Examination of witnesses
Dr Natascha Zaun and Rossella Pagliuchi-Lor.
Q1 The Chairman: Welcome to you both. Thank you very much for giving evidence to us. Dr Zaun’s students are particularly welcome. We are very glad to have you at today’s hearing.
We have just started a short inquiry into the asylum system, particularly the co-operation between the UK and the EU in different Brexit scenarios, so we are very grateful that you have both come to give evidence to us. Can I ask you to introduce yourselves? When doing so, perhaps you could give your names, so that we know exactly how to pronounce them when we ask you questions. I will then begin by asking a rather more general question that I know interests the Committee.
Dr Natascha Zaun: My name is Natascha Zaun, but it is fine to say “Natascha Zawn”. That is what I usually say.
The Chairman: I ought to say that the acoustics are not brilliant here. If you could speak reasonably slowly and loudly, that would be very helpful to us.
Dr Natascha Zaun: I am an Assistant Professor at the European Institute of the London School of Economics. I work specifically on EU asylum policies. I have done quite a bit of research on the EU Directives in this area. I have also done some research on Dublin, especially the negotiations on it and its implementation. I have been part of an expert committee that worked on a study for the European Parliament on this precise topic. My core area of expertise is the dynamics with member states and the strategic interests of the different actors involved, and what could be a likely outcome of the negotiations with the EU on this.
The Chairman: Thank you. That is extremely relevant.
Rossella Pagliuchi-Lor: Good morning, everyone. My name is Rossella Pagliuchi-Lor. I am the newly arrived UNHCR representative to the UK. I am afraid that I cannot claim such impressive experience in relation to this specific issue. I have just arrived from our headquarters in Geneva, where I was the Director of External Relations. I have worked in a variety of different countries in the past: Iraq, Pakistan, Kenya and so on. I have worked mostly in what the UNHCR would call protection, but protection takes a very different shape depending on the country in which you are posted.[1]
Q2 The Chairman: Thank you. That is very helpful and relevant.
When we were talking about the subject just before you came in, one of the questions we were asking ourselves, and that we thought we had better ask you, was why Britain is such an attractive place for asylum seekers. Is there a pull factor? Do they come here because of employment or whatever, or are they pushed by traffickers who say, “We will help to get you to Britain”? What is the motivation behind it all?
Rossella Pagliuchi-Lor: There is probably no single factor that encourages people to choose one destination rather than another. Like all of us, refugees tend to take rational decisions on the basis of the information available to them. The UK has certain attractions, at least for certain refugees, in relation to language and access to education and the job market. That is what you get for having so successfully encouraged all of us to learn English.
A very important element that concerns the UK is family reunion. The possibility, or the hope, of reuniting with members of one’s family, restricted or extended, is a very important element in the decision to choose a country. Allow me to provide a couple of figures to put a context to it.
The Chairman: Please do. It is very helpful to have the figures. If there are figures that you would like to send us afterwards, that would be extremely helpful as well. That is another point we were discussing this morning.
Rossella Pagliuchi-Lor: I will do so, but I will provide a couple of figures for context. In the UK, as in just about every other country where I have served, there is a certain tendency to overestimate the number of people who come to that country relative to other countries. In 2017, according to our Global Trends report, there were 93,000 new applications in France, 127,000 in Italy, 198,000 in Germany and 33,500 in the UK.
The Chairman: I am sorry, I did not quite catch the last part.
Rossella Pagliuchi-Lor: There were 93,000 in France, 127,000 in Italy, 198,000 in Germany and over 33,000 in the UK; I am rounding off. In 2018, according to the latest Home Office figures, there were 28,000 new applications in the UK. I am not even talking about what happens outside Europe, where there are countries that have well over 1 million refugees. They are often countries that have far smaller populations than any of the European countries I have mentioned, and of course immeasurably smaller resources. To put it in context, you are a country that receives a significant number of applications, but you are not the country that receives the most applications.
The Chairman: That is very helpful.
Dr Natascha Zaun: I very much echo what Rossella said. In research, there is a big debate as to why asylum seekers, or migrants in general, choose certain destination countries. Factors that researchers found might have an impact include, obviously, where people have family or networks, or where other people from their city, town or country live. Language or colonial ties play an important role, as does the overall human rights and economic situation. It is not necessarily about benefits and things like that. It is more about how a country is doing: is this a place where I could potentially find work? Those factors have an important role.
In addition, in the 2015 situation, when lots of migrants and refugees were coming to Europe, the UK was one of the countries that did not receive that many applications, compared with countries such as Germany, Sweden, Austria, Italy and Greece.
The Chairman: That is very helpful.
Q3 Baroness Janke: Can you tell us what kind of future co-operation we should seek to achieve with the EU? What level of asylum co-operation are we likely to be able to achieve after Brexit?
Dr Natascha Zaun: Given the preferences that the UK has stated in different contexts, such as the White Paper on the future [relationship], I think something not so different from what we currently have, although it would be different, would be quite interesting for the UK. The UK takes part in the Dublin Regulation, which is an instrument to stop the secondary movement that is, I understand, a key concern for the UK. However, the UK is not part of the second phase of the harmonisation of the Directives, which concerns rights, where the UK always wanted to have some leeway, to enable it to maintain some national practices on detention, for example. The UK already has a lot of leeway. It has a policy that more or less reflects what it would like to have.
There are examples such as the Norwegian model, which is similar to what the UK has. That involves no co-operation on rights, but co-operation on Dublin, although there are always some concerns about rights. That would be quite similar. Another option would be more selective participation in Dublin—for example, regarding certain migrant groups in the area of family reunification. Again, I assume that the UK’s preference would be not just to have family reunification, because that is a route by which a lot of people are sent to the UK. The UK probably also wants to send asylum seekers back to first-entry countries, which is a key concern in maintaining Dublin.
Proposals are being discussed for bilateral agreements on asylum responsibility sharing, or something like a mutual understanding regarding the idea that the UK and the EU would consider each other to be safe third countries. That would not necessarily imply returns, which, I understand, is quite a concern for the UK. Something along the lines of the Norwegian model could be quite interesting for the UK. It could be realistic, given that there is some precedent: namely, Norway.
Rossella Pagliuchi-Lor: I agree that the UK needs a continued framework of co-operation with the EU. Whether you are inside or outside the European Union, the reality is that you will remain part of the broader geographical area and, therefore, will be very much impacted by the regional flows that we see across the continent. I think you will need to continue to be part of some kind of co-operation agreement.
Both the European Union and the UK have taken on obligations as regards the importance of the 1951 Geneva Convention and human rights law. They share common values and already have years of co-operation. It is true that, as my colleague was saying, the UK has opted out of certain components of the Common European Asylum System, but, broadly speaking, you have very comparable standards, both procedurally and substantively. I see no reason why all of that should not be brought to bear in a new framework, if that is required by the conditions of your leaving the European Union, that can build on existing content. As I see it, none of that needs to change dramatically. Of course, it will be down to whatever negotiations the UK Government undertake with the European Union. We are not privy to those negotiations, of course, so I would not dare to speculate.
The UK has a very long and proud tradition of offering sanctuary. It has been going on for centuries. Your experts were leading members of the group that drafted the 1951 Geneva Convention. You have been very strong supporters in the development of the global compact on refugees. You are a leader on resettlement in Europe. There is really no reason why that should or would change.
Baroness Janke: I see why you are saying that current arrangements are desirable, but how likely are we to be able to benefit from current arrangements while not necessarily going further on the allocation issue with other countries, agreeing to take quotas and so on? Do you not feel that the two would go together?
Rossella Pagliuchi-Lor: I do not think that is a question I can honestly answer without a crystal ball, not being privy to the conversations. In any negotiation process, issues will not be dealt with on a singular, individual basis; it will be the outcome of a number of gives and takes that have to take place across the board. At least, that is normally the way negotiations go.
Certainly, we would like to see an arrangement that continues to take into account the current Dublin framework. That is not because the Dublin framework is perfect. We think it is a great idea, but it does not yet deliver what it could, for a number of reasons. However, it is a solid framework. We believe that there would be an interest for all parties concerned in using it as a basis for further negotiation.
Allow me to say that there is sometimes a tendency to see the Dublin framework simply as a way to get rid of people, if I can put like that. It is not just that. It is not just about returning people; it is about ensuring that everyone has a right, and can exercise that right, to see his or her case and claim properly adjudicated. It is not just about pushing responsibility away; it is about determining where responsibility lies. That is an important element. It is also a way of ensuring that certain legitimate concerns of claimants, such as family reunion, are properly taken into account in the decision on where claims ought to be examined.
The Chairman: We will come to some of the Dublin III issues in a second. Do you want to add anything on this point, Dr Zaun?
Dr Natascha Zaun: I see where the concerns regarding relocation come from, because the UK would no longer be part of the Council and no longer able to affect the outcome of Dublin IV. If there were something like the Norwegian model, the UK could make an agreement with the EU after the Dublin Regulation had been decided. The UK could see what the outcome was going to be and decide afterwards whether it would join.
In addition, current debates at EU level about relocation and a quota system do not look successful. You never know, but it is not very likely that there will be a mandatory corrective allocation mechanism in the Dublin IV Regulation. Instead, there will be more voluntary forms. The UK might be expected to contribute, but it would be voluntary. It would perhaps be based on pledges, or something like that.
The Chairman: As I said, we will come back to Dublin III. Lord Watts has a question that he wants to ask first.
Q4 Lord Watts: I think our witnesses have started to answer it. I will be a bit more specific, if I can. Do you think that minimum standards for protection, assistance and future alignment in qualification for international protection will be important factors in negotiating a new framework between the UK and the EU?
Dr Natascha Zaun: The UK has implemented the first phase of those rights in national law. Even when the UK leaves, they will be maintained as part of national UK law.
In addition, as Rossella said, it is very much the case that the EU and the UK align on a lot of issues in the area of rights. It will certainly be something that other member states observe. They will see whether the situation is changing a lot in the UK, especially because common or shared rights or standards are important for Dublin returns. I assume that the UK will look at what is going on in the EU and, perhaps, align its standards with the EU’s, to make sure that it is not standing out as very liberal. That is what happens a lot in the EU and other member states.
Rossella Pagliuchi-Lor: I subscribe to what my colleague said, but I would like to pick up the last point. As UNHCR, we are very interested in ensuring that alignment and harmonisation do not happen at the lowest common denominator. We would like to see a set of shared principles that truly embody the spirit and the letter of the 1951 convention, the human rights treaty, not a race to the bottom. That would be a betrayal of our common heritage on human rights and asylum. It is very difficult to imagine an agreement that is not underpinned by a shared understanding of what the minimum standards ought to be.
Lord Watts: From what you have heard and what you know, do you think that is the level of alignment that the UK Government will seek to uphold, or, following your earlier comment, will they seek to negotiate something less than they have at present?
Rossella Pagliuchi-Lor: Frankly, I do not know exactly where the revisions of the various components of the Common European Asylum System will eventually sit. I do not think I am qualified to express an opinion on that. Although the UK, when it is outside the EU, will not be a formal member of the system, I assume that you could still have influence, as a country that, in any case, will continue to co-operate with the European Union. I hope that you and everyone involved in this conversation will stand up for best practices.
The Chairman: We will come back to Dublin III now. At some stage, perhaps in answering this question, could you explain to us what the Norwegian model is? You have both talked quite a lot about the Norwegian model, and it would be helpful to have it explained to us.
Q5 Lord Kirkhope of Harrogate: Dr Zaun, I do not know whether our paths have crossed, as I was involved in drafting all the Dublin Regulations. I am going to ask you about Dublin III, in particular. You mentioned that the framework was a good one. In each case, I think it has been; the problem has been the actual delivery of Dublin. It seems to me that we have failed to have political determination and proper allocation, particularly in respect of the responsibility for handling claims and carrying out the basic principle that the British Government have always believed in, which is that asylum should always be sought in the first safe country an individual goes to.
I want to get your comments on Dublin III. Assuming that we leave the European Union, we will no longer be subject to any of these things but will go back to basic principles: the 1951 UN Convention on Refugees and, of course, our approach to the question of returns. In that context, to what extent do you think that Dublin III has had real impact? The numbers you mentioned clearly show that, from our point of view, what I prefer to call responsibility sharing—I do not much like the term “burden sharing”—has meant that this country has not shared as much as some people would like. As you know, other countries, such as Germany, in particular, and Italy, because of its proximity to the Mediterranean, have taken an enormously heavy burden. In my view, Dublin has failed. I would like you to tell me where you think that Dublin III has been successful. That is my question.
The Chairman: Who would like to go first?
Rossella Pagliuchi-Lor: I will let the expert go first. I will comment afterwards.
Dr Natascha Zaun: It is a very difficult question. If you look at the number of actual transfers, not requests, you find that there are not many actual transfers happening. The UK’s outgoing transfers were around 400 in 2017. That is not a lot. In the area of return, it is not working.
When I talk to people from the Home Office, they usually say that, like a lot of other European countries, they are holding on to Dublin because of the idea of secondary movement, the idea that Dublin could act as a deterrent, in a way, and make it more difficult for people to move on. If that is the case, the question is again very difficult, because we cannot know who never came to the UK, or was deterred from coming here, because of Dublin. That is very hard to say. Obviously, people who want to come here because they have family here, or factors like that, will still try to come, but you could say that Dublin, together with the UK not being a Schengen member and being an island, makes it very hard to get here without being apprehended earlier and fingerprinted, if other countries do that. It is riskier, which might deter people, but we cannot really know who has and has not been deterred. Scientifically, it is hard to measure.
Rossella Pagliuchi-Lor: As I said, the UNHCR thinks that Dublin is a very good framework, in principle. It does not work as well as it should, certainly not with regard to returns. Natascha mentioned some figures. I have them here. The disparity between the number of requests for transfer and the number of actual transfers is huge. The total number of transfer requests to the UK in 2017 was 2,137, but only 461 people were actually transferred; 461 arrived, and 2,137 requests were made. The number of requests for transfer out of the UK to another EU country was 5,712, with 314 actually transferred. If we judge the success of Dublin from those figures, it is not impressive.
However, there is more to be said for having at least a common framework to aim for when political will helps us to move in that direction. We think there are two fundamental issues with Dublin that need to be addressed for it to be a properly functioning instrument.
The first is that the Dublin system is premised on the assumption that asylum seekers arriving in any country in Europe will have equal access to asylum procedures, that the procedural standards will be the same and will be applied in the same way, and that, fundamentally, they will have similar opportunities for integration. We know, however, that they are immensely different. That is the first reason why many people tend to choose one country over another, particularly countries where the existence of a community gives them better chances of receiving assistance and help to integrate.
The second is that a system based, as you were saying, on the obligation, which does not exist as such in international law, by the way, for asylum seekers to claim asylum in the very first country they reach means that countries on the borders of the Union receive a disproportionate number of applications and, therefore, are overwhelmed. For the system to operate, there has to be a system that then moves and relocates people, so that there is a fair relocation and allocation of cases across the Union. Without that, you end up in the situation we are in now.
Lord Kirkhope of Harrogate: Dublin always presupposed that the applications would be made in the first safe countries, even if there was allocation of where those granted refugee status were then moved. It has not worked, because of the pressures in certain places.
We are now coming to Dublin IV. I seem to have been involved with everything where there are four goes before you get it right. Anti-money laundering was another one I was involved in. We are on No. 4 of that now. We are coming to Dublin IV, because the political will, or the practical capability to deal with it, has not been there.
If we are out of Europe, we will have no Dublin at all. We will fall back on the basic principles for dealing with asylum seeking and refugee status. In your view, will that be so complicated that, in fact, it will increase the number of people who apply for asylum in this country, and, if so, how? Will it diminish it? What will be the effect of being outside those regulations?
Dr Natascha Zaun: I forgot to mention that, if the UK leaves the EU without agreement on that, there could be another problem. You mentioned that lots of countries do not have an incentive to take the fingerprints of asylum seekers, but if the UK leaves the EU without an agreement there could be a problem of what we call asymmetric interdependence where the UK would have to rely on the good will of other European member states to keep asylum seekers in their territories and not just wave them through. That is something we saw with Italy and Greece, even under the Dublin Regulation, in 2015 and 2016. At entry ports in Belgium or at Calais in France, for example, it could become an issue. You need good relations with France and Belgium, and perhaps return agreements with those countries in that regard. Likewise, depending on what comes out on the Irish border, that could be another entry point. That might favour having Dublin or some kind of agreement.
Rossella Pagliuchi-Lor: Generally speaking, even a nominal framework that does not deliver at its best is better than none. You need it because it provides a basis for further discussion and arrangements.
Q6 Lord Haselhurst: Leading on from that exchange, the basic question is whether we see Dublin, whether IV, V or VI, as fit for purpose. Is it a model that we should rely on at this critical stage in our relationship with the European Union? Do you have confidence that it is the basis on which we should continue to have an agreement with our current partners?
Rossella Pagliuchi-Lor: If I may, I will answer with a question. Is there an alternative?
Lord Haselhurst: It might seem to some that it is an issue that should be of concern to us all. If we were not caught up in the whole business of disentangling ourselves from the European Union, would it not be blindingly obvious that we need an agreement in the common interest? This is a matter where, taken by itself, we ought to be co‑operating in our interest. Lord Kirkhope’s question provoked your comments about Dublin not being perfect. How might it be improved?
Dr Natascha Zaun: There is a problem with the alternatives that are debated. We did a study for the [European] Parliament on different scenarios, which were quite interesting. An alternative could be, for example, selective participation by the UK, not having something like Dublin but agreeing on family reunification. That is certainly something the UK will somehow have to deal with because it is part of the European Convention on Human Rights and, more generally, norms on family unity. That may be something the UK does not want, because it receives a lot of incoming people through family unification. Currently, under Dublin, a lot of people come to the UK because they have family here. The UK is usually interested in the possibility of sending people back to first-entry countries, and it would lose out on that dimension.
Another discussion is bilateral agreements with other countries on asylum responsibility, but there could be problems from a legal perspective. The EU Court of Justice has said that member states are not allowed to have bilateral agreements on responsibility sharing because Dublin does that already. As regards mutual understanding of safe third countries, saying that the EU would be the safe third country from the UK side and that the EU would consider the UK a safe third country does not imply returns. At least in theory, the UK has an interest in returns. The current system under Dublin is very flawed, but it is perhaps the best possible alternative at the moment.
Lord Haselhurst: Do you sense that, whatever may be its imperfections, there is broad equity in the way it works? Is there slight cheating by some member states to push people on, or to be insufficiently vigilant? If they are the second or third country an asylum seeker has come to, they would turn a blind eye, or simply not have the resources to prevent further movement.
Dr Natascha Zaun: That has happened quite a lot. It is very hard to give an answer to the question, but there are a lot of other very attractive asylum-seeker destinations in Europe before getting to the UK, including Germany, Sweden, Austria, Belgium and the Netherlands. I am happy to send you the numbers from Eurostat.
The Chairman: It would be very helpful to have those.
Dr Natascha Zaun: Obviously, a lot of transfers are not made, but it does not look extremely unbalanced.
Lord Watts: Is not a problem with Dublin that there is nothing wrong with the agreement, and burden sharing should take place, but it is a fact of life that people in every country want to reduce the numbers and want somebody else to take an increased number? That is not going to change under any agreement, because the Dublin agreement could, if there was good will, deliver a burden-sharing system.
Rossella Pagliuchi-Lor: Possibly. It is undoubtedly a challenge. All we can do is call upon member states to show solidarity and accept responsibility. No system can work without the good will of the parties to it; there is no question about that, but the fact that certain countries feel disproportionately affected is certainly not the best basis to gain good will on other sides. It will be necessary for all countries involved to come together, have a very honest discussion and make clear commitments.
The reality is that, much as everybody may wish the problem to go away, it will not go away. The only decision that can be made is whether or not it should be managed properly with due respect to human rights and to the commitments that various countries have made. Sometimes not managing it may appear attractive, but it creates other problems down the line.
Q7 Lord Best: My question has been largely answered. It is about getting a sense of the figures. Does it go roughly like this? Last year, we accepted about 28,000 asylum seekers, far fewer than other large European countries? Of those, roughly 5,500 came via Europe and we made a request for them to be returned. Of those requests, in only 314 cases has anything happened, indicating that it may be a good idea to have an agreement but it is almost immaterial. Have I got my figures about right?
Rossella Pagliuchi-Lor: Kind of, but not entirely. The figures will not necessarily match the year. Requests for transfers filed during 2017 might refer to somebody arriving in 2016.
Lord Best: Are the 5,500 returns requested last time a typical number, or does it fluctuate greatly year by year?
Rossella Pagliuchi-Lor: I do not know whether you have the same figures. According to my figures, it grew from about 3,492 in 2015 to 4,239 in 2016 and 5,712 in 2017, so there is a growth in the numbers.
Dr Natascha Zaun: The numbers between 2015 and 2017 could be extreme because of the situation in 2015, and people may have been applying for family unification through Dublin. That could explain why numbers are quite high at the moment. There were not so many people coming in directly but they were applying later on for family unification. That may be the effect of 2015. Normally, outgoing requests are around 2,000.
Lord Best: It has gone up a lot recently, and it is only for a very small number that anything actually happens.
Rossella Pagliuchi-Lor: In part, it is because of the length of the procedures. There is another element, although I cannot guarantee that it has a serious impact on the numbers.
The opportunities under Dublin as a way of achieving family reunification legally are not necessarily well known to claimants. Therefore, they may not see their best chance as being registered in the arrival country and then going through the procedure to reach the UK, or indeed any other country, to join their family. It is a lengthy procedure. They risk being stuck for months or years waiting for it to happen. That is what often pushes people to undertake extremely dangerous journeys and put their lives at risk; they feel they have no alternative, other than remaining in limbo for ever.
Q8 Baroness Massey of Darwen: Women and children are probably the most vulnerable people in the whole system. At the moment, they are supported not necessarily by conventions or treaties but by people working on the ground involved in anti-trafficking, anti-abuse and pro‑education, through NGOs, civil society and so on. Do you think that situation will continue once we are in a different position with the EU? We all know that, when certain people are no longer there, systems collapse because no one follows things up. Will that continue?
Where do children and women fit in the new legal framework? Will they be worse off as regards protection under systems that are slow, as you say? What is happening to the education of children under those systems? What does it mean for the protection of women under these systems? Presumably, we will have an agreement on reunification of family members and that will be facilitated, but what concerns me about the immigration White Paper is that it is not clear whether we will be negotiating with the EU as a whole or with individual countries. That sounds very messy and lengthy. I am worried about people falling through the gaps when that happens. That was long, but it is complex and it has to be tackled.
Rossella Pagliuchi-Lor: The question about whom you need to negotiate with depends on the way the Brexit discussions go. I do not think anybody yet knows what shape that will take. You might negotiate with the European Union; you might end up having to negotiate with individual countries. If all parties are willing, there is no reason why you should not negotiate with the European Union, but that will depend on how things play out.
On the question of whether women and children will be worse off, many of the things in place now mitigate some of the risks. For example, there has been fantastic work done by civil society organisations, the NGOs; they do incredible work on the ground. Local authorities are extremely proactive in many areas, although not everywhere, in trying to support the most vulnerable parts of that population, so presumably that will continue.
It is obvious that the more efficient the system, the less the suffering of the people who are caught by it. That is why we urge the UK and the European Union to ensure that there are agreements and that they are made to work to eliminate the incredibly long process whereby people are stuck in limbo and face incredible risks. Think about having to support yourself and maybe your children when there is no system.
Baroness Massey of Darwen: And no legal help.
Rossella Pagliuchi-Lor: And no legal help. It takes months and months even for an application for family reunion, which, by the way, you are entitled to, and you are stuck in some kind of legal ‘twilight zone’. You have to survive somehow. Most people have already depleted their resources, to the extent that they had any, on the journey. That creates by and of itself a major risk in ensuring their survival and that of their family. The risks come from the gaps in the system, and that is why we urge you to try to work with European partners to diminish them as much as possible.
You mentioned the White Paper. It is very good that it recognises the right to family unity, which incidentally is an established human right, but we would like to see a somewhat more liberal definition of what a family is, and the possibility of the family being extended to dependent adults. I heard the other day about the case of a family that had to decide whether to travel to the UK, leaving behind an 18 year-old unmarried daughter. A child’s dependence does not end at 18, or the age of majority. A child is a child even when they are a refugee. What family would leave behind an 18 year-old, particularly in countries where a single woman not protected by her family is often in serious jeopardy? There should be a way of dealing with such cases, not as an absolute exception so that they have to go through a rather cumbersome and expensive procedure, but as part of routine case management.
The White Paper maintains the Government’s position that children should not be able to sponsor their parents. Family unity is a right for a refugee regardless of age; it is not diminished by the fact that the child is a child. We understand the concerns of the Government that children may be used as anchor cases and are pushed into dangerous travel to pull the family in. We have not found hard evidence that that is the case; there does not seem to be a correlation between children going to a country and that country’s practice with regard to family reunion. That is another element where we would like to encourage the UK Government to be a little more flexible and have that as a possibility. Obviously, each case will have to be examined. Cases should be supported by legal aid. These kinds of cases tend to be incredibly complex and difficult to manage without expert advice. We advocate legal aid being allowed, and that is not in the White Paper at the moment.
Lord Ribeiro: You referred to children being examined. We did a report two years ago or so where we looked at the situation that people coming in were older than 18 but claiming to be under 18. We talked about things like dental records to try to identify age groups, or X-rays of shoulders to show whether joints had united. What did you mean by referring to children being examined? Is that what you had in mind?
Rossella Pagliuchi-Lor: I was not thinking about that; I was talking about examining the case, in order to establish the potential risks to the child, and the best interests of the child.
Lord Ribeiro: Considering our previous findings, there were situations where people seeking asylum were clearly not 18 or under. What is your answer to that?
Rossella Pagliuchi-Lor: My answer is that every system is subject to a certain degree of attempted fraud. These things unfortunately happen; it is human nature. It is so important for many people to find a place where they can be safe and have access to the kinds of things we regard as normal in the UK: an education, safety and being able to go home with the certainty that the house is still there and your family is safe in it. People may sometimes try their luck. I am not suggesting that that ought to be condoned, but it should be understood at the very minimum.
Systems to establish unequivocally the age of a child cannot always be certain. It is simple to distinguish a 12 year-old from a 22 year-old, but in late adolescence children may have different development. Some children grow faster, or their body develops faster than others. The fact that somebody looks a bit older does not necessarily mean that they are older, but it is true that sometimes these things happen.
Dr Natascha Zaun: One of the big dangers that could involve families and family reunification is no deal, because then we would not know what to do with the Dublin transfers. Some families could be in a legal limbo where they do not know what is happening.
Another point is the proposed definition of family unification in the UK, so that children can join their parents, but not vice versa. That is not followed in other European member states. In a recent judgment of the Court of Justice of the European Union in A and S v The Netherlands[2], it was established that in the EU parents should be allowed to join their children. I think EU law will develop in that direction, which may be something to take into consideration. The EU is more liberal on that and might expect the UK to become more liberal as well.
Q9 Lord Ricketts: Other members of the Committee have already asked the question I was going to ask. It was about Dublin IV and burden sharing, responsibility sharing, or whatever we like to call it. I will link it with another point.
I would be interested in any other thoughts you have on the prospects for Dublin IV, beyond what we have already discussed. Clearly, there are a lot of tensions on the EU side, even if it is a voluntary burden-sharing scheme rather than an obligatory one. Do you assume, as I do, that the EU would expect the UK to join some sort of burden-sharing agreement as part of post-Brexit arrangements?
We have not talked a lot about illegal migrants and those who deliberately avoid the asylum system. I used to be in Paris and dealt a lot with the Calais camps and so on. I think it is true to say that a lot of the migrants there deliberately avoided first registration in Greece or Italy because they did not want to stay there. The UK overall takes a small number of asylum seekers, but there is continuing pressure from illegal migrants who want to get across, having failed to register anywhere else. Do you see Brexit possibly having an impact on that whole issue? Does it mean that we need bilateral return agreements, for example, with France or Belgium?
Dr Natascha Zaun: The first question is whether the UK would be expected to take part in some form of voluntary or perhaps mandatory relocation scheme. In the Norway model, or in other non-EU but European Economic Area countries, when there was mandatory relocation in 2015, those countries were not forced to participate, but they were to a certain extent expected to do it, so those countries pledged relocation in response. I talked to some people from Norway who said that it had two dimensions. On the one hand, it is expected to a certain extent; on the other hand, it is important to show good will for future co‑operation with the EU. Those countries did something, but they could determine how many people they took.
The second question was about avoiding the asylum system. Those issues will persist. It is a problem, as obviously other European countries cannot send back asylum seekers, especially to Greece given the conditions there, so in that regard the Dublin system has been suspended in a way. That will remain a problem. I do not know how to address it. The Eurodac system was an attempt to address irregular migration through Europe and the avoidance of applying for asylum in first-entry countries, but it depends on the good will of the countries taking fingerprints, so it is hard to come up with a solution.
Rossella Pagliuchi-Lor: The mere fact that they try to avoid entering the procedure in one country should not lead us to assume necessarily that the person is an illegal migrant, as opposed to a bona fide asylum seeker. In other words, people take decisions based on the information they have and what they think is best for them. A lot of the legal niceties that we consider so fundamental probably sound less so when you are sitting in a tent in Calais. There is also all the work that smuggling networks are carrying out to convince people, because their interest is in people moving illegally, not legally. There are many complexities, so I would not conclude that trying to avoid the procedure necessarily means that the person does not have a genuine claim.
Q10 Baroness Pinnock: You referred to Eurodac. It would be good to have a bit more information and your thoughts on Eurodac. What do you think is the likelihood that the UK will continue to use Eurodac both for asylum seekers and the law enforcement bit that goes alongside it? What are the implications for the UK in accessing Eurodac for either of those purposes after Brexit?
Rossella Pagliuchi-Lor: Without wanting to speculate, there are examples of countries that are not part of the EU accessing Eurodac: Iceland, Switzerland and others. I see no reason why the UK should not be able to seek to negotiate continued access to Eurodac, which is, incidentally, part of the Dublin framework.
My personal view, as Eurodac is essentially a database, is that it is in everybody’s interests for it to be used, accessed and fed by a larger number of participants rather than a smaller number. I see that as of continued interest to the UK, and potentially the other members. I do not want to speculate, but as a common-sense statement there is benefit in being part of that.
Baroness Pinnock: I understand that.
Dr Natascha Zaun: So far the UK has shown strong interest in Eurodac, which we can see in the White Paper. I assume that participation in Eurodac would relate to an agreement on something like Dublin, and obviously other countries would have access as well. There have been some concerns regarding data protection. The EU has strong data protection rights—for example, in Article 8 of the European Charter of Fundamental Rights. There were some concerns, but there are other countries that access Eurodac, so it would be possible.
Q11 Lord Ribeiro: There are 51 days to go until 29 March, and already there is quite a lot of pressure, discussion and drum beating that we are heading more towards no deal than a deal. What are the implications of no deal in the Brexit scenario for UK-EU asylum? This is absolutely key. Until now, the Government have tended not to show their workings on no deal, but we have to consider it now. Do you have any thoughts?
Rossella Pagliuchi-Lor: There would be some obvious and immediate consequences, certainly disruption in the management of asylum and whatever cases were currently being discussed for transfer, family reunification cases and others, where people might find themselves falling into the gap, at least until something else was negotiated. There is the question of funding. The Asylum, Migration and Integration Fund of the European Union funds a number of important integration activities in the UK. About €370 million has been allocated for a six-year period, I believe. That money is linked directly to membership of the Union. There is your participation in the activities in the Mediterranean; some UK naval assets are providing support to Operation Sophia. I guess that at some stage that might be in question.
Dr Natascha Zaun: I do not have a lot to add. As already mentioned, there would be a question about transfers and whether Dublin was no longer applicable. The UK would have to renegotiate returns or come to other agreements.
Lord Ribeiro: Applications in train at the moment will clearly be affected, as you mentioned, and you talked about mitigating factors. Is there anything that can be done in the event of a no deal to manage this effectively and avoid the risks that clearly will arise?
Dr Natascha Zaun: Any kind of agreement would be good. You would probably need an agreement for family reunification or transfers.
Lord Ribeiro: The assumption with a deal was that we would have time until December 2020 in the implementation period when all these sorts of things could be sorted out, and there would be plenty of time to decide. That will not be the case if we pull out. The Government are not telling us their thinking. What is your thinking?
Rossella Pagliuchi-Lor: I think it is a bit of an unfair question.
The Chairman: We could find ourselves in a position where we had three weeks to go. What could be cobbled together in three weeks to avert what could otherwise be a very difficult position? Do you think anything is possible?
Rossella Pagliuchi-Lor: In theory, everything is possible if the parties are willing. In theory, it is possible to call Brussels and agree on an extension of Dublin or some kind of arrangement. Everything is possible if the parties are willing.
Dr Natascha Zaun: There are shared interests in co‑operation on this matter; it is not something that is highly contested between the EU and the UK. Since there are shared interests, it could be possible. Both sides would have to be open to compromise, but their preferences are not so divergent on this as perhaps in other areas.
The Chairman: If we had three weeks to go, what would you try to negotiate if you were the British Government?
Rossella Pagliuchi-Lor: I cannot speak for my organisation because it does not have a position on this. To give a very personal opinion, I would seek an extension to current arrangements to make space for renegotiation, but that is not UNHCR speaking; it is me. I am not in a position to say whether or not that would be acceptable, because we are not privy to the kinds of conversations that are happening in the meantime. I am afraid that is not a very useful reply.
Dr Natascha Zaun: But it would be the most feasible option because the law is there. It is not something that has to be negotiated; it is already there, so you could draw on it and extend it.
Lord Watts: What do you think of the description that the Government keep using, which is “take back control of our borders”? That seems to me to indicate that they do not wish to have an extension; they want an individual system that they create. I do not know whether you are able to comment on that, or whether you feel that the terminology seems to describe something we are not talking about here today but is their clear intention and direction.
Dr Natascha Zaun: This is a very interesting policy area because, compared perhaps with freedom of movement within the EU, some people would argue that leaving Dublin, and leaving the EU in that regard, might mean less control of asylum migration to the UK. It is obviously a challenge.
Lord Ricketts: I have heard it said that a no-deal Brexit with no arrangements with the EU might encourage migration to the UK because, once people reached the UK, there would be no possibility of returns to a third country; they would be safe and sound. In a slightly counterproductive way, it might encourage people to enter the UK. I do not know whether there is any basis for that speculation.
Rossella Pagliuchi-Lor: I do not think there is a specific basis for it. We do not know. There is no knowing. Sometimes, decisions are influenced by the messaging from smuggling networks. It may or may not have an impact in reality; it may have an impact on perceptions, but there is no evidence at this point to say one way or the other.
The Chairman: Thank you very much indeed. It has been extremely helpful to us. We are very grateful to both of you. We hope that your students have benefited, as we have. You promised to send us some figures.
Rossella Pagliuchi-Lor: Yes, we will do so.
The Chairman: Secondly, we have not talked about the Norwegian model. Would one of you be able to send us details? Would you do that, Dr Zaun?
Dr Natascha Zaun: Yes.
The Chairman: That would be very helpful. I should have said at the beginning, although it was evident, that this is a public session. It will be transcribed, and we will send you shortly a copy of the transcript so that you can make any factual amendments that you need to make. Finally, on behalf of all of us, thank you very much indeed for coming to give evidence to us today. It has been extremely helpful.
