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The UK has a special status in relation to the EU’s asylum and migration programme. The UK chooses to participate in some EU asylum and immigration measures and not others. The Directives in this area, in which the UK has chosen to participate, set minimum standards on issues including the process by which asylum applications are determined and the provision of accommodation and support for asylum applicants. The UK also participates in the Dublin Regulation, which sets out the rules on Member States’ responsibility for examining an asylum claim. The present EU migration crisis has led the Commission to propose a number of additional measures for EU action. The UK has made it clear that it is prepared to play a major role in practical cooperation with other Member States to tackle all aspects of the crisis. Where changes to EU law are proposed, the UK will decide whether it is in the national interest to opt in, on a case-by-case basis. Where the legal instrument brought forward concerns the Schengen border-free area, the UK does not participate.

18.13 Asylum is granted to people fleeing persecution or serious harm in their own country who are in need of international protection. The right to asylum is recognised in the 1951 Geneva Convention relating to the status of refugees.128 _{The EU can make laws to develop a}

harmonised approach on asylum and the protection of refugees, in accordance with the 1951 Geneva Convention.

18.14 The EU has agreed a number of rules relating to asylum and immigration into the EU of nationals from third countries. The UK can choose to participate in these rules if it wishes, but does not have to (for more detail, see the section on justice and home affairs measures). 18.15 EU laws on asylum and migration are usually agreed jointly by the European Parliament and Member States in the Council subject to Qualified Majority Voting.129

126 _{Article 10 of Protocol (No. 36) to the EU Treaties.}

127 _{See Council Decision 2014/857/EU and Commission Decision 2014/858/EU. For full details see Command} Paper 8671 on the Decision pursuant to Article 10, Protocol (No. 36) to TFEU, July 2013.

128 _{1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of} Refugees.

Non-EU migration

18.16 In general the UK has chosen not to participate in measures relating to third country migration, although it does participate, for example, in some EU agreements with third

countries on the re-admission of their own nationals illegally present in each other’s respective territories. As the UK remains outside the Schengen border-free area, EU law obligations in this field, such as regulations on the right of stay and entry of people from outside the EU, do not apply to the UK. 

Asylum

18.17 The body of EU laws on asylum are collectively known as the Common European Asylum System (CEAS). Between 1999 and 2005 the asylum legislation adopted by the EU could only set minimum standards. The UK opted into all asylum measures in the first ‘minimum standard’ phase of the CEAS but did not opt into revised versions of the Qualification, Reception or Procedures Directives.

18.18 Since the entry into force of the EU Treaties, asylum legislation can now set common or shared standards to be followed by Member States. Laws on asylum adopted under this later framework form the ‘second phase’ of the CEAS.

18.19 The UK has opted into the measures listed below. Once it has chosen to opt into a measure, the UK has to comply with its terms:

• determining which Member State is responsible for examining an asylum claim lodged in one of the Member States. This allows the UK to send asylum applicants to other Member States which have primary responsibility for the applicant (which may be the Member State where the applicant first claimed asylum), as well as obliging the UK to accept applicants from other Member States when it has primary responsibility (the Dublin Regulation);

• fingerprinting and the establishment of a database of asylum applicants and migrants entering the EU illegally (the Eurodac Regulation);

• practical cooperation through the creation of a European Asylum Support Office and support for Member States facing particular pressure (the EASO Regulation);

• guarantees for asylum applicants on their access to accommodation, education and healthcare whilst their claims are under consideration (the Reception Directive);

• criteria for determining refugee status or subsidiary (humanitarian) protection and the rights attached to each status if an asylum applicant is recognised to be in need of protection (the Qualification Directive);

• procedures to ensure applicants, including children and persons with special needs, can access an asylum process and provide information to the national asylum authorities about their claims (the Asylum Procedures Directive);

• mechanisms to give temporary protection in the event of a mass influx of displaced persons (the Temporary Protection Directive); and

• funding set up to promote the efficient management of migration flows, as well as the implementation, strengthening, and development of a common EU approach to asylum and migration. The UK is required to contribute financially to this fund, but has the right to receive funding for migration-related activities, including those

it carries out independently of the EU (for example, funding towards the cost of resettling refugees).