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*BREXIT WRITING COMPETITION WINNER* - "Brexit & the Refugees in Calais: Navigating the Legal Jungle"

In the WINNING ARTICLE, Anna Nelson explores the effect that Brexit will have on the refugees in Calais and discusses whether or not the June 2016 result will be more onerous on Britain than had been anticipated by the Leave campaign...

"Brexit & the Refugees in Calais: Navigating the Legal Jungle" - Anna Nelson (4th year)

Britain has remained relatively unscathed by the current refugee crisis; geographically fortunate and a non-Schengen country, it has taken only a fraction of the incoming refugees despite the fact that many view Britain as their destination country of preference. Contrary to the rhetoric of the leave campaign, Brexit may actually burden Britain with a more onerous role in the matter. David Cameron suggested that leaving the EU would cause the refugee camp known as the ‘Calais Jungle’ to relocate from France to Kent, importing the very issue Britain has been trying to keep at bay.   His comments generated wide-scale fury, but in the wake of the vote to leave this threat is one which appears to be resurfacing – but this time from those across the channel.

A brief summary of the pre-Brexit legal situation regarding Calais is necessary in order to assess what the future may hold.  At present there is a system of juxtaposed border control in place between Britain and France; British border control operates in Calais and French in Dover.  This was brought about by the bilateral Touquet Treaty, in the context of the opening of the Channel Tunnel.  Thus, Britain is able to police and limit those who enter the UK.  Additional protection comes from the Dublin III Convention which entitles signatory states to return refugees to the first country they reached in Europe; a country which is known as the ‘safe third country’.

The first issue which must therefore be addressed is the post-Brexit position of the Touquet Treaty; without this Britain would not be able to exercise border control in France, and would be unable to stop refugees until they reached England.  It is this threat that causes some to fear an English version of the Calais Jungle may materialise.  Thus, there is British desire to maintain the treaty and the system currently in place. However, it is far from certain that this will occur.  Firstly, as is the nature of a bilateral treaty, either state has the right to unilaterally withdraw.  There are some prominent voices in France suggesting that withdrawal may be appropriate; there is belief that this treaty is politically increasingly hard to defend. As the ‘jungle’ is on French soil and France will continue to be under EU obligations with regards to supporting the refugees. Such obligations would no longer exist in Britain and Britain would perhaps be seen to be ceasing to pay their fair share of associated costs.

Without the existence of the treaty Britain would be left in an incredibly vulnerable position, and therefore it is in their interests to attempt to appease those in France who hold ill feelings on the matter.  The continued provision of monetary aid to bolster French solutions to the crisis may be the most effect way to do this however, only time will tell if such measures will be enough to stave off the potential for Brexit to spell the end for the bilateral agreement.

Though there had been some concerns raised about the legality of the Treaty,

given that it was concluded between two EU countries.  However, this argument appears not to hold any weight [1]. A potentially stronger argument is that at the time of conclusion of the Treaty, the border was not an external border of ‘Fortress Europe’ but rather an internal one.  However, the fact that Britain has never been a Schengen signatory and thus has always maintained stringent border controls is likely vitiate this concern.   

In addition to the issues which flow from the potential collapse of the Touquet Treaty there are some direct implications of Brexit.  As mentioned previously, as a member of the EU the rules of the Dublin III Regulations applied to the UK. Britain is a net beneficiary of this system;  very few refugees initially enter through Britain thus they send back many more refugees than they receive from other states.[2]  It is not a matter of absolute certainty that Britain would lose its involvement in the Dublin Convention – Switzerland are a party through an agreement with the EU.  However, this is likely due to the fact that Switzerland is a Schengen country and thus it would be complicated were they not covered by Dublin. Further, it is probable that the EU would not wish to make such an arrangement with the UK out of fear of making an EU exit look attractive to other member states.  Thus, Britain may actually become a ‘brighter beacon’[3] for refugees as it would be no longer possible to return them to a ‘safe third country’.

Much of the leave campaign focussed on how onerous EU obligations were with regard to immigration, however in reality Britain was in a fairly fortunate position on this matter as they had opted out of a number of relevant provisions; essentially they had already been able to select which initiatives they wished to engage with. Of the duties which the UK did have to accept, some – particularly those relating to refugees - are enshrined in international law with which we will have to continue to comply.  To suggest that Brexit will result in the total relocation of the Calais refugees to Kent is undoubtedly an exaggeration, yet it is undeniable that the situation is somewhat paradox when it comes to refugees: not only has Britain potentially lost the Dublin-based right to return refugees, but they have also seriously increased the possibility of having to welcome more refugees, as many politicians and scholars in France believe there it is no longer appropriate for the British border to remain in Calais. Perhaps the most ironic implication of all is that by voting to take decisions about Britain into British hands we have, in reality, left ourselves vulnerable to the political whims of the French in relation to their continued support of the Touquet Treaty and the EU in relation to the Dublin convention.

 


[1] iThe Implications of Brexit for Border Controls in Calais’ UK Migrant Watch 2016

[2].  A. McIntyre ‘Brexit & Asylum: Life after the Dublin Regulation’ Brick Court Chambers. 2016

[3] N. Nielson ‘Brexit Would Prevent the UK From Returning Asylum Seekers’ EUobserver 2016 

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