Refugee law in the United Kingdom and the European Union : the constitutive and subversive effects of immigration and border control

Abstract

This thesis examines the evolution of United Kingdom (UK) and European Union (EU) refugee law, arguing that there is a problematic relationship between immigration and asylum law in both contexts. UK asylum law emerged initially as an exception to generalised immigration restriction. The origins of the legal concept of asylum lay within the discretionary confines of immigration law – to this extent refugee law was partly constituted by the immigration and border control regime. Similarly the UK’s first asylum law took shape in the context of restrictive intergovernmental cooperation between immigration ministers taking place at the European level in the 1980s and 1990s. It is argued that the UK welcomes aspects of EU cooperation that boost its own administrative capacity, but rejects European influence where this threatens to impinge upon its discretion to shape its domestic asylum regime. The UK’s flexible opt out allows it to participate in EU measures according to these preferences. This thesis questions whether the EU should tolerate such cherry-picking in respect of a sensitive area of law that affects the lives of vulnerable individuals. While harmonisation demands the setting of minimum asylum standards, the first stage asylum directives consist of an unhappy compromise in permitting a wide scope for discretion for Member States in applying the directives, resulting in diverse practices across the EU. This is untenable in light of the persistence of the Union’s “one chance of asylum” rule. Further, it is argued that even if adequate reform of substantive internal protection standards is possible, this is insufficient in the absence of comprehensively addressing the relationship between migration and border control and asylum. In the EU, it is argued that exclusionary migration policy subverts the protective potential of its refugee law. While elements of European refugee law might suggest that EU cooperation embodies an improvement on international protection standards, the EU’s exclusionary migration and border control regime severely limits access to protection.