This article first appeared in ILPA Monthly September 2020. Annette Elder is a solicitor at Elder Rahimi Solicitors and an executive committee member at Refugee Legal Support.
While the Dublin Regs have undoubtedly failed in achieving their primary purpose as a burden sharing mechanism within Europe, the loss of their inter-state procedural accessibility and more flexible evidential requirements will have a devastating impact on the ability of refugees in Europe to seek reunification with family members in the UK via legal routes.
How many families will be affected? Focusing on Greece, where both Safe Passage and Refugee Legal Support have a presence, an annual average of 921 applicants (1) will need to find alternative routes to join their family members in the UK after family reunion requests are no longer available.
The key feature of the Dublin system is that it guarantees that applications for international protection (including subsidiary protection) are examined by a single Member State determined via a hierarchy of criteria. The procedure is state-to-state, and a significant proportion of applications are made without the applicant being legally represented or having to take any steps aside from providing documents which evidence the family relationship. The evidential criteria under the Dublin system are more flexible than practitioners who are used to making UK Immigration Rule applications will be accustomed to.
The most relevant categories of application for family reunification purposes are the following articles of the regulations:
• Article 8.1 - Where the applicant is an unaccompanied minor, the Member State responsible shall be that where a family member or a sibling of the unaccompanied minor is legally present, provided that it is in the best interests of the minor
• Article 8.2 - Where the applicant is an unaccompanied minor who has a relative who is legally present in another Member State and where it is established, based on an individual examination, that the relative can take care of him or her
• Article 9 - The applicant has a family member in the requested member state who is a beneficiary of international protection
• Article 10 - The applicant has a family member in the requested Member State whose application for international protection has not yet been the subject of a first decision
• Article 16 - Where, on account of pregnancy, a new-born child, serious illness, severe disability or old age, an applicant is dependent on the assistance of his or her child, sibling or parent legally resident in one of the Member States, or his or her child, sibling or parent legally resident in one of the Member States is dependent on the assistance of the applicant
• Article 17.2 - To bring together any family relations, on humanitarian grounds based in particular on family or cultural considerations, even where that other Member State is not responsible under the criteria laid down in Articles 8 to 11 and 16 - [the discretionary clause]
‘Family members’ and ‘relatives’ are defined in Article 2. Where the relationship existed in the country of origin, the following family members are included (2) :
• Unmarried partners in a stable relationship
• Minor children (below age of 18) including adopted children (unless the child is married);
• Parents or responsible adults (where the family member is an unmarried minor).
The definition of relative includes:
• Adult aunts or uncles; and
In 2018 (representative of average numbers in recent years) the UK received a total of 1,940 Dublin requests (mostly Take Charge Requests (TCRs)) and sent 5,510 requests (mostly Take Back Requests). Greece made 731 requests to the UK (38% of the total). Of these, 123 i.e.
16% were in respect of minors present in Greece.
Almost all of the Greek requests to the UK over recent years have been TCRs falling under one of the following Dublin articles.
Of particular note, over 60% of potential applicants relate to individuals whose family members have
refugee status in the UK. From 1 January 2021, as things stand, all applicants will need to make applications via the UK entry clearance process, navigating the onerous online procedures and subject to the rigid evidential requirements.
Practitioners in the UK will immediately appreciate the challenges that potential applicants will face in making Immigration Rule applications, not to mention the additional burden of paying Home Office application fees and the health surcharge. From a practitioner’s point of view, family reunification applications can be particularly demanding in terms of communicating and working with both family members in the UK and a client located in another country, who is often living in challenging conditions. Since LASPO came into effect in 2013, family reunification work has been out of scope for legal aid and an application for Exceptional Case Funding is needed, which inevitably acts as a deterrent to practitioners taking on this work. In acknowledgment of the difficulties in accessing representation, organisations such as the British Red Cross and Refugee Action have received dedicated funding for family reunification work. Despite this, access to representation remains an acute issue which, come next year, will only be exacerbated when hundreds of additional applicants will need to make online applications using the UK entry clearance procedures.
What hope is there for a replacement of Dublin III family reunification?
As far as we understand, the European Commission currently does not have a mandate to negotiate a replacement to family reunification under Dublin III.*(4) In May 2020, the UK Government published a draft negotiating document setting out their proposal for the future of family reunion, which covers UASCs only. This is an inadequate and flawed text primarily because it proposes an entirely discretionary system with no mandatory obligations, timeframes or reference to individual rights. Unlike Dublin III, the proposal also has no provision for asylum seeking adults and accompanied children to join certain family members in the UK (Articles 9, 10 and 16 of Dublin III). There is also no discretionary/humanitarian clause (Article 17.2), which under Dublin III has allowed Member States to bring together other relations such as cousins.
In any event, it has recently been reported that the EU has refused to consider the UK’s draft proposal, noting that it adds little value and is not within their mandate. Given their lack of mandate, it seems extremely unlikely that any EU-UK agreement will be reached on the issue.
In June 2020, with Safe Passage’s support, a cross-party group of MPs tabled an amendment to the Immigration Bill to protect family reunion rules under Dublin III, but the Government voted it down. We now hope the Government will be defeated when the Bill returns to the House of Lords, but this is far from guaranteed.
While Safe Passage, RLS and other organisations will continue campaigning for an adequate replacement to Dublin III family reunification to be implemented into UK law or negotiated with the EU, immigration practitioners should be prepared for a post-31.12.2020 scenario in which we are left with the current immigration rules and outside the rules entry clearance applications under Article 8 ECHR.
To grasp what this will mean for asylum-seekers in Europe with family members in the UK, it may be useful to provide a case study of a pre-Dublin III and potential post-Dublin III scenario.
Farid is a Syrian child currently in a refugee camp in Lesvos, Greece. He registered his asylum claim in March 2020. He wished to be reunited with his older brother who is a refugee in the UK. The Greek authorities identified he had an older brother in the UK and submitted a Take Charge Request to the UK in May 2020. Once the request was made, the Home Office sent the UK-based older brother a Sponsorship Undertaking Form to complete with basic details of his and his younger brother’s circumstances and relationship. Safe Passage assisted the brother to complete this form, and ensured that conclusive evidence of the family link was provided. Under Dublin III, the UK authorities must accept the Take Charge Request within 2 months, i.e. by July 2020. The Greek authorities must then arrange and book a flight for Farid to come to the UK within 6 months. They will issue him with a laissez passer (one way travel document) and flight ticket.
If a child like Farid arrives in Greece in the potential post-Dublin III scenario, he would be in a very different situation. The Greek authorities would not have the same obligation nor mechanism to make a request to the UK Government for him to be reunited with his brother. He may receive assistance from organisations on the ground, but the onus will be on Farid and his older brother to ensure an application is made. Farid may be eligible to make an application under paragraph 319(x) of the Immigration Rules, providing he meets the requirements. However, the application process is much more difficult than that of Dublin III and the evidential burden is much higher. As well as evidencing the family relationship and Farid’s older brother’s status in the UK, a number of other requirements will need to be demonstrated including that: there are ‘serious and compelling family or other considerations which make exclusion of the child undesirable’; that Farid can be maintained and accommodated adequately by his older brother without recourse to public funds; and that Farid is not leading an independent life.There is an application form and a fee. There is the difficulty of Farid not having a valid ID. There is the need for Farid to book, travel to and attend a biometric appointment. It could take at least 6 months, if not longer, for a decision to be made on his application. There is then the possibility that the application will be refused by the Home Office and need to be appealed, whereas it would have been straightforward under Dublin III. Delays in entry clearance appeals being listed prior to the Covid-19 disruption could often exceed one year.
As evident from the above discussion, legal representation will become essential if all UASC and separated families in Europe are required to navigate the process of making entry clearance applications under the Immigration Rules.
Unfortunately, most family reunification cases under Dublin III are not as straightforward as Farid’s.
Conclusive evidence of the family link is often not available and the Home Office regularly make incorrect and unlawful refusals of Take Charge Requests. Nonetheless, when this occurs, the sending state’s Dublin Unit has three weeks to put forward further evidence and ask that the case be re-examined (known as a ‘re-examination request’). It is also possible to challenge the decisions in the UK via judicial review and request that the process be expedited.
In a post-31.12.2020 scenario, we may be left with a situation where the vast majority of family reunification applications from asylum-seekers in Europe with UK-based family members will be refused and need to be appealed. As we are all aware, it can take over a year for an entry clearance appeal to be listed.
The reason that many of these applications will be refused is not simply down to the stringent requirements of and the high evidentiary bar under the Immigration Rules Applications will also be refused because the vast majority of applicants who are currently eligible for family reunification under Dublin III are not eligible under the family reunification provisions in the UK Immigration Rules. Many applicants will therefore be in the territory of making Article 8 applications outside the rules. Even in the case study above, if Farid’s brother did not have limited leave to remain in the UK as a refugee but had indefinite leave to remain or a different immigration status, he would not meet the rules and any prospect of family reunion being achieved would require an outside the Rules application (with all the associated difficulties of such applications and, ultimately, the inevitable need for an appeal).
So what can we do as practitioners?
Prior to the end of this year, practitioners should ensure that clients with asylum-seeking family members in Europe - eligible for family reunification under Dublin III - are aware of the upcoming changes and the need to act promptly. In particular, Take Charge Requests must be submitted by the sending state to the UK on or before 31.12.2020. After this, family reunification under Dublin III will no longer be an available route to the UK.
If your practice includes family reunification work, you should ensure that you are signed up to the ILPA Refugee Working Group and the dedicated Google Group Families Together Group (RFR) administered by the Red Cross to view and share updates, queries and experiences of practice. It will be particularly important for practitioners to share experiences of entry clearance applications when we are post-31.12.2020.
Safe Passage is also working actively on family reunification cases to the UK from Europe and is able to advise other practitioners on the best strategic approach for cases going forward. The relevant contact email address is: email@example.com. The RLS legal clinic in Athens can also offer support and representation for potential applicants located in the Attica region: firstname.lastname@example.org .
Article by Isabella Mosselmans (below left) and Annette Elder (below right).
1) Based on recent years’ statistics.
2) The requirement that the family relationship must have pre-existed is dispensed with in relation to Art 9, “Family members who are beneficiaries of international protection”.
3) The 2019 breakdown is similar.
4) The political declaration set the framework for what can be negotiated. The EU Commission’s mandate to negotiate is based on this. There is no mention of family reunification or unaccompanied asylum-seeking children. The most relevant paragraph is para 114 – illegal migration – but it would be extremely difficult for any of the three points under this to be interpreted to encompass family reunification/UASC.
Statistical data sourced from: http://asylo.gov.gr/en/wp-content/uploads/2020/03/Dublin-stats_February20EN.pdf • https://www.gov.uk/government/statistical-data-sets/asylum-and-resettlement-datasets