Navigating Uncharted Waters?

This contribution will briefly assess Ireland’s participation in the Common European Asylum System (CEAS) after ‘Brexit’. It will first review the way in which the ‘opt-in/opt-out’ arrangements still apply to Ireland, before considering how Ireland’s position might have evolved after Brexit. In this respect, it will feature some recent cases of the CJEU.

The focus on the CEAS appears relevant in light of the disturbing developments taking place in the UK with regard to asylum, and especially the recent policy to externalise the assessment of asylum claims to Rwanda. Entailing the physical removal asylum-seekers to this country, this policy has led to serious concerns for their fundamental rights voiced both by scholars (see here and here) and the European Court of Human Rights (see here and here). Although Ireland considers the UK to be a safe third country for refugees, it is likely that their respective asylum policies will diverge even further, owing to their now very different positions with respect to EU law and especially the CEAS.

Overview of the Irish exceptions to the AFSJ

One of the main reasons why Ireland and the UK have followed a similar approach when it comes to the EU migration policy – including asylum – has been their willingness to preserve the special arrangements existing between them as part of the Common Travel Area (CTA) going back to the early twentieth century. In this sense, article 2 of Protocol no. 20 on the application of certain aspects of article 26 of the TFEU to the United Kingdom and to Ireland mentions that they ‘may continue to make arrangements between themselves relating to the movement of persons between their territories’ designated as the ‘Common Travel Area’. This explains why in spite of UK’s withdrawal from the EU, Ireland has ‘prioritise[d] the CTA’ for geographical, historical and political reasons (see Imelda Maher here).

While the Protocol on Ireland and Northern Ireland and the Trade and Cooperation Agreement between the EU and the UK intend to leave the CTA ‘untouched’ by the consequences of Brexit, they hardly address the way in which third-country nationals – defined as neither EU nor British or Irish citizens – may be affected (see Tobias Lock here).

After the adoption of the Amsterdam Treaty, migration-related issues were transferred from the ‘third pillar’ on cooperation in the field of Justice and Home Affairs established by the Maastricht Treaty, to the ‘first’ or ‘Community pillar’ in Title IV of the Treaty establishing the European Community – now Title V of the TFEU on the Area of Freedom, Security and Justice (AFSJ). In addition to migration, the AFSJ now includes judicial cooperation in civil and criminal matters, and police cooperation.

The Amsterdam Treaty also led to the integration of the Schengen Acquis into the framework of the EU through the adoption of a separate protocol. To accommodate the political concerns of some Member States, the Amsterdam Treaty allowed three of them not to participate (fully) to the new Title IV and/or the Schengen Acquis. This was the case of Ireland and the United Kingdom – which followed a similar position – and Denmark. For these three Member States, all of whom incidentally joined the EU at the same time, separate protocols were added to determine the extent of their participation in this new policy framework.

These protocols now correspond to Protocol no. 21 on the position of Ireland – and formerly the UK – in respect of the AFSJ and Protocol no. 22 on the position of Denmark. The position of Denmark is more straightforward as it largely corresponds to a complete ‘opt-out’ from measures adopted under Title V. Indeed, Ireland and the UK were concerned by the very objectives of the measures pertaining to the AFSJ, while Denmark was rather concerned with their legal status. This explains why Denmark has participated in some aspects of the CEAS on the basis of international law (for example, see here), whereas Ireland – and previously the UK – could opt into individual measures based on Title V depending on their subject matter. They were also given the opportunity to participate in some measures of the Schengen Acquis as currently provided in Protocol no. 19.

Ireland and the UK largely followed the same approach in the way in which they used their options under the ‘opt-in/opt-out’ arrangements. The position of Ireland may be described as slightly more open to opting into a broader range of AFSJ measures. This essentially stems from Declaration no. 56 to the Treaties on Article 3 of Protocol no. 21. In this Declaration, Ireland clearly expressed its commitment to the AFSJ and its intention to ‘participate to the maximum possible extent in measures in the field of police cooperation.’ Also mentioned in Declaration no.56, Ireland may renounce the Protocol altogether, so that ‘normal treaty provisions’ would apply to it (article 8 of Protocol no. 21).

Protocol no. 21 concerns the whole AFSJ, thus including asylum. In the EU terminology, ‘asylum’ refers to ‘international protection’ as part of the CEAS, comprising: statutory asylum – following the criteria of the 1951 Geneva Convention on the Status of Refugees – subsidiary protection and temporary protection (article 78 TFEU).

Under this Protocol, Ireland and the UK were granted a general ‘opt-out’ from all of these issues. However, Ireland has the possibility to ‘opt-into’ each measure, according to article 3 of the Protocol. To do so, it may notify the President of the Council of its intention to participate in its adoption within a period of three months after a proposal or initiative is presented at the Council. If Ireland opts into a proposal, then the Council tries to agree on the proposal with its participation. When this is not possible, the Council may adopt the measure without Ireland’s participation. Even if it does not opt into a proposed measure within the deadline – or if it opted in but the measure was adopted without it – Ireland may still join in later under the general conditions applying to enhanced cooperation.

An addition of the Lisbon Treaty, the new article 4a regards the position of Ireland when a proposal is made to amend a measure by which it is already bound. Although the protocol applies in such cases, it is possible for the Council to determine that the non-participation of Ireland in the proposed amended measure makes the existing measure ‘inoperable’ and to urge Ireland to notify its intention to opt into the proposal while it is being discussed or after its adoption. If Ireland fails to do so after a period of two months, the existing measure ceases to apply to this State. The Council may also impose some financial sanctions on Ireland as a result of the cessation of its participation in the existing measure. However, Ireland may always opt into the original act and its amending measure after the latter was adopted.

Article 4 of Protocol no. 19 on the Schengen Acquis gave Ireland and the UK the possibility to participate in only part thereof, subject to a favourable unanimous decision of the Council. In practice, the Council accepted the UK’s application for partial participation in Schengen in 2000, and the parallel Irish application in 2002. The partial participation of the UK took effect in 2004. In the case of Ireland, the Council only adopted an Implementing Decision in December 2020 putting into effect the provisions of the Schengen Acquis on data protection and on the provisional putting into effect of certain provisions of the Schengen Acquis in Ireland.

Ireland’s participation in the CEAS: state of play and future perspective

Ireland has opted into most of the ‘first-phase’ measures establishing the CEAS, including: the ‘Dublin II’ Regulation establishing the criteria and mechanisms for determining the Member State responsible for examining asylum applications, Directive 2004/83 (first ‘Qualification’ Directive) and Directive 2005/85 (first ‘Procedures Directive’). Interestingly, Ireland did not participate in the adoption of the first ‘Reception Conditions’ Directive (Directive 2003/9/EC) because of the recognition of a right to work for asylum seekers (see here) – but the UK did.

On the other hand, Ireland has opted into the recast ‘Reception Conditions’ Directive (Directive 2013/33) in 2018, a change welcome by many including Liam Thornton. Also, while Ireland did not initially participate in the adoption of the Temporary Protection Directive (Directive 2001/55), it subsequently requested its participation in this instrument on the basis of enhanced cooperation. This was granted in a Decision of the European Commission of October 2003.

Steve Peers has observed that ‘the UK and Ireland have opted into: most or all of the first-phase measures establishing the CEAS but only a few of the second-phase measures…’ In this sense, he described the approach of the two Member States as ‘largely but not entirely consistent’. This has led to some inconsistencies as illustrated in a case of December 2020, M.S. and Others v Minister for Justice and Equality (C-616/19). In this case, the Irish authorities were deprived of the possibility to deem applications for international protection inadmissible on the basis that the applicants had already been granted subsidiary protection in Italy. Under EU law, this could have only resulted from the combined application of the ‘Dublin III’ Regulation (Regulation 604/3013) – which succeeded to the ‘Dublin II’ Regulation – and the recast ‘Procedures’ Directive (Directive 2013/32). Ireland had opted into the ‘Dublin III’ regulation but it had decided not to opt-into the recast Procedures Directive. This resulted in a situation that was inconsistent with the CEAS ‘due to the choices made by Ireland’ as noted by Advocate General Saugmandsgaard Øe in his Opinion (paragraph 75). While admitting that this situation might have stemmed from Ireland’s choice under Protocol no. 21 (paragraph 46), the Court gave a solution to this legal ‘dead end’ by ruling that this Member State could still introduce such an inadmissibility condition in its national law. To reach this conclusion, the Court relied on the ‘logic’ and objectives of the CEAS, mentioning the fundamental importance of the principle of mutual trust on which the whole system is based (paragraphs 45-48).

While this case illustrates the tensions created by the asymmetric participation of Ireland in the CEAS, it is unlikely that the Court would have found otherwise even before Brexit. The two following cases might provide for more tangible illustrations of the impact of Brexit in relation to the – so far – flexible participation of Ireland in the CEAS.

Although it was ruled before the UK formally left the EU, the first case clearly depicts the situation that Ireland might face as a direct consequence of Brexit. In this judgment of January 2019 (M.A. and Others v The International Protection Appeals Tribunal and Others, C-661/17), the Court had to address a question on the functioning of the Dublin mechanism concerning a Member State – the UK – that had notified its intention to leave the EU. In this case, the applicants had applied for asylum in Ireland while the UK was the Member State responsible for examining their claim following the ‘Dublin’ criteria. The applicants sought to challenge their transfer to the UK on grounds relating to the withdrawal of this State from the EU, leading the referring court to ask the CJEU about the concrete implications for Ireland and especially whether this Member State would have to examine the applications for international protection. In its decision, the Court confirmed that EU law had to apply until the actual withdrawal of the UK meaning that there was no concrete impact for Ireland – at least thus far.

The second case might appear as a ‘sequel’ to the first judgment, although it focuses on different issues. Joined cases KS and Others v The International Protection Appeals Tribunal and Others (C-322/19 and C-385/19) concerned the exclusion of asylum-seekers’ from access to the labour market – guaranteed to them by article 15 of the recast Reception Conditions Directive – on the grounds that a transfer decision had been adopted in their regard. With the exception of one of them, all the applicants were subject to a decision to transfer them to the UK from Ireland following ‘Dublin’ rules. In its judgment, the Court confirmed that such asylum-seekers also benefitted from the right to work under Directive 2013/33 on the basis that there is only one category of applicants for international protection in the CEAS (paragraphs 61-73).

Apart from this key conclusion, the Court provided very interesting guidance on the impact of Protocol no. 21. One of the referring courts had asked whether a national court should take into consideration the recast Procedures Directive – that does not apply to Ireland – to interpret the recast Reception Conditions Directive, which Ireland has decided to implement. The Court gave a positive answer relying on the need to ‘ensure a uniform interpretation and application’ of the relevant Directive (paragraph 59). The Court especially mentioned that the two instruments ‘belong to the same body of law’ meaning that the provisions of the Procedures Directive ‘constitute relevant and necessary contextual elements’ to interpret the Reception Conditions Directive (paragraph 58). Albeit formulated in a rather discreet way, this conclusion of the Court may have a powerful impact on Ireland’s opt-in/opt-out practice in the future. Indeed, similar to the Court’s findings in M.S., in K.S., the Court clearly prioritised the coherence of the CEAS over the arrangements existing in Protocol no. 21.

It is too early to assess the full impact of Brexit on Ireland’s variable participation in the CEAS. Not only because this would require to take into account its implications for the whole AFSJ but also because a deeper attention should be paid to internal political dynamics that can hardly be covered in such a narrow space. However, the recent legal and judicial developments briefly presented here point to somewhat unexpected directions that may be attributed at least in part to Brexit. The first one consists in an increasing functional convergence between the CEAS and the Irish position under Protocol no. 21 with the result that measures of the CEAS are somehow applicable to Ireland even in the absence of an explicit opt-in. Apart from the cases mentioned in this contribution, another clear example is the SN and SD (C-479/21 PPU) case on the European Arrest Warrant. Conversely, Ireland might face more tensions between its special arrangements with the UK suggesting the need for them to develop a common approach to migration and its commitments resulting from EU membership. In light of Brexit – and the relatively isolated position of Ireland in the AFSJ – it is unclear how these tensions will find a resolution fully consistent with both the CTA and the AFSJ.