in order to participate in the Dublin
system. On the other hand, UK withdrawal from the ECHR and/or the Refugee Convention
might make cooperation with the EU in this field (and, as regards the ECHR,
other fields) more difficult. 
Of course, the EU and UK might
nevertheless be unable to reach agreement on the UK’s post-Brexit (or
post-withdrawal agreement transition period) connection with the Dublin rules
for political reasons.  As I have pointed out already,
the EU/UK political declaration on their future relationship says nothing about
As for the sovereignty clause issue,
the Court’s ruling leaves intact the Irish government’s arrangements for
dealing with that clause separately from determination of responsibility for
asylum claims, and also leaves that government free to refuse to apply the
sovereignty clause without facing an immediate appeal. While that refusal could
still be challenged subsequently, as part of a challenge to a transfer
decision, it is not clear what substantive challenge could be made to such a
refusal, as a matter of EU law – given that the Court re-emphasised the total
discretion of a Member State when applying the clause, and added that even the obligation
to consider the best interests of the child has no impact upon that discretion.

However, presumably it should be
possible in this challenge to raise issues of national law as regards the exercise
of that discretion – to argue whether any national law procedural or
substantive rules governing the exercise of the discretion were correctly
applied, and in particular whether the decision was in compliance with the
national constitution.  

Finally, it should be recalled
that the 2016 proposal to redraft the Dublin rules in light of the perceived ‘refugee
crisis’ (discussed here)
would drastically curtail use of the sovereignty clause, in order to prevent further
decisions to take responsibility for large numbers of asylum-seekers (such as the
German government’s decision in 2015), due to the consequential impact of such
decisions on other Member States. It remains to be seen whether that proposal
can be agreed at all – and if so, whether Member States would be willing to
give up the considerable freedom of action which the clause gives them.
Barnard & Peers: chapter 26,
chapter 27

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